907 KAR | Title 907 KAR — Cabinet for Health and Family Services - Department for Medicaid Services

Chapter 1 Medicaid Services

907 KAR 1:005 Nonduplication of payments {#sec-907-kar-1-005 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:005}

Section 1. Nonduplication of Payment.

(1) In accordance with 42 C.F.R. 447.15, a payment to a provider for a service provided to a recipient shall be payment in full to the provider for the service.

(2)

(a) A provider shall not seek payment from a recipient for a covered service provided to the recipient.

(b) A recipient shall not be financially liable to a provider for a covered service provided by the provider to the recipient.

Section 2. Third-party Liability.

(1) The department shall comply with 42 C.F.R. Part 433, Subpart D, and consider any third-party liability as a resource.

(2) A recipient shall cooperate with the department for third-party liability purposes in accordance with 42 U.S.C. 1396k, 42 C.F.R. 433.138, and 42 C.F.R. 433.145.

(3) If payment for a covered service is due and payable from a third-party source such as Medicare, an insurance plan, or some other third-party with a legal obligation to pay, the amount payable by the cabinet shall be reduced by the amount of the third-party obligation.

History

RELATES TO: KRS 205.624, 205.6312, 42 U.S.C. 1396a, 42 U.S.C. 1396k, 42 C.F.R. Parts 431, 433, 447
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.622
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid program. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the Medicaid program policies relating to nonduplication of payment and treatment of third-party liability.
History: 2 Ky.R. 100; 9-10-1975; Recodified from 904 KAR 1:005, 5-2-1986; 17 Ky.R. 148; eff. 9-13-1990; 45 Ky.R. 1439; eff. 2-1-2019; 48 Ky.R. 1409; eff. 3-10-2022.

907 KAR 1:006 Coverage of and payment for services for persons eligible for benefits under both Title XIX and Title XVIII {#sec-907-kar-1-006 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:006}

Section 1. Definitions.

(1) "Coinsurance" means that portion of each bill a Medicare-eligible person pays for a covered benefit, including copayments.

(2) "Deductible" means an amount paid by a Medicare-eligible person before Medicare begins paying its portion of a medical bill.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Medicare Part A" means federal health insurance that covers:

(a) Inpatient hospital or skilled nursing facility services, including blood;

(b) Hospice services; and

(5) "Medicare Part B" means federal health insurance that covers:

(a) Physician services;

(b) Outpatient hospital services;

(d) Other services not covered under Medicare Part A.

(6) "Premium" means a monthly amount paid for coverage of Medicare Part A or Part B.

(7) "Qualified disabled and working individual" or "QDWI" means an individual who meets the requirements in 42 U.S.C. 1396d(s).

(8) "Qualified individual one" or "QI-1" means an individual who meets the requirements in 42 U.S.C. 1396a(a)(10)(E)(iv)(II).

(9) "Qualified Medicare beneficiary" or "QMB" means an individual who meets the requirements in 42 U.S.C. 1396d(p)(1).

(10) "Specified low-income Medicare beneficiary" or "SLMB" means an individual who meets the requirements in 42 U.S.C. 1396a(a)(10)(E)(iii).

Section 2. Medicare Buy-in. The department shall purchase through the Social Security Administration:

(1) Medicare Part B for a recipient eligible for Medicare who is receiving a money payment under the state program of optional or mandatory supplementation;

(2) Medicare Part A and Medicare Part B for a recipient determined eligible as a QMB;

(3) Medicare Part B for a recipient determined eligible as a SLMB;

(4) Medicare Part A for a recipient determined eligible as a QDWI; and

(5) Medicare Part B for a recipient determined eligible as a QI-1.

Section 3. Payment of Deductibles and Coinsurance.

(1) The department shall pay the deductible and coinsurance for a benefit covered under Medicare Part A or Medicare Part B for an individual eligible for:

(a) QMB coverage; or

(b) Both Title XVIII and Title XIX benefits.

(2) The amount of deductible and coinsurance paid by the department to a provider for a benefit covered under Medicare Part A shall be the lesser of:

(a) The Medicaid-allowed amount minus the Medicare payment; or

(b) The Medicare coinsurance and deductible, up to the Medicaid-allowed amount.

(3) With the exception of services identified in subsection (4)(a) through (m) of this section, the amount of coinsurance and deductible paid by the department to a provider for a benefit covered under Medicare Part B shall be the full amount of the deductible and coinsurance.

(4) The amount of deductible and coinsurance paid by the department for a service provided in accordance with one (1) of the following administrative regulations and covered under Medicare Part B shall be the lesser of the Medicaid-allowed amount minus the Medicare payment or the Medicare coinsurance and deductible up to the Medicaid-allowed amount:

(a) 907 KAR 23:010, Outpatient Pharmacy Program; or

(b) 907 KAR 1:026, Dental services;

(d) 907 KAR 1:038, Hearing and Vision Program services;

(e) 907 KAR 1:044, Mental Health Center services;

(f) 907 KAR 1:060, Medical transportation;

(g) Ancillary services pursuant to 907 KAR 1:065, Payments for Price-based Nursing Facility Services;

(h) Ancillary services pursuant to 907 KAR 1:025, Payment for services provided by an intermediate care facility for the mentally retarded and developmentally disabled, a dually-licensed pediatric facility, an institution for mental diseases, and a nursing facility with an all-inclusive rate unit;

(i) 907 KAR 1:102, Advanced registered nurse practitioner services;

(j) 907 KAR 1:270, Podiatry Program services;

(k) 907 KAR 1:479, Durable medical equipment covered benefits and reimbursement;

(l) 907 KAR 3:005, Physicians' services; or

(m) 907 KAR 3:125, Chiropractic services and reimbursement.

(5) A payment made by the department under this section of this administrative regulation shall be considered as payment in full for a benefit provided under Medicare Part A or B.

Section 4. Obligation for a QMB Enrolled in a Medicare Managed Care Organization.

(1) The department shall be responsible for payment of Part A and Part B premiums, deductibles and coinsurance, copayments, and enrollment premiums for a QMB recipient enrolled in a Medicare managed care organization.

(2) The department shall reimburse deductibles and coinsurance in accordance with Section 3 of this administrative regulation.

Section 5. Special Provisions. An individual determined eligible as a QI-1, shall:

(1) Be limited by a block grant with eligibility established on a first-come first-serve basis;

(2) In calendar years following the year of initial approval, be given preference over another individual who may apply who was not eligible the previous year; and

(3) Have eligibility terminated when the block grant authorized under 42 U.S.C. 1396u-3(c)(1) is no longer available from federal Medicaid funds.

History

RELATES TO: KRS 205.520, 42 U.S.C. 1396a, 1396a(n)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services has responsibility to administer the Medicaid Program in accordance with Title XIX of the Social Security Act. 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the provisions for coverage of and payment for services for categorically needy and medically needy individuals eligible for benefits under both Title XIX (42 U.S.C. 1396 to 1396v) and Title XVIII (42 U.S.C. 1395 to 1395ggg).
History: 2 Ky.R. 100; eff. 9-10-1975; Recodified from 904 KAR 1:006, 5-6-1986; 15 Ky.R. 1960; 2156; eff. 3-15-1989; 17 Ky.R. 546; eff. 10-14-1990; 25 Ky.R. 437; 858; eff. 9-16-1998; 30 Ky.R. 105; 871; eff. 10-31-2003; 1615; 1937; eff. 2-16-2004; TAm eff. 10-6-2017; Crt eff. 12-6-2019.

907 KAR 1:008 Ambulatory surgical center services and reimbursement {#sec-907-kar-1-008 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:008}

Section 1. Scope of Coverage. The Medicaid Program shall cover medically necessary, medically appropriate services rendered by a participating ambulatory surgical center (ASC) licensed by its respective state and certified for Medicare participation.

Section 2. Basis for Reimbursement.

(1) Beginning with the effective date of this administrative regulation, the Department for Medicaid Services shall determine the ASC rates by:

(a) Utilizing the most recent January 1 ASC Fee Schedule as published by the Centers for Medicare and Medicaid Services (CMS) at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ASCPayment/11_Addenda_Updates.html in accordance with 42 C.F.R. 416.173; and

(b) Adjusting them as follows:

Reimbursement for a procedure shall be the rate specific to that procedure as assigned by CMS, adjusted by the wage index utilized by CMS for the Cincinnati, OH, Core-Based Statistical Area, or its equivalent, in accordance with 42 C.F.R. 416.172(c).
Procedure codes that are considered a packaged service by CMS with a Medicare rate of $0 shall be reimbursed at a rate of $0.
Medicaid covered procedures not included on the Medicare fee schedule shall be reimbursed at forty-five (45) percent of billed charges.
Bilateral procedures shall be reimbursed at one hundred and fifty (150) percent of the rate established in subparagraphs 1 and 2 of this paragraph.

a. Reimbursement shall follow applicable Medicare rules for multiple endoscopy discounting and multiple procedure discounting as established in:

(i) 42 C.F.R. Part 416; and

(ii) The Medicare Claims Processing Manual, Chapter 14, as published by the Centers for Medicare and Medicaid Services (CMS) at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs in accordance with 42 C.F.R. 416.173.

b. If both discounts apply to a single claim, the multiple endoscopy discount shall be applied first.

(2) Ambulatory surgical center coverage provisions shall be as established in 42 C.F.R. Part 416, Subpart F, including 42 C.F.R. 416.164 and 416.166.

(3) Reimbursements shall be limited to the lesser of billed charges or the amount established pursuant to subsection (1) of this section.

Section 3. Reproductive Services.

(1) A reproductive service shall be reimbursable if performed in compliance with this administrative regulation and 42 C.F.R. Part 441, Subpart E or F, as relevant.

(2) The appropriate certification form or forms shall be completed and signed by the physician, MAP-235, MAP-250, or MAP-251. A copy of the completed form and an operative report shall accompany each claim submitted for payment.

(3) If a sterilization is performed in conjunction with another surgical procedure and federal requirements governing payment for the sterilization in 42 C.F.R. Part 441, Subpart F have not been met, the department shall only make payment for the covered non-sterilization procedure.

(4) Claims for unilateral or laparoscopic surgical procedures that could result in sterilization shall be submitted with documentation verifying that the recipient was not sterilized as a result of the performed procedure.

Section 4. Documentation Requirements.

(1) All services reimbursed by the department shall be:

(a) Medically necessary;

(b) Medically appropriate; and

Illness;
Injury;
Impairment; or
Maternity care.

(2) Documentation in recipient medical records shall support necessity and substantiate the level of service billed.

(3) Medical necessity shall be determined in accordance with 907 KAR 3:130.

(4) The department shall have the authority to audit any:

(a) Claim;

(b) Medical record; or

Section 5. Federal Approval and Federal Financial Participation. The cabinet's coverage and reimbursement of services pursuant to this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval of the coverage and reimbursement, as relevant.

Section 6. Not Applicable to Managed Care Organizations. A managed care organization shall not be required to reimburse in accordance with this administrative regulation for a service covered pursuant to this administrative regulation.

Section 7. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Certification Form for Induced Abortion or Induced Miscarriage", MAP-235, February 2000;

(b) "Consent for Sterilization", MAP-250, April 2022; and

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Cabinet for Health and Family Services, Department for Medicaid Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

(3) This material may also be obtained at https://chfs.ky.gov//agencies/dms/dpo/bpb/Pages/ascs.aspx.

History

RELATES TO: KRS 205.520(3), 205.560(2), 42 C.F.R. 416.164, 416.166, 416.172, 416.173, Part 441 Subpart E, F, 447.271
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has responsibility to administer the Medicaid Program pursuant to KRS 194A.030(2). KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the coverage provisions and method for establishing payment for an ambulatory surgical center.
History: 8 Ky.R. 138; eff. 9-2-1981; Recodified from 904 KAR 1:008, 5-2-1986; 15 Ky.R. 670; eff. 9-21-1988; 23 Ky.R. 3440; 3839; 4162; eff. 6-16-1997; 29 Ky.R. 2146; eff. 4-11-2003; Cert eff. 12-6-2019; 49 Ky.R. 133, 1114, 1272; eff. 1-12-2023.

907 KAR 1:022 Nursing facility services and intermediate care facility for individuals with an intellectual disability services {#sec-907-kar-1-022 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:022}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "Department approved system" means a technology system in which:

(a) Providers electronically submit and track level of care (LOC) requests through a self-service portal;

(b) The system triggers LOC tasks as reminders to providers and allows them to submit reassessments electronically; and

Medicaid Enterprise Management Solution (MEMS); and
Integrated eligibility and enrollment system.

(3) "High-intensity nursing care services" means care provided:

(a) To a Medicaid-eligible individual who meets high-intensity nursing care patient status criteria in accordance with Section 4 of this administrative regulation; and

(b) By a nursing facility or a nursing facility with Medicaid waiver participating in the Medicaid Program with care provided in beds also participating in the Medicare Program.

(4) "High-intensity rehabilitation services" means therapy services that:

(a) Are expected to improve an individual's condition while the individual possesses reasonable potential for improvement in functional capability; and

(b) Do not include restorative and maintenance nursing procedures, including routine range of motion exercises and application of splints or braces by nurses and staff.

(5) "Intermediate care facility for individuals with an intellectual disability" or "ICF-IID" means a licensed intermediate care facility for individuals with an intellectual disability certified by the Department for Medicaid Services as meeting all standards for an intermediate care facility for individuals with an intellectual disability.

(6) "Intermediate care facility for individuals with an intellectual disability services" or "ICF-IID services" means care provided:

(a) To a Medicaid-eligible individual who meets ICF-IID patient status criteria in accordance with Section 4 of this administrative regulation; and

(b) By an ICF-IID participating in the Medicaid Program.

(7) "Intermittent high-intensity nursing care services" means services for an individual who requires high-intensity nursing care services at regular or irregular intervals, but not on a twenty-four (24) hour-per-day basis and not less than three (3) calendar days per week.

(8) "Low-intensity nursing care services" means care provided:

(a) To a Medicaid-eligible individual who meets low-intensity nursing care patient status criteria in accordance with Section 4 of this administrative regulation; and

(b) By a nursing facility or a nursing facility with Medicaid waiver participating in the Medicaid program.

(9) "Medical condition" means a state of health relative to a clinical diagnosis made by a licensed physician, physician assistant, advanced practice registered nurse, or a qualified behavioral health professional.

(10) "Nursing facility" or "NF" means:

(a) A facility:

To which the Cabinet for Health and Family Services, Office of Inspector General has granted an NF license;
For which the Cabinet for Health and Family Services, Office of Inspector General has recommended to the department certification as a Medicaid provider; and
To which the department has granted certification for Medicaid participation; or

(b) A hospital swing bed that provides services in accordance with 42 U.S.C. 1395tt and 1396l, if the swing bed is certified to the department as meeting requirements for the provision of swing bed services in accordance with 42 U.S.C. 1396r(b), (c), (d), 42 C.F.R. 447.280 and 482.58.

(11) "Nursing facility with Medicaid waiver" or "NF-W" means a facility:

(a) To which the Cabinet for Health and Family Services, Office of Inspector General has granted an NF license;

(b) For which the Cabinet for Health and Family Services, Office of Inspector General has recommended to the department certification as a Medicaid provider;

(d) To which the department has granted certification for Medicaid participation.

(12) "Patient status" means an individual's level of care in accordance with Section 4 of this administrative regulation for treatment in an institutional setting.

(13) "Personal care" means services to help an individual achieve and maintain good personal hygiene, which may include assistance with bathing, shaving, cleaning and trimming of fingernails and toenails, cleaning of the mouth and teeth, washing, and grooming and cutting of hair.

(14) "Stable medical condition" means a medical condition that is capable of being maintained in accordance with a planned treatment regimen requiring a minimum amount of medical supervision without significant change or fluctuation in a patient's condition or treatment regimen.

Section 2. Participation Requirements. A facility desiring to participate in the Medicaid program as a nursing facility, nursing facility with Medicaid waiver, or ICF-IID shall meet the requirements established in this section.

(1) An application for participation shall be made in accordance with 907 KAR 1:671 and 907 KAR 1:672.

(2)

(a) Except as provided by paragraph (b) of this subsection or for a nursing facility with Medicaid waiver, a nursing facility shall have at least twenty (20) percent of all Medicaid certified beds, but not less than ten (10) beds, also certified to participate in Medicare.

(b) If a nursing facility has less than ten (10) beds certified for Medicaid, all Medicaid certified beds shall also be certified to participate in Medicare.

(3)

(a) Except as provided by paragraph (b) of this subsection, if a nursing facility with Medicaid waiver chooses to participate in Medicare, the facility shall have at least twenty (20) percent of all Medicaid certified beds, but not less than ten (10) beds, also certified to participate in Medicare.

(b) If a nursing facility with Medicaid waiver has less than ten (10) beds certified for Medicaid, all Medicaid beds shall also be certified to participate in Medicare.

(4) A nursing facility or a nursing facility with Medicaid waiver shall comply with the preadmission screening and resident review requirements specified in 42 U.S.C. 1396r and 907 KAR 1:755. A facility failing to comply with these requirements shall be subject to disenrollment, with exclusion from participation to be accomplished in accordance with 907 KAR 1:671, 42 C.F.R. 431.153, and 42 C.F.R. 431.154.

(5) A facility shall be certified by the Cabinet for Health and Family Services, Office of Inspector General as meeting NF, NF-W, or ICF-IID status.

(6) In order to provide specialized rehabilitation services to an individual with a brain injury in accordance with Section 6 of this administrative regulation, a facility shall be accredited by:

(a) The Joint Commission;

(b) The Commission on Accreditation of Rehabilitation Facilities;

(d) A nationally recognized accreditation organization.

(7) A participating nursing facility shall be certified in accordance with standards and conditions specified in this administrative regulation before the facility may operate a unit that provides:

(a) Preauthorized specialized rehabilitation services for a person with a brain injury; or

(b) Care for a person who is ventilator dependent.

(8) A participating nursing facility, nursing facility with Medicaid waiver, or ICF-IID shall enter a resident's discharge date into a department approved system.

(9)

(a) A licensed swing bed facility shall contact the department for a new level of care review prior to swinging the bed back to nursing facility status if the bed swings to acute status for three (3) or more consecutive calendar days.

(b) An NF shall not count the day the bed will swing back to nursing facility status in the three (3) consecutive days specified in paragraph (a) of this subsection.

Section 3. Payment Provisions.

(1) Payment for high-intensity nursing care, low-intensity nursing care, or ICF-IID services shall be limited to those services meeting the care definitions established in Section 1 of this administrative regulation.

(2) An NF or NF-W shall receive payment for high-intensity nursing care services provided to a Medicaid-eligible individual meeting high-intensity nursing care patient status criteria if the services are provided in a Medicaid participating bed that is also participating in the Medicare Program.

(3) An NF or NF-W shall receive payment for low-intensity nursing care services provided to a Medicaid-eligible individual meeting low-intensity nursing care patient status criteria if the services are provided in a Medicaid participating bed.

(4) An ICF-IID shall receive payments for ICF-IID services only.

Section 4. Patient Status Criteria. A patient status decision shall be based on medical diagnosis, care needs, services and health personnel required to meet these needs, and the feasibility of meeting the needs through alternative institutional or noninstitutional services.

(1) For an admission and continued stay, an individual shall qualify under the preadmission screening and resident review criteria specified in 42 U.S.C. 1396r and 907 KAR 1:755.

(2) An individual shall be considered to meet the level of care criteria for high-intensity nursing care if:

(a) On a daily basis:

The individual's needs mandate:

a. High-intensity nursing care services; or

b. High-intensity rehabilitation services; and

The care can only be provided on an inpatient basis;

(b) The inherent complexity of a service prescribed for an individual exists to the extent that it can be safely or effectively performed only by or under the supervision of technical or professional personnel; or

(c) The individual has an unstable medical condition manifesting a combination of at least two (2) or more care needs in the following areas:

Intravenous, intramuscular, or subcutaneous injections and hypodermoclysis or intravenous feeding;
Nasogastric or gastrostomy tube feedings;
Nasopharyngeal and tracheotomy aspiration;
Recent or complicated ostomy requiring extensive care and self-help training;
In-dwelling catheter for therapeutic management of a urinary tract condition;
Bladder irrigations in relation to previously indicated stipulation;
Special vital signs evaluation necessary in the management of related conditions;
Sterile dressings;
Changes in bed position to maintain proper body alignment;
Treatment of extensive decubitus ulcers or other widespread skin disorders;
Receiving medication recently initiated, which requires high-intensity observation to determine desired or adverse effects or frequent adjustment of dosage;
Initial phases of a regimen involving administration of medical gases; or
Receiving services that would qualify as high-intensity rehabilitation services if provided by or under the supervision of a qualified therapist, for example:

a. Ongoing assessment of rehabilitation needs and potential;

b. Therapeutic exercises;

c. Gait evaluation and training performed by or under the supervision of a qualified physical therapist;

d. Range of motion exercises that are part of the active treatment of a specific disease state that has resulted in a loss of, or restriction of, mobility;

e. Maintenance therapy if the specialized knowledge and judgment of a qualified therapist is required to design and establish a maintenance program based on an initial evaluation and periodic reassessment of the patient's needs and consistent with the patient's capacity and tolerance;

f. Ultrasound, short wave, and microwave therapy treatments;

g. Hot pack, hydrocollator infrared treatments, paraffin baths, and whirlpool (if the patient's condition is complicated by circulatory deficiency, areas of desensitization, open wounds, fractures, or other complications, and the skills, knowledge, and judgment of a qualified therapist are required); or

h. Services by or under the supervision of a speech-language pathologist or audiologist if necessary for the restoration of function in speech or hearing.

(3)

(a) An individual shall be considered to meet the level of care criteria for low-intensity patient status if, unrelated to age appropriate dependencies with respect to a minor, the individual meets the requirements of this paragraph:

An individual with a stable medical condition requiring intermittent high-intensity nursing care services not provided in a personal care home shall be considered to meet low-intensity patient status;
An individual with a stable medical condition, who has a complicating problem that prevents the individual from caring for himself or herself in an ordinary manner outside the institution, shall be considered to meet low-intensity patient status. For example, an ambulatory cardiac patient with hypertension may be reasonably stable on appropriate medication, but have intellectual deficiencies preventing safe use of self-medication, or other problems requiring frequent nursing appraisal, and thus be considered to meet low-intensity patient status; or
An individual with a stable medical condition manifesting a significant combination of at least two (2) or more of the following care needs shall be determined to meet low-intensity patient status:

a. Assistance with personal care;

b. Medication administration via a medication planner filled by a registered nurse or licensed practical nurse;

c. Assistance with transferring to or propelling a wheelchair;

d. Physical or environmental management for confusion and mild agitation;

e. Must have assistance and be present during the entire meal time;

f. Physical assistance with going to the bathroom or using a bedpan for elimination;

g. Existing colostomy care;

h. Indwelling catheter for dry care;

i. Changes in bed position;

j. Administration of stabilized dosages of medication;

k. Restorative and supportive nursing care to maintain the individual and prevent deterioration of the individual's condition;

l. Administration of injections during time licensed personnel is available; or

m. Routine administration of oxygen after a regimen of therapy has been established.

(b) An individual shall not be considered to meet low-intensity patient status criteria if care needs are limited to the following:

Verbal or gestural assistance with activities of daily living;
Independent use of mechanical devices, for example, assistance in mobility by means of a wheelchair, walker, crutch, or cane;
A limited diet such as low salt, low residue, reducing or another minor restrictive diet; or
Medications that can be self-administered or the individual requires minimal assistance such as set up of medications or simple cuing.

(4) An individual who meets patient status criteria shall be specifically excluded from coverage if the department determines that in the individual case the combination of care needs are beyond the capability of the facility and that placement in the facility is inappropriate due to potential danger to the health and welfare of the individual, other patients in the facility, or staff of the facility.

(5) An individual shall be considered to meet the level of care criteria for ICF-IID if the individual meets criteria for a diagnosis of an intellectual disability as defined by the current Diagnostic and Statistical Manual of Mental Diseases (DSM) with onset of condition prior to age eighteen (18) or meets criteria for a person with a related condition as defined by 42 C.F.R. 435.1010 with onset of condition prior to age twenty-two (22) and meets the following criteria:

(a) Requires physical or environmental management or habilitation;

(b) Requires a planned program of active treatment;

(d) Unrelated to age appropriate dependencies with respect to a minor, has substantial deficits in adaptive functioning that, without ongoing support, limit functioning in one (1) or more activities of daily life such as communication, social participation, and independent living across multiple environments, such as home, school, work, and community.

(6) An individual who does not require a planned program of active treatment to attain or maintain the individual's optimal level of functioning shall not meet ICF-IID patient status.

(7) An individual shall not be denied for ICF-IID services solely due to advanced age, length of stay in an institution, or history of previous institutionalization, if the individual qualifies for ICF-IID services on the basis of all other factors.

(8) Transfer trauma criteria. A Medicaid recipient in an NF who does not meet the low-intensity or high-intensity nursing care patient status criteria established in this section shall not be discharged from an NF if:

(a) The recipient has resided in an NF for at least eighteen (18) consecutive months;

(b) The recipient's attending physician determines that the recipient would suffer transfer trauma in that the individual's physical, emotional, or mental well-being would be compromised by a discharge action as a result of not meeting patient status criteria; and

(c) The department confirms the recipient's attending physician's assessment regarding the trauma caused by possible discharge from the NF.

(9) A Medicaid recipient who meets transfer trauma criteria in accordance with subsection (8) of this section shall:

(a) Remain in an NF and continue to be covered by the department for provider reimbursement at least until the individual's subsequent transfer trauma assessment; and

(b) Be reassessed for transfer trauma every 180 calendar days.

(10) The recipient transfer trauma criteria established in subsection (8) of this section shall not apply to an individual who resides in a facility that experiences closure or a license or certificate revocation.

Section 5. Reevaluation of Need for Service.

(1) Nursing facility, nursing facility with Medicaid waiver, or ICF-IID services shall continue to be provided to an individual if the individual's health status and care needs are within the scope of program benefits as described in Sections 3 and 4 of this administrative regulation.

(2) An individual's patient status shall be reevaluated at least once every twelve (12) months.

(3) Except as provided in Section 4(8) and (9) of this administrative regulation, if a reevaluation of care needs reveals that an individual no longer requires high-intensity nursing care, low-intensity nursing care, or intermediate care for an individual with an intellectual or a developmental disability:

(a) Payment shall continue for ten (10) calendar days to permit orderly discharge or transfer to an appropriate level of care; and

(b) Ten (10) calendar days from the date the reevaluation is finalized, payment shall no longer be appropriate to the facility.

Section 6. Requirements, Standards, and Preauthorization of Specialized Rehabilitation Services for Individuals with Brain Injuries. An individual who has a brain injury and meets the high-intensity nursing care patient status criteria established in Section 4 of this administrative regulation or is qualified under subsection (5) of this section shall be provided care in a certified unit providing specialized rehabilitation services for persons with brain injuries (i.e., brain injury unit) if the care is preauthorized by the department using criteria specified in this section. For coverage to occur, authorization of coverage shall be granted prior to admission of the individual with the brain injury into the certified brain injury unit, or if previously admitted to the unit with other third party coverage, authorization shall be granted prior to exhaustion of those benefits.

(1) Injuries within the scope of benefits shall be:

(a) Central nervous system injury from physical trauma;

(b) Central nervous system damage from anoxia or hypoxic episodes; or

(c) Central nervous system damage from an allergic condition, toxic substance, or another acute medical or clinical incident.

(2) The following items shall be indicators for admission and continued stay:

(a) The individual sustained a traumatic brain injury with structural, nondegenerative brain damage and is medically stable;

(b) The individual shall not be in a persistent vegetative state;

(d) The individual requires coma management; or

(e) The individual has sustained diffuse brain damage caused by anoxia, toxic poisoning, or encephalitis.

(3) The determination as to whether preauthorization is appropriate shall be made taking into consideration the following:

(a) The presenting problem;

(b) The goals and expected benefits of the admission;

(d) The services needed.

(4) The following list of conditions shall not be considered brain injuries requiring specialized rehabilitation under this section:

(a) A stroke treatable in a nursing facility providing routine rehabilitation services;

(b) A spinal cord injury in which there is no known or obvious injury to the intercranial central nervous system;

(d) Depression or psychiatric disorder in which there is no known or obvious central nervous system damage;

(e) An intellectual disability or birth defect related disorder of long standing; or

(f) Neurological degenerative, metabolic or other medical condition of a chronic, degenerative nature.

(5) An individual may qualify for coverage under the brain injury program if:

(a) The individual has a stable medical condition with complicating care needs that prevent the individual from caring for himself or herself in an ordinary manner outside an institution;

(b) The individual has sufficient neurobehavioral sequelae resulting from the brain injury that, when taken in combination, require specialized rehabilitation services; and

The individual shall not have previously received specialized rehabilitation services (an individual discharged for the purpose of transfer to another brain injury facility shall not be considered to have "previously received specialized rehabilitation services") as established in this section;
The individual shall have the potential for rehabilitation;
The care shall be prior authorized on an individual basis by the department; and
No more than 180 calendar days shall be approved per authorization.

Section 7. Requirements, Standards, and Preauthorization of Certified Distinct-part Nursing Facility Ventilator Services. An individual who is ventilator dependent and meets the high-intensity nursing care patient status criteria established in Section 4(2) of this administrative regulation shall be provided care in a certified distinct-part ventilator nursing facility unit providing specialized ventilator services if the care is preauthorized using criteria specified in this section.

(1) To participate in the Medicaid Program as a distinct-part nursing facility ventilator service provider:

(a) A nursing facility shall operate a program of ventilator care within a certified distinct-part nursing facility unit that meets the needs of all ventilator patients admitted to the unit; and

(b) A certified distinct-part nursing facility unit shall:

Not have less than twenty (20) beds certified for the provision of ventilator care;
Have had an average patient census of not less than fifteen (15) patients during the calendar quarter preceding the beginning of the facility's rate year or the quarter for which certification is being granted in order to qualify as a distinct-part ventilator nursing facility unit;
Have a ventilator machine owned by the facility for each certified bed with an additional backup ventilator machine required for every ten (10) beds; and
Have a program for discharge planning and weaning from the ventilator.

(2) This subsection shall constitute the patient criteria and treatment characteristics for a distinct-part ventilator nursing facility.

(a) An individual shall be considered ventilator dependent if the individual:

Requires:

a. This mechanical support for twelve (12) or more hours per day; and

b. Twenty-four (24) hours per day high-intensity nursing care services; or

Is in an active weaning program ordered by and under the management of a physician and reviewed and approved by the department; and

a. The goal of the active weaning program is to attain the least mechanical support in the least invasive manner that is consistent with the maximal function of the individual and ultimately no mechanical respiratory support;

b. The individual demonstrates steady progress in decreasing the number of hours and dependence upon the ventilator as documented in the individual's physician and nursing progress notes; and

c. The individual requires twenty-four (24) hours per day high-intensity nursing care services.

(b) An individual shall not be considered ventilator dependent due to being in an active weaning program if:

The individual is no longer demonstrating steady progress in decreasing the number of hours and dependence upon the ventilator; or
The individual has been off the ventilator for seventy-two (72) consecutive hours.

(c) An admission from hospitalization or other location shall demonstrate two (2) weeks clinical and physiologic stability including applicable weaning attempts prior to transfer from the hospital or other location.

(d) A physician's order shall specify that the services shall not be provided in an alternative setting due to the medical stability and safety needs of the individual.

(3) A patient status determination shall be made taking into consideration the following factors:

(a) Alternative care possibilities;

(b) Goals for patient care;

(c) Primary hypoventilation, restrictive lung, ventilatory muscular dysfunction, or obstructive airway disorders needs that may necessitate mechanical ventilator and related care;

(d) Patient treatment characteristics;

(e) Home care potential;

(f) Suitability of transfer to the ventilator care unit; and

(g) Provision of an appropriate place of care.

Section 8. Denial of Patient Status. If an individual does not meet Medicaid criteria for admission or continued stay in a nursing facility, nursing facility with Medicaid waiver, or ICF-IID, the individual may appeal the denial in accordance with 907 KAR 1:563.

Section 9. Reserved Bed Days. The department shall cover and reimburse for reserved bed days as established in this section.

(1) In accordance with subsection (3) of this section, reserved bed days, per resident, for an NF or an NF-W shall be:

(a) Covered for a maximum of fourteen (14) days per calendar year due to hospitalization. Accumulated bed reserve days shall follow a resident if the resident relocates to another facility within a calendar year rather than starting over at zero due to the relocation;

(b) Covered for a maximum of ten (10) days per calendar year for leaves of absence other than hospitalization. Accumulated bed reserve days shall follow a resident if the resident relocates to another facility within a calendar year rather than starting over at zero due to the relocation;

(c) Reimbursed at seventy-five (75) percent of a facility's rate if the facility's occupancy percentage is ninety-five (95) percent or greater; and

(d) Reimbursed at fifty (50) percent of a facility's rate if the facility's occupancy percentage is less than ninety-five (95) percent.

(2) In accordance with subsection (3) of this section, for an ICF-IID:

(a) Reserved bed days, per resident, for an ICF-IID shall:

Be covered for a maximum of forty-five (45) days within a calendar quarter; and
Not exceed fifteen (15) calendar days per stay due to hospitalization; and

(b) More than thirty (30) consecutive reserved bed days due to hospitalization plus leave of absence or due to leave of absence shall not be approved for coverage.

(3) Coverage during an individual's absence due to hospitalization or due to leave of absence shall be contingent upon the following conditions being met:

(a) The individual shall:

Be in Medicaid payment status in the level of care the individual is authorized to receive; and
Have been a resident of the facility at least overnight;

(b) An individual for whom Medicaid is making Medicare coinsurance payments shall not be considered to be in Medicaid payment status for purposes of this policy;

(d) Due to demand at the facility for beds at that level, there shall be a likelihood that the bed would be occupied by another patient were it not reserved;

(e) The hospitalization shall be for treatment of an acute condition, and not for testing, brace-fitting, or another noncovered service;

(f) For a leave of absence other than for hospitalization, the individual's plan of care shall include a physician's order providing for leave; and

(g) A leave of absence shall include a visit with a relative or friend, or a leave to participate in a state-approved therapeutic or rehabilitative program.

(4) Bed reservation days shall not be available for an individual admitted to a psychiatric hospital or ICF-IID.

(5) An NF shall advise a resident prior to the resident's departure from the facility if the NF chooses not to reserve a bed for the resident.

Section 10. Determination of Patient Care Status.

(1) Prior to or on the date of admission of an individual, an NF shall complete a level of care application in a department approved system, which consists of a:

(a) Level I PASRR in accordance with 907 KAR 1:755, Section 4; and

(b) A level of care request for admission in a department approved system, except for an individual requesting institutionalized hospice.

(2) Compliance with 907 KAR 1:755 shall be required in order for an individual to be admitted to an NF.

(3)

(a) The department shall:

Approve the level of care application;
Deny the level of care application; or
Request more information from the facility if all required information was not previously provided.

(b) Notification of denial shall be sent to the:

Patient or their responsible party; and
NF.

Except as provided by paragraph (d) of this subsection, perform an onsite continuing stay review within thirty (30) calendar days of the admission to ensure the resident continues to meet the nursing facility level of care criteria in accordance with this administrative regulation; and
Re-certify the resident every 180 calendar days.

(d) There shall not be a review pursuant to paragraph (c)1. of this subsection for an individual who has a Level II PASRR.

(4) Prior to or on the date of admission of an individual to an ICF-IID, the facility shall complete a level of care request for admission in a department approved system.

History

RELATES TO: 42 C.F.R. 431.153, 431.154, 447.280, 482.58, 42 U.S.C. 1395tt, 1396l, 1396r
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.558
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 provisions relating to nursing facility services and services at an intermediate care facility for individuals with an intellectual disability for which payment shall be made by the Medicaid Program on behalf of both the categorically needy and medically needy recipients.
History: 2 Ky.R. 104; eff. 9-10-1975; 7 Ky.R. 857; eff. 3-1-1982; 11 Ky.R. 1089; eff. 2-12-1985; 1524; eff. 5-14-1985; 12 Ky.R. 451; eff. 11-12-1985; Recodified from 904 KAR 1:022, 5-2-1986; 15 Ky.R. 1968; eff. 4-19-1989; 16 Ky.R. 264; eff. 9-20-89; 17 Ky.R. 2286; 2958; eff. 3-12-1991; 18 Ky.R. 526; eff. 10-16-1991; 20 Ky.R. 437; eff. 10-13-1993; 21 Ky.R. 670; 1156; eff. 10-19-1994; 25 Ky.R. 649; 1051; eff. 10-21-1998; 30 Ky.R. 115; 617; eff. 10-31-2003; 31 Ky.R. 635; 1257; eff. 1-21-2005; 32 Ky.R. 396; 916; 1103; eff. 1-6-2006; 2164; eff. 8-7-2006; TAm 7-16-2013; 45 Ky.R. 2784, 3419; eff. 8-2-2019; Crt eff. 2-9-2026.

907 KAR 1:023 Review and approval of selected therapies as ancillary services in nursing facilities {#sec-907-kar-1-023 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:023}

Section 1. Definitions.

(1) "Ancillary service" means a direct therapy service pursuant to Section 2 of this administrative regulation.

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Nursing facility" or "NF" means:

(a) A facility:

To which the state survey agency has granted an NF license;
For which the state survey agency has recommended to the department certification as a Medicaid provider; and
To which the department has granted certification for Medicaid participation; or

Section 2. Covered Ancillary Services.

(1) Oxygen therapy shall be a covered ancillary service if the therapyis medically necessary.

(2) The following therapies shall be covered ancillary services if medically necessary:

(a) Physical therapy;

(b) Occupational therapy; or

History

RELATES TO: 42 C.F.R. Parts 430, 447, 455, 456, 482, 42 U.S.C. 1396a, b, d, c, r
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of Medical Assistance to Kentucky's indigent citizenry. This administration regulation establishes the provisions relating to the review and approval of selected therapies as ancillary services for Medicaid recipients in nursing facilities.
History: 907 KAR 001:023. 20 Ky.R. 3395; eff. 8-17-1994; 26 Ky.R. 1245; 1684; 1951; eff. 5-10-2000; 30 Ky.R. 1628; 1938; eff. 2-16-2004; Crt eff. 12-6-2019; 52 Ky.R. 632; eff. 1-22-2026.)COMPILER'S NOTE: 2025 RS HB 6, enacted by the General Assembly on March 27, 2025, altered the information to be provided at the time an administrative regulation is filed. Aside from formatting changes necessary to upload the regulation into the LRC's publication application, this regulation has been published as submitted by the agency.

907 KAR 1:025 Payment for services provided by an intermediate care facility for individuals with an intellectual disability, a dually-licensed pediatric facility, an institution for mental diseases, or a nursing facility with an all-inclusive rate unit {#sec-907-kar-1-025 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:025}

Section 1. Definitions.

(1) "Allowable cost" means that portion of a facility's cost that is allowed by the department in establishing the reimbursement rate.

(2) "Calculated rate" means the rate effective July 1, 1999 and each July 1 thereafter for:

(a) An intermediate care facility for individuals with an intellectual disability (ICF-IID); or

(b) A nursing facility certified as:

A dually-licensed pediatric facility; or
An institution for mental diseases.

(3) "Cost-based facility" means a facility that:

(a) The department reimburses for all allowable costs; and

(b) Is either:

A dually-licensed pediatric facility;
An intermediate care facility for individuals with an intellectual disability; or
An institution for mental diseases.

(4) "Cost report" means Cost-based Facility Reimbursement Cost Report Instructions and Cost-based Facility Reimbursement Cost Report.

(5) "Department" means the Department for Medicaid Services or its designee.

(6) "Dually-licensed pediatric facility" means any facility providing both high intensity and low intensity nursing facility services to:

(a) Children under age twenty-one (21);

(b) Residents who were admitted to the facility prior to reaching the age of twenty-one (21) and who remain as residents in the facility after reaching the age of twenty-one (21); or

(c) Residents who were admitted to the facility prior to reaching the age of twenty-one (21) and who were discharged to a different facility and who, but for being older than twenty-one (21), continue to meet the level of care of the dually-licensed pediatric facility.

(7) "IHS Markit Index" means an indication of changes in health care costs from year to year developed by IHS Markit, or its successor organization.

(8) "Institution for mental diseases" or "IMD" is defined by 42 C.F.R. 435.1010.

(9) "Intermediate care facility for individuals with an intellectual disability" or "ICF-IID" is defined by KRS 202B.010(10).

(10) "Nursing facility" or "NF" means that:

(a) The state survey agency has:

Granted an NF license to the facility; and
Recommended the NF to the department for certification as a Medicaid provider; and

(b) The department has granted certification for Medicaid participation to the NF.

(11) "Nursing facility with an all-inclusive rate unit" means:

(a) A nursing facility with a distinct part ventilator unit; or

(b) A nursing facility with a distinct part brain injury unit.

(12) "Occupancy factor" means a percentage representing:

(a) A facility's actual occupancy level; or

(b) A minimum occupancy level assigned to a facility if its occupancy level is below the minimum level established in Section 3(17) of this administrative regulation.

(13) "Prospective rate" means a payment rate for routine services based on allowable costs and other factors that, except as specified in Section 3 of this administrative regulation, shall not be retroactively adjusted, either in favor of the facility or the department.

(14) "Routine services" means services covered by the Medicaid Program pursuant to 42 C.F.R. 483.10(f)(11)(i).

(15) "State survey agency" means the Cabinet for Health and Family Services, Office of Inspector General, Division of Health Care.

(16) "Upper payment limit" means the aggregate payment amount as described in 42 C.F.R. 447.272 for inpatient services furnished by state-owned or operated ICF-IIDs.

Section 2. Certified Bed Requirements. Except for an intermediate care facility for individuals with an intellectual disability or a nursing facility with an all-inclusive rate unit, a facility that provides services pursuant to this administrative regulation and desires to participate in the Medicaid Program shall comply with the following requirements:

(1) If the facility has less than ten (10) beds, all of its beds shall participate in the Medicare Program; or

(2) If the facility has ten (10) or more beds, the facility shall have the greater of:

(a) Ten (10) of its Medicaid-certified beds participating in the Medicare Program; or

(b) Twenty (20) percent of its Medicaid-certified beds participating in the Medicare Program.

Section 3. Payment System for a Cost-based Facility. The department's reimbursement system shall include the specific policies, components, or principles established in this section.

(1)

(a) Except as specified in this section, prospective payment rates for routine services shall:

Be set by the department on a facility-specific basis; and
Not be subject to retroactive adjustment.

(b) Prospective rates shall be determined on a cost basis annually, and may be revised on an interim basis by the department.

(c) An adjustment to a prospective rate (subject to the maximum payment for that type of facility) shall be considered if:

The facility's increased costs are attributable to:

a. A governmentally imposed minimum wage increase, staffing ratio increase, or level of service increase; and

b. The increase was not included in the IHS Markit Index;

A new licensure requirement or new interpretation of an existing requirement by the appropriate governmental agency as issued in an administrative regulation results in changes that affect all facilities within the class; or
The facility experiences a governmentally-imposed displacement of residents.

(d)

The amount of any prospective rate adjustment resulting from a governmentally-imposed minimum wage increase or licensure requirement change or interpretation as cited in paragraph (c)2. of this subsection shall not exceed the amount by which the cost increase resulting directly from the governmental action exceeds on an annualized basis the inflation allowance amount included in the prospective rate for the general cost area in which the increase occurs. For purposes of this determination, costs shall be classified into the following two (2) general areas:

a. Salaries; and

b. Other.

The effective date of an interim rate adjustment shall be the first day of the month in which the adjustment is requested or in which the cost increase occurred, whichever is later.

(2)

(a) The state shall set a uniform rate year for a cost-based facility (July 1 - June 30) by taking the latest available cost data available as of May 16 of each year and trending the facility costs to July 1 of the rate year. If the latest available cost report data has not been audited or desk-reviewed prior to rate setting for the universal year beginning July 1, a prospective rate based on a cost report that has not been audited or desk-reviewed shall be subject to adjustment when the audit or desk review is completed.

(b) Partial year or budget cost data shall be used if a full year's data is unavailable. Unaudited reports shall be subject to an adjustment to the audited amount.

If the department has made a separate rate adjustment as compensation to a facility for a minimum wage update, the department shall:

a. Not pay the facility twice for the same costs; and

b. Adjust downward the trending and indexing factors to the extent necessary to remove from the factors costs relating to the minimum wage updates already provided for by the separate rate adjustment.

If the trending and indexing factors include costs related to a minimum wage increase:

a. The department shall not make a separate rate adjustment; and

b. The minimum wage costs shall not be deleted from the trending and indexing factors.

The maximum payment amounts for the prospective universal rate year shall be adjusted each July 1 so that the maximum payment amount in effect for the rate year shall be related to the cost reports used in setting the facility rates for the rate year.
For purposes of administrative ease in computations, normal rounding shall be used in establishing the maximum payment amount, with the maximum payment amount rounded to the nearest five (5) cents.

(3)

(a) Except as provided in paragraph (b) of this subsection, interest expense used in setting a prospective rate shall be an allowable cost if permitted pursuant to 42 C.F.R. 413.153 and if the interest expense:

Represents interest on:

a. Long term debt existing at the time the provider enters the program; or

b. New long-term debt, if the proceeds are used to purchase fixed assets relating to the provision of the appropriate level of care.

(i) If the debt is subject to variable interest rates found in balloon-type financing, renegotiated interest rates shall be allowable; and

(ii) The form of indebtedness may include mortgages, bonds, notes, and debentures if the principal is to be repaid over a period in excess of one (1) year; or

Is for working capital and operating needs that directly relate to providing patient care. The form of indebtedness may include notes, advances, and various types of receivable financing.

(b) Interest on a principal amount used to purchase goodwill or other intangible assets shall not be considered an allowable cost.

(4) The allowable cost for a service or good purchased by a facility from a related organization shall be the cost to the related organization, unless it is demonstrated that the related organization is equivalent to a second party supplier.

(a) Except as provided in paragraph (b) of this subsection, an organization shall be considered a related organization if an individual possesses five (5) percent or more of ownership or equity in the facility and the supplying business.

(b) An organization shall not be considered a related organization if fifty-one (51) percent or more of the supplier's business activity of the type carried on with the facility is transacted with persons and organizations other than the facility and its related organizations.

(5)

(a) Except as provided in paragraph (b) of this subsection, the amount allowable for leasing costs shall not exceed the amount that would be allowable based on the computation of historical costs.

(b) The department shall determine the allowable costs of an arrangement based on the costs of the original lease agreement if:

A cost-based facility entered into a lease arrangement as an intermediate care facility prior to April 22, 1976;
An intermediate care facility for individuals with an intellectual disability entered into a lease arrangement prior to February 23, 1977; or
A nursing facility entered into a lease arrangement as a skilled nursing facility prior to December 1, 1979.

(6) A cost shall be allowable and eligible for reimbursement if the cost is:

(a) Reflective of the provider's actual expenses of providing a service; and

(b) Related to Medicaid patient care pursuant to 42 C.F.R. 413.9.

(7) The following costs shall be allowable:

(a) Costs to related organizations pursuant to 42 C.F.R. 413.17;

(b) Costs of educational activities pursuant to 42 C.F.R. 413.85;

(d) Value of services of nonpaid workers pursuant to 42 C.F.R. 413.94;

(e) Purchase discounts and allowances, and refunds of expenses pursuant to 42 C.F.R. 413.98;

(f) Depreciation on buildings and equipment if a cost is:

Identifiable and recorded in the provider's accounting records;
Based on historical cost of the asset or, if donated, the fair market value; or
Prorated over the estimated useful life of the asset using the straight-line method;

(g) Interest on current and capital indebtedness; or

(h) Professional costs of services of full-time or regular part-time employees not to exceed what a prudent buyer would pay for comparable services.

(8) The following shall not be allowable costs:

(a) The value of services provided by nonpaid members of an organization if there is an agreement with the provider to furnish the services at no cost;

(b) Political contributions;

(d) Travel and associated costs outside the Commonwealth of Kentucky to conventions, meetings, assemblies, conferences, or any related activities that are not related to NF training or educational purposes; or

(e) Costs related to lobbying.

(9) To determine the gain or loss on the sale of a facility for purposes of determining a purchaser's cost basis in relation to depreciation and interest costs, the methods established in this subsection shall be used for changes of ownership occurring before July 18, 1984.

(a)

The actual gain on the sale of the facility shall be determined; and
There shall be added to the seller's depreciated basis two-thirds (2/3) of one (1) percent of the gain for each month of ownership since the date of acquisition of the facility by the seller to arrive at the purchaser's cost basis.

(b) Gain shall be the amount in excess of a seller's depreciated basis as computed under program policies at the time of a sale, excluding the value of goodwill included in the purchase price.

(c) A sale shall be any bona fide transfer of legal ownership from an owner to a new owner for reasonable compensation, which shall usually be fair market value. A lease purchase agreement or other similar arrangement that does not result in a transfer of legal ownership from the original owner to the new owner shall not be considered a sale until legal ownership of the property is transferred.

(d) If an enforceable agreement for a change of ownership was entered into prior to July 18, 1984, the purchaser's cost basis shall be determined pursuant to paragraphs (a) through (c) of this subsection.

(10) Valuation of capital assets.

(a) An increase in valuation in relation to depreciation and interest costs shall not be allowed for a change of ownership occurring after July 18, 1984 and before October 1, 1985.

(b) For a bona fide change of ownership entered into on or after October 1, 1985, the depreciation and interest costs shall be increased in valuation in accordance with 42 U.S.C. 1395x(v)(1)(O)(i).

(11)

(a) A facility shall maintain and make available any records and data necessary to justify and document:

Costs to the facility; and
Services performed by the facility.

(b) The department shall have unlimited on-site access to all of a facility's fiscal and service records for the purpose of:

Accounting;
Auditing;
Medical review;
Utilization control; and
Program planning.

(12) The requirements established in this subsection shall apply to an annual cost report.

(a) A year-end cost report shall contain information relating to prior year cost, and shall be used in establishing prospective rates and setting ancillary reimbursement amounts.

(b) A new item or expansion representing a departure from current service levels for which the facility requests prior approval by the department shall be so indicated with a description and rationale as a supplement to the cost report.

(c) Department approval or rejection of a projection or expansion shall be made on a prospective basis in the context that, if an expansion and related costs are approved, they shall be considered when actually incurred as an allowable cost. Rejection of an item or costs shall represent notice that the costs shall not be considered as part of the cost basis for reimbursement. Unless otherwise specified, approval shall relate to the substance and intent rather than the cost projection.

(d) If a request for prior approval of a projection or expansion is made, absence of a response by the department shall not be construed as approval of the item or expansion.

(13)

(a) The department shall perform a desk review of each year-end cost report and ancillary service cost to determine the necessity for and scope of an audit in relation to routine and ancillary service cost.

(b) If a field audit is not determined to be necessary, the cost report shall be settled without an audit.

(c) A desk review or field audit shall be used for purposes of verifying cost to be used in setting the prospective rate or for purposes of adjusting prospective rates that have been set based on unaudited data.

(d) Audits may be conducted annually or at less frequent intervals.

(14) A year-end adjustment of the prospective rate and a retroactive cost settlement shall be made if:

(a) An incorrect payment has been made due to a computational error (other than an omission of cost data) discovered in the cost basis or establishment of the prospective rate;

(b) An incorrect payment has been made due to a misrepresentation on the part of a facility (whether intentional or unintentional);

(d) The prospective rate has been set based on unaudited cost reports and the prospective rate is to be adjusted based on audited reports with the appropriate cost settlement made to adjust the unaudited prospective payment amounts to the correct audited prospective payment amounts.

(15) A facility shall provide the services mandated in 42 C.F.R. 483.10(f)(11)(i).

(16) A facility shall submit to the department the data required for determining the prospective rate no later than sixty (60) days following the close of the facility's fiscal year. This time limit may be extended at the specific request of the facility with the department's concurrence.

(17) Allowable prior year cost, trended to the beginning of the rate year and indexed for inflation, shall be subject to adjustment based on a comparison of costs with a non-state, privately-owned facility's occupancy factor.

(a) An occupancy factor shall not be less than actual bed occupancy, except that it shall not exceed ninety-eight (98) percent of certified bed days (or ninety-eight (98) percent of actual bed usage days, if more, based on prior year utilization rates).

(b) A minimum occupancy factor shall be ninety (90) percent of certified bed days for a nonstate, privately-owned facility with less than ninety (90) percent certified bed occupancy.

(c) The department may impose a lower occupancy factor for a newly constructed or newly participating nonstate, privately-owned facility, or for an existing nonstate, privately-owned facility suffering a patient census decline as a result of a newly constructed or opened competing facility serving the same area.

(d) The department may impose a lower occupancy factor during the first two (2) full fiscal years an existing cost-based nonstate, privately-owned facility participates in the program under this payment system.

(18) A provider tax on a cost-based facility shall be considered an allowable cost.

(19) All other costs shall be:

(a) Other care-related costs;

(b) Other operating costs;

(d) Indirect ancillary costs.

(20) Basic per diem costs for each major cost category (nursing services costs and all other costs) shall be the calculated rate arrived at after otherwise allowable costs are trended and adjusted in accordance with the:

(a) IHS Markit Index inflation factor; and

(b) Occupancy factor for a nonstate, privately owned facility.

(21) Maximum allowable costs shall be the maximum amount that may be allowed to a facility as reasonable cost for the provision of a supply or service while complying with limitations expressed in related federal or state administrative regulations.

(22) Nursing services costs shall be the direct costs associated with nursing services.

(23) State-owned or operated ICF-IID reimbursement for noncapital routine services shall be subject to an upper payment limit. The upper payment limit shall:

(a) Be an aggregate limit on ICF-IID reimbursement paid by the department;

(b) Equal 112 percent of the average of aggregate cost for a state fiscal year;

(d) Not be rebased more frequently than every three (3) years; and

(e) Use as its base year the State Fiscal Year 2005.

(24) The department shall retroactively cost settle state-owned or operated ICF-IID reimbursement for non-capital routine services beginning with the cost report period November 1, 2005 through June 30, 2006, as mandated by the Centers for Medicare and Medicaid Services in accordance with 42 U.S.C. 1396a(a)(30). Retroactive settlement shall entail:

(a) Comparing interim payments with the properly apportioned cost of Medicaid services rendered. Cost report data shall be used to determine properly apportioned costs;

(b) A tentative cost report settlement based upon:

Eighty (80) percent of any amount due the facility after a preliminary review is performed; or
100 percent settlement of any liability due the department; and

(c) A final cost report settlement after the allowed billing period has elapsed for the dates of service identified within the cost report.

(25) The department, regarding state-owned or operated ICF-IID reimbursement for noncapital routine services, shall:

(a) Use projected data in order to approximate as closely as possible an interim rate expected to correspond to post-settlement cost; and

(b) Adjust interim rates up or down if necessary to approximate a rate corresponding as close as possible to anticipated post-settlement cost.

Section 4. Prospective Rate Computation for a Cost-based Facility. The prospective rate for a cost-based facility shall reflect:

(1) The adjusted allowable cost for the facility; and

(2) Except for a state-owned or operated facility, the facility's occupancy factor. A state-owned or operated facility's occupancy factor shall not be factored into the facility's prospective rate.

Section 5. Ancillary Services.

(1) Except for an intermediate care facility for individuals with an intellectual disability, an ancillary service shall be a direct service for which a charge is customarily billed separately from a per diem rate including:

(a) Ancillary services pursuant to 907 KAR 1:023; or

(b) Laboratory procedures or x-rays if ordered by a:

Physician;
An advanced practice registered nurse (APRN) if the laboratory test or x-ray is within the scope of the APRN's practice; or
Physician assistant if:

a. Authorized by the supervising physician; and

b. The laboratory test or x-ray is within the scope of the physician assistant's practice.

(2) For an intermediate care facility for individuals with an intellectual disability, an ancillary service shall be a direct service for which a charge is customarily billed separately from a per diem rate including:

(a) Ancillary services pursuant to 907 KAR 1:023;

(b) Laboratory procedures or x-rays if ordered by a:

Physician;
An APRN if the laboratory test or x-ray is within the scope of the APRN's practice; or
Physician assistant if:

a. Authorized by the supervising physician; and

b. The laboratory test or x-ray is within the scope of the physician assistant's practice; or

(3) Ancillary service.

(a) Reimbursement shall be subject to a year-end audit, retroactive adjustment, and final settlement.

(b) Costs shall be subject to allowable cost limits pursuant to 42 C.F.R. 413.106.

(4) For ancillary services, the department shall utilize an NF's prior year cost-to-charge ratio, based on the prior year's cost report as of May 31, as the percentage to be used for interim reimbursement purposes for the following year. (For example, if an NF's cost-to-charge ratio for SFY 2001 is seventy-five (75) percent, the department shall reimburse the NF, on an interim basis, seventy-five (75) percent of billed charges for SFY 2002.)

(5) An NF without a prior year cost report may submit to the department a percentage to be used for interim reimbursement purposes for ancillary services.

(6) If an NF has been reimbursed for ancillary services at an interim percentage above its allowable cost-to-charge ratio for a given year, the department shall decrease the interim percentage for the following year by no more than twenty-five (25) percentage points unless:

(a) A retroactive adjustment of an NF's reimbursement for the prior year reveals an overpayment by the department exceeding twenty-five (25) percent of billed charges; or

(b) An evaluation of an NF's current billed charges indicates that the NF's charges exceed, by greater than twenty-five (25) percent, average billed charges for other comparable facilities serving the same area.

Section 6. Reimbursement for a Nursing Facility With a Distinct Part Ventilator Unit.

(1)

(a) Except as provided by paragraph (b) of this subsection, a nursing facility with a distinct part ventilator unit shall be paid at an all-inclusive fixed rate for services provided in the distinct part ventilator unit.

(b) The all-inclusive fixed rate required by paragraph (a) of this subsection shall not include payment for drugs, which shall be reimbursed through the pharmacy program established in 907 KAR Chapter 23.

(2) A distinct part ventilator unit shall:

(a) Have a minimum of twenty (20) beds;

(b) Maintain a census of fifteen (15) patients; and

The quarter preceding the beginning of the rate year; or
The quarter preceding the quarter for which certification is requested if the facility did not qualify for participation as a distinct part ventilator unit at the beginning of the rate year.

(3)

(a) The fixed rate for a hospital-based facility shall be $583.82 per day effective for SFY 2006, and shall be increased or decreased pursuant to subsection (4) of this section.

(b) The department shall reimburse a freestanding facility:

A fixed rate of $317.29 per day effective for SFY 2006, and shall be increased or decreased pursuant to subsection (4) of this section; and
An add-on to the fixed rate in accordance with KRS 142.363.

(4) The fixed rates established in subsection (3) of this section shall be increased or decreased based on the IHS Markit Index rate of inflation indicator for the nursing facility services for each rate year.

(5) Costs of a distinct part ventilator unit in a nursing facility shall be excluded from allowable costs for purposes of rate setting and settlement of cost-based nursing facility cost reports.

Section 7. Reimbursement for a Nursing Facility with a Distinct Part Brain Injury Unit.

(1) In order to participate in the Medicaid Program as a brain injury provider, a nursing facility with a distinct part brain injury unit shall:

(a) Be Medicare and Medicaid certified;

(b) Designate as a brain injury unit at least ten (10) certified beds that are physically contiguous and identifiable;

The Commission on Accreditation of Rehabilitation Facilities (CARF); or
The Joint Commission; and

(d) Establish written policies regarding administration and operations, the facility's governing authority, quality assurance, and program evaluation.

(2)

(a) Except as provided in subsection (3) of this section and paragraph (b) of this subsection, a nursing facility with a distinct part brain injury unit providing preauthorized specialized rehabilitation services for persons with brain injuries shall be paid at an all-inclusive fixed rate, which shall be set at $530 per diem for services provided in the brain injury unit.

(3)

(a) Except as provided by paragraph (b) of this subsection, a facility providing preauthorized specialized rehabilitation services for persons with brain injuries with rehabilitation complicated by neurobehavioral sequelae shall be paid an all-inclusive negotiated rate, which shall not exceed the facility's usual and customary charges.

A minimum of the approved rate for a Medicaid certified brain injury unit;
A maximum of the lesser of the average rate paid by all payers for this service; or
The facility's usual and customary charges.

Section 8. Appeal Rights. A participating facility may appeal department decisions as to the application of this administrative regulation as it impacts the facility's reimbursement in accordance with 907 KAR 1:671, Sections 8 and 9.

Section 9. Reimbursement for Required Services Under the Preadmission Screening Resident Review (PASRR) for a Nursing Facility with a Distinct Part Ventilator Unit, a Nursing Facility with a Distinct Part Brain Injury Unit, an IMD, or a Dually-licensed Pediatric Facility.

(1) Prior to an admission of an individual, a facility shall conduct a level I PASRR in accordance with 907 KAR 1:755, Section 4.

(2) The department shall reimburse a facility for a covered service delivered to an individual if the facility complies with the requirements of 907 KAR 1:755.

(3) Failure to comply with 907 KAR 1:755 may be grounds for termination of a facility's participation in the Medicaid Program.

Section 10. Reimbursement Provisions.

(1) Each of the following types of facilities participating in the Medicaid Program shall be reimbursed in accordance with this administrative regulation:

(a) A nursing facility with a distinct part brain injury unit;

(b) A nursing facility with a distinct part ventilator unit;

(d) A dually-licensed pediatric facility; or

(e) An intermediate care facility for individuals with an intellectual disability.

(2) A payment made to a facility governed by this administrative regulation shall:

(a) Be made in accordance with the requirements established in 907 KAR 1:022; and

(b) Be subject to the limits established in 42 C.F.R. 447.272.

Section 11. Supplemental Payments to Dually-licensed Pediatric Facilities.

(1) Beginning July 1, 2002 and annually thereafter, the department shall establish a pool of $550,000 to be distributed to facilities qualifying for supplemental payments in accordance with subsection (2) of this section.

(2) Based upon its pro rata share of Medicaid patient days compared to total patient days of all qualifying facilities, a dually-licensed pediatric facility shall qualify for a supplemental payment if:

(a) Funding is available; and

(b) The facility:

Is located within the Commonwealth of Kentucky;
Has a Medicaid occupancy rate at or above eighty-five (85) percent;
Only provides services to:

a. Children under age twenty-one (21); and

b. Residents who were admitted to the facility prior to reaching the age of twenty-one (21) and who remain as residents in the facility after reaching the age of twenty-one (21); or

c. Residents who were admitted to the facility prior to reaching the age of twenty-one (21) and who were discharged to a different facility and who, but for being older than twenty-one (21), continue to meet the level of care of the dually-licensed pediatric facility; and

Has forty (40) or more licensed beds.

(3) A supplemental payment to a facility meeting the criteria established in subsection (2) of this section shall:

(a) Apply to services provided on or after July 1, 2002;

(b) Be made on a quarterly basis; and

Section 12. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Cost-based Facility Reimbursement Cost Report Instructions", April 2000 Edition; and

(b) "Cost-based Facility Reimbursement Cost Report", April 2000 Edition.

(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 located at https://www.chfs.ky.gov/agencies/dms/dpo/bpb/Pages/nursingfacilities.aspx.

History

RELATES TO: KRS 142.363, 202B.010, 42 C.F.R. 413.9, 413.17, 413.85, 413.90, 413.94, 413.98, 413.106, 413.153, 435.1010, 447.204, 447.272, 483.10, 42 U.S.C. 1395x, 1396a, 1396d
STATUTORY AUTHORITY: KRS 142.363(3), 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 method for determining amounts payable by the Medicaid Program for nursing facility services provided by an intermediate care facility for individuals with an intellectual disability, a dually-licensed pediatric facility, an institution for mental diseases, or a nursing facility with an all-inclusive rate unit.
History: 17 Ky.R. 2358; 2748; 2963; eff. 3-12-1991; 18 Ky.R. 915; eff. 10-16-1991; 19 Ky.R. 827; eff. 11-9-1992; 1922; 2281; 2453; eff. 4-21-1993; 20 Ky.R. 441; eff. 10-13-1993; 21 Ky.R. 674; eff. 9-21-1994; 3079; 22 Ky.R. 749; eff. 9-20-1995; 26 Ky.R. 2045; 27 Ky.R. 126; eff. 7-17-2000; 29 Ky.R. 1122; 1643; eff. 12-18-2002; 31 Ky.R. 1445; 1671; eff. 4-22-2005; 32 Ky.R. 1184; 1427; eff. 3-3-2006; 33 Ky.R. 3297; 4186; eff. 7-6-2007; TAm 7-16-2013; 45 Ky.R. 1138; 1673; eff. 1-4-2019; 50 Ky.R. 220; eff. 10-25-2023.

907 KAR 1:028 Independent laboratory and radiological service coverage and reimbursement {#sec-907-kar-1-028 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:028}

Section 1. Definitions.

(1) "CLIA" means the Clinical Laboratory Improvement Amendments, 42 C.F.R. Part 493.

(2) "CMS" means the Centers for Medicare and Medicaid Services.

(3) "Covered benefit" or "covered service" means an independent laboratory or radiological service for which the department shall reimburse.

(4) "CPT" means the current procedural terminology coding system.

(5) "Department" means the Department for Medicaid Services or its designee.

(6) "Incidental" means a medical procedure or service which:

(a)

Is performed at the same time as a more complex primary procedure or service; and
Requires little additional resources; or

(b) Is clinically integral to the performance of the primary procedure or service.

(7) "Independent laboratory" means a laboratory which:

(a) Is certified by CMS under the CLIA to perform laboratory services;

(b) Is independent of an institutional setting;

(d) Meets the requirements established in 42 C.F.R. Part 493 regarding laboratory certification, registration, or other accreditation as appropriate; and

(e) Is a Medicaid-enrolled provider.

(8) "Laboratory director" means an individual meeting the director of laboratory qualifications established in KRS 333.090(1), (2), or (3).

(9) "Medicaid-enrolled provider" means a provider participating in the Kentucky Medicaid Program in accordance with 907 KAR 1:671 and 1:672.

(10) "Medically necessary" or "medical necessity" means a covered benefit determined to be needed in accordance with 907 KAR 3:130.

(11) "Medicare-participating" means certified by CMS and accepting reimbursement from Medicare.

(12) "Mutually exclusive" means two (2) laboratory or radiological services:

(a) Not reasonably provided in conjunction with one (1) another during the same patient encounter on the same date of service; or

(b) Representing:

Duplicate or very similar items; or
Medically inappropriate use of CPT codes.

(13) "Prescriber" means a physician, podiatrist, optometrist, dentist, oral surgeon, advanced registered nurse practitioner, or physician's assistant who:

(a) Is acting within the legal scope of clinical practice under the licensing laws of the state in which the health care provider's medical practice is located;

(b) Is in good standing with:

The licensure board of jurisdiction for the provider's practice; and
CMS;

(d) If enrolled as a Kentucky Medicaid provider, is in compliance with all requirements of 907 KAR 1:671 and 1:672.

(14) "Radiological service" means a service in which X-rays or rays from radioactive substances are used for diagnostic or therapeutic purposes.

(15) "Recipient" is defined in KRS 205.8451(9).

(16) "Usual and customary" means the uniform amount which a provider charges the general public for a specific procedure or service.

Section 2. Coverage.

(1) The department shall reimburse for a procedure provided by an independent laboratory if the procedure:

(a) Is one that the laboratory is certified to provide by Medicare and in accordance with 907 KAR 1:575;

(b) Is prescribed in writing or by electronic request by a physician, podiatrist, dentist, oral surgeon, advanced registered nurse practitioner, or optometrist; and

(2) The department shall reimburse for a radiological service if the service:

(a) Is provided by a facility that:

Is licensed to provide radiological services;
Meets the requirements established in 42 C.F.R. 440.30;
Is certified by Medicare to provide the given service;
Is a Medicare-participating facility;
Meets the requirements established in 42 C.F.R. Part 493 regarding laboratory certification, registration, or other accreditation as appropriate; and
Is a Medicaid-enrolled provider;

(b) Is prescribed in writing or by electronic request by a physician, oral surgeon, dentist, podiatrist, optometrist, advanced registered nurse practitioner, or a physician's assistant;

Section 3. Exclusions. The department shall not reimburse for an independent laboratory or radiological service under this administrative regulation for the following services or procedures:

(1) A service provided to a resident of a nursing facility or an intermediate care facility for individuals with an intellectual disability; or

(2) A court-ordered laboratory or toxicology test.

Section 4. Reimbursement.

(1) The department shall reimburse an independent laboratory the current Medicare rate established by CMS:

(a) For Kentucky;

(b) For the covered service or procedure; and

(2) Reimbursement for a service provided by an independent laboratory shall not exceed the limit established in 42 U.S.C. 1396b(i)(7).

(3) The department shall reimburse a Medicaid-enrolled provider licensed to provide radiological services:

(a) The provider's usual and customary charge for the service; and

(b) Not to exceed sixty (60) percent of the upper payment limit established for the procedure in the Medicaid physician fee schedule pursuant to 907 KAR 3:010.

Section 5. Provider Participation Conditions.

(1) To be reimbursed by the department for a service provided in accordance with this administrative regulation, a provider of independent laboratory services or radiological services shall:

(a) Be a Medicaid-enrolled provider;

(b) Comply with all relevant provisions of KAR Title 907;

(c) Comply with the requirements regarding the confidentiality of personal records pursuant to 42 U.S.C. 1320d-8 and 45 C.F.R. parts 160 and 164; and

(d) Annually submit documentation of:

Current CLIA certification to the department if the provider is an independent laboratory; and
A current radiological license to the department if the provider provides radiological services.

(2) A provider may bill a recipient for a service not covered by the department if the provider informed the recipient of noncoverage prior to providing the service.

Section 6. Appeal Rights.

(1) An appeal of a department decision regarding a recipient based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563.

(2) An appeal of a department decision regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) An appeal of a department decision regarding a Medicaid provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

History

RELATES TO: KRS 205.520, 205.560, 333.090, 42 C.F.R. 440.30, Part 493, 42 U.S.C. 1395l(h)(1)(A), 1396a(a)(9), 1396b(i)(7), 1396d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560, 42 C.F.R. 441.17,
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid Program. KRS 205.520 authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the provisions relating to the coverage of and reimbursement for independent laboratory and radiological services.
History: 2 Ky.R. 108; 9-10-1975; 9 Ky.R. 1246; eff. 6-1-1983; Recodified from 904 KAR 1:028, 5-2-86; 12 Ky.R. 1955; eff. 7-2-1986; 13 Ky.R. 1795; eff. 5-14-1987; 15 Ky.R. 676; eff. 9-21-1988; 19 Ky.R. 2147; eff. 4-21-1993; 23 Ky.R. 3640; 4199; 24 Ky.R. 118; eff. 6-18-1997; 35 Ky.R. 2822; 36 Ky.R. 330; eff. 8-12-2009; TAm 7-16-2013; Crt eff. 12-6-2019; 51 Ky.R. 1002; eff. 2-13-2025.

907 KAR 1:030 Home health agency services {#sec-907-kar-1-030 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:030}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "Electronic signature" is defined by KRS 369.102(8).

(3) "Enrollee" means a recipient who is enrolled with a managed care organization.

(4) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(5) "Home health agency" or "HHA" means:

(a) An agency defined pursuant to 42 C.F.R. 440.70(d); and

(b) A Medicare and Medicaid-certified agency licensed in accordance with 902 KAR 20:081.

(6) "Home health aide" is defined by KRS 216.935(3).

(7) "Licensed practical nurse" or "LPN" means a person who is licensed in accordance with KRS 314.051.

(8) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(9) "Medical social worker" means a person who meets the medical social worker requirements as established in 902 KAR 20:081.

(10) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(11) "Nursing service" means the delivery of medication, or treatment by a registered nurse or a licensed practical nurse supervised by a registered nurse, consistent with KRS Chapter 314 scope of practice provisions and the Kentucky Board of Nursing scope of practice determination guidelines.

(12) "Occupational therapist" is defined by KRS 319A.010(3).

(13) "Occupational therapy assistant" is defined by KRS 319A.010(4).

(14) "Physical therapist" is defined by KRS 327.010(2).

(15) "Physical therapist assistant" means a skilled health care worker who:

(a) Is certified by the Kentucky Board of Physical Therapy; and

(b) Performs physical therapy services and related duties as assigned by the supervising physical therapist.

(16) "Place of residence" means, excluding a hospital or nursing facility, the location at which a recipient resides.

(17) "Plan of care" means a written plan which shall:

(a) Stipulate the type, nature, frequency and duration of a service; and

(b) At least every sixty (60) days, be reviewed and signed by a HHA staff person and physician, advanced practice registered nurse, or physician assistant.

(18) "Provider" is defined by KRS 205.8451(7).

(19) "Qualified medical social worker" means a person who meets the qualified medical social worker requirements as established in 902 KAR 20:081.

(20) "Qualified social work assistant" means a social work assistant as defined in 42 C.F.R. 484.115.

(21) "Recipient" is defined by KRS 205.8451(9).

(22) "Registered nurse" or "RN" is defined by KRS 314.011(5).

(23) "Speech-language pathologist" is defined by KRS 334A.020(3).

(24) "Speech-language pathology assistant" is defined by KRS 334A.020(8).

Section 2. Conditions of Participation.

(1) In order to provide home health services, a provider shall:

(a) Be an HHA; and

(b) Comply with:

907 KAR 1:671;
907 KAR 1:672;
907 KAR 1:673;
All applicable state and federal laws; and
The Home Health Services Manual.

(2)

(a) A home health provider shall maintain a medical record for each recipient for whom services are provided.

(b) A medical 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;
Contain a copy of the plan of care;
Document verbal orders from the physician, advanced practice registered nurse, or physician assistant, if applicable;
Except as established in paragraph (d) of this subsection, be retained for a minimum of five (5) years from the date a covered service is provided or until any audit dispute or issue is resolved beyond five (5) years;
Be kept in an organized central file within the HHA; and
Be made available to the department upon request.

(c) The individual who provided a service shall date and sign the health record on the date that the individual provided the service.

(d)

If the secretary of the United States Department of Health and Human Services requires a longer document retention period than the period referenced in paragraph (b)4. of this section, pursuant to 42 C.F.R. 431.17, the period established by the secretary shall be the required period.
In the case of a recipient who is a minor, the recipient's medical record shall be retained for three (3) years after the recipient reaches the age of majority under state law or the length established in paragraph (b)4 of this subsection or subparagraph 1 of this paragraph, whichever is longest.

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

(4)

(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 section may be:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

Section 3. Covered Services.

(1) A home health service shall be:

(a) Prior authorized by the department to ensure that the service or modification of the service is medically necessary and adequate for the needs of the recipient;

(b) Provided pursuant to a plan of care; and

(2) The following services provided to a recipient by a home health provider who meets the requirements in Section 2 of this administrative regulation shall be covered by the department:

(a) A nursing service which shall:

Include part-time or intermittent nursing services; and
If provided daily, be limited to thirty (30) days unless additional days are prior authorized by the department;

(b) A therapy service which shall:

Include physical therapy services provided by a physical therapist or a physical therapist assistant who is under the supervision of a physical therapist;
Include occupational therapy services provided by an occupational therapist or an occupational therapy assistant who is under the supervision of an occupational therapist;
Include speech-language pathology services provided by a speech-language pathologist or a speech-language pathology assistant who is under the supervision of a speech-language pathologist;
Be provided pursuant to a plan of treatment which shall be developed by the appropriate therapist and physician, advanced practice registered nurse, or physician assistant;
Be provided in accordance with 907 KAR 1:023; and
Comply with the:

a. Physical therapy service requirements established in the:

(i) Technical Criteria for Reviewing Ancillary Services for Adults if the therapy service is a physical therapy service provided to an adult; or

(ii) Technical Criteria for Reviewing Ancillary Services for Pediatrics if the therapy service is a physical therapy service provided to a child;

b. Occupational therapy requirements established in the:

(i) Technical Criteria for Reviewing Ancillary Services for Adults if the therapy service is an occupational therapy service provided to an adult; or

(ii) Technical Criteria for Reviewing Ancillary Services for Pediatrics if the therapy service is an occupational therapy service provided to a child; or

c. Speech-language pathology service requirements established in the:

(i) Technical Criteria for Reviewing Ancillary Services for Adults if the service is a speech-language pathology service provided to an adult; or

(ii) Technical Criteria for Reviewing Ancillary Services for Pediatrics if the service is a speech-language pathology service provided to a child;

Include the performance of simple procedures as an extension of therapy services, personal care, range of motion exercises and ambulation, assistance with medications that are ordinarily self-administered, reporting a change in the recipient's condition and needs, incidental household services which are essential to the recipient's health care at home when provided in the course of a regular visit, and completing appropriate records;
Be provided by a home health aide who is supervised at least every fourteen (14) days by:

a. An RN;

b. A physical therapist, for any physical therapy services that are provided by the home health aide;

c. An occupational therapist, for any occupational therapy services that are provided by the home health aide; or

d. A speech-language pathologist, for any speech-language pathology services that are provided by the home health aide; and

Be a service that the recipient is either physically or mentally unable to perform;

(d) A medical social service which shall:

Be provided by a qualified medical social worker or qualified social work assistant; and
Be provided in conjunction with at least one (1) other service listed in this section;

(e) A supply listed on the Home Health Schedule of Supplies, which shall be covered if provided to a recipient pursuant to the recipient's plan of care; or

(f) A supplemental nutritional product listed on the Home Health Schedule of Supplies, which shall:

Be ingested orally or delivered by tube into the gastrointestinal tract;
Provide for the supplemental nutrition of a recipient; and
Require a completed MAP-248 signed by a physician, advanced practice registered nurse, or physician assistant certifying the medical necessity of the supplemental nutritional product.

Section 4. Limitations and Exclusions from Coverage.

(1) A domestic or housekeeping service which is unrelated to the health care of a recipient shall not be covered.

(2) A medical social service shall not be covered unless provided in conjunction with another service pursuant to Section 3 of this administrative regulation.

(3) Supplies for personal hygiene shall not be covered.

(4) Drugs shall not be covered.

(5) Disposable diapers shall not be covered for a recipient age three (3) years and under, regardless of the recipient's medical condition.

(6) Except for the first week following a home delivery, a newborn or postpartum service without the presence of a medical complication shall not be covered.

(7) A recipient who has elected to receive hospice care shall not be eligible to receive coverage under the home health program.

(8)

(a) There shall be an annual limit of twenty (20):

Occupational therapy service visits per recipient per calendar year except as established in paragraph (b) of this subsection;
Physical therapy service visits per recipient per calendar year except as established in paragraph (b) of this subsection; and
Speech-language pathology service visits per recipient per calendar year except as established in paragraph (b) of this subsection.

(b) The limits established in paragraph (a) of this subsection may be exceeded if services in excess of the limits are determined to be medically necessary by the:

Department if the recipient is not enrolled with a managed care organization; or
Managed care organization in which the enrollee is enrolled if the recipient is an enrollee.

(c) Prior authorization by the department shall be required for each visit that exceeds the limit established in paragraph (a) of this subsection for a recipient who is not enrolled with a managed care organization.

Section 5. No Duplication of Service.

(1) The department shall not reimburse for a service provided to a recipient by more than one (1) provider of any program in which the service is covered during the same time period.

(2) For example, if a recipient is receiving a speech-language pathology service from a speech-language pathologist enrolled with the Medicaid Program, the department shall not reimburse for a speech-language pathology service provided to the same recipient during the same time period via the home health services program.

Section 6. Third Party Liability. A provider shall comply with KRS 205.622.

Section 7. 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:

Be adhered to by each of the provider's employees, officers, agents, or contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 8. Auditing Authority. The department shall have the authority to audit any claim, medical record, or documentation associated with any claim or medical record.

Section 9. 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 10. Appeal Rights.

(1) An appeal of an adverse action taken 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.

Section 11. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "MAP-248", August 2021;

(b) "Home Health Services Manual", May 2014;

(d) "Technical Criteria for Reviewing Ancillary Services for Pediatrics", April 2000; and

(e) "Home Health Schedule of Supplies", May 2014.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at:

(a) 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) The Web site located at https://chfs.ky.gov/agencies/dms/dpo/bpb/Pages/hh.aspx .

History

RELATES TO: KRS 205.622, 216.935, 216.936, 216.937, 216.9375, 216.939, 369.101-369.120, 42 C.F.R. 431.17, 440.70, 447.325, 484.115, 45 C.F.R. 164.316, 42 U.S.C. 1396a-d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 coverage provisions and requirements relating to Medicaid Program home health care services.
History: 2 Ky.R. 108; eff. 9-10-1975; 3 Ky.R. 522; eff. 2-2-1977; Recodified from 904 KAR 1:030, 5-2-1986; 15 Ky.R. 2458; eff. 8-5-1989; 21 Ky.R. 141; eff. 8-17-1994; 29 Ky.R. 1409; 1819; 2108; eff. 1-15-2003; 40 Ky.R. 1941; 2709; eff. 7-7-2014; Cert eff. 5-27-2021; 48 Ky.R. 1411, 2096; eff. 1-13-2022.

907 KAR 1:031 Payments for home health services {#sec-907-kar-1-031 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:031}

Section 1. Definitions.

(1) "Allowable cost" means that portion of the home health agency's cost that shall be allowed by the department in establishing reimbursement.

(2) "Cost report" means the Annual Medicaid Home Health/HCB Cost Report.

(3) "Cost report instructions" means the Annual Medicaid Home Health/HCB Cost Report Instructions.

(4) "Department" means the Department for Medicaid Services or its designee.

(5) "Home health agency" or "HHA" means an agency defined pursuant to 42 C.F.R. 440.70(d).

(6) "Interim rate" means a rate set for a provider for tentative reimbursement, based on reasonable allowable cost of providing a covered service, which may result in reimbursement adjustments after an audit or review determines the actual allowable cost during an accounting period.

(7) "Medicaid upper limit" means the maximum amount the Medicaid Program shall reimburse, on a facility-by-facility basis, for a unit of service.

(8) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(9) "Medicare upper limit" means the maximum reimbursement amount allowed by Medicare specific to:

(a) Each Medicare participating provider;

(b) Each category of service; and

(10) "Necessary function" means that if an owner of an agency had not provided the services pertinent to the operation of the HHA, the facility would have had to employ another person to perform the service.

(11) "Owner" means a person or a related family member with a cumulative ownership interest of five (5) percent or more.

(12) "Projected cost report" means an Annual Medicaid Home Health/HCB Cost Report that reflects costs that can reasonably be expected to be incurred by a provider for a specific period of time ending in the future.

(13) "Public agency" means an agency operated by a federal, state, county, city or other local governmental agency or instrumentality.

(14) "Rate year" means a twelve (12) month period beginning July 1 and ending the following June 30.

(15) "Related family member" means:

(a) Husband or wife;

(b) Natural or adoptive parent, child, or sibling;

(d) Father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law;

(e) Grandparent or grandchild;

(f) Spouse of grandparent or grandchild;

(g) Aunt or uncle; or

(h) Spouse of aunt or uncle.

(16) "Settled" or "settlement" means an amount by which a provider's interim Medicaid payment for a specified period of time is adjusted based on an audited or desk reviewed cost report for that same period of time.

(17) "Uniform desk review" or "UDR" means an analysis of a provider's Annual Medicaid Home Health/HCB Cost Report to determine if the data is adequate, complete, accurate, and reasonable.

(18) "Usual and customary charge" means the uniform amount which a medical provider charges the general public for a specific service or procedure.

Section 2. Reimbursement Requirement. A home health service shall be provided in accordance with 907 KAR 1:030 to be eligible for reimbursement.

Section 3. Payment to an In-state HHA.

(1) Except as provided in Section 14 of this administrative regulation, the department shall reimburse a Medicaid participating in-state HHA on the basis of an interim rate established pursuant to subsection (2) of this section for the following services:

(a) Speech therapy;

(b) Physical therapy;

(d) Medical social services;

(e) Home health aide services; and

(f) Skilled nursing services.

(2) The interim rate for a service pursuant to subsection (1) of this section shall be determined for each individual HHA as follows:

(a) The department shall use cost data for each category of service from an HHA's most recent available Annual Medicaid Home Health/HCB Cost Report as of May 31 immediately preceding the rate year to set the interim rate;

(b) Medicaid specific data for units of service shall be adjusted using the Medicaid paid claims data;

(c) Total cost data shall be increased for inflation using the most recent available HHA Market Basket National Forecast, as published by Standard and Poor's, by:

Trending the total cost data to the beginning of a rate year; and
Indexing cost data established pursuant to subparagraph 1 of this paragraph for inflationary cost increases projected to occur during the rate year;

(d) An average unit cost for a category of service shall be established by dividing the indexed cost established pursuant to paragraph (c)2 of this subsection by the total number of units of service that are reflected in the cost report pursuant to paragraph (a) of this subsection;

(e) If a nonpublicly-operated HHA is eligible to receive a cost containment incentive payment pursuant to Section 5 of this administrative regulation, the department shall determine the "average unit cost plus incentive" by adding the "incentive payment per visit amount" pursuant to Section 5(1) of this administrative regulation to the average unit cost established pursuant to paragraph (d) of this subsection;

(f) The interim rate for a publicly-operated HHA shall be the lesser of:

The average unit cost pursuant to paragraph (d) of this subsection; or
The Medicare upper limit as issued to the provider through a Medicare letter; and

(g) The interim rate for a nonpublicly-operated HHA shall be the lesser of the:

Maximum average unit cost as established pursuant to paragraph (d) or (e) of this subsection that the provider is eligible to receive;
Medicaid upper limit pursuant to Section 7 of this administrative regulation; or
Medicare upper limits.

(3) The department shall establish an interim payment not to exceed the allowable billed charge for an item listed in paragraphs (a) and (b) of this subsection by multiplying the provider's total cost to charge ratio for the items as reflected in the provider's most recent available cost report as of May 31 immediately preceding the rate year by the provider's billed charge for:

(a) Disposable medical supplies; and

(b) Enteral nutritional products.

(4) For a facility whose fiscal year ended on or after June 30, 2003, within eighteen (18) months following the end of the facility's fiscal year, payments made pursuant to subsection (3) of this section shall be:

(a) Settled to the lesser of the:

Allowable Medicaid cost, as established by the Kentucky Medicaid Medical Supply Cost Settlement Worksheet, that the department has:

a. Audited; or

b. Desk reviewed; or

Allowable billed charge reported by the Medicaid Management Information System (MMIS), except that a publicly-operated HHA furnishing services free of charge or at a nominal charge pursuant to 42 C.F.R. 413.13(f) shall be settled pursuant to subparagraph 1 of this paragraph; and

(b) Settled utilizing aggregation of costs in accordance with the Kentucky Medicaid Medical Supply Cost Settlement Worksheet Instructions.

(5)

(a) If a settlement pursuant to subsection (4) of this section indicates that the department has overpaid a provider, the excess payment to the provider shall be recovered pursuant to 907 KAR 1:671, Section 2.

(b) If a settlement pursuant to subsection (4) of this section indicates that the department has underpaid a provider, a payout shall be issued to the provider through the MMIS during the next cycle following the discovery of the underpayment.

Section 4. Payment to a New In-state HHA.

(1) An HHA that undergoes a change of ownership during a rate year shall continue to be reimbursed at the rate established for the previous owner for the remainder of the rate year.

(2) An HHA pursuant to subsection (1) of this section shall be reimbursed pursuant to Section 3 of this administrative regulation after the provider submits a cost report pursuant to Section 8 of this administrative regulation.

(3) An HHA that had not previously participated in the Medicaid Program under the current ownership or a previous ownership during the rate year shall be:

(a) Considered a new HHA; and

(b) Reimbursed at the interim rate equal to the lesser of:

Seventy (70) percent of the current Medicaid upper limit as established pursuant to Section 7(2)(e) of this administrative regulation; or
The current Medicare upper limits.

(4) A new HHA shall be reimbursed pursuant to subsection (3) of this section until a cost report is:

(a) Submitted pursuant to Section 8 of this administrative regulation; and

(b) Received by the department by May 31 preceding the rate year.

(5) If, during the initial period, a provider pursuant to subsection (3) of this section requests a rate adjustment, the department shall grant a rate change if the provider:

(a) Submits documentation indicating that the cost of providing services is significantly higher than the reimbursement rate that the provider is receiving; and

(b) Submits a projected cost report.

(6) When a new HHA's first cost report is received, interim payments for the cost report period shall be adjusted pursuant to Section 3(4) of this administrative regulation.

Section 5. Incentive Payment.

(1) If a nonpublicly-operated HHA's nonaggregated base year costs are below the Medicaid upper limits pursuant to Section 7 of this administrative regulation for the corresponding period of time, the HHA shall receive a cost containment incentive payment, pursuant to Section 3(2)(e) of this administrative regulation, in accordance with the following payment schedule:

(2) An incentive payment shall:

(a) Be subject to verification of visits;

(b) Bear an inverse relationship to the current year basic per visit cost; and

(c) Be adjusted each July 1 during the interim rate setting process pursuant to Section 3 of this administrative regulation for the rate year.

(3) The portion of an interim rate equal to the "incentive payment per visit amount" shall not be subject to retrospective settlement pursuant to Section 3(4) of this administrative regulation.

Section 6. Payment to an Out-of-state HHA.

(1) An out-of-state HHA that provides a covered service inside the Commonwealth of Kentucky to an eligible Kentucky Medicaid recipient shall be paid pursuant to Section 3 of this administrative regulation.

(2) Except as provided in subsection (3) of this section, an out-of-state HHA that provides a covered service to an eligible Kentucky Medicaid recipient while the recipient is outside the Commonwealth of Kentucky shall be reimbursed the lesser of the agency's:

(a) Usual and customary billed charge;

(b) Medicare upper limit; or

(3) If an out-of-state HHA provides the following items to an eligible Kentucky Medicaid recipient while the recipient is outside the Commonwealth of Kentucky, reimbursement shall be paid at eighty (80) percent of the HHA's usual and customary actual billed charges for:

(a) Disposable medical supplies; and

(b) Enteral nutritional products.

Section 7. Establishment of Medicaid Upper Limits.

(1) Medicaid upper limits for the services pursuant to Section 3(1)(a) through (e) of this administrative regulation shall be established each year to be effective on July 1 for a nonpublicly-operated HHA.

(2) Medicaid upper limits shall be determined by the department as follows:

(a) Based on the Standard Metropolitan Statistical Area (SMSA) designation, a nonpublicly-operated HHA shall be classified as:

Urban; or
Rural.

(b) Two (2) sets of arrays pursuant to paragraph (a) of this subsection shall be established for each category of service pursuant to subsection (1) of this section.

(c) Each HHA's average unit cost per service as established pursuant to Section 3(2)(d) of this administrative regulation shall be:

Grouped pursuant to paragraph (b) of this subsection; and
Arrayed from lowest to highest.

(d) The median per unit cost for each of the ten (10) arrays pursuant to paragraph (c) of this subsection shall be based on the median number of Medicaid units pursuant to Section 3(2)(b) of this administrative regulation.

(e) Medicaid upper limits for a nonpublicly-operated HHA shall be set at 105 percent of the median per unit cost as established pursuant to paragraph (d) of this subsection.

(3) The following HHAs shall be exempt from the Medicaid upper limits, but shall be subject to the Medicare upper limits:

(a) A publicly-operated HHA; or

(b) A new HHA who does not have two (2) full years of operation.

(4) The Medicaid upper limit for skilled nursing services shall be the Medicare upper limit for skilled nursing services.

Section 8. Financial Data and Cost Reporting Requirements.

(1) Except for a provider identified in Section 6(2) of this administrative regulation, an HHA shall submit to the department a completed cost report:

(a) That includes workpapers utilized to prepare the cost report including:

Detail of how a reclassification or an adjustment was calculated;
A working trial balance; and
Schedules tying the trial balance to the cost report;

(b) On an annual basis, within five (5) months after the close of the HHA's fiscal year;

(d) Pursuant to 42 C.F.R. 413.24(a), (b), (c), and (e).

(2) A thirty (30) day extension of time for submitting a cost report pursuant to subsection (1) of this section may be granted by the Director of the Division of Long Term Care and Disability Services or his designee if:

(a) A provider's operations are significantly adversely affected due to extraordinary circumstances over which the provider has no control;

(b) The provider submits a request for the extension in writing; and

(3) An HHA's payment shall be suspended if:

(a)

Time for submitting a cost report pursuant to subsection (1) or (2) of this section has lapsed; and
A cost report has not been submitted to the department;

(b) The department determines that the HHA does not maintain or no longer maintains records pursuant to subsection (4) of this section; or

907 KAR 1:672, Section 2(6); or
Subsection (4) of this section.

(4) For a period of five (5) years from the date that the department issues a letter to an HHA detailing the Medicaid final settlement of a cost report, the HHA shall retain and make available to the department:

(a) Records and documents pursuant to 42 C.F.R. 413.20(a), (c), and (d); and

(b) Documentation of work or services performed if compensation is claimed by the:

Owner; or
A related family member of the:

a. Owner; or

b. Administrator.

(5) If during a twelve (12) month period an HHA contracts with a subcontractor for the provision of goods and services established pursuant to 907 KAR 1:030 costing or valued at $10,000 or more, the HHA shall include a clause in the contract that requires a subcontractor to make available to the department records and documents related to the provision of services consistent with the requirements pursuant to subsection (4) of this section.

(6) If the department is denied access to a subcontractor's records pursuant to subsection (4) of this section, the cost of goods or services furnished by the subcontractor shall become a nonallowable cost reported on a cost report.

(7) If an HHA has been voluntarily or involuntarily terminated from the Medicaid Program, reimbursement payments shall be withheld until:

(a) A cost report is received from the HHA provider for the period of time the provider participated in the Medicaid Program:

Beginning with the first day of the provider's fiscal year immediately preceding the provider's termination date; and
Ending on the date of termination of its provider agreement with the Medicaid Program; and

(b) A final settlement pursuant to Section 3(4) of this administrative regulation is completed by the department.

Section 9. Allowable HHA Cost.

(1) Except as limited pursuant to Section 10 of this administrative regulation, cost pursuant to subsection (2) of this section shall be allowable and eligible for reimbursement pursuant to this administrative regulation if costs are:

(a) Reflective of a provider's actual expenses of providing a service; and

(b) Related to Medicaid patient care pursuant to 42 C.F.R. 413.9.

(2) Except as limited by Section 10 of this administrative regulation, and subsection (1) of this section, the following costs shall be allowable:

(a) Allowable cost to related organizations pursuant to 42 C.F.R. 413.17;

(b) Costs of educational activities pursuant to 42 C.F.R. 413.85;

(d) Value of services of nonpaid workers pursuant to 42 C.F.R. 413.94;

(e) Purchase discounts and allowances, and refunds of expenses pursuant to 42 C.F.R. 413.98; and

(f) Therapy and other services pursuant to 42 C.F.R. 413.106.

Section 10. Limitations on Allowable HHA Cost.

(1) Board of directors' fees.

(a) The cost of board of director's fees shall be limited annually to:

a. Five (5) meetings for a single-facility organization; or

b. Twelve (12) meetings for a multiple-facility organization; and

$200 for each director of the board attending each meeting, including the cost of attending the meeting.

(b) The cost associated with a private club membership shall not be an allowable cost.

(2) Motor vehicles.

(a) An allowable motor vehicle cost shall be:

Limited to cost related to patient care; and
Documented sufficiently to support business use.

(b) An allowable cost associated with HHA facility-owned vehicles and mileage allowances shall be limited to the federal income tax mileage allowance.

(c) The costs associated with personal use of a facility-owned motor vehicle shall not be an allowable cost unless the value of the personal use of the vehicle is:

Included in the employee's W-2 statement; or
Reported on a Form 1099 in accordance with Internal Revenue Service regulations.

(d) An allowable cost pursuant to paragraph (c) of this subsection shall be considered compensation to the extent that:

Compensation to an owner does not exceed the owner's compensation limits pursuant to Section 11 of this administrative regulation; and
The total compensation package to a nonowner is reasonable pursuant to 42 C.F.R. 413.9(b).

(3) The cost associated with political contributions shall not be allowable.

(4) The following legal fees shall not be allowable costs:

(a) A legal fee associated with unsuccessful lawsuits against the Cabinet for Health and Family Services or the department;

(b) A legal fee incurred by the provider in an attempt to block the approval of a certificate of need for another provider;

(d) A legal fee resulting from the commission of an illegal act by an:

HHA;
HHA's owner; or
HHA's agent; or

(e) A legal fee unrelated to patient care.

(5) Legal fees associated with successful lawsuits against the cabinet shall be limited to inclusion as allowable cost in the period:

(a) In which a suit is settled after a final decision has been issued that the lawsuit is successful;

(b) Agreed to by involved parties; or

(6) Travel expenses. The cost of travel expenses shall be limited to:

(a) Activities related to the educational needs of the:

Agency owners;
Directors; or
Staff;

(b) Reasonable and necessary cost pursuant to 42 C.F.R. 413.9(b) as determined in evaluating the:

Number of trips taken;
Expense associated with each trip;
Number of persons attending each function; and
Appropriateness of the training; and

Section 11. Owner's Compensation Limits.

(1) Compensation to an owner who is not an administrator shall:

(a) Be considered an allowable cost pursuant to 42 C.F.R. 413.102; and

(b) Exclude:

Board of directors' fees; and
Fringe benefits routinely provided to all employees.

(2) Compensation of a part-time owner-employee performing managerial functions shall not exceed the percent of time worked times eighty (80) percent of the applicable compensation limits for an owner administrator.

(3) A full-time owner-administrator or full-time owner-employee who performs nonmanagerial functions in an HHA other than the HHA with which he is primarily associated shall be limited to:

(a) Reasonable compensation from the nonprimary agency for not more than fourteen (14) hours per week supported by:

The owner's proof of performance of a necessary function; and
Documentation of time claimed for compensation; and

(b) A salary from the agency with which the person is primarily associated.

(4) Managerial functions performed in a nonprimary agency by a full-time owner-administrator or a full-time owner-employee of another agency shall not be considered an allowable cost.

(5) Compensation to an owner-administrator of a rural or urban HHA shall be:

(a) Limited to $60,579 beginning July 1, 1999;

(b) Increased on July 1 of each year by the inflation factor index for wages and salaries of the Home Health Agency Market Basket of Operating Cost as indicated by the National Forecasts supplied by Standard and Poor's, Inc.; and

(c) Published annually through a notification to all providers to advise of the revised limits for owner's compensation to be effective July 1 of each year.

Section 12. Audit Functions.

(1) All HHA provider costs applicable to a Medicaid beneficiary shall be subject to:

(a) Review or audit by the department; and

(b) A final retroactive settlement based upon an adjustment to an HHA provider's costs reported in a cost report for any reporting period under review or audit.

(2) The department shall perform a uniform desk review (UDR) of each provider's annual cost report.

(3) A summary of the UDR shall be used:

(a) To settle the cost report without audit; or

(b) To determine the extent to which audit verification is required.

(4) If indicated by the uniform desk review, an audit shall be conducted in accordance with the "Government Auditing Standards".

Section 13. Payment Amounts Effective July 1, 2002. A participating HHA shall be reimbursed for a home health service provided in accordance with 907 KAR 1:030 at the lesser of:

(1) The provider's usual and customary charge; or

(2) The Medicaid fixed upper payment limit per unit of service as established in Section 14 of this administrative regulation.

Section 14. Fixed Upper Payment Limits. The following rates shall be the fixed upper payment limits for home health services:

Section 15. Supplemental Payments to Licensed County Health Departments.

(1) Beginning September 1, 2003, the department shall make supplemental payment to a licensed county health department home health agency equal to the difference between:

(a) Payments received for services on or after November 1, 2002 in accordance with Section 14 of this administrative regulation; and

(b) The estimated cost of providing services during the same time period.

(2) Based on a provider's most recently submitted annual cost report, estimated costs of providing services shall be determined by multiplying the cost per unit by the number of units provided during the period.

(3) If a provider's cost as estimated from its most recently submitted annual cost report is less than the payments received under Section 14 of this administrative regulation, the department shall recoup any excess payments.

Section 16. Reimbursement Review and Appeal. An HHA may appeal a department decision as to the application of this administrative regulation as it impacts the provider's reimbursement in accordance with 907 KAR 1:671, Sections 8 and 9.

Section 17. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) The "Annual Medicaid Home Health/HCB Cost Report", Department for Medicaid Services, May 1991 edition;

(b) "The Annual Medicaid Home Health/HCB Cost Report Instructions", Department for Medicaid Services, May 1991 edition;

(d) The "Kentucky Medicaid Medical Supply Cost Settlement Worksheet", Department for Medicaid Services, June 2003 edition; and

(e) The "Kentucky Medicaid Medical Supply Cost Settlement Worksheet Instructions", Department for Medicaid Services, June 2003 edition.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Medicaid Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: 42 C.F.R. 440.70, 447.325, 42 U.S.C. 1396a-d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Kentucky 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the method for determining amounts payable by the Medicaid Program for home health agency services that are provided to Kentucky's Medicaid-eligible recipients.
History: 2 Ky.R. 109; eff. 9-10-1975; 7 Ky.R. 692; eff. 4-1-1981; 12 Ky.R. 370; eff. 11-12-1985; Recodified from 904 KAR 1:031, 5-2-1986; 13 Ky.R. 380; eff. 9-4-1986; 14 Ky.R. 301; eff. 9-10-1987; 15 Ky.R. 678; eff. 9-21-1988; 16 Ky.R. 270; eff. 9-20-1989; 1511; eff. 3-8-1990; 17 Ky.R. 562; eff. 10-14-1990; 18 Ky.R. 539; eff. 10-6-1991; 19 Ky.R. 2148; eff. 6-7-1993; 20 Ky.R. 447; eff. 10-13-1993; 26 Ky.R. 1248; 1567; eff. 2-1-2000; 29 Ky.R. 1128; 1648; eff. 12-18-2002; 30 Ky.R. 727; 1527; eff. 1-5-2004; 32 Ky.R. 401; 681; eff. 10-14-2005; 33 Ky.R. 589; 1556; eff. 1-5-2007; Crt eff. 12-6-2019.

907 KAR 1:032 Dual licensed pediatric facility services {#sec-907-kar-1-032 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:032}

Section 1. Definition. A dual licensed pediatric facility is any facility providing both high intensity and low intensity nursing facility services to children under age twenty-one (21) only in the same beds.

Section 2. Participation Requirements. Each facility desiring to participate as a dual licensed pediatric facility shall meet the following requirements:

(1) An application for participation shall be made to the cabinet using the procedures specified by the Commissioner, Department for Medicaid Services, Cabinet for Health and Family Services. A vendor number shall be assigned to the facility by the cabinet when participation status is achieved.

(2) Any dual licensed pediatric facility whose admission policies are such as to permit admission of patients who are eligible for Medicare benefits shall be required to have thirty-five (35) percent of its Medicaid participating beds (but not less than ten (10) beds; if the facility has less than ten (10) beds, all beds) participate in the Medicare health care program before the conditions of participation for Medicare shall be deemed met. Any facility refusing to participate in the Medicaid program shall not be certified to participate in the Medicaid program and shall not receive reimbursement through the Medicaid program.

Section 3. Provision of Service. Payment for services shall be limited to those services provided to eligible individuals meeting the criteria for provision of nursing facility services as determined in accordance with 907 KAR 1:022.

Section 4. Utilization Review. The facility shall have in place a program of utilization review which meets the requirements specified in 42 C.F.R. Part 456. Determination of nursing care patient status made by the utilization review committee (and which are available to the cabinet) shall be given due consideration by the cabinet in its determinations of patient status.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 42 C.F.R. 442, 456, 42 U.S.C. 1396a, b, c, d, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the program of Medical Assistance. KRS 205.520 empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the provisions relating to nursing services provided in a dual licensed pediatric facility for which payment shall be made by the Medicaid Program in behalf of both the categorically needy and medically needy.
History: 5 Ky.R. 296; eff. 11-1-1978; Recodified from 904 KAR 1:032, 5-2-1986; 18 Ky.R. 1621; eff. 1-10-1992; Crt eff. 12-6-2019.

907 KAR 1:033 Payments for dual licensed pediatric facility services {#sec-907-kar-1-033 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:033}

Section 1. Dual Licensed Pediatric Facilities. The cabinet shall make payment to participating providers on the following basis:

(1) Method of reimbursement. A dual licensed pediatric facility shall be reimbursed on the basis of rates which are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable state and federal laws, regulations and quality and safety standards. The payment shall be prospective in nature with no year end adjustment for routine costs of care. The nursing facility services payment principles as specified in 907 KAR 1:025 shall apply except for variations specified in this administrative regulation. The cost of ancillaries shall be excluded from the cost when computing the payment rate and shall be reimbursed separately (in accordance with nursing facility services payment principles) with a retroactive settlement.

(2) Composite rate. The facility(ies) shall be paid at a composite rate for a nursing facility day of care. The following procedures shall be followed in establishing the composite rate:

(a) The allowable cost for nursing facility days of care shall be determined based on prior year actual costs (or, in the case of a new facility, projected costs which are determined by the cabinet to be reasonable).

(b) The department shall set a uniform rate year (July 1 - June 30) for facilities in this class in the same manner as for nursing facilities, with allowable costs trended to the beginning of the rate year. The trended allowable costs shall then be indexed for the rate year; however, there shall be no administratively established upper limit. Fixed or capital costs shall be neither trended nor indexed. Since projected costs for new facilities reflect the best estimate of actual costs, these shall also be neither trended nor indexed.

(c) Allowable costs shall be then compared with the number of projected (for new facilities) bed days or the number of bed days based on the prior year's actual utilization to arrive at a per diem composite rate.

(d) An occupancy factor of ninety (90) percent shall be applied. In the case of new facilities the occupancy factor shall be waived during the first full fiscal year of participation in the program.

(e) The cost incentive and investment factor (CIIF) schedule shall be applied to prospective current year per diem cost in determination of a final prospective rate for each facility. The CIIF schedule shall be transmitted to appropriate providers.

(f) The component (cost center) limitations specified in 907 KAR 1:025 shall not be applicable.

Section 2. Rate Review and Adjustment. For a new facility, the composite rate shall be reconsidered to determine if an adjustment is necessary after two (2) full calendar quarters of actual experience in the program as specified in the nursing facility payment principles.

Section 3. Eligibility for Reimbursement. A facility shall be eligible for reimbursement from the department only when considered to be a participating vendor, and reimbursement shall be made only for covered services rendered Medicaid eligible recipients meeting patient status as determined in accordance with applicable administrative regulations.

History

RELATES TO: KRS 205.520, 42 C.F.R. 447.250, 42 U.S.C. 1396a, b, d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the program of Medical Assistance. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the method for determining amounts payable by the cabinet for dual licensed pediatric facility services.
History: 5 Ky.R. 297; eff. 11-1-1978; 8 Ky.R. 29; eff. 8-5-1981; 9 Ky.R. 66; eff. 8-11-1982; Recodified from 904 KAR 1:033, 5-2-1986; 18 Ky.R. 1622; eff. 1-10-1992; Crt eff. 12-6-2019.

907 KAR 1:037 Hospital furnished nursing facility services {#sec-907-kar-1-037 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:037}

Section 1. Definition. "Hospital furnished nursing facility services" means nursing facility services provided in a licensed hospital bed by a facility which has entered into an agreement with the secretary, Department of Health and Human Services, pursuant to Section 1883 of the Social Security Act, or nursing facility services provided in a hospital bed which is licensed (in accordance with KRS Chapter 216B) for provision of acute care and is appropriately certified for provision of nursing facility services if the beds qualify for participation in the Medicaid Program in accordance with usual Medicaid requirements for participation.

Section 2. Participation Requirements. The hospital must be licensed and certified to participate in the Medicaid Program, and any beds to be used for hospital furnished nursing facility services must be appropriately certified. The requirements for Medicare participation shall be the same as those Medicare participation requirements specified in 907 KAR 1:022.

Section 4. Utilization Review. The facility shall have in place a program of utilization review which meets the requirements specified in 42 CFR 456, subparts C, E, and F, for hospitals, skilled nursing facilities, and intermediate care facilities. The facility shall be responsible for cooperating with the cabinet or its designated agents in the establishment of patient status and performance of utilization review and control.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 440.140, 42 U.S.C. 1396a, b, d, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the program of Medical Assistance. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the provisions relating to nursing facility services furnished by a licensed hospital for which payment shall be made by the Medicaid Program in behalf of both the categorically needy and the medically needy.
History: 9 Ky.R. 99; eff. 8-11-1982; Recodified from 904 KAR 1:037, 5-2-1986; 14 Ky.R. 310; eff. 9-10-1987; 18 Ky.R. 1624; 2346; eff. 2-7-1992; Crt eff. 12-6-2019.

907 KAR 1:038 Hearing program coverage provisions and requirements {#sec-907-kar-1-038 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:038}

Section 1. Definitions.

(1) "Audiologist" is defined by KRS 334A.020(5).

(2) "CPT code" means a code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Enrollee" means a recipient who is enrolled with a managed care organization.

(5) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(6) "Healthcare Common Procedure Coding System" or "HCPCS" means a collection of codes acknowledged by the Centers for Medicare and Medicaid Services (CMS) that represents procedures or items.

(7) "Hearing instrument" is defined by KRS 334.010(4).

(8) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(9) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(10) "Recipient" is defined by KRS 205.8451(9).

(11) "Specialist in hearing instruments" is defined by KRS 334.010(9).

Section 2. General Requirements.

(1)

(a) For the department to reimburse for a service or item, the service or item shall:

Be provided:

a. To a recipient; and

b. By a provider who is:

(i) Enrolled in the Medicaid Program pursuant to 907 KAR 1:672;

(ii) Except as provided by paragraph (b) of this subsection, currently participating in the Medicaid Program pursuant to 907 KAR 1:671; and

(iii) Authorized to provide the service in accordance with this administrative regulation;

Be covered in accordance with this administrative regulation;
Be medically necessary;
Have a CPT code or HCPCS code that is listed on the most current Kentucky Medicaid Audiology Fee Schedule, posted on the department Web site at: https://chfs.ky.gov/agencies/dms/Pages/feesrates.aspx. Any fee schedule posted shall comply with all relevant existing rate methodologies utilized by the department and established by state and federal law. As appropriate and relevant, the department shall utilize the Medicaid Physician Fee Schedule established in 907 KAR 3:010 to inform and populate the Audiology Fee Schedule; and
Audiology service limits shall be as established on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

(b) 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.

(2)

(a) If a procedure is part of a comprehensive service, the department shall:

Not reimburse separately for the procedure; and
Reimburse one (1) payment representing reimbursement for the entire comprehensive service.

(b) A provider shall not bill the department multiple procedures or procedural codes if one (1) CPT code or HCPCS code is available to appropriately identify the comprehensive service provided.

(3) A provider shall comply with:

(a) 907 KAR 1:671;

(b) 907 KAR 1:672; and

(4)

(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:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

(d) A provider shall comply with KRS 205.622.

(5)

(a) An in-state audiologist shall:

Maintain a current, unrevoked, and unsuspended license in accordance with KRS Chapter 334A;
Before initially enrolling in the Kentucky Medicaid Program, submit proof of the license referenced in subparagraph 1. of this paragraph to the department; and
Annually submit proof of the license referenced in subparagraph 1. of this paragraph to the department.

(b) An out-of-state audiologist shall:

Maintain a current, unrevoked, and unsuspended license to practice audiology in the state in which the audiologist is licensed;
Before initially enrolling in the Kentucky Medicaid Program, submit proof of the license referenced in subparagraph 1. of this paragraph to the department;
Annually submit proof of the license referenced in subparagraph 1. of this paragraph to the department;
Maintain a Certificate of Clinical Competence issued to the audiologist by the American Speech-Language-Hearing Association; and
Before enrolling in the Kentucky Medicaid Program, submit proof of having a Certificate of Clinical Competence issued to the audiologist by the American Speech-Language-Hearing Association.

(c) If an audiologist fails to comply with paragraph (a) or (b) of this subsection, as applicable based on if the audiologist is in-state or out-of-state, the:

Audiologist shall be ineligible to be a Kentucky Medicaid Program provider; and
Department shall not reimburse for any service or item provided by the audiologist effective with the date the audiologist fails or failed to comply.

(6)

(a) An in-state specialist in hearing instruments shall:

Maintain a current, unrevoked, and unsuspended license issued by the Kentucky Licensing Board for Specialists in Hearing Instruments;
Before initially enrolling in the Kentucky Medicaid Program, submit proof of the license referenced in subparagraph 1. of this paragraph to the department;
Annually submit proof of the license referenced in subparagraph 1. of this paragraph to the department;
Maintain a Certificate of Clinical Competence issued to the specialist in hearing instruments by the American Speech-Language-Hearing Association; and
Before enrolling in the Kentucky Medicaid Program, submit proof of having a Certificate of Clinical Competence issued to the specialist in hearing instruments by the American Speech-Language-Hearing Association.

(b) An out-of-state specialist in hearing instruments shall:

Maintain a current, unrevoked, and unsuspended license issued by the licensing board with jurisdiction over specialists in hearing instruments in the state in which the license is held;
Before initially enrolling in the Kentucky Medicaid Program, submit proof of the license referenced in subparagraph 1. of this paragraph to the department;
Annually submit proof of the license referenced in subparagraph 1 of this paragraph to the department;
Maintain a Certificate of Clinical Competence issued to the specialist in hearing instruments by the American Speech-Language-Hearing Association; and
Before enrolling in the Kentucky Medicaid Program, submit proof of having a Certificate of Clinical Competence issued to the specialist in hearing instruments by the American Speech-Language-Hearing Association.

(c) If a specialist in hearing instruments fails to comply with paragraph (a) or (b) of this subsection, as applicable based on if the specialist in hearing instruments is in-state or out-of-state, the:

Specialist in hearing instruments shall be ineligible to be a Kentucky Medicaid Program provider; and
Department shall not reimburse for any service or item provided by the specialist in hearing instruments effective with the date the specialist in hearing instruments fails or failed to comply.

Section 3. Audiology Services.

(1) Audiology service coverage shall be limited to one (1) complete hearing evaluation per calendar year.

(2) Unless a recipient's health care provider demonstrates, and the department agrees, that an additional hearing instrument evaluation is medically necessary, a hearing instrument evaluation shall:

(a) Include three (3) follow-up visits, which shall be:

Within the six (6) month period immediately following the fitting of a hearing instrument; and
Related to the proper fit and adjustment of the hearing instrument; and

(b) Include one (1) additional follow-up visit, which shall be:

At least six (6) months following the fitting of the hearing instrument; and
Related to the proper fit and adjustment of the hearing instrument.

(3)

(a) A referral by a physician to an audiologist shall be required for an audiology service.

(b) The department shall not cover an audiology service if a referral from a physician to the audiologist was not made.

(c) An office visit with a physician shall not be required prior to the referral to the audiologist for the audiology service.

Section 4. Hearing Instrument Coverage.

(1) Hearing instrument benefit coverage shall:

(a) Be for a hearing instrument model that is:

Recommended by an audiologist licensed pursuant to KRS 334A.030; and
Available through a Medicaid-participating specialist in hearing instruments; and

(b) Except as provided by Section 5(3) of this administrative regulation, not exceed $1,200 per ear every thirty-six (36) months.

(2) Hearing instrument coverage may include the replacement or upgrading of a hearing instrument battery if the upgrade is cost-effective or extends the service life of the hearing instrument.

Section 5. Replacement of a Hearing Instrument.

(1) The department shall reimburse for the replacement of a hearing instrument if:

(a) A loss of the hearing instrument necessitates replacement;

(b) Extensive damage has occurred necessitating replacement;

(d) A medical condition necessitates the replacement of the previously prescribed hearing instrument in order to accommodate a change in hearing loss.

(2) If replacement of a hearing instrument is necessary within twelve (12) months of the original fitting, the replacement hearing instrument shall be fitted upon the signed and dated recommendation from an audiologist.

(3) If replacement of a hearing instrument becomes necessary beyond twelve (12) months from the original fitting:

(a) The recipient shall be examined by a physician with a referral to an audiologist; and

(b) The recipient's hearing loss shall be re-evaluated by an audiologist.

Section 6. Noncovered services. The department shall not reimburse for:

(1) A routine screening of a group of individuals for identification of a hearing problem;

(2) Hearing therapy except as covered through the six (6) month adjustment counseling following the fitting of a hearing instrument;

(3) Lip reading instructions except as covered through the six (6) month adjustment counseling following the fitting of a hearing instrument;

(4) A service for which the recipient has no obligation to pay and for which no other person has a legal obligation to provide or to make payment;

(5) A telephone call;

(6) A service associated with investigational research; or

(7) A replacement of a hearing instrument for the purpose of incorporating a recent improvement or innovation unless the replacement results in appreciable improvement in the recipient's hearing ability as determined by an audiologist.

Section 7. Equipment.

(1) Equipment used in the performance of a test shall meet the current standards and specifications established by the American National Standards Institute.

(2)

(a) A provider shall ensure that any audiometer used by the provider or provider's staff shall:

Be checked at least once per year to ensure proper functioning; and
Function properly.

(b) A provider shall:

Maintain proof of calibration and any repair, if any repair occurs; and
Make the proof of calibration and repair, if any repair occurs, available for departmental review upon the department's request.

Section 8. Service and equipment limits may be exceeded by prior authorization for children under 21 if medically necessary.

Section 9. 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 10. Appeal Rights. An appeal of a negative action regarding a Medicaid recipient who is:

(1) Enrolled with a managed care organization shall be in accordance with 907 KAR 17:010; or

(2) Not enrolled with a managed care organization shall be in accordance with 907 KAR 1:563.

Section 11. Incorporation by Reference.

(1) "KY Medicaid Audiology Fee Schedule", April 2023, 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 located at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

History

RELATES TO: KRS 205.520, 205.622, 205.8451(9), 334.010(4), (9), 334A.020(5), 334A.030, 42 C.F.R. 400.203, 438.20, 457.310, 42 U.S.C. 1396a, b, d, 1396r-6
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 provisions and requirements regarding the coverage of audiology services and hearing instruments.
History: 2 Ky.R. 110; eff. 9-10-1975; 6 Ky.R. 646; 7 Ky.R. 403; eff. 10-1-1980; 860; eff. 6-3-1981; 12 Ky.R. 1786; 13 Ky.R. 16; eff. 6-10-1986; Recodified from 904 KAR 1:038, 6-10-1986; 18 Ky.R. 1625; eff. 1-10-1992; 20 Ky.R. 1714; eff. 2-2-1994; 23 Ky.R. 4009; 24 Ky.R. 119; eff. 6-18-1997; 25 Ky.R. 1254; 1660; eff. 1-19-1999; 28 Ky.R. 944; 1404; eff. 12-19-2001; 33 Ky.R. 594; 1377; 1560; eff. 1-5-2007; 34 Ky.R. 1820; 2110; eff. 4-4-2008; TAm 7-16-2013; 40 Ky.R. 1945; 2481; 2712; eff. 7-7-2014; Crt eff. 12-6-2019; 47 Ky.R. 2483; 48 Ky.R. 374; eff. 8-26-2021; 49 Ky.R. 2174; eff. 1-2-2024.

907 KAR 1:039 Hearing Program reimbursement provisions and requirements {#sec-907-kar-1-039 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:039}

Section 1. Definitions.

(1) "Audiologist" is defined by KRS 334A.020(2).

(2) "CPT code" means a code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(5) "Healthcare Common Procedure Coding System" or "HCPCS" means a collection of codes acknowledged by the Centers for Medicare and Medicaid Services (CMS) that represents procedures or time.

(6) "Kentucky Medicaid Audiology Fee Schedule" means a list, located at https://chfs.ky.gov/agencies/dms/Pages/feesrates.aspx, that:

(a) Contains the current reimbursement rates for audiology services established by the department in accordance with 907 KAR 1:038 and this administrative regulation; and

(b) Is updated at least annually to coincide with the quarterly updates made by the Centers for Medicare and Medicaid Services as required by 42 U.S.C. 1395m and 1395w-4 and 42 C.F.R. Part 414.

(7) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(8) "Medically necessary" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(9) "Participating audiologist" means an audiologist who:

(a) Is enrolled in the Medicaid Program pursuant to 907 KAR 1:672;

(b) Is currently participating in the Medicaid Program pursuant to 907 KAR 1:671; and

(10) "Participating specialist in hearing instruments" means a specialist in hearing instruments who:

(a) Is enrolled in the Medicaid Program pursuant to 907 KAR 1:672;

(b) Is currently participating in the Medicaid Program pursuant to 907 KAR 1:671; and

(11) "Recipient" is defined by KRS 205.8451(9).

(12) "Specialist in hearing instruments" is defined by KRS 334.010(11).

(13) "Usual and customary charge" means the uniform amount that a provider bills to the general public for a specific covered benefit.

Section 2. General Reimbursement Requirements.

(1) For the department to reimburse for a service or item, the requirements of 907 KAR 1:038, Section 2, including that the service be medically necessary, shall be met.

(2) The department shall not reimburse for:

(a) A service with a CPT code that is not listed on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx; or

(b) An item with an HCPCS code that is not listed on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

Section 3. Audiology Service Reimbursement. The department shall reimburse a participating audiologist for an audiology service at the lesser of the:

(1) Audiologist's usual and customary charge for the service; or

(2) Reimbursement established on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx for the service.

Section 4. Hearing Instrument Reimbursement.

(1) The department shall reimburse a participating specialist in hearing instruments or participating audiologist for a hearing instrument at the lesser of the:

(a) Provider's usual and customary charge for the hearing instrument; or

(b) Reimbursement established on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx for the hearing instrument.

(2) A hearing examination of a recipient by a physician and a recommendation for a hearing instrument for the recipient by an audiologist shall:

(a) Be required for the department to cover a hearing instrument; and

(b) Occur prior to the fitting of a hearing instrument.

(3)

(a) Except for an ear mold, an invoice for a hearing instrument, related supply, or accessory shall be submitted with the corresponding claim:

To the department; and
By the participating audiologist or participating specialist in hearing instruments who supplied the hearing instrument, related supply, or accessory.

(b) The department shall not require a participating audiologist or participating specialist in hearing instruments to submit an invoice for an ear mold.

Section 5. Ear Mold Reimbursement.

(1) The department shall reimburse a participating audiologist or participating specialist in hearing instruments for an ear mold at the lesser of the:

(a) Provider's usual and customary charge for the ear mold; or

(b) Reimbursement established on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx for the ear mold.

(2) The department shall limit reimbursement for an ear mold as consistent with the Kentucky Medicaid Audiology Fee Schedule.

Section 6. Reimbursement for Hearing Instrument Batteries.

(1) The department shall reimburse a participating audiologist or participating specialist in hearing instruments for a hearing instrument battery at the lesser of the:

(a) Provider's usual and customary charge for the hearing instrument battery; or

(b) Reimbursement established on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx for the hearing instrument battery.

(2)

(a) The department shall reimburse for hearing instrument batteries.

(b) The department's reimbursement for hearing instrument batteries shall be consistent with manufacturer's recommendations and at regular intervals as necessary to ensure optimal functioning of the hearing instrument.

Section 7. Replacement Cord Reimbursement. The department shall reimburse a participating audiologist or participating specialist in hearing instruments for a replacement cord at the lesser of the:

(1) Provider's usual and customary charge for the replacement cord; or

(2) Reimbursement established on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx for the replacement cord.

Section 8. Hearing Instrument Repair Reimbursement. The department shall reimburse a participating audiologist or participating specialist in hearing instruments for hearing instrument repair at the lesser of the:

(1) Provider's usual and customary charge for the hearing instrument repair; or

(2) Reimbursement established on the Kentucky Medicaid Audiology Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx for the hearing instrument repair.

Section 9. Not Applicable to Managed Care Organizations. A managed care organization shall not be required to reimburse the same amount as established in this administrative regulation for a service or item covered pursuant to 907 KAR 1:038 and this administrative regulation.

Section 10. Federal Approval and Federal Financial Participation. The department's reimbursement for 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 11. Appeals. A provider may appeal a department decision as to the application of this administrative regulation in accordance with 907 KAR 1:671.

History

RELATES TO: KRS 205.520, 205.8451, 334.010, 334.040, 334.200, 334A.020(2), 42 C.F.R. 400.203, Part 414, 438.2, 440.110, 447.200, 447.204, 42 U.S.C. 1395m, 1395w-4
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 reimbursement provisions and requirements for covered audiology services, hearing instruments, and related items provided to a Medicaid recipient who is not enrolled with a managed care organization.
History: 904 KAR 1:039. 2 Ky.R. 110; eff. 9-10-1975; 11 Ky.R. 659; eff. 11-13-1984; Recodified as 907 KAR 1:039, 5-2-1986; 17 Ky.R. 572; eff. 10-14-1990; 25 Ky.R. 1255, 1661; eff. 1-19-1999; 34 Ky.R. 1823, 2112; eff. 4-4-2008; 40 Ky.R. 1951, 2716; eff. 7-7-2014; Crt eff. 12-6-2019; TAm eff. 3-20-2020; 51 Ky.R. 1555, 52 Ky.R. 37; eff 7-30-2025.

907 KAR 1:042 Amounts payable for hospital furnished skilled nursing and intermediate care facility services {#sec-907-kar-1-042 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:042}

Section 1. Reimbursement for Hospital Furnished Skilled Nursing and Intermediate Care Services. To qualify for reimbursement, any hospital(s) providing skilled nursing facility services and intermediate care facility services must have in effect an agreement with the secretary, Department of Health and Human Services, pursuant to Section 1883 of the Social Security Act, or be dual licensed (as provided for in KRS Chapter 216B) to provide skilled nursing and/or intermediate care services in an acute care hospital bed. Such hospital(s) shall be paid for swing-bed services provided pursuant to Section 1883 of the Act at a rate equal to the average rate per patient-day paid for routine services during the previous calendar year under the state's Title XIX plan to skilled nursing and intermediate care facilities, respectively, located in the state in which the hospital is located; for dual licensed skilled nursing or intermediate care services, such hospital shall be paid at a rate equal to the hospital based skilled nursing facility upper limit or intermediate care facility upper limit, as appropriate for the level of care provided, in effect at the time the service is provided. The reasonable cost of ancillary services shall be determined in the same manner as the reasonable cost of ancillary services provided for inpatient hospital services; covered ancillary services shall be the same as for all other skilled nursing and intermediate care facilities.

Section 2. Rate Review and Adjustment. Any participating facility may appeal its established rates using either the customary appeals mechanism for providers of hospital inpatient services or for providers of skilled nursing and intermediate care facility services.

Section 3. Eligibility for Reimbursement. A facility shall be eligible for reimbursement only when considered to be a participating vendor, and reimbursement shall be made only for covered services rendered eligible Title XIX recipients meeting patient status as determined in accordance with applicable administrative regulations.

Section 4. The amendments to this administrative regulation shall be effective with regard to services provided on or after July 1, 1987.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the program for Medical Assistance in accordance with Title XIX of the Social Security Act. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the method for determining amounts payable by the cabinet for hospital furnished skilled nursing facility and intermediate care facility services.
History: 9 Ky.R. 99; eff. 8-11-1982; Recodified from 904 KAR 1:042, 5-2-1986; 14 Ky.R. 310; eff. 9-10-1987; 15 Ky.R. 688; eff. 9-21-1988; Crt eff. 12-6-2019.

907 KAR 1:044 Coverage provisions and requirements regarding community mental health center behavioral health services {#sec-907-kar-1-044 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:044}

Section 1. Definitions.

(1) "Community mental health center" or "CMHC" means a facility which meets the community mental health center requirements established in 902 KAR 20:091.

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Enrollee" means a recipient who is enrolled with a managed care organization.

(4) "Face-to-face" means occurring:

(a) In person; or

(b) If authorized by 907 KAR 3:170, via a real-time, electronic communication that involves two (2) way interactive video and audio communication.

(5) "Federal financial participation" is defined in 42 C.F.R. 400.203.

(6) "Medically necessary" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(7) "Mental health associate" means an individual who meets the mental health associate requirements established in the Community Mental Health Center Behavioral Health Services Manual.

(8) "Professional equivalent" means an individual who meets the professional equivalent requirements established in the Community Mental Health Center Behavioral Health Services Manual.

(9) "Provider" is defined by KRS 205.8451(7).

(10) "Qualified mental health professional" means an individual who meets the requirements established in KRS 202A.0011(12).

(11) "Recipient" is defined by KRS 205.8451(9).

Section 2. Requirements for a Psychiatric Nurse. A registered nurse employed by a participating community mental health center shall be considered a psychiatric or mental health nurse if the individual:

(1) Possesses a Master of Science in nursing with a specialty in psychiatric or mental health nursing;

(2)

(a) Is a graduate of a four (4) year nursing educational program with a Bachelor of Science in nursing; and

(b) Possesses at least one (1) year of experience in a mental health setting;

(3)

(a) Is a graduate of a three (3) year nursing educational program; and

(b) Possesses at least two (2) years of experience in a mental health setting; or

(4)

(a) Is a graduate of a two (2) year nursing educational program with an associate degree in nursing; and

(b) Possesses at least three (3) years of experience in a mental health setting.

Section 3. Community Mental Health Center Behavioral Health Services Manual. The conditions for participation, services covered, and limitations for the community mental health center behavioral health services component of the Medicaid Program shall be as specified in:

(1) This administrative regulation; and

(2) The Community Mental Health Center Behavioral Health Services Manual.

Section 4. Covered Services.

(1) Behavioral health services covered pursuant to this administrative regulation and pursuant to the Community Mental Health Center Behavioral Health Services Manual shall be rehabilitative mental health and substance use disorder services including:

(a) Individual outpatient therapy;

(b) Group outpatient therapy;

(d) Collateral outpatient therapy;

(e) Therapeutic rehabilitation services;

(f) Psychological testing;

(g) Screening;

(h) An assessment;

(i) Crisis intervention;

(j) Service planning;

(k) A screening, brief intervention, and referral to treatment;

(l) Mobile crisis services;

(m) Assertive community treatment;

(n) Intensive outpatient program services;

(o) Residential crisis stabilization services;

(p) Partial hospitalization;

(q) Residential services for substance use disorders;

(r) Day treatment;

(s) Comprehensive community support services;

(t) Peer support services; or

(u) Parent or family peer support services.

(2)

(a) To be covered under this administrative regulation, a service listed in subsection (1) of this section shall be:

Provided by a community mental health center that is:

a. Currently enrolled in the Medicaid Program in accordance with 907 KAR 1:672; and

b. Except as established in paragraph (b) of this subsection, currently participating in the Medicaid Program in accordance with 907 KAR 1:671;

Provided in accordance with:

a. This administrative regulation; and

b. The Community Mental Health Center Behavioral Health Services Manual; and

Medically necessary.

(b) 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 5. Electronic Documents and Signatures.

(1) The creation, transmission, storage, or other use of electronic signatures and documents shall comply with requirements established in KRS 369.101 to 369.120 and all applicable state and federal laws and regulations.

(2) A CMHC choosing to utilize electronic signatures shall:

(a) Develop and implement a written security policy which shall:

Be complied with by each of the center's employees, officers, agents, and contractors; and
Stipulate which individuals have access to which electronic signatures and password authorization;

(b) Ensure that electronic signatures are created, transmitted, and stored securely;

Be completed and executed by each individual utilizing an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

(d) Provide the department, immediately upon request, with:

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 6. No Duplication of Service.

(1) The department shall not reimburse for a service provided to a recipient by more than one (1) provider, of any program in which the service is covered, on the same day of service.

(2) For example, if a recipient is receiving a behavioral health service from an independently enrolled behavioral health service provider, the department shall not reimburse for the same service provided to the same recipient by a community mental health center on the same day of service.

Section 7. Records Maintenance, Protection, and Security.

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

(2) A health record shall:

(a) Include:

An identification and intake record including:

a. Name;

b. Social Security number;

c. Date of intake;

d. Home (legal) address;

e. Health insurance information;

f. Referral source and address of referral source;

g. Primary care physician and address;

h. The reason the individual is seeking help including the presenting problem and diagnosis;

i. Any physical health diagnosis, if a physical health diagnosis exists for the individual, and information, if available, regarding:

(i) Where the individual is receiving treatment for the physical health diagnosis; and

(ii) The physical health provider; and

j. The name of the informant and any other information deemed necessary by the independent provider to comply with the requirements of:

(i) This administrative regulation;

(ii) The provider's licensure board;

(iii) State law; or

(iv) Federal law;

Documentation of the:

a. Screening if the community mental health center performed the screening;

b. Assessment; and

c. Disposition;

A complete history including mental status and previous treatment;
An identification sheet;
A consent for treatment sheet that is accurately signed and dated; and
The individual's stated purpose for seeking services;

(b) Be:

Maintained in an organized central file;
Furnished to the:

a. Cabinet for Health and Family Services upon request; or

b. Managed care organization in which the recipient is enrolled if the recipient is enrolled with a managed care organization;

Made available for inspection and copying by:

a. Cabinet for Health and Family Services' personnel; or

b. Personnel of the managed care organization in which the recipient is enrolled if applicable;

Readily accessible; and
Adequate for the purpose of establishing the current treatment modality and progress of the recipient; and

(c) Document each service provided to the recipient including the date of the service and the signature of the individual who provided the service.

(3) The individual who provided the service shall date and sign the health record within forty-eight (48) hours of the date that the individual provided the service.

(4)

(a) Except as established in paragraph (b) or (c) of this subsection, a provider shall maintain a health record regarding a recipient for at least six (6) years from the date of the service or until any audit dispute or issue is resolved beyond six (6) years.

(b) After a recipient's death or discharge from services, a provider shall maintain the recipient's health record for the longest of the following periods:

Six (6) years unless the recipient is a minor; or
If the recipient is a minor, three (3) years after the recipient reaches the age of majority under state law.

(c) If the Secretary of the United States Department of Health and Human Services 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.

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

(6) Documentation of a screening shall include:

(a) Information relative to the individual's stated request for services; and

(b) Other stated personal or health concerns if other concerns are stated.

(7)

(a) A provider's notes regarding a recipient shall:

Be made within forty-eight (48) hours of each service visit; and
Describe the:

a. Recipient's symptoms or behavior, reaction to treatment, and attitude;

b. Therapist's intervention;

c. Changes in the plan of care if changes are made; and

d. Need for continued treatment if continued treatment is needed.

(b)

Any edit to notes shall:

a. Clearly display the changes; and

b. Be initialed and dated.

Notes shall not be erased or illegibly marked out.

(c) If services are provided by a practitioner working under supervision, there shall be a monthly supervisory note recorded by the supervising professional reflecting consultations with the practitioner working under supervision concerning the:

Case; and
Supervising professional's evaluation of the services being provided to the recipient.

(8) Immediately following a screening of a recipient, the provider shall perform a disposition related to:

(a) A provisional diagnosis;

(b) A referral for further consultation and disposition, if applicable; or

(c)

If applicable, termination of services and referral to an outside source for further services; or
If applicable, termination of services without a referral to further services.

(9) Any change to a recipient's plan of care shall be documented, signed, and dated by the:

(a) Rendering practitioner; and

(b) Recipient or recipient's representative.

(10)

(a) Notes regarding services to a recipient shall:

Be organized in chronological order;
Be dated;
Be titled to indicate the service rendered;
State a starting and ending time for the service; and
Be recorded and signed by the rendering provider and include the professional title (for example, licensed clinical social worker) of the provider.

(b) Initials, typed signatures, or stamped signatures shall not be accepted.

(c) Telephone contacts, family collateral contacts not covered under this administrative regulation, or other nonreimbursable contacts shall:

Be recorded in the notes; and
Not be reimbursable.

(11)

(a) A termination summary shall:

Be required, upon termination of services, for each recipient who received at least three (3) service visits; and
Contain a summary of the significant findings and events during the course of treatment including the:

a. Final assessment regarding the progress of the individual toward reaching goals and objectives established in the individual's plan of care;

b. Final diagnosis of clinical impression; and

Individual's condition upon termination and disposition.

(b) A health record relating to an individual who was terminated from receiving services shall be fully completed within ten (10) days following termination.

(12) If an individual's case is reopened within ninety (90) days of terminating services for the same or related issue, a reference to the prior case history with a note regarding the interval period shall be acceptable.

(13)

(a) Except as established in paragraph (b) of this subsection, if a recipient is transferred or referred to a health care facility or other provider for care or treatment, the transferring CMHC shall, if the recipient gives the CMHC written consent to do so, within ten (10) business days of the transfer or referral, transfer the recipient's health records in a manner that complies with the health records' use and disclosure requirements as established in or required by:

a. The Health Insurance Portability and Accountability Act;

b. 42 U.S.C. 1320d-2 to 1320d-8; and

c. 45 C.F.R. Parts 160 and 164; or

a. 42 U.S.C. 290ee-3; and

b. 42 C.F.R. Part 2.

(b) If a recipient is transferred or referred to a residential crisis stabilization unit, a psychiatric hospital, a psychiatric distinct part unit in an acute care hospital, or an acute care hospital for care or treatment, the transferring CMHC shall, within forty-eight (48) hours of the transfer or referral, transfer the recipient's health records in a manner that complies with the health records' use and disclosure requirements as established in or required by:

a. The Health Insurance Portability and Accountability Act;

b. 42 U.S.C. 1320d-2 to 1320d-8; and

c. 45 C.F.R. Parts 160 and 164; or

a. 42 U.S.C. 290ee-3; and

b. 42 C.F.R Part 2.

(14)

(a) If a CMHC's Medicaid Program participation status changes as a result of voluntarily terminating from the Medicaid Program, involuntarily terminating from the Medicaid Program, a licensure suspension, or death of a provider, the health records regarding recipients to whom the CMHC has provided services shall:

Remain the property of the CMHC; and
Be subject to the retention requirements established in subsection (4) of this section.

(b) A CMHC shall have a written plan addressing how to maintain health records in the event of a provider's death.

Section 8. Medicaid Program Participation Compliance.

(1) A CMHC shall comply with:

(a) 907 KAR 1:671;

(b) 907 KAR 1:672; and

(2)

(a) If a CMHC receives any duplicate payment or overpayment from the department or managed care organization, regardless of reason, the CMHC shall return the payment to the department or managed care organization that issued the duplicate payment or overpayment.

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

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

Section 9. Third Party Liability. A provider shall comply with KRS 205.622.

Section 10. Auditing Authority. The department or the managed care organization in which an enrollee is enrolled shall have the authority to audit any:

(1) Claim;

(2) Health record; or

(3) Documentation associated with the claim or health record.

Section 11. Federal Approval and Federal Financial Participation.

(1) The department's coverage of services pursuant to this administrative regulation shall be contingent upon:

(a) Receipt of federal financial participation for the coverage; and

(b) Centers for Medicare and Medicaid Services' approval for the coverage.

(2) The coverage of services provided by a licensed clinical alcohol and drug counselor or licensed clinical alcohol and drug counselor associate shall be contingent and effective upon approval by the Centers for Medicare and Medicaid Services.

Section 12. Appeal Rights.

(1) An appeal of an adverse action by the department regarding 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.

Section 13. Incorporation by Reference.

(1) The "Community Mental Health Center Behavioral Health Services Manual", May 2015, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Medicaid Services, 275 East Main Street, 6th Floor West, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m. or online at the department's Web site at http://www.chfs.ky.gov/dms/incorporated.htm.

History

RELATES TO: KRS 194A.060, 205.520(3), 205.8451(9), 422.317, 434.840-434.860, 42 C.F.R. 415.208, 431.52, 431 Subpart F
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 210.450, 42 U.S.C. 1396a-d
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has 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 community mental health center (CMHC) behavioral health services provided to Medicaid recipients.
History: 904 KAR 1:044: 3 Ky.R. 641; eff. 2-2-1977; 5 Ky.R. 64; eff. 9-6-1978; 7 Ky.R. 861; eff. 6-3-1981; 8 Ky.R. 205; eff. 11-5-1981; Recodified as 907 KAR 1:044, 5-2-1986; 15 Ky.R. 2461; eff. 8-5-1989; 18 Ky.R. 915; eff. 10-16-1991; 20 Ky.R. 663; eff. 10-21-1993; 32 Ky.R. 1801, 2039; 2276; eff. 7-7-2006; 34 Ky.R. 1825, 2313, 2404; eff. 6-6-2008; 40 Ky.R. 1955, 2487, 2718; eff. 7-7-2014; 41 Ky.R. 1910, 2261, 2553; eff. 7-6-2015; Cert. eff. 6-9-2022; 50 Ky.R. 1409, 1920, Amendment found deficient by ARRS, 10-15-2024, 51 Ky.R. 916; Amendment Withdrawn by Agency, 3-7-2025.

907 KAR 1:045 Reimbursement provisions and requirements regarding community mental health center services {#sec-907-kar-1-045 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:045}

Section 1. Definitions.

(1) "1915(c) home and community based waiver services provider" means a Kentucky Medicaid program established pursuant to, and in accordance with, 42 U.S.C. 1396n(c).

(2) "Allowable costs" means that portion of a facility's cost that may be allowed by the department for reimbursement purposes.

(3) "Community board for mental health or individuals with an intellectual disability" means a board established pursuant to KRS 210.380.

(4) "Community mental health center" or "CMHC" means a facility that meets the community mental health center requirements established in 902 KAR 20:091.

(5) "CPT code" means a code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(6) "Department" means the Department for Medicaid Services or its designee.

(7) "Enrollee" means a recipient who is enrolled with a managed care organization.

(8) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(9) "Federal indirect rate" means the rate approved by the United States Department for Health and Human Services (HHS) for grantee institutions to be used to calculate indirect costs as a percentage of direct costs.

(10) "Federal Register" means the official journal of the United States federal government that publishes government agency rules and public notices.

(11) "Healthcare Common Procedure Coding System code" means a billing code:

(a) Recognized by Medicare; and

(b) Monitored by the Centers for Medicare and Medicaid Services.

(12) "Interim reimbursement" means a reimbursement:

(a) In effect for a temporary period of time; and

(b) That does not represent final reimbursement for services provided during the period of time.

(13) "Kentucky-specific Medicare Physician Fee Schedule" means the list of current reimbursement rates for physician services established by the Centers for Medicare and Medicaid Services and available on the CMS Web site at www.cms.gov.

(14) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(15) "Medicaid allowable costs" means the costs:

(a) Associated with the Medicaid-covered services covered pursuant to 907 KAR 1:047 and 907 KAR 1:044:

Rendered to recipients who are not enrollees; and
Not rendered as a 1915(c) home and community based waiver services provider; and

(b) Determined to be allowable costs by the department.

(16) "Medical Group Management Association (MGMA) Physician Compensation and Production Survey Report" means a report developed and owned by the Medical Group Management Association that:

(a) Highlights the critical relationship between physician salaries and productivity;

(b) Is used to align physician salaries and benefits with provider production; and

Performance ratios illustrating the relationship between compensation and production; and
Comprehensive and summary data tables that cover many specialties.

(17) "Medically necessary" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(18) "Medicare Economic Index" means a measure of inflation:

(a) Associated with the costs of physicians' practices; and

(b) Published in the Federal Register.

(19) "Outreach services" means provider programs:

(a) Specifically designed to:

Engage recipients for the purposes of supporting Medicaid or Children's Health Insurance Program (CHIP) enrollment efforts;
Assist recipients with finding healthcare or coverage options; and
Promote preventive services for recipients; and

(b) That are directly assigned or allocated to a cost report line that is not cost settled by the department.

(20) "Payment plan request" means a request to pay an amount owed to the department over a period of time that is agreed to by the department.

(21) "Physician administered drug" or "PAD" means any rebateable covered outpatient drug that is:

(a) Provided or administered to a Medicaid recipient;

(b) Billed by a provider other than a pharmacy provider through the medical benefit, including providers who are physician offices or another outpatient clinical setting; and

(22) "Primary care services" means services covered as established in 907 KAR 1:047.

(23) "Provider" is defined by KRS 205.8451(7).

(24) "Rebateable" means a drug for which the drug manufacturer has entered into and has in effect a rebate agreement in accordance with 42 U.S.C. 1396r-8(a).

(25) "Recipient" is defined by KRS 205.8451(9).

(26) "State fiscal year" means the period beginning on July 1 of a calendar year and ending on June 30 of the following calendar year.

Section 2. General Reimbursement Provisions.

(1) The department shall reimburse a participating in-state community mental health center under this administrative regulation for services:

(a) If the services are:

Covered pursuant to:

a. 907 KAR 1:044; or

b. 907 KAR 1:047;

Not provided by the CMHC acting as a 1915(c) home and community based waiver services provider, as those services are reimbursed based on the home and community based waiver;
Provided to recipients who are not enrolled with a managed care organization; and
Medically necessary; and

(b) Based on the community mental health center's Medicaid allowable costs.

(2) The department's reimbursement shall include reimbursing:

(a) On an interim basis during the course of a cost report period; and

(b) A final reimbursement for the state fiscal year that results from a reconciliation of the interim reimbursement amount paid to the CMHC compared to the CMHC's Medicaid allowable cost by cost center for the state fiscal year.

Section 3. Interim Reimbursement for Primary Care Services and PAD.

(1) The department's interim reimbursement to a CMHC for primary care services shall depend upon the type of primary care service.

(2)

(a) The department's interim reimbursement for services shall be the reimbursement established for the service on the current Kentucky-specific Medicare Physician Fee Schedule unless a reimbursement for the service does not exist on the current Kentucky-specific Medicare Physician Fee Schedule for the following:

Physician services;
Laboratory services;
Radiological services;
Occupational therapy;
Physical therapy; or
Speech-language pathology.

(b) If reimbursement for a given service listed in paragraph (a) of this subsection does not exist on the current Kentucky-specific Medicare Physician Fee Schedule, the department shall reimburse on an interim basis for the service as it reimburses for services pursuant to 907 KAR 3:010 or 907 KAR 8:045.

(3) The department's interim reimbursement for the cost of PAD in a CMHC shall be the reimbursement methodology established in 907 KAR 23:020.

Section 4. Interim Reimbursement for Behavioral Health Services.

(1)

(a) To establish interim rates for behavioral health services effective for dates of service through June 30, 2018, the department shall use the CMHC rates paid effective July 1, 2015.

(b) To establish interim rates for behavioral health services effective for dates of service July 1, 2018, and each subsequent July 1, the department shall use a CMHC's most recently submitted cost report that meets the requirements established in paragraph (c) of this subsection.

(2) The department shall:

(a) Review the cost report referenced in subsection (1)(b) of this section; and

(b) Establish interim rates for Medicaid-covered behavioral health services:

To be effective July 1, 2018;
Based on Medicaid allowable costs as determined by the department through its review;
Intended to result in a reimbursement for Medicaid-covered behavioral health services:

a. Provided to recipients who are not enrollees; and

b. That equals the department's estimate of behavioral health services' costs for the CMHC for the period; and

That shall be updated effective July 1, 2019, and each July 1 thereafter, based on the most recently received cost report referenced in subsection (1)(b) of this section.

(3) Interim rates for behavioral health services effective July 1 each calendar year shall have been trended and indexed from the midpoint of the cost report period to the midpoint of the rate year using the Medicare Economic Index.

(4) To illustrate the timeline referenced in subsection (2)(b)1. of this section, a cost report submitted by a CMHC to the department on December 31, 2017, shall be used by the department to establish behavioral health services' interim rates effective July 1, 2018.

(5)

(a) A behavioral health services interim rate shall not be subject to retroactive adjustment except as specified in this subsection.

(b) The department shall adjust a behavioral health services interim rate during the state fiscal year if the rate that was established appears likely to result in a substantial cost settlement that could be avoided by adjusting the rate.

(c)

If the cost report from a CMHC has not been audited or desk-reviewed by the department prior to establishing interim rates for the next state fiscal year, the department shall use the cost report under the condition that interim rates shall be subject to adjustment as established in subparagraph 2. of this paragraph.
A behavioral health services interim rate based on a cost report that has not been audited or desk-reviewed shall be subject to adjustment when the audit or desk review is completed.
An unaudited cost report shall be subject to an adjustment to the audited amount after the auditing has occurred.

(d) Upon receipt of the cost report filed December 31, 2017, the department shall review the cost report to determine if the interim rates established in accordance with subsection (1)(a) of this section need to be revised to more closely reflect the costs of services for the interim period.

Section 5. Final Reimbursement Beginning with the State Fiscal Year that Begins July 1, 2018.

(1)

(a) For the state fiscal year spanning July 1, 2017, through June 30, 2018, and for subsequent state fiscal years, by December 31 following the end of the state fiscal year, a CMHC shall submit a cost report to the department:

In a format that has been approved by the Centers for Medicare and Medicaid Services;
That has been audited by an independent auditing entity; and
That states all of the:

a. CMHC's Medicaid allowable direct costs for:

(i) Medicaid-covered services rendered to eligible recipients during the cost report period; and

(ii) Medicaid-covered PAD rendered to eligible recipients during the cost report period;

b. CMHC's costs associated with:

(i) Medicaid-covered services rendered to enrollees during the cost report period; and

(ii) Medicaid-covered PAD rendered to enrollees during the cost report period;

c. Costs of the community board for mental health or individuals with an intellectual disability under which the CMHC operates for the cost report period; and

d. CMHC's costs associated with services rendered to individuals:

(i) That were reimbursed by an insurer or party other than the department or a managed care organization; and

(ii) During the cost report period.

(b) To illustrate the timeline referenced in paragraph (a) of this subsection, an independently audited cost report stating costs associated with services and PAD provided during the state fiscal year spanning July 1, 2017, through June 30, 2018, shall be submitted to the department by December 31, 2018.

(2) By October 1 following the department's receipt of a CMHC's completed cost report submitted to the department by the prior December 31, the department shall:

(a) Review the cost report referenced in subsection (1)(a) of this section; and

(b) Compare the Medicaid allowable costs to the department's interim reimbursement for Medicaid-covered services and PAD rendered during the same state fiscal year.

(3)

(a) After the department compares a CMHC's interim reimbursement with the CMHC's Medicaid allowable costs for the period, if the department determines that the interim reimbursement:

Was less than the CMHC's Medicaid allowable costs for the period, the department shall send a payment to the CMHC equal to the difference between the CMHC's total interim reimbursement and the CMHC's Medicaid allowable costs; or
Exceeded the CMHC's Medicaid allowable costs for the period, the:

a. Department shall send written notification to the CMHC requesting the amount of the overpayment; and

b. CMHC shall, within thirty (30) calendar days of receiving the department's written notice, send a:

(i) Payment to the department equal to the excessive amount; or

(ii) Payment plan request to the department.

(b) A CMHC shall not implement a payment plan unless the department has approved the payment plan in writing.

(c) If a CMHC fails to comply with the requirements established in paragraph (a)2 of this subsection, the department shall:

Suspend payment to the CMHC; and
Recoup the amount owed by the CMHC to the department.

Section 6. Final Reimbursement for the Cost Report Period Spanning November 1, 2016, through June 30, 2017. The provisions established in Section 5 of this administrative regulation shall apply to final reimbursement for the period beginning November 1, 2016, through June 30, 2017, except that the cost report period shall begin November 1, 2016, and end June 30, 2017.

Section 7. New Services.

(1) Reimbursement regarding a projection of the cost of a new Medicaid-covered service or expansion shall be made on a prospective basis in that the costs of the new service or expansion shall be considered when actually incurred as an allowable cost.

(2)

(a) A CMHC may request an adjustment to an interim rate after reaching the mid-year point of the new service or expansion.

(b) An adjustment shall be based on actual costs incurred.

Section 8. Auditing and Accounting Records.

(1)

(a) The department shall perform a desk review of each cost report to determine if an audit is necessary and, if so, the scope of the audit.

(b) If the department determines that an audit is not necessary, the cost report shall be settled without an audit.

(c) A desk review or audit shall be used to verify costs to be used in setting the interim behavioral health services rate, to adjust interim behavioral health services rates that have been set based on unaudited data, or for final settlement to cost.

(2)

(a) A CMHC shall maintain and make available any records and data necessary to justify and document:

Costs to the CMHC;
Services provided by the CMHC;
The cost of PAD provided, if any, by the CMHC;
Cost allocations utilized including overhead statistics and supportive documentation;
Any amount reported on the cost report; and
Chart of accounts.

(b) The department shall have unlimited on-site access to all of a CMHC's fiscal and service records for the purpose of:

Accounting;
Auditing;
Medical review;
Utilization control; or
Program planning.

(3) A CMHC shall maintain an acceptable accounting system to account for the:

(a) Cost of total services provided;

(b) Charges for total services rendered; and

(4) An overpayment discovered as a result of an audit or desk review shall be settled through recoupment or withholding.

Section 9. Allowable and Nonallowable Costs.

(1) The following shall be allowable costs:

(a) Services' or drugs' costs associated with the services or drugs;

(b) Depreciation as follows:

A straight line method shall be used;
The edition of the American Hospital Association's useful life guidelines currently used by the Centers for Medicare and Medicaid Services' Medicare program shall be used;
The maximum amount for expensing an item in a single cost report shall be $5,000; and
Only the depreciation of assets actually being used to provide services shall be recognized;

(d) Costs incurred for research purposes, which shall be allowable to the extent that the research costs are related to usual patient services and are not covered by separate research funding;

(e) Costs of motor vehicles used by management personnel up to $25,000;

(f) Costs for training or educational purposes for licensed professional staff outside of Kentucky excluding transportation costs to travel to the training or education;

(g) Costs associated with any necessary legal expense incurred in the normal administration of the CMHC;

(h) The cost of administrative staff salaries, which shall be limited to the average salary for the given position as established for the geographic area on www.salary.com;

(i) The cost of practitioner salaries, which shall be limited to the median salary for the southern region as reported in the Medical Group Management Association (MGMA) Physician Compensation and Production Survey Report, if available.

A per visit amount using MGMA median visits shall be utilized.
The most recently available MGMA publication that relates to the cost report period shall be used;

(j) Indirect costs, which shall be:

Calculated utilizing the approved federal indirect rate, if the provider has an approved federal indirect rate.

a. A provider shall include in indirect costs on line 1 of the cost report the same category of costs identified as indirect within the approved federal indirect rate supporting documentation.

b. Direct costs shall be those costs identified as direct within the approved federal indirect rate.

c. The federal indirect rate shall be applied to the same category of expenses identified as direct during the federal rate determination; or

If the provider does not have a federal indirect rate, those costs of an organization that are not specifically identified with a particular project, service, program, or activity but nevertheless are necessary to the general operation of the organization and the conduct of the activities it performs. The actual allowable cost of indirect services as reported on the cost report shall be allocated to direct cost centers based on accumulated cost if a federal indirect rate is not available; and

(k) Services provided in leased or donated space outside the walls of the facility.

(2) To be allowable, costs shall comply with reasonable cost principles established in 42 C.F.R. 413.

(3) The allowable cost for a service or good purchased by a facility from a related organization shall be in accordance with 42 C.F.R. 413.17.

(4)

(a) The following shall not be allowable costs:

Bad debt;
Charity;
Courtesy allowances;
Political contributions;
Costs associated with an unsuccessful lawsuit against the department or the Cabinet for Health and Family Services;
Costs associated with any legal expense incurred related to a judgment granted as a result of an unlawful activity or pursuit;
The value of services provided by nonpaid workers;
Travel or related costs or expenses associated with nonlicensed staff attending:

a. A convention;

b. A meeting;

c. An assembly; or

d. A conference;

Costs related to lobbying;
Costs related to outreach services; or
Costs incurred for transporting recipients to services.

(b) Outreach services' costs shall either be directly assigned or allocated to a cost report line that is not cost-settled by the department.

(5) A discount or other allowance received regarding the purchase of a good or service shall be deducted from the cost of the good or service for cost reporting purposes, including in-kind donations.

(6)

(a) Maximum allowable costs shall be the maximum amount that may be allowed as reasonable cost for the provision of a service or drug.

(b) To be considered allowable, a cost shall:

Be necessary and appropriate for providing services; and
Not exceed usual and customary charges.

(7) For direct and indirect personnel costs, 100 percent time reporting methods shall be utilized to group and report expenses to each cost category. Detailed documentation shall be available upon request.

Section 10. Units of Service.

(1) Interim payments for behavioral health services, physician services, physical therapy services, occupational therapy services, speech-language pathology services, laboratory services, or radiological services shall be based on units of service.

(2) A unit for a behavioral health service, a physician service, a physical therapy service, a speech-language pathology service, an occupational therapy service, a laboratory service, or a radiological service shall be the amount indicated for the corresponding:

(a) CPT code; or

(b) Healthcare Common Procedure Coding System code.

Section 11. Reimbursement of Out-of-state Providers. Reimbursement to a participating out-of-state community mental health center shall be the lesser of the:

(1) Charges for the service;

(2) Facility's rate as set by the state Medicaid Program in the other state; or

(3) The state-wide average of payments for in-state community mental health centers.

Section 12. Appeal Rights. A community mental health center may appeal a Department for Medicaid Services decision as to the application of this administrative regulation in accordance with 907 KAR 1:671.

Section 13. Not Applicable to Managed Care Organization. A managed care organization shall not be required to reimburse for community mental health center services in accordance with this administrative regulation.

Section 14. Federal Approval and Federal Financial Participation. The department's reimbursement for 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.

History

RELATES TO: KRS 205.520(3), 205.8451, 210.370-210.485, 42 C.F.R. 400.203, 413, 438.2, 447.325, 42 U.S.C. 1396n(c), 1396r-8(a)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.6313, 42 U.S.C. 1396a
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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. KRS 205.6313(4) requires the cabinet to promulgate administrative regulations to implement Medicaid reimbursement for primary care practitioners at community mental health centers. This administrative regulation establishes the reimbursement provisions and requirements regarding community mental health center services provided to Medicaid recipients who are not enrolled with a managed care organization.
History: 2 Ky.R. 112; eff. 9-10-1975; 5 Ky.R. 276; eff. 12-6-1978; 7 Ky.R. 861; eff. 6-3-1981; 8 Ky.R. 534; 882; eff. 2-1-1982; 9 Ky.R. 268; eff. 9-8-1982; 10 Ky.R. 322; eff. 3-26-1984; 11 Ky.R. 290; eff. 9-11-1984; 1093; 1271; eff. 3-12-1985; 12 Ky.R. 378; eff. 10-8-1985; Recodified from 904 KAR 1:045, 5-2-1986; 13 Ky.R. 387; eff. 9-4-1986; 14 Ky.R. 312; eff. 9-10-1987; 15 Ky.R. 1980; eff. 3-15-1989; 16 Ky.R. 9-20-1989; 17 Ky.R. 574; eff. 10-14-1990; 18 Ky.R. 916; eff. 10-16-1991; 19 Ky.R. 323; eff. 8-28-1992; 20 Ky.R. 664; eff. 10-21-1993; Am 1364; eff. 2-16-2004; 31 Ky.R. 461; 717; eff. 11-5-2004; 32 Ky.R. 405; 685; eff. 10-14-2005; TAm 7-16-2013; 40 Ky.R. 1959; 2492; 2721; eff. 7-7-2014; 43 Ky.R. 1071,1594, 1768; eff. 5-5-2017; 44 Ky.R. 382, 1033; eff. 1-5-2018; Cert eff. 10-21-2024.

907 KAR 1:047 Community mental health center primary care services {#sec-907-kar-1-047 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:047}

Section 1. Definitions.

(1) "CLIA" means the Clinical Laboratory Improvement Amendments, 42 C.F.R. Part 493.

(2) "Community mental health center" or "CMHC" means a facility that meets the community mental health center requirements established in 902 KAR 20:091.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Enrollee" means a recipient who is enrolled with a managed care organization.

(5) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(6) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(7) "Medically necessary" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(8) "Occupational therapist" is defined by KRS 319A.010(3).

(9) "Occupational therapy assistant" is defined by KRS 319A.010(4).

(10) "Physical therapist" is defined by KRS 327.010(2).

(11) "Physical therapist assistant" means a skilled health care worker who:

(a) Is certified by the Kentucky Board of Physical Therapy; and

(b) Performs physical therapy and related duties as assigned by the supervising physical therapist.

(12) "Physician administered drug" or "PAD" means any rebateable covered outpatient drug that is:

(a) Provided or administered to a Medicaid recipient;

(b) Billed by a provider other than a pharmacy provider through the medical benefit, including providers who are physician offices or another outpatient clinical setting; and

(13) "Rebateable" means a drug for which the drug manufacturer has entered into and has in effect a rebate agreement in accordance with 42 U.S.C. 1396r-8(a).

(14) "Recipient" is defined by KRS 205.8451(9).

(15) "Speech-language pathologist" is defined by KRS 334A.020(3).

(16) "Speech-language pathology clinical fellow" means an individual who is recognized by the American Speech-Language-Hearing Association as a speech-language pathology clinical fellow.

Section 2. General Requirements.

(1) For the department to reimburse for a primary care service provided by a community mental health center under this administrative regulation, the:

(a) CMHC shall be currently:

Enrolled in the Medicaid Program in accordance with 907 KAR 1:672;
Participating in the Medicaid Program in accordance with 907 KAR 1:671; and
Licensed in accordance with 902 KAR 20:091; and

(b) Service shall:

Be medically necessary;
Meet the coverage and related requirements established in this administrative regulation; and
Be provided by an individual who is currently licensed or certified in accordance with the respective Kentucky licensure or certification Kentucky Revised Statute or administrative regulation to provide the given service.

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

(3) A CMHC shall:

(a) Agree to provide services in compliance with federal and state laws regardless of age, sex, race, creed, religion, national origin, handicap, or disability; and

(b) Comply with the Americans with Disabilities Act (42 U.S.C. 12101 et seq.) and any amendments to the act.

Section 3. Covered Services and PAD.

(1)

(a) Primary care services provided by a community mental health center and covered under this administrative regulation shall include:

Physician services;
Laboratory services if the CMHC is certified under CLIA to perform laboratory services;
Radiological services;
Occupational therapy;
Physical therapy; and
Speech-language pathology services.

(b) PAD that is administered in a CMHC shall be covered in accordance with 907 KAR 23:010.

(2)

(a) The coverage of:

Physician services provided by a community mental health center shall be in accordance with the requirements established in 907 KAR 3:005;
Laboratory services provided by a community mental health center shall be in accordance with the requirements established in 907 KAR 3:005; and
Radiological services provided by a community mental health center shall be in accordance with the requirements established in 907 KAR 3:005.

(b) Occupational therapy provided by a community mental health center shall be covered under this administrative regulation if provided by an:

Occupational therapist; or
Occupational therapy assistant who renders services under supervision in accordance with 201 KAR 28:130.

(c) Physical therapy provided by a community mental health center shall be covered under this administrative regulation if provided by a:

Physical therapist; or
Physical therapist assistant who renders services under supervision in accordance with 201 KAR 22:053.

(d) Speech-language pathology services provided by a community mental health center shall be covered under this administrative regulation if provided by a:

Speech-language pathologist; or
Speech-language pathology clinical fellow who renders services under the supervision of a speech-language pathologist.

Section 4. Service Limitations.

(1) The limitations established in 907 KAR 3:005 regarding:

(a) Physician services shall apply to physician services provided by a community mental health center;

(b) Laboratory services shall apply to laboratory services provided by a community mental health center; and

(2)

(a) Except as established in paragraph (b) of this subsection, the limitations and coverage requirements established in 907 KAR 8:040 regarding occupational therapy, physical therapy, and speech-language pathology services shall apply to occupational therapy, physical therapy, and speech-language pathology services provided by a community mental health center.

(b) The provision in 907 KAR 8:040 establishing that the eligible providers of occupational therapy, physical therapy, or speech-language pathology services shall be any of the following shall not apply to a community mental health center:

An adult day health care program;
A multi-therapy agency;
A comprehensive outpatient rehabilitation facility;
A mobile health service;
A special health clinic; or
A rehabilitation agency.

Section 5. Prior Authorization Requirements.

(1)

(a) Except for the prior authorization requirements regarding occupational therapy, physical therapy, and speech-language pathology services and except as established in paragraph (b) of this subsection, the prior authorization requirements established in 907 KAR 3:005 for physician services, laboratory services, and radiological services shall apply to physician services, laboratory services, and radiological services provided by a CMHC under this administrative regulation.

(b) The prior authorization requirements established in 907 KAR 3:005 shall not apply to services provided to recipients who are enrolled with a managed care organization.

(2) The prior authorization requirements established in 907 KAR 8:040 regarding occupational therapy, physical therapy, and speech-language pathology services shall apply to occupational therapy, physical therapy, and speech-language pathology services provided by a community mental health center.

Section 6. Duplication of Service Prohibited.

(1) The department shall not reimburse for a primary care service provided to a recipient by more than one (1) provider of any program in which primary care services are covered during the same time period.

(2) For example, if a recipient is receiving a primary care service from a rural health clinic enrolled with the Medicaid Program, the department shall not reimburse for the same primary care service provided to the same recipient during the same time period by a community mental health center.

Section 7. Records Maintenance, Protection, and Security.

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

(2) 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.

(3) The individual who provided the service shall date and sign the health record within forty-eight (48) hours of the date that the individual provided the service.

(4)

(a) Except as established in paragraph (b) of this subsection, a provider shall maintain a health record regarding a recipient for at least five (5) years from the date of the service or until any audit dispute or issue is resolved beyond five (5) years.

(b) If the secretary of the United States Department of Health and Human Services 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.

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

Section 8. Medicaid Program Participation Compliance.

(1) A provider shall comply with:

(a) 907 KAR 1:671;

(b) 907 KAR 1:672; and

(2)

(a) If a provider receives any duplicate payment or overpayment from the department or a managed care organization, regardless of reason, the provider shall return the payment to the department or managed care organization in accordance with 907 KAR 1:671.

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

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

Section 9. Third Party Liability. A provider shall comply with KRS 205.622.

Section 10. 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:

Be adhered to by each of the provider's employees, officers, agents, or contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 11. Auditing Authority. The department or managed care organization in which an enrollee is enrolled shall have the authority to audit any:

(1) Claim;

(2) Health record; or

(3) Documentation associated with any claim or health record.

Section 12. 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 13. 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

RELATES TO: KRS 205.520, 205.622, 205.8451(9), 210.370-210.485, 319A.010(3), (4), 327.010(2), 334A.020(3), 369.101 – 369.120, 42 C.F.R. 400.203, 431.17, 438.2, 493, 45 C.F.R. 164, 42 U.S.C.12101 et seq., 1396r-8(a)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.6313(4)
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. KRS 205.6313(4) requires the cabinet to promulgate administrative regulations to implement Medicaid reimbursement for primary care practitioners at community mental health centers. This administrative regulation establishes the Medicaid Program's coverage provisions and requirements regarding primary care services provided in a community mental health center to Medicaid recipients.
History: 43 Ky.R. 1130, 1600, 1772; eff. 5-5-2017; 44 Ky.R. 387, 1038; eff. 1-5-2018; Cert eff. 10-21-2024.

907 KAR 1:048 Family planning services {#sec-907-kar-1-048 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:048}

Section 1. Services Available. Services shall be provided through routine physician visits or through family planning clinics and shall include counseling services, medical services and supplies.

Section 2. Limitations. Family planning services shall be made available to all persons of child bearing age, including minors who can be considered to be sexually active, who desire the services and supplies but there shall be freedom from coercion and freedom of choice of method.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 441.20, 42 U.S.C. 1396a, b, d, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family has responsibility to administer the program of Medical Assistance. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the provisions relating to the provision of family planning services for which payment shall be made by the Medicaid Program in behalf of both the categorically needy and the medically needy.
History: 2 Ky.R. 112; eff. 9-10-1975; Recodified from 904 KAR 1:048, 5-2-1986; 18 Ky.R. 1626; eff. 1-10-1992; Crt eff. 12-6-2019.

907 KAR 1:049 Payments for family planning services {#sec-907-kar-1-049 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:049}

Section 1. Family Planning Clinics. The cabinet shall reimburse family planning clinics or agencies for covered services on the basis of a flat fee schedule.

Section 2. Amount of Payment. Reimbursement in accordance with the flat fee schedule shall be at the following rates:

(1) For services provided by a physician: initial clinic visit, fifty (50) dollars; annual clinic visit, sixty (60) dollars; follow-up visit with pelvic examination, twenty-five (25) dollars; and follow-up visit without pelvic examination, twenty (20) dollars.

(2) For services provided by an advanced registered nurse practitioner with appropriate training as specified by the cabinet: initial clinic visit, thirty-seven (37) dollars and seventy-five (75) cents; annual clinic visit, forty-five (45) dollars; follow-up visit with pelvic examination, eighteen (18) dollars and seventy-five (75) cents; and follow-up visit without pelvic examination, fifteen (15) dollars.

(3) The fee for the counseling visit shall be thirteen (13) dollars; for a counseling visit with three (3) months contraceptive supply the fee shall be seventeen (17) dollars; for a counseling visit with six (6) months contraceptive supply the fee shall be twenty (20) dollars; for a supply only visit, the fee shall be the actual acquisition cost of contraceptive supplies dispensed. The supply only visit fee shall not be paid as an addition to a fee for another type of visit, since the fee for other types of visits includes an amount for contraceptives.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194.050, 42 C.F.R. 447 Subpart B, 42 U.S.C. 1396a, b, d
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Human Resources has responsibility to administer the program of Medical Assistance. KRS 205.520 empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the method for determining amounts payable by the cabinet for family planning services.
History: 2 Ky.R. 112; eff. 9-10-1975; 8 Ky.R. 329; eff. 12-2-1981; Recodified from 904 KAR 1:054, 5-2-1986; 13 Ky.R. 993; eff. 12-2-1986; 18 Ky.R. 1627; eff. 1-10-1992; Crt eff. 12-6-2019.

907 KAR 1:054 Coverage provisions and requirements regarding federally-qualified health center services, federally-qualified health center look-alike services, and primary care center services {#sec-907-kar-1-054 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:054}

Section 1. Definitions.

(1) "Advanced practice registered nurse" is defined by KRS 314.011(7).

(2) "Certified social worker" means an individual who meets the requirements established in KRS 335.080.

(3) "Clinical pharmacist" means a licensed pharmacist whose scope of service includes taking medication histories, monitoring drug use, contributing to drug therapy, drug selection, patient counseling, administering drug programs, or surveillance for adverse reactions and drug interactions.

(4) "Community support associate" means an individual who:

(a) Meets the community support associate requirements established in 908 KAR 2:250; and

(b) Has been certified by the Department for Behavioral Health, Intellectual and Developmental Disabilities as a community support associate.

(5) "Department" means the Department for Medicaid Services or its designee.

(6) "Emergency condition" means a condition or situation requiring an emergency service pursuant to 42 C.F.R. 447.53.

(7) "Enrollee" means a recipient who is enrolled with a managed care organization.

(8) "Face-to-face" means occurring:

(a) In person; or

(b) Via a real-time, electronic communication that involves two (2) way interactive video and audio communication.

(9) "Federal financial participation" is defined in 42 C.F.R. 400.203.

(10) "Federally-qualified health center" or "FQHC" is defined by 42 U.S.C. 1396d(l)(2)(B).

(11) "Federally-qualified health center look-alike" or "FQHC look-alike" means an entity that is currently approved by the United States Department of Health and Human Services, Health Resources and Services Administration, and the Centers for Medicare and Medicaid Services to be a federally-qualified health center look-alike.

(12) "Licensed assistant behavior analyst" is defined by KRS 319C.010(7).

(13) "Licensed behavior analyst" is defined by KRS 319C.010(6).

(14) "Licensed clinical social worker" means an individual who meets the licensed clinical social worker requirements established in KRS 335.100.

(15) "Licensed marriage and family therapist" is defined by KRS 335.300(2).

(16) "Licensed professional art therapist" is defined by KRS 309.130(2).

(17) "Licensed professional art therapist associate" is defined by KRS 309.130(3).

(18) "Licensed professional clinical counselor" is defined by KRS 335.500(3).

(19) "Licensed professional counselor associate" is defined by KRS 335.500(3).

(20) "Licensed psychological associate" means:

(a) An individual who:

Currently possesses a licensed psychological associate license in accordance with KRS 319.010(6); and
Meets the licensed psychological associate requirements established in 201 KAR Chapter 26; or

(b) A certified psychologist.

(21) "Licensed psychological practitioner" means;

(a) An individual who meets the requirements established in KRS 319.053; or

(b) A certified psychologist with autonomous functioning.

(22) "Licensed psychologist" means an individual who:

(a) Currently possesses a licensed psychologist license in accordance with KRS 319.010(6); and

(b) Meets the licensed psychologist requirements established in 201 KAR Chapter 26.

(23) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(24) "Marriage and family therapy associate" is defined by KRS 335.300(3).

(25) "Medically necessary" means that a covered benefit or service is necessary in accordance with 907 KAR 3:130.

(26) "Nurse-midwife" is defined by 42 C.F.R. 405.2401(b).

(27) "Nutritionist" is defined by KRS 310.005(4).

(28) "Physician" is defined by KRS 205.510(11) and 42 C.F.R. 405.2401(b).

(29) "Physician assistant" is defined by KRS 311.840(3) and 42 C.F.R. 405.2401(b).

(30) "Primary care center" or "PCC" means an entity meeting the primary care center requirements established in 902 KAR 20:058.

(31) "Recipient" is defined by KRS 205.8451(9).

(32) "State plan" is defined by 42 C.F.R. 400.203.

Section 2. Primary Care Center Covered Services Other Than Behavioral Health Services.

(1) The department shall cover, and a primary care center shall provide, the following services:

(a) Medical diagnostic or treatment services provided by a physician, advanced practice registered nurse, or a physician assistant if licensed under state authority;

(b) Treatment of injuries or minor trauma;

(d) Preventive health services including well-baby care, well-child care, immunization, or other preventive care;

(e) Referral services designed to ensure the referral to and acceptance by an appropriate medical resource if services necessary to the health of the patient are not provided directly by the center; and

(f) Health education, including distribution of written material, provided by appropriate personnel to local school systems, civic organizations, or other concerned local groups.

(2) The department shall cover the following services, and a primary care center shall provide at least two (2) of the following services:

(a) Dental services;

(b) Optometric services;

(d) Home health services listed and as limited in 907 KAR 1:030;

(e) Social services counseling;

(f) Pharmacy services which shall meet the coverage criteria established in 907 KAR 23:010;

(g) Nutritional services provided by a nutritionist, including individual counseling relating to nutritional problems or nutritional education or group nutritional services; or

(h) Nurse midwifery services which shall be provided:

As a program including prenatal services to expectant mothers, delivery or postnatal services; and
By a nurse midwife.

(3) The department shall cover the following services, and a primary care center may provide the following services:

(a) Excluding institutional care, other state plan services;

(b) Holding or observation accommodations;

(d) Clinical pharmacist services; or

(e) Services or supplies furnished as incidental to services provided by a physician, physician assistant, advanced practice registered nurse, or nurse midwife if the service or supply meets the criteria established in 42 C.F.R. 405.2413 or 42 C.F.R. 405.2415.

Section 3. Federally-Qualified Health Center and Federally-Qualified Health Center Look-Alike Covered Services Other Than Behavioral Health Services. A federally-qualified health center or a federally-qualified health center look-alike shall provide:

(1) Federally-qualified health center services pursuant to 42 U.S.C. 1395x(aa)(3);

(2) Federally-qualified health center services pursuant to 42 U.S.C. 1396d(l)(2)(A);

(3) Other Medicaid-covered ambulatory outpatient services established in the state plan; or

(4) Any combination of the services described in subsections (1), (2), and (3) of this section.

Section 4. Primary Care Center, Federally-Qualified Health Center, and Federally-Qualified Health Center Look-Alike Covered Behavioral Health Services.

(1) Except as specified in the requirements stated for a given service, the services covered may be provided for:

(a) A mental health disorder;

(b) A substance use disorder; or

(2) The department shall cover, and a primary care center, federally-qualified health center, or federally-qualified health center look-alike may provide, the following services:

(a) Behavioral health services provided by a licensed psychologist, licensed clinical social worker, or advanced practice registered nurse within the provider's legally authorized scope of service; or

(b) Services or supplies incidental to a licensed psychologist's or licensed clinical social worker's behavioral health services if the service or supply meets the criteria established in 42 C.F.R. 405.2452.

(3) In addition to the services referenced in subsection (2) of this section, the following behavioral health services provided by a primary care center, federally-qualified health center, or federally-qualified health center look-alike shall be covered under this administrative regulation in accordance with the corresponding following requirements:

(a) A screening provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist; or
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;

(b) An assessment provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist;
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;
A licensed behavior analyst; or
A licensed assistant behavior analyst working under the supervision of a licensed behavior analyst;

A licensed psychologist;
A licensed psychological practitioner; or
A licensed psychological associate working under the supervision of a licensed psychologist;

(d) Crisis intervention provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist; or
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;

(e) Service planning provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist;
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;
A licensed behavior analyst; or
A licensed assistant behavior analyst working under the supervision of a licensed behavior analyst;

(f) Individual outpatient therapy provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist;
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;
A licensed behavior analyst; or
A licensed assistant behavior analyst working under the supervision of a licensed behavior analyst;

(g) Family outpatient therapy provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist; or
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;

(h) Group outpatient therapy provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist;
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;
A licensed behavior analyst; or
A licensed assistant behavior analyst working under the supervision of a licensed behavior analyst;

(i) Collateral outpatient therapy provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist;
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;
A licensed behavior analyst; or
A licensed assistant behavior analyst working under the supervision of a licensed behavior analyst;

(j) A screening, brief intervention, and referral to treatment for a substance use disorder provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist; or
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;

(k) Day treatment provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist; or
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;

(l) Comprehensive community support services provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist;
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist;
A licensed behavior analyst;
A licensed assistant behavior analyst working under the supervision of a licensed behavior analyst; or
A community support associate;

(m) Intensive outpatient program provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist; or
A licensed professional art therapist associate; or

(n) Therapeutic rehabilitation program services provided by:

A licensed psychologist;
A licensed professional clinical counselor;
A licensed clinical social worker;
A licensed marriage and family therapist;
A physician;
A psychiatrist;
An advanced practice registered nurse;
A licensed psychological practitioner;
A licensed psychological associate working under the supervision of a licensed psychologist;
A licensed professional counselor associate working under the supervision of a licensed professional clinical counselor;
A certified social worker working under the supervision of a licensed clinical social worker;
A marriage and family therapy associate working under the supervision of a licensed marriage and family therapist;
A physician assistant working under the supervision of a physician;
A licensed professional art therapist; or
A licensed professional art therapist associate working under the supervision of a licensed professional art therapist.

(4)

(a) A screening shall:

Be the determination of the likelihood that an individual has a mental health disorder, substance use disorder, or co-occurring disorders;
Not establish the presence or specific type of disorder; and
Establish the need for an in-depth assessment.

(b) An assessment shall:

Include gathering information and engaging in a process with the individual that enables the provider to:

a. Establish the presence or absence of a mental health disorder, substance use disorder, or co-occurring disorders;

b. Determine the individual's readiness for change;

c. Identify the individual's strengths or problem areas that may affect the treatment and recovery processes; and

d. Engage the individual in developing an appropriate treatment relationship;

Establish or rule out the existence of a clinical disorder or service need;
Include working with the individual to develop a treatment and service plan; and
Not include a psychological or psychiatric evaluation or assessment.

A psychodiagnostic assessment of personality, psychopathology, emotionality, or intellectual disabilities; and
Interpretation and a written report of testing results.

(d) Crisis intervention:

Shall be a therapeutic intervention for the purpose of immediately reducing or eliminating the risk of physical or emotional harm to:

a. The recipient; or

b. Another individual;

Shall consist of clinical intervention and support services necessary to provide integrated crisis response, crisis stabilization interventions, or crisis prevention activities for an individual with a behavioral health disorder;
Shall be provided:

a. On-site at an FQHC, FQHC look-alike, or PCC;

b. As an immediate relief to the presenting problem or threat; and

c. In a face-to-face, one-on-one encounter between the provider and the recipient;

May include verbal de-escalation, risk assessment, or cognitive therapy; and
Shall be followed by a referral to noncrisis services if applicable.

(e)

Service planning shall consist of assisting a recipient in creating an individualized plan for services needed for maximum reduction of an intellectual disability and to restore the individual to his or her best possible functional level.
A service plan:

a. Shall be directed by the recipient; and

b. May include:

(i) A mental health advance directive being filed with a local hospital;

(ii) A crisis plan; or

(iii) A relapse prevention strategy or plan.

(f) Individual outpatient therapy shall:

Be provided to promote the:

a. Health and wellbeing of the individual; or

b. Recovery from a substance use disorder, mental health disorder, or co-occurring related disorders;

Consist of:

a. A face-to-face, one-on-one encounter between the provider and recipient; and

b. A behavioral health therapeutic intervention provided in accordance with the recipient's identified treatment plan;

Be aimed at:

a. Reducing adverse symptoms;

b. Reducing or eliminating the presenting problem of the recipient; and

c. Improving functionality; and

Not exceed three (3) hours per day.

(g)

Family outpatient therapy shall consist of a face-to-face behavioral health therapeutic intervention provided:

a. Through scheduled therapeutic visits between the therapist and the recipient and at least one (1) member of the recipient's family; and

b. To address issues interfering with the relational functioning of the family and to improve interpersonal relationships within the recipient's home environment.

A family outpatient therapy session shall be billed as one (1) service regardless of the number of individuals (including multiple members from one (1) family) who participate in the session.

(h)

Group outpatient therapy shall:

a. Be provided to promote the:

(i) Health and wellbeing of the individual; or

(ii) Recovery from a substance use disorder, mental health disorder, or co-occurring related disorders;

b. Consist of a face-to-face behavioral health therapeutic intervention provided in accordance with the recipient's identified treatment plan;

c. Be provided to a recipient in a group setting:

(i) Of nonrelated individuals; and

(ii) Not to exceed twelve (12) individuals in size;

d. Center on goals including building and maintaining healthy relationships, personal goals setting, and the exercise of personal judgment;

e. Not include physical exercise, a recreational activity, an educational activity, or a social activity; and

f. Not exceed three (3) hours per day.

The group shall have a:

a. Deliberate focus; and

b. Defined course of treatment.

The subject of a group receiving group outpatient therapy shall be related to each recipient participating in the group.
The provider shall keep individual notes regarding each recipient within the group and within each recipient's health record.

(i)

Collateral outpatient therapy shall:

a. Consist of a face-to-face behavioral health consultation:

(i) With a parent or caregiver of a recipient, household member of a recipient, legal representative of a recipient, school personnel, treating professional, or other person with custodial control or supervision of the recipient; and

(ii) That is provided in accordance with the recipient's treatment plan; and

b. Not be reimbursable if the therapy is for a recipient who is at least twenty-one (21) years of age.

Consent to discuss a recipient's treatment with any person other than a parent or legal guardian shall be signed and filed in the recipient's health record.

(j) Screening, brief intervention, and referral to treatment for a substance use disorder shall:

Be an evidence-based early intervention approach for an individual with non-dependent substance use to provide an effective strategy for intervention prior to the need for more extensive or specialized treatment; and
Consist of:

a. Using a standardized screening tool to assess an individual for risky substance use behavior;

b. Engaging a recipient, who demonstrates risky substance use behavior, in a short conversation and providing feedback and advice; and

c. Referring a recipient to:

(i) Therapy; or

(ii) Other additional services to address substance use if the recipient is determined to need other additional services.

(k)

Day treatment shall be a nonresidential, intensive treatment program designed for a child under the age of twenty-one (21) years who has:

a. An emotional disability or neurobiological or substance use disorder; and

b. A high risk of out-of-home placement due to a behavioral health issue.

Day treatment services shall:

a. Consist of an organized, behavioral health program of treatment and rehabilitative services (substance use disorder, mental health disorder, or co-occurring mental health and substance use disorders);

b. Have unified policies and procedures that:

(i) Address the program philosophy, admission and discharge criteria, admission and discharge process, staff training, and integrated case planning; and

(ii) Have been approved by the recipient's local education authority and the day treatment provider;

c. Include:

(i) Individual outpatient therapy, family outpatient therapy, or group outpatient therapy;

(ii) Behavior management and social skill training;

(iii) Independent living skills that correlate to the age and development stage of the recipient; or

(iv) Services designed to explore and link with community resources before discharge and to assist the recipient and family with transition to community services after discharge; and

d. Be provided:

(i) In collaboration with the education services of the local education authority including those provided through 20 U.S.C. 1400 et seq. (Individuals with Disabilities Education Act) or 29 U.S.C. 701 et seq. (Section 504 of the Rehabilitation Act);

(ii) On school days and during scheduled breaks;

(iii) In coordination with the recipient's individualized educational plan if the recipient has an individualized educational plan;

(iv) Under the supervision of a licensed or certified behavioral health practitioner or a behavioral health practitioner working under clinical supervision; and

(v) With a linkage agreement with the local education authority that specifies the responsibilities of the local education authority and the day treatment provider.

To provide day treatment services, an FQHC, an FQHC look-alike, or a PCC shall have:

a. The capacity to employ staff authorized to provide day treatment services in accordance with subsection (3)(k) of this section and to coordinate the provision of services among team members;

b. The capacity to provide the full range of services as stated in subparagraphs 1 and 2 of this paragraph;

c. Demonstrated experience in serving individuals with behavioral health disorders;

d. The administrative capacity to ensure quality of services;

e. A financial management system that provides documentation of services and costs;

f. The capacity to document and maintain individual case records; and

g. Knowledge of substance use disorders.

Day treatment shall not include a therapeutic clinical service that is included in a child's individualized education plan.

(l)

Comprehensive community support services shall:

a. Be activities necessary to allow an individual to live with maximum independence in community-integrated housing;

b. Be intended to ensure successful community living through the utilization of skills training, cueing, or supervision as identified in the recipient's treatment plan;

c. Include:

(i) Reminding a recipient to take medications and monitoring symptoms and side effects of medications; or

(ii) Teaching parenting skills, teaching community resource access and utilization, teaching emotional regulation skills, teaching crisis coping skills, teaching how to shop, teaching about transportation, teaching financial management, or developing and enhancing interpersonal skills; and

d. Meet the requirements for comprehensive community support services established in 908 KAR 2:250.

To provide comprehensive community support services, an FQHC, an FQHC look-alike, or a PCC shall have:

a. The capacity to employ staff authorized to provide comprehensive community support services in accordance with subsection (3)(l) of this section and to coordinate the provision of services among team members;

b. The capacity to provide the full range of comprehensive community support services as stated in subparagraph 1 of this paragraph;

c. Demonstrated experience in serving individuals with behavioral health disorders;

d. The administrative capacity to ensure quality of services;

e. A financial management system that provides documentation of services and costs; and

f. The capacity to document and maintain individual case records.

(m)

Intensive outpatient program services shall:

a. Be an alternative to or transition from inpatient hospitalization or partial hospitalization for a mental health disorder, substance use disorder, or co-occurring disorders;

b. Offer a multi-modal, multi-disciplinary structured outpatient treatment program that is significantly more intensive than individual outpatient therapy, group outpatient therapy, or family outpatient therapy;

c. Be provided at least three (3) hours per day at least three (3) days per week; and

d. Include:

(i) Individual outpatient therapy, group outpatient therapy, or family outpatient therapy unless contraindicated;

(ii) Crisis intervention; or

(iii) Psycho-education.

During psycho-education, the recipient or family member shall be:

a. Provided with knowledge regarding the recipient's diagnosis, the causes of the condition, and the reasons why a particular treatment might be effective for reducing symptoms; and

b. Taught how to cope with the recipient's diagnosis or condition in a successful manner.

An intensive outpatient program treatment plan shall:

a. Be individualized; and

b. Focus on stabilization and transition to a lesser level of care.

To provide intensive outpatient program services, an FQHC, an FQHC look-alike, or a PCC shall have:

a. Access to a board-certified or board-eligible psychiatrist for consultation;

b. Access to a psychiatrist, other physician, or advanced practice registered nurse for medication prescribing and monitoring;

c. Adequate staffing to ensure a minimum recipient-to-staff ratio of ten (10) to one (1);

d. The capacity to provide services utilizing a recognized intervention protocol based on nationally accepted treatment principles;

e. The capacity to employ staff authorized to provide intensive outpatient program services in accordance with subsection (3)(m) of this section and to coordinate the provision of services among team members;

f. The capacity to provide the full range of intensive outpatient program services as stated in this paragraph;

g. Demonstrated experience in serving individuals with behavioral health disorders;

h. The administrative capacity to ensure quality of services;

i. A financial management system that provides documentation of services and costs; and

j. The capacity to document and maintain individual case records.

(n)

Therapeutic rehabilitation program services shall:

a. Occur at the provider's site or in the community;

b. Be provided to an adult with a severe mental illness or to a child (under the age of twenty-one (21) years) who has a serious emotional disability;

c. Be designed to maximize the reduction of an intellectual disability and the restoration of the individual's functional level to the individual's best possible functional level; and

d. Not be a residential program.

A recipient in a therapeutic rehabilitation program shall establish the recipient's own rehabilitation goals within the person-centered service plan.
A therapeutic rehabilitation program shall:

a. Be delivered using a variety of psychiatric rehabilitation techniques;

b. Focus on:

(i) Improving daily living skills;

(ii) Self-monitoring of symptoms and side effects;

(iii) Emotional regulation skills;

(iv) Crisis coping skill; and

(v) Interpersonal skills; and

c. Be delivered individually or in a group.

To provide therapeutic rehabilitation program services, an FQHC, an FQHC look-alike, or a PCC shall:

a. Have the capacity to employ staff authorized to provide therapeutic rehabilitation program services in accordance with subsection (3)(n) of this section and to coordinate the provision of services among team members;

b. Have the capacity to provide the full range of therapeutic rehabilitation program services as stated in this paragraph;

c. Have demonstrated experience in serving individuals with mental health disorders;

d. Have the administrative capacity to ensure quality of services;

e. Have a financial management system that provides documentation of services and costs; and

f. Have the capacity to document and maintain individual case records.

(5)

(a) The requirements established in 908 KAR 1:370 shall apply to any provider of a service to a recipient for a substance use disorder or co-occurring mental health and substance use disorders.

(b) The detoxification program requirements established in 908 KAR 1:370 shall apply to a provider of a detoxification service.

(6) The extent and type of assessment performed shall depend upon the problem of the individual seeking or being referred for services.

(7) A diagnosis or clinical impression shall be made using terminology established in the most current edition of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders.

(8)

(a) Direct contact between a provider or practitioner and a recipient shall be required for each service except for a collateral service for a child under the age of twenty-one (21) years if the collateral service is in the child's plan of care.

(b) A service that does not meet the requirement in paragraph (a) of this subsection shall not be covered.

(9) A billable unit of service shall be actual time spent delivering a service in a face-to-face encounter.

(10) A service shall be:

(a) Stated in the recipient's treatment plan;

(b) Provided in accordance with the recipient's treatment plan;

(d) Made available on a nonscheduled basis if necessary during a crisis or time of increased stress for the recipient.

(11) The following services or activities shall not be covered under this administrative regulation:

(a) A behavioral health service provided to:

A resident of:

a. A nursing facility; or

b. An intermediate care facility for individuals with an intellectual disability;

An inmate of a federal, local, or state:

a. Jail;

b. Detention center; or

c. Prison; or

An individual with an intellectual disability without documentation of an additional psychiatric diagnosis;

(b) Psychiatric or psychological testing for another agency, including a court or school, that does not result in the individual receiving psychiatric intervention or behavioral health therapy from the independent provider;

(d) Collateral outpatient therapy for an individual aged twenty-one (21) years or older;

(e) A telephone call, an email, a text message, or other electronic contact that does not meet the requirements stated in the definition of face-to-face;

(f) Travel time;

(g) A field trip;

(h) A recreational activity;

(i) A social activity; or

(j) A physical exercise activity group.

(12) A third party contract shall not be covered under this administrative regulation.

Section 5. Drugs for Specified Immunizations. The Cabinet for Health and Family Services shall provide free, upon request, drugs necessary for the following immunizations:

(1) Diphtheria and tetanus toxoids and pertussis vaccine (DPT);

(2) Measles, mumps, and rubella virus vaccine live (MMR);

(3) Poliovirus vaccine, live, oral, any type (OPV); or

(4) Hemophilus B conjugate vaccine (HBCV).

Section 6. Coverage Limits.

(1)

(a) Except as established in subsection (2) of this section, pharmacy service coverage shall be limited to drugs covered pursuant to 907 KAR 23:010.

(b) A drug or biological not covered through the department's pharmacy program shall be covered if necessary for treatment of an emergency condition.

(2) Laboratory service coverage shall be limited to:

(a) Services provided directly by a PCC, an FQHC, or an FQHC look-alike; or

(b) If purchased, other laboratory services covered pursuant to 907 KAR 1:028.

(3) Dental service coverage shall be limited to dental service coverage pursuant to 907 KAR 1:026.

(4) Vision service coverage shall be limited to vision service coverage pursuant to 907 KAR 1:038.

(5) Audiology service coverage shall be limited to hearing service coverage pursuant to 907 KAR 1:038.

(6) An abortion or sterilization service shall be:

(a) Allowed in accordance with:

42 C.F.R. 441, Subpart E or Subpart F; and
KRS 205.010(3), 205.510(5), and 212.275(3); and

(b) Covered within the scope and limitations of federal law, federal regulations, and state law.

(7) Durable medical good and prosthetic coverage shall be limited to durable medical good or prosthetic coverage pursuant to 907 KAR 1:479 or 907 KAR 1:030.

(8) A holding or observation accommodation shall be covered:

(a) For no more than twenty-four (24) hours; and

(b) If:

The recipient's medical record:

a. Documents the appropriateness of the holding or observation accommodation; and

b. Contains a statement of conditions observed and treatment rendered during the holding time;

A physician:

a. Determines that the holding or observation accommodation is necessary; and

b. Is on call at all times when a recipient is held beyond the regularly scheduled hours of the center; and

A licensed nurse is on duty during the time the recipient patient remains beyond regularly-scheduled hours.

(9) A radiology procedure shall be covered if provided by a licensed practitioner of the healing arts or by an individual holding a valid certificate to operate sources of radiation.

Section 7. Noncovered Services.

(1) The following services shall not be covered as PCC, FQHC, or FQHC look-alike services:

(a) Services provided in a hospital as defined in 42 U.S.C. 1395x(e);

(b) Institutional services;

(d) Services which are not provided in accordance with restrictions imposed by law or administrative regulation.

(2) A third party contract shall not be covered under this administrative regulation.

Section 8. Medical Necessity Requirement. To be covered pursuant to this administrative regulation, a service shall be:

(1) Medically necessary for the recipient; and

(2) Provided to a recipient.

Section 9. No Duplication of Service.

(1) The department shall not reimburse for a service provided to a recipient by more than one (1) provider of any program in which the service is covered during the same time period.

(2) For example, if a recipient is receiving a service from an independent mental health service provider, the department shall not reimburse for the same service provided to the same recipient during the same time period by a primary care center.

Section 10. Protection, Security and Records Maintenance Requirements for All Services.

(1)

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

(b)

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

(2)

(3)

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

(b) All information contained in a health record shall:

Be treated as confidential;
Not be disclosed to an unauthorized individual; and
If requested, be disclosed to an authorized representative of:

a. The department; or

b. Federal government.

(c)

Upon request, a provider shall provide to an authorized representative of the department or federal government information requested to substantiate:

a. Staff notes detailing a service that was rendered;

b. The professional who rendered a service; and

c. The type of service rendered and any other requested information necessary to determine, on an individual basis, whether the service is reimbursable by the department.

Failure to provide information referenced in subparagraph 1 of this paragraph shall result in denial of payment for any service associated with the requested information.

Section 11. Documentation and Records Maintenance Requirements for Behavioral Health Services.

(1) The requirements in this section shall apply to health records associated with behavioral health services.

(2) A health record shall:

(a) Include:

An identification and intake record including:

a. Name;

b. Social Security number;

c. Date of intake;

d. Home (legal) address;

e. Health insurance or Medicaid information;

f. Referral source and address of referral source;

g. Primary care physician and address;

h. The reason the individual is seeking help including the presenting problem and diagnosis;

i. Any physical health diagnosis, if a physical health diagnosis exists for the individual, and information regarding:

(i) Where the individual is receiving treatment for the physical health diagnosis; and

(ii) The physical health provider; and

j. The name of the informant and any other information deemed necessary by the independent provider to comply with the requirements of:

(i) This administrative regulation;

(ii) The provider's licensure board;

(iii) State law; or

(iv) Federal law;

Documentation of the:

a. Screening;

b. Assessment;

c. Disposition; and

d. Six (6) month review of a recipient's treatment plan each time a six (6) month review occurs;

A complete history including mental status and previous treatment;
An identification sheet;
A consent for treatment sheet that is accurately signed and dated; and
The individual's stated purpose for seeking services; and

(b) Be:

Maintained in an organized central file;
Furnished to the Cabinet for Health and Family Services upon request;
Made available for inspection and copying by Cabinet for Health and Family Services' personnel;
Readily accessible; and
Adequate for the purpose of establishing the current treatment modality and progress of the recipient.

(3) Documentation of a screening shall include:

(a) Information relative to the individual's stated request for services; and

(b) Other stated personal or health concerns if other concerns are stated.

(4)

(a) A provider's notes regarding a recipient shall:

Be made within forty-eight (48) hours of each service visit;
Describe the:

a. Recipient's symptoms or behavior, reaction to treatment, and attitude;

b. Therapist's intervention;

c. Changes in the treatment plan if changes are made; and

d. Need for continued treatment if continued treatment is needed.

(b)

Any edit to notes shall:

a. Clearly display the changes; and

b. Be initialed and dated.

Notes shall not be erased or illegibly marked out.

(c)

Notes recorded by a practitioner working under supervision shall be co-signed and dated by the supervising professional providing the service.
If services are provided by a practitioner working under supervision, there shall be a monthly supervisory note recorded by the supervising professional reflecting consultations with the practitioner working under supervision concerning the:

a. Case; and

b. Supervising professional's evaluation of the services being provided to the recipient.

(5) Immediately following a screening of a recipient, the provider shall perform a disposition related to:

(a) An appropriate diagnosis;

(b) A referral for further consultation and disposition, if applicable; and

(c)

Termination of services and referral to an outside source for further services; or
Termination of services without a referral to further services.

(6)

(a) A recipient's treatment plan shall be reviewed at least once every six (6) months.

(b) Any change to a recipient's treatment plan shall be documented, signed, and dated by the rendering provider.

(7)

(a) Notes regarding services to a recipient shall:

Be organized in chronological order;
Be dated;
Be titled to indicate the service rendered;
State a starting and ending time for the service; and
Be recorded and signed by the rendering provider and include the professional title (for example, licensed clinical social worker) of the provider.

(b) Initials, typed signatures, or stamped signatures shall not be accepted.

(c) Telephone contacts, family collateral contacts not covered under this administrative regulation, or other nonreimbursable contacts shall:

Be recorded in the notes; and
Not be reimbursable.

(8) A termination summary shall:

(a) Be required, upon termination of services, for each recipient who received at least three (3) service visits; and

(b) Contain a summary of the significant findings and events during the course of treatment including the:

Final assessment regarding the progress of the individual toward reaching goals and objectives established in the individual's treatment plan;
Final diagnosis of clinical impression; and
Individual's condition upon termination and disposition.

(c) A health record relating to an individual who terminated from receiving services shall be fully completed within ten (10) days following termination.

(9) If an individual's case is reopened within ninety (90) days of terminating services for the same or related issue, a reference to the prior case history with a note regarding the interval period shall be acceptable.

(10) If a recipient is transferred or referred to a health care facility or other provider for care or treatment, the transferring provider shall, if the recipient gives the provider written consent to do so, forward a copy or summary of the recipient's health record to the health care facility or other provider who is receiving the recipient.

(11)

(a) If a provider's Medicaid Program participation status changes as a result of voluntarily terminating from the Medicaid Program, involuntarily terminating from the Medicaid Program, a licensure suspension, or death of the provider, the health records of the provider shall:

Remain the property of the provider; and
Be subject to the retention requirements established in Section 10(2) of this administrative regulation.

(b) A provider shall have a written plan addressing how to maintain health records in the event of the provider's death.

Section 12. Medicaid Program Participation Requirements.

(1)

(a) A participating FQHC, FQHC look-alike, or PCC shall be currently:

Enrolled in the Kentucky Medicaid Program in accordance with 907 KAR 1:672; and
Except as established in paragraph (c) of this subsection, participating in the Kentucky Medicaid Program in accordance with 907 KAR 1:671.

(b) A satellite facility of an FQHC, an FQHC look-alike, or a PCC shall:

Be currently listed on the parent facility's license in accordance with 902 KAR 20:058;
Comply with the requirements regarding extensions established in 902 KAR 20:058; and
Comply with 907 KAR 1:671.

(c) 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.

(2)

(a) To be initially enrolled with the department, an FQHC or FQHC look-alike shall:

Enroll in accordance with 907 KAR 1:672; and
Submit proof of its certification by the United States Department of Health and Human Services, Health Resources and Services Administration as an FQHC or FQHC look-alike.

(b) To remain enrolled and participating in the Kentucky Medicaid Program, an FQHC or FQHC look-alike shall:

Comply with the enrollment requirements established in 907 KAR 1:672;
Comply with the participation requirements established in 907 KAR 1:671; and
Annually submit proof of its certification by the United States Department of Health and Human Services, Health Resources and Services Administration as an FQHC or FQHC look-alike to the department.

(c) The requirements established in paragraphs (a) and (b) of this subsection shall apply to a satellite facility of an FQHC or FQHC look-alike.

(3) An FQHC, an FQHC look-alike, or a PCC that operates multiple satellite facilities shall:

(a) List each satellite facility on the parent facility's license in accordance with 902 KAR 20:058; and

(b) Consolidate claims and cost report data of its satellite facilities with the parent facility.

(4) An FQHC, an FQHC look-alike, or a PCC that has been terminated from federal participation shall be terminated from Kentucky Medicaid Program participation.

(5)

(a) A participating FQHC and its staff shall comply with all applicable federal laws and regulations, state laws and administrative regulations, and local laws and regulations regarding the administration and operation of an FQHC.

(b) A participating FQHC look-alike and its staff shall comply with all applicable federal laws and regulations, state laws and administrative regulations, and local laws and regulations regarding the administration and operation of an FQHC look-alike.

(c) A participating PCC and its staff shall comply with all applicable federal laws and regulations, state laws and administrative regulations, and local laws and regulations regarding the administration and operation of a PPC.

(6) An FQHC, an FQHC look-alike, or a PCC performing laboratory services shall meet the requirements established in 907 KAR 1:028 and 907 KAR 1:575.

(7)

(a) If an FQHC, an FQHC look-alike, or a PCC 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:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

(8) An FQHC, an FQHC look-alike, or a PCC shall:

(a) Agree to provide services in compliance with federal and state laws regardless of age, sex, race, creed, religion, national origin, handicap, or disability; and

(b) Comply with the Americans with Disabilities Act (42 U.S.C. 12101 et seq.) and any amendments to the act.

Section 13. Third Party Liability. A provider shall comply with KRS 205.622.

Section 14. 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:

Be adhered to by each of the provider's employees, officers, agents, or contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 15. Auditing Authority. The department shall have the authority to audit any claim, medical record, or documentation associated with any claim or medical record.

Section 16. 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 17. Appeals.

(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

RELATES TO: KRS 205.520, 310.005, 314.011, 335.100, 42 C.F.R. 400.203, 405.2401, 2412-2416, 2446, 2448, 2450, 2452, 441 Subpart E and F, 447.53, 42 U.S.C. 1395x(aa), 42 U.S.C. 1396d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 relating to primary care center, federally-qualified health center services, and federally-qualified health center look-alike.
History: 3 Ky.R. 206; eff. 9-1-1976; 5 Ky.R. 65; eff. 9-6-1978; 8 Ky.R. 30; eff. 8-5-1981; 10 Ky.R. 355; eff. 10-5-1983; Recodified from 904 KAR 1:054, 5-2-1986; 15 Ky.R. 1324; eff. 12-13-1988; 16 Ky.R. 85; 369; eff. 8-16-1989; 2599; eff. 6-27-1990; 34 Ky.R. 1827; 2113; eff. 4-4-2008; 40 Ky.R. 1962; 2495; 2722; eff. 7-7-2014; TAm eff. 10-6-2017; Cert eff. 12-6-2019; TAm eff. 3-20-2020.

907 KAR 1:055 Payments for primary care center, federally-qualified health center, federally-qualified health center look-alike, and rural health clinic services {#sec-907-kar-1-055 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:055}

Section 1. Definitions.

(1) "Advanced practice registered nurse" or "APRN" is defined by KRS 314.011(7).

(2) "Alternative payment methodology" or "APM" means a reimbursement that is an alternative to the standard reimbursement established in Section 3 of this administrative regulation in accordance with 42 U.S.C. 1396a(bb)(6).

(3) "Audit" means an examination that may be full or limited in scope of a federally-qualified health center's, federally-qualified health center look-alike's, rural health clinic's, or primary care center's:

(a) Financial transactions, accounts, and reports; and

(b) Compliance with applicable Medicare and Medicaid regulations, manual instructions, and directives.

(4) "Base year" means the first full fiscal year following the effective date of an FQHC's, FQHC look-alike's, or RHC's enrollment in the Medicaid program:

(a) In which the FQHC, FQHC look-alike, or RHC has reached its maximum hours per day, days per week, and weeks per year of intended operation as designated by the FQHC, FQHC look-alike, or RHC; and

(b) Not to exceed twenty-four (24) months past the effective date that the FQHC, FQHC look-alike, or RHC was enrolled with the department.

(5) "Certified psychologist with autonomous functioning" means an individual who is a certified psychologist with autonomous functioning pursuant to KRS 319.056.

(6) "Certified social worker" means an individual who meets the requirements established in KRS 335.080.

(7) "Change in scope of service" means a change in the type, intensity, duration, or amount of service.

(8) "Department" means the Department for Medicaid Services or its designated agent.

(9) "Enrollee" means a recipient who is enrolled with a managed care organization for the purpose of receiving Medicaid or KCHIP covered services.

(10) "Federal financial participation" is defined in 42 C.F.R. 400.203.

(11) "Federally-qualified health center" or "FQHC" is defined in 42 C.F.R. 405.2401.

(12) "Federally-qualified health center look-alike" or "FQHC look-alike" means an entity that is currently approved by the United States Department of Health and Human Services, Health Resources and Services Administration, and the Centers for Medicare and Medicaid Services to be a federally-qualified health center look-alike.

(13) "Final PPS rate" means an all-inclusive reimbursement amount per visit for an FQHC, FQHC look-alike, or RHC that:

(a) Is unique to the FQHC, FQHC look-alike, or RHC;

(b) Encompasses reimbursement for all services rendered during the visit;

Twelve (12) full months of Medicaid cost report data in which the FQHC, FQHC look-alike, or RHC has reached its maximum hours per day, days per week, and weeks per year of intended operation:

a. Submitted to the department by the FQHC, FQHC look-alike, or RHC; and

b. That has been reviewed and approved by the department; and

A paid claims listing corresponding to the twelve (12) full months of Medicaid cost report data in which the FQHC, FQHC look-alike, or RHC has reached its maximum hours per day, days per week, and weeks per year of intended operation; and

(d) Is established by the department.

(14) "Health care provider" means, for:

(a) A primary care center, an FQHC, an FQHC look-alike, or an RHC:

A licensed physician;
A licensed osteopathic physician;
A licensed podiatrist;
A licensed optometrist;
An advanced practice registered nurse;
A licensed dentist or oral surgeon;
A physician assistant;
A licensed clinical social worker;
A licensed psychologist;
A licensed marriage and family therapist;
A licensed professional clinical counselor;
A licensed psychological practitioner;
A certified psychologist with autonomous functioning; or
A practitioner who is:

a. Authorized pursuant to 907 KAR 1:054 to provide services in a PCC, an FQHC, an FQHC look-alike, or an RHC; and

b. Not listed in subparagraphs 1 through 13 of this paragraph; or

(b) An FQHC or FQHC look-alike, in addition to the professionals established in paragraph (a) of this subsection:

A resident in the presence of a teaching physician; or
A resident without the presence of a teaching physician if:

a. The services are furnished in an FQHC or FQHC look-alike in which the time spent by the resident in performing patient care is included in determining any intermediary payment to a hospital in accordance with 42 C.F.R. 413.75 through 413.83;

b. The resident furnishing the service without the presence of a teaching physician has completed more than six (6) months of an approved residency program;

c. The teaching physician:

(i) Does not direct the care of more than four (4) residents at any given time; and

(ii) Directs care from a proximity that constitutes immediate availability; and

d. The teaching physician:

(i) Has no other responsibilities at the time;

(ii) Has management responsibility for any recipient seen by the resident;

(iii) Ensures that the services furnished are appropriate;

(iv) Reviews with the resident, during or immediately after each visit by a recipient, the recipient's medical history, physical examination, diagnosis, and record of tests or therapies; and

(v) Documents the extent of the teaching physician's participation in the review and direction of the services furnished to each recipient.

(15) "Interim PPS rate" means an all-inclusive per visit reimbursement amount established by the department to pay an FQHC, FQHC look-alike, or an RHC for covered services prior to the establishment of a final PPS rate.

(16) "Licensed clinical social worker" means an individual who is currently licensed in accordance with KRS 335.100.

(17) "Licensed marriage and family therapist" is defined by KRS 335.300(2).

(18) "Licensed professional clinical counselor" is defined by KRS 335.500(3).

(19) "Licensed psychological practitioner" means an individual who meets the requirements established in KRS 319.053.

(20) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(21) "Medical Group Management Association Medical Directorship and On-Call Compensation Survey" means a report developed and owned by the Medical Group Management Association that:

(a) Highlights the critical relationship between medical director compensation and time spent in the medical director function;

(b) Aligns medical director compensation with time spent as medical director; and

(c) Contains tables illustrating the relationship of medical director salary to time spent in the medical director function.

(22) "Medical Group Management Association Physician Compensation and Production Survey Report" means a report developed and owned by the Medical Group Management Association that:

(a) Highlights the critical relationship between physician salaries and productivity;

(b) Is used to align physician salaries and benefits with provider production; and

Performance ratios illustrating the relationship between compensation and production; and
Comprehensive and summary data tables that cover many specialties.

(23) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(24) "Medicare Economic Index" or "MEI" means the economic index referred to in 42 U.S.C. 1395u(b)(3)(L).

(25) "Paid claims listing" means a report of claims paid by the department for a given FQHC, FQHC look-alike, or RHC.

(26) "Parent facility" means a federally-qualified health center, federally-qualified health center look-alike, or primary care center that is:

(a) Licensed and operating with a unique Kentucky Medicaid program provider number;

(b) Operating under the same management as a satellite facility; and

(27) "PCC" or "primary care center" means an entity that is currently licensed as a PCC in accordance with 902 KAR 20:058.

(28) "Percentage increase in the MEI" is defined in 42 U.S.C. 1395u(i)(3).

(29) "Physician assistant" is defined by KRS 311.840(3).

(30) "PPS" means prospective payment system.

(31) "Rate year" means, for the purposes of the MEI, the twelve (12) month period beginning July 1 of each year for which a rate is established for an FQHC, FQHC look-alike, or RHC under the prospective payment system.

(32) "Reasonable cost" means:

(a) A cost as determined by the:

Applicable Medicare cost reimbursement principles established in 42 C.F.R. Part 413, 45 C.F.R. 74.27, and 48 C.F.R. Part 31; and
Medical Group Management Association Physician Compensation and Production Survey Report for the applicable year and region; and

(b) Costs determined to be reasonable in accordance with a comprehensive desk review or audit.

(33) "Recipient" is defined by KRS 205.8451(9).

(34) "RHC" or "rural health clinic" is defined in 42 C.F.R. 405.2401(b).

(35) "Satellite facility" means a federally-qualified health center, federally-qualified health center look-alike, or primary care center that:

(a) Is at a different location than the parent facility; and

(b) Operates under the same management as the parent facility.

(36) "Telehealth" means two (2)-way, real time interactive communication between a patient and a physician or practitioner located at a distant site for the purpose of improving a patient's health through the use of interactive telecommunication equipment that includes, at a minimum, audio and video equipment.

(37) "Visit" means an encounter:

(a) Between a recipient or enrollee and a health care provider during which an FQHC, FQHC look-alike, or RHC service is delivered; and

(b) That occurs:

In person; or
Via telehealth if authorized by 907 KAR 3:170.

Section 2. Provider Participation Requirements.

(1)

(a) A participating FQHC, FQHC look-alike, RHC, or PCC shall be currently:

Enrolled in the Kentucky Medicaid Program in accordance with 907 KAR 1:672; and
Except as established in paragraph (c) of this subsection, participating in the Kentucky Medicaid program in accordance with 907 KAR 1:671.

(b) A satellite facility of an FQHC, an FQHC look-alike, or a PCC shall:

Be currently listed on the parent facility's license in accordance with 902 KAR 20:058;
Comply with the requirements regarding extensions established in 902 KAR 20:058; and
Comply with 907 KAR 1:671.

(c) In accordance with 907 KAR 17:015, Section 3(3), an FQHC, FQHC look-alike, RHC, or PCC that provides a service to an enrollee shall not be required to be currently participating in the fee-for-service Medicaid Program.

(2)

(a) To be initially enrolled with the department, an:

FQHC or FQHC look-alike shall:

a. Enroll in accordance with 907 KAR 1:672; and

b. Submit to the department proof of its FQHC or FQHC look-alike designation issued by the Centers for Medicare and Medicaid Services; or

RHC shall:

a. Enroll in accordance with 907 KAR 1:672; and

b. Submit to the department proof of its RHC license issued by the Cabinet for Health and Family Services Office of Inspector General.

(b) To remain enrolled and participating in the Kentucky Medicaid program, an:

FQHC or FQHC look-alike shall:

a. Comply with the enrollment requirements established in 907 KAR 1:672;

b. Comply with the participation requirements established in 907 KAR 1:671; and

c. Annually submit to the department proof of its FQHC or FQHC look-alike designation issued by the Centers for Medicare and Medicaid Services; or

RHC shall:

a. Comply with the enrollment requirements established in 907 KAR 1:672;

b. Comply with the participation requirements established in 907 KAR 1:671; and

c. Annually submit to the department proof of its RHC license issued by the Cabinet for Health and Family Services Office of Inspector General.

(c) The requirements established in paragraphs (a) and (b) of this subsection shall apply to a satellite facility of an FQHC or FQHC look-alike.

(3)

(a) An FQHC or FQHC look-alike that operates multiple satellite facilities shall:

List each satellite facility on the parent facility's license in accordance with 902 KAR 20:058; and
Consolidate claims and cost report data of its satellite facilities with the parent facility.

(b) A PCC that operates multiple satellite facilities shall list each satellite facility on the parent facility's license in accordance with 902 KAR 20:058.

(4) An FQHC, FQHC look-alike, RHC, or PCC that has been terminated from federal participation shall be terminated from Kentucky Medicaid program participation.

(5) A participating:

(a) FQHC and its staff shall comply with all applicable federal laws and regulations, state laws and administrative regulations, and local laws and regulations regarding the administration and operation of an FQHC;

(b) FQHC look-alike and its staff shall comply with all applicable federal laws and regulations, state laws and administrative regulations, and local laws and regulations regarding the administration and operation of an FQHC look-alike;

(c) RHC and its staff shall comply with all applicable federal laws and regulations, state laws and administrative regulations, and local laws and regulations regarding the administration and operation of an RHC; or

(d) PCC and its staff shall comply with all applicable federal laws and regulations, state laws and administrative regulations, and local laws and regulations regarding the administration and operation of a PCC.

(6) An FQHC, FQHC look-alike, RHC, or PCC performing laboratory services shall meet the requirements established in 907 KAR 1:028 and 907 KAR 1:575.

Section 3. Standard Reimbursement for an FQHC, FQHC look-alike, or RHC for a Visit by a Recipient Who is not an Enrollee and that is Covered by the Department.

(1) Except as established in Section 5 or Section 9 of this administrative regulation, for a visit by a recipient who is not an enrollee and that is covered by the department, the department shall reimburse:

(a) An FQHC, FQHC look-alike, or RHC a final PPS rate as required by 42 U.S.C. 1396a(bb); or

(b) A satellite facility of an FQHC or FQHC look-alike a final PPS rate as required by 42 U.S.C. 1396a(bb).

(2) Costs related to outpatient drugs or pharmacy services shall be excluded from the PPS rate referenced in subsection (1) of this section.

(3) The department shall calculate a final PPS rate for a new FQHC, FQHC look-alike, or RHC in accordance with Section 4 of this administrative regulation.

(4) The department shall adjust a final PPS rate:

(a) By the percentage increase in the MEI applicable to FQHC, FQHC look-alike, or RHC services on July 1 of each year;

(b) In accordance with Section 10 of this administrative regulation:

Upon request and documentation by an FQHC, FQHC look-alike, or RHC that there has been a change in scope of services; or
Upon review and determination by the department that there has been a change in scope of services; and

(5) A final PPS rate established in accordance with this administrative regulation shall not be subject to an end of the year cost settlement.

Section 4. Establishment of a Final PPS Rate for a New FQHC, FQHC look-alike, or RHC.

(1)

(a) The department shall establish a final PPS rate to reimburse a new FQHC, FQHC look-alike, or RHC 100 percent of its reasonable cost of providing Medicaid covered services utilizing information from the FQHC's, FQHC look-alike's, or RHC's base year upon completion of a comprehensive desk review or audit of an FQHC's, FQHC look-alike's, or RHC's Universal Cost Report.

(b) Except for a time frame in which the department reimburses an FQHC, FQHC look-alike, or RHC an interim PPS rate, the final PPS rate established for an FQHC, FQHC look-alike, or RHC shall:

Be prospective; and
Not settled to cost.

(2) The department shall determine the reasonable costs of an FQHC, FQHC look-alike, or RHC based on the:

(a) Universal Cost Report:

Submitted by the FQHC, FQHC look-alike, or RHC to the department and prepared by the FQHC, FQHC look-alike, or RHC in accordance with the Universal Cost Report Instructions; and
That contains twelve (12) full months of operating data for the designated base year;

(b) Department's review of the Universal Cost Report referenced in paragraph (a) of this subsection; and

(c) Costs and visits as adjusted by the department for full-time operation for a facility that is not in operation at least forty (40) hours per week.

(3)

(a) An FQHC, FQHC look-alike, or RHC shall submit a Universal Cost Report to the department by the end of the fifth month following the end of the FQHC's, FQHC look-alike's, or RHC's designated base year.

(b) The department shall:

Review the Universal Cost Report referenced in paragraph (a) of this subsection submitted by an FQHC, FQHC look-alike, or RHC within ninety (90) business days of receiving the Universal Cost Report; and
Notify the FQHC, FQHC look-alike, or RHC of the necessity of the FQHC, FQHC look-alike, or RHC to submit additional documentation if necessary.

(c)

If additional documentation is necessary to establish a final PPS rate, the FQHC, FQHC look-alike, or RHC shall:

a. Provide the additional documentation to the department within thirty (30) days of the notification of need for additional documentation; or

b. Request an extension beyond thirty (30) days to provide the additional documentation.

The department shall grant no more than one (1) extension.
An extension shall not exceed thirty (30) days.

(d)

If the department requests additional documentation from an FQHC, FQHC look-alike, or RHC but does not receive additional documentation or an extension request within thirty (30) days, the department shall reimburse the FQHC, FQHC look-alike, or RHC as it reimburses primary care centers that are not an FQHC, FQHC look-alike, or RHC pursuant to Section 7 of this administrative regulation until:

a. The additional documentation has been received by the department; and

b. The department has established a final PPS rate.

If an FQHC, FQHC look-alike, or RHC does not submit a Universal Cost Report to the department, the department shall reimburse the FQHC, FQHC look-alike, or RHC as it reimburses primary care centers that are not an FQHC, FQHC look-alike, or RHC pursuant to Section 7 of this administrative regulation until the FQHC, FQHC look-alike, or RHC submits a Universal Cost Report to the department.

(e) The department shall review an FQHC's, FQHC look-alike's, or RHC's paid claims Iisting for the period of time corresponding to the FQHC's, FQHC look-alike's, or RHC's cost report period of time referenced in paragraph (a) of this subsection.

(f)

If an FQHC, FQHC look-alike, or RHC has submitted all necessary information to the department, within forty-five (45) days of reviewing the FQHC's, FQHC look-alike's, or RHC's paid claims listing, the department shall:

a. Establish a final PPS rate for the FQHC, FQHC look-alike, or RHC; and

b. Notify the FQHC, FQHC look-alike, or RHC in writing of the FQHC's, FQHC look-alike's, or RHC's:

(i) Final PPS rate; and

(ii) Appeal rights regarding the PPS final rate.

To allow adequate time for claim adjudication, a paid claims listing shall not be requested until at least fourteen (14) months after an FQHC's, FQHC look-alike's, or RHC's fiscal year end.
If an FQHC, FQHC look-alike, or RHC has not submitted all necessary information to the department to establish a final PPS rate, the department shall continue to pay the FQHC, FQHC look-alike, or RHC as it pays primary care centers that are not an FQHC, FQHC look-alike, or RHC pursuant to Section 7 of this administrative regulation.

(4) Along with a Universal Cost Report, an FQHC, FQHC look-alike, or RHC shall submit to the department a written statement of the FQHC's, FQHC look-alike's, or RHC's maximum hours per day, days per week, and weeks per year of operation.

Section 5. Interim Reimbursement for a New FQHC, FQHC Look-alike, or RHC.

(1)

(a) Until a final PPS rate is established for an FQHC, FQHC look-alike, or RHC, the department shall reimburse the FQHC, FQHC look-alike, or RHC an interim PPS rate based on the average final PPS rates of entities with similar caseloads.

(b) To identify an entity with a similar caseload, the department shall consider:

Entity type (FQHC, FQHC look-alike, or RHC);
Managed care organization region;
Operating hours per day, days per week, and weeks per year; and
Specialty services, obstetrical services, or hospital-based entities, if applicable.

(2) If no entity with a similar caseload exists, the department shall establish an interim PPS rate using cost reporting methods.

(3) After the department establishes a final PPS rate for an FQHC, FQHC look-alike, or RHC, the department shall retroactively adjust reimbursement to the FQHC, FQHC look-alike, or RHC that was made on an interim basis to comport with the final PPS rate.

(4) An FQHC, FQHC look-alike, or RHC, upon enrolling with the Medicaid Program, shall submit in writing to the department a statement stating the FQHC's, FQHC look-alike's, or RHC's maximum hours per day, days per week, and weeks per year of operation.

Section 6. Reimbursement for Services or Drugs Provided to an Enrollee by a PCC That is Not an FQHC, FQHC Look-Alike, or RHC and that are Covered by an MCO.

(1) For a service or drug provided to an enrollee by a PCC that is not an FQHC, FQHC look-alike, or RHC and that is covered by an MCO, the PCC's reimbursement shall be the reimbursement established pursuant to an agreement between the PCC and the managed care organization with whom the enrollee is enrolled.

(2) The department shall not supplement the reimbursement referenced in subsection (1) of this section.

Section 7. Reimbursement for Services or Drugs Provided to a Recipient by a PCC That is Not an FQHC, FQHC Look-Alike, or RHC and that are Covered by the Department.

(1)

(a) For a service or drug provided to a recipient that is not an enrollee by a PCC that is not an FQHC, FQHC look-alike, or RHC, the department shall reimburse the rate or reimbursement established for the service or drug on the current Kentucky-specific Medicare Physician Fee Schedule.

(b)

Except as provided in subparagraph 3. of this paragraph, if no rate or reimbursement exists on the Kentucky-specific Medicare Physician's Fee schedule for a service or drug referenced in paragraph (a) of this subsection, the department shall reimburse for the service or drug the same amount that the department reimburses for the service or drug pursuant to the applicable administrative regulation established in Title 907 KAR.
For example, if no reimbursement exists on the current Kentucky-specific Medicare Physician Fee Schedule for a:

a. Dental service, the department shall reimburse for the dental service pursuant to 907 KAR 1:626; or

b. Given physician's service, the department shall reimburse for the service pursuant to 907 KAR 3:010.

The department shall reimburse a rate equal to seventy-five (75) percent of the rate it pays a physician pursuant to 907 KAR 3:010 for a physician's service that:

a. Does not exist on the current Kentucky-specific Medicare Physician Fee Schedule; and

b. Is provided by an APRN or physician assistant.

(2) The reimbursement referenced in subsection (1) of this section shall not exceed the federal upper payment limit determined in accordance with 42 C.F.R. 447.321.

(3)

(a) The coverage provisions and requirements established in 907 KAR 3:005 shall apply to a service or drug provided by a PCC.

(b) If a Medicare coverage provision or requirement exists regarding a given service or drug that contradicts a provision or requirement established in 907 KAR 3:005, the provision or requirement established in 907 KAR 3:005 shall supersede the Medicare provision or requirement.

Section 8. Supplemental Reimbursement for FQHC Visits, FQHC Look-Alike Visits, and RHC Visits. If a managed care organization's reimbursement to an FQHC, FQHC look-alike, or RHC for a visit by an enrollee to the FQHC, FQHC look-alike, or RHC is less than what the FQHC, FQHC look-alike, or RHC would receive pursuant to Sections 3, 4, 5, or 9 of this administrative regulation, the department shall supplement the reimbursement made by the managed care organization in a manner that:

(1) Equals the difference between what the managed care organization reimbursed and what the reimbursement would have been if it had been made in accordance with Sections 3, 4, 5, or 9 of this administrative regulation;

(2) Is in accordance with 42 U.S.C. 1396a(bb)(5)(A); and

(3) Ensures that total reimbursement does not exceed the federal upper payment limit in accordance with 42 C.F.R. 447.304.

Section 9. Alternative Payment Methodology for an FQHC, FQHC Look-alike, or RHC.

(1)

(a) The department shall pay to an FQHC, FQHC look-alike, or RHC, for which a final PPS rate exists, an alternative payment methodology if the FQHC, FQHC look-alike, or RHC notifies the department in writing that it requests to receive the alternate reimbursement.

(b)

The APM shall equal 125 percent of the Medicare upper payment limit for rural health clinics in effect on September 30, 2014.
The APM referenced in subparagraph 1 of this paragraph shall not be adjusted for inflation.

(c) An FQHC, FQHC look-alike, or RHC that had an interim PPS rate prior to November 1, 2015 may request the APM as an interim PPS rate until the FQHC's, FQHC look-alike's, or RHC's final PPS rate is established.

(2)

(a) An APM established in this section shall be effective for dates of service beginning with the date requested in writing by an FQHC, FQHC look-alike, or RHC except as established in paragraph (b) of this subsection.

(b) An APM effective date shall not precede the date in which the department received the written request for the APM.

Section 10. Change in Scope and Final PPS Rate Adjustment.

(1)

(a) If an FQHC, FQHC look-alike, or RHC changes its scope of services after the base year, the department shall adjust the FQHC's, FQHC look-alike's, or RHC's final PPS rate if the change in scope qualifies for an adjustment in accordance with this section upon departmental review and approval of the change in scope.

(b) An adjustment to a final PPS rate resulting from a change in scope that occurred after an FQHC's, FQHC look-alike's, or RHC's base year shall be effective to the date that the change in scope occurred.

(c)

A revised PPS rate shall be calculated in accordance with the MAP 100501.
A revised PPS rate shall not be rebased.

(2) A change in scope of service shall be restricted to:

(a) Adding or deleting a covered service;

(b) Increasing or decreasing the intensity of a covered service pursuant to subsection (5) of this section; or

(3) The following items individually shall not constitute a change in scope:

(a) A general increase or decrease in the costs of existing services;

(b) A reduction or an expansion of hours per day, days per week, or weeks per year;

(d) A wage increase;

(e) A renovation or other capital expenditure;

(f) A change in ownership; or

(g) An addition or deletion of a service provided by a non-licensed professional or specialist.

(4)

(a) An addition of a covered service shall be restricted to the addition of a licensed professional staff member who can perform a Medicaid covered service that is not currently being performed within the FQHC, FQHC look-alike, or RHC by a licensed professional employed or contracted by the facility.

(b) The deletion of a covered service shall be restricted to the deletion of a licensed professional staff member who can perform a Medicaid covered service that was being performed within the FQHC, FQHC look-alike, or RHC by the licensed professional staff member.

(5) A change in intensity shall:

(a) Include a material change;

(b) Increase or decrease the existing final PPS rate by at least five (5) percent; and

(6) The department shall consider a change in scope request due to a statutory or regulatory change that materially impacts the costs of visits at an FQHC, FQHC look-alike, or RHC if:

(a) A government entity imposes a mandatory minimum wage increase and the increase was:

Not included in the calculation of the final PPS rate; or
Subsequently included in the MEI applied yearly; or

(b)

A new licensure requirement or modification of an existing requirement by the state results in a change that affects all facilities within the class.
A provider shall document that an increase or decrease in the cost of a visit occurred as a result of a licensure requirement or policy modification.

(7) A requested change in scope shall:

(a) Increase or decrease the existing final PPS rate by at least five (5) percent;

(b) Last at least twelve (12) months; and

(8)

(a) An FQHC, FQHC look-alike, or RHC that requests a change in scope shall submit the following documents to the department within six (6) months of the requested effective date of a change in scope:

A narrative describing the change in scope;
A completed MAP 100501, Prospective Payment System Rate Adjustment, completed according to the Instructions for Completing the MAP 100501 Form; and
A signed letter requesting the change in scope.

(b) If the department does not receive the documentation required regarding a change in scope within six (6) months after the requested effective date of a change in scope, the change in scope shall be denied.

(c)

The department shall:

a. Review the documentation listed in this subsection; and

b. Notify the FQHC, FQHC look-alike, or RHC in writing of the:

(i) Approval or denial of the request for change in scope within ninety (90) business days from the date the department received the request; or

(ii) Need for additional documentation from the FQHC, FQHC look-alike, or RHC to establish an interim PPS rate associated with the change in scope.

If the department requests additional documentation to calculate the interim PPS rate for a change in scope, the FQHC, FQHC look-alike, or RHC shall:

a. Provide the additional documentation to the department within thirty (30) days of the notification of need for additional documentation; or

b. Request an extension beyond thirty (30) days to provide the additional documentation.

a. The department shall grant no more than one (1) extension.

b. An extension shall not exceed thirty (30) days.

If the department approves the request for a change in scope and receives all of the necessary documentation from an FQHC, FQHC look-alike, or RHC within the timelines established in this section, the department shall establish an interim PPS rate for the FQHC, FQHC look-alike, or RHC based on the projected costs contained in the completed MAP 100501, Prospective Payment System Rate Adjustment referenced in paragraph (a)2 of this subsection.

(9)

(a) To establish a PPS final rate resulting from a change in scope, the department shall use a completed MAP 100501, Prospective Payment System Rate Adjustment and Universal Cost Report submitted by the FQHC, FQHC look-alike, or RHC to the department that contains twelve (12) months of cost data for the first full fiscal year end after the effective date of the change in scope.

(b) Within six (6) months of the end of the twelve (12) month cost data period referenced in paragraph (a) of this subsection, the FQHC, FQHC look-alike, or RHC shall submit to the department the completed MAP 100501, Prospective Payment System Rate Adjustment and Universal Cost Report containing cost data corresponding to the twelve (12) month cost data for the first full fiscal year end after the effective date of the change in scope.

Review the completed MAP 100501, Prospective Payment System Rate Adjustment and Universal Cost Report referenced in paragraph (a) of this subsection submitted by an FQHC, FQHC look-alike, or RHC within ninety (90) business days of receiving the completed MAP 100501, Prospective Payment System Rate Adjustment and Universal Cost Report; and
Notify the FQHC, FQHC look-alike, or RHC of the necessity of the FQHC, FQHC look-alike, or RHC to submit additional documentation if necessary.

(d)

If additional documentation is necessary to establish a PPS final rate, the FQHC, FQHC look-alike, or RHC shall:

a. Provide the additional documentation to the department within thirty (30) days of the notification of need for additional documentation; or

b. Request an extension beyond thirty (30) days to provide the additional documentation.

The department shall grant no more than one (1) extension.
An extension shall not exceed thirty (30) days.

(e)

If the department requests additional documentation from an FQHC, FQHC look-alike, or RHC but does not receive additional documentation or an extension request within thirty (30) days, the department shall reimburse the FQHC, FQHC look-alike, or RHC the FQHC's, FQHC look-alike's, or RHC's PPS final rate that was in effect prior to the FQHC's, FQHC look-alike's, or RHC's request for a change in scope until:

a. The additional documentation has been received by the department; and

b. The department establishes a new final PPS rate associated with the change in scope.

If an FQHC, FQHC look-alike, or RHC does not submit a completed MAP 100501, Prospective Payment System Rate Adjustment and Universal Cost Report to the department in accordance with paragraph (b) of this subsection, the department shall:

a. Not issue a new PPS final rate associated with the change in scope; and

b. Revert to paying the FQHC, FQHC look-alike, or RHC the FQHC's, FQHC look-alike's, or RHC's PPS final rate that was in effect prior to the FQHC, FQHC look-alike, or RHC requesting a change in scope.

(f)

If any service included in a change in scope is a service that can be identified on a paid claims listing, the department shall review the FQHC's, FQHC look-alike's, or RHC's paid claims Iisting for the period of time corresponding to the FQHC's, FQHC look-alike's, or RHC's cost report period of time referenced in paragraphs (a) and (b) of this subsection.
If an FQHC, FQHC look-alike, or RHC has submitted all necessary information to the department, within forty-five (45) days of reviewing the FQHC's, FQHC look-alike's, or RHC's paid claims listing, the department shall:

a. Establish a final PPS rate, resulting from the change in scope, for the FQHC, FQHC look-alike, or RHC; and

b. Notify the FQHC, FQHC look-alike, or RHC in writing of the FQHC's, FQHC look-alike's, or RHC's:

(i) Final PPS rate; and

(ii) Appeal rights regarding the PPS final rate.

To allow adequate time for claim adjudication, a paid claims listing shall not be requested until at least fourteen (14) months after the end of the FQHC's, FQHC look-alike's, or RHC's cost report period associated with the change in scope.

(g) If no service included in a change in scope can be identified on a paid claims listing, and the department has received a completed MAP 100501, Prospective Payment System Rate Adjustment and Universal Cost Report referenced in paragraphs (a) and (b) of this subsection, and no additional documentation is needed from the FQHC, FQHC look-alike, or RHC, the department shall:

Not review a paid claims listing in establishing a new PPS final rate for an FQHC, FQHC look-alike, or RHC resulting from the change in scope; and
Establish a new PPS final rate for an FQHC, FQHC look-alike, or RHC resulting from the change in scope within ninety (90) days of receiving the completed MAP 100501, Prospective Payment System Rate Adjustment and Universal Cost Report.

Section 11. Limitations and Exclusions.

(1)

(a) Except for a case in which a recipient or enrollee, subsequent to the first encounter at an FQHC, FQHC look-alike, or RHC, suffers an illness or injury requiring additional diagnosis or treatment, an encounter with more than one (1) health care provider or multiple encounters with the same health care provider which take place on the same day and at a single location shall constitute a single visit.

(b) The limit established in paragraph (a) of this subsection shall:

Apply to an FQHC, FQHC look-alike, or RHC; and
Not apply to a PCC that is not an FQHC, FQHC look-alike, or RHC.

(2)

(a) Except as established in paragraph (b) of this subsection, a vaccine available without charge to an FQHC, FQHC look-alike, RHC, or PCC through the department's Vaccines for Children Program and the administration of the vaccine shall not be reported as a cost to the Medicaid Program.

(b) Adult flu vaccine costs shall be allowed as Medicaid costs reported on a Universal Cost Report.

(3) The department shall not reimburse for services provided by an FQHC, FQHC look-alike, PCC, or RHC to a recipient in a hospital unless the FQHC, FQHC look-alike, PCC, or RHC has previously, any time prior to the hospital admission, provided a service to the recipient at the FQHC's, FQHC look-alike's, PCC's, or RHC's location.

Section 12. Out-of-State Providers.

(1) Except as established in subsection (2) of this section, reimbursement to an out-of-state FQHC, FQHC look-alike, or RHC shall be based on the rate on file with the FQHC's, FQHC look-alike's, or RHC's state Medicaid agency.

(2) If an out-of-state FQHC's, FQHC look-alike's, or RHC's reimbursement is an APM, the department's reimbursement to the out-of-state FQHC, FQHC look-alike, or RHC shall:

(a) Not be the APM the FQHC, FQHC look-alike, or RHC receives in its state; and

(b) Be the final PPS rate that the FQHC, FQHC look-alike, or RHC would receive in its state if it were not receiving an APM.

Section 13. Federal Approval and Federal Financial Participation. The department's reimbursement for 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 14. Not Applicable to Managed Care Organizations. A managed care organization shall not be required to reimburse in accordance with this administrative regulation for a service covered pursuant to:

(1)

(a) 907 KAR 1:054; or

(b) 907 KAR 1:082; and

(2) This administrative regulation.

Section 15. Appeal Rights. An FQHC, FQHC look-alike, PCC, or RHC may appeal a department decision as to the application of this administrative regulation as it impacts the facility's reimbursement rate in accordance with 907 KAR 1:671.

Section 16. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "MAP 100501, Prospective Payment System Rate Adjustment", February 2013 edition;

(b) "Instructions for Completing the MAP 100501 Form", February 2013 edition;

(d) "Universal Cost Report Instructions", May 2015.

History

RELATES TO: KRS 205.560, 216B.010, 216B.105, 216B.130, 216B.990, 42 C.F.R. 413, 438.60, 491, Subpart A, 440.130, 440.230, 447.3251, 45 C.F.R. 74.27, 48 C.F.R. Part 31, 42 U.S.C. 1396a, b, d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560(1), 216B.042, 42 U.S.C. 1396a
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 Department for Medicaid Services' reimbursement policies for primary care center, federally-qualified health center, federally-qualified health center look-alike, and rural health clinic services.
History: 2 Ky.R. 492; eff. 4-14-1976; 5 Ky.R. 67; eff. 9-6-1978; 10 Ky.R. 323; eff. 9-7-1983; 11 Ky.R. 291; eff. 9-11-1984; 1094; eff. 2-12-1985; 12 Ky.R. 282; eff. 9-10-1985; Recodified from 904 KAR 1:055, 5-2-1986; . 13 Ky.R. 389; eff. 9-4-1986; 15 Ky.R. 1326; eff. 12-13-1988; 1981; eff. 3-15-1989; 16 Ky.R. 281; eff. 9-20-1989; 2601; eff. 6-27-1990; 18 Ky.R. 543; eff. 10-6-1991; 29 Ky.R. 824; 1279; eff. 10-16-2002; 40 Ky.R. 49; 299; eff. 9-6-2013; 41 Ky.R. 2674; 42 Ky.R. 782; 1208; eff. 11-6-2015; TAm eff. 3-20-2020; Cert. eff. 10-18-2022.

907 KAR 1:060 Ambulance transportation {#sec-907-kar-1-060 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:060}

Section 1. Definitions.

(1) "Ambulance transportation" means ground or air transportation provided at advanced life support level or basic life support level by a carrier licensed by the Kentucky Board of Emergency Medical Services.

(2) "Appropriate medical facility or provider" means a local medical provider other than an emergency room of a hospital who can provide necessary emergency care if a hospital emergency room is not located within the medical service area.

(3) "Attending physician" means a physician who provided medical care to the recipient at the time ambulance transportation was needed and may include:

(a) The physician that the ambulance provider was in contact with to determine where the recipient needed to be transported for immediate care;

(b) The physician at the facility that treated the patient on arrival from the ambulance transportation;

(c) The physician at the care facility that recommended the recipient be transported to another facility for care not available at the original care facility; or

(d) The physician at a nursing facility that determined that the recipient needed to be transported to a hospital.

(4) "Department" means the Department for Medicaid Services or its designated agent.

(5) "Medical service area" means a recipient's county of residence or a contiguous county.

(6) "Medically necessary" or "medical necessity" means a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(7) "Other medical professional" means a physician assistant, advanced registered nurse practitioner, licensed nurse, or qualified mental health professional who is approved to practice by the appropriate professional licensure board.

Section 2. Conditions of Participation.

(1) A participating ambulance transportation provider shall comply with the terms and conditions established in:

(a) 907 KAR 1:671, Conditions of Medicaid provider participation; withholding overpayments, appeals process and sanctions; and

(b) 907 KAR 1:672, Provider enrollment, disclosure and documentation for Medicaid participation.

(2) In accordance with 907 KAR 1:005, a participating ambulance transportation provider shall:

(a) Not bill the recipient and the department for the same service; and

(b) Bill a third-party payer prior to billing Medicaid for a covered service.

(3) A participating ambulance transportation provider shall comply with the requirements regarding the confidentiality of personal records as mandated by 42 U.S.C. 1320d and 45 C.F.R. Parts 160 and 164.

Section 3. Emergency Ambulance Services.

(1) An emergency ambulance service shall be covered to and from a hospital emergency room in the medical service area if the:

(a) Service is medically necessary; and

(b) Documentation is maintained for postpayment review to indicate immediate emergency medical attention was provided in the emergency room.

(2) An emergency ambulance service to an appropriate medical facility or provider other than a hospital emergency room shall require documentation from the attending physician of:

(a) Medical necessity;

(b) Absence of a hospital emergency room in the medical service area; and

Section 4. Nonemergency Ambulance Services.

(1) A nonemergency ambulance service to a provider within the medical service area shall be covered if:

(a) The recipient's medical condition warrants transport by stretcher;

(b) The recipient is traveling to or from a Medicaid-covered service, exclusive of a pharmacy service; and

(2) A nonemergency ambulance service provided outside the medical service area shall be covered if:

(a) The criteria specified in subsection (1) of this section are satisfied;

(b) The medical service required by the recipient is not available in the medical service area; and

Section 5. Documentation Required for Determination of Coverage. The necessity for an ambulance transportation service shall be:

(1) Determined by the department; and

(2) Based upon a statement of medical necessity by an attending physician which shall:

(a) Be maintained on file by the transportation provider for a period of five (5) years; and

(b) Include the following information:

Verification by the provider of the:

a. Date of ambulance service;

b. Patient's name;

c. Patient's Medicaid identification number;

d. Patient's address;

e. Origin of ambulance service; and

f. Destination of ambulance service; and

A signed and dated statement by the attending physician, or other medical professional carrying out the orders of the attending physician, which verifies the patient's diagnosis and whether or not the patient:

a. Received treatment in an outpatient setting following transport;

b. Required admission to the hospital following transport;

c. Transferred from one (1) medical facility to another;

d. Was confined to bed before and after transport;

e. Required movement by stretcher; or

f. Had a medical condition which contraindicated transportation by means other than an ambulance.

Section 6. Appeal Rights.

(1) An appeal of a department decision regarding a Medicaid recipient based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563.

(2) An appeal of a department decision regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) An appeal of a department decision regarding a Medicaid provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 431.53, 440.170, 42 U.S.C. 1396d, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the provisions relating to coverage of ambulance transportation services to access a medical service for which payment shall be made by the Medicaid Program.
History: 2 Ky.R. 112; eff. 9-10-1975; Recodified from 904 KAR 1:060, 5-2-1986; 17 Ky.R. 1879; eff. 12-18-1990; 22 Ky.R. 2497; eff. 8-21-1996; 26 Ky.R. 658; 1184; 1421; eff. 1-12-2000; 30 Ky.R. 450; 878; eff. 10-31-2003; Crt eff. 11-26-2019.

907 KAR 1:061 Payments for ambulance transportation {#sec-907-kar-1-061 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:061}

Section 1. Definitions.

(1) "Advanced life support (ALS) emergency ambulance transportation" means an ambulance service meeting the standards for advanced life support services established in accordance with 202 KAR 7:501.

(2) "Advanced Life Support (ALS) Medical First Response Provider" means an emergency medical professional licensed in accordance with 202 KAR 7:501 to provide ALS care.

(3) "Air ambulance provider" means an air ambulance service licensed in accordance with 202 KAR 7:510.

(4) "Appropriate medical facility or provider" means a local medical provider other than an emergency room of a hospital who can provide necessary emergency care if a hospital emergency room is not located within a recipient's county of residence or a contiguous county.

(5) "Basic life support (BLS) emergency ambulance transportation" means an ambulance service which meets the standards for basic life support services established in 202 KAR 7:501.

(6) "Department" means the Department for Medicaid Services or its designated agent.

(7) "Membership or subscription fee" means a payment collected from a recipient by a provider which entitles the recipient to free or discounted ambulance transportation services.

(8) "Recipient" is defined in KRS 205.8451(9).

(9) "Upper limit" means the maximum reimbursement rate the department shall pay an ambulance transportation provider for the service provided.

Section 2. Reimbursement for Licensed Ambulance Services.

(1) The department shall reimburse an ambulance service at the lesser of:

(a) The provider's usual and customary charge for the service; or

(b) An upper limit established in this section for the service plus, if applicable, a rate for oxygen and reimbursement for disposable medical supplies utilized during an ambulance transportation service.

(2) Except for an air ambulance transportation service, the upper limit for an ambulance service shall be calculated by adding a base rate, mileage allowance, and flat rate fees as follows:

(a) For ALS emergency ambulance transportation to the emergency room of a hospital:

A base rate of 110 dollars;
A mileage allowance of four (4) dollars per mile; and
If transported concurrently, a flat rate of twenty-five (25) dollars for an additional recipient;

(b) For BLS emergency ambulance transportation to the emergency room of a hospital:

A base rate of eighty-two (82) dollars and fifty (50) cents;
A mileage allowance of three (3) dollars per mile; and
If transported concurrently, a flat rate of twenty (20) dollars for an additional recipient;

A base rate of sixty (60) dollars;
A mileage allowance of two (2) dollars and fifty (50) cents per mile; and
If transported concurrently, a flat rate of fifteen (15) dollars for an additional recipient;

(d) For BLS emergency ambulance transportation to the emergency room of a hospital during which the services of an ALS Medical First Response provider are required to stabilize the recipient:

A base rate of 110 dollars;
A mileage allowance of four (4) dollars per mile; and
If transported concurrently, a flat rate of twenty-five (25) dollars for an additional recipient;

(e) For BLS emergency ambulance transportation to an appropriate medical facility or provider during which the services of an ALS Medical First Response provider are required:

A base rate of sixty (60) dollars;
A mileage allowance of two (2) dollars and fifty (50) cents per mile; and
If transported concurrently, a flat rate of fifteen (15) dollars for an additional recipient;

(f) For non emergency ambulance transportation during which the recipient requires no medical care during transport:

A base rate of fifty-five (55) dollars; and
A mileage allowance of two (2) dollars per mile;

(g) For a treatment in place encounter during which the recipient receives care but is not transported to a medical facility:

A base rate of at least eighty-two (82) dollars and fifty (50) cents and as consistent with the Kentucky Medicaid Transportation Fee Schedule at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx; and
Mileage shall not be billable;

(h) For a treatment, triage, and transport service during which the recipient receives care, is assessed as not needing emergent treatment, and is transported to an appropriate medical facility that is not a hospital emergency department:

A base rate of at least eighty-two (82) dollars and fifty (50) cents and as consistent with the Kentucky Medicaid Transportation Fee Schedule at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx; and
A mileage allowance of two (2) dollars and fifty (50) cents per mile; and

(i) The rates in this subsection may be increased as consistent with the Kentucky Medicaid Transportation Fee Schedule at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

(3) In addition to the rates specified in subsection (2) of this section, the department shall reimburse for:

(a) The administration of oxygen during an ambulance transportation service at a flat rate of ten (10) dollars per one (1) way trip if medically necessary; and

(b) The cost of disposable supplies actually utilized during an ambulance transportation service if the provider lists the supplies used during the service on an invoice. The department shall not reimburse for a supply item that is not disposable or is not actually used during the ambulance transportation service.

(4) Reimbursement for air ambulance transportation shall be an all inclusive rate which shall be the lesser of:

(a) The provider's usual and customary charge; or

(b) An upper limit of $3,500 per one (1) way trip or as increased consistent with the Kentucky Medicaid Transportation Fee Schedule at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

(5) Payment for a service identified in subsections (2) through (4) of this section shall be contingent upon a statement of medical necessity, which:

(a) Shall be maintained in accordance with 907 KAR 1:060, Section 5(2); and

(b) May be requested by the department for post-payment review.

(6) If a recipient has paid a membership or subscription fee to a transportation provider, the provider shall not be eligible for Medicaid reimbursement for service provided to the recipient.

Section 3. Appeal Rights.

(1) An appeal of a negative action regarding a Medicaid recipient shall be in accordance with 907 KAR 1:563.

(2) An appeal of a negative action regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) An appeal of a negative action regarding a Medicaid provider shall be in accordance with 907 KAR 1:671.

Section 4. Federal Approval and Federal Financial Participation. The cabinet's coverage and reimbursement of services pursuant to this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval of the coverage and reimbursement, as relevant.

History

RELATES TO: KRS 205.520, 205.8451, 42 C.F.R. 440.170, 447.200 -447.205, 42 U.S.C. 1396, 2005 Acts ch. 173 Parts I., A.22.(i), I., H.3.b.(19)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the method for determining amounts payable by the Department for Medicaid Services for ambulance transportation services.
History: 3 Ky.R. 552; 4 Ky.R. 220; eff. 11-2-1977; 7 Ky.R. 581; eff. 2-3-1981; 10 Ky.R. 941; eff. 2-1-1984; 1132; eff. 5-31-1984; 11 Ky.R. 854; eff. 12-11-1984; 1334; eff. 4-9-1985; Recodified from 904 KAR 1:061, 5-2-1986; 15 Ky.R. 2190; eff. 5-17-1989; 16 Ky.R. 2603; eff. 6-27-1990; 17 Ky.R. 576; eff. 9-19-1990; 1880; eff. 12-18-1990; 18 Ky.R. 544; 1148; eff. 10-16-1991; 19 Ky.R. 2150; eff. 4-21-1993; 22 Ky.R. 2499; eff. 8-21-1996; 26 Ky.R. 659; 1186; 1422; eff. 1-12-2000; 32 Ky.R. 407; 921; 1108; eff. 1-6-2006; 34 Ky.R. 1576; eff. 4-4-2008; Cert eff. 12-6-2019; 50 Ky.R. 1414, 2053; eff. 7-2-2024.

907 KAR 1:065 Payments for price-based nursing facility services {#sec-907-kar-1-065 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:065}

Section 1. Definitions.

(1) "Ancillary service" means a direct service including:

(a) Ancillary services pursuant to 907 KAR 1:023; or

(b) If ordered by a physician:

Clinical laboratory procedures; or
X-rays or imaging services.

(2) "Appraisal" means an evaluation of a price-based nursing facility building, excluding equipment and land, conducted by the department in accordance with Section 4 of this administrative regulation for the purpose of calculating the depreciated replacement cost of a price-based nursing facility.

(3) "Appraisal base year" means a year in which the department conducts an appraisal of each price-based NF.

(4) "Auxiliary building" means a roofed and walled structure:

(a) Serviced by electricity, heating, and cooling;

(b) Independent of an NF;

(d) Constructed on the same tract of ground as an NF.

(5) "Capital rate component" means a calculated per diem amount for an NF based on:

(a) The NF's appraised depreciated replacement cost;

(b) A value for land;

(d) A rate of return;

(e) A risk factor;

(f) The number of calendar days in the NF's cost report year;

(g) The number of licensed NF beds in the NF; and

(h) The NF's bed occupancy percentage.

(6) "Case-mix" means the time-weighted average price-based NF acuity for Medicaid-eligible and dual-eligible Medicare and Medicaid residents under a Medicare Part A reimbursed stay in a price-based nursing facility, and is based on Minimum Data Set (MDS) – Version 3.0 data classified through the Patient Driven Payment Model (PDPM) resident classification system or equivalent.

(7) "Core based statistical area" or "CBSA" means the designation of metropolitan and micropolitan population centers based on the national census, as published by the Federal Office of Management and Budget.

(8) "Department" means the Department for Medicaid Services or its designee.

(9) "Equipment" means a depreciable tangible asset, other than land or a building, which is used in the provision of care for a resident by an NF staff person.

(10) "Governmental entity" means a unit of government for the purposes of 42 U.S.C. 1396b(w)(6)(A).

(11) "Hospital-based NF" means an NF that:

(a) Is separately identifiable as a distinct part of the hospital; and

(b) If separated into multiple but distinct parts of a single hospital, is combined under one (1) provider number.

(12) "Land" means a surveyed tract or tracts of ground that share a common boundary:

(a) As recorded in a county government office;

(b) Upon which a building licensed as an NF is constructed; and

(13) "Local unit of government" means a city, county, special purpose district, or other governmental unit in the state.

(14) "NF" or "nursing facility" means:

(a) A facility:

To which the state survey agency has granted an NF license;
For which the state survey agency has recommended to the department certification as a Medicaid provider; and
To which the department has granted certification for Medicaid participation; or

(15) "NF building" means a roofed and walled structure serviced by electricity, heating, and cooling and that is also an NF.

(16) "Nursing facility with Medicaid waiver" or "NF-W" means an NF to which the state survey agency has granted a waiver of the nursing staff requirement.

(17) "Provider assessment" means the assessment imposed by KRS 142.361 and 142.363.

(18) "Routine services" means the services covered by the Medicaid program pursuant to 42 C.F.R. 483.10(f)(11)(i).

(19) "Site improvement" means a depreciable asset element, other than an NF building or auxiliary building, on NF land extending beyond an NF's foundation if used for NF-related purposes.

(20) "Standard price" means a facility-specific reimbursement that includes a case-mix adjusted component, noncase-mix adjusted component including an allowance to offset a provider assessment, noncapital-facility related component, and capital rate component.

(21) "State survey agency" means the Cabinet for Health and Family Services, Office of Inspector General, Division of Health Care.

(22) "Time-weighted" means a method of calculating case-mix by determining the number of days that a minimum data set (MDS) record is active over a calendar quarter rather than captured from a single day during the calendar quarter.

Section 2. NF Reimbursement Classifications and Criteria.

(1) An NF or a hospital-based NF shall be reimbursed as a price-based NF pursuant to this administrative regulation if:

(a) It provides NF services to an individual who:

Is a Medicaid recipient;
Meets the NF patient status criteria pursuant to 907 KAR 1:022; and
Occupies a Medicaid-certified bed; and

(b)

It has more than ten (10) NF beds and the greater of:

a. Ten (10) of its Medicaid-certified beds participate in the Medicare program; or

b. Twenty (20) percent of its Medicaid certified beds participate in the Medicare program; or

It has less than ten (10) NF beds and all of its NF beds participate in the Medicare program.

(2) An NF-W shall be reimbursed as a price-based NF pursuant to this administrative regulation if it meets the criteria established in subsection (1)(a) of this section.

(3) The following shall not be reimbursed as a price-based NF and shall be reimbursed pursuant to 907 KAR 1:025:

(a) An NF with a certified brain injury unit;

(b) An NF with a distinct part ventilator unit;

(d) A dually-licensed pediatric facility; or

(e) An intermediate care facility for individuals with an intellectual disability.

Section 3. Reimbursement for Federally-Defined Swing Beds and for Skilled Nursing Facility Services in Critical Access Hospital Swing Beds.

(1) The reimbursement rate for a federally-defined swing bed shall be:

(a) The average rate per patient day paid to freestanding price-based NFs for routine services furnished during the preceding calendar year, excluding any payment made pursuant to Section 15 of this administrative regulation; and

(b) Established effective January 1 of each year.

(2)

(a) The department shall reimburse a critical access hospital for skilled nursing facility services in a swing bed at the same rate as established by the Centers for Medicare and Medicaid Services for Medicare.

(b) The department shall pay an interim per diem rate as established by CMS for the Medicare program.

(d) A critical access hospital's final reimbursement for skilled nursing facility services in a swing bed shall reflect any adjustment made by the Centers for Medicare and Medicaid Services.

(e) Total payments made to a critical access hospital for skilled nursing facility services provided in a swing bed under this section shall be subject to the payment limitation established in 42 C.F.R. 447.271.

(f) The provisions established in this subsection shall apply to a critical access hospital that complies with all requirements established in KRS 216.380.

Section 4. Price-based NF Appraisal.

(1) The department shall appraise a price-based NF to determine the facility specific capital component in 2009, and every fifth year, in order to calculate the NF's depreciated replacement cost.

(2) The department shall not appraise equipment or land. A provider shall be given the following values for land and equipment:

(a) Ten (10) percent of an NF's average licensed bed value for land; and

(b) $2,000 per licensed NF bed for equipment.

(3) The department shall utilize the following variables and fields of the nursing home or convalescent center CoreLogic Commercial Express Valuation System to appraise an NF identified in Section 2(1) of this administrative regulation:

(a) Provider number;

(b) Property owner - NF name;

(d) Zip code;

(e) Section number - the lowest number shall be assigned to the oldest section and a basement, appraised as a separate section, immediately follows the section it is beneath;

(f) Occupancy code - nursing home or substructure;

(g) Average story height;

(h) Construction type;

(i) Number of stories;

(j) Gross floor area (which shall be the determination of the exterior dimensions of all interior areas including stairwells of each floor, specifically excluding outdoor patios, covered walkways, carports, and similar areas). In addition, interior square footage measurements shall be reported for:

A non-NF area;
A shared service area by type of service; and
A revenue-generating area;

(k) Gross perimeter (common walls between sections shall be excluded from both sections);

(l) Construction quality;

(m) Year built;

(n) Building effective age;

(o) Building condition;

(p) Depreciation percent;

(q) Exterior wall material;

(r) Roof covering material and roof pitch;

(s) Heating system;

(t) Cooling system;

(u) Floor finish;

(v) Ceiling finish;

(w) Partition wall structure and finish;

(x) Passenger and freight elevators - actual number;

(y) Fire protection system (sprinklers, manual fire alarms, and automatic fire detection) - percent of gross area served. If both the floor and attic areas are protected by a sprinkler system or automatic detection, the percent of gross area served shall be twice the floor area; and

(z) Miscellaneous additional features, which shall be limited to:

Canopies;
Entry foyers (sheltered entry ways):

a. The glass and aluminum standard allowance shall be fifty (50) dollars per square foot;

b. Bulkhead standard allowance shall be:

(i) Eleven (11) dollars per square foot for a wood frame;

(ii) Twelve (12) dollars per square foot for a steel frame; or

(iii) Thirty-one (31) dollars per square foot for brick masonry;

Loading docks;
Code alerts, Wanderguards, or other special electronically-secured doorways, except for a door with a sound detector or sensing unit (the standard allowance shall be $1,420 for each fully-functioning door at the time of appraisal);
A door with a sound detector or sensing unit shall have a standard allowance of $865 per door;
Automatic sliding doors (the standard allowance shall be $25,450 per doorway);
An automatic door opener shall have a standard allowance of $9160 per door;
Detached garages or storage sheds (which shall have an attached reinforced concrete floor and a minimum of 200 square feet);
Modular buildings or trailers, if the structure has a minimum of 200 square feet, electrical service, and heating or cooling services (the standard allowance shall be eighty (80) dollars per square foot);
Walk-in coolers or freezers;
Laundry chutes (the standard allowance shall be $2,530 per floor serviced);
Dumb waiters (which shall have a minimum speed of fifty (50) feet per minute. The standard allowance shall be $20,500 for the initial two (2) stops for a manual door or $52,520 for the initial two (2) stops for an electric door and $5,050 per additional stop);
Skylights (the standard allowance shall be fifty-seven dollars per square foot);
Operable built-in oxygen delivery systems (valued at $425 per serviced bed);
Carpeted wainscoting (the standard allowance shall be eighty (80) dollars per licensed bed);
Balconies;
Ceiling fans for which the standard allowance shall be $375 for each ceiling fan without a light and $675 for each ceiling fan with a light;
Cupolas for which the standard allowance shall be $990 each;
Fireplaces;
Concrete-lined utility tunnels for which the standard allowance shall be thirty-two dollars per cubic foot; and
Mechanical penthouses.

(4) An item listed in subsection (3)(z) of this section shall be subject to the CoreLogic Commercial Express valuation system monetary limit unless a monetary limit is provided for that item in subsection (3)(z) of this section.

(5) The department shall use the corresponding CoreLogic Commercial Express valuation system default value for any variable listed in subsection (3) of this section if no other value is stated for that variable in subsection (3) of this section.

(6)

(a) Values from the most recent CoreLogic Commercial Express valuation system tables shall be used during an appraisal.

(b) An adjustment calculation shall be performed if the most recent CoreLogic Commercial Express valuation system tables do not correspond to an appraisal base year.

(7) In addition to an appraisal cited in subsection (1) of this section, the department shall appraise an NF identified in Section 2(1) of this administrative regulation if:

(a) The NF submits written proof of construction costs to the department; and

(b)

The NF undergoes renovations or additions costing a minimum of $150,000 and the NF has more than sixty (60) licensed beds; or
The NF undergoes renovations or additions costing a minimum of $75,000 and the NF has sixty (60) or fewer licensed beds.

(8) An auxiliary building shall be:

(a) Appraised if it rests on land, as defined in Section 1(12) of this administrative regulation; and

(b) Appraised separately from an NF building.

(9) To appraise an auxiliary building, the department shall utilize a CoreLogic Commercial Express valuation system model, if the model better fits the auxiliary building's use and type.

(10) If an NF building has beds licensed for non-NF purposes or a provider conducts business activities not related to the NF, the appraisal shall be adjusted between NF and non-NF activity. The appraiser shall determine if the adjustment shall be made by dividing the number of licensed NF beds by the total number of beds, or through the use of an adjustment factor determined in accordance with appraisal industry standards by the appraiser, regardless of the occupancy factor. For example, an adjustment factor may be used to apportion the appraisal by the percent of NF square footage relative to the square footage on non-NF-related business activities.

(11) Cost of an appraisal shall be the responsibility of the NF being appraised.

(12) A building held for investment, future expansion, or speculation shall not be considered for appraisal purposes.

(13) The department shall not consider the following location factors in rendering an appraisal:

(a) Climate;

(b) High-wind zone;

(d) Position;

(e) Accessibility; or

(f) Soil condition.

Section 5. Standard Price Overview.

(1) Rates shall reflect the differential in wages, property values, and cost of doing business in rural and urban designated areas.

(2) On July 1 of each year, the department shall utilize the most recent Federal Office of Management and Budget's core based statistical area (CBSA) designations to classify an NF as being in an urban or rural area, with metropolitan areas always being classified as urban. The urban and rural designations shall be based on the location of the NF under the CBSA designation.

(3) The department shall utilize an analysis of fair-market pricing and historical cost for the following data:

(a) Staffing ratios;

(b) Wage rates;

(c) Cost of administration, food, professional support, consultation, and nonpersonnel operating expenses as a percentage of total cost;

(d) Fringe benefit levels;

(e) Capital rate component; and

(f) Noncapital facility-related component.

(4) The following components shall comprise the case-mix adjustable portion of an NF's standard price:

(a) The personnel cost of:

A director of nursing;
A registered nurse (RN);
A licensed practical nurse (LPN);
A nurse aide;
An activities staff person; and
A medical records staff person; and

(b) Nonpersonnel operating cost including:

Medical supplies; and
Activity supplies.

(5) The following components shall comprise the noncase-mix adjustable portion of an NF's standard price:

(a) Administration to include an allowance to offset a provider assessment;

(b) Nondirect care personnel;

(d) Professional support; and

(e) Consultation.

(6) The following components shall comprise the facility and capital component of an NF's standard price:

(a) The noncapital facility-related component, which shall be a fixed, uniform amount for all price-based NFs; and

(b) The NF's capital rate component, which shall be facility specific.

(7) Excluding capital rate components, the following is an example of an urban and a rural price-based NF's standard price based on rebased wages at the 2024 level:

(8) A price-based NF's standard price may be:

(a) Adjusted for inflation every July 1 using the version of the CMS Nursing Home without Capital Market Basket that was effective on the July 1 that the inflation adjustment occurred; and

(b) Rebased:

Effective July 1, 2024; and
At least once every four (4) years thereafter.

(9) The department shall adjust an NF's standard price if:

(a) A governmental entity imposes a mandatory minimum wage or staffing ratio increase and the increase was not included in the inflation adjustment; or

(b) A new licensure requirement or new interpretation of an existing requirement by the state survey agency results in changes that affect all facilities within the class. The provider shall document that a cost increase occurred as a result of a licensure requirement or policy interpretation.

Section 6. Standard Price Calculation.

(1) Based on the classification of urban or rural, the department shall calculate an individual NF's standard price to be the sum of:

(a) The case-mix adjustable portion of the NF's standard price, adjusted by the NF's current case-mix index pursuant to Section 7 of this administrative regulation;

(b) The noncase-mix adjustable portion of the NF's standard price, which shall includean allowance to offset a provider assessment;

(d) Pursuant to subsection (2) of this section, the capital rate component.

(2) An NF's capital rate component shall be calculated as follows:

(a) The department shall add the total of:

The NF's average licensed bed value, which shall:

a. Be determined by dividing the NF's depreciated replacement cost, as determined from an appraisal conducted in accordance with Section 4 of this administrative regulation, adjusted every July 1 using the RS Means Construction Cost Indexes, and applying the total weighted average annual change of the Kentucky cities by the NF's total licensed NF beds; and

b. Not exceed $80,278 effective July 1, 2024, which shall be adjusted every July 1 thereafter by the same factor applied to the NF's depreciated replacement cost;

A value for land, which shall be ten (10) percent of the NF's average licensed NF bed value, established in accordance with subparagraph 1. of this paragraph; and
A value for equipment, which shall be $2,000 per licensed NF bed;

(b) The department shall multiply the sum of paragraph (a) of this subsection by a rate of return factor, which shall:

Be equal to the sum of:

a. The yield on a twenty (20) year treasury bond as of the first business day on or after May 31 of the most recent year; and

b. A risk factor of two (2) percent; and

Not be less than nine (9) percent nor exceed twelve (12) percent;

Dividing the NF's total patient days by the NF's available bed days to determine the NF's occupancy percentage;
If the NF's occupancy percentage is less than ninety (90) percent, multiplying ninety (90) percent by 365 days; and
If the NF's occupancy percentage exceeds ninety (90) percent, multiplying the NF's occupancy percentage by 365 days; and

(d) The department shall divide the sum of paragraphs (a) and (b) of this subsection by the NF's capital cost-per-bed day established in paragraph (c) of this subsection to determine an NF's capital rate component.

(3) If a change of ownership occurs pursuant to 42 C.F.R. 447.253(d), the new owner shall:

(a) Receive the capital cost rate of the previous owner unless the NF is eligible for a reappraisal pursuant to Section 4(7) of this administrative regulation; and

(b) File an updated provider application with the Medicaid program pursuant to 907 KAR 1:672, Section 3(4).

(4) A new facility shall be:

(a) Classified as a new facility if the facility does not have a July 1, of the current state fiscal year, Medicaid rate;

(b) Determined to be urban or rural; and

Be based on a case-mix of 1.0;
Be adjusted prospectively based upon no less than one (1) complete calendar quarter of available MDS – Version 3.0 data following the facility's Medicaid certification;
Utilize $80,278 effective July 1, 2024, as adjusted through the current state fiscal year as the facility's average licensed NF bed value until the facility is appraised in accordance with Section 4 of this administrative regulation; and
Be adjusted, if necessary, following the facility's appraisal if the appraisal determines the facility's average licensed NF bed value to be less than $80,278 effective July 1, 2024, as adjusted through the current state fiscal year.

(5) The amounts calculated pursuant to subsection (4)(c)3. and 4. of this section shall be adjusted annually consistent with the adjustments made to the depreciated replacement cost, as described in subsection (2)(a)1.b. of this section for the capital component calculation.

Section 7. PDPM Adapted Minimum Data Set (MDS) – Version 3.0, and Validation.

(1) A price-based NF's Medicaid MDS data shall be utilized to determine its case-mix index each quarter.

(2) A price-based NF's case-mix index shall be applied to its case-mix adjustable portion of its standard price.

(3) To determine a price-based NF's case-mix index, the department shall:

(a) Calculate case-mix on a time-weighted basis using MDS data:

Extracted on the last date of each calendar quarter from the NF's MDS item sets:

a. Included in the PDPM Adapted Minimum Data Set (MDS) - Version 3.0, Resident Assessment and Care Screening; and

b. Transmitted by the NF to the Centers for Medicare and Medicaid Services; and

Which, if revised, shall be revised no later than the last date of the quarter following the date on which MDS data was extracted. For example, MDS data submitted after September 30, 2024, for the purpose of revision to MDS data extracted June 30, 2024, shall not be utilized;

(b) Classify the data cited in paragraph (a) of this subsection through the Patient Driven Payment Model (PDPM) resident classification system, nursing component; and

The department shall generate a stratified random sample consisting of the greater of thirty (30) percent of the Medicaid residents or fifteen (15) MDS assessments in a price-based NF;
The department shall review a minimum of fifteen (15) MDS assessments from the sample referenced in subparagraph 1. of this paragraph; and
The department shall review medical records corresponding to the individuals included in the sample identified in subparagraphs 1. and 2. of this paragraph to determine if the medical records accurately support the MDS assessments submitted for the sample residents.

(4) If the department's review, in accordance with subsection (3)(c)3. of this section, of a price-based NF's MDS assessment data reveals that the NF fails to meet the MDS data minimum accuracy threshold, the department shall conduct another review of the same data utilizing an individual or individuals not involved in the initial validation process if the price-based NF requests a reconsideration within ten (10) business days of being notified of the findings of the review.

(5) Only MDS data extracted in accordance with subsection (3)(a)2. of this section shall be allowed during a review or reconsideration.

(6) If a reconsideration of a price-based NF's MDS assessment data, in accordance with subsection (4) of this section, confirms that the NF fails to meet the minimum accuracy threshold, the department shall:

(a) Conduct a conference with the NF to review preliminary findings of the reconsideration; and

(b) Send the final results of the reconsideration to the NF within ten (10) business days of the conference.

(7) In performing validation reviews on MDS data, the department shall:

(a) Notify the NF at the time of the MDS assessment review of any assessment that is not validated and allow the NF to provide supporting documentation that had been utilized to support the assessment;

(b) Consider all MDS supporting documentation provided by the NF prior to the exit conference; and

(8)

(a) Reconsideration of a price-based NF's MDS assessment data validation shall be provided if the NF:

Requests a reconsideration and clearly identifies each specific resident's review and MDS elements that are being disputed;
States the basis on which the department's decision on each issue is believed to be erroneous; and
Provides a summary supporting the NF's position.

(b) After a reconsideration of a price-based NF's MDS assessment data has been completed, the NF may appeal the department decision regarding the data in accordance with 907 KAR 1:671, Section 9.

(9)

(a) The department shall refer any suspected intentional alteration of clinical documentation or creation of documentation after an MDS assessment has been transmitted to the Office of Inspector General (OIG) for investigation of possible fraud.

(b) A fraud investigation may result in a felony or misdemeanor criminal conviction.

(10) An NF's rate shall be effective beginning on the first date of the second quarter following the MDS extraction date.

(11) An MDS validation review, if conducted, shall be initiated in the quarter containing the corresponding rate effective date.

(12) A rate sanction shall be applied on the rate effective date following the validation review initiation date.

(13) MDS assessment accuracy thresholds and corresponding rate sanctions shall be established in accordance with this subsection.

(a) If a price-based NF's percentage of accurate MDS assessments is between sixty-five (65) and seventy-nine (79) percent, the price-based NF's rate shall be sanctioned by fifty (50) cents per patient day.

(b) If a price-based NF's percentage of accurate MDS assessments is between forty (40) and sixty-four (64) percent, the price-based NF's rate shall be sanctioned by sixty (60) cents per patient day.

(c) If a price-based NF's percentage of accurate MDS assessments is below forty (40) percent, the price-based NF's rate shall be sanctioned by seventy (70) cents per patient day.

(14) Beginning with rates effective July 1, 2025, upon conclusion of a departmental review of MDS data, in accordance with this section of this administrative regulation:

(a) The department shall recalculate the facility's case mix index based on the review's findings; and

(b) If a recalculated case mix index results in a change to the NF's established rate or rates, the rate or rates shall be recalculated and any payment adjustment shall be made.

(15) Beginning July 1, 2024, the PDPM case-mix index shall be phased in.

(16) Beginning April 1, 2025, the case-mix index shall be comprised of 100 percent of the PDPM CMI at full phase in.

Section 8. Limitation on Charges to Residents.

(1) Except for applicable deductible and coinsurance amounts, an NF that receives reimbursement for a resident pursuant to Section 6 of this administrative regulation shall not charge a resident or his representative for the cost of routine or ancillary services.

(2) An NF may charge a resident or his representative for an item pursuant to 42 C.F.R. 483.10(f)(11)(ii) if:

(a) The item is requested by the resident or representative;

(b) The NF informs the resident or representative in writing that there will be a charge; and

(3) An NF shall:

(a) Not require a resident, or responsible representative of the resident, to request any item or services as a condition of admission or continued stay; and

(b) Inform a resident, or responsible representative of the resident, requesting an item or service for which a charge will be made in writing that there will be a charge and the amount of the charge.

(4) Reserved bed days, per resident, for an NF or an NF-W shall be:

(a) Reimbursed for a maximum of thirty (30) days per calendar year due to hospitalization. Accumulated bed reserve days shall follow a resident if the resident relocates to another facility within a calendar year rather than starting over at zero due to relocation;

(b) Reimbursed for a maximum of ten (10) days during a calendar year for leaves of absence other than hospitalization. Accumulated bed reserve days shall follow a resident if the resident relocates to another facility within a calendar year rather than starting over at zero due to the relocation;

(5) Except for oxygen therapy, durable medical equipment (DME) and supplies shall:

(a) Be furnished by an NF; and

(b) Not be billed to the department under a separate DMS claim pursuant to 907 KAR 1:479, Section 6(3).

(6) Except as otherwise covered pursuant to Title 907 KAR, dentures, lenses, frames, or hearing aids shall be paid for through the resident's patient liability or spend down amounts and limited to one (1) replacement per item per calendar year.

Section 9. Reimbursement for Required Services Under the Preadmission Screening Resident Review (PASRR).

(1) Prior to an admission of an individual, a price-based NF shall conduct a level I PASRR in accordance with 907 KAR 1:755, Section 4.

(2) The department shall reimburse an NF for services delivered to an individual if the NF complies with the requirements of 907 KAR 1:755.

(3) Failure to comply with 907 KAR 1:755 may be grounds for termination of the NF's participation in the Medicaid Program.

Section 10. Price-Based NF Protection Period and Budget Constraints.

(1) A county-owned hospital-based nursing facility shall not receive a rate that is less than the rate that was in effect on June 30, 2002.

(2) For each year of the biennium, a price-based NF shall:

(a) Receive an adjustment pursuant to Section 5(8) and (9) of this administrative regulation; or

(b) Except for a county-owned hospital-based nursing facility pursuant to subsection (1) of this section, not receive an increase if the price-based NF's rate is greater than its standard price.

Section 11. Cost Report.

(1) A Medicare cost report and the Supplemental Medicaid Schedules shall be submitted pursuant to time frames established in the CMS Medicare Provider Reimbursement Manual - Part 2 (Pub. 15-2) Sections 102, 102.1, 102.3, and 104, using the Instructions for Completing the Medicaid Supplemental Schedules.

(2) A copy of a price-based NF's Medicare cost report shall be submitted for the most recent fiscal year end.

Section 12. Ancillary Services.

(1) Except for ancillary services provided to an individual in a critical access hospital swing bed, the department shall reimburse for an ancillary service utilizing a per diem component to the rates, updated every July 1.

(a) Prior year utilization based on claims through June 30, 2024, and the corresponding outpatient procedure code rate listed in the Medicaid Physician Fee Schedule established in 907 KAR 3:010, Section 1(17). For oxygen therapy procedure codes, the Medicaid DME Program fee schedule established in 907 KAR 1:479 shall be utilized.

(b) For dates of service July 1, 2024, and after, the volume of services shall be reported by the provider on the Kentucky Medicaid Nursing Facility Ancillary Supplemental Schedule. The schedules on file by the department as of June 1 of each year shall be used to determine the ancillary fees. Additional information relating to the completion of supplemental schedules shall be accessed by utilizing the Kentucky Medicaid Nursing Facility Ancillary Supplemental Schedules Instructions.

(c) The sum from paragraphs (a) and (b) of this subsection shall be divided by the number of the provider's paid Medicaid days for the same time period.

(2) Respiratory therapy and respiratory therapy supplies shall be a routine service.

(3) Reimbursement for ancillary services provided to an individual in a critical access hospital swing bed shall be included in the critical access hospital swing bed reimbursement established in Section 3(2) of this administrative regulation.

Section 13. Quality Program.

(1) Beginning with rates effective July 1, 2025, there shall be a quality add on component in the prospective per diem rates, distributed from a pool of combined funding (state and federal share) from the provider assessment.

(a) For rates effective July 1, 2025, through December 31, 2025, the quality pool shall be five (5) percent of the increase to the provider assessment effective July 1, 2024.

(b) For rates effective January 1, 2026, through June 30, 2026, the quality pool shall be ten (10) percent of the increase to the provider assessment effective July 1, 2024.

(c) For rates effective July 1, 2026, through December 31, 2026, the quality pool shall be fifteen (15) percent of the increase to the provider assessment effective July 1, 2024.

(d) For rates effective January 1, 2027 and after, the quality pool shall be twenty (20) percent of the increase to the provider assessment effective July 1, 2024.

(2) The allowance to offset the provider assessment as determined in Section 5(5)(a) of this administrative regulation shall be reduced in order to fund the quality pool.

(3) Any leftover funds shall be rolled into the pool for the next state fiscal year.

(4) Points shall be determined on a tiered scoring allocation system, as set by the department, based on metrics from CMS Care Compare, the Supplemental Medicaid Schedules, and the Kentucky Medicaid Nursing Facility Quality Program Behavioral Health Metric Attestation Statement and may be adjusted periodically.

(5) Each metric shall be weighted equally in the collection of total points and distributed by the facility's percentage of weighted Medicaid days.

(6) The quality add on shall be updated on a quarterly basis based on the most recent information as of the day preceding the rate effective date.

Section 14. Appeal Rights. A price-based NF may appeal a department decision as to the application of this administrative regulation in accordance with 907 KAR 1:671.

Section 15. Supplemental Payments to Nonstate Government-Owned or Operated Nursing Facilities.

(1) Beginning July 1, 2001, subject to state funding made available for this provision by a transfer of funds from a governmental entity, the department shall make a supplemental payment to a qualified nursing facility.

(2) To qualify for a supplemental payment under this section, a nursing facility shall:

(a) Be owned or operated by a local unit of government pursuant to 42 C.F.R. 447.272(a)(2);

(b) Have at least 140 or more Medicaid-certified beds; and

(3) For each state fiscal year, the department shall calculate the maximum supplemental payment that it may make to qualifying nursing facilities in accordance with 42 C.F.R. 447.272.

(4) Using the data reported by a nursing facility on a Schedule NF-7 submitted to the department as of December 31, 2000, the department shall identify each nursing facility that meets the criteria established in subsection (2) of this section.

(5) The department shall determine a supplemental payment factor for a qualifying nursing facility by dividing the qualifying nursing facility's total Medicaid days by the total Medicaid days for all qualifying nursing facilities.

(6) The department shall determine a supplemental payment for a qualifying nursing facility by applying the supplemental payment factor established in subsection (5) of this section to the total amount available for funding under this section.

(7) Total payments made under this section shall not exceed the amount determined in subsection (3) of this section.

(8) Payments made under this section shall:

(a) Apply to services provided on or after April 1, 2001; and

(b) Be made on a quarterly basis.

Section 16. 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 17. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Medicare Provider Reimbursement Manual - Part 2 (Pub. 15-2), Sections 102, 102.1, 102.3, and 104", October 2007;

(b) The "Instructions for Completing the Medicaid Supplemental Schedules", April 2015;

(d) The "Kentucky Medicaid Nursing Facility Ancillary Supplemental Schedule," June 2024;

(e) The "Kentucky Medicaid Nursing Facility Ancillary Supplemental Schedules Instructions," July 2024;

(f) The "Kentucky Medicaid Nursing Facility Quality Program Behavioral Health Metric Attestation Statement", May 2025; and

(g) "Minimum Data Set (MDS) – Version 3.0, Resident Assessment and Care Screening, Nursing Home Comprehensive (NC) Version 1.19.1", October 1, 2024.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the:

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

(b) Following location on the department's website: https://www.chfs.ky.gov/agencies/dms/provider/Pages/nursingfacilities.aspx .

History

RELATES TO: KRS 142.361, 142.363, 216.380, 42 C.F.R. Parts 430, 431, 432, 433, 435, 440, 441, 442, 447, 455, 456, 482.58, 483.10, 483.20, 42 U.S.C. 1395tt, 1396, 1396a, 1396b, 1396c, 1396d, 1396g, 1396l, 1396n, 1396o, 1396p, 1396r, 1396r-2, 1396r-5
STATUTORY AUTHORITY: KRS 142.361(5), 142.363(3), 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the method for determining amounts payable by the Medicaid program for services provided by a price-based nursing facility.
History: 907 KAR 001:065. 26 Ky.R. 2177; 27 Ky.R. 133; eff. 7-17-2000; 28 Ky.R. 945; 1405; eff. 12-19-2001; 29 Ky.R. 2540; 2892; eff. 6-16-2003; 30 Ky.R. 1635; 2036; eff. 3-18-2004; 31 Ky.R. 463; 1262; eff. 1-21-2005; 32 Ky.R. 995; 1445; eff. 3-31-2006; TAm eff. 7-16-2013; 43 Ky.R. 1485, 1997, 2149; eff. 7-7-2017; TAm eff. 10-30-2017; 49 Ky.R. 444, 1313; eff. 1-12-2023; 50 Ky.R. 1779; eff. 6-18-2024; 52 Ky.R. 635, 1138; eff. 1-22-2026.) COMPILER'S NOTE: 2025 RS HB 6, enacted by the General Assembly on March 27, 2025, altered the information to be provided at the time an administrative regulation is filed. Aside from formatting changes necessary to upload the regulation into the LRC's publication application, this regulation has been published as submitted by the agency.

907 KAR 1:075 Hearings and appeals for individuals with an intellectual disability {#sec-907-kar-1-075 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:075}

Section 1. Definitions.

(1) "At the time of any action affecting a recipient's claim" means at the time that the cabinet proposes to:

(a) Reclassify the level of care of a recipient; or

(b) Transfer the recipient from the state institution in which the recipient is lodged.

(2) "Authorized representative" means:

(a)

A parent;
A guardian;
A committee of the recipient; or
Other person designated by the recipient including a relative or friend;

(b) An attorney acting at the request of the parent, guardian, committee of the recipient, or on behalf of the recipient; or

(3) "Recipient" means an individual:

(a) With an intellectual disability;

(b) Lodged in a state institution;

(d) Who is having the cost of his or her care paid for using funds from the Medicaid Program.

Section 2. Informing the Recipient of the Recipient's Rights. Each recipient and authorized representative shall be informed in writing:

(1) At the time of any action affecting the recipient's claim, of the recipient's right to a hearing;

(2) Of the method by which the recipient may obtain a hearing; and

(3) That the recipient shall be represented by an authorized representative or be self-represented.

Section 3. Request for a Hearing. At the time of any action affecting a recipient's claim, any recipient, or an authorized representative acting on the recipient's behalf, may request a hearing by filing a written statement clearly indicating a desire for a hearing with the secretary of the Cabinet for Health and Family Services.

Section 4. Time Limitation for Request. The time limitation for a hearing request shall be as established in KRS 210.270.

Section 5. Continuation of Benefits. If the request for a hearing of a decision to reclassify or transfer any patient with an intellectual disability is received within the thirty (30) day period established by KRS 210.270:

(1) Medicaid reimbursement shall continue, until the conclusion of the hearing; and

(2) The recipient shall not be transferred, until the conclusion of the hearing.

Section 6. Acknowledgment of Hearing Requests by the Appeal Panel.

(1) The acknowledgment letter sent by the appeal panel shall contain information regarding the hearing process, including:

(a) The right to case record review prior to the hearing; and

(b) The right to representation.

(2) A subsequent notification shall include the time and place where the hearing will be held.

Section 7. Withdrawal or Dismissal of Request.

(1) The recipient, or the recipient's authorized representative, may withdraw the recipient's request for a hearing at any time prior to release of the appeal panel's decision.

(2) As appropriate, the recipient or the recipient's authorized representative shall be granted the opportunity to discuss withdrawal with the recipient's legal counsel or representative, if any, prior to finalizing the action.

(3) Except as provided in subsection (4) of this section, a hearing request shall be dismissed if the recipient fails to report for the hearing without prior notification.

(4) A hearing request shall not be dismissed without extending to the recipient, or the recipient's authorized representative, the opportunity to establish that the failure to report for the hearing was for good cause.

Section 8. Recipient's Rights Prior to a Hearing.

(1) Each recipient and the recipient's authorized representative, as appropriate, shall be informed of the recipient's right to:

(a) Legal counsel or other representation;

(b) Case record review relating to the issue; and

(2) If the hearing involves medical issues:

(a) A medical assessment shall be completed by a different provider than the person or persons involved in the original decision if the appeal panel considers it necessary pursuant to subsection (3) of this section.

(b) The medical assessment may be requested by:

The recipient;
The recipient's authorized representative; or
An appeal panel member.

(3) A medical assessment shall be considered necessary by the appeal panel if, in the opinion of a majority of the members of the appeal panel, the available medical information is insufficient for the appeal panel to determine whether the recipient should be:

(a) Reclassified; or

(b) Transferred.

(4) The reason for denial shall be set forth in writing if:

(a) A medical assessment at cabinet expense is requested by the recipient; and

(b) The request for a medical assessment is denied by the appeal panel.

Section 9. Corrective Action Prior to a Hearing.

(1) Prior to a hearing, the chair of the appeal panel may review the case record. If the chair determines that a proposed, pending, or completed action was made erroneously or inappropriately, the chair shall authorize corrective action in the form of:

(a) Continuing assistance; or

(b) Eligibility.

(2) Except as provided in subsection (3) of this section, following a corrective action pursuant to subsection (1) of this section, the hearing request shall be dismissed.

(3) A hearing request shall be subject to reinstatement at the request of the recipient or the recipient's authorized representative if that individual feels the corrective action does not fully resolve the issues prompting the hearing request.

(4) Any request for reinstatement pursuant to this section shall be made within twenty (20) days of the notice of the corrective action.

Section 10. Conduct of a Hearing.

(1) A hearing or appeal relating to a decision to reclassify or transfer a person with an intellectual disability in a state institution shall be in accordance with the requirements established in 42 C.F.R. 431 Subpart E (431.200 through 431.250), KRS 210.270, and, as necessary, KRS Chapter 13B.

(2) The appeal panel shall be appointed as required by KRS 210.270.

(3) A hearing officer of the Cabinet for Health and Family Services Administrative Hearings Branch shall be designated as the cabinet representative, in accordance with KRS 210.270(6).

(4) The hearing officer shall conduct the hearing in accordance with KRS 13B.080 and 194A.025.

(5) The chair of the appeal panel may direct or grant a continuance of a hearing in order to secure necessary evidence.

(6) In accordance with KRS 194A.060 and 205.175, all members of the appeal panel shall be required to:

(a) Maintain the confidentiality of:

The hearings;
The records;
The reports; and
All other documents related to the appeal panel; and

(b) Safeguard all information relating to:

The recipient; and
Any authorized representative.

(7) The chair of the appeal panel shall be responsible for:

(a) Maintaining the official records of a patient's case before the appeal panel;

(b) Receiving a notice of appeal;

(d) Taking and recording the vote of the appeal panel; and

(e) Sending notice of the decision to the:

Recipient; or
Authorized representative.

(8) Following the hearing, the chair of the appeal panel shall:

(a) Take the vote of the appeal panel; and

(b) Assign the task of writing the decision to the chair or any other member of the appeal panel.

(9) The decision of the appeal panel shall:

(a) Be in writing;

(b) Include a finding of facts;

(d) Be sent to the appealing party within ninety (90) days from the date of the request for the hearing; and

(e) Advise the recipient or authorized representative of the right to appeal the decision in the manner prescribed by KRS 210.270(7).

(10) The recipient, the recipient's representative, and any other party to the hearing may:

(a) Present evidence pertinent to the issue on which the adverse action was, or is proposed to be, taken; and

(b) Advance any arguments without undue interference.

(11) The chair and other members of the appeal panel shall, if necessary to secure full information on the issue, examine each party who appears and the party's witnesses.

Section 11. Limitation of Fees.

(1) The cabinet, and its officers and employees, either in their official or personal capacity, shall not be liable for payment of any attorney's fee. In accordance with KRS 205.237, the fee an attorney may charge an individual shall not exceed the following:

(a) Seventy-five (75) dollars for preparation and appearance at the hearing before an appeal panel;

(b) $175 for preparation and presentation, including pleadings and appearance in courts, of appeals to the Circuit Court;

(d) $300 for preparatory work and briefs and all other matters incident to appeals to the Supreme Court.

(2) The fee agreed to by the attorney and his or her client within the maximums established pursuant to subsection (1) of this section shall be deemed to have the approval of the cabinet.

(3)

(a) Enforcement of payment of the fee shall be a matter entirely between the attorney and the recipient.

(b) The fee shall not be deducted, either in whole or in part, from benefit checks that may be due and payable to the recipient.

History

RELATES TO: KRS 194A.060, 205.175, 205.231, 205.237, 210.270
STATUTORY AUTHORITY: KRS 194A.025(1), 194A.050(1), 205.231, 205.237, 205.520(3), 205.531, 42 C.F.R. 431 Subpart E, 42 U.S.C. 1396
NECESSITY, FUNCTION, AND CONFORMITY: KRS 205.231 and 210.270 require the Cabinet for Health and Family Services, Department for Medicaid Services, to establish a system of hearings to be available to Medicaid recipients. KRS 194A.050(1) requires the cabinet to promulgate administrative regulations necessary to operate the programs and fulfill the responsibilities vested in the cabinet; or to comply with federal law. This administrative regulation establishes the hearing procedures for Medicaid-eligible individuals with an intellectual disability lodged in state institutions who are proposed by the cabinet to be reclassified and transferred. In accordance with KRS 205.237, this administrative regulation also establishes the maximum fees that may be charged to the recipient for representation by attorneys with regard to the hearings or further resultant appeals.
History: 907 KAR 001:075. 6 Ky.R. 487; eff. 4-1-1980; Recodified from 904 KAR 1:075, 5-2-1986; 18 Ky.R. 1629; eff.1-10-1992; TAm 7-16-2013; 45 Ky.R. 1441, 2104; eff. 2-1-2019; TAm eff. 3-20-2020; Crt eff. 8-13-2025.

907 KAR 1:082 Coverage provisions and requirements regarding rural health clinic services {#sec-907-kar-1-082 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:082}

Section 1. Definitions.

(1) "Adult peer support specialist" means an individual who meets the requirements for an adult peer support specialist established in 908 KAR 2:220.

(2) "Advanced practice registered nurse" is defined by KRS 314.011(7).

(3) "Approved behavioral health practitioner" means an independently licensed practitioner who is:

(a) A physician;

(b) A psychiatrist;

(d) A physician assistant;

(e) A licensed psychologist;

(f) A licensed psychological practitioner;

(g) A certified psychologist with autonomous functioning;

(h) A licensed clinical social worker;

(i) A licensed professional clinical counselor;

(j) A licensed marriage and family therapist;

(k) A licensed professional art therapist;

(l) A licensed clinical alcohol and drug counselor; or

(m) A licensed behavior analyst.

(4) "Approved behavioral health practitioner under supervision" means an individual under billing supervision of an approved behavioral health practitioner who is:

(a)

A licensed psychological associate working under the supervision of a board-approved licensed psychologist;
A certified psychologist working under the supervision of a board-approved licensed psychologist;
A marriage and family therapy associate;
A certified social worker;
A licensed professional counselor associate;
A licensed professional art therapist associate;
A licensed clinical alcohol and drug counselor associate;
A certified alcohol and drug counselor;
A behavioral health associate, as permissible pursuant to 907 KAR Chapter 15; or
A licensed assistant behavior analyst; and

(b) Employed by or under contract with the same billing provider as the billing supervisor.

(5) "ASAM Criteria" means the most recent edition of "The ASAM Criteria, Treatment Criteria for Addictive, Substance-Related, and Co-occurring Conditions" published by the American Society of Addiction Medicine.

(6) "Certified alcohol and drug counselor" is defined by KRS 309.080(4).

(7) "Certified social worker" means an individual who meets the requirements established in KRS 335.080.

(8) "Community support associate" means a paraprofessional whomeets the community support associate requirements established in 908 KAR 2:250.

(9) "Co-occurring disorder" means a mental health and substance use disorder.

(10) "Department" means the Department for Medicaid Services or its designee.

(11) "Enrollee" means a recipient who is enrolled with a managed care organization.

(12) "Family peer support specialist" means an individual who meets the requirements for a Kentucky family peer support specialist established in 908 KAR 2:230.

(13) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(14) "Homebound recipient" is defined by 42 C.F.R. 440.20(b)(4)(iv).

(15) "In-person" means a healthcare encounter occurring:

(a) Via direct consultation and interaction between the individual and healthcare provider;

(b) At the same location; and

(16) "Intermittent nursing care" is defined by 42 C.F.R. 405.2401(b).

(17) "Licensed assistant behavior analyst" is defined by KRS 319C.010(7).

(18) "Licensed behavior analyst" is defined by KRS 319C.010(6).

(19) "Licensed clinical alcohol and drug counselor" is defined by KRS 309.080(7).

(20) "Licensed clinical alcohol and drug counselor associate" is defined by KRS 309.080(9).

(21) "Licensed clinical social worker" means an individual who meets the licensed clinical social worker requirements established in KRS 335.100.

(22) "Licensed marriage and family therapist" is defined by KRS 335.300(2).

(23) "Licensed professional art therapist" is defined by KRS 309.130(2).

(24) "Licensed professional art therapist associate" is defined by KRS 309.130(3).

(25) "Licensed professional clinical counselor" is defined by KRS 335.500(3).

(26) "Licensed professional counselor associate" is defined by KRS 335.500(4).

(27) "Licensed psychological associate" means:

(a) An individual who:

Currently possesses a licensed psychological associate license in accordance with KRS 319.010(6); and
Meets the licensed psychological associate requirements established in 201 KAR Chapter 26; or

(b) A certified psychologist.

(28) "Licensed psychological practitioner" means:

(a) An individual who meets the requirements established in KRS 319.053; or

(b) A certified psychologist with autonomous functioning.

(29) "Licensed psychologist" means an individual who:

(a) Currently possesses a licensed psychologist license in accordance with KRS 319.010(6); and

(b) Meets the licensed psychologist requirements established in 201 KAR Chapter 26.

(30) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(31) "Marriage and family therapy associate" is defined by KRS 335.300(3).

(32) "Medically necessary" means that a covered benefit or service is necessary in accordance with 907 KAR 3:130.

(33) "Medication assisted treatment" means the treatment of a substance use disorder with approved medications in combination with counseling, behavior therapies, and other supports.

(34) "Other ambulatory services" is defined by 42 C.F.R. 440.20(c).

(35) "Part-time nursing care" is defined by 42 C.F.R. 405.2401(b).

(36) "Physician" is defined by KRS 205.510(12).

(37) "Physician assistant" is defined by KRS 311.840(3) and 42 C.F.R. 405.2401(b).

(38) "Recipient" is defined by KRS 205.8451(9).

(39) "Registered alcohol and drug peer support specialist" is defined by KRS 309.080(12).

(40) "Registered behavior technician" means an individual who meets the following requirements by the Behavior Analyst Certification Board:

(a) Be at least eighteen (18) years of age;

(b) Have a high school diploma or its equivalent; and

(c) Within six (6) months of hire for a new employee or within six (6) months of January 1, 2023 for an existing employee:

Complete a training program that is:

a. Approved by the Behavior Analyst Certification Board;

b. Based on the current edition of the RBT Task List endorsed by the Behavior Analyst Certification Board; and

c. Conducted by Behavior Analyst Certification Board certificants;

Pass the Registered Behavior Technician Competency Assessment administered by a Behavior Analyst Certification Board certificant; and
Pass the Registered Behavior Technician exam provided by an assistant assessor supervised by a Behavior Analyst Certification Board certificant.

(41) "Rural health clinic" or "RHC" is defined by 42 C.F.R. 405.2401(b).

(42) "State plan" is defined by 42 C.F.R. 400.203.

(43) "Visiting nurse services" is defined by 42 C.F.R. 405.2401(b).

(44) "Withdrawal management" means a set of interventions aimed at managing acute intoxication and withdrawal based on the severity of the illness and co-occurring conditions identified through a comprehensive biopsychosocial assessment with linkage to addiction management services, and incorporated into a recipient's care as needed throughout the appropriate levels of care.

(45) "Youth peer support specialist" means an individual who meets the requirements established for a Kentucky youth peer support specialist established in 908 KAR 2:240.

Section 2. Covered Services Other Than Behavioral Health Services. The department shall cover the following medically necessary rural health clinic services provided by a RHC that has been certified in accordance with 42 C.F.R. 491.1 through 491.11:

(1) Services pursuant to 42 U.S.C. 1395x(aa);

(2) Services provided by a physician if the physician:

(a) Complies with the physician responsibility requirements established by 42 C.F.R. 491.8(b); and

(b)

Performs the services in a RHC; or
Is compensated under an agreement with a RHC for providing services provided to a Medicaid eligible RHC patient in a location other than the RHC;

(3) Services provided by a physician assistant or advanced practice registered nurse who is employed by or receives compensation from the RHC if the services:

(a) Are provided by a member of the RHC's staff who complies with the responsibility requirements established by 42 C.F.R. 491.8(c);

(b) Are provided under the medical supervision of a physician, except for services provided by an APRN as these services shall not be required to be provided under the medical supervision of a physician;

(c) Are provided in accordance with a medical order for the care and treatment of a patient as prepared by a physician or an advanced practice registered nurse;

(d) Are within the provider's legally-authorized scope of practice; and

(e) Would be covered if provided by a physician;

(4) Services or supplies provided as incidental to services provided by a physician, physician assistant, or advanced practice registered nurse if the service or supply meets the criteria established in 42 C.F.R. 405.2413 or 42 C.F.R. 405.2415;

(5) Part-time or intermittent visiting nurse care and related supplies, except for drugs or biologicals, if:

(a) The RHC is located in an area where a determination has been made that there is a shortage of home health agencies pursuant to 42 C.F.R. 405.2417;

(b) The services are provided by a registered nurse or licensed practical nurse who is employed by or compensated for the services by the RHC; and

Established and reviewed at least every sixty (60) days by a supervising physician of the RHC; or
Established by a physician, physician assistant, or advanced practice registered nurse and reviewed and approved at least every sixty (60) days by a supervising physician of the RHC; or

(6) Other ambulatory services as established in the state plan.

Section 3. Behavioral Health Services.

(1) Except as established in the requirements stated for a given service, the services covered may be provided for:

(a) A mental health disorder;

(b) A substance use disorder; or

(2) The department shall cover, and a rural health clinic may provide, the following services:

(3) In addition to the services referenced in subsection (2) of this section, the following behavioral health services provided by a rural health clinic shall be covered under this administrative regulation in accordance with the corresponding following requirements:

(a) A screening shall:

Determine the likelihood that an individual has a mental health disorder, a substance use disorder, or co-occurring disorders;
Not establish the presence or specific type of disorder;
Establish the need for an in-depth assessment:
Be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision;

(b) An assessment shall:

Include gathering information and engaging in a process with the individual that enables the provider to:

a. Establish the presence or absence of a mental health disorder, substance use disorder, or co-occurring disorders;

b. Determine the individual's readiness for change;

c. Identify the individual's strengths or problem areas that could affect the treatment and recovery processes; and

d. Engage the individual in developing an appropriate treatment relationship;

Establish or rule out the existence of a clinical disorder or service need;
Include working with the individual to develop a treatment and service plan;
Not include a psychological or psychiatric evaluation or assessment;
If being made for the treatment of a substance use disorder, utilize a multidimensional assessment that complies with the most current edition of the ASAM Criteria to determine the most appropriate level of care; and
Be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision;

Include a psychodiagnostic assessment of personality, psychopathology, emotionality, or intellectual disabilities;
Include an interpretation and a written report of testing results;
Be provided by a licensed:

a. Psychologist;

b. Psychological practitioner; or

c. Psychological associate working under the supervision of a licensed psychologist; and

Be in-person or via telehealth as appropriate pursuant to 907 KAR 3:170;

(d) Crisis intervention:

Shall be a therapeutic intervention for the purpose of immediately reducing or eliminating the risk of physical or emotional harm to:

a. The recipient; or

b. Another individual;

Shall consist of clinical intervention and support services necessary to provide integrated crisis response, crisis stabilization interventions, or crisis prevention activities for an individual with a behavioral health disorder;
Shall be provided:

a. On-site at a rural health clinic;

b. As an immediate relief to the presenting problem or threat; and

c. In a one-on-one encounter between the provider and the recipient, which shall be delivered either in-person or via telehealth if appropriate pursuant to 907 KAR 3:170;

May include:

a. Verbal de-escalation, risk assessment, or cognitive therapy; or

b. Further service planning including:

(i) Lethal means reduction for suicide; or

(ii) Substance use disorder or relapse prevention;

Shall be followed by a referral to non-crisis services if applicable; and
Shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision;

(e)

Service planning shall:

a. Be provided in-person or via telehealth as appropriate pursuant to the most current version of The ASAM Criteria and 907 KAR 3:170;

b. Involve assisting a recipient in creating an individualized plan for services needed for maximum reduction of an intellectual disability and to restore the individual to his or her best possible functional level;

c. Involve restoring a recipient's functional level to the recipient's best possible functional level; and

d. Be performed using a person-centered planning process;

A service plan:

a. Shall be directed and signed by the recipient;

b. Shall include practitioners of the recipient's choosing; and

c. May include:

(i) A mental health advance directive being filed with a local hospital;

(ii) A crisis plan; or

(iii) A relapse prevention strategy or plan;

(f) Individual outpatient therapy shall:

Be provided to promote the:

a. Health and wellbeing of the individual; and

b. Restoration of a recipient to the recipient's best possible functional level from a substance use disorder or a co-occurring disorder;

Consist of:

a. An in-person or via telehealth as appropriate pursuant to 907 KAR 3:170, one-on-one encounter between the provider and recipient; and

b. A behavioral health therapeutic intervention provided in accordance with the recipient's identified treatment plan;

Be aimed at:

a. Reducing adverse symptoms;

b. Reducing or eliminating the presenting problem of the recipient; and

c. Improving functionality;

Not exceed three (3) hours per day; and
Be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

(g)

Family outpatient therapy shall consist of an in-person, or via telehealth as appropriate pursuant to 907 KAR 3:170, behavioral health therapeutic intervention provided:

a. Through scheduled therapeutic visits between the therapist and the recipient and at least one (1) member of the recipient's family; and

b. To address issues interfering with the relational functioning of the family and to improve interpersonal relationships within the recipient's home environment.

A family outpatient therapy session shall be billed as one (1) service regardless of the number of individuals, including multiple members from one (1) family, who participate in the session.
Family outpatient therapy shall:

a. Be provided to promote the:

(i) Health and wellbeing of the individual; or

(ii) Restoration of a recipient to their best possible functional level from a substance use disorder or co-occurring disorders; and

b. Not exceed three (3) hours per day alone or in combination with any other outpatient therapy per recipient unless additional time is medically necessary.

Family outpatient therapy shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision;

(h)

Group outpatient therapy shall:

a. Be a behavioral health therapeutic intervention provided in accordance with a recipient's identified plan of care;

b. Be provided to promote the:

(i) Health and wellbeing of the individual; and

(ii) Restoration of a recipient to their best possible functional level from a substance use disorder or co-occurring disorder;

c. Consist of an in-person, or via telehealth as appropriate pursuant to 907 KAR 3:170, behavioral health therapeutic intervention provided in accordance with the recipient's identified treatment plan;

d. Be provided to a recipient in a group setting:

(i) Of nonrelated individuals; and

(ii) Not to exceed twelve (12) individuals in size;

e. Focus on the psychological needs of the recipients as evidenced in each recipient's plan of care;

f. Center on goals including building and maintaining healthy relationships, personal goals setting, and the exercise of personal judgment;

g. Not include physical exercise, a recreational activity, an educational activity, or a social activity; and

h. Not exceed three (3) hours per day alone or in combination with any other outpatient therapy per recipient unless additional time is medically necessary.

A family outpatient therapy group shall have a:

a. Deliberate focus; and

b. Defined course of treatment.

The subject of a group receiving group outpatient therapy shall be related to each recipient participating in the group.
The provider shall keep individual notes regarding each recipient within the group and within each recipient's health record.
Family outpatient therapy shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision;

(i)

Collateral outpatient therapy shall:

a. Consist of an in-person or appropriate telehealth, provided pursuant to 907 KAR 3:170, behavioral health consultation:

(ii) That is provided in accordance with the recipient's treatment plan;

b. Not be reimbursable if the therapy is for a recipient who is at least twenty-one (21) years of age; and

c. Not exceed three (3) hours per day alone or in combination with any other outpatient therapy per recipient unless additional time is medically necessary.

Written consent by a parent or custodial guardian to discuss a recipient's treatment with any person other than a parent or legal guardian shall be signed and filed in the recipient's health record.
Collateral outpatient therapy shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision;

(j)

Screening, brief intervention, and referral to treatment for a substance use disorder shall:

a. Be an evidence-based early intervention approach for an individual with non-dependent substance use to provide an effective strategy for intervention prior to the need for more extensive or specialized treatment;

b. Consist of:

(i) Using a standardized screening tool to assess an individual for risky substance use behavior;

(ii) Engaging a recipient who demonstrates risky substance use behavior in a short conversation and providing feedback and advice; and

(iii) Referring a recipient to additional substance use disorder or co-occurring disorder services if the recipient is determined to need additional services to address substance use if the recipient is determined to need other additional services;

c. Be provided in-person or via telehealth as appropriate according to 907 KAR 3:170;

d. Be provided by:

(i) An approved behavioral health practitioner; or

(ii) An approved behavioral health practitioner under supervision.

A screening and brief intervention that does not meet criteria for referral to treatment may be subject to coverage by the department.

(k)

Day treatment shall be a nonresidential, intensive treatment program designed for a child under the age of twenty-one (21) years who has:

a. An emotional disability, neurobiological disorder, or substance use disorder; and

b. A high risk of out-of-home placement due to a behavioral health issue.

Day treatment services shall:

a. Consist of an organized, behavioral health program of treatment and rehabilitative services (substance use disorder, mental health disorder, or co-occurring disorders);

b. Have unified policies and procedures that:

(i) Address the program philosophy, admission and discharge criteria, admission and discharge process, staff training, and integrated case planning; and

(ii) Have been approved by the recipient's local education authority and the day treatment provider;

c. Include:

(i) Individual outpatient therapy, family outpatient therapy, or group outpatient therapy;

(ii) Behavior management and social skill training;

(iii) Independent living skills that correlate to the age and development stage of the recipient; or

(iv) Services designed to explore and link with community resources before discharge and to assist the recipient and family with transition to community services after discharge; and

d. Be provided:

(ii) On school days and during scheduled breaks;

(iii) In coordination with the recipient's individualized education program if the recipient has an individualized education program;

(iv) Under the supervision of a licensed or certified behavioral health practitioner or a behavioral health practitioner working under billing supervision; and

(v) With a linkage agreement with the local education authority that specifies the responsibilities of the local education authority and the day treatment provider.

To provide day treatment services, a RHC shall have:

a. The capacity to employ staff authorized to provide day treatment services in accordance with subparagraph 2. of this paragraph and to coordinate the provision of services among team members;

b. The capacity to provide the full range of services as stated in subparagraphs 1 and 2 of this paragraph;

c. Demonstrated experience in serving individuals with behavioral health disorders, mental health disorders, and co-occurring disorders;

d. The administrative capacity to ensure quality of services;

e. A financial management system that provides documentation of services and costs;

f. The capacity to document and maintain individual case records; and

g. Knowledge of substance use disorders.

Day treatment shall not include a therapeutic clinical service that is included in a child's individualized education program.

(l)

Comprehensive community support services shall:

a. Be activities necessary to allow an individual to live with maximum independence in community-integrated housing;

b. Be intended to ensure successful community living through the utilization of skills training, cueing, or supervision as identified in the recipient's treatment plan;

c. Include:

(i) Reminding a recipient to take medications and monitoring symptoms and side effects of medications; or

d. Meet the requirements for comprehensive community support services established in 908 KAR 2:250.

To provide comprehensive community support services, a RHC shall have:

b. The capacity to provide the full range of comprehensive community support services as stated in subparagraph 1 of this paragraph;

c. Demonstrated experience in serving individuals with behavioral health disorders;

d. The administrative capacity to ensure quality of services;

e. A financial management system that provides documentation of services and costs; and

f. The capacity to document and maintain individual case records.

Comprehensive community support services shall be provided by:

a. An approved behavioral health practitioner, except for a licensed clinical alcohol and drug counselor; or

b. An approved behavioral health practitioner under supervision, except for a:

(i) Certified alcohol and drug counselor; or

(ii) Licensed clinical alcohol and drug counselor associate.

Support services for comprehensive community support services conducted by a rural health clinic by an individual working under the supervision of an approved behavioral health practitioner shall be provided by a:

a. Community support associate; or

b. Registered behavioral technician under the supervision of a licensed behavioral analyst.

(m)

Intensive outpatient program services shall:

a. Be an alternative to or transition from inpatient hospitalization or partial hospitalization for a mental health disorder, substance use disorder, or co-occurring disorders;

c. If provided for a substance use disorder, meet the service criteria, including the components for support systems, staffing, and therapies outlined in the most current version of the ASAM Criteria for intensive outpatient level of care services;

d. Be provided at least three (3) hours per day at least three (3) days per week;

e. Be provided at least six (6) hours per week for adolescents; and

f. Include:

(i) Individual outpatient therapy, group outpatient therapy, or family outpatient therapy unless contraindicated;

(ii) Crisis intervention; or

(iii) Psycho-education related to identified goals in the recipient's treatment plan.

During psycho-education, the recipient or family member shall be:

a. Provided with knowledge regarding the recipient's diagnosis, the causes of the condition, and the reasons why a particular treatment might be effective for reducing symptoms; and

b. Taught how to cope with the recipient's diagnosis or condition in a successful manner.

An intensive outpatient program treatment plan shall:

a. Be individualized; and

b. Focus on stabilization and transition to a lesser level of care.

To provide intensive outpatient program services, a RHC shall have:

a. Access to a board-certified or board-eligible psychiatrist for consultation;

b. Access to a psychiatrist, other physician, physician's assistant, or advanced practiced registered nurse for medication prescribing and monitoring;

c. Adequate staffing to ensure a minimum recipient-to-staff ratio of ten (10) to one (1);

d. The capacity to provide services utilizing a recognized intervention protocol based on nationally accepted treatment principles;

e. The capacity to employ staff authorized to provide intensive outpatient program services in accordance with subparagraph 4. of this paragraph and to coordinate the provision of services among team members;

f. The capacity to provide the full range of intensive outpatient program services as stated in this paragraph;

g. Demonstrated experience in serving individuals with behavioral health disorders;

h. The administrative capacity to ensure quality of services;

i. A financial management system that provides documentation of services and costs; and

j. The capacity to document and maintain individual case records.

Intensive outpatient program services shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

(n)

Therapeutic rehabilitation program services shall:

a. Occur at the provider's site or in the community;

b. Be provided to an adult with a severe and persistent mental illness or to a child (under the age of twenty-one (21) years) who has a serious emotional disability;

c. Be designed to maximize the reduction of an intellectual disability and the restoration of the individual's functional level to the individual's best possible functional level; and

d. Not be a residential program.

A recipient in a therapeutic rehabilitation program shall establish the recipient's own rehabilitation goals within the person-centered service plan.
A therapeutic rehabilitation program shall:

a. Be delivered using a variety of psychiatric rehabilitation techniques;

b. Focus on:

(i) Improving daily living skills;

(ii) Self-monitoring of symptoms and side effects;

(iii) Emotional regulation skills;

(iv) Crisis coping skill; and

(v) Interpersonal skills;

c. Be delivered individually or in a group; and

d. Include:

(i) An individualized plan of care identifying measurable goals and objectives including discharge and relapse prevention planning;

(ii) Coordination of services the individual receives; and

(iii) Referral to other necessary service supports as needed.

To provide therapeutic rehabilitation program services, a RHC shall:

a. Have the capacity to employ staff authorized to provide therapeutic rehabilitation program services in accordance with paragraph (n) of this subsection and to coordinate the provision of services among team members;

b. Have the capacity to provide the full range of therapeutic rehabilitation program services as stated in this paragraph;

c. Have demonstrated experience in serving individuals with mental health disorders;

d. Have the administrative capacity to ensure quality of services;

e. Have a financial management system that provides documentation of services and costs; and

f. Have the capacity to document and maintain individual case records.

Program staffing for a therapeutic rehabilitation program shall include:

a. Licensed clinical supervision, consultation, and support to direct care staff; and

b. Direct care staff to provide scheduled therapeutic activities, training, and support.

Therapeutic rehabilitation services shall be provided by:

a. An approved behavioral health practitioner, except for a licensed clinical alcohol and drug counselor; or

b. An approved behavioral health practitioner under supervision, except for a:

(i) Certified alcohol and drug counselor; or

(ii) Licensed clinical alcohol and drug counselor associate.

If not provided by an allowed practitioner pursuant to clause 6. of this subparagraph, support services for therapeutic rehabilitation services shall be conducted by a provider:

a. Working under the supervision of an approved behavioral health practitioner; and

b. Who is:

(i) An adult peer support specialist;

(ii) A family peer support specialist; or

(iii) A youth peer support specialist.

(o)

Peer support services shall:

a. Be emotional support that is provided by:

(i) An individual who has been trained and certified in accordance with 908 KAR 2:220 and who is experiencing or has experienced a substance use disorder to a recipient by sharing a similar substance use disorder in order to bring about a desired social or personal change;

(ii) A parent or other family member, who has been trained and certified in accordance with 908 KAR 2:230, of a child having or who has had a substance use disorder to a parent or family member of a child sharing a similar substance use disorder in order to bring about a desired social or personal change;

(iii) An individual who has been trained and certified in accordance with 908 KAR 2:240 and identified as experiencing a substance use disorder; or

(iv) A registered alcohol and drug peer support specialist who has been trained and certified in accordance with KRS 309.0831 and is a self-identified consumer of substance use disorder services who provides emotional support to others with substance use disorder to achieve a desired social or personal change;

b. Be an evidence-based practice;

c. Be structured and scheduled non-clinical therapeutic activities with an individual recipient or a group of recipients;

d. Promote socialization, recovery, self-advocacy, preservation, and enhancement of community living skills for the recipient;

e. Except for the engagement into substance use disorder treatment through an emergency department bridge clinic, be coordinated within the context of a comprehensive, individualized plan of care developed through a person-centered planning process;

f. Be identified in each recipient's plan of care; and

g. Be designed to contribute directly to the recipient's individualized goals as established in the recipient's plan of care.

To provide peer support services, a chemical dependency treatment center shall:

a. Have demonstrated:

(i) The capacity to provide peer support services for the behavioral health population being served including the age range of the population being served; and

(ii) Experience in serving individuals with behavioral health disorders;

b. Employ peer support specialists who are qualified to provide peer support services in accordance with 908 KAR 2:220, 908 KAR 2:230, 908 KAR 2:240, or KRS 309.0831;

c. Use an approved behavioral health practitioner to supervise peer support specialists;

d. Have the capacity to coordinate the provision of services among team members;

e. Have the capacity to provide ongoing continuing education and technical assistance to peer support specialists;

f. Require individuals providing peer support services to recipients to provide no more than thirty (30) hours per week of direct recipient contact; and

g. Require peer support services provided to recipients in a group setting to not exceed eight (8) individuals within any group at one (1) time.

(p)

Partial hospitalization services shall be:

a. Short-term with an average of four (4) to six (6) weeks,

b. Less than twenty-four (24) hours each day;

c. An intensive treatment program for an individual who is experiencing significant impairment to daily functioning; and

d. Provided in-person or via telehealth as appropriate pursuant to the most recent version of The ASAM Criteria and 907 KAR 3:170.

Partial hospitalization may be provided to an adult or a minor.
Admission criteria for partial hospitalization shall be based on an inability of community-based therapies or intensive outpatient services to adequately treat the recipient.
A partial hospitalization program shall meet the service criteria, including the components for support systems, staffing, and therapies outlined in the most current version of The ASAM Criteria for partial hospitalization level of care services.
A partial hospitalization program shall consist of:

a. Individual outpatient therapy;

b. Group outpatient therapy;

c. Family outpatient therapy;

d. Medication management;

e. Psychoeducation; or

f. Peer support services.

The department shall not reimburse for educational, vocational, or job training services provided as part of partial hospitalization.

a. A rural health clinic's partial hospitalization program shall have an agreement with the local educational authority to come into the program to provide all educational components and instruction that are not Medicaid billable or reimbursable.

b. Services in a Medicaid eligible child's individualized education program shall be coverable under Medicaid.

Partial hospitalization shall be:

a. Provided for at least four (4) hours per day; and

b. Focused on one (1) primary presenting problem.

A partial hospitalization program operated by a rural health clinic shall:

a. Include the following personnel for the purpose of providing medical care:

(i) An advanced practice registered nurse, a physician assistant, or a physician available on site; and

(ii) A board-certified or board-eligible psychiatrist available for consultation; and

b. Have the capacity to:

(i) Provide services utilizing a recognized intervention protocol based on nationally accepted treatment principles;

(ii) Employ required practitioners and coordinate service provision among rendering practitioners; and

(iii) Provide the full range of services included in the scope of partial hospitalization established in this paragraph.

(q)

Withdrawal management services provided by a rural health clinic shall:

a. Be provided in-person or via telehealth as consistent with 907 KAR 3:170 for recipients with a substance use disorder or co-occurring disorder and incorporated into a recipient's care along the continuum of care as needed;

b. Meet service criteria in accordance with the most current version of the ASAM Criteria for withdrawal management levels in an outpatient setting; and

c. If provided in an outpatient setting, comply with 908 KAR 1:374, Section 2.

A recipient who is receiving withdrawal management services shall meet the most current edition of diagnostic criteria for substance withdrawal management as established by the most recent version of the Diagnostic and Statistical Manual of Mental Disorders.
Withdrawal management services in an outpatient setting shall be provided by:

a. A physician;

b. A psychiatrist;

c. A physician assistant;

d. An advanced practice registered nurse; or

e. An approved behavioral health practitioner or behavioral health practitioner under supervision with oversight by a physician, advanced practice registered nurse, or physician assistant.

(r)

Medication assisted treatment services shall be provided by an authorized prescribing provider who:

a. Is:

(i) A physician;

(ii) An advanced practice registered nurse;

(iii) A physician assistant; or

(iv) A psychiatrist;

b. Meets standards established pursuant to 201 KAR 9:270 or 201 KAR 20:065;

c. Maintains a current waiver under 21 U.S.C. 823(g)(2) to prescribe buprenorphine products including any waiving or expansion of buprenorphine prescribing authority by the federal government; and

d. Has experience and knowledge in addiction medicine.

Medication assisted treatment supporting behavioral health services shall Be co-located within the same practicing site as the practitioner who maintains a current waiver, as necessary, under 21 U.S.C. 823(g)(2) to prescribe buprenorphine products or via telehealth as appropriate pursuant to 907 KAR 3:170; or
A medication assisted treatment program shall:

a. Assess the need for treatment including:

(i) A full patient history to determine the severity of the patient's substance use disorder; and

(ii) Identifying and addressing any underlying or co-occurring diseases or conditions, as necessary;

b. Educate the patient about how the medication works, including:

(i) The associated risks and benefits; and

(ii) Overdose prevention;

c. Evaluate the need for medically managed withdrawal from substances;

d. Refer patients for higher levels of care if necessary; and

e. Obtain informed consent prior to integrating pharmacologic or nonpharmacologic therapies.

(s)

Applied behavior analysis services shall produce socially significant improvement in human behavior via the:

a. Design, implementation, and evaluation of environmental modifications;

b. Use of behavioral stimuli and consequences; or

c. Use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.

Applied behavior analysis shall be based on scientific research and the direct observation and measurement of behavior and environment, which utilize contextual factors, establishing operations, antecedent stimuli, positive reinforcement, and other consequences to assist recipients in:

a. Developing new behaviors;

b. Increasing or decreasing existing behaviors; and

c. Eliciting behaviors under specific environmental conditions.

Applied behavior analysis services may include principles, methods, and procedures of the experimental analysis of behavior and applied behavior analysis, including applications of those principles, methods, and procedures to:

a. Design, implement, evaluate, and modify treatment programs to change the behavior of individuals;

b. Design, implement, evaluate, and modify treatment programs to change the behavior of individuals that interact with a recipient;

c. Design, implement, evaluate, and modify treatment programs to change the behavior of a group or groups that interact with a recipient; or

d. Consult with individuals and organizations.

a. Applied behavior analysis services shall be provided by:

(i) A licensed behavior analyst;

(ii) A licensed assistant behavior analyst;

(iii) An approved behavioral health practitioner with documented training in applied behavior analysis; or

(iv) An approved behavioral health practitioner under supervision with documented training in applied behavior analysis.

b. A registered behavior technician under the supervision of an appropriate practitioner pursuant to clause a. of this subparagraph may provide support services, which shall be performed as established in this paragraph.

(4)

(a) Laboratory services shall be reimbursable in accordance with 907 KAR 1:028 if provided by a RHC if:

The RHC has the appropriate Clinical Laboratory Improvement Amendments (CLIA) certificate to perform laboratory testing pursuant to 907 KAR 1:028; and
The services are prescribed by a physician, advanced practice registered nurse, or physician assistant who is employed by or has a contractual relationship with the RHC.

(b) Laboratory services may be administered, as appropriate, by:

An approved behavioral health practitioner; or
An approved behavioral health practitioner under supervision.

(5)

(a) The requirements established in 908 KAR 1:370 shall apply to any provider of a service to a recipient for a substance use disorder or co-occurring mental health and substance use disorders.

(b) The withdrawal management requirements established in 908 KAR 1:370 shall apply to a provider of a withdrawal management service.

(6) The extent and type of assessment performed shall depend upon the problem of the individual seeking or being referred for services.

(8)

(a) Direct consultation between a provider or practitioner and a recipient shall be required for each service, except for a collateral service for a child under the age of twenty-one (21) years if the collateral service is in the child's plan of care.

(b) A service that does not meet the requirement in paragraph (a) of this subsection shall not be covered.

(9) A billable unit of service shall be actual time spent delivering a service in an encounter.

(10) A service shall be:

(a) Stated in the recipient's treatment plan;

(b) Provided in accordance with the recipient's treatment plan;

(d) Made available on a nonscheduled basis if necessary during a crisis or time of increased stress for the recipient.

(11) The following services or activities shall not be covered under this administrative regulation:

(a) A behavioral health service provided to:

A resident of:

a. A nursing facility; or

b. An intermediate care facility for individuals with an intellectual disability;

An inmate of a federal, local, or state:

a. Jail;

b. Detention center; or

c. Prison; or

An individual with an intellectual disability without documentation of an additional psychiatric diagnosis;

(d) Collateral outpatient therapy for an individual aged twenty-one (21) years or older;

(e) A telephone call, an email, a text message, or other electronic contact that does not meet the requirements stated in the definition for telehealth established pursuant to KRS 205.510(16) and implemented pursuant to 907 KAR 3:170;

(f) Travel time;

(g) A field trip;

(h) A recreational activity;

(i) A social activity; or

(j) A physical exercise activity group.

(12) A third party contract shall not be covered under this administrative regulation.

Section 4. Provision of Services. A RHC shall comply with the service provision requirements established by 42 C.F.R. 491.9.

Section 5. Immunizations. A RHC shall provide, upon request from a recipient, the following covered immunizations:

(1) Diphtheria and tetanus toxoids and pertussis vaccine (DPT);

(2) Measles, mumps, and rubella virus vaccine live (MMR);

(3) Poliovirus vaccine, live, oral (any type(s)) (OPV);

(4) Hemophilus B conjugate vaccine (HBCV):

(5) Hepatitis A;

(6) Meningococcal vaccines;

(7) Meningococcal ACWY vaccine (MenACWY); or

(8) Any other vaccine that is recommended by the Advisory Committee on Immunization Practice (ACIP) vaccines.

Section 6. Medical Necessity Requirement. To be covered pursuant to this administrative regulation, a service shall be:

(1) Medically necessary for the recipient; and

(2) Provided to a recipient.

Section 7. Noncovered Services.

(1) The following services shall not be covered as rural health clinic services:

(a) Services provided in a hospital as defined by 42 U.S.C. 1395x(e);

(b) Institutional services;

(d) Services that are not provided in accordance with restrictions imposed by law or administrative regulation.

(2) A third party contract shall not be covered under this administrative regulation.

Section 8. No Duplication of Service.

(1) The department shall not reimburse for a service provided to a recipient by more than one (1) provider of any program in which the service is covered during the same time period.

(2) For example, if a recipient is receiving a service from an independent behavioral health service provider, the department shall not reimburse for the same service provided to the same recipient during the same time period by a rural health clinic.

Section 9. Protection, Security, and Records Maintenance Requirements for All Services.

(1)

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

(b)

A health record shall document each service provided to the recipient including the date of service and signature of the individual who provided the service.
The individual who provided the service shall date and sign the health record within seventy-two (72) hours of the date that the individual provided the service.

(2)

(3)

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

(b) All information contained in a health record shall:

Be treated as confidential;
Not be disclosed to an unauthorized individual; and
If requested, be disclosed to an authorized representative of:

a. The department; or

b. Federal government.

(c)

Upon request, a provider shall provide to an authorized representative of the department or federal government information requested to substantiate:

a. Staff notes detailing a service that was rendered;

b. The professional who rendered a service; and

c. The type of service rendered and any other requested information necessary to determine, on an individual basis, if the service is reimbursable by the department.

Failure to provide information established in subparagraph 1. of this paragraph shall result in denial of payment for any service associated with the requested information.

Section 10. Documentation and Records Maintenance Requirements for Behavioral Health Services.

(1) The requirements in this section shall apply to health records associated with behavioral health services.

(2) A health record shall:

(a) Include:

An identification and intake record including:

a. Name;

b. Social Security number;

c. Date of intake;

d. Home (legal) address;

e. Health insurance or Medicaid information;

f. Referral source and address of referral source;

g. Primary care physician and address;

h. The reason the individual is seeking help including the presenting problem and diagnosis;

i. Any physical health diagnosis, if a physical health diagnosis exists for the individual, and information regarding:

(i) Where the individual is receiving treatment for the physical health diagnosis; and

(ii) The physical health provider; and

j. The name of the informant and any other information deemed necessary by the independent provider to comply with the requirements of:

(i) This administrative regulation;

(ii) The provider's licensure board;

(iii) State law; or

(iv) Federal law;

Documentation of the:

a. Screening;

b. Assessment;

c. Disposition; and

d. Six (6) month review of a recipient's treatment plan each time a six (6) month review occurs;

A complete history including mental status and previous treatment;
An identification sheet;
A consent for treatment sheet that is accurately signed and dated; and
The individual's stated purpose for seeking services; and

(b) Be:

Maintained in an organized central file;
Provided to the Cabinet for Health and Family Services upon request;
Made available for inspection and copying by Cabinet for Health and Family Services' personnel;
Readily accessible; and
Adequate for the purpose of establishing the current treatment modality and progress of the recipient.

(3) Documentation of a screening shall include:

(a) Information relative to the individual's stated request for services; and

(b) Other stated personal or health concerns if other concerns are stated.

(4)

(a) A provider's notes regarding a recipient shall:

Be made within seventy-two (72) hours of the reconciliation of the record of each service visit; and
Describe the:

a. Recipient's symptoms or behavior, reaction to treatment, and attitude;

b. Therapist's intervention;

c. Changes in the treatment plan if changes are made; and

d. Need for continued treatment if continued treatment is needed.

(b)

Any edit to notes shall:

a. Clearly display the changes; and

b. Be initialed and dated.

Notes shall not be erased or illegibly marked out.

(c)

Notes recorded by a practitioner working under supervision shall be co-signed and dated by the supervising professional providing the service.
If services are provided by a practitioner working under supervision, there shall be a monthly supervisory note recorded by the supervising professional reflecting consultations with the practitioner working under supervision concerning the:

a. Case; and

b. Supervising professional's evaluation of the services being provided to the recipient.

(5) Immediately following a screening of a recipient, the provider shall perform a disposition related to:

(a) An appropriate diagnosis;

(b) A referral for further consultation and disposition, if applicable; and

(c)

Termination of services and referral to an outside source for further services; or
Termination of services without a referral to further services.

(6)

(a) A recipient's treatment plan shall be reviewed at least once every six (6) months.

(b) Any change to a recipient's treatment plan shall be documented, signed, and dated by the rendering provider.

(7)

(a) Notes regarding services to a recipient shall:

Be organized in chronological order;
Be dated;
Be titled to indicate the service rendered;
State a starting and ending time for the service; and
Be recorded and signed by the rendering provider and include the professional title (for example, licensed clinical social worker) of the provider.

(b) Initials, typed signatures, or stamped signatures shall not be accepted.

(c) Telephone contacts, family collateral contacts not covered under this administrative regulation, or other nonreimbursable contacts shall:

Be recorded in the notes; and
Not be reimbursable.

(8)

(a) A termination summary shall:

Be required, upon termination of services, for each recipient who received at least three (3) service visits; and
Contain a summary of the significant findings and events during the course of treatment including the:

a. Final assessment regarding the progress of the individual toward reaching goals and objectives established in the individual's treatment plan;

b. Final diagnosis of clinical impression; and

c. Individual's condition upon termination and disposition.

(b) A health record relating to an individual who terminated from receiving services shall be fully completed within ten (10) days following termination.

(11)

(a) If a provider's Medicaid program participation status changes as a result of voluntarily terminating from the Medicaid program, involuntarily terminating from the Medicaid program, a licensure suspension, or death of the provider, the health records of the provider shall:

Remain the property of the provider; and
Comply with the retention requirements established in Section 9(2) of this administrative regulation.

(b) A provider shall have a written plan addressing how to maintain health records in the event of the provider's death.

Section 11. Medicaid Program Participation Requirements.

(1)

(a) A participating RHC shall be currently:

Enrolled in the Kentucky Medicaid program in accordance with 907 KAR 1:672; and
Except as established in paragraph (b) of this subsection, participating in the Kentucky Medicaid program in accordance with 907 KAR 1:671.

(b) 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.

(2)

(a) To be initially enrolled with the department, a RHC shall:

Enroll in accordance with 907 KAR 1:672; and
Submit proof of its certification by the United States Department of Health and Human Services, Health Resources and Services Administration as a RHC.

(b) To remain enrolled and participating in the Kentucky Medicaid program, a RHC shall:

Comply with the enrollment requirements established in 907 KAR 1:672;
Comply with the participation requirements established in 907 KAR 1:671; and
Annually submit proof of its certification by the United States Department of Health and Human Services, Health Resources and Services Administration as a RHC to the department.

(3) A RHC that has been terminated from federal participation shall be terminated from Kentucky Medicaid program participation.

(4) A participating RHC and its staff shall comply with all applicable federal laws and regulations, state laws and administrative regulations, and local laws and regulations regarding the administration and operation of a RHC.

(5)

(a) If a RHC 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:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

Section 12. Third Party Liability. A provider shall comply with KRS 205.622.

Section 13. 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 through 369.120.

(2) A provider that chooses to use electronic signatures shall:

(a) Develop and implement a written security policy that shall:

Be adhered to by each of the provider's employees, officers, agents, or contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 14. Auditing Authority. The department shall have the authority to audit any claim, medical record, or documentation associated with any claim or medical record.

Section 15. 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 16. Appeals.

(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

RELATES TO: KRS 205.510, 205.520, 205.622, 205.8451, 309.080, 309.0831, 309.130, 311.840, 314.011, 319.010, 319.050, 319.053, 319C.010, 335.080, 335.100, 335.300, 335.500, 369.101 – 369.120, 42 C.F.R. 400.203, 405.2401(b), 405.2412-405.2417, 405.2450, 405.2452, 405.2468, 431.17, 438.2, 440.20, 491.1 - 491.11, 45 C.F.R. Part 164, 20 U.S.C. 1400, 21 U.S.C. 823, 29 U.S.C. 701, 42 U.S.C. 1395x(aa) and (hh)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 relating to rural health clinic services.
History: 8 Ky.R. 257; eff. 11-5-1981; 1187; eff. 6-2-1982; Recodified from 904 KAR 1:082, 5-2-1986; 15 Ky.R. 1329; eff. 12-13-1988; 34 Ky.R. 1831; 2116; eff. 4-4-2008; 39 Ky.R. 1977; 2510; 2736; eff. 7-7-2014; Cert eff. 12-6-2019; TAm eff. 3-20-2020; 48 Ky.R. 3092; 49 Ky.R. 838, 2113; eff. 6-21-2023.

907 KAR 1:084 Payment for medical assistance services furnished out of state {#sec-907-kar-1-084 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:084}

Section 1. General. Medicaid services provided to an eligible Medicaid recipient who is a resident of Kentucky while that resident is in another state shall be reimbursed in accordance with Section 2 of this administrative regulation.

Section 2. Criteria for Coverage while Out of State.

(1) Payment shall be made if covered medical services are needed because of a medical emergency.

(2) Payment shall be made if medical services are needed because the recipient's health would be endangered if he were required to travel to Kentucky for the medical service. With regard to long-term care patients, it shall be the policy of the cabinet to pay for the medical services only until the time when the patient's medical condition has stabilized so the patient return to Kentucky; it is expected that the period of coverage shall be sixty (60) days or less; continuation of payment shall be contingent upon presentation of medical evidence acceptable to the cabinet which justifies an additional stay in a facility outside the state.

(3) Payment shall be made when the state determines, on the basis of medical advice, that the needed medical services, or necessary supplementary resources, are more readily available in the other state; provided, however, that this provision shall not be construed or interpreted in a manner which circumvents or negates the provisions and intent of this administrative regulation.

(4) Payment shall be made when it is general practice for recipients in a particular locality to use medical resources in another state.

Section 3. Exception. For individuals in long-term care out of state prior to the effective date of this administrative regulation, and for whom the cabinet is at that time paying for the cost of care, the cabinet may continue to pay for the cost of care if the cabinet deems the payments to be appropriate. Children in subsidized adoption or foster care status shall be exempt from the restrictions shown in this administrative regulation.

Section 4. Cooperation with other States. The cabinet shall facilitate the furnishing of medical services to individuals who are present in Kentucky and are eligible for Medicaid under another state's Medicaid plan.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 42 C.F.R. 447 Subpart B, 42 U.S.C. 1396a, b, d, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the program of Medical Assistance. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the conditions under which the Medicaid Program shall pay for covered medical services furnished eligible recipients who are out of state.
History: 8 Ky.R. 258; 346; eff. 11-5-1981; 940; eff. 4-7-1982; Recodified from 904 KAR 1:084, 5-2-1986; 18 Ky.R. 1632; eff. 1-10-1992; Crt eff. 12-6-2019.

907 KAR 1:102 Advanced practice registered nurse services {#sec-907-kar-1-102 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:102}

Section 1. Definitions.

(1) "Advanced practice registered nurse" or "APRN" is defined by KRS 314.011(7).

(2) "Common practice" means an arrangement through which a physician and an APRN jointly administer health care services.

(3) "CPT code" means a code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(4) "Department" means the Department for Medicaid Services or its designated agent.

(5) "Enrollee" means a recipient who is enrolled with a managed care organization.

(6) "Face-to-face" means occurring:

(a) In person; or

(b) If authorized by 907 KAR 3:170, via a real-time, electronic communication that involves two (2) way interactive video and audio communication.

(7) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(8) "Global period" means the period of time in which related preoperative, intraoperative, and postoperative services and follow-up care for a surgical procedure are customarily provided.

(9) "Incidental" means that a medical procedure is:

(a) Performed at the same time as a primary procedure; and

(b) Clinically integral to the performance of the primary procedure.

(10) "Integral" means that a medical procedure represents a component of a more complex procedure performed at the same time.

(11) "Locum tenens APRN" means an APRN:

(a) Who temporarily assumes responsibility for the professional practice of an APRN participating in the Kentucky Medicaid Program; and

(b) Whose services are billed under the Medicaid participating APRN's provider number.

(12) "Locum tenens physician" means a substitute physician:

(a) Who temporarily assumes responsibility for the professional practice of an APRN participating in the Kentucky Medicaid Program; and

(b) Whose services are billed under the Medicaid participating APRN's provider number.

(13) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(14) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(15) "Mutually exclusive" means that two (2) procedures:

(a) Are not reasonably performed in conjunction with one (1) another during the same patient encounter on the same date of service;

(b) Represent two (2) methods of performing the same procedure;

(d) Are described in Current Procedural Terminology as inappropriate coding of procedure combinations.

(16) "Physician administered drug" or "PAD" means any rebateable covered outpatient drug that is:

(a) Provided or administered to a Medicaid recipient;

(b) Billed by a provider other than a pharmacy provider through the medical benefit, including a provider that is a physician office or another outpatient clinical setting; and

(17) "Provider" is defined by KRS 205.8451(7).

(18) "Provider group" means a group of at least two (2) individually licensed APRNs who:

(a) Are enrolled with the Medicaid Program individually and as a group; and

(b) Share the same Medicaid group provider number.

(19) "Rebateable" means a drug for which the drug manufacturer has entered into and has in effect a rebate agreement in accordance with 42 U.S.C. 1396r-8(a).

(20) "Recipient" is defined by KRS 205.8451(9).

(21) "Timely filing" means receipt of a Medicaid claim by the department within:

(a) Twelve (12) months of the date the service was provided;

(b) Twelve (12) months of the date retroactive eligibility was established; or

Section 2. Conditions of Participation.

(1) To participate in the Medicaid program as a provider, an APRN or provider group shall comply with:

(a) 907 KAR 1:005, 907 KAR 1:671, and 907 KAR 1:672; and

(b) The requirements regarding the confidentiality of personal records pursuant to 42 U.S.C. 1320d to 1320d-8 and 45 C.F.R. Parts 160 and 164.

(2) A provider:

(a) Shall bill the:

Department rather than the recipient for a covered service; or
Managed care organization in which the recipient is enrolled if the recipient is an enrollee;

(b) May bill the recipient for a service not covered by Medicaid if the provider informed the recipient of non-coverage prior to providing the service; and

(c)

Shall not bill the recipient for a service that is denied by the department on the basis of:

a. The service being incidental, integral, or mutually exclusive to a covered service or within the global period for a covered service;

b. Incorrect billing procedures including incorrect bundling of services;

c. Failure to obtain prior authorization for the service; or

d. Failure to meet timely filing requirements; and

Shall not bill the enrollee for a service that is denied by the managed care organization in which the recipient is enrolled if the recipient is an enrollee on the basis of:

a. The service being incidental, integral, or mutually exclusive to a covered service or within the global period for a covered service;

b. Incorrect billing procedures including incorrect bundling of services;

c. Failure to obtain prior authorization for the service if prior authorization is required by the managed care organization; or

d. Failure to meet timely filing requirements.

(3)

(a) If a provider receives any duplicate payment or overpayment from the department or managed care organization, regardless of reason, the provider shall return the payment to the department or managed care organization that issued the duplicate payment or overpayment.

(b) Failure to return a payment to the department or managed care organization in accordance with paragraph (a) of this subsection may be:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

(4)

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

(b)

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.
The individual who provided the service shall date and sign the health record within seventy-two (72) hours from the date that the individual provided the service.

(5)

(b) After a recipient's death or discharge from services, a provider shall maintain the recipient's record for the longer of the following periods:

Six (6) years unless the recipient is a minor; or
If the recipient is a minor, three (3) years after the recipient reaches the age of majority under state law.

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

(6) If a provider fails to maintain a health record pursuant to subsection (4) or (5) of this section, the department shall:

(a) Not reimburse for any claim associated with the health record; or

(b) Recoup from the provider any payment made associated with the health record.

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

(8)

(a) A service provided by an APRN to a recipient shall be substantiated by a health record signed by the APRN that corresponds to the date and service reported on the claim submitted for payment to the:

Department if the claim is for a service to a recipient who is not an enrollee; or
Managed care organization in which the recipient is enrolled if the recipient is an enrollee.

(b) If rendering services to a recipient in a hospital, an APRN shall document in the health record of the hospitalized recipient that the APRN performed one (1) or more of the following:

A personal review of the recipient's medical history;
A physical examination;
A confirmation or revision of the recipient's diagnosis;
A visit with the recipient; or
A discharge service for the recipient.

Section 3. APRN Covered Services.

(1)

(a) An APRN covered service shall be:

A medically necessary service furnished by an APRN through face-to-face interaction between the APRN and the recipient except as established in paragraph (c) of this subsection; and
A service that is:

a. Within the legal scope of practice of the APRN as specified in:

(i) 201 KAR 20:057; and

(ii) 201 KAR 20:059; and

b. Eligible for reimbursement by Kentucky Medicaid.

(b) Any service covered pursuant to 907 KAR 3:005 shall be covered under this administrative regulation if it meets the requirements established in paragraph (a) of this subsection.

A radiology service;
An imaging service;
A pathology service;
An ultrasound study;
An echographic study;
An electrocardiogram;
An electromyogram;
An electroencephalogram;
A vascular study;
A telephone analysis of an emergency medical system or a cardiac pacemaker if provided under APRN direction;
A sleep disorder service;
A laboratory service; or
Any other service that is customarily performed without face-to-face interaction between the APRN and the recipient.

(2) The prescribing of drugs by an APRN shall be in accordance with 907 KAR 23:010.

(3) A covered delivery service provided in a:

(a) Hospital shall include:

Admission to the hospital;
Admission history;
Physical examination;
Anesthesia;
Management of uncomplicated labor;
Vaginal delivery; and
Postpartum care; or

(b) Freestanding birth center shall include:

Delivery services in accordance with 907 KAR 1:180, Section 3(3); and
Postnatal visits in accordance with 907 KAR 1:180, Section 3(4).

(4) An EPSDT screening service shall be covered if provided in compliance with the periodicity schedule established in 907 KAR 11:034.

(5) Behavioral health services established in 907 KAR 15:010 that are provided by an APRN or provider group that is the billing provider for the services shall be:

(a) Provided in accordance with 907 KAR 15:010; and

(b) Covered in accordance with 907 KAR 15:010.

(6) A drug listed on the Physician Administered Drug List shall be covered in accordance with 907 KAR 23:010.

Section 4. Service Limitations and Exclusions.

(1)

(a) A limitation on a service provided by a physician in accordance with 907 KAR 3:005 shall apply to services covered under this administrative regulation.

(b) A service that is not covered pursuant to 907 KAR 3:005 shall not be covered under this administrative regulation.

(2) The same service performed by an APRN and a physician on the same day within a common practice shall be considered as one (1) covered service.

(3)

(a) Except as established in paragraph (b) of this subsection, coverage of a psychiatric service provided by an APRN shall be limited to four (4) psychiatric services per APRN, per recipient, per twelve (12) months.

(b) A service designated as a psychiatry service CPT code that is provided by an APRN with a specialty in psychiatry shall not be subject to the limit established in paragraph (a) of this subsection.

(4) The department shall not cover more than one (1) of the following evaluation and management services per recipient per provider per date of service:

(a) A consultation service;

(b) A critical care service;

(d) A home evaluation and management service;

(e) A hospital inpatient evaluation and management service;

(f) A nursing facility service;

(g) An office or other outpatient evaluation and management service; or

(h) A preventive medicine service.

(5) Except for any cost sharing obligation pursuant to 907 KAR 1:604, a:

(a) Recipient shall not be liable for payment of any part of a Medicaid-covered service provided to the recipient; and

(b) Provider shall not bill or charge a recipient for any part of a Medicaid-covered service provided to the recipient.

(6)

(a) In accordance with 42 C.F.R. 455.410, to prescribe medication, order a service for a recipient, or refer a recipient for a service, a provider shall be currently enrolled and participating in the Medicaid Program.

(b) The department shall not reimburse for a:

Prescription prescribed by a provider that is not currently:

a. Participating in the Medicaid Program pursuant to 907 KAR 1:671; and

b. Enrolled in the Medicaid Program pursuant to 907 KAR 1:672; or

Service:

a. Ordered by a provider that is not currently:

(i) Participating in the Medicaid Program pursuant to 907 KAR 1:671; and

(ii) Enrolled in the Medicaid Program pursuant to 907 KAR 1:672; or

b. Referred by a provider that is not currently:

(i) Participating in the Medicaid Program pursuant to 907 KAR 1:671; and

(ii) Enrolled in the Medicaid Program pursuant to 907 KAR 1:672.

Section 5. Prior Authorization Requirements. The prior authorization requirements established in 907 KAR 3:005 shall apply to services provided under this administrative regulation.

Section 6. Locum Tenens. The department shall cover services provided by a locum tenens APRN or locum tenens physician under this administrative regulation:

(1) If the service meets the requirements established in this administrative regulation; and

(2) In accordance with:

(a) 201 KAR 20:056; and

(b) 201 KAR 20:057.

Section 7. Duplication of Service Prohibited.

(1) The department shall not reimburse for a service provided to a recipient by more than one (1) provider of any program in which the service is covered during the same time period.

(2) For example, if a recipient is receiving a speech-language pathology service from a speech-language pathologist enrolled with the Medicaid Program under 907 KAR 8:030, the department shall not reimburse for the same service provided to the same recipient on the same day by another provider enrolled with the Medicaid Program.

Section 8. Third Party Liability. A provider shall comply with KRS 205.622.

Section 9. 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:

Be adhered to by each of the provider's employees, officers, agents, or contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 10. Auditing Authority. The department or the managed care organization in which an enrollee is enrolled shall have the authority to audit any:

(1) Claim;

(2) Health record; or

(3) Documentation associated with the claim or health record.

Section 11. 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 12. Appeal Rights. An appeal of a department decision regarding:

(1) A recipient who is not enrolled with a managed care organization based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563; or

(2) An enrollee based upon an application of this administrative regulation shall be in accordance with 907 KAR 17:010.

History

RELATES TO: KRS 205.520, 205.622, 205.8451, 314.011, 369.101 – 369.120, 42 C.F.R. 400.203, 431.17, 438.2, 455.410, 45 C.F.R. Parts 160, 164, 42 U.S.C. 1320d – 1320d-8, 1396r-8
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 provisions relating to advanced practice registered nurse services covered by the Medicaid Program.
History: 17 Ky.R. 2365; eff. 5-3-1991; Am. 19 Ky.R. 1453; eff. 1-27-1993; 27 Ky.R. 245; 811; eff. 9-11-2000; TAm eff. 4-28-2011; 41 Ky.R. 1920; 2268; 2556; eff. 7-6-2015; 44 Ky.R. 391, 1355; eff. 1-5-2018; Cert eff. 10-21-2024.

907 KAR 1:104 Reimbursement for advanced practice registered nurse services {#sec-907-kar-1-104 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:104}

Section 1. Definitions.

(1) "Advanced practice registered nurse" or "APRN" is defined by KRS 314.011(7).

(2) "Department" means the Department for Medicaid Services or its designated agent.

(3) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(4) "Physician administered drug" or "PAD" means any rebateable covered outpatient drug that is:

(a) Provided or administered to a Medicaid recipient;

(b) Billed by a provider other than a pharmacy provider through the medical benefit, including a provider that is a physician office or another outpatient clinical setting; and

(5) "Provider group" means a group of at least two (2) individually licensed APRNs who:

(a) Are enrolled with the Medicaid program individually and as a group; and

(b) Share the same Medicaid group provider number.

(6) "Usual and customary charge" means the uniform amount the provider charges in the majority of cases for the service or procedure.

Section 2. Reimbursement.

(1) The department's reimbursement under this administrative regulation shall be for a service or procedure:

(a) Covered pursuant to 907 KAR 1:102; and

(b) Provided by an APRN or APRN provider group that:

Meets the condition of participation requirements established in 907 KAR 1:102, Section 2; and
Is the billing provider for the service or procedure.

(2) Except as specified in subsection (3) of this section or Section 3 of this administrative regulation, the department shall reimburse for a service or procedure that is covered pursuant to 907 KAR 1:102 at the lesser of:

(a) The APRN's or APRN provider group's usual and customary charge for the service or procedure;

(b) Seventy-five (75) percent of the amount reimbursable to a Medicaid participating physician for the same service or procedure pursuant to 907 KAR 3:010; or

(c) For anesthesia and related services delivered by a certified registered nurse anesthetist, at one-hundred (100) percent of the amount reimbursable to a Medicaid participating physician for the same service or procedure pursuant to 907 KAR 3:010.

(3) The department's reimbursement for a behavioral health service covered pursuant to 907 KAR 15:010 that is provided by an APRN or APRN provider group that is the billing provider for the service shall be pursuant to 907 KAR 15:015.

Section 3. Reimbursement Limitations.

(1) The department shall reimburse an APRN or APRN provider group:

(a) A three (3) dollar and thirty (30) cent fee for each vaccine administered to a Medicaid recipient under the age of nineteen (19) up to a maximum of three (3) administrations per APRN, per recipient, per date of service; and

(b) The cost of each vaccine administered in accordance with paragraph (a) of this subsection, except as established in subsection (2) of this section.

(2) The department shall not reimburse for the cost of a vaccine that is available free through the Vaccines for Children Program in accordance with 42 U.S.C. 1396s.

(3) The department shall reimburse for a PAD in accordance with 907 KAR 23:020.

(4)

(a) Payment for a cast or splint applied in conjunction with a surgical procedure shall be included in the payment for the surgical procedure.

(b) Except as provided by paragraph (c) of this subsection, the department shall not reimburse for a cast or splint application for the same injury or condition within ninety (90) calendar days:

From the date of the surgical service; or
If surgery is not performed, from initial application of the cast or splint.

(c) The department shall reimburse for a second cast or splint applied for a subsequent injury or condition within ninety (90) calendar days of the first cast or splint application if the claim contains documentation demonstrating that the injury or condition occurred subsequent to the initial cast or splint application.

(d) Reimbursement for the application of a cast or splint associated with a surgical procedure shall be considered to include:

A temporary cast or splint, if applied by the same physician who performed the surgical procedure;
The initial cast or splint applied during or following the surgical procedure; and
A replacement cast or splint needed as a result of the surgical procedure if:

a. Provided within ninety (90) calendar days of the procedure by the same physician; and

b. Applied for the same injury or condition.

(5) Reimbursement for an anesthesia service provided during a procedure shall include:

(a) Preoperative and postoperative visits;

(b) Administration of the anesthetic;

(d) Postoperative pain management; and

(e) Monitoring services.

(6) The department's reimbursement for a laboratory service provided in an office setting shall include the fee for collecting and analyzing a specimen.

(7) A fee for a laboratory test requiring an arterial puncture or a venipuncture shall include the fee for the puncture.

Section 4. Not Applicable to Managed Care Organizations. A managed care organization shall not be required to reimburse in accordance with this administrative regulation for a service covered pursuant to:

(1) 907 KAR 1:102; and

(2) This administrative regulation.

Section 5. 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 coverage; and

(2) Centers for Medicare and Medicaid Services' approval for the coverage.

Section 6. Appeal Rights. An appeal of a negative action taken by the department regarding a Medicaid provider shall be in accordance with 907 KAR 1:671.

History

RELATES TO: KRS 205.520, 314.011, 42 C.F.R. 438.2, 42 U.S.C. 1396s
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 reimbursement provisions and requirements regarding services provided to Medicaid recipients who are not enrolled with a managed care organization by individual advanced practice registered nurses (APRNs) enrolled in the Medicaid program or APRN provider groups enrolled in the Medicaid program.
History: 17 Ky.R. 2366; eff. 5-3-1991; Am. 19 Ky.R. 1454; eff. 1-27-1993; 27 Ky.R. 247; 812; eff. 9-11-2000; TAm 4-28-2011; 44 Ky.R. 395, 1355; eff. 1-5-2018; 48 Ky.R. 3105; eff. 11-15-2022.

907 KAR 1:126 Dental services' coverage provisions and requirements {#sec-907-kar-1-126 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:126}

Section 1. Definitions.

(1) "Comprehensive orthodontic" means a medically necessary dental service for treatment of a dentofacial malocclusion which requires the application of braces for correction.

(2) "Current Dental Terminology" or "CDT" means a publication by the American Dental Association of codes used to report dental procedures or services.

(3) "Debridement" means a preliminary procedure that:

(a) Entails the gross removal of plaque and calculus that interfere with the ability of a dentist to perform a comprehensive oral evaluation;

(b) Does not preclude the need for further procedures; and

(c) Is separate from a regular cleaning and is usually a preliminary or first treatment when an individual has developed very heavy plaque or calculus.

(4) "Department" means the Department for Medicaid Services or its designee.

(5) "Direct practitioner interaction" means the billing dentist or oral surgeon is physically present with and evaluates, examines, treats, or diagnoses the recipient, unless the service can be appropriately performed via telehealth pursuant to 907 KAR 3:170.

(6) "Disabling malocclusion" means a condition that meets the criteria established in Section 13(7) of this administrative regulation.

(7) "Electronic signature" is defined by KRS 369.102(8).

(8) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(9) "Implant" means a medical device that is surgically implanted into the jaw to restore a person's ability to chew or appearance. An implant provides support for artificial teeth including a crown, a bridge, or dentures.

(10) "Incidental" means that a medical procedure:

(a) Is performed at the same time as a primary procedure; and

(b)

Requires little additional practitioner resources; or
Is clinically integral to the performance of the primary procedure.

(11) "Integral" means that a medical procedure represents a component of a more complex procedure performed at the same time.

(12) "Locum tenens dentist" means a substitute dentist:

(a) Who temporarily assumes responsibility for the professional practice of a dentist participating in the Kentucky Medicaid Program; and

(b) Whose services are paid under the participating dentist's provider number.

(13) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(14) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(15) "Mutually exclusive" means that two (2) procedures:

(a) Are not reasonably performed in conjunction with one (1) another during the same patient encounter on the same date of service;

(b) Represent two (2) methods of performing the same procedure;

(d) Are described in CDT as inappropriate coding of procedure combinations.

(16) "Other licensed medical professional" or "OLMP" means a health care provider other than a dentist who has been approved to practice a medical specialty by the appropriate licensure board.

(17) "Prepayment review" or "PPR" means a departmental review of a claim regarding a recipient who is not enrolled with a managed care organization to determine if the requirements of this administrative regulation have been met prior to authorizing payment.

(18) "Prior authorization" or "PA" means approval that a provider shall obtain from the department before being reimbursed for a covered service.

(19) "Provider" is defined by KRS 205.8451(7).

(20) "Public health hygienist" means an individual who:

(a) Is a dental hygienist as defined by KRS 313.010(6);

(b) Meets the public health hygienist requirements established in KRS 313.040(8);

(d) Is employed by or through:

The Department for Public Health; or
A governing board of health.

(21) "Recipient" is defined by KRS 205.8451(9).

(22) "Resident" is defined by 42 C.F.R. 415.152.

(23) "Timely filing" means receipt of a claim by Medicaid:

(a) Within twelve (12) months of the date the service was provided;

(b) Within twelve (12) months of the date retroactive eligibility was established; or

Section 2. Conditions of Participation.

(1) A participating provider shall:

(a) Be licensed as a provider in the state in which the practice is located;

(b) Comply with the terms and conditions established in the following administrative regulations:

907 KAR 1:005;
907 KAR 1:671; and
907 KAR 1:672;

(c) Comply with the requirements to maintain the confidentiality of personal medical records pursuant to 42 U.S.C. 1320d and 45 C.F.R. Parts 160 and 164;

(d) Comply with all applicable state and federal laws; and

(e) Meet all applicable medical and dental standards of practice.

(2)

(a) A participating provider shall:

Have the freedom to choose whether to accept an eligible Medicaid recipient; and
Notify the recipient of the decision prior to the delivery of service.

(b) If the provider accepts the recipient, the provider:

Shall bill Medicaid rather than the recipient for a covered service;
May bill the recipient for a service not covered by Kentucky Medicaid, if the provider informed the recipient of noncoverage prior to providing the service; and
Shall not bill the recipient for a service that is denied by the department for:

a. Being:

(i) Incidental;

(ii) Integral; or

(iii) Mutually exclusive;

b. Incorrect billing procedures, including incorrect bundling of procedures;

c. Failure to obtain prior authorization for the service; or

d. Failure to meet timely filing requirements.

(3)

(a) 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.

(b) A provider of a service to an enrollee shall be enrolled in the Medicaid program.

(4)

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

(b) Failure to return a payment to the department or managed care organization in accordance with paragraph (a) of this subsection may be:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

(d) A provider shall comply with KRS 205.622.

Section 3. DMS Activities in Response to Federal Approval.

(1) The department shall negotiate the dental program with the federal government consistent with 42 U.S.C. 1396a.

(2) The department shall seek official federal approval when implementing new covered services. New covered services may be received via approved state plan amendments with the federal government or via other reliable methods of receiving federal approval.

Section 4. Record Maintenance.

(1)

(a) A provider shall maintain comprehensive legible medical records that substantiate the services billed.

(b) A dental record shall be considered a medical record.

(2) A medical record shall be signed on the date of service by the:

(a) Provider; or

(b) Other practitioner authorized to provide the service in accordance with:

KRS 313.040; and
201 KAR 8:562.

(3) An X-ray shall be:

(a) Of diagnostic quality; and

(b) Maintained in a manner that identifies the:

Recipient's name;
Service date; and
Provider's name.

(4) A treatment regimen shall be documented to include:

(a) Diagnosis;

(b) Treatment plan;

(d) Medical necessity.

(5) Medical records, including X-rays, shall be maintained in accordance with 907 KAR 1:672.

Section 5. General and Certain Service Coverage Requirements.

(1) A covered service shall be:

(a) Medically necessary; and

(b) Except as provided in subsection (2) of this section, furnished to a recipient through direct practitioner interaction.

(2) A covered service provided by another licensed medical professional (OLMP) shall be covered if the:

(a) OLMP is employed by the supervising oral surgeon, dentist, or dental group;

(b) OLMP is licensed in the state of practice; and

(c) Supervising provider has direct practitioner interaction with the recipient, except for a service provided by a dental hygienist if the dental hygienist provides the service under general supervision of a practitioner in accordance with KRS 313.040.

(3)

(a) A medical resident may provide and the department shall cover services if provided under the direction of a program participating teaching physician in accordance with 42 C.F.R. 415.170, 415.172, and 415.174.

(b) A dental resident, student, or dental hygiene student may provide and the department shall cover services under the direction or supervision of a program participating provider in or affiliated with an American Dental Association accredited institution.

(4) Services provided by a locum tenens dentist shall be covered:

(a) If the locum tenens dentist:

Has a national provider identifier (NPI) and provides the NPI to the department;
Does not have a pending criminal or civil investigation regarding the provision of services;
Is not subject to a formal disciplinary sanction from the Kentucky Board of Dentistry; and
Is not subject to any federal or state sanction or penalty that would bar the dentist from Medicare or Medicaid participation; and

(b) For no more than sixty (60) continuous days.

(5) Preventative services provided by a public health hygienist shall be covered.

(6) The department shall cover the oral pathology procedures listed on the Kentucky Medicaid Dental Fee Schedule if provided by an oral pathologist who meets the condition of participation requirements established in Section 2 of this administrative regulation.

(7) Coverage shall be limited to the procedures or services:

(a) Identified and established on the Kentucky Medicaid Dental Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx; or

(b) Established in this administrative regulation.

(8) The department shall not cover a service provided by a provider or practitioner that exceeds the scope of services established for the provider or practitioner in:

(a) Kentucky Revised Statutes;

(b) Kentucky administrative regulations; or

(c) As established on the Kentucky Medicaid Dental Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

(9) The department shall not reimburse for services under this administrative regulation that are only cosmetic in nature.

Section 6. Diagnostic Service Coverage Limitations.

(1)

(a) Except as provided in paragraph (b) of this subsection, coverage for a comprehensive oral evaluation shall be limited to one (1) per twelve (12) month period, per recipient, per provider.

(b) The department shall cover a second comprehensive oral evaluation if the evaluation is provided in conjunction with a prophylaxis.

A limited oral evaluation for trauma related injuries;
A space maintainer;
Denture relining;
A transitional appliance;
A prosthodontic service;
Temporomandibular joint therapy;
An orthodontic service;
Palliative treatment;
An extended care facility call;
A house call; or
A hospital call.

(2)

(a) Coverage for a limited oral evaluation shall:

Be limited to a trauma related injury or acute infection; and
Be limited to one (1) per date of service, per recipient, per provider.

(b) A limited oral evaluation shall not be covered in conjunction with another service except for:

A periapical X-ray;
A bitewing X-ray;
A panoramic X-ray;
Resin, anterior;
A simple or surgical extraction;
Surgical removal of a residual tooth root;
Removal of a foreign body;
Suture of a recent small wound;
Intravenous sedation; or
Incision and drainage of infection.

(3)

(a) Except as provided in paragraph (b) of this subsection, the following limitations shall apply to coverage of a radiograph service:

Bitewing X-rays shall be limited to four (4) per twelve (12) month period, per recipient, per provider;
Periapical X-rays shall be limited to fourteen (14) per twelve (12) month period, per recipient, per provider;
An intraoral complete X-ray series shall be limited to one (1) per twenty-four (24) month period, per recipient, per provider;
Periapical and bitewing X-rays shall not be covered in the same twelve (12) month period as an intraoral complete X-ray series per recipient, per provider;
A panoramic film shall:

a. Be limited to one (1) per twenty-four (24) month period, per recipient, per provider; and

b. Require prior authorization in accordance with Section 15(1), (2), and (3) of this administrative regulation for a recipient under the age of six (6) years;

A cephalometric film shall be limited to one (1) per twenty-four (24) month period, per recipient, per provider; or
A cephalometric and panoramic X-ray shall not be covered separately in conjunction with a comprehensive orthodontic consultation.

(b) The limits established in paragraph (a) of this subsection shall not apply to:

An X-ray necessary for a root canal or oral surgical procedure; or
An X-ray that:

a. Exceeds the established service limitations; and

b. Is determined by the department to be medically necessary.

Section 7. Preventive Service Coverage Limitations.

(1)

(a) Coverage of a prophylaxis shall be limited to one (1) per six (6) month period, per recipient.

(b) A prophylaxis shall not be covered in conjunction with periodontal scaling or root planing.

(2)

(a) Coverage of a sealant shall be limited to:

Each six (6) and twelve (12) year molar once every four (4) years with a lifetime limit of three (3) sealants per tooth, per recipient; and
An occlusal surface that is noncavitated.

(b) A sealant shall not be covered in conjunction with a restorative procedure for the same tooth on the same surface on the same date of service.

(3)

(a) Coverage of a space maintainer shall require the following:

Fabrication;
Insertion;
Follow-up visits;
Adjustments; and
Documentation in the recipient's medical record to:

a. Substantiate the use for maintenance of existing interdental space; and

b. Support the diagnosis and a plan of treatment that includes follow-up visits.

(b) The date of service for a space maintainer shall be considered to be the date the appliance is placed on the recipient.

(c) Coverage of a space maintainer, an appliance therapy specified in the CDT orthodontic category, or a combination of the two (2) shall not exceed two (2) per twelve (12) month period, per recipient.

Section 8. Restorative Service Coverage Limitations.

(1) A four (4) or more surface resin-based anterior composite procedure shall not be covered if performed for the purpose of cosmetic bonding or veneering.

(2) Coverage of a prefabricated crown shall include any procedure performed for restoration of the same tooth.

(3) Coverage of a pin retention procedure shall be limited to:

(a) A permanent molar;

(b) One (1) per tooth, per date of service, per recipient; and

(4) Coverage of a restorative procedure performed in conjunction with a pin retention procedure shall be limited to one (1) of the following:

(a) An appropriate medically necessary restorative material encompassing three (3) or more surfaces;

(b) A permanent prefabricated resin crown; or

Section 9. Endodontic Service Coverage Limitations.

(1) A therapeutic pulpotomy shall not be covered if performed in conjunction with root canal therapy.

(2)

(a) Coverage of root canal therapy shall require:

Treatment of the entire tooth;
Completion of the therapy; and
An X-ray taken before and after completion of the therapy.

(b) The following root canal therapy shall not be covered:

The Sargenti method of root canal treatment; or
A root canal that does not treat all root canals on a multi-rooted tooth.

Section 10. Periodontic Service Coverage Limitations.

(1) Coverage of a gingivectomy or gingivoplasty procedure shall require prepayment review and shall be limited to:

(a) A recipient with gingival overgrowth due to a:

Congenital condition;
Hereditary condition; or
Drug-induced condition; and

(b) One (1) per tooth or per quadrant, per provider, per recipient per twelve (12) month period.

(2) Coverage of a gingivectomy or gingivoplasty procedure shall require documentation in the recipient's medical record that includes:

(a) Pocket-depth measurements;

(b) A history of nonsurgical services; and

(3) Coverage for a periodontal scaling and root planing procedure shall:

(a) Not exceed one (1) per quadrant, per twelve (12) months, per recipient, per provider;

(b) Require prior authorization in accordance with Section 15(1), (2), and (4) of this administrative regulation; and

A periapical film or bitewing X-ray;
Periodontal charting of preoperative pocket depths; and
A photograph, if applicable.

(4) Periodontal scaling and root planing shall not be covered if performed in conjunction with dental prophylaxis.

Section 11. Prosthodontic Service Coverage Limitations.

(1) A denture repair in the following categories shall not exceed three (3) repairs per twelve (12) month period, per recipient:

(a) Repair resin denture base; or

(b) Repair cast framework.

(2) Coverage for the following services shall not exceed one (1) per twelve (12) month period, per recipient:

(a) Replacement of a broken tooth on a denture;

(b) Laboratory relining of:

Maxillary dentures; or
Mandibular dentures;

(d) An interim mandibular partial denture.

(3) An interim maxillary or mandibular partial denture shall be limited to use:

(a) During a transition period from a primary dentition to a permanent dentition;

(b) For space maintenance or space management; or

Section 12. Maxillofacial Prosthetic Service Coverage Limitations. The following services shall be covered if provided by a board eligible or board-certified prosthodontist:

(1) A nasal prosthesis;

(2) An auricular prosthesis;

(3) A facial prosthesis;

(4) A mandibular resection prosthesis;

(5) A pediatric speech aid;

(6) An adult speech aid;

(7) A palatal augmentation prosthesis;

(8) A palatal lift prosthesis;

(9) An oral surgical splint; or

(10) An unspecified maxillofacial prosthetic.

Section 13. Oral and Maxillofacial Service Coverage Limitations.

(1) The simple use of a dental elevator shall not constitute a surgical extraction.

(2) Root removal shall not be covered on the same date of service as the extraction of the same tooth.

(3) Coverage of surgical access of an unerupted tooth shall:

(a) Be limited to exposure of the tooth for orthodontic treatment; and

(b) Require prepayment review.

(4) Coverage of alveoplasty shall:

(a) Be limited to one (1) per quadrant, per lifetime, per recipient; and

(b) Require a minimum of a four (4) tooth area within the same quadrant.

(5) An occlusal orthotic device shall:

(a) Be covered for temporomandibular joint therapy;

(b) Require prior authorization in accordance with Section 15(1), (2), and (5) of this administrative regulation; and

(6) Frenulectomy shall be limited to two (2) per date of service.

(7) Coverage shall be limited to one (1) per lifetime, per recipient, for removal of the following:

(a) Torus palatinus (maxillary arch);

(b) Torus mandibularis (lower left quadrant); or

Section 14. Orthodontic Service Coverage Limitations.

(1) Coverage of an orthodontic service shall require prior authorization except as established in Section 15(1)(b) of this administrative regulation.

(2) The combination of space maintainers and appliance therapy shall be limited to two (2) per twelve (12) month period, per recipient.

(3) Space maintainers and appliance therapy shall not be covered in conjunction with comprehensive orthodontics.

(4) Orthodontic braces shall be limited to recipients under the age of twenty-one (21) years.

(5) Space maintainers shall be allowed for adults when:

(a) There has been an extraction or lost tooth;

(b) A permanent tooth is waiting for a partial;

(d) A third molar is partially erupted; or

(e) There is a congenitally missing tooth.

(6) The department shall only cover new orthodontic brackets or appliances.

(7) An appliance for minor tooth guidance shall not be covered for the control of harmful habits.

(8) In addition to the limitations specified in subsection (1) of this section, a comprehensive orthodontic service shall:

(a) Require a referral by a dentist; and

(b) Be limited to the correction of a disabling malocclusion for transitional, full permanent dentition, or treatment of a cleft palate or severe facial anomaly.

(9) A disabling malocclusion shall:

(a) Exist if a patient:

Exhibits a severe overbite encompassing one (1) or more teeth in palatal impingement diagnosed by a lingual view of orthodontic models (stone or digital) showing palatal soft tissue contact;
Exhibits a true anterior open bite:

a. Either skeletal or habitual in nature that if left untreated will result in:

(i) The open bite persisting; or

(ii) A medically documented speech impediment; and

b. That does not include:

(i) One (1) or two (2) teeth slightly out of occlusion; or

(ii) Where the incisors have not fully erupted;

Demonstrates a significant antero-posterior discrepancy (Class II or III malocclusion that is comparable to at least one (1) full tooth Class II or III):

a. Dental or skeletal; and

b. If skeletal, requires a traced cephalometric radiograph supporting significant skeletal malocclusion;

Has an anterior crossbite that involves:

a. More than two (2) teeth within the same arch; or

b. A single tooth crossbite if there is evident detrimental changes in supporting tissues including:

(i) Obvious gingival stripping; or

(ii) A functional shift of the mandible or severe dental attrition for an individual under the age of twelve (12) years; or

c. An edge-to-edge crossbite if there is severe dental attrition due to a traumatic occlusion;

Demonstrates a handicapping posterior transverse discrepancy that:

a. May include several teeth, one (1) of which shall be a molar; and

b. Is handicapping in a function fashion as follows:

(i) Functional shift;

(ii) Facial asymmetry; or

(iii) A complete buccal or lingual crossbite;

Demonstrates a medically documented speech pathology resulting from the malocclusion;
Demonstrates a significant posterior open bite that does not involve:

a. Partially erupted teeth; or

b. One (1) or two (2) teeth slightly out of occlusion;

Except for third molars, demonstrates an impacted tooth that:

a. Will not erupt into the arch without orthodontic or surgical intervention; and

(i) Shows a documented pathology; or

(ii) Poses a significant threat to the integrity of the remaining dentition or to the health of the patient;

Has an extreme overjet in excess of eight (8) millimeters and one (1) of the skeletal conditions specified in subparagraphs 1 through 8 of this paragraph;
Has trauma or injury resulting in severe misalignment of the teeth or alveolar structures and does not include simple loss of teeth with no other affects;
Has a congenital or developmental disorder giving rise to a handicapping malocclusion;
Has a significant facial discrepancy requiring a combined orthodontic and orthognathic surgery treatment approach; or
Has developmental anodontia in which several congenitally missing teeth result in a handicapping malocclusion or arch deformation; and

(b) Not include:

One (1) or two (2) teeth being slightly out of occlusion;
Incisors not having fully erupted; or
A bimaxillary protrusion.

(10) Coverage of comprehensive orthodontic treatment shall not include orthognathic surgery.

(11) If comprehensive orthodontic treatment is discontinued prior to completion, the provider shall submit to the department:

(a) Documentation of the referral referenced in subsection (8) of this section; and

(b) A letter detailing:

Treatment provided, including dates of service;
Current treatment status of the patient; and
Charges for the treatment provided.

(12) Remaining portions of comprehensive orthodontic treatment may be authorized for prorated coverage upon compliance with the prior authorization requirements specified in Section 15(1), (2), and (7) of this administrative regulation if treatment:

(a) Is transferred to another provider; or

(b) Began prior to Medicaid eligibility.

Section 15. Adjunctive General Service Coverage Limitations.

(1)

(a) Coverage of palliative treatment for dental pain shall be limited to one (1) per date of service, per recipient, per provider.

(b) Palliative treatment for dental pain shall not be covered in conjunction with another service except for a radiograph.

(2)

(a) Coverage of a hospital or ambulatory surgical center call or extended care facility call shall be limited to one (1) per date of service, per recipient, per provider.

(b) A hospital call, ambulatory surgical center call, or extended care facility call shall not be covered in conjunction with:

Limited oral evaluation; or
Comprehensive oral evaluation.

(3) Intravenous sedation shall not be covered for local anesthesia or nitrous oxide.

Section 16. Implant Policy.

(1) Implants shall meet the medical necessity criteria and be used to stabilize a retaining prosthetic device.

(2) Implants shall be limited to no more than:

(a) For an individual who has lost all of their natural teeth, a total of ten (10) but with a limit of five (5) for each arch; and

(b) For an individual who retains some natural teeth, a limit of eight (8) for replacement of individual teeth of for a larger restorative purpose such as a bridge that spans three (3) or more teeth.

Section 17. Prior Authorization.

(1)

(a) The prior authorization requirements established in this administrative regulation shall apply to services for a recipient who is not enrolled with a managed care organization.

(b) A managed care organization shall not be required to apply the prior authorization requirements established in this administrative regulation for a recipient who is enrolled with the managed care organization.

A panoramic film for a recipient under the age of six (6) years;
Periodontal scaling and root planing;
An occlusal orthotic device;
A preorthodontic treatment visit;
Removable appliance therapy;
Fixed appliance therapy;
A comprehensive orthodontic service; or
An implant.

(2) Limits may also be exceeded by prior authorization for children under the age of twenty-one (21) if medically necessary.

(3) A provider shall request prior authorization by submitting the following information to the department:

(a) A MAP 9, Prior Authorization for Health Services;

(b) Additional forms or information as specified in subsections (3) through (8) of this section; and

(4) A request for prior authorization of a panoramic film shall include a letter of medical necessity.

(5) A request for prior authorization of periodontal scaling and root planing shall include periodontal charting of preoperative pocket depths.

(6) A request for prior authorization of an occlusal orthotic device shall include a MAP 306, Temporomandibular Joint (TMJ) Assessment Form.

(7) A request for prior authorization of removable and fixed appliance therapy shall include:

(a) A MAP 396, Kentucky Medicaid Program Orthodontic Evaluation Form;

(b) Panoramic film or intraoral complete series; and

(8) A request for prior authorization for comprehensive orthodontic services shall include:

(a) A MAP 396, Kentucky Medicaid Program Orthodontic Evaluation Form;

(b) A MAP 9A, Kentucky Medicaid Program Orthodontic Services Agreement;

(d) A panoramic X-ray;

(e) Intraoral and extraoral facial frontal and profile pictures;

(f) An occluded and trimmed dental model or the digital equivalent of a model; and

(g) An oral surgeon's pretreatment work up notes if orthognathic surgery is required.

(9) If prior authorization for comprehensive orthodontic services is given following a request submitted pursuant to subsection (8) of this section, additional information shall be submitted as required in this subsection.

(a) After six (6) monthly visits are completed, but not later than twelve (12) months after the banding date of service, the provider shall submit:

A MAP 559, Six (6) Month Orthodontic Progress Report; and
An additional MAP 9, Prior Authorization for Health Services.

(b) Within three (3) months following completion of the comprehensive orthodontic treatment, the provider shall submit:

Beginning and final records; and
A MAP 700, Kentucky Medicaid Program Orthodontic Final Case Submission.

(10) Upon receipt and review of the materials required in subsection (7)(a) through (g) of this section, the department may request a second opinion from another provider regarding the proposed comprehensive orthodontic treatment.

(11) If a service that requires prior authorization is provided before the prior authorization is received, the provider shall assume the financial risk that the prior authorization may not be subsequently approved.

(12)

(a) Prior authorization shall not be a guarantee of recipient eligibility.

(b) Eligibility verification shall be the responsibility of the provider.

(13) Upon review and determination by the department that removing a prior authorization requirement shall be in the best interest of a Medicaid recipient, the prior authorization requirement for a specific covered benefit shall be discontinued, at which time the covered benefit shall be available to all recipients without prior authorization, as necessary, an age limit related prior authorization may continue to be enforced.

Section 18. 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 dental service provider that chooses to use electronic signatures shall:

(a) Develop and implement a written security policy that shall:

Be adhered to by each of the provider's employees, officers, agents, or contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 19. Auditing Authority.

(1) The department or the managed care organization in which an enrollee is enrolled shall have the authority to audit any:

(a) Claim;

(b) Medical record; or

(2) A dental record shall be considered a medical record.

Section 20. Federal Approval and Federal Financial Participation. The coverage provisions and requirements established in 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 of the coverage.

Section 21. Appeal Rights. An appeal of a department decision regarding a Medicaid recipient who is:

(1) Enrolled with a managed care organization shall be in accordance with 907 KAR 17:010; or

(2) Not enrolled with a managed care organization shall be in accordance with 907 KAR 1:563.

Section 22. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "MAP 9, Prior Authorization for Health Services", December 1995;

(b) "MAP 9A, Kentucky Medicaid Program Orthodontic Services Agreement", December 1995;

(d) "MAP 396, Kentucky Medicaid Program Orthodontic Evaluation Form", March 2001;

(e) "MAP 559, Six (6) Month Orthodontic Progress Report", December 1995;

(f) "MAP 700, Kentucky Medicaid Program Orthodontic Final Case Submission", December 1995; and

(g) "KY Medicaid Dental Fee Schedule", April 2023.

(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 located at https://chfs.ky.gov/agencies/dms/dpo/bpb/Pages/dental.aspx.

History

RELATES TO: KRS 205.520, 205.622, 205.8451, 313.010, 313.040, 369.102(8), 369.101 to 369.120, 415.152, 42 C.F.R. 400.203, 415.170, 415.172, 415.174, 438.2, 45 C.F.R. Parts 160, 164, 42 U.S.C. 1320d, 1396a-d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has the 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 Kentucky Medicaid program provisions and requirements regarding the coverage of dental services.
History: 49 Ky.R. 2185; eff; 1-2-2024.

907 KAR 1:145 Supports for community living services for an individual with an intellectual or developmental disability {#sec-907-kar-1-145 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:145}

Section 1. Definitions.

(1) "Assessment" or "reassessment" means a comprehensive evaluation of abilities, needs, and services that is:

(a) Completed on a MAP-351; and

(b) Submitted to the department:

For a level of care determination; and
Annually thereafter.

(2) "Behavior intervention committee" or "BIC" means a group of individuals:

(a) Established to evaluate the technical adequacy of a proposed behavior intervention for a participant; and

(b) Which meets in accordance with the BIC policies established in the Supports for Community Living Manual.

(3) "Behavior support specialist" means an individual who has a master's degree from an accredited institution with formal graduate course work in a behavioral science and at least one (1) year of experience in behavioral programming.

(4) "Blended services" means a nonduplicative combination of SCL waiver services identified in Section 4 of this administrative regulation and CDO services identified in Section 5 of this administrative regulation provided pursuant to a recipient's approved plan of care.

(5) "Budget allowance" is defined by KRS 205.5605(1).

(6) "Certified psychologist with autonomous functioning" or "licensed psychological practitioner" means a person licensed pursuant to KRS 319.053 or 319.056.

(7) "Consumer" is defined by KRS 205.5605(2).

(8) "Consumer directed option" or "CDO" means an option established by KRS 205.5606 within the home and community based services waivers that allow recipients to:

(a) Assist with the design of their programs;

(b) Choose their providers of services; and

(9) "Covered services and supports" is defined by KRS 205.5605(3).

(10) "DCBS" means the Department for Community Based Services.

(11) "DDID" means the Division of Developmental and Intellectual Disabilities in the Department for Behavioral Health, Developmental and Intellectual Disabilities.

(12) "Department" means the Department for Medicaid Services or its designee.

(13) "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

Results in an impairment of general intellectual functioning and adaptive behavior similar to that of a person with an intellectual disability; and
Is a direct result of, or is influenced by, the person's cognitive deficits.

(14) "Electronic signature" is defined by KRS 369.102(8).

(15) "Good cause" means a circumstance beyond the control of an individual that affects the individual's ability to access funding or services, which includes:

(a) Illness or hospitalization of the individual which is expected to last sixty (60) days or less;

(b) Required paperwork and documentation for processing in accordance with Section 2 of this administrative regulation has not been completed but is expected to be completed in two (2) weeks or less; or

(c) The individual or his or her legal representative has made diligent contact with a potential provider to secure placement or access services but has not been accepted within the sixty (60) day time period.

(16) "Human rights committee" means a group of individuals:

(a) Comprised of representatives from home and community based waiver provider agencies in the community where a participant resides;

(b) Who meet:

To ensure that the rights of participants are respected and protected through due process; and
In accordance with the Human Rights Committee requirements established in the Supports for Community Living Policy Manual.

(17) "ICF-IID" means an intermediate care facility for an individual with an intellectual or developmental disability.

(18) "Intellectual disability" or "ID" means a demonstration:

(a)

Of significantly sub-average intellectual functioning and an intelligence quotient (IQ) of approximately seventy (70) or below; and
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) Which occurred prior to the individual reaching eighteen (18) years of age.

(19) "Level of care determination" means a determination by the department that an individual meets patient status criteria for an intermediate care facility for an individual with an intellectual disability as established in 907 KAR 1:022.

(20) "Licensed marriage and family therapist" or "LMFT" is defined by KRS 335.300(2).

(21) ''Licensed professional clinical counselor" or "LPCC" is defined by KRS 335.500(3).

(22) "Occupational therapist" is defined by KRS 319A.010(3).

(23) "Occupational therapy assistant" is defined in KRS 319A.010(4).

(24) "Physical therapist" is defined by KRS 327.010(2).

(25) "Physical therapist assistant" means a skilled health care worker who:

(a) Is certified by the Kentucky Board of Physical Therapy; and

(b) Performs physical therapy and related duties as assigned by the supervising physical therapist.

(26) "Plan of Care" or "POC" means a written individualized plan developed by:

(a) An SCL recipient or an SCL recipient's legal representative;

(b) The case manager or support broker; and

(27) "Psychologist" is defined by KRS 319.010(9).

(28) "Registered nurse" or "RN" is defined by KRS 314.011(5).

(29) "Representative" is defined in KRS 205.5605(6).

(30) "SCL intellectual disability professional" or "SCL IDP" means an individual who has at least one (1) year of experience working with persons with intellectual or developmental disabilities and:

(a) Is a doctor of medicine or osteopathy;

(b) Is a registered nurse; or

(c) Holds at least a bachelor's degree from an accredited institution in a human services field including sociology, special education, rehabilitation counseling, or psychology.

(31) "SCL provider" means an entity that meets the criteria established in Section 3 of this administrative regulation.

(32) "SCL recipient" means an individual who meets the criteria established in Section 2 of this administrative regulation.

(33) "Social worker" means an individual licensed by the Kentucky Board of Social Work under KRS 335.080, 335.090, or 335.100.

(34) "Speech-language pathologist" is defined by KRS 334A.020(3).

(35) "Support broker" means an individual designated by the department to:

(a) Provide training, technical assistance, and support to a consumer; and

(b) Assist the consumer in any other aspects of CDO.

(36) "Support spending plan" means a plan for a consumer that identifies:

(a) CDO services requested;

(b) Employee name;

(d) Hours per month;

(e) Monthly pay;

(f) Taxes; and

(g) Budget allowance.

(37) "Supports for community living services" or "SCL services" means home and community-based waiver services for an individual with an intellectual or developmental disability.

Section 2. SCL Recipient Eligibility, Enrollment and Termination.

(1) To be eligible to receive a service in the SCL program, an individual shall:

(a) Receive notification of potential SCL funding in accordance with Section 7 of this administrative regulation;

(b) Meet ICF-IID patient status requirements established in 907 KAR 1:022;

(d) Submit an application packet to the department which is included in the Supports for Community Living Manual and which shall contain:

The Long Term Care Facilities and Home and Community Based Program Certification Form, MAP-350;
The MAP-351 Assessment Form;
The results of a physical examination that was conducted within the last twelve (12) months;
A MAP-10, statement of the need for long-term care services, which shall be signed and dated by a physician or an SCL IDP and be less than one (1) year old;
The results of a psychological examination completed by a licensed psychologist or certified with autonomous functioning;
A social case history which is less than one (1) year old;
A projection of the needed supports and a preliminary MAP-109 Plan of Care for meeting those needs;
A MAP-24C documenting an individual's status change; and
A copy of the letter notifying the SCL recipient of an SCL funding allocation; and

(e) Receive notification of an admission packet approval from the department.

(2) To maintain eligibility as an SCL recipient:

(a) An individual shall be administered an NC-SNAP assessment by the department in accordance with 907 KAR 1:155;

(b) An individual shall maintain Medicaid eligibility requirements established in 907 KAR 20:010; and

(3) An SCL waiver service shall not be provided to an SCL recipient who is receiving a service in another Medicaid waiver program or is an inpatient of an ICF-IID or other facility.

(4) Involuntary termination and loss of an SCL waiver program placement shall be in accordance with 907 KAR 1:563 and shall be initiated if:

(a) An individual fails to access an SCL waiver service within sixty (60) days of notification of potential funding without receiving an extension based on demonstration of good cause.

The individual or legal representative shall have the burden of documenting good cause.
Upon receipt of documentation of good cause, the department shall grant one (1) extension in writing, which shall be:

a. Sixty (60) days for an individual who does not reside in a facility; or

b. The length of the transition plan, not to exceed one (1) year, and contingent upon continued active participation in the transition plan for an individual who does reside in a facility;

(b) An SCL recipient or legal representative fails to access the required service as outlined in the plan of care for a period greater than sixty (60) consecutive days without receiving an extension based on demonstration of good cause.

The recipient or legal representative shall have the burden of providing documentation of good cause.
Upon receipt of documentation of good cause, the department shall grant one (1) extension in writing which shall be:

a. Sixty (60) days for an individual who does not reside in a facility; or

b. The length of the transition plan, not to exceed one (1) year, and contingent upon continued active participation in the transition plan for an individual who does reside in a facility;

(d) An SCL recipient does not meet ICF-IID patient status criteria.

(5) Involuntary termination of a service to an SCL recipient by an SCL provider shall require:

(a) Simultaneous notice to the SCL recipient or legal representative, the case manager or support broker, the department, and DDID at least thirty (30) days prior to the effective date of the action, which shall include:

A statement of the intended action;
The basis for the intended action;
The authority by which the action is taken; and
The SCL recipient's right to appeal the intended action through the provider's appeal or grievance process;

(b) Submittal of a MAP-24C to the department and to DDID at the time of the intended action; and

Provide the SCL recipient with the name, address, and telephone number of each current SCL provider in the state;
Provide assistance to the SCL recipient in making contact with another SCL provider;
Arrange transportation for a requested visit to an SCL provider site;
Provide a copy of pertinent information to the SCL recipient or legal representative;
Ensure the health, safety, and welfare of the SCL recipient until an appropriate placement is secured;
Continue to provide supports until alternative services or another placement is secured; and
Provide assistance to ensure a safe and effective service transition.

(6) Voluntary termination and loss of an SCL waiver program placement shall be initiated if an SCL recipient or legal representative submits a written notice of intent to discontinue services to the service provider, to the department, and to DDID.

(a) An action to terminate services shall not be initiated until thirty (30) calendar days from the date of the notice.

(b) The SCL recipient or legal representative may reconsider and revoke the notice in writing during the thirty (30) calendar day period.

Section 3. Non-CDO Provider Participation. The SCL waiver service provider policies and requirements established in 907 KAR 12:010 shall apply to all SCL waiver service providers.

Section 4. Non-CDO Covered Services.

(1) A non-CDO SCL waiver service shall:

(a) Be prior authorized by the department; and

(b) Be provided pursuant to the plan of care.

(2) The following services provided to an SCL recipient by an SCL waiver provider shall be covered by the department:

(a) Adult day training which shall:

Support the SCL recipient to participate in daily meaningful routines in the community;
Stress training in:

a. The activities of daily living;

b. Self-advocacy;

c. Adaptive and social skills; and

d. Vocational skills;

Be provided in a nonresidential or community setting that may;

a. Be a fixed location; or

b. Occur in public venues.

Not be diversional in nature;

a. Be provided as on-site services which shall:

(i) Include facility-based services provided on a regularly-scheduled basis;

(ii) Lead to the acquisition of skills and abilities to prepare the participant for work or community participation; or

(iii) Prepare the participant for transition from school to work or adult support services; or

b. Be provided as off-site services which:

(i) Shall include services provided in a variety of community settings;

(ii) Shall provide access to community-based activities that cannot be provided by natural or other unpaid supports;

(iii) Shall be designed to result in increased ability to access community resources without paid supports;

(iv) Shall provide the opportunity for the participant to be involved with other members of the general population;

(v) May be provided as an enclave or group approach to training in which participants work as a group or dispersed individually throughout an integrated work setting with people without disabilities;

(vi) May be provided as a mobile crew performing work in a variety of community businesses or other community settings with supervision by the provider; and

(vii) May be provided as entrepreneurial or group approach to training for participants to work in a small business created specifically by or for the recipient or recipients;

Ensure that any recipient performing productive work that benefits the organization be paid commensurate with compensation to members of the general work force doing similar work;
Require that a provider conduct an orientation informing the recipient of supported employment and other competitive opportunities in the community at least annually;
Be provided at a time mutually agreed to by the recipient and provider;

a. Be provided to recipients age twenty-two (22) or older; or

b. Be provided to recipients age sixteen (16) to twenty-one (21) as a transition process from school to work or adult support services;

Be documented by:

a. A time and attendance record which shall include:

(i) The date of the service;

(ii) The beginning and ending time of the service;

(iii) The location of the service; and

(iv) The signature, date of signature, and title of the individual providing the service; and

b. A detailed monthly summary staff note which shall include:

(i) The month, day, and year for the time period covered by each note written;

(ii) Progression, regression, and maintenance toward outcomes identified in the plan of care; and

(iii) The signature, date of signature, and title of individual preparing the summary staff note;

Be limited to five (5) days per week, 255 days maximum per year;
Not exceed eight (8) hours per day, five (5) days per week; and
Not exceed sixteen (16) hours per day if provided in combination with community living supports or supported employment;

(b) An assessment service including a comprehensive assessment which shall:

Identify an SCL recipient's needs and the services that the SCL recipient or his or her family cannot manage or arrange for on his or her behalf;
Evaluate an SCL recipient's physical health, mental health, social supports, and environment;
Be requested by an individual requesting SCL services or a family or legal representative of the individual;
Be conducted within seven (7) calendar days of receipt of the request for assessment;
Include at least one (1) face-to-face contact with the SCL recipient and, if appropriate, his or her family by the assessor in the SCL recipient's home; and
Not be reimbursable if the individual does not receive a level of care certification;

Determine the continuing need for SCL waiver services;
Be performed at least every twelve (12) months;
Be conducted using the same procedures as for an assessment service;
Be conducted by a SCL case manager or support broker and submitted to the department no more than three (3) weeks prior to the expiration of the current level of care certification to ensure that certification is consecutive;
Not be reimbursable if conducted during a period that the SCL recipient is not covered by a valid level of care certification; and
Not be retroactive;

(d) Behavioral support which shall:

Be the systematic application of techniques and methods to influence or change a behavior in a desired way;
Be provided to assist the SCL recipient to learn new behaviors that are directly related to existing challenging behaviors or functionally equivalent replacement behaviors for identified challenging behaviors;
Include a functional assessment of the SCL recipient's behavior which shall include:

a. An analysis of the potential communicative intent of the behavior;

b. The history of reinforcement for the behavior;

c. Critical variables that preceded the behavior;

d. Effects of different situations on the behavior; and

e. A hypothesis regarding the motivation, purpose, and factors which maintain the behavior;

Include the development of a behavioral support plan which shall:

a. Be developed by the behavioral specialist;

b. Be implemented by SCL provider staff in all relevant environments and activities;

c. Be revised as necessary;

d. Define the techniques and procedures used;

e. Be designed to equip the recipient to communicate his or her needs and to participate in age-appropriate activities;

f. Include the hierarchy of behavior interventions ranging from the least to the most restrictive;

g. Reflect the use of positive approaches; and

h. Prohibit the use of prone or supine restraint, corporal punishment, seclusion, verbal abuse, and any procedure which denies private communication, requisite sleep, shelter, bedding, food, drink, or use of a bathroom facility;

Include the provision of training to other SCL providers concerning implementation of the behavioral support plan;
Include the monitoring of an SCL recipient's progress which shall be accomplished through:

a. The analysis of data concerning the frequency, intensity, and duration of a behavior; and

b. The reports of an SCL provider involved in implementing the behavioral support plan;

Provide for the design, implementation, and evaluation of systematic environmental modifications;
Be provided by a behavior support specialist who shall have:

a. A master's degree with formal graduate course work in a behavioral science; and

b. One (1) year of experience in behavioral programming;

Be documented by a detailed staff note which shall include:

a. The date of the service;

b. The beginning and ending time; and

c. The signature, date of signature and title of the behavioral specialist; and

Be limited to ten (10) hours for an initial functional assessment and six (6) hours for the initial development of the behavior support plan and staff training;

(e) Case management which shall include:

Initiation, coordination, implementation, and monitoring of the assessment, reassessment, evaluation, intake, and eligibility process;
Assisting an SCL recipient in the identification, coordination, and arrangement of the support team and support team meetings;
Assisting an SCL recipient and the support team to develop, update, and monitor the plan of care which shall:

a. Be initially developed within thirty (30) days of the initiation of the service using person-centered guiding principles;

b. Be updated at least annually or as changes occur;

c. Be submitted on the MAP-351; and

d. Include any modification to the plan of care and be sent to the department within fourteen (14) days of the effective date that the change occurs with the SCL recipient;

Assisting an SCL recipient in obtaining a needed service outside those available by the SCL waiver utilizing referrals and information;
Furnishing an SCL recipient and legal representative with a listing of each available SCL provider in the service area;
Maintaining documentation signed by an SCL recipient or legal representative of informed choice of an SCL provider and of any change to the selection of an SCL provider and the reason for the change;
Timely distribution of the plan of care, crisis prevention plan, assessment, and other documents to chosen SCL service providers;
Providing an SCL recipient and chosen SCL providers twenty-four (24) hour telephone access to a case management staff person;
Working in conjunction with an SCL provider selected by an SCL recipient to develop a crisis prevention plan which shall be:

a. Individual-specific;

b. Annually reviewed; and

c. Updated as a change occurs;

Assisting an SCL recipient in planning resource use and assuring protection of resources;
Services that are exclusive of the provision of a direct service to an SCL recipient;
Monthly face-to-face contact with an SCL recipient;
Monitoring the health, safety, and welfare of an SCL recipient;
Monitoring all of the supports provided to an SCL recipient;
Notifying the local DCBS office, the department, and DMR on a MAP-24C form if an SCL recipient is:

a. Terminated from the SCL Waiver Program;

b. Admitted to an ICF-IID;

c. Admitted to a hospital;

d. Transferred to another Medicaid Waiver Program; or

e. Moved to another SCL residence;

Establishing a human rights committee which shall:

a. Include an:

(i) SCL recipient;

(ii) Individual not affiliated with the SCL provider; and

(iii) Individual who has knowledge and experience in rights issues;

b. Review and approve, prior to implementation and at least annually thereafter, all plans of care with rights restrictions;

c. Review and approve prior to implementation and at least annually thereafter, in conjunction with the SCL recipient's team, behavior support plans that include highly-restrictive procedures or contain rights restrictions; and

d. Review the use of a psychotropic medication by an SCL recipient without an Axis I diagnosis;

Establishing a behavior intervention committee which shall:

a. Include one (1) individual who has expertise in behavior intervention and is not the behavior specialist who wrote the behavior support plan;

b. Be separate from the human rights committee;

c. Review and approve prior to implementation and at least annually thereafter or as changes are needed, in conjunction with the SCL recipient's team, all behavior support plans; and

d. Review the use of a psychotropic medication by an SCL recipient without an Axis I diagnosis and recommend an alternative intervention if appropriate;

Documentation with a monthly summary note which shall include:

a. Documentation of monthly contact with each chosen SCL provider which shall include monitoring of the delivery of services and the effectiveness of the plan of care;

b. Documentation of monthly face-to-face contact with an SCL recipient; and

c. Progress towards outcomes identified in the plan of care;

Provision by a case manager who shall:

a. Have a bachelor's degree from an accredited institution in a human services field;

b. Be a registered nurse;

c. Be a qualified social worker;

d. Be a licensed marriage and family therapist;

e. Be a licensed professional clinical counselor;

f. Be a certified psychologist; or

g. Be a licensed psychological practitioner;

Supervision by a case management supervisor who shall be an SCL IDP; and
Documentation with a detailed monthly summary note which shall include:

a. The month, day, and year for the time period each note covers;

b. Progression, regression, and maintenance toward outcomes identified in the plan of care; and

c. The signature, date of signature, and title of the individual preparing the note;

(f) Children's day habilitation which shall be:

The provision of support, training, and intervention in the areas of:

a. Self-care;

b. Sensory or motor development;

c. Daily living skills;

d. Communication; and

e. Adaptive and social skills;

Provided in a nonresidential or community setting;
Provided to enable the recipient to participate in and access community resources;
Provided to help remove or diminish common barriers to participation in typical roles in community life;
Provided at a time mutually agreed upon by the recipient and provider;
Limited to:

a. Individuals who are in school and up to sixteen (16) years of age;

b. Up to eight (8) hours per day, five (5) days per week; and

c. Up to sixteen (16) hours per day in combination with community living supports; and

Documented by:

a. A time and attendance record which shall include:

(i) The date of service;

(ii) The beginning and ending time of the service;

(iii) The location of the service; and

(iv) The signature, date of signature, and title of the individual providing the service; and

b. A detailed monthly staff note which shall include:

(i) The month, day, and year for the time period each note covers;

(ii) Progression, regression, or maintenance of outcomes identified in the plan of care; and

(iii) The signature, date of signature, and title of the individual preparing the summary staff note;

(g) Community living supports which shall:

Be provided to facilitate independence and promote integration into the community for an SCL recipient residing in his or her own home or in his or her family's home;
Be supports and assistance which shall be related to chosen outcomes and not be diversional in nature. This may include:

a. Routine household tasks and maintenance;

b. Activities of daily living;

c. Personal hygiene;

d. Shopping;

e. Money management;

f. Medication management;

g. Socialization;

h. Relationship building;

i. Leisure choices;

j. Participation in community activities;

k. Therapeutic goals; or

l. Nonmedical care not requiring nurse or physician intervention;

Not replace other work or day activities;
Be provided on a one-on-basis;
Not be provided at an adult day-training or children's day- habilitation site;
Be documented by:

a. A time and attendance record which shall include:

(i) The date of the service;

(ii) The beginning and ending time of the service; and

(iii) The signature, date of signature, and title of the individual providing the service; and

b. A detailed monthly summary note which shall include:

(i) The month, day, and year for the time period each note covers;

(ii) Progression, regression, and maintenance toward outcomes identified in the plan of care; and

(iii) The signature, date of signature, and title of the individual preparing the summary note; and

Be limited to sixteen (16) hours per day alone or in combination with adult day training, children's day habilitation, and supported employment;

(h) Occupational therapy which shall be:

A physician-ordered evaluation of an SCL recipient's level of functioning by applying diagnostic and prognostic tests;
Physician ordered services in a specified amount and duration to guide an SCL recipient in the use of therapeutic, creative, and self-care activities to assist an SCL recipient in obtaining the highest possible level of functioning;
Training of other SCL providers on improving the level of functioning;
Exclusive of maintenance or the prevention of regression;
Provided by an occupational therapist or an occupational therapy assistant supervised by an occupational therapist in accordance with 201 KAR 28:130; and
Documented by a detailed staff note which shall include:

a. Progress toward outcomes identified in the plan of care;

b. The date of the service;

c. Beginning and ending time; and

d. The signature, date of signature, and title of the individual providing the service;

(i) Physical therapy which shall be:

A physician-ordered evaluation of an SCL recipient by applying muscle, joint, and functional ability tests;
Physician-ordered treatment in a specified amount and duration to assist an SCL recipient in obtaining the highest possible level of functioning;
Training of another SCL provider on improving the level of functioning;
Exclusive of maintenance or the prevention of regression;
Provided by a physical therapist or a physical therapist assistant supervised by a physical therapist in accordance with 201 KAR 22:001 and 201 KAR 22:020; and
Documented by a detailed staff note which shall include:

a. Progress made toward outcomes identified in the plan of care;

b. The date of the service;

c. Beginning and ending time of the service; and

d. The signature, date of signature, and title of the individual providing the service;

(j) Psychological services which shall:

Be provided to an SCL recipient who is dually diagnosed to coordinate treatment for mental illness and a psychological condition;
Be utilized if the needs of the SCL recipient cannot be met by behavior support or another covered service;
Include:

a. The administration of psychological testing;

b. Evaluation;

c. Diagnosis; and

d. Treatment;

Be incorporated into the plan of care with input from the psychological service provider for the development of program-wide support;
Be provided by a psychologist or a psychologist with autonomous functioning; and
Be documented by a detailed staff note which shall include:

a. The date of the service;

b. The beginning and ending time of the service; and

c. The signature, date of signature, and title of the individual providing the service;

(k) Residential support service which shall:

Include twenty-four (24) hour supervision in:

a. A staffed residence which shall not have greater than three (3) recipients of publicly-funded supports in a home rented or owned by the SCL provider;

b. A group home which shall be licensed in accordance with 902 KAR 20:078 and shall not have greater than eight (8) SCL recipients;

c. A family home provider which shall not have greater than three (3) recipients of publicly-funded supports living in the home; or

d. An adult foster care home which shall not have greater than three (3) recipients of publicly-funded supports aged eighteen (18) or over living in the home;

Utilize a modular home only if the:

a. Wheels are removed;

b. Home is anchored to a permanent foundation; and

c. Windows are of adequate size for an adult to use as an exit in the event of an emergency;

Not utilize a motor home;
Provide a sleeping room which ensures that an SCL recipient:

a. Does not share a room with an individual of the opposite sex who is not the SCL recipient's spouse;

b. Under the age of eighteen (18) does not share a room with an individual that has an age variance of more than five (5) years;

c. Does not share a room with an individual who presents a potential threat; and

d. Has a separate bed equipped with substantial springs, a clean and comfortable mattress, and clean bed linens as required for the SCL recipient's health and comfort;

Provide assistance with daily living skills which shall include:

a. Ambulation;

b. Dressing;

c. Grooming;

d. Eating;

e. Toileting;

f. Bathing;

g. Meal planning and preparation;

h. Laundry;

i. Budgeting and financial matters;

j. Home care and cleaning; or

k. Medication management;

Provide supports and training to obtain the outcomes of the SCL recipient as identified in the plan of care;
Provide or arrange for transportation to services, activities, and medical appointments as needed;
Include participation in medical appointments and follow-up care as directed by the medical staff; and
Be documented by a detailed monthly summary note which shall include:

a. The month, day, and year for the time period the note covers;

b. Progression, regression, and maintenance toward outcomes identified in the plan of care;

c. Pertinent information regarding the life of the SCL recipient; and

d. The signature, date of signature, and title of the individual preparing the staff note;

(l) Respite service which shall be:

Provided only to an SCL recipient unable to independently administer self-care;
Provided in a variety of settings;
Provided on a short-term basis due to absence or need for relief of an individual providing care to an SCL recipient;
Provided only to an SCL recipient who resides in a family home provider, adult foster care home, or his or her own or family's home;
Limited to 1,440 hours per calendar year; and
Documented by a detailed staff note which shall include:

a. The date of the service;

b. The beginning and ending time; and

c. The signature, date of signature, and title of the individual providing the service;

(m) Specialized medical equipment and supplies which shall:

Include durable and nondurable medical equipment, devices, controls, appliances, or ancillary supplies;
Enable an SCL recipient to increase his or her ability to perform daily living activities or to perceive, control, or communicate with the environment;
Be ordered by a physician and submitted on a MAP-95;
Include equipment necessary to the proper functioning of specialized items;
Not be available through the department's durable medical equipment, vision, hearing, or dental programs;
Meet applicable standards of manufacture, design and installation; and
Exclude those items which are not of direct medical or remedial benefit to the SCL recipient;

(n) Speech therapy which shall be:

A physician-ordered evaluation of an SCL recipient with a speech or language disorder;
A physician ordered habilitative service in a specified amount and duration to assist an SCL recipient with a speech and language disability in obtaining the highest possible level of functioning;
Training of other SCL providers on improving the level of functioning;
Exclusive of maintenance or the prevention of regression;
Provided by a speech-language pathologist; and
Documented by a detailed staff note which shall include:

a. Progress toward outcomes identified in the plan of care;

b. The date of the service;

c. The beginning and ending time; and

d. The signature, date of signature, and title of the individual providing the service; or

(o) Supported employment which shall be:

Intensive, ongoing support for an SCL recipient to maintain paid employment in an environment in which an individual without a disability is employed;
Provided in a variety of settings;
Provided on a one-to-one basis;
Unavailable under a program funded by either the Rehabilitation Act of 1973 (29 U.S.C. Chapter 16) or Pub.L. 99-457 (34 C.F.R. Subtitle B, Chapter III), proof of which shall be documented in the SCL recipient's file;
Exclusive of work performed directly for the supported employment provider;
Provided by a staff person who has completed a supported employment training curriculum conducted by staff of the cabinet or its designee;
Documented by:

a. A time and attendance record which shall include:

(i) The date of service;

(ii) The beginning and ending time; and

(iii) The signature, date of signature, and title of the individual providing the service; and

b. A detailed monthly summary note which shall include:

(i) The month, day, and year for the time period the note covers;

(ii) Progression, regression, and maintenance toward outcomes identified in the plan of care; and

(iii) The signature, date of signature, and title of the individual preparing the note; and

Limited to forty (40) hours per week alone or in combination with adult day training.

Section 5. Consumer Directed Option.

(1) Covered services and supports provided to an SCL recipient participating in CDO shall include:

(a) A home and community support service which shall:

Be available only under the consumer directed option;
Be provided in the consumer's home or in the community;
Be based upon therapeutic goals and not be diversional in nature;
Not be provided to an individual if the same or similar service is being provided to the individual via non-CDO SCL services; and

a. Be respite for the primary caregiver; or

b. Be supports and assistance related to chosen outcomes to facilitate independence and promote integration into the community for an individual residing in his or her own home or the home of a family member and may include:

(i) Routine household tasks and maintenance;

(ii) Activities of daily living;

(iii) Personal hygiene;

(iv) Shopping;

(v) Money management;

(vi) Medication management;

(vii) Socialization;

(viii) Relationship building;

(ix) Leisure choices; or

(x) Participation in community activities;

(b) A community day support service which shall:

Be available only under the consumer directed option;
Be provided in a community setting;
Be tailored to the consumer's specific personal outcomes related to the acquisition, improvement, and retention of skills and abilities to prepare and support the consumer for work or community activities, socialization, leisure, or retirement activities;
Be based upon therapeutic goals and not be diversional in nature; and
Not be provided to an individual if the same or similar service is being provided to the individual via non-CDO SCL services; and

Be individualized;
Be utilized to reduce the need for personal care or to enhance independence within the home or community of the recipient;
Not include experimental goods or services; and
Not include chemical or physical restraints.

(2) To be covered, a CDO service shall be specified in a consumer's plan of care and support spending plan.

(3) Reimbursement for a CDO service shall not exceed the department's allowed reimbursement for the same or a similar service provided in a non-CDO SCL setting.

(4) A consumer, including a married consumer, shall choose providers and a consumer's choice of CDO provider shall be documented in the consumer's plan of care.

(5) A consumer may designate a representative to act on his or her behalf. The CDO representative shall:

(a) Be twenty-one (21) years of age or older;

(b) Not be monetarily compensated for acting as the CDO representative or providing a CDO service; and

(6) A consumer may voluntarily terminate CDO services by completing a MAP-2000 and submitting it to the support broker.

(7) The department shall immediately terminate a consumer from CDO services if imminent danger to the consumer's health, safety, or welfare exists.

(8) The department may terminate a consumer from CDO services if it determines that the consumer's CDO provider has not adhered to the plan of care.

(9) Prior to a consumer's termination from CDO services, the support broker shall:

(a) Notify the SCL assessment or reassessment service provider of potential termination;

(b) Assist the consumer in developing a resolution and prevention plan;

(c) Allow at least thirty (30) but no more than ninety (90) days for the consumer to resolve the issue, develop and implement a prevention plan, or designate a CDO representative;

(d) Complete, and submit to the department and to DMR, a MAP-2000 terminating the consumer from CDO services if the consumer fails to meet the requirements in paragraph (c) of this subsection; and

(e) Assist the consumer in transitioning back to traditional SCL services.

(10) Upon an involuntary termination of CDO services, the department shall:

(a) Notify a consumer in writing of its decision to terminate the consumer's CDO participation; and

(b) Inform the consumer of the right to appeal the department's decision in accordance with Section 9 of this administrative regulation.

(11) A CDO provider:

(a) Shall be selected by the consumer;

(b) Shall submit a completed Kentucky Consumer Directed Option Employee Provider Contract, which is included in the Supports for Community Living Manual, to the support broker;

(d) Shall be a citizen of the United States with a valid Social Security number or possess a valid work permit if not a US citizen;

(e) Shall be able to communicate effectively with the consumer, consumer representative, or family;

(f) Shall be able to understand and carry out instructions;

(g) Shall be able to keep records as required by the consumer;

(h) Shall submit to a criminal background check conducted by the Kentucky Administrative Office of the Courts or equivalent agency from any other state, for each state in which the individual resided or worked during the year prior to selection as a provider of CDO services;

(i) Shall submit to a check of the central registry maintained in accordance with 922 KAR 1:470 and not be found on the registry.

A consumer may employ a provider prior to a central registry check result being obtained for up to thirty (30) days.
If a consumer does not obtain a central registry check result within thirty (30) days of employing a provider, the consumer shall cease employment of the provider until a favorable result is obtained;

(j) Shall submit to a check of the nurse aide abuse registry maintained in accordance with 906 KAR 1:100 and not be found on the registry;

(k) Shall not have pled guilty or been convicted of committing a sex crime or violent crime as defined in KRS 17.165(1) through (3);

(l) Shall complete training on the reporting of abuse, neglect or exploitation in accordance with KRS 209.030 or 620.030 and on the needs of the consumer;

(m) Shall be approved by the department;

(n) Shall maintain and submit timesheets documenting hours worked; and

(o) Shall be a friend, spouse, parent, family member, other relative, employee of a provider agency, or other person hired by the consumer.

(12) A parent, parents combined, or a spouse shall not provide more than forty (40) hours of services in a calendar week (Sunday through Saturday) regardless of the number of family members who receive waiver services.

(13)

(a) The department shall establish a budget for a consumer based on the individual's historical costs minus five (5) percent to cover costs associated with administering the consumer directed option. If no historical cost exists for the consumer, the consumer's budget shall equal the average per capita historical costs of SCL recipients minus five (5) percent.

(b) Cost of services authorized by the department for the individual's prior year plan of care but not utilized may be added to the budget if necessary to meet the individual's needs.

(c) The department may adjust a consumer's budget based on the consumer's needs and in accordance with paragraphs (d) and (e) of this subsection.

(d) A consumer's budget shall not be adjusted to a level higher than established in paragraph (a) of this subsection unless:

The consumer's support broker requests an adjustment to a level higher than established in paragraph (a) of this subsection; and
The department approves the adjustment.

(e) The department shall consider the following factors in determining whether to allow for a budget adjustment:

If the proposed services are necessary to prevent imminent institutionalization;
The cost effectiveness of the proposed services; and
Protection of the consumer's health, safety, and welfare.

(f) A consumer's budget shall not exceed the average per capita cost of services provided to individuals in an ICF-IID.

(14) Unless approved by the department pursuant to subsection (13)(b) through (e) of this section, if a CDO service is expanded to a point in which expansion necessitates a budget allowance increase, the entire service shall only be covered via a traditional (non-CDO) waiver service provider.

(15) A support broker shall:

(a) Provide needed assistance to a consumer with any aspect of CDO or blended services;

(b) Be available to a consumer twenty-four (24) hours per day, seven (7) days per week;

(d) Continually monitor a consumer's health, safety, and welfare; and

(e) Complete or revise a plan of care using person-centered planning principles.

(16) For a CDO participant, a support broker may conduct an assessment or reassessment.

Section 6. Incident Reporting Process. The incident report policies and requirements established in 907 KAR 12:010 shall apply to all SCL waiver service providers and participants.

Section 7. SCL Waiting List. The SCL waiting list policies and requirements established in 907 KAR 12:010 shall apply to all individuals on the SCL waiting list or attempting to be placed on the SCL waiting list.

Section 8. Use of Electronic Signatures. The electronic signature policies and requirements established in 907 KAR 12:010 shall apply to all SCL waiver service providers.

Section 9. Transition to New SCL Waiver.

(1) The policies established in Sections 2, 4, and 5 of this administrative regulation shall apply to SCL waiver services provided:

(a) To an SCL waiver service recipient until the recipient transitions to the new SCL waiver program:

In accordance with 907 KAR 12:010; and
During the month of the SCL waiver recipient's next birthday; and

(b) By an SCL waiver service provider who provides a service to an SCL waiver service recipient who has not transitioned to the new SCL waiver service program established pursuant to 907 KAR 12:010.

(2) During the month of an SCL waiver recipient's next birthday, the SCL waiver recipient who remains approved to receive SCL waiver services shall:

(a) Transition to the new SCL waiver program; and

(b) Receive services in accordance with 907 KAR 12:010 rather than in accordance with this administrative regulation.

(3) The policies established in this administrative regulation shall become null and void at the time that every eligible SCL waiver recipient served in accordance with this administrative regulation:

(a) Has transitioned to the new SCL waiver program; and

(b) Receives SCL waiver services in accordance with the policies established in 907 KAR 12:010.

Section 10. Appeal Rights.

(1) An appeal of a department decision regarding a Medicaid beneficiary based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563.

(2) An appeal of a department decision regarding Medicaid eligibility of an individual based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:560.

(3) An appeal of a department decision regarding a provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

(4) An individual shall not appeal a category of need specified in 907 KAR 12:010, Section 7.

Section 11. Incorporation by Reference.

(1) "Supports for Community Living Manual", October 2007 edition, is incorporated by reference.

History

RELATES TO: KRS 205.520, 205.5605, 205.5606, 205.5607, 42 C.F.R. 441 Subpart G, 42 U.S.C. 1396a, b, d, n
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.5606(1), 205.6317
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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. KRS 205.5606(1) requires the cabinet to promulgate administrative regulations to establish a consumer directed services program to provide an option for the home and community based services waivers. This administrative regulation establishes the covered service policies and requirements relating to home and community-based services provided to an individual with an intellectual or developmental disability as an alternative to placement in an intermediate care facility for an individual with an intellectual or developmental disability, including a consumer directed option pursuant to KRS 205.5606 until individuals transition to receiving services via 907 KAR 12:010.
History: 24 Ky.R. 1819; 2126; 2384; eff. 5-18-98; 30 Ky.R. 732; 1770; eff. 1-15-2004; 32 Ky.R. 2169; 33 Ky.R. 486; 782; eff. 10-6-06; 34 Ky.R. 1556; eff. 428; 1021; 1453; eff. 1-4-2008; 39 Ky.R. 632; 1221; 1416; eff. 2-1-2013; TAm 9-30-2013; Crt eff. 12-6-2019.

907 KAR 1:155 Payments for supports for community living services for an individual with an intellectual or developmental disability {#sec-907-kar-1-155 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:155}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "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

Results in an impairment of general intellectual functioning and adaptive behavior similar to that of a person with an intellectual disability; and
Is a direct result of, or is influenced by, the person's cognitive deficits.

(3) "Intellectual disability" or "ID" means a demonstration:

(a)

Of significantly sub-average intellectual functioning and an intelligence quotient (IQ) of approximately seventy (70) or below; and
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) Which occurred prior to the individual reaching eighteen (18) years of age.

(4) "North Carolina Support Needs Assessment Profile" or "NC-SNAP" means a standardized tool used for the measurement of supportive services needed by an individual with a disability.

(5) "Overall level of eligible support" means the highest of three (3) scores from the daily living domain, health care domain, or behavior domain, as established by the NC-SNAP.

(6) "Supports for community living services" or "SCL services" means community-based waiver services for an individual with an intellectual or developmental disability.

Section 2. Coverage.

(1) The department shall reimburse a participating SCL provider for a covered service provided to a Medicaid recipient who:

(a) Meets patient status criteria for an intermediate care facility for individuals with intellectual disabilities (ICF-IID) as established in 907 KAR 1:022; and

(b) Is authorized for an SCL service by the department.

(2) In order to be covered, a service shall be provided in accordance with the terms and conditions specified in 907 KAR 1:145.

(3) The reimbursement provisions established in this administrative regulation shall apply until the recipient transitions to the new SCL waiver program established in 907 KAR 12:010 during the month of the recipient's next birthday. After that transition, the reimbursement provisions established in 907 KAR 12:020 shall apply.

Section 3. SCL Reimbursement.

(1) Specialized medical equipment and supplies shall:

(a) Be a unit of service in which one (1) unit equals one (1) item as provided in Section 4 of this administrative regulation;

(b) Be reimbursed:

By a reduction of twenty (20) percent of submitted costs for approved dental services; and
Based on the submission of three (3) price estimates of which the lowest shall determine the amount of reimbursement; and

(2) A functional assessment to determine the need for a behavior support plan shall be limited to a total of forty (40) units per recipient per provider.

(3) A behavior support plan, if required, shall be limited to a total of twenty-four (24) units per recipient per provider.

(4) Monitoring a behavior support plan shall be limited to twelve (12) units per week.

Section 4. Fixed Upper Payment Limits.

(1) The following rates shall be the fixed upper payment limits for the SCL services in conjunction with the corresponding units of service:

(2) Adult day training on-site and off-site shall be limited to:

(a) Forty (40) hours (160 units) per week; and

(b) 255 days per calendar year with the specific days established in the individual support plan and approved by the department.

(3) Children's day habilitation shall be limited to forty (40) hours (160 units) per week.

Section 5. Non-Level II Intensity Payment.

(1) In addition to the rates specified in Section 4 of this administrative regulation, a provider shall receive an intensity payment if the provider meets the criteria established in subsection (2) of this section.

(2) A non-Level II intensity payment for a unit of service shall be:

(a) Made if a recipient has a score equal to five (5) on the NC-SNAP;

(b) Made for no more than ten (10) percent of the total Medicaid SCL population; and

Staffed residence;
Community living supports;
Respite;
Family home provider;
Group home;
Adult foster care home;
Adult day training on-site;
Adult day training off-site; or
Children's day habilitation.

(3) A non-Level II intensity payment for a unit of service shall be as follows:

Section 6. Level II Intensity Payment.

(1) The department shall reimburse an adult day health care center which qualifies for Level II reimbursement pursuant to 907 KAR 1:170 with an intensity payment of fifty (50) cents per unit for adult day training on-site or adult day training off-site provided to an SCL recipient.

(2) If an SCL recipient qualifies an adult day health care center for a non-Level II intensity payment and a Level II intensity payment, the department shall pay the Level II intensity payment.

Section 7. All-Inclusive Enhanced Rate.

(1) Effective September 1, 2006, the department shall reimburse an all-inclusive rate of $125,000 per recipient per year to a group home, staffed residence, family home provider, or adult foster care home for SCL services that are provided, in accordance with 907 KAR 1:145, Section 4, to an individual who has transitioned from an institutional setting to a community setting.

(2) The rate established in subsection (1) of this section shall be paid for care to an individual who:

(a) Prior to the transition, expressed, or whose legal guardian expressed, a desire to transition from the facility in which he or she resided to a community placement; and

(b)

Prior to the transition, resided in an ICF-IID for the entire two (2) year period, with the period ending no earlier than July 1, 2006, immediately preceding transitioning out of the ICF-IID and who was approved by the department for transitioning;
Resided in an ICF-IID for a period of less than two (2) years but more than six (6) months, with the period ending no earlier than July 1, 2006, immediately preceding transitioning out of the ICF-IID and who was approved for transitioning by the department; or

a. Transitioned from an institutional setting other than an ICF-IID;

b. Had a primary diagnosis of intellectual disability or developmental disability;

c. Had resided in an ICF-IID for a period of at least six (6) months within the preceding two (2) years;

d. Had received prior SCL funding; and

e. Had been reviewed and approved for transitioning by the department.

(3) To be considered for providing services to an individual meeting the criteria established in subsection (2) of this section, a provider shall:

(a) Demonstrate its ability to ensure that the potential recipient will have access to each service identified in his or her individual support plan through:

The provider's own operation; or
An established network of providers that are:

a. Enrolled in the Medicaid Program; or

b. Certified or licensed in accordance with state law governing their specific area of practice;

(b) Notify the department in writing:

Of the number of individuals it is willing and able to accept;
The date it will be able to accept an individual or individuals; and
That it is willing and able to provide services to a minimum of one (1) individual who has scored at least five (5) on the NC-SNAP; and

(c) Be able to serve a minimum of three (3) individuals, regardless of funding source, in the residence. A provider shall not be required to serve a minimum of three (3) individuals referenced in subsection (2) of this section, but shall be able to serve a minimum of three (3) individuals in the residence.

(4) To receive the rate established in subsection (1) of this section, a provider shall submit documentation to the department of each SCL service provided to the recipient for whom the special rate is paid.

(5) The reimbursement established in subsection (1) of this section:

(a) Shall expire if approval from the Centers for Medicare and Medicaid Services ceases and corresponding funding becomes unavailable; and

(b) Shall be all inclusive, meaning that it shall cover residential as well as all other SCL services, in accordance with 907 KAR 1:145, Section 4, provided to the recipient for a year.

(6) Recipient freedom of choice provisions shall apply during an individual's transition from an institution to a group home, staffed residence, family home provider, or adult foster care home.

(7) An individual may transition to a group home, staffed residence, family home provider, or adult foster care home if:

(a) The individual is eligible for SCL services pursuant to 907 KAR 1:145;

(b) The department determines that the group home, staffed residence, family home provider, or adult foster care home satisfies the requirements established in this section; and

(c) The group home, staffed residence, family home provider, or adult foster care home meets the SCL provider requirements established in 907 KAR 1:145.

(8)

(a) If a group home, staffed residence, family home provider, or adult foster care home declines to accept an individual referenced in subsection (2) of this section, the provider, except as established in paragraph (b) of this subsection, shall be ineligible to:

Provide services to any future individual who meets the criteria established in subsection (2) of this section; and
Receive the corresponding rate referenced in subsection (1) of this section for care provided to any future individual.

(b) If the department determines that a provider who declines to accept an individual is not equipped to serve the individual and that the placement would be inappropriate, the provider may be considered for future placements and payments.

(c) Refusing to accept an individual referenced in subsection (2) of this section shall not preclude a provider from continuing to:

Serve an individual meeting the criteria established in subsection (2) of this section who is already residing in the provider's residence; or
Be reimbursed at the rate established in subsection (1) of this section for services provided to an individual already residing in the provider's residence.

Section 8. North Carolina Support Needs Assessment Profile (NC-SNAP).

(1) A recipient of an SCL waiver service shall have an NC-SNAP administered:

(a) By the department; and

(b) In accordance with the NC-SNAP Instructor's Manual.

(2) A new NC-SNAP shall be administered:

(a) At the department's discretion; or

(b) At the timely request of an SCL provider if a change in a recipient's circumstances results in the need for increased or decreased supportive services.

(3) A provider shall be responsible for the cost of an NC-SNAP at the time administered:

(a) In accordance with subsection (2)(b) of this section; or

(b) As a result of an appeal filed in accordance with Section 11(1) of this administrative regulation.

Section 9. Auditing and Reporting. An SCL provider shall maintain fiscal records and incident reports in accordance with the requirements established in 907 KAR 1:145, Section 3(10).

Section 10. Transition to New SCL Waiver.

(1) The reimbursement policies established in this administrative regulation shall:

(a) Apply to an SCL waiver service provided to an SCL waiver service recipient pursuant to 907 KAR 1:145; and

(b) Not apply to an SCL waiver service provided to an SCL waiver service recipient pursuant to 907 KAR 12:010.

(2) An SCL waiver service provided to an SCL waiver service recipient pursuant to 907 KAR 12:010 shall be reimbursed pursuant to 907 KAR 12:020.

(3) The policies established in this administrative regulation shall become null and void at the time that:

(a) All SCL waiver service recipients receive SCL waiver services pursuant to 907 KAR 12:010; and

(b) No SCL waiver recipient receives SCL waiver services pursuant to 907 KAR 1:145.

Section 11. Appeal Rights.

(1) An appeal of an NC-SNAP score in accordance with 907 KAR 1:671 shall not be allowed if the change in score does not affect the provider's reimbursement level.

(2) An appeal of a department decision regarding a Medicaid beneficiary shall be in accordance with 907 KAR 1:563.

(3) An appeal of a department decision regarding the eligibility of an individual shall be in accordance with 907 KAR 1:560.

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

Section 12. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "MAP-95 Request for Equipment Form", Department for Medicaid Services, September 2002 Edition;

(b) "North Carolina Support Needs Assessment Profile (NC-SNAP)", 2000 Edition, copyright Murdoch Center Foundation; and

History

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 relating to home and community based waiver services provided to an individual with an intellectual or developmental disability as an alternative to placement in an intermediate care facility for an individual with an intellectual disability.
History: 24 Ky.R. 1822; 2129; 2386; eff. 5-18-1998; 26 Ky.R. 1591; 1805; eff. 4-12-2000; 28 Ky.R. 956; 1412; eff. 12-19-2001; 30 Ky.R. 452; 1264; eff. 12-5-2003; 31 Ky.R. 469; 718; eff. 11-5-2004; 33 Ky.R. 1169; 1859; 2314; eff. 3-9-2007; 39 Ky.R. 646; 1235; 1429; eff. 2-1-2013; Crt eff. 12-6-2019.

907 KAR 1:160 Home and community based waiver services version 1 {#sec-907-kar-1-160 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:160}

Section 1. Definitions.

(1) "1915(c) home and community based services waiver program" means a Kentucky Medicaid program established pursuant to and in accordance with 42 U.S.C. 1396n(c).

(2) "Abuse" regarding:

(a) An adult is defined by KRS 209.020(8); or

(b) A child means abuse pursuant to KRS Chapter 600 or 620.

(3) "ADHC" means adult day health care.

(4) "ADHC center" means an adult day health care center licensed in accordance with 902 KAR 20:066.

(5) "ADHC services" means health-related services provided on a regularly-scheduled basis that ensure optimal functioning of a participant who:

(a) Does not require twenty-four (24) hour care in an institutional setting; and

(b) May need twenty-four (24) hour respite services when experiencing a short-term crisis due to the temporary or permanent loss of the primary caregiver.

(6) "Advanced practice registered nurse" or "APRN" is defined by KRS 314.011(7).

(7) "Assessment team" means a team that:

(a) Conducts assessment or reassessment services; and

(b) Consists of:

Two (2) registered nurses; or
One (1) registered nurse and one (1) of the following:

a. A certified social worker;

b. A certified psychologist with autonomous functioning;

c. A licensed psychological practitioner;

d. A licensed marriage and family therapist;

e. A licensed professional clinical counselor;

f. A licensed social worker; or

g. A licensed clinical social worker.

(8) "Blended services" means a non-duplicative combination of HCB waiver services identified in Section 5 of this administrative regulation and PDS identified in Section 6 of this administrative regulation provided pursuant to a recipient's approved plan of care.

(9) "Budget allowance" is defined by KRS 205.5605(1).

(10) "Certified psychologist with autonomous functioning" or "licensed psychological practitioner" means a person licensed pursuant to KRS Chapter 319.

(11) "Certified social worker" means an individual who meets the requirements established in KRS 335.080.

(12) "Chemical restraint" means a drug or medication:

(a) Used to restrict an individual's:

Behavior; or
Freedom of movement; and

(b)

That is not a standard treatment for the individual's condition; or
Dosage that is not an appropriate dosage for the individual's condition.

(13) "Communicable disease" means a disease that is transmitted:

(a) Through direct contact with an infected individual;

(b) Indirectly through an organism that carries disease-causing microorganisms from one (1) host to another or a bacteriophage, a plasmid, or another agent that transfers genetic material from one (1) location to another; or

(c) Indirectly by a bacteriophage, a plasmid, or another agent that transfers genetic material from one (1) location to another.

(14) "Covered services and supports" is defined by KRS 205.5605(3).

(15) "DCBS" means the Department for Community Based Services.

(16) "Department" means the Department for Medicaid Services or its designee.

(17) "Electronic signature" is defined by KRS 369.102(8).

(18) "Exploitation" regarding:

(a) An adult is defined by KRS 209.020(9); or

(b) A child means exploitation pursuant to KRS Chapter 600 or 620.

(19) "Home and community based waiver services" or "HCB waiver services" means home and community based waiver services:

(a) For individuals who meet the requirements of Section 4 of this administrative regulation; and

(b) Covered by the department pursuant to this administrative regulation.

(20) "Home and community support services" means nonresidential and nonmedical home and community based services and supports that:

(a) Meet the participant's needs; and

(b) Constitute a cost-effective use of funds.

(21) "Home health agency" means an agency that is:

(a) Licensed in accordance with 902 KAR 20:081; and

(b) Medicare and Medicaid certified.

(22) "Illicit drug" means:

(a) A drug, prescription or not prescription, used illegally or in excess of therapeutic levels; or

(b) A prohibited drug.

(23) "Licensed clinical social worker" means an individual who meets the requirements established in KRS 335.100.

(24) "Licensed marriage and family therapist" or "LMFT" is defined by KRS 335.300(2).

(25) "Licensed practical nurse" or "LPN" means a person who:

(a) Meets the definition established by KRS 314.011(9); and

(b) Works under the supervision of a registered nurse.

(26) "Licensed professional clinical counselor" or "LPCC" is defined by KRS 335.500(3).

(27) "Licensed social worker" means an individual who meets the requirements established in KRS 335.090.

(28) "Neglect" regarding:

(a) An adult is defined by KRS 209.020(16); or

(b) A child means neglect pursuant to KRS Chapter 600 or 620.

(29) "NF" means nursing facility.

(30) "NF level of care" means a high intensity or low intensity patient status determination made by the department in accordance with 907 KAR 1:022.

(31) "Normal baby-sitting" means general care provided to a child that includes custody, control, and supervision.

(32) "Occupational therapist" is defined by KRS 319A.010(3).

(33) "Occupational therapy assistant" is defined by KRS 319A.010(4).

(34) "Participant" means a recipient who meets the:

(a) NF level of care criteria established in 907 KAR 1:022; and

(b) Eligibility criteria for HCB waiver services established in Section 4 of this administrative regulation.

(35) "Patient liability" means the financial amount an individual is required to contribute toward cost of care in order to maintain Medicaid eligibility.

(36) "PDS" means participant-directed services.

(37) "Physical restraint" means any manual method or physical or mechanical device, material, or equipment that:

(a) Immobilizes or reduces the ability of a person to move his or her arms, legs, body, or head freely; and

(b) Does not include:

Orthopedically prescribed devices or other devices, surgical dressings or bandages, or protective helmets; or
Other methods that involve the physical holding of a person for the purpose of:

a. Conducting routine physical examinations or tests;

b. Protecting the person from falling out of bed; or

c. Permitting the person to participate in activities without the risk of physical harm.

(38) "Physical therapist" is defined by KRS 327.010(2).

(39) "Physical therapist assistant" means a skilled health care worker who:

(a) Is certified by the Kentucky Board of Physical Therapy; and

(b) Performs physical therapy and related duties as assigned by the supervising physical therapist.

(40) "Physician assistant" or "PA" is defined by KRS 311.840(3).

(41) "Plan of care" or "POC" means a written individualized comprehensive plan that:

(a) Encompasses all HCB waiver services; and

(b) Is developed by a participant or a participant's legal representative, case manager, or other individual designated by the participant.

(42) "Plan of treatment" means a care plan developed and used by an ADHC center based on the participant's individualized ADHC service needs, goals, interventions, and outcomes.

(43) "Prohibited drug" means a drug or substance that is illegal under KRS Chapter 218A.

(44) "Registered nurse" or "RN" means a person who:

(a) Meets the definition established by KRS 314.011(5); and

(b) Has one (1) year or more experience as a professional nurse.

(45) "Representative" is defined by KRS 205.5605(6).

(46) "Sex crime" is defined by KRS 17.165(1).

(47) "Speech-language pathologist" is defined by KRS 334A.020(3).

(48) "Support broker" means an individual chosen by a participant from an agency designated by the department to:

(a) Provide training, technical assistance, and support to a participant; and

(b) Assist a participant in any other aspects of PDS.

(49) "Support spending plan" means a plan for a participant that identifies the:

(a) PDS requested;

(b) Employee name;

(d) Hours per month;

(e) Monthly pay;

(f) Taxes; and

(g) Budget allowance.

(50) "Violent crime" is defined by KRS 17.165(3).

(51) "Violent offender" is defined by KRS 17.165(2).

Section 2. Provider Participation.

(1) In order to provide HCB waiver services version 1, excluding participant-directed services, an HCB waiver provider shall be a home health agency or ADHC center that provides services:

(a) Directly; or

(b) Indirectly through a subcontractor.

(2) An out-of-state provider shall comply with the requirements of this administrative regulation.

(3) An HCB waiver provider:

(a) Shall comply with the following administrative regulations and program requirements:

902 KAR 20:081;
907 KAR 1:671;
907 KAR 1:672;
907 KAR 1:673;
The Department for Medicaid Services Home and Community Based Waiver Services Manual; and
The Department for Medicaid Services Adult Day Health Care Services Manual;

(b) Shall not enroll a participant for whom the provider cannot provide HCB waiver services;

(d) Shall implement a procedure to ensure that the following is reported:

Abuse, neglect, or exploitation of a participant in accordance with KRS Chapters 209 or 620;
A slip or fall;
A transportation incident;
Improper administration of medication;
A medical complication; or
An incident caused by the recipient, including:

a. Verbal or physical abuse of staff or other recipients;

b. Destruction or damage of property; or

c. Recipient self-abuse;

(e) Shall ensure a copy of each incident report required by paragraph (d) of this subsection is maintained in a central file subject to review by the department;

(f) Shall implement a process for communicating the incident, the outcome, and the prevention plan to:

The participant, family member, or responsible party; and
The attending physician, PA, or APRN;

(g) Shall maintain documentation of any communication provided in accordance with paragraph (f) of this subsection. The documentation shall be:

Recorded in the participant's case record; and
Signed and dated by the staff member making the entry;

(h) Shall implement a procedure that ensures the reporting of a participant or any interested party's complaint against the provider or its personnel to the provider agency or facility;

(i) Shall ensure that a copy of each complaint reported is maintained in a central file subject to review by the department;

(j) Shall implement a process for communicating a complaint, the resulting outcome, and related prevention plan to:

The participant, family member, or the participant's responsible party; and
The attending physician, PA, or APRN if appropriate;

(k) Shall maintain documentation of any communication provided in accordance with paragraph (j) of this subsection. The documentation shall be:

Recorded in the participant's case record; and
Signed and dated by the staff member making the entry;

(l) Shall inform a participant or any interested party in writing of the provider's:

Hours of operation; and
Policies and procedures;

(m) Shall not permit a staff member who has contracted a communicable disease to provide a service to a participant until the condition is determined to no longer be contagious;

(n) Shall ensure that a staff member who provides direct services:

Demonstrates the ability to:

a. Read;

b. Write;

c. Understand and carry out instructions;

d. Keep simple records; and

e. Interact with a participant when providing an HCB waiver service;

Is trained by an HCB waiver provider; and
Is supervised by an RN at least every other month;

(o) Shall ensure that each staff person:

Prior to independently providing a direct service, is trained regarding:

a. Abuse, neglect, fraud, and exploitation;

b. The reporting of abuse, neglect, fraud, and exploitation;

c. Person-centered planning principles;

d. Documentation requirements; and

e. HCB services definitions and requirements;

Receives cardio pulmonary resuscitation certification and first aid certification provided by a nationally accredited entity within six (6) months of employment;
Maintains current CPR certification and first aid certification for the duration of the staff person's employment;

a. Completes a tuberculosis (TB) risk assessment performed by a licensed medical professional within the past twelve (12) months and annually thereafter; and

(i) If a TB risk assessment resulted in a TB skin test being performed, have a negative result within the past twelve (12) months as documented on test results received by the provider within thirty (30) days of the date of hire; and

(ii) If it is determined that signs or symptoms of active disease are present, in order for the person to be allowed to work, be administered follow-up testing by his or her physician or physician assistant with the testing indicating the person does not have active TB disease; and

Prior to the beginning of employment, has successfully passed a drug test with no indication of prohibited or illicit drug use;

(p)

Shall:

a. Prior to hiring an individual, obtain:

(i) The results of a criminal record check from the Kentucky Administrative Office of the Courts and equivalent out-of-state agency if the individual resided or worked outside of Kentucky during the twelve (12) months prior to employment;

(ii) The results of a Nurse Aide Abuse Registry check as described in 906 KAR 1:100 and an equivalent out-of-state agency if the individual resided or worked outside of Kentucky during the twelve (12) months prior to employment; and

(iii) The results of a Caregiver Misconduct Registry check as described in 922 KAR 5:120 and equivalent out-of-state agency if the individual resided or worked outside of Kentucky during the twelve (12) months prior to employment; and

b. Within thirty (30) days of the date of hire, obtain the results of a Central Registry check as described in 922 KAR 1:470 and an equivalent out-of-state agency if the individual resided or worked outside of Kentucky during the twelve (12) months prior to employment; or

May use Kentucky's national background check program established by 906 KAR 1:190 to satisfy the background check requirements of subparagraph 1 of this paragraph; and

(q) Shall not allow a staff person to provide HCB waiver services if the individual:

Has a prior conviction of or pled guilty to a:

a. Sex crime; or

b. Violent crime;

Is a violent offender;
Has a prior felony conviction;
Has a drug related conviction, felony plea bargain, or amended plea bargain conviction within the past five (5) years;
Has a positive drug test for an illicit or a prohibited drug;
Has a conviction of abuse, neglect, or exploitation;
Has a Cabinet for Health and Family Services finding of:

a. Child abuse or neglect pursuant to the Central Registry as described in 922 KAR 1:470; or

b. Adult abuse, neglect, or exploitation pursuant to the Caregiver Misconduct Registry as described in 922 KAR 5:120;

Is listed on the Nurse Aide Abuse Registry pursuant to 906 KAR 1:100;
Within the twelve (12) months prior to employment, is listed on or has a finding indicated on another state's equivalent of the:

a. Nurse Aide Abuse Registry as described in 906 KAR 1:100 if the other state has an equivalent;

b. Caregiver Misconduct Registry as described in 922 KAR 5:120 if the other state has an equivalent; or

c. Central Registry as described in 922 KAR 1:470 if the other state has an equivalent; or

Has been convicted of Medicaid or Medicare fraud.

Section 3. Maintenance of Records.

(1) An HCB waiver provider shall maintain:

(a) A clinical record for each participant. The clinical record shall contain the following:

Pertinent medical, nursing, and social history;
A comprehensive assessment entered on form MAP-351, Medicaid Waiver Assessment and signed by the:

a. Assessment team; and

b. Department;

A completed MAP 109, Plan of Care/Prior Authorization for Waiver Services;
A copy of the MAP-350, Long Term Care Facilities and Home and Community Based Program Certification Form signed by the participant or participant's legal representative at the time of application or reapplication and each recertification thereafter;
The name of the case manager;
Documentation of all level of care determinations;
All documentation related to prior authorizations, including requests, approvals, and denials;
Documentation of each contact with, or on behalf of, a participant;
Documentation that the participant receiving ADHC services was provided a copy of the ADHC center's posted hours of operation;
Documentation that the participant or legal representative was informed of the procedure for reporting complaints; and
Documentation of each service provided that shall include:

a. The date the service was provided;

b. The duration of the service;

c. The arrival and departure time of the provider, excluding travel time, if the service was provided at the participant's home;

d. Itemization of each personal care or homemaking service delivered;

e. The participant's arrival and departure time, excluding travel time, if the service was provided at the ADHC center;

f. Progress notes, which shall include documentation of changes, responses, and treatments utilized to evaluate the participant's needs; and

g. The name, title, and signature of the service provider; and

(b)

Fiscal reports regarding services provided, service records regarding services provided, and incident reports. These reports shall be retained:

a. At least six (6) years from the date that a covered service is provided; or

b. For a minor, three (3) years after the recipient reaches the age of majority under state law, whichever is longest.

If the Secretary of the United States Department of Health and Human Services requires a longer document retention period than the period referenced in subparagraph 1. of this paragraph, pursuant to 42 C.F.R. 431.17, the period established by the secretary shall be the required period.

(2) Upon request, an HCB waiver provider shall make information regarding service and financial records available to the:

(a) Department;

(b) Cabinet for Health and Family Services, Office of Inspector General or its designee;

(d) General Accounting Office or its designee;

(e) Office of the Auditor of Public Accounts or its designee; or

(f) Office of the Attorney General or its designee.

Section 4. Participant Eligibility Determinations and Redeterminations.

(1) An HCB waiver service shall be provided to a Medicaid eligible participant who:

(a) Is determined by the department to meet NF level of care requirements; and

(b) Would, without waiver services, be admitted by a physician's order to an NF.

(2) The department shall perform an NF level of care determination for each participant at least once every twelve (12) months or more often if necessary.

(3) An HCB waiver service shall not be provided to an individual who:

(a) Does not require a service other than:

A minor home adaptation;
Case management; or
A minor home adaptation and case management;

(b) Is an inpatient of:

A hospital;
An NF; or
An intermediate care facility for individuals with an intellectual disability;

(d) Is receiving services from another 1915(c) home and community based services waiver program.

(4) An HCB waiver provider shall:

(a) Inform a participant or the participant's legal representative of the choice to receive:

HCB waiver services; or
Institutional services; and

(b) Require a participant to sign a MAP-350, Long Term Care Facilities and Home and Community Based Program Certification Form at the time of application or reapplication and at each recertification to document that the individual was informed of the choice to receive HCB waiver or institutional services.

(5) An eligible participant or the participant's legal representative shall select a participating HCB waiver provider from which the participant wishes to receive HCB waiver services.

(6) An HCB waiver provider shall use a MAP-24, Memorandum to notify the local DCBS office and the department of a participant's:

(a) Termination from the HCB waiver program; or

(b)

Admission to an NF for less than sixty (60) consecutive days; and
Return to the HCB waiver program from an NF within sixty (60) consecutive days.

Section 5. Covered Services.

(1) An HCB waiver service shall:

(a) Be prior authorized by the department to ensure that the service or modification of the service already meets the needs of the participant;

(b) Be provided pursuant to a plan of care or, for a PDS, pursuant to a plan of care and support spending plan;

(c) Except for a PDS, not be provided by a member of the participant's family. A PDS may be provided by a participant's family member; and

(d) Be accessed within sixty (60) days of the date of prior authorization.

(2) To request prior authorization, a provider shall submit a completed MAP 10, Waiver Services Physician's Recommendation; MAP 109, Plan of Care/Prior Authorization for Waiver Services; and MAP 351, Medicaid Waiver Assessment to the department.

(3) Covered HCB services shall include:

(a) A comprehensive assessment, which shall:

Identify a participant's needs and the services that the participant or the participant's family cannot manage or arrange for on the participant's behalf;
Evaluate a participant's physical health, mental health, social supports, and environment;
Be requested by an individual seeking HCB waiver services or the individual's family, legal representative, physician, physician assistant, or APRN;
Be conducted by an assessment team within seven (7) calendar days of receipt of the request for assessment; and
Include at least one (1) face-to-face home visit by a member of the assessment team with the participant and, if appropriate, the participant's family;

(b) A reassessment service, which shall:

Determine the continuing need for HCB waiver services and, if appropriate, PDS;
Be performed at least every twelve (12) months;
Be conducted using the same procedures used in an assessment service;
Not be retroactive; and
Be initiated by an HCB waiver provider or support broker who shall:

a. Notify the department no more than three (3) weeks prior to the expiration of the current level of care certification to ensure that certification is consecutive; and

b. Not be reimbursed for a service provided during a period that a participant is not covered by a valid level of care certification;

Consist of coordinating the delivery of direct and indirect services to a participant;
Be provided by a case manager who shall:

a. Be an RN, LPN, certified social worker, certified psychologist with autonomous functioning, licensed psychological practitioner, LMFT, licensed clinical social worker, licensed social worker, or an LPCC;

b. Arrange for a service but not provide a service directly;

c. Contact the participant monthly by telephone or through a face-to-face visit at the participant's residence or in the ADHC center, with a minimum of one (1) face-to-face visit between the case manager and the participant every other month; and

d. Assure that service delivery is in accordance with a participant's plan of care;

Not include a group conference; and
Include development of a plan of care that shall:

a. Be completed on the MAP 109, Plan of Care/Prior Authorization for Waiver Services;

b. Reflect the needs of the participant;

c. List goals, interventions, and outcomes;

d. Specify services needed;

e. Determine the amount, frequency, and duration of services;

f. Provide for reassessment at least every twelve (12) months;

g. Be developed and signed by the assessment team, case manager, and participant or participant's family; and

h. Be submitted to the department no later than thirty (30) calendar days after receiving the department's verbal approval of NF level of care;

(d) A homemaker service, which shall consist of general household activities and shall be provided:

By staff pursuant to Section 2(3)(m) and (n) of this administrative regulation; and
To a participant:

a. Who is functionally unable, but would normally perform age-appropriate homemaker tasks; and

b. If the caregiver regularly responsible for homemaker activities is temporarily absent or functionally unable to manage the homemaking activities;

(e) A personal care service, which shall consist of age-appropriate medically-oriented services and be provided:

By staff pursuant to Section 2(3)(m) and (n) of this administrative regulation; and
To a participant:

a. Who does not need highly skilled or technical care;

b. For whom services are essential to the participant's health and welfare and not for the participant's family; and

c. Who needs assistance with age-appropriate activities of daily living;

(f) An attendant care service, which shall consist of hands-on care that is:

Provided by staff pursuant to Section 2(3)(m) and (n) of this administrative regulation to a participant who:

a. Is medically stable but functionally dependent and requires care or supervision twenty-four (24) hours per day; and

b. Has a family member or other primary caretaker who is employed and not able to provide care during working hours;

Not of a general housekeeping nature; and
Not provided to a participant who is receiving any of the following HCB waiver services:

a. Personal care;

b. Homemaker; or

c. ADHC;

(g) A respite care service, which shall be short term care based on the absence or need for relief of the primary caretaker and be:

Provided by staff pursuant to Section 2(3)(m) and (n) of this administrative regulation who provide services at a level that appropriately and safely meets the medical needs of the participant in the following settings:

a. A participant's place of residence; or

b. An ADHC center during posted hours of operation;

Provided to a participant who has care needs beyond normal baby-sitting;
Used no less than every six (6) months; and
Provided in accordance with 902 KAR 20:066;

(h) A minor home adaptation service, which shall be a physical adaptation to a home that is necessary to ensure the health, welfare, and safety of a participant, and which shall:

Meet all applicable safety and local building codes;
Relate strictly to the participant's disability and needs;
Exclude an adaptation or improvement to a home that has no direct medical or remedial benefit to the participant; and
Be submitted on form MAP-95 Request for Equipment Form for prior authorization; or

(i) An ADHC service, which shall:

Except for a participant approved for an ADHC service prior to May 1, 2003, be provided to a participant who is at least twenty-one (21) years of age;
Include the following basic services and necessities provided to participants during the posted hours of operation:

a. Skilled nursing services provided by an RN or LPN, including ostomy care, urinary catheter care, decubitus care, tube feeding, venipuncture, insulin injections, tracheotomy care, or medical monitoring;

b. Meal service corresponding with hours of operation with a minimum of one (1) meal per day and therapeutic diets as required;

c. Snacks;

d. The presence of an RN or LPN;

e. Age and diagnosis appropriate daily activities; and

f. Routine services that meet the daily personal and health care needs of a participant, including:

(i) Monitoring of vital signs;

(ii) Assistance with activities of daily living; and

(iii) Monitoring and supervision of self-administered medications, therapeutic programs, and incidental supplies and equipment needed for use by a participant;

Include developing, implementing, and maintaining nursing policies for nursing or medical procedures performed in the ADHC center;
Include ancillary services in accordance with 907 KAR 1:023, if ordered by a physician, PA, or APRN in a participant's ADHC plan of treatment. Ancillary services shall:

a. Consist of evaluations or reevaluations for the purpose of developing a plan, which shall be carried out by the participant or ADHC center staff;

b. Be reasonable and necessary for the participant's condition;

c. Be rehabilitative in nature;

d. Include physical therapy provided by a physical therapist or physical therapist assistant, occupational therapy provided by an occupational therapist or occupational therapy assistant, or speech therapy provided by a speech-language pathologist; and

e. Comply with the physical, occupational, and speech therapy requirements established in Technical Criteria for Reviewing Ancillary Services for Adults;

Include respite care services pursuant to paragraph (g) of this subsection;
Be provided to a participant by the health team in an ADHC center, which may include:

a. A physician;

b. A physician assistant;

c. An APRN;

d. An RN;

e. An LPN;

f. An activities director;

g. A physical therapist;

h. A physical therapist assistant;

i. An occupational therapist;

j. An occupational therapy assistant;

k. A speech-language pathologist;

l. A certified social worker;

m. A licensed clinical social worker;

n. A nutritionist;

o. A health aide;

p. An LPCC;

q. An LMFT;

r. A certified psychologist with autonomous functioning;

s. A licensed psychological practitioner; or

t. A licensed social worker; and

Be provided pursuant to a plan of treatment. The plan of treatment shall:

a. Be developed and signed by each member of the plan of treatment team, which shall include the participant or a legal representative of the participant;

b. Include pertinent diagnoses, mental status, services required, frequency of visits to the ADHC center, prognosis, rehabilitation potential, functional limitation, activities permitted, nutritional requirements, medication, treatment, safety measures to protect against injury, instructions for timely discharge, and other pertinent information; and

c. Be developed annually from information on the MAP 351, Medicaid Waiver Assessment and revised as needed.

(4) Modification of an ancillary therapy service or an ADHC unit of service shall require prior authorization as established in this subsection.

(a) Prior authorization shall:

Be requested by an RN or designated ADHC center staff; and
Require submission of a revised MAP 109, Plan of Care/Prior Authorization for Waiver Services and an order signed by a physician, physician assistant, or APRN.

(b) An RN or designated ADHC center staff shall forward a copy of the documents required in paragraph (a) of this subsection to the HCB case manager or the participant's support broker for inclusion in the participant's case records within ten (10) working days of the prior authorization request.

(c) Upon approval or denial of a prior authorization request, the department shall provide written notification to the HCB agency, the ADHC center, and the participant.

(d) The case manager or support broker shall:

Inform the ADHC center of approval or denial; and
Document the approval or denial in the case record.

(5)

(a) An ADHC center shall maintain a sign in and out log documenting the provision of services to participants.

(b) Documentation shall include:

The date the service was provided;
The duration of the service;
The arrival and departure time of the participant;
A description of the service provided; and
The title and signature of the staff who provided the service.

Section 6. Participant-Directed Services.

(1) Covered services and supports provided to a participant participating in PDS shall include:

(a) Home and community support services, which shall:

Be available only under the participant-directed services;
Be provided in the participant's home or in the community;
Be based upon therapeutic goals and not be divisional in nature; and
Not be provided to a participant if the same or similar service is being provided to the participant via non-PDS HCB waiver services; or

(b) Goods and services, which shall:

Be individualized;
Meet identified needs required by the participant's plan of care that are necessary to ensure the health, welfare, and safety of the participant;
Be items or minor adaptations that are utilized to reduce the need for personal care or to enhance independence within the home or community of the participant;
Not include experimental goods or services; and
Not include chemical or physical restraints.

(2) To be covered, a PDS shall be specified in the plan of care.

(3) Reimbursement for a PDS shall not exceed the department's allowed reimbursement for the same or similar service provided in a non-PDS HCB setting.

(4) A participant, including a married participant, shall choose providers and a participant's choice shall be reflected or documented in the plan of care.

(5)

(a) A participant may designate a representative to act on the participant's behalf.

(b) A PDS representative shall:

Be twenty-one (21) years of age or older;
Not be monetarily compensated for acting as the PDS representative or providing a PDS;
Be appointed by the participant on a MAP 2000, Initiation/Termination of Consumer Directed Option (CDO)/Participant Directed Services (PDS);
Comply with the requirements for background and related checks established in Section 2(3)(p) of this administrative regulation; and
Not be a PDS representative if found in violation of any of the provisions established in subsection (11)(i) of this section.

(6) A participant may voluntarily terminate PDS by completing a MAP 2000, Initiation/Termination of Consumer Directed Option (CDO)/Participant Directed Services (PDS) and submitting it to the support broker.

(7) The department shall immediately terminate a participant from PDS if:

(a) Imminent danger to the participant's health, safety, or welfare exists;

(b) The participant fails to pay patient liability;

(c) The participant's plan of care indicates he or she requires more hours of service than the program can provide, which may jeopardize the participant's safety and welfare due to being left alone without a caregiver present; or

(d) The participant, caregiver, family, or guardian threatens or intimidates a support broker or other PDS staff.

(8) The department may terminate a participant from PDS if it determines that the participant's PDS provider has not adhered to the plan of care.

(9) Except for an immediate termination as provided in subsection (7) of this section if a participant is to be terminated from PDS, the support broker shall:

(a) Notify the assessment or reassessment service provider of potential termination;

(b) Assist the participant in developing a resolution and prevention plan;

(c) Allow at least thirty (30) but no more than ninety (90) days for the participant to resolve the issue, develop and implement a prevention plan, or designate a PDS representative;

(d) Complete and submit to the department a MAP 2000, Initiation/Termination of Consumer Directed Option (CDO)/Participant Directed Services (PDS) terminating the participant from PDS if the participant fails to meet the requirements in paragraph (c) of this subsection; and

(e) Assist the participant in transitioning back to traditional HCB waiver services.

(10) Upon an involuntary termination of PDS, the department shall:

(a) Notify a participant in writing of its decision to terminate the participant's PDS participation; and

(b) Except if a participant failed to pay patient liability, inform the participant of the right to appeal the department's decision in accordance with Section 9 of this administrative regulation.

(11) A PDS provider shall:

(a) Be selected by the participant;

(b) Submit a completed Kentucky Consumer Directed Options/Participant Directed Services Employee/Provider Contract to the support broker;

(d) Be a citizen of the United States with a valid Social Security number or possess a valid work permit if not a U.S. citizen;

(e) Be able to communicate effectively with the participant, participant representative, or family;

(f) Be able to understand and carry out instructions;

(g) Be able to keep records as required by the participant;

(h) Submit to the background and related checks established in Section 2(3)(p) of this administrative regulation;

(i) Not be a PDS provider excluded from providing services in accordance with Section 2(3)(q) of this administrative regulation;

(j) Prior to the beginning of employment, complete training on the reporting of abuse, neglect, or exploitation in accordance with KRS 209.030 or 620.030 and on the needs of the participant;

(k) Comply with the TB risk assessment and test requirements established in Section 2(3)(o)4 of this administrative regulation;

(l)

Obtain first aid certification within six (6) months of providing PDS services; and
Maintain first aid certification for the duration of being a PDS provider; and

(m)

Except as established in subparagraph 2 of this paragraph:

a. Obtain cardiopulmonary resuscitation (CPR) certification by a nationally accredited entity within six (6) months of employment; and

b. Maintain CPR certification for the duration of being a PDS provider; or

If the participant to whom a PDS provider provides services has a signed Do Not Resuscitate order, not be required to meet the requirements established in subparagraph 1 of this paragraph;

(n) Be approved by the department;

(o) Maintain and submit timesheets documenting hours worked; and

(p) Be a friend, spouse, parent, family member, other relative, employee of a provider agency, or other person hired by the participant.

(12) A PDS provider shall not provide more than forty (40) hours of PDS in a calendar week (Sunday through Saturday).

(13)

(a) The department shall establish a budget for a participant based on the individual's historical costs minus five (5) percent to cover costs associated with administering the participant-directed services. If no historical cost exists for the participant, the participant's budget shall equal the average per capita, per service historical costs of HCB recipients minus five (5) percent.

(b) Cost of services authorized by the department for the participant's prior year plan of care but not utilized may be added to the budget if necessary to meet the participant's needs.

(c) The department shall adjust a participant's budget based on the participant's needs and in accordance with paragraphs (d) and (e) of this subsection.

(d) A participant's budget shall not be adjusted to a level higher than established in paragraph (a) of this subsection unless:

The participant's support broker requests an adjustment to a level higher than established in paragraph (a) of this subsection; and
The department approves the adjustment.

(e) The department shall consider the following factors in determining whether to allow for a budget adjustment:

If the proposed services are necessary to prevent imminent institutionalization;
The cost effectiveness of the proposed services;
Protection of the participant's health, safety, and welfare; and
If a significant change has occurred in the participant's:

a. Physical condition resulting in additional loss of function or limitations to activities of daily living and instrumental activities of daily living;

b. Natural support system; or

c. Environmental living arrangement resulting in the participant's relocation.

(f) A participant's budget shall not exceed the average per capital cost of services provided to individuals in an NF.

(14) Unless approved by the department pursuant to subsection (13)(b) through (e) of this section, if a PDS is expanded to a point in which expansion necessitates a budget allowance increase, the entire service shall only be covered via a traditional (non-PDS) waiver service provider.

(15) A support broker shall:

(a) Provide any needed assistance to a participant with any aspect of PDS or blended services;

(b) Be available to a participant twenty-four (24) hours per day, seven (7) days per week;

(d) Continually monitor a participant's health, safety, and welfare; and

(e) Complete or revise a plan of care using the person-centered planning principles established in Person Centered Planning: Guiding Principles.

(16)

(a) For a PDS participant, a support broker may conduct an assessment or reassessment; and

(b) A PDS assessment or reassessment performed by a support broker shall comply with the assessment or reassessment provisions established in Section 5(3)(a) and (b) of this administrative regulation.

Section 7. 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 home health provider that chooses to use electronic signatures shall:

(a) Develop and implement a written security policy that shall:

Be adhered to by each of the provider's employees, officers, agents, and contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 8. Applicability and Transition to HCB Waiver Version 2.

(1) The provisions and requirements established in this administrative regulation shall:

(a) Apply to HCB waiver services provided to an HCB waiver service recipient until the recipient transitions to the HCB waiver version 2; and

(b) Not apply to individuals receiving HCB waiver services version 2 pursuant to 907 KAR 7:010.

(2) An HCB waiver recipient receiving services pursuant to this administrative regulation shall transition to receiving services pursuant to 907 KAR 7:010 upon the recipient's next level-of-care determination if the determination confirms that the individual is eligible for HCB waiver services version 2.

(3)

(a) The provisions and requirements established in this administrative regulation shall become null and void at the time that the next level-of-care determination has been performed regarding each participant currently receiving services via this administrative regulation.

(b) Next level-of-care determinations shall occur in accordance with 907 KAR 7:010, Section 4(2).

Section 9. Appeal Rights. An appeal of a department determination regarding NF level of care or services to a participant shall be in accordance with 907 KAR 1:563.

Section 10. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Department for Medicaid Services Adult Day Health Care Services Manual", May 2005;

(b) "Department for Medicaid Services Home and Community Based Waiver Services Manual", September 2006;

(d) "Technical Criteria for Reviewing Ancillary Services for Adults", November 2003;

(e) "MAP-24, Memorandum", August 2008;

(f) "MAP-95 Request for Equipment Form" June 2007;

(g) "MAP 109, Plan of Care/Prior Authorization for Waiver Services", July 2008;

(h) "MAP-350, Long Term Care Facilities and Home and Community Based Program Certification Form", July 2008;

(i) "MAP-351, Medicaid Waiver Assessment", July 2015;

(j) "MAP 2000, Initiation/Termination of Consumer Directed Option (CDO)/Participant Directed Services (PDS)", June 2015;

(k) "MAP-10, Waiver Services Physician's Recommendation", June 2015; and

(l) Kentucky Consumer Directed Options/Participant Directed Services Employee/Provider Contract, June 2015.

History

RELATES TO: KRS 205.520(3), 205.5605, 205.5606, 205.5607, 205.635, 42 C.F.R. 440.180
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.5606, 42 C.F.R. 440.180, 42 U.S.C. 1396a, 1396b, 1396d, 1396n
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has responsibility to administer the Medicaid Program. KRS 205.520(3) authorizes the cabinet 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 provisions for home and community based waiver services version 1, including participant-directed services pursuant to KRS 205.5606.
History: 9 Ky.R. 1180; eff. 5-4-1983; Recodified from 904 KAR 1:160, 5-2-1986; 13 Ky.R. 1512; eff. 3-6-1987; 18 Ky.R. 1640; eff. 2-7-1992; 24 Ky.R. 779; 1101; eff. 11-14-1997; 27 Ky.R. 3170; 28 Ky.R. 396; eff. 8-15-2001; 29 Ky.R. 1411; 1821; 2109; eff. 1-15-2003; 30 Ky.R. 456; 880; eff. 10-31-2003; 33 Ky.R. 1439; 2333; 3402; eff. 6-1-2007; 34 Ky.R. 1834; 2315; 2535; eff. 7-7-2008; 42 Ky.R. 1655; 2376; 2479; eff. 4-1-2016; Cert. eff. 1-30-2023.

907 KAR 1:170 Reimbursement for home and community based waiver services version 1 {#sec-907-kar-1-170 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:170}

Section 1. Definitions.

(1) "ADHC" means adult day health care.

(2) "ADHC center" means an adult day health care center that is:

(a) Licensed in accordance with 902 KAR 20:066; and

(b) Certified for Medicaid participation by the department.

(3) "Cost report" means the Home Health and Home and Community Based Cost Report and the Home Health and Home and Community Based Cost Report Instructions.

(4) "DD" means developmentally disabled.

(5) "Department" means the Department for Medicaid Services or its designee.

(6) "Fixed upper payment limit" means the maximum amount the department shall reimburse for a unit of service.

(7) "HCB" means home and community based waiver.

(8) "Level I reimbursement" means a reimbursement rate paid to an ADHC center for a basic unit of service provided by the ADHC center to a participant.

(9) "Level II reimbursement" means a reimbursement rate paid to an ADHC center for a basic unit of service provided by the ADHC center to a participant, if the ADHC center meets the criteria established in Sections 5 and 6 of this administrative regulation.

(10) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(11) "Occupational therapist" is defined by KRS 319A.010(3).

(12) "Occupational therapy assistant" is defined by KRS 319A.010(4).

(13) "Participant" means a recipient who meets the:

(a) Nursing facility level of care criteria established in 907 KAR 1:022; and

(b) Eligibility criteria for HCB services established in 907 KAR 1:160, Section 4.

(14) "Physical therapist" is defined by KRS 327.010(2).

(15) "Physical therapist assistant" means a skilled health care worker who:

(a) Is certified by the Kentucky Board of Physical Therapy; and

(b) Performs physical therapy and related duties as assigned by the supervising physical therapist.

(16) "Quality improvement organization" or "QIO" is defined in 42 C.F.R. 475.101.

(17) "Speech-language pathologist" is defined by KRS 334A.020(3).

Section 2. HCB Service Reimbursement.

(1)

(a) Except as provided in Section 3, 4, or 5 of this administrative regulation, the department shall reimburse for a home and community based waiver service provided in accordance with 907 KAR 1:160 at the lesser of;

Billed charges; or
The fixed upper payment limit for each unit of service.

(b) The unit amounts, fixed upper payment limits, and other limits established in the following table shall apply:

(2) A service listed in subsection (1) of this section shall not be subject to cost settlement by the department unless provided by a local health department.

(3) A homemaking service shall be limited to no more than four (4) units per week per participant.

Section 3. Local Health Department HCB Service Reimbursement.

(1) The department shall reimburse a local health department for HCB services:

(a) Pursuant to Section 2 of this administrative regulation; and

(b) Equivalent to the local health department's HCB services cost for a fiscal year.

(2) A local health department shall submit a cost report to the department at fiscal year's end.

(3) The department shall determine, based on a local health department's most recently submitted annual cost report, the local health department's estimated costs of providing HCB services by multiplying the cost per unit by the number of units provided during the period.

(4) If a local health department's HCB service reimbursement for a fiscal year is less than its cost, the department shall make supplemental payment to the local health department equal to the difference between:

(a) Payments received for HCB services provided during a fiscal year; and

(b) The estimated cost of providing HCB services during the same time period.

(5) If a local health department's HCB service cost as estimated from its most recently submitted annual cost report is less than the payments received pursuant to Section 2 of this administrative regulation, the department shall recoup any excess payments.

(6) The department shall audit a local health department's cost report if it determines an audit is necessary.

Section 4. Reimbursement for an ADHC Service.

(1) Reimbursement for an ADHC service shall:

(a) Be made:

Directly to an ADHC center; and
For a service only if the service was provided on site and during an ADHC center's posted hours of operation;

(b) If made to an ADHC center for a service not provided during the center's posted hours of operation, be recouped by the department; and

(2) Level I reimbursement shall be the lesser of;

(a) The provider's usual and customary charges; or

(b) Two (2) dollars and fifty-seven (57) cents per unit of service.

(3) Level II reimbursement shall be the lesser of:

(a) The provider's usual and customary charges; or

(b) Three (3) dollars and twelve (12) cents per unit of service.

(4) The department shall not reimburse an ADHC center for more than twenty-four (24) basic units of service per day per participant.

(5) An ADHC basic daily service shall:

(a) Constitute care for one (1) participant; and

(b) Not exceed twenty-four (24) units per day.

(6) One (1) unit of ADHC basic daily service shall equal fifteen (15) minutes.

(7) An ADHC center may request a Level II reimbursement rate for a participant if the ADHC center meets the following criteria:

(a) The ADHC center has an average daily census limited to individuals designated as:

Participants;
Private pay; or
Covered by insurance; and

(b) The ADHC center meets the requirements established in Section 5(2) of this administrative regulation.

(8) If an ADHC center does not meet the Level II reimbursement requirements established in Section 5 of this administrative regulation, the ADHC center shall be reimbursed at a Level I reimbursement rate for the quarter for which the ADHC center requested Level II reimbursement.

(9) To qualify for Level II reimbursement, an ADHC center that was not a Medicaid provider before July 1, 2000 shall:

(a) Have an average daily census of at least twenty (20) individuals who meet the criteria established in subsection (7)(a) of this section; and

(b) Have a minimum of eighty (80) percent of its individuals meet the description of DD as established in Section 5(2) of this administrative regulation.

(10) To qualify for reimbursement as an ancillary therapy, a service shall be:

(a) Medically necessary;

(b) Ordered by a physician, a physician assistant, or an advanced practice registered nurse; and

Physical therapy provided by a physical therapist or physical therapist assistant;
Occupational therapy provided by an occupational therapist or occupational therapy assistant; or
Speech therapy provided by a speech-language pathologist.

(11) Ancillary therapy service reimbursement shall be:

(a) Per participant per encounter; and

(b) The usual and customary charges not to exceed the Medicaid upper limit of seventy-five (75) dollars per encounter per participant.

(12) A respite service shall:

(a) Be provided on site in an ADHC center; and

(b) Be provided pursuant to 907 KAR 1:160.

(13) One (1) respite service unit shall equal one (1) hour to one (1) hour and fifty-nine (59) minutes.

(14) The length of time a participant receives a respite service shall be documented.

(15) A covered respite service shall be reimbursed as established in Section 2 of this administrative regulation.

Section 5. Criteria for DD ADHC Level II Reimbursement. To qualify for DD ADHC Level II reimbursement:

(1) An ADHC center shall meet the requirements established in Section 4 of this administrative regulation; and

(2) Eighty (80) percent of its ADHC service individuals shall have:

(a) A substantial disability that shall have manifested itself before the individual reaches twenty-two (22) years of age;

(b) A disability that is attributable to an intellectual disability or a related condition, which shall include:

Cerebral palsy;
Epilepsy;
Autism; or
A neurological condition that results in impairment of general intellectual functioning or adaptive behavior, such as an intellectual disability, which significantly limits the individual in two (2) or more of the following skill areas:

a. Communication;

b. Self-care;

c. Home-living;

d. Social skills;

e. Community use;

f. Self direction;

g. Health and safety;

h. Functional academics;

i. Leisure; or

j. Work; and

A limitation that directly results from or is significantly influenced by substantial cognitive deficits; and
A limitation that is not attributable to only a physical or sensory impairment or mental illness.

Section 6. The Assessment Process for ADHC Level II Reimbursement.

(1)

(a) To apply for Level II reimbursement, an ADHC center shall contact the QIO on the first of the third month of the current calendar quarter.

(b) If the first of the month is on a weekend or holiday, the ADHC center shall contact the QIO the next business day.

(2) The QIO shall be responsible for randomly determining the date each quarter for conducting a Level II reimbursement assessment of an ADHC center.

(3) In order for an ADHC center to receive Level II reimbursement:

(a) The ADHC center shall:

Document on a MAP-1021, ADHC Payment Determination Form that it meets the Level II reimbursement criteria established in Section 5 of this administrative regulation;
Submit the completed MAP-1021, ADHC Payment Determination Form to the QIO via facsimile or mail no later than ten (10) working days prior to the end of the current calendar quarter in order to be approved for Level II reimbursement for the following calendar quarter; and
Attach to the MAP-1021, ADHC Payment Determination Form a completed and signed copy of the Adult Day Health Care Attending Physician Statement for each individual listed on the MAP-1021, ADHC Payment Determination Form;

(b) The QIO shall review the MAP-1021, ADHC Payment Determination Form submitted by the ADHC center and determine if the ADHC center qualifies for Level II reimbursement; and

(4) If the department invalidates an ADHC center Level II reimbursement assessment, the department shall:

(a) Reduce the ADHC center's current rate to the Level I rate; and

(b) Recoup any overpayment made to the ADHC center.

(5) If an ADHC center disagrees with an invalidation of a Level II reimbursement determination, the ADHC center may appeal in accordance with 907 KAR 1:671, Sections 8 and 9.

Section 7. Applicability and Transition to Version 2.

(1) The provisions and requirements established in this administrative regulation shall:

(a) Apply to HCB waiver services provided to a participant pursuant to 907 KAR 1:160; and

(b) Not apply to individuals receiving HCB waiver services version 2 pursuant to 907 KAR 7:010.

(2)

(b) Next level-of-care determinations shall occur in accordance with 907 KAR 7:010, Section 4(2).

Section 8. Appeal Rights. An HCB service provider may appeal a department decision as to the application of this administrative regulation as it impacts the provider's reimbursement in accordance with 907 KAR 1:671, Sections 8 and 9.

Section 9. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Map-1021, ADHC Payment Determination Form", August 2000;

(b) "Adult Day Health Care Attending Physician Statement", August 2000;

(d) "The Home Health and Home and Community Based Cost Report Instructions", November 2007.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at:

(a) The Department for Medicaid Services, 275 East Main Street, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.; or

(b) Online at http://www.chfs.ky.gov/dms/incorporated.htm.

History

RELATES TO: 42 C.F.R. 441 Subparts B, G, 42 U.S.C. 1396a, 1396b, 1396d, 1396n
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
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 Medicaid Program reimbursement provisions and requirements regarding home and community based waiver services version 1.
History: 9 Ky.R. 1182; eff. 5-4-1983; Recodified from 904 KAR 1:170, 5-2-1986; 13 Ky.R. 1515; eff. 3-6-1987; 15 Ky.R. 689; eff. 9-21-1988; 16 Ky.R. 2606; eff. 6-27-1990; 24 Ky.R. 782; 1103; eff. 11-14-1997; 27 Ky.R. 1626, 2175; eff. 2-1-2001; 29 Ky.R. 1136, 1653; eff. 12-18-2002; 30 Ky.R. 460; 883; eff. 10-31-2003; 33 Ky.R. 597; 1326; eff. 12-1-2006; 34 Ky.R. 442; 1036; 1465; eff. 1-4-2008; 35 Ky.R. 1923; 2310; eff. 6-5-2009; TAm 7-16-2013; 42 Ky.R. 1664; 2385; 2487; eff. 4-1-2016; Cert. eff. 1-30-2023.

907 KAR 1:180 Freestanding birth center services {#sec-907-kar-1-180 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:180}

Section 1. Definitions.

(1) "Advanced practice registered nurse" is defined by KRS 314.011(7).

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Enrollee" means a recipient who is enrolled with a managed care organization.

(4) "Freestanding birth center" means a:

(a) Freestanding birth center as defined by 42 U.S.C. 1396d(l)(3)(B); and

(b) Facility that is:

Licensed as an alternative birth center in accordance with 902 KAR 20:150; and
Accredited by the Commission for the Accreditation of Birth Centers.

(5) "Freestanding birth center services" is defined by 42 U.S.C. 1396d(28) and 42 U.S.C. 1396d(l)(3)(A).

(6) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(7) "Participating freestanding birth center" means a freestanding birth center that is:

(a) Currently enrolled in the Medicaid program pursuant to 907 KAR 1:672;

(b) Currently participating in the Medicaid program pursuant to 907 KAR 1:671;

(d) Authorized to provide the service in accordance with this administrative regulation.

(8) "Provider" is defined by KRS 205.8451(7).

(9) "Recipient" is defined by KRS 205.8451(9).

(10) "Registered nurse" is defined by KRS 314.011(5).

(11) "Rendering provider" means a provider who:

(a) Provides a service for which reimbursement is:

Made to the provider; and
Not made to a freestanding birth center; and

(b) Is:

A physician who provides a service associated with a freestanding birth center;
A physician assistant who provides a service associated with a freestanding birth center;
An advanced practice registered nurse who provides a service associated with a freestanding birth center; or
A registered nurse who provides a service associated with a freestanding birth center.

Section 2. General Provisions and Requirements.

(1) For the department to reimburse for a freestanding birth center service, the service shall:

(a) Be provided:

To a recipient; and
By a:

a. Participating freestanding birth center that is currently licensed and operating in accordance with 902 KAR 20:150; or

b. Rendering provider;

(b) Be covered in accordance with this administrative regulation; and

(2)

(a) A participating freestanding birth center shall comply with:

907 KAR 1:671;
907 KAR 1:672;
902 KAR 20:150; and
All applicable state and federal laws.

(b) A rendering provider shall comply with:

907 KAR 1:671;
907 KAR 1:672; and
All applicable state and federal laws.

(3)

(a) If a participating freestanding birth center or rendering provider receives any duplicate payment or overpayment from the department, regardless of reason, the participating freestanding birth center or rendering 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:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

(d)

A freestanding birth center shall comply with KRS 205.622.
A rendering provider shall comply with KRS 205.622.

Section 3. Covered Services. The following services may be provided by a freestanding birth center:

(1) Prenatal visits, to include one (1) initial visit and follow-up visits as appropriate;

(2) Standby services, with the rendering provider physically present throughout the course of the labor;

(3) Delivery including the actual delivery, necessary supplies and material for the delivery, and the post-delivery examination;

(4) Postnatal visits:

(a) Not to exceed two (2); and

(b) Which shall be accomplished within six (6) weeks of the delivery; or

(5) Laboratory services directly related to the provision of a freestanding birth center service.

Section 4. Records, Reporting and Monitoring. A freestanding birth center shall:

(1) Maintain complete and legible records of services provided and in a manner that ensures the confidentiality of the recipient of the service; and

(2) Provide the records referenced in subsection (1) of this section, upon request, to:

(a) The department;

(b) The Cabinet for Health and Family Services, Office of the Inspector General or its designee;

(d) The Office of the Attorney General or its designee;

(e) The Centers for Medicare and Medicaid Services or its designee;

(f) The Office of Inspector General of the United States Department of Health and Human Services or its designee; or

(g) The United States Government Accountability Office or its designee.

Section 5. Federal Financial Participation. A provision or requirement established in this administrative regulation shall be null and void if the Centers for Medicare and Medicaid Services:

(1) Denies federal financial participation for the provision or requirement; or

(2) Disapproves the provision or requirement.

Section 6. Appeal Rights. An appeal of a negative action regarding a Medicaid recipient who is:

(1) Enrolled with a managed care organization shall be in accordance with 907 KAR 17:010; or

(2) Not enrolled with a managed care organization shall be in accordance with 907 KAR 1:563.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 440.170, 42 U.S.C. 1396a, b, d
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has responsibility to administer the program of Medical Assistance. KRS 205.520(3) empowers 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 coverage provisions for services provided by freestanding birth centers for which payment shall be made by the Medicaid Program in behalf of both the categorically needy and the medically needy.
History: 9 Ky.R. 1183; eff. 5-4-1983; 11 Ky.R. 1002; eff. 1-7-1985; Recodified from 904 KAR 1:180, 5-2-1986; 18 Ky.R. 1642; eff. 1-10-1992; 40 Ky.R. 717; 1307; 1402; eff. 2-3-2014; Crt eff. 12-6-2019.

907 KAR 1:190 Payments for freestanding birth center services {#sec-907-kar-1-190 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:190}

Section 1. Definitions.

(1) "Advanced practice registered nurse" is defined by KRS 314.011(7).

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Enrollee" means a recipient who is enrolled with a managed care organization.

(4) "Freestanding birth center" means a:

(a) Freestanding birth center as defined by 42 U.S.C. 1396d(l)(3)(B); and

(b) Facility that is:

Licensed as an alternative birth center in accordance with 902 KAR 20:150; and
Accredited by the Commission for the Accreditation of Birth Centers.

(5) "Freestanding birth center services" is defined by 42 U.S.C. 1396d(28) and 42 U.S.C. 1396d(l)(3)(A).

(6) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(7) "Participating freestanding birth center" means a freestanding birth center that is:

(a) Currently enrolled in the Medicaid program pursuant to 907 KAR 1:672;

(b) Currently participating in the Medicaid program pursuant to 907 KAR 1:671;

(d) Authorized to provide the service in accordance with 907 KAR 1:180.

(8) "Provider" is defined by KRS 205.8451(7).

(9) "Recipient" is defined by KRS 205.8451(9).

(10) "Registered nurse" is defined by KRS 314.011(5).

(11) "Rendering provider" means a provider who:

(a) Provides a service for which reimbursement is:

Made to the provider; and
Not made to a freestanding birth center; and

(b) Is:

A physician who provides a service associated with a freestanding birth center;
A physician assistant who provides a service associated with a freestanding birth center;
An advanced practice registered nurse who provides a service associated with a freestanding birth center; or
A registered nurse who provides a service associated with a freestanding birth center.

Section 2. General Requirements. For the department to reimburse for a freestanding birth center service, the service shall meet the requirements established in 907 KAR 1:180, Section 2.

Section 3. Reimbursement.

(1)

(a) The department shall reimburse a professional fee to a rendering provider for a prenatal visit, a standby service, or a postnatal visit at the lesser of:

The rendering provider's usual and customary charge for the service;
The reimbursement for the service pursuant to 907 KAR 3:010 if the rendering provider is a physician; or
Seventy-five (75) percent of the reimbursement for the service pursuant to 907 KAR 3:010 if the rendering provider is:

a. An advanced practice registered nurse;

b. A physician assistant; or

c. A registered nurse.

(b) The department shall:

Reimburse for no more than two (2) postnatal visits per recipient; and
Not reimburse for a postnatal visit that occurs after six (6) weeks have lapsed since the delivery.

(c) The department's reimbursement of a professional fee to a rendering provider referenced in this subsection shall be separate from and in addition to the reimbursement referenced in subsection (2) of this section.

(2)

(a) The department shall reimburse a freestanding birth center:

Twenty-five (25) dollars for referring a recipient to an inpatient hospital for delivery services if the freestanding birth center determined before providing delivery-related services that the recipient's delivery was complicated and needed to be handled in an inpatient hospital;
$156 for:

a. Providing delivery-related services to a recipient; and

b. Determining, after providing delivery-related services to a recipient, that the recipient's delivery was complicated and needed to be handled in an inpatient hospital; or

$1,557 for services related to a complete delivery that occurred at the freestanding birth center.

(b) The department's reimbursement to a freestanding birth center referenced in this subsection shall be separate from and in addition to the reimbursement referenced in subsection (1) of this section.

(3)

(a) The department's reimbursement shall be considered payment in full for all services, supplies, and devices provided to a recipient.

(b)

A freestanding birth center shall not bill a recipient or party other than the department for a service provided to the recipient if the service was covered by the department.
A rendering provider shall not bill a recipient or party other than the department for a service provided to the recipient if the service was covered by the department.

(4)

(a) A managed care organization's reimbursement shall be considered payment in full for all services, supplies, and devices provided to an enrollee.

(b)

A freestanding birth center shall not bill an enrollee or party other than the enrollee's managed care organization for a service provided to the enrollee if the service was covered by the managed care organization.
A rendering provider shall not bill an enrollee or party other than the managed care organization for a service provided to the enrollee if the service was covered by the managed care organization.

Section 4. Not Applicable to Managed Care Organizations.

(1) A managed care organization may elect to reimburse in accordance with this administrative regulation for a service or item covered pursuant to 907 KAR 1:180 and this administrative regulation.

(2) A managed care organization shall not be required to reimburse the same amount as established in this administrative regulation for a service or item covered pursuant to 907 KAR 1:180 and this administrative regulation.

Section 5. Federal Financial Participation. A provision or requirement established in this administrative regulation shall be null and void if the Centers for Medicare and Medicaid Services:

(1) Denies federal financial participation for the provision or requirement; or

(2) Disapproves the provision or requirement.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 447.325, 42 U.S.C. 1396a, b, d
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has responsibility to administer the program of Medical Assistance. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the Department for Medicaid Services' reimbursement provisions and requirements for freestanding birth center services provided to Medicaid recipients who are not enrolled with a managed care organization.
History: 9 Ky.R. 1273; 10 Ky.R. 339; eff. 10-5-1983; 11 Ky.R. 1003; eff. 1-7-1985; Recodified from 904 KAR 1:190, 5-2-1986; 18 Ky.R. 1643; 2346; eff. 2-7-92; 40 Ky.R. 720; 1309; 1403; eff. 2-3-2014; Crt eff. 12-6-2019; TAm eff. 3-20-2020.

907 KAR 1:260 Coordination of benefits between the Medicaid Program and the Crime Victims Compensation Board {#sec-907-kar-1-260 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:260}

Section 1. General Principles.

(1) The Medicaid Program is the payor of last resort and complies with the requirement shown in 907 KAR 1:005, Nonduplication of payments. Any provisions contained in this administrative regulation are subordinate to the provisions of 907 KAR 1:005 and shall not be construed in a manner which contravenes the policies contained in 907 KAR 1:005.

(2) The cabinet recognizes that the Crime Victims Compensation Board ("the board") has discretion in the making of awards or grants, and that until an award or grant is made by the board, third-party liability pursuant to 907 KAR 1:005 cannot be presumed to exist.

(3) In the event the board makes a grant or award to a Medicaid eligible individual for Medicaid covered services, the amount payable by the Medicaid program shall be reduced by the amount of the assumed third-party obligation; if the board makes no grant or award for Medicaid covered services, Medicaid program payments for covered services shall be made in accordance with usual program policy.

Section 2. Procedures to Ensure Nonduplication of Payments. The following methodology shall be used by the Medicaid program to ensure that duplication of claims between Medicaid and the board is reduced to the greatest extent possible.

(1) When the board notifies the cabinet of a claim(s) which has been filed, the cabinet shall determine if the crime victim(s) is covered under the Medicaid program and advise the board appropriately.

(2) When the board notifies the cabinet of all itemized medical charges for which a Medicaid eligible victim is seeking compensation, the cabinet shall advise the board as to whether the medical service is covered under the Medicaid program.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194.050(1), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the program of Medical Assistance (hereinafter called "Medicaid"). KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the methods and principles that will be used to determine the extent of Medicaid liability in situations involving Medicaid eligible individuals who are applicants for, or recipients of, award or grants from the Crime Victims Compensation Board (hereinafter called "the board").
History: 10 Ky.R. 1230; eff. 6-28-1984; 11 Ky.R. 292; eff. 9-11-1984; 856; eff. 12-11-1984; 1208; eff. 3-12-1985; 1682; eff. 6-4-1985; 12 Ky.R. 284; eff. 9-10-1985; 1084; eff. 1-3-1986; 1546; eff. 4-17-1986; Recodified from 904 KAR 1:260, 5-2-1986; 18 Ky.R. 1646; eff. 1-10-1992; Cert eff. 7-23-2018; Cert eff. 2-5-2025.

907 KAR 1:270 Podiatry Program services {#sec-907-kar-1-270 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:270}

Section 1. Coverage. The Medicaid program shall cover a medical or surgical service provided to an eligible Medicaid recipient by a licensed, participating podiatrist if the service falls within the scope of the practice of podiatry except as provided in Section 2 of this administrative regulation.

Section 2. Exclusions From Coverage.

(1) Except as provided in Section 3 of this administrative regulation, routine foot care shall not be covered by the Medicaid program.

(2) Routine foot care excluded by this section shall include:

(a) The cutting or removal of a corn or callus;

(b) The trimming of a nail; or

Cleaning or soaking a foot;
The use of a skin cream to maintain skin tone of an ambulatory or bedfast patient; or
A service performed in the absence of localized illness, injury, or symptom involving the foot.

Section 3. Covered Services.

(1)

(a) Payment shall be made for routine foot care if:

The patient has a systematic disease of sufficient severity such as arteriosclerosis, chronic thrombophlebitis, diabetes, or a peripheral neuropathy;
Unskilled performance of a procedure included in paragraph (b) of this subsection would be hazardous; and
The patient's condition results from:

a. Severe circulatory embarrassment; or

b. An area of desensitization in a leg or foot.

(b) Routine foot care covered under this subsection shall include the cutting or removing of a:

Corn;
Callus; or
Nail.

(2) A service ordinarily considered routine shall be covered if the service is performed as a necessary and integral part of an otherwise covered service, including the diagnosis or treatment of:

(a) A diabetic ulcer;

(b) A wound; or

(3) A diagnostic or treatment service for a foot infection shall be covered.

History

RELATES TO: KRS 205.520, 205.560, 42 C.F.R. 440.60, 42 U.S.C. 1396a, b, d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid Program. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed or opportunity presented by federal law to qualify for Medicaid funds. This administrative regulation establishes the coverage provisions relating to podiatry services for which payment shall be made by the Medicaid Program on behalf of both categorically needy and medically needy beneficiaries.
History: 907 KAR 001:270. Recodified from 904 KAR 1:270, 5-2-1986; 18 Ky.R. 1647; eff. 1-10-1992; 23 Ky.R. 4241; 24 Ky.R. 385; eff. 7-16-1997; 45 Ky.R. 2212, 2684; eff. 4-5-2019; Crt eff. 1-7-2026.

907 KAR 1:280 Payments for Podiatry Program services {#sec-907-kar-1-280 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:280}

Section 1. Payments for Podiatry Services.

(1)

(a) The department shall reimburse a licensed, participating podiatrist for a covered podiatry service as established in 907 KAR 1:270.

(b) A laboratory service performed by a podiatrist pursuant to this section shall be reimbursed as established in subsection (3) of this section.

(2) Procedures performed pursuant to this section shall be reimbursed on parity with medical doctors using the Kentucky Medicaid fee schedule and in accordance with 907 KAR 3:010.

(3) Reimbursement for a covered clinical laboratory service shall be based on the Medicare allowable payment rate.

History

RELATES TO: KRS 205.520, 205.560
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid Program. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed or opportunity presented by federal law to qualify for Medicaid funds. This administrative regulation establishes the method for determining payments for podiatry services.
History: 907 KAR 001:280. 11 Ky.R. 1013; eff. 1-7-1985; Recodified from 904 KAR 1:280, 5-2-1986; 17 Ky.R. 579; eff. 10-14-1990; 23 Ky.R. 4243; 24 Ky.R. 384; eff. 7-16-1997; 45 Ky.R. 2214; eff. 4-5-2019; Crt eff. 1-7-2026.

907 KAR 1:330 Hospice services {#sec-907-kar-1-330 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:330}

Section 1. Definitions.

(1) "Department approved system" means a technology system in which:

(a) Providers electronically submit and track level of care (LOC) requests through a self-service portal;

(b) The system triggers LOC tasks as reminders to providers and allows them to submit reassessments electronically; and

Medicaid Enterprise Management System (MEMS); and
Integrated eligibility system.

(2) "Hospice care" means a package of palliative and supportive services:

(a) Provided by a hospice program to a terminally ill Medicaid recipient and the recipient's family to:

Alleviate the recipient's pain and suffering; and
Assist the recipient and the recipient's family to cope with dying and the circumstances surrounding terminal illness; and

(b) Provided in lieu of the benefits established in 42 U.S.C. 1395d(d)(2)(A) and services provided by an intermediate care facility for individuals with an intellectual disability.

(3) "Representative" means an individual who:

(a) Has the authority under state law (whether by statute or pursuant to an appointment by a court of law) to authorize or terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill recipient who is mentally or physically incapacitated; and

(b) May be the recipient's legal guardian.

(4) "Terminally ill" is defined by 42 C.F.R. 418.3.

Section 2. General Provisions.

(1) The recipient or the recipient's representative shall voluntarily elect hospice care if hospice care is to be provided.

(2) Institutionalized hospice care shall be provided to an individual in a skilled nursing or intermediate care facility.

(3) Non-institutionalized hospice care shall be provided to an individual in a home or hospice facility.

(4) Hospice care shall only be provided by an appropriately licensed, accredited, and certified hospice program, as defined by 42 U.S.C. 1395x(dd)(2), participating in both Medicare and Medicaid.

(5) Agency staff and participating providers of hospice services may review the federal Medicaid hospice regulations located in 42 C.F.R. part 418 for additional benefit descriptions and operating instructions relating to hospice services care.

Section 3. Voluntary Election.

(1) Any terminally ill Medicaid recipient or recipient's representative may elect hospice coverage if hospice care is provided by a participating hospice program in that county service area.

(2) Each recipient shall have the following items completed in the department approved system:

(a) MAP-374, Election of Medicaid Hospice Benefits, to authenticate voluntary selection; and

(b) MAP-377, Physician's Statement for Medicaid Hospice Service, which is a statement from a physician to show that the recipient's illness is terminal and that death is expected to occur within six (6) months.

Section 4. Covered Services.

(1) To be covered, hospice services shall be reasonable and medically necessary for the palliation or management of the terminal illness as well as related conditions.

(2) Covered services shall include:

(a) Nursing care and services by or under the supervision of a registered nurse;

(b) Mental health, nutritional, dietary, and bereavement counseling services for the recipient and the family;

(d) Occupational therapy;

(e) Speech language pathology;

(f) Home health aide that performs simple procedures as an extension of:

Therapy services;
Personal care;
Ambulation and exercise;
Household services essential to health care at home;
Assistance with medications that are ordinarily self-administered;
Reporting changes in the patient's condition and needs; and
Completing appropriate records;

(g) Medical supplies and appliances;

(h) Short term inpatient care for pain control and symptom management;

(i) Medical social services;

(j) Respite care;

(k) Physician services;

(l) Pharmacy services for drugs related to the recipient's terminal illness;

(m) Room and board if the recipient is residing in a long term care facility; and

(n) Bed reservation days if in a long term care facility.

Section 5. Duration of Benefits.

(1) There shall not be a limit on the number of days an individual may participate in the hospice program if the days fall within a covered benefit period as established in subsection (2) of this section.

(2) Hospice benefits shall consist of these benefit periods:

(a) Two (2) ninety (90) day periods; and

(b) Additional sixty (60) day periods that last until revocation or termination for other reasons such as ineligibility or death.

Section 6. Concurrent Medicare Coverage. If a Medicaid eligible individual with concurrent eligibility for hospice services under Medicare wishes to enroll in a hospice program under Medicaid, the individual shall, as a prerequisite for Medicaid hospice enrollment, enroll in the Medicare hospice program.

Section 7. Disenrollment, Reenrollment, and Transfers.

(1)

(a) A recipient may disenroll from a hospice program at any time.

(b) In accordance with 42 C.F.R. 418.28, a recipient who disenrolls during any benefit period shall lose the unused portion of that benefit period.

(2) If an enrolled individual revokes his or her Medicare enrollment, the Medicaid enrollment shall be revoked simultaneously.

(3) If a county is served by two (2) or more hospice programs, or if the recipient moves county of residence to a county serviced by a different hospice, the recipient may transfer between hospice programs.

Section 8. Admission, Reassessment, and Discharge.

(1) Prior to or on admission, a hospice provider shall submit on the department approved system the information required by the following forms, either by using the forms listed in paragraphs (a) and (b) of this subsection or by using a document developed by the hospice provider that includes the same information:

(a) MAP-374; and

(b) MAP-377.

(2) For reassessment, a hospice provider shall complete on a department approved system a MAP-377 prior to or on the date of expiration of the current authorization period.

(3) The discharge date shall be entered into a department approved system on or before the date of discharge.

Section 9. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) MAP-374, "Election of Medicaid Hospice Benefits", 1/18; and

(b) MAP-377, "Physician's Statement for Medicaid Hospice Service", 1/18.

(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, Monday through Friday, 8:00 a.m. to 4:30 p.m.; or

(b) Online at the department's Web site at

History

RELATES TO: KRS 205.520, 42 C.F.R. 418.3, 418.20-418.30, 42 U.S.C. 1395d, 1395x(dd)(2), 1396d(o)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has 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 terms and conditions under which the Medicaid Program shall provide hospice care to both the categorically and medically needy.
History: 13 Ky.R. 1016; eff. 12-2-1986; Am. 15 Ky.R. 1983; eff. 3-15-1989; 17 Ky.R. 150; eff. 9-13-1990; 45 Ky.R. 2790; eff. 8-2-2019; Crt eff. 2-9-2026.

907 KAR 1:340 Reimbursement for hospice services {#sec-907-kar-1-340 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:340}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "Home" means:

(a) A primary residence that is based on a recipient's county of Medicaid eligibility; or

(b) A nursing facility licensed in accordance with 902 KAR 20:300.

(3) "Hospice provider" means an agency that is:

(a) Licensed in accordance with 902 KAR 20:140; and

(b) Medicare- and Medicaid-certified.

(4) "Hospice recipient" means an individual who:

(a) Is eligible for Medicaid;

(b) Is certified by a physician as terminally ill with a medical prognosis that life expectancy is six (6) months or less in accordance with 907 KAR 1:330; and

Section 2. Coverage. The department shall reimburse a participating hospice provider for a service rendered to a hospice recipient in accordance with 907 KAR 1:330.

Section 3. Reimbursement Rates for a Covered Hospice Service.

(1) The reimbursement rate for a hospice service shall:

(a) Be annually established in accordance with 42 C.F.R. 418.306; and

(b)

For routine home care or continuous home care, be based on the geographic location of the hospice recipient's home; or
For general inpatient care or inpatient respite care, be based on the geographic location of where the service is provided.

(2) If a hospice recipient resides in a nursing facility participating in the Medicaid program and occupies a bed that is Medicaid-certified, the department shall reimburse an amount equal to at least ninety-five (95) percent of the nursing facility's per diem to the hospice provider to cover expenses for room and board provided by the nursing facility.

(3) Reimbursement for bed reservation days shall:

(a) Be made by the department if the hospice recipient is residing in a nursing facility and has been in Medicaid reimbursement status for at least one (1) midnight census;

(b) Be limited per hospice recipient as follows:

To fourteen (14) consecutive days and a total of forty-five (45) days per lifetime for the purpose of inpatient hospitalization; and
To fifteen (15) days per lifetime for the purpose of therapeutic home visits;

(c) Not be made after the date of death of a hospice recipient if the hospice recipient dies while in the hospital or on a home visit; and

(d) Be at the rate established in subsection (2) of this section.

(4) Reimbursement for general inpatient and inpatient respite care shall be:

(a) Limited to twenty (20) percent of the aggregate total number of days hospice care is provided to all Medicaid recipients during a twelve (12) month period, beginning November 1 of each year and ending October 31 of the following year in accordance with 42 C.F.R. 418.302(f); and

(b) Subject to recoupment by the department if in excess of paragraph (a) of this subsection.

Section 4. Limitations on Reimbursement of Covered Hospice Services.

(1) A routine home care service unit shall be a day during which a hospice recipient receives routine home care.

(2) Continuous home care shall be:

(a) Reimbursed at an hourly rate, which shall be calculated by dividing the rate established pursuant to Section 3(1) of this administrative regulation by twenty-four (24);

(b) Provided a minimum of eight (8) hours per day;

(d) Predominately nursing care provided by a registered nurse or a licensed practical nurse.

(3) General inpatient care shall be equal to twenty four (24) hours per (1) unit.

(4) Inpatient respite care shall:

(a) Be limited to five (5) consecutive days; and

(b) Not be provided to a hospice recipient who is residing in a nursing facility.

(5) Except for the day on which a hospice recipient is discharged, the inpatient rate, either general or respite, shall be paid for the date of admission and for all subsequent inpatient days.

(6) On the day a hospice recipient is discharged from inpatient care, either general or respite, a hospice provider shall be reimbursed:

(a) Depending on the care needs of the hospice recipient, either the routine home care rate or the continuous home care rate; or

(b) The inpatient rate, either general or respite, if the hospice recipient is discharged deceased.

Section 5. Copayments.

(1) The department shall pay a hospice recipient's Medicare copayment if the individual qualifies for and has elected to receive Medicaid hospice benefits as established in 907 KAR 1:330.

(2) A copayment shall not be applied to a Medicaid reimbursement rate for a hospice service.

Section 6. Coverage of Drugs.

(1) A reimbursement rate established in Section 3(1) of this administrative regulation shall include reimbursement for any drug related to the terminal illness of a hospice recipient.

(2) If a drug is not related to the terminal illness of a hospice recipient:

(a) A hospice provider shall complete and submit one (1) copy of the MAP-384 form to the department; and

(b) The department shall:

Update the MAP-384 to indicate the maximum amount allowable for reimbursement, as determined in accordance with 907 KAR 23:020;
Return the updated MAP-384 to the hospice provider; and
Reimburse the hospice provider the lesser of 100 percent of the cost of the drug or the maximum amount allowable, as determined in accordance with 907 KAR 23:020.

Section 7. Appeal Rights. A hospice provider may appeal a department decision as to the application of this administrative regulation in accordance with 907 KAR 1:671.

Section 8. Incorporation by Reference.

(1) "MAP-384, Hospice Drug Form", 1/18, is incorporated by reference.

History

RELATES TO: 42 C.F.R. 418.302, 418.306, 42 U.S.C. 1396a, 1396b, 1396c, 1396d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has 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 requirements for reimbursements for hospice services.
History: 13 Ky.R. 1017; eff. 12-2-1986; Am. 16 Ky.R. 2607; eff. 6-27-1990; 18 Ky.R. 547; eff. 10-6-1991; 28 Ky.R. 2457; 29 Ky.R. 135; eff. 7-15-2002; 30 Ky.R. 122; 658; 886; eff. 10-31-2003; TAm eff. 10-6-2017; 45 Ky.R. 2793; eff 8-2-2019; Crt eff. 2-9-2026.

907 KAR 1:350 Coverage and payments for organ transplants {#sec-907-kar-1-350 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:350}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "Emergency" means that a condition or situation requires an emergency service pursuant to 42 C.F.R. 438.114(a).

(3) "Enrollee" means a recipient who is enrolled with a managed care organization.

(4) "Experimental" means that a procedure has not previously been proven effective by the U.S. Food and Drug Administration in treating a patient's health condition.

(5) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(6) "Medical necessity" or "medically necessary" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(7) "Nonemergency" means that a condition or situation does not require an emergency service pursuant to 42 C.F.R. 438.114(a).

(8) "Recipient" is defined by KRS 205.8451(9).

Section 2. Prior Authorization.

(1) Prior to coverage of an organ transplant to a recipient who is not an enrollee, the transplant shall have been determined by the department to be:

(a) Medically necessary; and

(b) Clinically appropriate pursuant to the criteria established in 907 KAR 3:130.

(2) The requirements established in subsection (1) of this section shall not apply to an emergency service.

Section 3. General Coverage Criteria. A covered organ transplant shall meet the criteria established in this section.

(1) A transplant surgeon's opinion shall conclude that failure to perform the transplant would create a life-threatening situation.

(2) The patient's prognosis shall indicate that there is a reasonable expectation the transplant will be successful and result in prolonged life of quality and dignity.

(3) The hospital where the transplant will take place shall:

(a) Have a staffed and functioning unit designed for and accustomed to performing the planned organ transplant;

(b) Be accredited by the Joint Commission on Accreditation of Healthcare Organizations; and

If it is an in-state hospital, with the Cabinet for Health and Family Services; or
If it is an out-of-state hospital, with that state's licensure authority.

(4) The physician performing the transplant shall be recognized as competent by the medical community.

Section 4. Reimbursement for Organ Transplants. For an organ transplant provided by a:

(1) Hospital to a recipient who is not an enrollee, the department shall reimburse as established in:

(a) 907 KAR 10:825 through September 30, 2015; or

(b) 907 KAR 10:830 effective October 1, 2015; or

(2) Physician to a recipient who is not an enrollee, the department shall reimburse in accordance with 907 KAR 3:010.

Section 5. Noncovered Services. The department shall not approve a request for an organ transplant if the requested transplant:

(1) Fails to meet the criteria of Sections 2 or 3 of this administrative regulation; or

(2) Is experimental in nature.

Section 6. Not Applicable to Managed Care Organizations. A managed care organization shall not be required to reimburse for an organ transplant according to this administrative regulation.

History

RELATES TO: KRS 205.520, 42 C.F.R. 447.53
STATUTORY AUTHORITY: 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has responsibility to administer the Medicaid Program. KRS 205.520(3) empowers 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 provisions related to Medicaid Program coverage of organ transplants for Medicaid recipients and related to Department for Medicaid Services' reimbursement regarding organ transplants provided to Medicaid recipients who are not enrolled with a managed care organization.
History: 13 Ky.R. 1520; eff. 3-6-1987; Am. 15 Ky.R. 2462; eff. 8-5-1989; 33 Ky.R. 600; 1563; eff. 1-5-2007; 40 Ky.R. 1488; 2298; eff. 5-2-2014; 41 Ky.R. 2136; 2559; eff. 7-6-2015; Cert. eff. 6-9-2022.

907 KAR 1:360 Preventive and remedial public health services {#sec-907-kar-1-360 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:360}

Section 1. Definitions.

(1) "Add-on code" means a designated CPT code which may be used in conjunction with another CPT code to denote that an adjunctive service has been performed.

(2) "CPT code" means a code used for reporting procedures and services performed by physicians or other licensed medical professionals, including a provider type twenty (20), which is published annually by the American Medical Association in Current Procedural Terminology.

(3) "Department" means the Department for Medicaid Services or its designated agent.

(4) "Incidental" means that a medical procedure:

(a) Is performed at the same time as a more complex primary procedure; and

(b)

Requires few additional physician resources; or
Is clinically integral to the performance of the primary procedure.

(5) "Integral" means that a medical procedure represents a component of a more complex procedure performed at the same time.

(6) "Medically necessary" or "Medical necessity" means a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(7) "Mutually exclusive" means that two (2) procedures:

(a) Are not reasonably performed in conjunction with one another during the same patient encounter on the same date of service;

(b) Represent two (2) methods of performing the same procedure;

(d) Are described in current procedural terminology as inappropriate coding of procedure combinations.

(8) "Provider type twenty (20)" means an enrolled preventive services provider who conducts covered services via the Department for Public Health to Medicaid recipients. A number shall be assigned by the department to these providers, and the first two (2) digits shall be twenty (20).

(9) "Relative value unit" or "RVU" means the Medicare-established value assigned to a CPT code which takes into consideration the physician's work, practice expense, and liability insurance.

(10) "Screening" means the evaluation of a recipient by a physician or other approved public health provider to determine:

(a) The presence of a disease or medical condition; and

(b) The necessity of further evaluation, diagnostic tests or treatment.

Section 2. Participation Requirements.

(1) The Department for Public Health shall comply with the terms and conditions established in the following administrative regulations:

(a) 907 KAR 1:005, Nonduplication of payments;

(b) 907 KAR 1:671, Conditions of Medicaid provider participation; withholding overpayments, administrative appeal process, and sanctions; and

(2) The Department for Public Health shall comply with the requirements regarding the confidentiality of personal medical records as mandated by 42 U.S.C. 1320d to 1320d-8 and 45 C.F.R. Parts 160 and 164.

Section 3. Covered Services. The following medically-necessary preventive, screening, diagnostic, rehabilitative, and remedial services provided by the Department for Public Health directly or indirectly through its subcontractors shall be covered:

(1) Preventive medicine counseling;

(2) Genetic testing for diagnostic purposes;

(3) Immunizations;

(4) A chronic disease service;

(5) A communicable disease service;

(6) An early and periodic screening, diagnosis, and treatment (EPSDT) service;

(7) A family planning service;

(8) A maternity service; or

(9) A pediatric service.

Section 4. Service Limitations.

(1) A laboratory procedure shall be limited to a procedure for which the provider has been certified in accordance with 42 C.F.R. Part 493.

(2) A service allowed in accordance with 42 C.F.R. 441, Subpart E or Subpart F shall be covered within the scope and limitations of these federal regulations.

(3) Coverage for a fetal diagnostic ultrasound procedure shall be limited to two (2) per nine (9) month period per recipient unless the diagnosis code justifies the medical necessity of an additional procedure.

Section 5. Reimbursement Pursuant to the Preventive Health Fee Schedule.

(1) Payment for a preventive health service specified in Section 3(1) through (9) of this administrative regulation shall be calculated by multiplying the current Medicare conversion factor for Kentucky by the nonfacility relative value unit weight for the procedure code.

(2) For a service covered under Medicare Part B, reimbursement shall be in accordance with 907 KAR 1:006.

(3) If a copayment is required in accordance with 907 KAR 1:604, reimbursement shall be reduced by the amount of the copayment.

(4) If performed concurrently, separate reimbursement shall not be made for a procedure that has been determined by the department to be incidental, integral, or mutually exclusive to another procedure.

(5) Except for an applicable add-on code, reimbursement for an anesthesia service shall be limited to one (1) CPT code and one (1) unit of anesthesia per operative session.

(6) Reimbursement for a surgical procedure shall include the following:

(a) A preoperative service;

(b) An intraoperative service;

Within ninety (90) days following the date of major surgery; or
Within ten (10) days following the date of minor surgery; and

(d) A preoperative consultation performed within two (2) days of the date of the surgery.

(7) A dental service performed pursuant to this administrative regulation shall be reimbursed pursuant to the DMS Dental Fee Schedule established pursuant to 907 KAR 1:026.

Section 6. Audits.

(1) The Department for Public Health or subcontracting local health departments shall provide to the Department for Medicaid Services or a representative of an agency or office listed in subsection (2) of this section, upon request:

(a) Information maintained by the provider to document the service provided;

(b) Information regarding a payment claimed by the provider for furnishing a service; or

(2) Access to provider or subcontractor records relating to a service provided shall be required for:

(a) A representative of the United States Department of Health and Human Services;

(b) The United States Centers for Medicare and Medicaid Services;

(d) The state Attorney General's Office;

(e) The state Auditor's office;

(f) The Office of the Inspector General; or

(g) An agent or representative as may be designated by the Secretary of the Cabinet for Health Services.

Section 7. Appeal Rights.

(1) An appeal of a department decision regarding a Medicaid provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

(2) An appeal of a department decision regarding a Medicaid recipient based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563.

(3) An appeal of a department decision regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

History

RELATES TO: KRS 205.520, 205.560, 42 C.F.R. 431.615, 42 U.S.C. 1320d to 1320d-8, 45 C.F.R. Parts 160, 164
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 U.S.C. 1396a, b, c, d
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the provisions relating to preventive and remedial public health services provided through the Department for Public Health and the method of reimbursement for these services by the Kentucky Medicaid Program.
History: 907 KAR 001:360. 15 Ky.R. 768; eff. 10-21-1988; Am. 25 Ky.R. 1257; 1662; eff. 1-19-1999; 28 Ky.R. 961; eff. 12-19-2001; 29 Ky.R. 1140; 1656; eff. 12-18-2002; 30 Ky.R. 463; 887; eff. 10-31-2003; 31 Ky.R. 2052; 32 Ky.R. 272; eff. 8-25-2005; 45 Ky.R. 2215; eff. 4-5-2019; Crt eff. 1-7-2026.

907 KAR 1:400 Incorporation by reference of the Renal Dialysis Center Services Manual {#sec-907-kar-1-400 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:400}

Section 1. Incorporation by Reference. The cabinet incorporates by reference the Renal Dialysis Center Services Manual, revised April 1, 1991, used in the implementation of this component of the Kentucky Medical Assistance Program. This manual contains the policies and procedures issued by the cabinet for the implementation of this program element including benefit descriptions and operating instructions used by agency staff and participating providers.

Section 2. This manual incorporated by reference may be reviewed Monday through Friday between the hours of 8 a.m. and 4:30 p.m., Eastern time, Department for Medicaid Services, 275 East Main Street, Frankfort, Kentucky. Copies may be obtained from that office upon payment of an appropriate fee which shall not exceed approximate cost.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 U.S.C. 1396a, c, d, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has the responsibility to administer the Medical Assistance Program. The cabinet is empowered to comply with any requirement that is imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation incorporates into regulatory form, by reference, materials used by the cabinet in the implementation of the renal dialysis center services component of the Medical Assistance Program. In the event of a conflict between manual materials incorporated by reference in this administrative regulation and the primary subject administrative regulations of the cabinet relating to this component, the latter shall prevail.
History: 15 Ky.R. 1360; eff. 12-13-1988; 17 Ky.R. 3566; eff. 7-17-1991; Crt eff. 12-6-2019.

907 KAR 1:434 Incorporation by reference of the Family Planning Services Manual {#sec-907-kar-1-434 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:434}

Section 1. Incorporation by Reference. The cabinet incorporates by reference the Family Planning Services Manual, revised September 1, 1988, used in the implementation of this component of the Kentucky Medical Assistance Program. This manual contains the policies and procedures issued by the cabinet for the implementation of this program element including benefit descriptions and operating instructions used by agency staff and participating providers.

History

RELATES TO: KRS 205.520, Pub.L. 89-97
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has the responsibility to administer the Medical Assistance Program in accordance with Title XIX of the Social Security Act and KRS 205.520(3). KRS 205.520(3) empowers the cabinet to comply with any requirement that is imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation incorporates into regulatory form, by reference, materials used by the cabinet in the implementation of the family planning services component of the Medical Assistance Program. In the event of a conflict between manual materials incorporated by reference in this administrative regulation and the primary subject administrative regulations of the cabinet relating to this component, the latter shall prevail.
History: 15 Ky.R. 1377; eff. 12-13-1988; Crt eff. 12-6-2019.

907 KAR 1:440 Case management services {#sec-907-kar-1-440 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:440}

Section 1. Definition of Services. Case management is a service instrument by which service agencies assist an individual in accessing needed medical, social, educational, and other support services. Case management providers are required to monitor to assure that recipients of case management services receive the services for which they are referred. Case management activities include:

(1) Assessment of client's medical, social, and functional status, and identification of client service needs;

(2) Arranging for service delivery from the client's chosen provider to insure access to required services;

(3) Insure access to needed services by explaining the need and importance of services in relation to the client's condition;

(4) Insure access, quality and delivery of necessary services; and

(5) Preparation and maintenance of case record documentation to include service plans, forms, reports, and narratives, as appropriate.

Section 2. Target Group. The case management services are limited, as provided for in the Social Security Act at Section 1915(g)(1), to the following targeted groups of Medicaid eligible individuals, with the further provision that these individuals cannot be receiving case management services under a Medicaid waiver program:

(1) Individuals under age twenty-one (21) who meet the medical eligibility criteria of the Commission for Children with Special Health Care Needs; and

(2) Individuals of all ages who meet the medical eligibility criteria of the Commission for Children with Special Health Care Needs and who have a diagnosis of hemophilia.

Section 3. Qualification of Providers. Providers are required to be certified as a Medicaid provider meeting the following criteria:

(1) Demonstrated capacity to provide all core elements of case management including the following:

(a) Assessment;

(b) Care/services plan development;

(d) Reassessment/follow-up;

(2) Demonstrated case management experience in coordinating and linking community resources as required by the target population;

(3) Demonstrated experience with the target population;

(4) An administrative capacity to insure quality of services in accordance with state and federal requirements;

(5) A financial management system that provides documentation of services and costs;

(6) Capacity to document and maintain individual case records in accordance with state and federal requirements;

(7) Demonstrated ability to assure a referral process consistent with section 1902(a)(23), freedom of choice of provider;

(8) Demonstrated capacity to meet the case management service needs of the target population on a statewide basis.

Section 4. Qualification of Case Managers. Case managers shall meet the following criteria:

(1) Be licensed as a registered nurse or possess a valid work permit as a registered nurse issued by the Kentucky Board of Nursing; or

(2) Have a master's degree in social work supplemented by one (1) year of professional social work experience; or

(3) Have a bachelor's degree as a graduate of a college or university supplemented by two (2) years of professional social work experience.

Section 5. Other Limitations. The following limitations on service coverage and payments are applicable:

(1) Recipients shall be allowed to have free choice of case management services; and

(2) Recipients shall be allowed to have free choice of the providers of other Medicaid services; and

(3) Payment will not be made for case management services to the extent that payments have been made by the Medicaid program as a part of other program elements for the same purposes. The purpose of this provision is to assure that there is nonduplication of program payments.

Section 6. Payments. Case management providers will be paid at an interim rate, approximating actual cost, which will be settled back to cost at the end of the state's fiscal year. Providers shall be required to provide acceptable documentation of costs.

Section 7. Implementation. The provisions of this administrative regulation shall be effective with regard to services provided on or after October 1, 1988.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194.050(1), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the program of Medical Assistance in accordance with Title XIX of the Social Security Act. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the scope of services for case management and the method for determining amounts payable by the cabinet for case management services.
History: 15 Ky.R. 1380; eff. 12-13-1988; Crt eff. 12-6-2019.

907 KAR 1:450 Nurse aide training criteria and registry {#sec-907-kar-1-450 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:450}

Section 1. Definitions.

(1) "Cabinet" means the Cabinet for Health and Family Services.

(2) "Competency examination" means a written or oral examination that is:

(a) Described by 42 C.F.R. 483.154; and

(b) Used as a standard for determining satisfactory completion of a nurse aide training and competency evaluation program.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Licensed health professional" means a:

(a) Physician;

(b) Physician assistant;

(d) Physical, speech, or occupational therapist;

(e) Registered nurse;

(f) Licensed practical nurse;

(g) Registered dietician; or

(h) Licensed or certified social worker.

(5) "Nurse aide" means an individual who has successfully completed the nurse aide training and competency evaluation program and may include a nursing student, medication aide, or a person employed through a nursing pool who provides nursing or nursing-related services to a resident in a nursing facility, excluding:

(a) An individual who is a licensed health professional;

(b) A volunteer who provides the nursing or nursing-related services without monetary compensation; or

(c) A person who is hired by the resident or family to sit with the resident and who does not perform nursing or nursing-related services.

(6) "Nurse aide training and competency evaluation program" means a competency evaluation program that meets the requirements of 42 C.F.R. 483.152.

(7) "Supervised practical training" means training in a laboratory or other setting in which the trainee demonstrates knowledge while performing tasks on an individual under the direct supervision of a registered nurse or a licensed practical nurse.

Section 2. General Requirements.

(1) A nursing facility shall not use an individual working in the facility as a nurse aide for more than four (4) months, on a full-time basis, unless the individual:

(a) Is competent to provide nursing and nursing-related services; and

(b)

Has satisfactorily completed a nurse aide training and competency evaluation program; or
Has been deemed or determined competent in accordance with 42 C.F.R. 483.150(a) and (b).

(2) If an employee is used on a temporary, per diem, leased, or other nonpermanent basis, a nursing facility shall not use the employee as a nursing aide unless the employee meets the requirements of subsection (1) of this section.

(3) A nursing facility shall not use an individual who has worked less than four (4) months as a nurse aide in that facility unless the individual:

(a) Is a full-time employee participating in a department-approved nurse aide training and competency evaluation program;

(b) Has demonstrated competence through satisfactory participation in a department-approved nurse aide training and competency evaluation program; or

Section 3. Course Requirements for the Nurse Aide Training and Competency Evaluation Programs and Instructor Qualifications. In accordance with 42 C.F.R. 483.152 and the Medicaid Services Manual for Nurse Aide Training and Competency Evaluation Program, a nurse aide training and competency evaluation program shall:

(1) Consist of a minimum of seventy-five (75) clock hours of nurse aide instructional training;

(2) Include at least sixteen (16) hours of supervised practical training; and

(3) Require that the program's instructor:

(a) Demonstrate completion of a course in teaching adults or have experience teaching adults; and

(b) Be a registered nurse who possesses a minimum of two (2) years of nursing experience, at least one (1) year of which shall be in the provision of long-term care services; or

Has at least one (1) year of experience; and
Provides instruction as a supplement to the registered nurse instructor.

Section 4. Regular In-service Education and Ongoing Staff Development. A nursing facility shall provide and document that at least twelve (12) hours of ongoing staff development training is given annually to each nurse aide who:

(1) Is employed by the facility; and

(2) Has satisfactorily completed the nurse aide training and competency evaluation program.

Section 5. Approval, Initial Postapproval Review, and Ongoing Review of Nurse Aide Training Programs.

(1) The following may request approval from the department to provide a nurse aide training and competency evaluation program:

(a) The Kentucky Community and Technical College System (KCTCS);

(b) The Office of Career and Technical Education, Department for Workforce Development, Education and Labor Cabinet;

(d) A community college;

(e) A university program;

(f) A licensed proprietary education program;

(g) A health care facility that is licensed in accordance with KRS 216B.015(12) and offers a nurse aide training and competency evaluation program to its own employees; or

(h) A nonprofit, church-related or tax-supported program that is not identified in paragraphs (a) through (g) of this subsection.

(2) In order to provide a nurse aide training and competency evaluation program, an entity identified in subsection (1) of this section shall be approved by the department in accordance with Section XI of the Medicaid Services Manual for Nurse Aide Training and Competency Evaluation Program.

(3) In accordance with 42 C.F.R. 483.151(c), the department shall, within ninety (90) days of receipt of a request for approval or receipt of additional information:

(a) Advise a requesting entity if its nurse aide training and competency evaluation program has been approved or denied; or

(b) Request additional information from the requesting entity.

(4) The department shall conduct an on-site review of each nurse aide training and competence evaluation program that is approved:

(a) Within one (1) year of initial approval; and

(b) Annually thereafter.

Section 6. Withdrawal of Approval.

(1) The department shall withdraw approval of a nurse aide training and competency evaluation program, if the entity providing the program does not:

(a) Meet the minimum requirements of 42 C.F.R. 483.152 or 483.154;

(b) Permit an unannounced visit by the department; or

(2) The department shall not approve a nurse aide training and competency evaluation program offered by, or in a nursing facility that, within the previous two (2) years,:

(a) Operated under a waiver in accordance with section 1819(b)(4)(C)(ii)(ll) of the Social Security Act, 42 U.S.C. 1395i-3(b)(4)(C)(ii)(II), by which the facility was not required to engage the services of a registered professional nurse for more than forty (40) hours per week;

(b) Operated under a waiver in accordance with section 1919(b)(4)(C)(ii) of the Social Security Act, 42 U.S.C. 1396r(b)(4)(C)(ii), that was granted on the basis of a demonstration by the facility of its inability to provide nursing care for more than forty-eight (48) hours per week;

(c) Has been subject to an extended, or partial extended, survey conducted by the cabinet under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Social Security Act, 42 U.S.C. 1395i-3(g)(2)(B)(ii) or 1396r(g)(2)(B)(ii);

(d) Has been assessed a civil money penalty described in section 1819(h)(2)(B)(ii) or 1919(h)(2)(A)(ii) of the Social Security Act, 42 U.S.C. 1395i-3(h)(2)(B)(ii) or 1396r(g)(2)(A)(ii), of no less than $5,000; or

(e) Has been subject to one (1) of the following actions:

Denial of payment in accordance with section 1819(h)(2)(B)(i) of the Social Security Act, 42 U.S.C. 1395i-3(h)(2)(B)(i), for individuals entitled to benefits under Title XIII of the Act, 42 U.S.C. 1395 to 1395hhh;
Appointment of temporary management to oversee operation of the facility in accordance with section 1819(h)(2)(B)(iii) or 1919(h)(2)(A)(iii) of the Social Security Act, 42 U.S.C. 1395i-3(h)(2)(B)(iii) or 1396r(h)(2)(A)(iii);
Termination of the facility's participation:

a. In accordance with section 1819(h)(4) of the Social Security Act, 42 U.S.C. 1395i-3(h)(4); or

b. In the Medicaid Program in accordance with section 1919(h)(1)(B)(i) of the Social Security Act, 42 U.S.C. 1396r(h)(1)(B)(i);

Denial of payment under Medicaid's Title XIX State plan in accordance with section 1919(h)(1)(B)(i) of the Social Security Act, 42 U.S.C. 1396r(h)(1)(B)(i), for any individual admitted to the nursing facility after notice of the denial has been made to the public and the facility; or
Closure of the facility or transfer of residents to other facilities in accordance with section 1919(h)(2)(A)(iv) of the Social Security Act, 42 U.S.C. 1396r(h)(2)(A)(iv).

(3) If the department withdraws approval of a nurse aide training and competency evaluation program, the department shall, in accordance with 42 C.F.R. 483.151(e)(4):

(a) Notify the nurse aide training and competency evaluation program in writing;

(b) Indicate the reason for withdrawal of approval; and

(c) Allow each student who has started a nurse aide training and competency evaluation program for which approval has been withdrawn to complete the course.

(4) In accordance with section 1919(f)(2)(C) of the Social Security Act, 42 U.S.C. 1396r(f)(2)(C) the department may allow a nurse aide training and competency evaluation program to be provided in, but not by, a nursing facility that meets one (1) of the conditions of subsection (2) of this section if the department:

(a) Determines that there is not another training and competency evaluation program offered within a reasonable distance of the facility;

(b) Assures, through an effort to oversee operation of the facility, that an adequate environment exists for operating the training and competency evaluation program in the facility; and

(c) Provides notice to the cabinet's long-term care ombudsman of the determination required by paragraph (a) of this subsection and assurance required by paragraph (b) of this subsection.

Section 7. Competency Examination and Competency Evaluation.

(1) KCTCS or another department-approved entity that is not a nursing facility shall administer and evaluate the final examination, including the skills demonstration portion of the nurse aide training and competency evaluation.

(2) In accordance with 42 C.F.R. 483.154(b)(1):

(a) An individual who obtains nurse aide training from an entity identified in Section 5(1) of this administrative regulation shall be permitted to choose between a final written or oral competency examination; and

(b) The competency examination shall:

Address each course requirement:

a. As specified in 42 C.F.R. 483.152(b); and

b. Identified in the Medicaid Services Manual for Nurse Aide Training and Competency Evaluation Program;

Be developed from a pool of test questions, only a portion of which shall be used in any one (1) competency examination;
Use a system that prevents disclosure of both the pool of questions and the individual competency examinations; and
If oral, be read from a prepared text in a neutral manner.

(3) In accordance with 42 C.F.R. 483.154(c)(4), the skills demonstration portion of the nurse aide training and competency evaluation shall be:

(a) Performed in a facility or laboratory setting comparable to the setting in which the individual shall function as a nurse aide; and

(b) Administered by a registered nurse with at least one (1) year's experience in providing care for the elderly or chronically ill of any age.

(4) A competency examination candidate shall submit the following to the nurse aide training and competency evaluation program proctor:

(a) An unexpired state or federally-issued photo identification; and

(b) A Social Security card that has not been laminated.

(5) If a competency examination candidate's Social Security card states, "Not valid for employment without Immigration and Customs enforcement authorization", or contains a similar statement, the candidate shall present an employment authorization document issued by the Department of Homeland Security.

(6) A competency examination candidate's full name and middle initial shall be the same on each personal document presented to the nurse aide training and competency evaluation program proctor.

(7) In accordance with 42 C.F.R. 483.154(e):

(a) An individual shall pass the written or oral competency examination and the skills demonstration for satisfactory completion of the nurse aide training and competency evaluation program; and

(b) A record of successful completion of the nurse aide training and competency evaluation program shall be included in the nurse aide registry within thirty (30) days of the date of completion.

(8) In accordance with 42 C.F.R. 483.154(f), an agency that administers the competency examination shall advise each individual who does not complete the examination satisfactorily:

(a) Of the areas which the individual did not pass; and

(b) That the individual has at two (2) additional opportunities to take the examination.

Section 8. State Nurse Aide Registry.

(1) The department, through an interagency agreement with the Kentucky Board of Nursing, shall be responsible for establishing and maintaining a registry of all nurse aides who have:

(a) Satisfactorily completed a nurse aide training and competency evaluation program upon successful completion of the competency examination; or

(b) Been granted an exception pursuant to 42 C.F.R. 483.150(c).

(2) A finding of resident or patient neglect, abuse, or misappropriation of resident or patient property by a nurse aide shall be maintained on an abuse registry pursuant to 906 KAR 1:100.

Section 9. Reciprocity.

(1) The department shall grant reciprocity for a nurse aide who is on another state's nurse aide registry if:

(a) The other state provides documentation that the individual is on its registry;

(b) An employment record provided to the department's nurse aide registry verifies that twenty-four (24) months have not elapsed since the individual worked for pay as a nurse aide; and

(c) The individual is not listed on the other state's registry of resident abuse, neglect, or misappropriation of resident property.

(2) The department shall not grant reciprocity for an individual whose name appears on any state's abuse registry.

Section 10. Reimbursement for Costs Incurred in Administering a Nurse Aide Training and Competency Evaluation Program.

(1) Reimbursement to a nursing facility for costs associated with a nurse aide training and competency evaluation program shall be available:

(a) In an amount specified in subsection (2) of this section; and

(b) For a nurse aide who:

Is employed by the facility; or
Receives an offer of employment from the facility within twelve (12) months of completing a nurse aide training and competency evaluation program.

(2) The maximum amount of reimbursement available to a nursing facility for costs incurred by an individual who completes the nurse aide training and competency evaluation program shall be forty-five (45) cents per Medicaid patient day.

(3) To receive reimbursement, a nursing facility shall report:

(a) The number of Medicaid patient days on the Nursing Facility Supplemental Medicaid Schedule NF-7 (included in the Medicaid Services Manual for Nurse Aide Training and Competency Evaluation Program) for the twelve (12) month period preceding October 1 of the current fiscal year; and

(b) The costs incurred for an aide to complete the nurse aide training and competency evaluation program on the MAP-576, Nurse Aide Training Expense Report and Authorization for Payment Form included in the Medicaid Services Manual for Nurse Aide Training and Competency Evaluation Program.

(4) The department shall not reimburse a nursing facility for a nurse aide if the nurse aide has been employed by another facility that received reimbursement for the aide's nurse aide training and competency evaluation program costs.

Section 11. Incorporation by Reference.

(1) The "Medicaid Services Manual for Nurse Aide Training and Competency Evaluation Program, March 2005 edition"; is incorporated by reference.

History

RELATES TO: KRS 205.520, 42 C.F.R. 438.75, 438.150 -438.158, 42 U.S.C. 1395i-3 and 1396r
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 U.S.C. 1396r
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes requirements for the nurse aide training and competency evaluation program and specifies the establishment and function of the nurse aide registry.
History: 16 Ky.R. 311; 551; eff. 9-20-1989; 19 Ky.R. 1457; 1810; 2062; eff. 2-17-1993; 23 Ky.R. 2889; 3601; 3784; eff. 4-16-1997; 33 Ky.R. 994; 1328; eff. 12-1-2006; Crt eff. 12-6-2019; TAm eff. 11-28-2022.

907 KAR 1:479 Medical supplies, equipment, and appliances covered benefits and reimbursement {#sec-907-kar-1-479 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:479}

Section 1. Definitions.

(1) "CMS" means the Centers for Medicare and Medicaid Services.

(2) "Covered benefit" or "covered service" means an item of MSEA for which coverage is provided by the department.

(3) "Customized" means that an item has been constructed, fitted, or altered to meet the unique medical needs of an individual Medicaid recipient and does not include the assemblage of modular components or the addition of various accessories that do not require unique construction, fitting, or alteration to individual specifications.

(4) "Date of service" means:

(a)

The date the MSEA is provided to the recipient; or
Thirty (30) days from the scheduled date of delivery with:

a. Proof from the provider the recipient was unable to be reached after a good faith effort to deliver; and

b. Product is unable to be resold due to customization for the recipient;

(b) For mail order MSEA, the later of the shipping date or the date the recipient was discharged home or to a place where normal life activities take place, except as limited by 42 C.F.R. 440.70(c)(1);

(c) For MSEA delivered to a recipient's home immediately subsequent to a hospital inpatient stay, the date of final discharge; or

(d) Up to two (2) calendar days prior to discharge from a hospital or nursing facility if:

The item was provided for purposes of fitting or training of the patient;
The item is ready for use in the recipient's home; and
Billing is not done prior to the date of the recipient's discharge from the facility.

(5) "Department" means the Department for Medicaid Services or its designee.

(6) "DMEPOS" means durable medical equipment, prosthetics, orthotics, or supplies.

(7) "Durable medical equipment" or "DME" means medical equipment that:

(a) Withstands repeated use;

(b) Is primarily and customarily used to serve a medical purpose;

(d) Is appropriate for use in the home or community.

(8) "Healthcare common procedure coding system" or "HCPCS" means a collection of codes acknowledged by the Centers for Medicare and Medicaid Services (CMS) that represents procedures or items.

(9) "Home" means a place in which normal life activities take place, and as limited by 42 C.F.R. 440.70(c)(1).

(10) "Incidental" means that a medical procedure or service:

(a) Is performed at the same time as a more complex primary procedure or service; and

(b)

Requires little additional resources; or
Is clinically integral to the performance of the primary procedure or service.

(11) "Invoice price" means an itemized account of a manufacturer's actual charges that are billed to a supplier for goods or services provided by the manufacturer or distributor.

(12) "Medicaid Program MSEA Fee Schedule" means a list, located at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx, that:

(a) Contains the current Medicaid maximum allowable amount established by the department for a covered item of MSEA;

(b) Is updated at least yearly; and

(c) Is consistent with and informed by this administrative regulation and the applicable Centers for Medicare and Medicaid Services published DMEPOS Fee Schedule.

(13) "Medical supplies, equipment, and appliances" or "MSEA":

(a) Means:

Durable medical equipment;
DMEPOS;
Orthotics; and
A medical supply item;

(b) Includes:

Prosthetics;
Orthotics;
Beds;
Canes;
Walkers;
Wheelchairs;
Traction equipment;
Oxygen;
Oxygen equipment; and
Routine maintenance of a rental item; and

Items which are covered under other areas and disciplines within KAR Title 907, such as frames, lenses, hearing aids, and pacemakers; or
Routine maintenance of a purchased item. Routine maintenance includes testing, cleaning, regulating, and accessing equipment described as the type of servicing an owner may perform in the operator's manual for the item.

(14) "Medical supply" means an item that is:

(a) Consumable;

(b) Nonreusable;

(d) Primarily and customarily used to serve a medical purpose.

(15) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(16) "Medicare accreditation" means having met the quality standards established in 42 U.S.C. 1395m(a)(20).

(17) "Mutually exclusive" means that two (2) MSEA items:

(a) Are not reasonably provided in conjunction with each other during the same patient encounter on the same date of service;

(b) Represent duplicate or very similar items; or

(18) "Nutritional supplement" means a liquid or powder administered enterally or orally that is specially formulated to supply complete diagnosis-appropriate nutrition, including kilocalories, protein, vitamins, and minerals.

(19) "Orthotic" means a mechanical device or brace that is designed to support or correct a defect or deformity or to improve the function of a movable part of the body.

(20) "Prescriber" means a physician, podiatrist, optometrist, dentist, advanced practice registered nurse, physician assistant, or chiropractor who:

(a) Is acting within the legal scope of clinical practice under the licensing laws of the state in which the health care provider's medical practice is located;

(b) If the individual is an enrolled Kentucky Medicaid provider, is in compliance with all requirements of:

907 KAR 1:671; and
907 KAR 1:672;

(d) Has the legal authority to write an order for a medically necessary item of MSEA for a recipient.

(21) "Prior authorization" means approval that a supplier shall obtain from the department before being reimbursed.

(22) "Prosthetic" means an item that replaces all or part of the function of a body part or organ.

(23) "Reasonableness" means:

(a) The expense of the item does not exceed the therapeutic benefits that could ordinarily be derived from use of the item;

(b) The item is not substantially more costly than a medically-appropriate alternative; and

(24) "Supplier" means a Medicare-certified provider of MSEA who is enrolled in the Kentucky Medicaid Program.

(25) "Usual and customary charge" means the uniform amount that a supplier bills to the general public for a specific covered benefit.

Section 2. General Coverage.

(1) Except as provided in subsection (2) of this section, coverage for an item of MSEA shall:

(a) Be based on medical necessity and reasonableness;

(b) Be clinically appropriate pursuant to the criteria established in 907 KAR 3:130;

(d) Be provided in compliance with 42 C.F.R. 440.230(c); and

(e) Be restricted to an item used primarily in the home and community.

(2)

(a) Except as provided in paragraph (b) of this subsection, the criteria referenced in subsection (1) of this section that was in effect on the date the MSEA is provided shall be used as the basis for the determination of coverage, subject to medical necessity override by the department to ensure compliance with 42 C.F.R. 440.230(c).

(b) If criteria referenced in subsection (1) of this section does not exist or is unavailable for a given item or service, the Medicare criteria in effect on the date the MSEA is provided shall be used as the basis for the determination of coverage, subject to medical necessity override by the department to ensure compliance with 42 C.F.R. 440.230(c).

(3) An item shall require a prescriber's written order.

(4) Except as specified in subsections (5) and (6) of this section, a prescriber shall examine a recipient within sixty (60) calendar days prior to the initial order of a MSEA.

(5) A prescriber shall not be required to examine a recipient prior to subsequent orders for the same MSEA item unless there is a change in the order.

(6) A prescriber shall not be required to examine a recipient prior to the repair of MSEA.

(7) The department shall only purchase a new MSEA item.

(8) A new MSEA item that is placed with a recipient initially as a rental item shall be considered a new item by the department at the time of purchase.

(9) A used MSEA item that is placed with a recipient initially as a rental item shall be replaced by the supplier with a new item prior to purchase by the department.

(10) A supplier shall not bill Medicaid for the MSEA before the item is provided to the recipient.

(11) A supplier shall not ship supplies to a recipient unless the supplier has:

(a) First had direct contact with the recipient,the recipient's caregiver, or an authorized representative, such as a case manager for a 1915(c) waiver participant; and

(b) Verified:

That the recipient wishes to receive the shipment of supplies;
The quantity of supplies in the shipment; and
Whether or not there has been a change in the use of the supply.

(12) A verification referenced in subsection (11) of this section for each recipient shall be documented in a file regarding the recipient.

(13) If a supplier ships more than a one (1) month supply of an item, the supplier shall assume the financial risk of nonpayment if the recipient's Medicaid eligibility lapses or a HCPCS code is discontinued.

(14) A supplier shall have an order from a prescriber before dispensing any MSEA item to a recipient.

(15) A supplier shall have a written order on file prior to submitting a claim for reimbursement.

Section 3. Purchase or Rental of Medical Supplies, Equipment, and Appliances.

(1) Except as established on the Medicaid Program MSEA Fee Schedule, MSEA shall be covered through purchase or rental based upon anticipated duration of medical necessity.

(2)

(a) A MAP 1001 form shall be completed if a recipient requests an item or service not covered by the department.

(b) A recipient shall be financially responsible for an item or service requested by the recipient via a MAP 1001 that is not covered by the department.

The MSEA supplier shall ensure that the recipient or authorized representative reads and understands the MAP 1001;
The recipient or authorized representative shall indicate on the MAP 1001 if the recipient chooses to receive a noncovered service;
The MSEA supplier shall complete the supplier information on the MAP 1001;
The MSEA supplier shall provide a copy of the completed MAP 1001 to the recipient; and
The MSEA supplier shall maintain the completed MAP 1001 on file for at least the period of time mandated by 45 C.F.R. 164.316.

(d) If an item or service was denied due to the supplier not meeting the timeframes to obtain a prior authorization or the item or service does not meet medical necessity for a prior authorization, the MAP 1001 shall not be used to obligate the recipient for payment.

Section 4. Special Coverage.

(1) An augmentative communication device or other electronic speech aid shall be covered for a recipient who is permanently unable to communicate through oral speech if:

(a) Medical necessity is established based on a review by the department of an evaluation and recommendation submitted by a speech-language pathologist; and

(b) The item is prior authorized by the department.

(2) A customized MSEA item shall be covered only if a noncustomized medically appropriate equivalent is not commercially available.

(3) A physical therapy or occupational therapy evaluation shall be required for:

(a) A power wheelchair; or

(b) A wheelchair for a recipient who, due to a medical condition, is unable to be reasonably accommodated by a standard wheelchair.

(4) Orthopedic shoes and attachments shall be covered if medically necessary for:

(a) A congenital defect or deformity;

(b) A deformity due to injury; or

(5) A therapeutic shoe or boot shall be covered if medically necessary to treat a nonhealing wound, ulcer, or lesion of the foot.

(6) An enteral or oral nutritional supplement shall be covered if:

(a) The item is prescribed by a licensed prescriber;

(b) Except for an amino acid modified preparation or a low-protein modified food product specified in subsection (7) of this section, it is the total source of a recipient's daily intake of nutrients;

(d) Nutritional intake is documented on the medical record; and

(e) For a child under the age of six (6) years, the Women, Infants and Children's Program (WIC) is unable to provide coverage of a formula:

A letter from WIC shall be obtained and submitted with a prior authorization request for a prescribed formula that is included on an official posting, publication, or publicly available listing of the most current WIC formulary; or
If a prescribed formula is not included on an official posting, publication, or publicly available listing of the most current WIC formulary, a letter shall not be required to accompany any prior authorization request.

(7) An amino acid modified preparation or a low-protein modified food product shall be covered:

(a) If prescribed for the treatment of an inherited metabolic condition specified in KRS 205.560(1)(c);

(b) If not covered through the Medicaid outpatient pharmacy program;

(d) If the item is prior authorized.

(8) An MSEA item intended to be used for postdischarge rehabilitation in the home may be delivered to a hospitalized recipient within two (2) calendar days prior to discharge home for the purpose of rehabilitative training.

(9) An electric breast pump shall be covered:

(a)

Within six (6) weeks prior to birth; or
Within six (6) weeks after birth; and

(b) For up to one (1) replacement per child.

(10) Rental of an airway clearance vest system for a three (3) month trial period shall be required before purchase of the equipment.

(11) Non-sole source nutrition:

(a) Shall be provided for a twelve (12) month period; and

(b)

Shall be medically necessary; or
For children, services shall be determined by assessing the child via a growth chart as measured by height and weight. The following criteria shall be utilized, a child that is:

a. Below the 50th percentile or who requires an enteral access device for alternate means of nutrition shall meet the guidelines for receiving non-sole source nutrition;

b. Above the 50th percentile, but has a valid diagnosis to support the request, shall meet the guidelines for receiving non-sole source nutrition. For example, disorders of significant mental, behavioral, or physical health including trauma, significant weight loss, chronic illness, or cancers; and

c. Above the 50th percentile and without a supporting diagnosis shall be referred to the medical director who may approve non-sole source nutrition services.

Section 5. Coverage of Repairs and Replacement of Equipment.

(1) The department shall not be responsible for repair or replacement of the MSEA if the repair or replacement is covered by a warranty.

(2) Reasonable repair to a purchased MSEA shall be covered:

(a) During a period of medical need;

(b) If necessary to make the item serviceable;

(d) In accordance with Section 6(3) of this administrative regulation.

(3) Extensive maintenance to purchased equipment, as recommended by the manufacturer and performed by an authorized technician, shall be considered to be a repair.

(4) The replacement of a medically necessary MSEA shall be covered for the following:

(a) Loss of the item;

(b) Irreparable damage or wear; or

(5) Suspected malicious damage, culpable neglect, or wrongful disposition of MSEA shall be reported by the supplier to the department if the supplier is requesting prior authorization for replacement of the item.

Section 6. Limitations on Coverage.

(1) The following items shall be excluded from Medicaid coverage through the MSEA program:

(a) An item covered for Medicaid payment through another Medicaid program;

(b) Equipment that is not primarily and customarily used for a medical purpose;

(d) Equipment used primarily for the convenience of the recipient or caregiver;

(e) A home modification;

(f) Routine maintenance of MSEA that includes:

Testing;
Cleaning;
Regulating; and
Assessing the recipient's equipment;

(g) Except as specified in Section 7(1)(j) of this administrative regulation, backup equipment; or

(h) An item determined not medically necessary, clinically appropriate, or reasonable by the department.

(2) Except if Medicare is the primary payer, the following diabetic supplies (HCPCS codes) shall be covered as a pharmacy benefit at the point of sale:

(a) A4206, a syringe with needle (sterile, 1cc or less);

(b) A4250, urine test or reagent strips or tablets;

(d) A4253, blood glucose test or reagent strips;

(e) A4256, calibrating solutions;

(f) A4258, lancet device;

(g) A4259, lancets; or

(h) E0607, home blood glucose monitor.

(3) An estimated repair shall not be covered if the repair cost equals or exceeds:

(a) The purchase price of a replacement item; or

(b) The total reimbursement amount for renting a replacement item of equipment for the estimated remaining period of medical need.

(4) MSEA shall be included in the facility reimbursement for a recipient residing in a hospital, nursing facility, or intermediate care facility or institution for individuals with an intellectual or developmental disability.

Section 7. Prior Authorization Requirements and Process.

(1) Prior authorization shall be required for the following:

(a) An item or repair billed to the department at $500 or more;

(b) Rental of equipment as indicated on the Medicaid Program MSEA Fee Schedule excluding oxygen services after twelve (12) months of service;

(d) An adjustment to a prosthetic or orthotic;

(e) An augmentative communication device;

(f) A customized MSEA item;

(g) A replacement MSEA if replacement is prior to the:

Usual and customary lifetime of the item; or
Limitation set by the department as indicated in the Medicaid Program MSEA Fee Schedule;

(h) A nutritional supplement;

(i) An amino acid modified preparation or a low-protein modified food product;

(j)

A loaner item for a member-owned piece of equipment that is being repaired; and
Any loaner item for a member-owned piece of equipment shall be the equivalent or better of the item that is being repaired;

(k) A MSEA item denoted by a general or nonspecific HCPCS code;

(l) An item designated on the Medicaid Program MSEA Fee Schedule as requiring prior authorization;

(m) An item that exceeds the quantity limitation established in the Medicaid Program MSEA Fee Schedule; or

(n) An item designated by an HCPCS code not indicated on the Medicaid Program MSEA Fee Schedule that is determined by the department to be a covered benefit.

(2)

(a) If an item requires prior authorization, a supplier shall:

a. Submit all required documentation prior to the date of service; or

b. Within one (1) year from the date of service with department approval; and

Submit a written request to the department for prior authorization, which shall include the prescriber's order.

(b) If the required prior authorization submittals required by paragraph (a) of this subsection are not submitted within the established time frames, the prior authorization request shall be denied.

(3) If an item requires an evaluation or recommendation by a specialist, the evaluation or recommendation shall be in writing and submitted with a prior authorization.

(4) The supplier shall not bill a recipient for the MSEA if the supplier has not completed the prior authorization process within the timeframe specified in subsection (2) of this section.

(5) If a supplier provides an item that requires prior authorization before the prior authorization is received, the supplier shall assume the financial risk that the prior authorization might not be subsequently approved.

(6) A supplier shall request prior authorization by mailing, faxing, or electronically submitting the following information to the department:

(a) A completed prior authorization form MAP-9; and

(b) If requested by the department, additional information required to establish medical necessity, clinical appropriateness, or reasonableness.

(7) The following additional information shall be required for prior authorization of a customized item:

(a) A description of the materials used in customizing the item; and

(b) An itemized estimate of the cost of the item, including the cost of labor.

(8) The following additional information shall be required for prior authorization of a repair to purchased equipment:

(a) A description of the nature of the repair;

(b) An itemization of the parts required for the repair;

(d) A copy of the manufacturer's warranty indicating the purchase date or a written notice from the MSEA supplier stating that the requested repair is not covered by the warranty.

(9) An item shall be prior authorized based on:

(a) Medical necessity and the corresponding prior-authorized period of medical necessity; and

(b)

Clinical appropriateness pursuant to the criteria established in 907 KAR 3:130; or
Medicare criteria if the criteria referenced in subparagraph 1. of this paragraph does not exist or is unavailable.

(10) A prior authorization period shall be extended as indicated by:

(a) Clinical appropriateness pursuant to the criteria established in 907 KAR 3:130; or

(b) Medicare criteria if the criteria referenced in paragraph (a) of this subsection does not exist or is unavailable.

(11)

(a) Prior authorization by the department shall not:

Be a guarantee of recipient eligibility; or
Guarantee reimbursement.

(b) Eligibility verification shall be the responsibility of the supplier.

(12) Upon review and determination by the department that removing prior authorization shall be in the best interest of Medicaid recipients, the prior authorization requirement for a specific covered benefit shall be discontinued, at which time the covered benefit shall be available to all recipients without prior authorization.

(13) If it is determined by the department to be in the best interest of Medicaid recipients, the department may designate that an item of MSEA suitable for use in the home or community may be provided, if prior authorized, to a recipient.

(14)

(a) For purposes of obtaining prior authorization, a signed invoice price quote from the manufacturer shall be acceptable documentation.

(b) If the invoice price differs from the manufacturer's invoice price quote, the supplier shall amend the prior authorization and shall maintain documentation of the quote and the invoice.

Section 8. Reimbursement for Covered Services.

(1) Except for an item specified in subsections (2) and (4) of this section, a new item that is purchased shall be reimbursed at the lesser of:

(a) The supplier's usual and customary charge for the item;

(b) The purchase price specified in the Medicaid Program MSEA Fee Schedule; or

(c) If indicated in the Medicaid Program MSEA Fee Schedule as manually priced, which shall be the manufacturer's suggested retail price minus eighteen (18) percent, or if not available, invoice price plus twenty (20) percent for an item not utilizing a billing code.

(2) Pursuant to 45 C.F.R. 162.1002, the department shall recognize U.S. Department for Health and Human Services quarterly HCPCS code updates.

(a) An item denoted by an HCPCS code not currently on the Medicaid Program MSEA Fee Schedule that has been determined by the department to be a covered service shall be manually priced, which shall be the manufacturer's suggested retail price minus eighteen (18) percent, or if not available, invoice price plus twenty (20) percent for an item not utilizing a billing code.

(b)

The department shall post HCPCS code change information on its Web site accessible at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.
The information may also be obtained by writing the Department for Medicaid Services at 275 East Main Street, Frankfort, Kentucky 40621.

(3) For a service covered under Medicare Part B, reimbursement shall be in accordance with 907 KAR 1:006.

(4) Reimbursement for the purchase of an item that has been rented for ten (10) months shall be the purchase price specified in subsection (1) of this section minus the cumulative rental payment made to the supplier.

(5) A rental item shall be reimbursed as follows, but reimbursement shall not exceed the supplier's usual and customary charge for the item:

(a) The rental price specified in the Medicaid Program MSEA Fee Schedule; or

(b) If indicated in the Medicaid Program MSEA Fee Schedule as manually priced:

Ten (10) percent of the purchase price per month for the monthly rental of an item; or
Two and one-half (2.5) percent of the purchase price per week for the weekly rental of an item that is needed for less than one (1) month.

(6)

(a) If reimbursement for a rental item has been made for a period of ten (10) months by the same provider within a two (2) year period, the item shall be considered to be purchased and shall become the property of the recipient.

(b) A provider may demonstrate that a break in service or need for a rental item has occurred due to hospitalization during the two (2) year period. In the event of a successful demonstration, reimbursement shall be provided for each demonstrated month that a break in need occurred until a cumulative ten (10) month period has been reached.

(7) Labor costs for a repair shall be billed in quarter hour increments using the HCPCS codes for labor specified in the Medicaid Program MSEA Fee Schedule and shall be reimbursed the lessor of:

(a) The supplier's usual and customary charge; or

(b) The reimbursement rate specified in the Medicaid Program MSEA Fee Schedule.

(8) Reimbursement shall include instruction and training provided to the recipient by the supplier.

(9) The rental price of an item shall include rental of the item and the cost of:

(a) Shipping and handling;

(b) Delivery and pickup;

(d) Routine maintenance; and

(e) Essential medical supplies required for proper use of the equipment.

(10) The purchase price of a prosthetic or orthotic shall include:

(a) Acquisition cost and applicable design and construction;

(b) Required visits with a prosthetist,orthotist, or other appropriate MSEA provider for fitting prior to receipt of the item;

(d) Required modification, if not a result of physical growth or excessive change in stump size, for a period of one (1) year; and

(e) A warranty covering defects in material and workmanship.

Section 9. Conditions for Provider Participation. A participating MSEA provider shall:

(1) Have an active Medicare MSEA provider number;

(2) Adhere to all CMS supplier standards in accordance with 42 C.F.R. 424.57;

(3)

(a) Provide proof of Medicare accreditation, by an approved Medicare accreditation entity, to the department every three (3) years unless exempt from Medicare accreditation by CMS; or

(b) If exempt from Medicare accreditation by CMS, provide a letter to the department on company letterhead that indicates the CMS exemption status;

(4) Be enrolled in the Kentucky Medicaid Program in accordance with:

(a) 907 KAR 1:671; and

(b) 907 KAR 1:672;

(5) Comply with the requirements regarding the confidentiality of personal medical records pursuant to 42 U.S.C. 1320d and 45 C.F.R. Parts 160 and 164; and

(6) Comply with the following:

(a) A supplier shall bill Medicaid rather than a recipient for a covered service;

(b) A supplier shall not bill a recipient for a service that is denied by the department on the basis that the service is incidental to, or mutually exclusive with, a covered service; and

(c) A supplier may bill a recipient for a service not covered by Medicaid if the provider informed the recipient of noncoverage prior to providing the service and a completed MAP 1001 form is signed and included in the medical record.

Section 10. Managed Care Organizations and Reimbursement. A managed care organization shall not be required to reimburse the same amount as the department reimburses for a service or item covered pursuant to this administrative regulation, except as otherwise required by applicable law, such as any reimbursement required pursuant to KRS 205.6333.

Section 11. Federal Approval and Federal Financial Participation. The department's coverage and reimbursement for services pursuant to this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval for the coverage and reimbursement.

Section 12. Appeal Rights.

(1) If an individual is denied prior authorization for MSEA based upon an application of this administrative regulation, the MSEA supplier involved in the prior authorization request may appeal the denial. To appeal the denial, the MSEA supplier shall submit to the department, within thirty (30) calendar days of the prior authorization denial, a written request, by mail or fax, for a reconsideration review.

(2) Upon receipt of a reconsideration request and any supporting documentation, the department shall:

(a) Conduct a reconsideration review within thirty (30) calendar days from the receipt of the request;

(b) Base the reconsideration review decision solely upon information that is:

Contained in the individual's medical records; and
Submitted with the written request pursuant to subsection (1) of this section; and

(3) If an outcome of a services reconsideration review results in a denial, the department shall grant an appeal.

(4) An appeal of a department decision regarding a Medicaid recipient who is:

(a) Enrolled with a managed care organization shall be in accordance with 907 KAR 17:010; or

(b) Not enrolled with a managed care organization shall be in accordance with 907 KAR 1:563.

(5) An appeal of a department decision regarding a Medicaid provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

Section 13. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) Form MAP-9, "Prior Authorization for Health Services", July 2010;

(b) Form MAP 1001, "Advance Member Notice", September 2006.

(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/dpo/bpb/Pages/dme.aspx.

History

RELATES TO: KRS 205.520, 205.560, 205.6333, 42 C.F.R. Part 414, 424.57, 440.230, 440.70, 45 C.F.R. Part 160, 162.1002, Part 164, 42 U.S.C. 1320d, 1395m, 1395w-4, 1396d(i)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid program. KRS 205.520(3) authorizes the cabinet 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 provisions relating to coverage and reimbursement requirements for medical supplies, equipment, and appliances (MSEA).
History: 27 Ky.R. 2618; Am. 3263; eff. 6-8-2001; 29 Ky.R. 2558; 30 Ky.R. 42; eff. 7-16-2003; 31 Ky.R. 641; 1188; eff. 1-21-2005; 33 Ky.R. 602; 1380; 1564; eff. 1-5-2007; 35 Ky.R. 309; 571; eff. 10-3-2008; 37 Ky.R. 564; 1455; eff. 12-1-2010; TAm 7-16-2013; 44 Ky.R. 398, 1042; eff. 1-5-2018; 50 Ky.R. 1786; eff. 6-18-2024.

907 KAR 1:560 Medicaid hearings and appeals regarding eligibility {#sec-907-kar-1-560 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:560}

Section 1. Definitions.

(1) "Appeal board" means the secretary, or entity or individual designated by the secretary of the Cabinet for Health and Family Services to hear appeals following a recommended order by a designated hearing agency.

(2) "Applicant" means an individual applying for Medicaid.

(3) "Authorized representative" means an individual acting on behalf of an applicant or recipient.

(4) "Department" means the Department for Medicaid Services or its designee.

(5) "Designated hearing agency" means the entity designated by the secretary of the Cabinet for Health and Family Services to adjudicate administrative hearings.

(6) "Recipient" means an individual who receives Medicaid.

(7) "Secretary" means the secretary of the Cabinet for Health and Family Services.

Section 2. Informing the Applicant or Recipient of His Rights. With the exception of a dispute resolution regarding a utilization review denial, which shall be processed in accordance with 42 C.F.R. Part 456, the following provisions shall apply:

(1) Each applicant or recipient shall be informed of his or her right to a hearing:

(a) Verbally and in writing when application is made; and

(b) In writing if an action is taken affecting the applicant's or recipient's eligibility in accordance with KRS 13B.050.

(2) Each applicant or recipient shall be informed of the method by which the applicant or recipient may obtain a hearing and that the applicant or recipient may be represented by:

(a) Legal counsel;

(b) A relative;

(d) Other spokesperson; or

(e) The applicant or recipient if electing to self-represent.

Section 3. Request for a Hearing. With the exception of a dispute resolution regarding a utilization review denial, which shall be processed in accordance with 42 C.F.R. Part 456, the following provisions shall apply:

(1) An applicant, recipient, or an authorized representative may request a hearing by filing a request with the designated hearing agency at the local office or central office of the Department for Community Based Services.

(2) The applicant, recipient, or authorized representative shall clearly indicate a desire for a hearing by submitting a statement:

(a) In written form; or

(b) Verbally and followed up in writing.

Section 4. Time Limitation for Request.

(1) To be considered timely, a hearing request relating to a Medicaid eligibility action or delay in taking a timely action from an applicant, recipient, or authorized representative shall be postmarked or received by the designated hearing agency within:

(a) Thirty (30) days of the notice of:

Denial of an application;
Discontinuance of an active case; or
Increase in patient liability; or

(b) A time period equal to the delay in action by the agency.

(2) An additional thirty (30) days for requesting a hearing shall be granted if it is determined by the representative of the designated hearing agency that the delay was for good cause in accordance with the following criteria:

(a) The applicant or recipient was away from home during the entire filing period;

(b) The applicant or recipient is unable to read or to comprehend the right to request a hearing on the notice of:

Adverse action;
Discontinuance of Medicaid eligibility; or
Increase in patient liability;

Adverse action;
Discontinuance of the Medicaid eligibility; or
Increase in patient liability;

(d) Serious illness of the applicant or recipient; or

(e) The delay was no fault of the applicant or recipient.

Section 5. Continuation of Medicaid.

(1) Except as provided in subsection (3) or (4) of this section, Medicaid eligibility shall be continued at the level prior to the adverse action through the month in which the final order is:

(a) Rendered if the request results from dissatisfaction regarding a:

Proposed discontinuance; or
Proposed increase in patient liability; and

(b) Received within ten (10) days of the date of the:

Advance notice of adverse action; or
Notice of discontinuance from the Department for Medicaid Services or its designee.

(2) Except as provided in subsection (4) of this section, Medicaid shall be reinstated and continued through the month in which the final order is rendered if:

(a) The request is received within twenty (20) days of the date of the advance notice of:

Adverse action;
Discontinuance of Medicaid eligibility; or
Increase in patient liability; and

(b) The reason for delay meets the good cause criteria established in Section 4(2) of this administrative regulation.

(3) Subsection (1) of this section shall not apply if the applicant, recipient, or authorized representative requests the discontinuance or increase in patient liability to be in effect pending the final order.

(4) Subsections (1) and (2) of this section shall not apply if the program benefit has been reduced or discontinued as a result of a change in law or administrative regulation.

(5) A continued or reinstated benefit shall be considered an overpayment if the agency decision is upheld.

(6) A time limited benefit shall not be extended based on a request for an appeal or hearing.

Section 6. Acknowledgement of the Request.

(1) A hearing request shall be acknowledged by the designated hearing agency.

(a) The acknowledgement letter shall contain information regarding:

The hearing process;
The right to case record review prior to the hearing;
The right to representation; and
A statement that the local office can provide information regarding the availability of free representation by legal aid or a welfare rights organization within the community.

(b) Subsequent notification shall comply with the requirements of KRS 13B.050.

(2)

(a) A party to the hearing shall be provided at least twenty (20) days timely notice of the hearing to permit adequate preparation of the case.

(b) Less timely notice may be requested by the applicant, recipient, or authorized representative to expedite the scheduling of the hearing.

(3)

(a) A hearing complying with the requirements of KRS Chapter 13B shall be scheduled on a timely basis to assure no more than ninety (90) days shall elapse from the date of the request to the date of the recommended order.

(b) A hearing determination shall be held within thirty (30) days of the hearing request date if it is regarding a:

Community spouse income; or
Resource allowance.

Section 7. Withdrawal or Abandonment of Request.

(1) The applicant, recipient or authorized representative:

(a) May withdraw a request for a hearing prior to release of the representative of the designated hearing agency's recommended order; and

(b) Shall be granted the opportunity to discuss withdrawal with the applicant's, recipient's, or authorized representative's legal counsel or representative prior to finalizing the action.

(2)

(a) A hearing request shall be considered abandoned if the applicant, recipient, or authorized representative fails without prior notification to report for the hearing.

(b) A hearing request shall not be considered as abandoned without extending to the applicant or recipient, and, if applicable, his legal counsel or representative, a period of ten (10) days to establish that the failure was for good cause in accordance with the good cause criteria established in Section 4(2) of this administrative regulation.

Section 8. Applicant's or Recipient's Rights Prior to a Hearing.

(1) An applicant or recipient shall receive notice consistent with KRS 13B.050 including the right to:

(a) Legal counsel or other representation;

(b) Review the case record relating to the issue; and

(2) If the hearing involves medical issues:

(a) A medical assessment by an individual other than a person involved in the original decision or recommended order shall be obtained, at the department's expense, if the representative of the designated hearing agency considers it necessary; and

(b) If a medical assessment, at the department's expense, is requested by the applicant, recipient, or authorized representative and is denied by the representative of the designated hearing agency, the reason for denial shall be set forth in writing.

Section 9. Postponement of a Hearing.

(1) The applicant, recipient, or authorized representative may request and shall be entitled to a postponement of a hearing if the request is made:

(a) Before the hearing; and

(b) In accordance with the good cause criteria established in Section 4(2) of this administrative regulation.

(2) The decision to grant the postponement shall be made by the representative of the designated hearing agency.

(a) The postponement of the hearing shall not exceed thirty (30) days from the date of the request.

(b) The time limit for action on the recommended order shall be extended for as many days as the hearing is postponed.

Section 10. Corrective Action for Medicaid.

(1) The department may determine that corrective action to provide or restore eligibility is appropriate if:

(a) A hearing has been requested;

(b) A recommended order has not been rendered; and

(c) The department's action or proposed action made the applicant or recipient ineligible for benefits to which the applicant or recipient was entitled.

(2) After corrective action has been taken:

(a) The applicant, recipient, or authorized representative shall be given the opportunity to withdraw the hearing request; and

(b) The hearing process shall continue if the applicant, recipient, or authorized representative wishes to pursue the request.

Section 11. Conduct of a Hearing.

(1) The hearing shall be conducted in accordance with the requirements of KRS 13B.080 and 13B.090.

(2) Impartiality. The representative of the designated hearing agency shall be impartial and if necessary, the representative shall disqualify himself or herself as required by KRS 13B.040.

(3) The hearing shall be conducted in-state and at a location where the applicant, recipient, or authorized representative may attend without undue inconvenience.

(4) If necessary to receive full information on the issue, the representative of the designated hearing agency may examine each party who appears and the party's witnesses.

(5) The representative of the designated hearing agency may schedule a hearing and take additional evidence as is deemed necessary. Evidence shall be taken in accordance with the provisions of KRS 13B.080 and 13B.090.

Section 12. Exceptions to a Recommended Order.

(1) Filing an exception to a recommended order shall be the same as filing a request for review of a local evidentiary hearing decision as established in 42 C.F.R. 431.233.

(2)

(a) A party may file an exception to a recommended order in accordance with KRS 13B.110(4).

(b) If a party wishes to file an exception to the recommended order, the exception shall be filed with the Cabinet for Health and Family Services, Division of Administrative Hearings, within fifteen (15) days from the date that the recommended order is mailed.

Section 13. The Recommended Order. With the exception of a dispute resolution regarding a utilization review denial, which shall be processed in accordance with 42 C.F.R. Part 456, the following provisions shall apply:

(1) After the hearing is concluded, the representative of the designated hearing agency shall issue a recommended order in accordance with the requirements of KRS 13B.110.

(2) A recommended order with regard to a community spouse's income allowance shall be subject to a downward adjustment as deemed necessary by the agency as circumstances causing financial duress change or no longer exist.

(a) The resource allowance shall be subject to this adjustment with regard to a resource that is:

Attributed to the community spouse; and
Not transferred within six (6) months of the Medicaid approval date.

(b) This adjustment shall be appealable pursuant to Section 5 of this administrative regulation.

(3)

(a) A copy of the recommended order shall be mailed to the applicant or recipient and his representative; or

(b) The applicant, recipient, or authorized representative may elect to receive a copy of the recommended order or the final order by electronic format.

(4) The recommended order, with respect to the issue considered, shall be reviewed by the appeal board.

Section 14. Appeal from Recommended Order of Representative of the Designated Hearing Agency for an Applicant and Recipient.

(1) An applicant, recipient, or his authorized representative wishing to appeal the recommended order of a representative of the designated hearing agency shall file an appeal to the designated appeal board.

(2) The appeal request shall be considered timely if it is received in a local office or the central office of the designated hearing agency within twenty (20) days of the date on which the representative of the designated hearing agency's recommended orderwas postmarked.

(3) If the good cause criteria established in Section 4(2) of this administrative regulation is met, an appeal request received or postmarked within thirty (30) days of the representative of the designated hearing agency's recommended order shall be considered timely.

(4) The request shall be:

(a) Filed:

In writing; or
Verbally, if a written request is subsequently sent; and

(b) Considered filed on the day the request is received or postmarked.

(5) Medicaid eligibility shall continue to be denied, discontinued, patient liability increased, or Medicaid coverage reduced if the department's action is upheld by the representative of the designated hearing agency.

Section 15. Applicant's or Recipient's Rights Prior to an Appeal Board Consideration.

(1) An appeal shall be acknowledged in writing to the applicant or recipient and his authorized representative.

(2) The acknowledgment shall offer the opportunity to file a brief or submit new and additional proof and state the tentative date on which the board shall consider the appeal.

Section 16. Appeal Board Review.

(1) An appeal to the appeal board shall be considered upon the records of the department and the evidence or exhibits introduced before the representative of the designated hearing agency unless the applicant, recipient, or authorized representative specifically requests permission to file additional proof or an exception to the recommended order was filed.

(2) If an appeal is being considered on the record, a party may present a written argument and at the appeal board's discretion, be allowed to present an oral argument.

(3) If needed, the appeal board may direct the taking of additional evidence to resolve the appeal.

(4) Evidence shall be taken by the appeal board after seven (7) days notice to the parties, giving them the opportunity to object to the introduction of additional evidence or to rebut or refute the additional evidence.

Section 17. The Appeal Board Final Order. The final order of the appeal board shall:

(1) Be duly signed by the secretary or members of the appeal board;

(2) Set forth in writing the facts on which the final order is based; and

(3) Be irrevocable in respect to the issue in the individual case unless the final order is set aside through the judicial review process pursuant to KRS 13B.140 and 13B.150.

Section 18. Medicaid Case Actions Following a Final Order.

(1) A Medicaid case action following a final order of a representative of the designated hearing agency's or the appeal board shall be made promptly and shall include:

(a) The month of application; or

(b) If it is established that the applicant or recipient was eligible during an entire period, the month in which the incorrect action of the department adversely affected the applicant or recipient.

(2) For a reversal involving an increase in patient liability, action shall be taken to reduce the patient liability within ten (10) days of the receipt of the final order.

Section 19. Medicaid Managed Care Provision of Services.

(1) A dispute resolution between a recipient and a partnership or managed behavioral health care organization shall be in accordance with 42 C.F.R. part 456.

(2) All other hearings or appeals relating to the Medicaid managed care provision of services shall be processed in accordance with 907 KAR 1:563.

Section 20. Limitation of Fees.

(1) Pursuant to KRS 205.237, the maximum fee that an attorney may charge the applicant or recipient for the representation in all categories of Medicaid shall be:

(a) Seventy-five (75) dollars for preparation and appearance at a hearing before a hearing officer;

(b) Seventy-five (75) dollars for preparation and presentation (brief included) of an appeal to the appeal board;

(c) $175 for preparation and presentation, including a pleading and appearance in court, of an appeal to the circuit court;

(d) $300 for preparatory work and briefs and all other matters incident to an appeal to the Court of Appeals.

(2) Enforcement of payment of the fee shall be a matter entirely between the counsel or agent and the recipient. The fee shall not be deducted from a public assistance payment otherwise due and payable to the recipient.

Section 21. Burden of Proof. The party bearing the burden of proof shall be determined in accordance with KRS 13B.090(7).

History

RELATES TO: KRS Chapter 13B, 205.231, 205.237, 205.520, 205.531, 42 C.F.R. 431 subpart E, 42 C.F.R. 431.233, 42 C.F.R. part 456, 42 U.S.C. 1396
STATUTORY AUTHORITY: KRS 194A.025(1), 194A.030(2), 194A.050(1), 205.531
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes provisions relating to the Medicaid grievance, hearing and appeal process regarding Medicaid eligibility issues.
History: 21 Ky.R. 2195; eff. 7-5-1996; Am. 24 Ky.R. 784; 1104; eff. 11-14-1997; 25 Ky.R. 655; 1055; eff. 10-21-1998.; 45 Ky.R. 1826, 2725, 2915; eff. 5-3-2019; Crt eff. 4-21-2026.

907 KAR 1:563 Medicaid covered services appeals and hearings unrelated to managed care {#sec-907-kar-1-563 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:563}

Section 1. Definitions.

(1) "1915(c) home and community based waiver service" means a service available or provided via a 1915(c) home and community based waiver services program.

(2) "1915(c) home and community based waiver services program" means a Kentucky Medicaid program established pursuant to and in accordance with 42 U.S.C. 1396n(c).

(3) "Administrative hearing" is defined by KRS 13B.010(2).

(4) "Appeal board" means the entity or individual designated by the secretary of the Cabinet for Health and Family Services to hear appeals of recommended orders or final orders following a decision by a representative of the designated hearing agency or hearing officer.

(5) "Applicant" means an individual who has applied for Medicaid covered services.

(6) "Authorized representative" means:

(a) For a recipient or applicant who is authorized by Kentucky law to provide written consent, an individual or entity acting on behalf of, and with written consent from, the recipient or the applicant; or

(b) A legal guardian.

(7) "Cabinet" means the Cabinet for Health and Family Services.

(8) "Department" means the Department for Medicaid Services or its designee.

(9) "Designated hearing agency" means the entity designated by the secretary of the Cabinet for Health and Family Services to adjudicate administrative hearings.

(10) "Enrollee" means a recipient who is enrolled with a managed care organization for the purpose of receiving Medicaid or Kentucky Children's Health Insurance Program covered services.

(11) "Final order" is defined by KRS 13B.010(6).

(12) "Hearing officer" is defined by KRS 13B.010(7), and includes a representative from a designated hearing agency.

(13) "ICF IID" means intermediate care facility for an individual with an intellectual disability.

(14) "Managed care organization" or "MCO" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(15) "Medicaid covered services" means items or services a Medicaid recipient may receive through the Medicaid Program.

(16) "Party" is defined by KRS 13B.010(3).

(17) "PASRR" means preadmission screening and resident review.

(18) "Patient liability" means the financial obligation of a recipient towards the cost of the recipient's nursing facility services or services provided pursuant to a 1915(c) waiver.

(19) "Provider" is defined by KRS 205.8451(7).

(20) "QIO" or "quality improvement organization" means an entity that meets the requirements established in 42 C.F.R. 475.101.

(21) "Recipient" is defined by KRS 205.8451(9).

(22) "Recommended order" is defined by KRS 13B.010(5).

(23) "Time-limited benefits" means Medicaid coverage which is restricted to a specified period in time.

Section 2. Informing the Recipient of Medicaid Coverage Administrative Hearing Rights.

(1) An applicant, recipient, or authorized representative shall be informed, in writing, of the applicant's or recipient's right to an administrative hearing if an adverse action is taken affecting covered services.

(2) An applicant, recipient, or authorized representative shall be informed of the method by which the applicant or recipient may obtain an administrative hearing and that the applicant or recipient may be represented by:

(a) Legal counsel;

(b) A relative;

(d) A spokesperson not listed in paragraph (a), (b), (c), (e), or (f) of this subsection;

(e) An authorized representative; or

(f) Himself or herself.

(3) An adverse action notice shall contain a statement of:

(a) The Medicaid adverse action;

(b) The reason for the action;

(d) An explanation of the circumstances under which payment for services shall be continued if an administrative hearing is requested in a timely manner pursuant to Section 5 of this administrative regulation.

Section 3. Notification Process.

(1) An adverse action notice regarding an applicant or a recipient shall be mailed to the applicant, recipient, or authorized representative of the applicant or recipient using:

(a) The United States Postal Service; and

(b) A return receipt requested format.

(2) Refusal by an applicant, a recipient, or an authorized representative to confirm receipt of an adverse action notice shall be considered receipt of the adverse action notice.

Section 4. Request for an Administrative Hearing.

(1) An applicant, recipient, or an authorized representative may request an administrative hearing by filing a written request with the department.

(2) If an applicant, recipient, or authorized representative requests an administrative hearing, the request shall:

(a) Be in writing and clearly specify the reason for the request;

(b) Indicate the date of service or type of service for which payments may be denied; and

(c) Be postmarked within thirty (30) calendar days from the date of the department's written notice of adverse action of:

Discontinuance of services;
Adverse determination made with regard to the PASRR requirements of 42 U.S.C. 1396r(e); or
Patient liability.

Section 5. Continuation of Medicaid Covered Services.

(1)

(a) Except as established in paragraphs (b) or (c) of this subsection or subsections (2), (3), or (4) of this section, if a request for an administrative hearing is postmarked or received within ten (10) days of the advance notice date of denial, the individual shall remain eligible for the care, program participation, or service denied until the date that the final order is rendered in accordance with Section 12 of this administrative regulation.

(b) The individual shall not remain eligible for the care, program participation, or service denied if:

a. It is determined at the administrative hearing that the sole issue is one of federal or state law or policy; and

b. The department promptly informs the individual in writing that the services shall be terminated or reduced pending the administrative hearing decision;

The individual's eligibility for time-limited benefits has expired; or
The individual receives in full the specified amount of care or number of services that were authorized by the department.

(c) Except as established in paragraph (d) of this subsection, a request for an amount of care or number of services subsequent to receiving a previously authorized amount of care or number of services in full shall not be considered a continuation of the previously authorized amount of care or number of services.

(d) The following shall qualify for continuation of services in accordance with paragraph (a) of this subsection if the care, program participation, or service was previously received by the individual within thirty (30) days of the request for continuation:

Denial that an individual meets patient status criteria to qualify for nursing facility services pursuant to 907 KAR 1:022;
Denial that an individual meets patient status criteria to qualify for ICF IID services pursuant to 907 KAR 1:022;
Denial that an individual meets nursing facility level of care criteria, nursing facility patient status criteria, or ICF IID patient status criteria pursuant to 907 KAR 1:022 to qualify for 1915(c) home and community based waiver services; or
Denial of a 1915(c) home and community based waiver service.

(2) Subsection (1) of this section shall not apply if the Medicaid Program service has been reduced or discontinued as a result of a change in law or administrative regulation.

(3) Time-limited benefits shall not be extended based on a request for an administrative hearing.

(4) If a request for an administrative hearing is postmarked or received from a recipient within ten (10) days of the advance notice of an adverse PASRR determination made in the context of a resident review, the department shall continue to reimburse for nursing facility services until the date that the final order is rendered.

Section 6. Notice of Scheduled Hearing.

(1) A scheduled administrative hearing notice shall contain:

(a) The date, time, and place of the scheduled administrative hearing; and

(b) A statement that the local Department for Community Based Services office provides information regarding the availability of free representation by legal aid or a welfare rights organization within the community.

(2) An administrative hearing shall be conducted within thirty (30) days of the date of the request for an administrative hearing unless otherwise authorized by the representative of the designated hearing agency.

(3) An applicant or recipient shall receive notice consistent with KRS 13B.050 including the right to:

(a) Legal counsel or other representation;

(b) Review the case record relating to the issue; and

(4)

(a) If an administrative hearing involves medical issues, a medical assessment by an independent physician participating in the Medicaid Program shall be obtained at the department's expense if the hearing officer considers it necessary based on case record review.

(b) If an independent physician assessment at the department's expense is requested by the recipient or authorized representative and is denied by the hearing officer, notification of the reason for denial shall be established in writing.

Section 7. Conduct of an Administrative Hearing.

(1) An administrative hearing shall be conducted in accordance with the requirements of KRS Chapter 13B.

(2) A hearing officer shall be impartial and shall disqualify himself or herself as required by KRS 13B.040.

(3) An administrative hearing shall be conducted in-state where the recipient or authorized representative may attend without undue inconvenience.

(4) A representative of the designated hearing agency shall offer to transmit a recommended order by electronic format.

(5) If necessary to receive full information on the issue, a representative of the designated hearing agency may examine each party who appears and the party's witnesses.

(6)

(a) A representative of the designated hearing agency may reopen the administrative hearing and take additional evidence as is deemed necessary.

(b) Evidence shall be taken in accordance with the provisions of KRS 13B.080 and 13B.090.

Section 8. Designation of Alternative Hearing Agency and Appeal Board.

(1) The secretary of the cabinet may:

(a) Select a designated hearing agency; or

(b) Create a designated hearing agency.

(2) A designated hearing agency shall:

(a) Be composed of cabinet employees who shall serve as hearing officers; and

(b) Follow all requirements established pursuant to KRS Chapter 13B.

(3) The secretary of the cabinet may:

(a) Select an appeals board; or

(b) Create an appeals board.

(4) An appeals board shall follow all requirements established pursuant to KRS Chapter 13B and KRS 194A.025.

Section 9. Withdrawal or Abandonment of Request.

(1) A recipient or authorized representative:

(a) May withdraw the appeal for an administrative hearing prior to the release of the hearing officer's decision; and

(b) Shall be granted the opportunity to discuss withdrawal with the recipient's legal counsel or authorized representative prior to finalizing the action.

(2) An administrative hearing request shall be considered abandoned if the recipient or authorized representative fails without prior notification to report for the administrative hearing.

Section 10. Recommended Order.

(1) After an administrative hearing is concluded, the hearing officer shall issue a recommended order in accordance with KRS 13B.110.

(2)

(a) A recommended order shall be issued within thirty (30) days of the administrative hearing date, except for a recommended order regarding:

A nursing facility level of care or patient status decision;
An ICF IID patient status decision;
A nursing facility level of care, nursing facility patient status, or ICF IID patient status decision related to 1915(c) home and community based waiver program participation; or
A 1915(c) home and community based waiver service.

(b) A recommended order regarding an item listed in paragraph (a) of this subsection shall be issued within fifteen (15) calendar days of the administrative hearing date.

(3)

(a) A copy of the recommended order shall be:

Mailed to each party in accordance with KRS 13B.110(4); or
Sent by electronic means to any party which requests, during the administrative hearing, that the order be sent by electronic means.

(b) If requested during the administrative hearing, a copy of the recommended order shall be electronically transmitted to a site specified by the applicant or recipient on the date the recommended order is rendered.

Section 11. Exceptions to a Recommended Order.

(1) Filing an exception to a recommended order shall be the same as filing a request for review of a local evidentiary hearing decision as established in 42 C.F.R. 431.233.

(2)

(a) A party may file an exception to a recommended order in accordance with KRS 13B.110(4).

(b) If a party wishes to file an exception to the recommended order, the exception shall be filed with the Cabinet for Health and Family Services, Division of Administrative Hearings within fifteen (15) days from the date that the recommended order is mailed.

Section 12. Final Order or Review of Recommended Order.

(1) The secretary of the Cabinet for Health and Family Services or other party authorized by KRS 13B.010 shall issue a final order:

(a) Within ninety (90) days from the date of the request for an administrative hearing; or

(b) As established in 42 C.F.R. 431.244(f).

(2)

(a) In accordance with 42 C.F.R. 431.233, unless a recipient requests a de novo hearing, the review of a recommended order shall consist of a cabinet level review of the record of the administrative hearing.

(b) If an exception to a recommended order was not filed, the information in the record considered in the cabinet level review or final order shall be limited to the information considered at the administrative hearing.

Evidence not presented at the hearing below; and
The evidentiary record of the fair hearing.

Section 13. Judicial Review of a Final Order.

(1) A further appeal at the circuit court level may be initiated within thirty (30) days from the date of mailing of the final order in accordance with KRS 13B.140 and 13B.150.

(2) Information regarding free legal aid and welfare rights organizations may be obtained in accordance with Section 6(1)(b) of this administrative regulation.

Section 14. Medicaid Case Actions Following Circuit Court Level Appeal Decision.

(1) For a reversal involving a reduction of Medicaid coverage, action shall be taken to restore services within ten (10) days of the receipt of the circuit court decision.

(2) If a recipient continues to:

(a) Remain in a nursing facility or an ICF IID during the circuit court appeal process, the department shall reimburse for the nursing facility services or ICF IID services which occurred during the circuit court appeal process; or

(b) Receive a 1915(c) home and community based waiver service during the circuit court appeal process, the department shall reimburse for the service which occurred during the circuit court appeal process.

Section 15. Special Procedures Relating to a Managed Care Participant.

(1) For an adverse action toward an enrollee regarding a service that is within the scope of managed care, the requirements governing the MCO internal appeal process and the department's hearing process for the enrollee shall be as established in 907 KAR 17:010.

(2) For an adverse action by the department toward an enrollee regarding a service that is not within the scope of managed care, the appeals policies and requirements established in this administrative regulation shall apply.

Section 16. Limitation of Fees.

(1) Pursuant to KRS 205.237, the maximum fee that an attorney may charge the applicant or recipient for the representation in all categories of Medicaid shall be:

(a) Seventy-five (75) dollars for preparation and appearance at a hearing before a hearing officer;

(b) $175 for preparation and presentation, including a pleading and appearance in court, of an appeal to the circuit court; or

Court of Appeals; or
Supreme Court of Kentucky.

(2)

(a) Enforcement of payment of a fee shall:

Not be a matter for the department or the cabinet; and
Be a matter between the counsel or agent and the recipient.

(b) The fee shall not be deducted from a public assistance payment otherwise due and payable to the recipient.

(3)

(a) The fee limitations stated in subsection (1) of this section shall:

Apply to the amount an attorney may charge a recipient or applicant; and
Not apply to the amount an attorney may collect from another entity or person who represents the recipient or applicant in all categories of Medicaid.

(b) The amount an attorney may collect from an entity or person who is not a recipient or applicant for representing the recipient or applicant in all categories of Medicaid shall:

Be a matter between the attorney and other entity or person; and
Not be a matter that involves the department or cabinet.

Section 17. Hearings and Appeals for Individuals with an Intellectual Disability Residing in State Institutions. A hearing or an appeal relating to a decision to reclassify or transfer a person with an intellectual disability in a state institution shall be in accordance with the requirements of KRS 210.270 and 907 KAR 1:075.

Section 18. Burden of Proof. The party bearing the burden of proof shall be determined in accordance with KRS 13B.090(7).

History

RELATES TO: KRS Chapter 13B, 194A.025, 205.231, 205.237, 205.520, 205.8451, 210.270 42 C.F.R. 431.233, 431.244, Part 475, 475.101, 483.2, 483.12, 431 Subpart E, 483 Subpart E, 42 U.S.C. 1396n(c)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(2) and (3), 205.6315, 42 U.S.C. 1396
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has responsibility to administer the Medicaid Program. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed or opportunity presented by federal law to qualify for federal Medicaid funds. This administrative regulation establishes policies and requirements relating to an adverse action, an appeal, or a hearing regarding Medicaid covered services that are not the responsibility of a managed care organization.
History: 25 Ky.R. 731; Am. 1058; eff. 10-21-98; 40 Ky.R. 610; 1289; eff. 1-3-2014; 45 Ky.R. 1830, 2729, 2918; eff. 5-3-2019; TAm eff. 3-20-2020; Crt eff. 4-21-2026.

907 KAR 1:575 Compliance with laboratory certification requirements {#sec-907-kar-1-575 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:575}

Section 1. Definitions.

(1) "Certificate" means the appropriate certificate of waiver, certificate of registration, or certificate of accreditation issued by the United States Department of Health and Human Services (HHS) which authorizes the performance of laboratory testing by a provider of medical services.

(2) "Medicaid provider" means a participating provider of medical services under the Medicaid Program.

(3) "State-exempt" means the state laboratory licensing program has been approved by HHS.

Section 2. Requirement for Certification. Any provider of laboratory testing services participating in the Medicaid Program shall comply with certification requirements specified in 42 CFR Part 493 unless the state's licensure program has been approved by the HHS and the provider is appropriately licensed or certified under the state-exempt licensing program.

Section 3. Issues Related to Certification Requirements.

(1) A provider must have a current, valid certificate in order to provide laboratory testing under the Medicaid Program.

(2) A Medicaid provider may perform Medicaid covered laboratory services for Medicaid eligible individuals only to the extent authorized by the provider's certificate.

(3) Any service not covered by the Medicaid provider's certificate shall not be considered a covered Medicaid service.

(4) Any services not considered a covered Medicaid service shall not be paid for by the Medicaid Program.

(5) Payments for laboratory testing shall be made without proof of certification for the period December 1, 1992 through December 31, 1992, with payments subject to recovery if the provider does not subsequently receive and show proof of certification for that period of time. Claims for laboratory testing performed after December 31, 1992, shall be denied unless the appropriate certification has been obtained. If a request for certification is not made, is rejected, or when approved does not cover the provision of the laboratory test(s) for which payment has been made, the provider shall immediately refund all payments for the noncovered laboratory service(s).

(6) The provisions of this administrative regulation relate to covered laboratory testing which is otherwise provided for by Medicaid administrative regulations.

Section 4. State-exempt Laboratory Licensing Program.

(1) If the state has a state-exempt laboratory licensing program, the requirements contained in this administrative regulation shall apply with regard to certifications from the state's licensing program.

(2) Providers licensed under a state-exempt program are not required to obtain a certificate issued by HHS.

Section 5. Effective Date. The provisions of this administrative regulation shall be effective with regard to services provided on or after December 1, 1992.

History

RELATES TO: KRS 205.520, 42 C.F.R. 493, 42 U.S.C. 1396a-d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the program of medical assistance. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth provisions relating to compliance by Medicaid providers with requirements for certification for performance of laboratory testing and implements the Clinical Laboratory Improvement Amendments of 1988.
History: 19 Ky.R. 1505; eff. 1-27-1993; Crt eff. 12-6-2019.

907 KAR 1:585 Estate recovery {#sec-907-kar-1-585 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:585}

Section 1. Definitions.

(1) "Aged institutionalized individual" means a recipient age fifty-five (55) or older who received nursing facility (NF) services, intermediate care facility for individuals with an intellectual disability (ICF-IID) services, home and community based (HCB) waiver services, supports for community living (SCL) services, acquired brain injury (ABI) waiver services, ABI long-term care waiver services, or Michelle P. waiver services with payment for these services made, wholly or in part, by the Medicaid Program.

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Estate" means:

(a) All real and personal property or other assets owned by the deceased recipient that would be included as probate property under Kentucky law; and

(b) All real and personal property or other assets in which the deceased recipient had legal title or interest at the time of death, to the extent of the recipient's interest, whether the asset was conveyed to a survivor, heir or assign of the deceased recipient through joint tenancy, tenancy in common survivorship, life estate, living trust or other arrangement.

(4) "Estate representative" means the court appointed fiduciary or the fiduciary's attorney, the recipient family member or other interested party who represents to the department in writing that he or she is the representative for the estate.

(5) "Long-term care partnership insurance" is defined by KRS 304.14-640(4).

(6) "Long-term care partnership insurance policy" means a policy meeting the requirements established in KRS 304.14-642(2).

(7) "Period of institutionalization" means the period of time an aged institutionalized or permanently institutionalized individual received Medicaid services.

(8) "Permanently institutionalized" means residing in a nursing facility or intermediate care facility for individuals with an intellectual disability for six (6) months or more.

(9) "Recipient family member" means the surviving spouse, child or sibling of a deceased recipient.

(10) "State plan" is defined by 42 C.F.R. 400.203.

(11) "Surviving child" means a living child under age twenty-one (21) or a child who is blind or disabled as defined in 42 U.S.C. 1382c.

Section 2. Recovery.

(1) The department shall seek recovery from the estate of a deceased recipient for a period of institutionalization.

(2) The amount recovered shall not exceed the amount paid by the Medicaid Program on behalf of the deceased recipient for services received during a period of institutionalization.

(3) The amount subject to recovery shall include:

(a) The expenditures for:

NF services pursuant to 907 KAR 1:022;
ICF-IID services pursuant to 907 KAR 1:022;
Home and community based (HBC) waiver services pursuant to 907 KAR 1:160;
Supports for community living (SCL) services pursuant to 907 KAR 1:145;
Acquired brain injury (ABI) waiver services pursuant to 907 KAR 3:090;
ABI long-term care waiver services pursuant to 907 KAR 3:210; or
Michelle P. waiver services pursuant to 907 KAR 1:835; or

(b) Other costs for:

Related prescription drugs, hospital services, and related physician services; or
Medicare cost sharing or Medicare premiums.

(4) The amount subject to recovery shall include a capitation payment made by the Medicaid Program to a managed care organization on behalf of the deceased recipient.

Section 3. Exemptions and Limitations.

(1) Recovery shall not be made from the estate if the estate representative can verify to the department's satisfaction that there is a:

(a) Surviving spouse; or

(b) Surviving child.

(2) Recovery shall not be made from the estate on any resources protected from consideration during the eligibility determination process based on payment issued by a long-term care partnership insurance policy.

(3) The department shall waive estate recovery to the extent the recovery would work an undue hardship.

(a) Undue hardship shall exist if an asset subject to recovery is the sole income-producing asset, for example a family farm or business, conveyed to the surviving recipient family member. A sole income-producing asset shall not include residential real property producing income through a lease or rental arrangement.

(b) The estate representative shall apply for an undue hardship exemption by:

Making a written request to the department within thirty (30) days of receipt of the notice provided in accordance with Section 7(3)(a) of this administrative regulation; and
Verifying to the department's satisfaction that the criteria specified in paragraph (a) of this subsection exists for an undue hardship.

(c) The department shall issue a decision on an undue hardship exemption request within thirty (30) days of receipt of the request and supporting documentation.

(d)

If the department denies the estate representative's request for an undue hardship exemption, the estate representative may request an appeal.
If an appeal is requested, an administrative hearing shall be conducted in accordance with 907 KAR 1:563, Section 4, and KRS Chapter 13B.

(e) The department shall not conclude that an undue hardship exists if the deceased recipient created the hardship by resorting to estate planning methods under which the recipient illegally divested assets to avoid estate recovery.

(4)

(a) The department may waive recovery if it is not cost effective to recover from the estate.

(b) The department shall not consider it to be cost effective to recover from an estate if the total date-of-death value of the estate subject to recovery is:

Less than the administrative cost of recovering from the estate; or
$10,000 or less.

(5)

(a) The department may grant an exemption of the recovery provisions on a case-by-case basis to the extent of the anticipated cost of continuing education or health care needs of an estate heir.

(b) The estate representative shall submit to the department a written request for an exemption and provide verification to the satisfaction of the department.

(6)

(a) A deceased recipient's estate shall be subject to recovery of Medicaid Program expenditures to the extent it is adjudicated through a final administrative appeal process or court action that the recipient qualified for Medicaid fraudulently.

(b) If the recipient qualified for Medicaid fraudulently, the exemptions or limitations established in this section shall not apply.

Section 4. Notification.

(1) A general written notice regarding estate recovery shall be provided by the department to an aged institutionalized or permanently institutionalized individual, or an authorized representative acting on his or her behalf, at the time the individual requests coverage of NF services, ICF-IID services, HCB waiver services, SCL services, ABI waiver services, ABI long-term care waiver services, or Michelle P. waiver services under the Medicaid Program.

(2) When an aged institutionalized or permanently institutionalized individual who is receiving NF services, ICF-IID services, HCB waiver services, SCL services, ABI waiver services, ABI long-term care waiver services, or Michelle P. waiver services under the Medicaid Program dies, the Medicaid provider from which the recipient was receiving institutionalized services at the time of death shall be responsible for reporting the death to the local Department for Community Based Services office within ten (10) days of the date of death.

(3)

(a) Upon receipt of the notice of death specified in subsection (2) of this section, the department shall prepare and serve written notice of its intent to recover upon the estate representative.

(b) The estate representative shall be responsible for notifying individuals who are affected by the proposed recovery.

(c) If no estate representative exists, notice shall be provided to the family members or heirs if the recipient has provided the department with this information through the eligibility application process.

(4) The notice of intent to recover shall include:

(a) The action the department intends to initiate;

(b) The reason for the action;

(d) Conditions that are considered an undue hardship exemption as specified in Section 3(3) of this administrative regulation;

(e) Procedures for applying for an undue hardship exemption as specified in Section 3(3) of this administrative regulation;

(f) The total amount subject to recovery; and

(g) The procedure for appealing a denial of an undue hardship exemption request.

History

RELATES TO: KRS 205.520, 205.619, 304.14-640, 42 C.F.R. 430.10, 435.236, 42 U.S.C. 1396p(b)(1)-(4)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has responsibility to administer the Medicaid Program. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. 42 U.S.C. 1396p(b)(1)-(4) establishes minimum requirements for state plans for estate recovery actions. This administrative regulation establishes provisions relating to estate recovery.
History: 20 Ky.R. 1741; 2348; eff. 2-2-1994; 22 Ky.R. 632; eff. 10-19-1995; 1114; 1531; eff. 1-5-2004; 35 Ky.R. 1637; 1802; 2747; eff. 7-6-2009; TAm 7-16-2013; TAm 9-26-14; Crt eff. 12-6-2019.

907 KAR 1:595 Model Waiver II service coverage and reimbursement policies and requirements {#sec-907-kar-1-595 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:595}

Section 1. Definitions.

(1) "1915(c) home and community based waiver program" means a Kentucky Medicaid program established pursuant to and in accordance with 42 U.S.C. 1396n(c).

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Federal financial participation" is defined in 42 C.F.R. 400.203.

(4) "Home health agency" means an agency that is:

(a) Licensed in accordance with 902 KAR 20:081;

(b) Medicare certified; and

(5) "Licensed practical nurse (LPN)" is defined by KRS 314.011(9).

(6) "Model Waiver II services" means 1915(c) home and community based waiver program in-home ventilator services provided to a Medicaid-eligible recipient who:

(a) Is dependent on a ventilator; and

(b) Would otherwise require a nursing facility level of care in a hospital based nursing facility that will accept a recipient who is dependent on a ventilator.

(7) "MWMA" means the Kentucky Medicaid Waiver Management Application internet portal located at https://www.chfs.ky.gov/agencies/dms/dca/Pages/mwma.aspx.

(8) "Participant" means a recipient who qualifies for and is receiving Model Waiver II services in accordance with Section 2 of this administrative regulation.

(9) "Person-centered service plan" means a written individualized plan of services.

(10) "Private duty nursing agency" means a facility licensed to provide private duty nursing services:

(a) By the Cabinet for Health and Family Services, Office of Inspector General; and

(b) Pursuant to 902 KAR 20:370.

(11) "Recipient" is defined by KRS 205.8451(9).

(12) "Registered nurse (RN)" is defined by KRS 314.011(5).

(13) "Registered respiratory therapist (RT)" is defined by KRS 314A.010(3)(a).

(14) "Ventilator" means a respiration stimulating mechanism.

(15) "Ventilator dependent" means the condition or state of an individual who:

(a) Requires the aid of a ventilator for respiratory function; and

(b) Meets the high intensity nursing facility patient status criteria established in 907 KAR 1:022.

Section 2. Participant Eligibility and Related Policies.

(1)

(a) To be eligible to receive Model Waiver II services, an individual shall:

Be eligible for Medicaid pursuant to 907 KAR 20:010;
Require ventilator support for at least twelve (12) hours per day; and
Meet ventilator dependent patient status requirements established in 907 KAR 1:022.

(b) In addition to the individual meeting the requirements established in paragraph (a) of this subsection:

The individual or a representative on behalf of the individual shall:

a. Apply for 1915(c) home and community based waiver services via the MWMA;

b. Complete and upload into the MWMA a MAP - 115 Application Intake - Participant Authorization; and

c. Complete and upload into the MWMA a MAP - 116 Service Plan – Participant Authorization prior to or at the time the person-centered service plan is uploaded into the MWMA; and

A registered nurse on behalf of the individual applying for services shall:

a. Complete and upload into the MWMA:

(i) A MAP 350, Long Term Care Facilities and Home and Community Based Program Certification Form;

(ii) A person-centered service plan; and

(iii) A MAP-351A, Medicaid Waiver Assessment; and

b. Upload a MAP-10, Waiver Services – Physician's Recommendation, which shall be signed and dated by a physician.

(c) An individual's eligibility for Model Waiver II services shall begin upon receiving notification of approval from the department.

(2) For an individual to remain eligible for Model Waiver II services:

(a) The individual shall:

Maintain Medicaid eligibility requirements established in 907 KAR 20:010; and
Remain ventilator dependent pursuant to 907 KAR 1:022;

(b) A Model Waiver II level of care determination confirming that the individual qualifies shall be performed and submitted to the department every six (6) months; and

Signed and dated by a physician every sixty (60) days on behalf of the individual; and
Uploaded into the MWMA after being signed and dated in accordance with subparagraph 1 of this paragraph, every sixty (60) days.

(3) A Model Waiver II service shall not be provided to a recipient who is:

(a) Receiving a service in another 1915(c) home and community based waiver program; or

(b) An inpatient of:

A nursing facility;
An intermediate care facility for individuals with an intellectual disability; or
Another facility.

(4) The department shall not authorize a Model Waiver II service unless it has ensured that:

(a) Ventilator dependent status has been met; and

(b) The service:

Is available to the recipient;
Will meet the need of the recipient; and
Does not exceed the cost of traditional institutional ventilator care.

Section 3. Provider Participation Requirements. To participate in the Model Waiver II program, a:

(1) Home health agency shall:

(a) Be a currently participating Medicaid provider in accordance with 907 KAR 1:671;

(b) Be currently enrolled as a Medicaid provider in accordance with 907 KAR 1:672; and

907 KAR 1:160; or
907 KAR 7:010; or

(2) Private duty nursing agency shall:

(a) Be a currently participating Medicaid provider in accordance with 907 KAR 1:671;

(b) Be currently enrolled as a Medicaid provider in accordance with 907 KAR 1:672; and

Section 4. Covered Services.

(1) The following shall be covered Model Waiver II services:

(a) Skilled nursing provided by:

A registered nurse; or
A licensed practical nurse; or

(b) Respiratory therapy.

(2) Model Waiver II services shall be provided by an individual employed by or under contract through a private duty nursing agency or home health agency as a:

(a) Registered nurse;

(b) Licensed practical nurse; or

Section 5. Payment for Services. The department shall reimburse a participating home health agency or private duty nursing agency for the provision of covered Model Waiver II services as established in this section.

(1) Reimbursement shall be as established by the following table:

(2) Payment shall not be made for a service to an individual for whom it can reasonably be expected that the cost of the 1915(c) home and community based waiver program service furnished under this administrative regulation would exceed the cost of the service if provided in a hospital-based nursing facility.

Section 6. Maintenance of Records.

(1) A Model Waiver II service provider shall maintain:

(a) A clinical record for each participant, which shall contain:

Pertinent medical, nursing, and social history;
A person-centered service plan;
A copy of the MAP 350, Long Term Care Facilities and Home and Community Based Program Certification Form, signed by the participant or the participant's legal representative at the time of application or reapplication and each recertification thereafter;
Documentation of all level of care determinations;
All documentation related to prior authorizations including requests, approvals, and denials;
Documentation that the participant or legal representative was informed of the procedure for reporting complaints; and
Documentation of each service provided that shall include:

a. The date the service was provided;

b. The duration of the service;

c. The arrival and departure time of the provider, excluding travel time, if the service was provided at the participant's home;

d. Progress notes, which shall include documentation of changes, responses, and treatments utilized to evaluate the participant's needs; and

e. The signature of the service provider;

(b) Each MAP-10 Waiver Services – Physician's Recommendation submitted regarding the participant in accordance with Section 2 of this administrative regulation; and

(c) Incident reports as required by Section 7 of this administrative regulation if an incident with the participant occurs.

(2)

(a) Except as provided in paragraph (b) of this subsection, a clinical record or incident report shall be retained for at least six (6) years from the date that a covered service is provided.

(b) If the participant is a minor, a clinical record or incident report shall be retained for three (3) years after the participant reaches the age of majority under state law, if that is a longer time period than the time period required by paragraph (a) of this subsection.

(3) Upon request, a provider shall make information regarding service and financial records available to the:

(a) Department;

(b) Cabinet for Health and Family Services, Office of Inspector General or its designee;

(d) General Accounting Office or its designee;

(e) Office of the Auditor of Public Accounts or its designee; or

(f) Office of the Attorney General or its designee.

Section 7. Incident Reporting.

(1)

(a) There shall be two (2) classes of incidents.

(b) The following shall be the two (2) classes of incidents:

An incident; or
A critical incident.

(2) An incident shall be any occurrence that impacts the health, safety, welfare, or lifestyle choice of a participant and includes:

(a) A minor injury;

(b) A medication error without a serious outcome; or

(3) A critical incident shall be an alleged, suspected, or actual occurrence of an incident that:

(a) Can reasonably be expected to result in harm to a participant; and

(b) Shall include:

Abuse, neglect, or exploitation;
A serious medication error;
Death;
A homicidal or suicidal ideation;
A missing person; or
Other action or event that the provider determines may result in harm to the participant.

(4)

(a) If an incident occurs, the Model Waiver II provider shall:

Report the incident by making an entry into the MWMA that includes details regarding the incident; and
Be immediately assessed for potential abuse, neglect, or exploitation.

(b) If an assessment of an incident indicates that the potential for abuse, neglect, or exploitation exists:

The incident shall immediately be considered a critical incident;
The critical incident procedures established in subsection (5) of this section shall be followed; and
The Model Waiver II provider shall report the incident to the participant's registered nurse and participant's guardian, if the participant has a guardian, within twenty-four (24) hours of discovery of the incident.

(5) If a critical incident occurs, the:

(a) Individual who witnessed the critical incident or discovered the critical incident shall immediately:

Act to ensure the health, safety, and welfare of the at-risk participant; and
Report the critical incident by making an entry in the MWMA portal including details of the incident; and

(b) Model Waiver II provider shall:

Conduct an immediate investigation and involve the participant's registered nurse in the investigation; and
Prepare a report of the investigation, which shall be recorded in the MWMA portal and shall include:

a. Identifying information of the participant involved in the critical incident and the person reporting the critical incident;

b. Details of the critical incident; and

c. Relevant participant information including:

(i) A listing of recent medical concerns;

(ii) An analysis of causal factors; and

(iii) Recommendations for preventing future occurrences.

(6) If a critical incident does not require reporting of abuse, neglect, or exploitation, the critical incident shall be reported via the MWMA within eight (8) hours of discovery.

(7) If a death of a participant occurs, a Model Waiver II provider shall submit to the MWMA mortality data documentation within fourteen (14) days of the death including:

(a) The participant's person-centered service plan at the time of death;

(b) Any current assessment forms regarding the participant;

(c) The participant's medication administration records from all service sites for the past three (3) months along with a copy of each prescription;

(d) Progress notes regarding the participant from all service elements for the past thirty (30) days;

(e) The results of the participant's most recent physical exam;

(f) All incident reports, if any exist, regarding the participant for the past six (6) months;

(g) Any medication error report, if any exists, related to the participant for the past six (6) months;

(h) A full life history of the participant including any update from the last version of the life history;

(i) Names and contact information for all staff members who provided direct care to the participant during the last thirty (30) days of the participant's life;

(j) Emergency medical services notes regarding the participant if available;

(k) The police report if available;

(l) A copy of:

The participant's advance directive, medical order for scope of treatment, living will, or health care directive if applicable; and
The cardiopulmonary resuscitation and first aid card for any provider's staff member who was present at the time of the incident that resulted in the participant's death;

(m) A record of all medical appointments or emergency room visits by the participant within the past twelve (12) months; and

(n) A record of any crisis training for any staff member present at the time of the incident that resulted in the participant's death.

(8) A Model Waiver II provider shall report a medication error by making an entry into the MWMA.

Section 8. Use of Electronic Signatures. 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.

Section 9. Federal Financial Participation. The department's coverage of and reimbursement for Model Waiver II services pursuant to this administrative regulation shall be contingent upon:

(1) Federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval for the coverage and reimbursement.

Section 10. Appeal Rights.

(1) An appeal of a negative action regarding a Medicaid recipient shall be appealed in accordance with 907 KAR 1:563.

(2) An appeal of a negative action regarding a Medicaid beneficiary's eligibility shall be appealed in accordance with 907 KAR 1:560.

(3) An appeal of a negative action regarding a Medicaid provider shall be appealed in accordance with 907 KAR 1:671.

Section 11. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "MAP - 115 Application Intake - Participant Authorization", June 2015;

(b) "MAP 350, Long Term Care Facilities and Home and Community Based Program Certification Form", June 2015;

(d) "MAP - 116 Service Plan – Participant Authorization", June 2015; and

(e) MAP-351A, Medicaid Waiver Assessment", July 2015.

(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/mIIws.aspx.

History

RELATES TO: KRS 205.8451(9), 314.011, 314A.010(3)(a), 42 C.F.R. 400.203, 42 C.F.R. 440.70, 440.185, 42 U.S.C. 1396, 42 U.S.C. 1396n(c)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 U.S.C. 1315
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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, to qualify for federal Medicaid funds. This administrative regulation establishes the service coverage and reimbursement policies and requirements relating to Model Waiver II services provided to a Medicaid-eligible recipient. These services are provided pursuant to a 1915(c) home and community based waiver granted by the U. S. Department for Health and Human Services in accordance with 42 U.S.C. 1396n(c).
History: 907 KAR 001:595. 24 Ky.R. 2788, 25 Ky.R. 585, 863; eff. 9-16-1998; 38 Ky.R. 697, 968; eff. 12-2-11; 39 Ky.R. 2438; eff. 9-6-2013; TAm 9-30-2013; 42 Ky.R. 968, 2150; eff. 2-5-2016; Cert eff. 1-30-2023; 51 Ky.R. 1558; eff. 7-30-2025.

Section 1. Definitions.

(1) "Copayment" means a dollar amount representing the portion of the cost of a Medicaid benefit that a recipient is required to pay.

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Enrollee" means a Medicaid recipient who is enrolled with a managed care organization.

(4) "Managed care organization" or "MCO" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(5) "Recipient" is defined by KRS 205.8451(9).

Section 2. Copayment General Provisions and Exemptions.

(1) Pursuant to KRS 205.6312, the department or any MCO shall not utilize or require cost-sharing or copayments within any component of the Medicaid program.

(2) A provider shall not collecta copayment from an enrollee for a service or item.

Section 3. Freedom of Choice.

(1) In accordance with 42 C.F.R. 431.51, a recipient who is not an enrollee may obtain services from any qualified provider who is willing to provide services to that particular recipient.

(2) A managed care organization may restrict an enrollee's choice of providers to the providers in the provider network of the managed care organization in which the enrollee is enrolled except as established in:

(a) 42 C.F.R. 438.52; or

(b) 42 C.F.R. 438.114(c).

Section 4. Appeal Rights. An appeal of a department decision regarding the Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

Section 5. Federal Approval and Federal Financial Participation. The department's copayment provisions and any coverage of services established in this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation; and

(2) Centers for Medicare and Medicaid Services' approval.

Section 6. This administrative regulation was found deficient by the Administrative Regulation Review Subcommittee on May 13, 2014.

History

RELATES TO: KRS 205.560, 205.6312, 205.6485, 205.8451, 319A.010, 327.010, 334A.020, 42 C.F.R. 430.10, 431.51, 447.15, 447.20, 447.21, 447.50, 447.52, 447.54, 447.55, 447.56, 447.57, 457.224, 457.310, 457.505, 457.510, 457.515, 457.520, 457.530, 457.535, 457.570, 42 U.S.C. 1396a, 1396b, 1396c, 1396d, 1396o, 1396r-6, 1396r-8, 1396u-1, 1397aa -1397jj
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3),, 205.6485(1), 42 C.F.R. 431.51, 447.15, 447.50-447.90, 457.535, 457.560, 42 U.S.C. 1396r-6(b)(5)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 prohibits cost-sharing within the Medicaid program, and extends theKRS 205.6312 prohibition of cost-sharing to providers as well as the department and managed care organizations.
History: 29 Ky.R. 1458; 2201; 2478; eff. 4-11-2003; 30 Ky.R. 1117; 1533; eff. 2-16-2004; 32 Ky.R. 417; 925; 1111; eff. 1-6-2006; 33 Ky.R. 607; 1386; 1568; eff. 1-5-2007; 34 Ky.R. 1840; 2117; eff. 4-4-2008; TAm eff. 7-16-2013; TAm eff. 8-7-2013; TAm eff. 9-30-2013; 40 Ky.R. 1991; 2524; 2749; eff. 7-7-2014; TAm eff. 10-6-2017; 46 Ky.R. 512, 937; eff. 10-4-2019; 47 Ky.R. 350; 729; eff. 11-19-2020; 48 Ky.R. 1414; eff. 1-13-2022.

907 KAR 1:615 Supplemental policy for the Medicaid Program {#sec-907-kar-1-615 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:615}

Section 1. Material Incorporated by Reference.

(1) The following material necessary to the administration of the Medicaid Program is incorporated by reference:

(a) Field Services Operation Manual Volume I, effective November 1993;

(b) Field Services Operation Manual Volume IV, effective November 1993; and

(2) This material may be reviewed Monday through Friday between the hours of 8 a.m. and 4:30 p.m., eastern time, in the Office of the Commissioner, Department for Medicaid Services, 275 East Main Street, Frankfort, Kentucky 40621. Copies may be obtained from that office upon payment of an appropriate fee which shall not exceed approximate cost.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 U.S.C. 1396a, b, d, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the Medicaid Program. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation incorporates into regulatory form, by reference, materials used by the cabinet in the implementation of the Medicaid Program. The content of this administrative regulation shall be considered the agency statement of policy and procedures with regard to issues not otherwise addressed in Kentucky administrative regulations.
History: 20 Ky.R. 2305; eff. 3-8-1994; Crt eff. 12-6-2019.

907 KAR 1:626 Reimbursement of dental services {#sec-907-kar-1-626 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:626}

Section 1. Definitions.

(1) "Current Dental Terminology" or "CDT" means a publication by the American Dental Association of codes used to report dental procedures or services.

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Federal financial participation" is defined in 42 C.F.R. 400.203.

(4) "Incidental" means that a medical procedure:

(a) Is performed at the same time as a primary procedure; and

(b)

Requires little additional practitioner resources; or
Is clinically integral to the performance of the primary procedure.

(5) "Integral" means that a medical procedure represents a component of a more complex procedure performed at the same time.

(6) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(7) "Manually priced" or "MP" means that a procedure is priced according to complexity.

(8) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(9) "Mutually exclusive" means that two (2) procedures:

(a) Are not reasonably performed in conjunction with one (1) another during the same patient encounter on the same date of service;

(b) Represent two (2) methods of performing the same procedure;

(d) Are described in CDT as inappropriate coding of procedure combinations.

(10) "Provider" is defined in KRS 205.8451(7).

(11) "Recipient" is defined in KRS 205.8451(9).

(12) "Timely filing" means receipt of a claim by Medicaid:

(a) Within twelve (12) months of the date the service was provided;

(b) Within twelve (12) months of the date retroactive eligibility was established; or

(13) "Usual and customary charge" means the uniform amount which the individual dentist charges in the majority of cases for a specific dental procedure or service.

Section 2. General Requirements. For the department to reimburse for a dental service or item, the service or item shall be:

(1) Provided:

(a) To a recipient; and

(b) By a provider who meets the conditions of participation requirements established in 907 KAR 1:026;

(2) Covered in accordance with 907 KAR 1:026;

(3) Medically necessary; and

(4) A service or item authorized within the scope of the provider's licensure.

Section 3. Reimbursement.

(1) Except as established in Section 4 or 5 of this administrative regulation, reimbursement for a covered service shall be the lesser of the:

(a) Dentist's usual and customary charge;

(b) Reimbursement limits specified in this section;

(d) Amount established on the DMS Dental Fee Schedule.

(2) If a rate has not been established for a covered dental service, the department shall set an upper limit for the procedure by:

(a) Averaging the reimbursement rates assigned to the service by three (3) other payer or provider sources; and

(b) Comparing the calculated average obtained from these three (3) rates to rates of similar procedures paid by the department.

(3) If cost sharing is required, the cost sharing shall be in accordance with 907 KAR 1:604.

(4) For a service covered under Medicare Part B, reimbursement shall be in accordance with 907 KAR 1:006.

(5) A service which is not billed within timely filing requirements shall not be reimbursed.

(6) If performed concurrently, separate reimbursement shall not be made for a procedure that has been determined by the department to be incidental, integral, or mutually exclusive to another procedure.

Section 4. Oral Surgeons.

(1) A dental service that is covered by the Kentucky Medicaid Program and provided by an oral surgeon shall be reimbursed in accordance with this administrative regulation unless the given service is:

(a) Not reimbursed pursuant to this administrative regulation; and

(b) Reimbursed pursuant to 907 KAR 3:010.

(2) A dental service that is covered by the Kentucky Medicaid Program and provided by an oral surgeon but not reimbursed pursuant to this administrative regulation shall be reimbursed in accordance with 907 KAR 3:010.

Section 5. Supplemental Payments.

(1) In addition to a payment made pursuant to Section 3 of this administrative regulation, the department shall make a supplemental payment to a dental school faculty dentist who is employed by a state-supported school of dentistry in Kentucky.

(2) The supplemental payment shall be:

(a) In an amount that, if combined with other payments made in accordance with this administrative regulation, does not exceed the dentist's charge for the service the dentist has provided:

As a dental school faculty; and
For which the payment is made directly or indirectly to the dental school;

(b) Based on the funding made available through an intergovernmental transfer of funds for this purpose by a state-supported school of dentistry in Kentucky; and

Section 6. Not Applicable to Managed Care Organizations. A managed care organization shall not be required to reimburse in accordance with:

(1) This administrative regulation for a service covered pursuant to:

(a) 907 KAR 1:026; and

(b) This administrative regulation; or

(2) 907 KAR 3:010 for a service referenced in Section 5 of this administrative regulation that is reimbursed by the department in accordance with 907 KAR 3:010.

Section 7. Federal Approval and Federal Financial Participation. The department's reimbursement for services pursuant to this administrative regulation shall be contingent upon:

(1) Federal financial participation for the reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval of the reimbursement.

Section 8. Appeal Rights. An appeal of a department decision regarding a Medicaid provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

Section 9. Incorporation by Reference.

(1) "DMS Dental Fee Schedule", December 2015, 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, Monday through Friday, 8 a.m. to 4:30 p.m.; or

(b) Online at the department's Web site located at http://www.chfs.ky.gov/dms/incorporated.htm.

History

RELATES TO: KRS 205.520, 42 C.F.R. 440.100, 447.200-205, 42 U.S.C. 1396a-d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has the 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 reimbursement policies and requirements for covered dental services provided to a Medicaid recipient who is not enrolled with a managed care organization.
History: 21 Ky.R. 217; eff. 9-21-1994; Am. 25 Ky.R. 659; 1383; eff. 11-18-1998; 27 Ky.R. 1102; 1492; eff. 12-21-2000; 28 Ky.R. 962; eff. 12-19-2001; 30 Ky.R. 1645; 1945; eff. 2-16-2004; 33 Ky.R. 613; 1393; 1575; eff. 1-5-2007; 35 Ky.R. 442; eff. 10-31-2008; 42 Ky.R. 155; 1234; 2153; eff. 2-5-2016; Cert. eff. 1-30-2023.

907 KAR 1:631 Vision Program reimbursement provisions and requirements {#sec-907-kar-1-631 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:631}

Section 1. Definitions.

(1) "CPT code" means a code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Enrollee" means a recipient who is enrolled with a managed care organization.

(4) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(5) "Healthcare Common Procedure Coding System" or "HCPCS" means a collection of codes acknowledged by the Centers for Medicare and Medicaid Services (CMS) that represents procedures or items.

(6) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(7) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(8) "Ophthalmic dispenser" means an individual who is qualified to engage in the practice of ophthalmic dispensing in accordance with KRS 326.030 or 326.040.

(9) "Optometrist" means an individual who is licensed as an optometrist in accordance with KRS Chapter 320.

(10) "Provider" is defined by KRS 205.8451(7).

(11) "Recipient" is defined by KRS 205.8451(9).

(12) "Usual and customary charge" means the uniform amount the provider charges in the majority of cases for the service or item.

Section 2. General Requirements.

(1) For the department to reimburse for a vision service or item, the requirements established in 907 KAR 1:632 and this administrative regulation shall be met.

(2)

(a) If a procedure is part of a comprehensive service, the department shall:

Not reimburse separately for the procedure; and
Reimburse one (1) payment representing reimbursement for the entire comprehensive service.

(b) A provider shall not bill the department multiple procedures or procedural codes if one (1) CPT code or HCPCS code is available to appropriately identify the comprehensive service provided.

(3)

(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:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

(4) The department shall not reimburse for:

(a) A service with a CPT code that is not listed on the Department for Medicaid Services Vision Program Fee Schedule; or

(b) An item with an HCPCS code that is not listed on the Department for Medicaid Services Vision Program Fee Schedule.

Section 3. Reimbursement for Covered Procedures and Materials for Optometrists.

(1) Except for a clinical laboratory service, the department's reimbursement for a covered service or covered item provided by a participating optometrist shall be the lesser of the:

(a) Optometrist's usual and customary charge for the service or item; or

(b) Reimbursement established on the Department for Medicaid Services Vision Program Fee Schedule for the service or item.

(2) The department shall reimburse for a covered clinical laboratory service in accordance with 907 KAR 1:028.

Section 4. Maximum Reimbursement for Covered Procedures and Materials for Ophthalmic Dispensers. The department's reimbursement for a covered service or covered item provided by a participating ophthalmic dispenser shall be the lesser of the:

(1) Ophthalmic dispenser's usual and customary charge for the service or item; or

(2) Reimbursement established on the Department for Medicaid Services Vision Program Fee Schedule for the service or item.

Section 5. Reimbursement Limitations.

(1) The department shall not reimburse for:

(a) A telephone consultation;

(b) Contact lenses, except as established in 907 KAR 1:632, Section 5(1);

(d) A press-on prism; or

(e) A service with a CPT code or item with an HCPCS code that is not listed on the Department for Medicaid Services Vision Program Fee Schedule.

(2)

(a) The department shall reimburse for no more than one (1) pair of eyeglasses per recipient per calendar year unless:

The recipient's eyeglasses are broken or lost during the calendar year; or
The eyeglass prescription for the recipient is changed during the calendar year.

(b) If an event referenced in paragraph (a)1 or 2 of this subsection occurs within the calendar year, the department shall reimburse for one (1) additional pair of eyeglasses for the recipient during the calendar year.

(3) A prism, if medically necessary, shall be included in the cost of lenses.

Section 6. Third Party Liability.

(1) Nonduplication of payments and third-party liability shall be in accordance with 907 KAR 1:005.

(2) A provider shall comply with KRS 205.622.

Section 7. Not Applicable to Managed Care Organizations. A managed care organization shall not be required to reimburse the same amount as established in this administrative regulation for an item or service reimbursed by the department via this administrative regulation.

Section 8. Federal Approval and Federal Financial Participation. The department's reimbursement for 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. Appeal Rights. A provider may appeal a department decision as to the application of this administrative regulation in accordance with 907 KAR 1:671.

Section 10. Incorporation by Reference.

(1) "Department for Medicaid Services Vision Program Fee Schedule", May 13, 2014, is incorporated by reference.

History

RELATES TO: KRS 205.520, 42 C.F.R. 440.40, 440.60, 447 Subpart B, 42 U.S.C. 1396a-d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 Medicaid Program reimbursement provisions and requirements for vision services provided to a Medicaid recipient who is not enrolled in a managed care organization.
History: 21 Ky.R. 218; eff. 9-21-1994; 23 Ky.R. 4015; 24 Ky.R. 120; eff. 6-18-1997; 27 Ky.R. 1105; eff. 12-21-2000; 34 Ky.R. 1847; 2121; eff. 4-4-2008; 40 Ky.R. 1991; 2524; 2749; eff. 7-7-2014; Crt eff. 12-6-2019.

907 KAR 1:632 Vision program coverage provisions and requirements {#sec-907-kar-1-632 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:632}

Section 1. Definitions.

(1) "Current procedural terminology code" or "CPT code" means a code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Enrollee" means a recipient who is enrolled with a managed care organization.

(4) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(5) "Healthcare Common Procedure Coding System" or "HCPCS" means a collection of codes acknowledged by the Centers for Medicare and Medicaid Services (CMS) that represents procedures or items.

(6) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(7) "Medicaid basis" means a scenario in which:

(a) A provider provides a service to a recipient as a Medicaid-participating provider in accordance with:

907 KAR 1:671; and
907 KAR 1:672;

(b) The Medicaid Program is the payer for the service; and

(8) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(9) "Ophthalmic dispenser" means an individual who is qualified to engage in the practice of ophthalmic dispensing in accordance with KRS 326.030 or 326.040.

(10) "Optometrist" means an individual who is licensed as an optometrist in accordance with KRS Chapter 320.

(11) "Provider" is defined by KRS 205.8451(7).

(12) "Recipient" is defined by KRS 205.8451(9).

Section 2. General Requirements and Conditions of Participation.

(1)

(a) For the department to reimburse for a vision service or item, the service or item shall be:

Provided:

a. To a recipient; and

b. By a provider who is:

(i) Enrolled in the Medicaid Program pursuant to 907 KAR 1:672;

(ii) Except as provided in paragraph (b) of this subsection, currently participating in the Medicaid Program pursuant to 907 KAR 1:671; and

(iii) Authorized by this administrative regulation to provide the given service or item;

Covered in accordance with this administrative regulation;
Medically necessary;
A service or item authorized within the scope of the provider's licensure; and
A service or item listed on the Kentucky Medicaid Vision Fee Schedule.

(b) 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.

(2)

(a) To be recognized as an authorized provider of vision services, an optometrist shall:

Be licensed by the:

a. Kentucky Board of Optometric Examiners; or

b. Optometric examiner board in the state in which the optometrist practices if the optometrist practices in a state other than Kentucky;

Submit to the department proof of licensure upon initial enrollment in the Kentucky Medicaid Program; and
Annually submit to the department proof of licensure renewal including the expiration date of the license and the effective date of renewal.

(b)

To be recognized as an authorized provider of vision services, an in-state optician shall:

a. Hold a current license in Kentucky as an ophthalmic dispenser;

b. Comply with the requirements established in KRS Chapter 326;

c. Submit to the department proof of licensure upon initial enrollment in the Kentucky Medicaid Program; and

d. Annually submit to the department proof of licensure renewal including the expiration date of the license and the effective date of renewal.

To be recognized as an authorized provider of vision services, an out-of-state optician shall:

a. Hold a current license in the state in which the optician practices as an ophthalmic dispenser;

b. Submit to the department proof of licensure upon initial enrollment in the Kentucky Medicaid Program; and

c. Annually submit to the department proof of licensure renewal including the expiration date of the license and the effective date of renewal.

(3) A provider shall comply with:

(a) 907 KAR 1:671;

(b) 907 KAR 1:672;

(d) The confidentiality of personal records pursuant to 42 U.S.C. 1320d to 1320d-8 and 45 C.F.R. Parts 160 and 164.

(4)

(a) A provider shall:

Have the freedom to choose whether to provide services to a recipient; and
Notify the recipient referenced in paragraph (b) of this subsection of the provider's decision to accept or not accept the recipient on a Medicaid basis prior to providing any services to the recipient.

(b) A provider may provide a service to a recipient on a non-Medicaid basis:

If the recipient agrees to receive the service on a non-Medicaid basis; and
The service is not a Medicaid covered service.

Section 3. Vision Service Coverage.

(1) Vision service coverage shall be limited to a service listed with a CPT code or item with an HCPCS code on the Kentucky Medicaid Vision Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

(2) Vision service limits shall be as established on the Kentucky Medicaid Vision Fee Schedule as available at: https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

(3) Vision service limits may be exceeded by prior authorization for children under twenty-one (21) if medically necessary.

Section 4. Coverage of Eyeglasses and Frames.

(1) To be eligible for eyeglasses covered by the department, a recipient shallhave a diagnosed visual condition that:

(a) Requires the use of eyeglasses;

(b) Is within one (1) of the following categories:

Amblyopia;
Post surgical eye condition;
Diminished or subnormal vision; or
Other diagnosis which indicates the need for eyeglasses; and

+0.50, 0.50 sphere +0.50, or 0.50 cylinder;
0.50 diopter of vertical prism; or
A total of two (2) diopter of lateral prism.

(2) Provisions regarding any limit on the number of eyeglasses covered shall be as established in 907 KAR 1:631.

(3) For the department to cover:

(a) A frame, the frame shall be:

First quality;
Free of defects;
Deluxe; and
Have a manufacturer warranty of at least one (1) year; or

(b) A lens, the lens shall be:

First quality;
Free of defects;
Meet the United States Food and Drug Administration's impact resistance standards;
Polycarbonate and scratch coated; and
If medically necessary, inclusive of prisms.

(4) The dispensing of eyeglasses shall include:

(a) Single vision prescriptions;

(b) Bi-focal vision prescriptions;

(d) Progressive lens prescriptions;

(e) Services to frames; or

(f) Delivery of the completed eyeglasses which shall include:

Instructions in the use and care of the eyeglasses; and
Any adjustment, minor or otherwise, for a period of one (1) year.

(5) A provider shall be responsible, at no additional cost to the department or the recipient, for:

(a) An inaccurately filled prescription;

(b) Defective material; or

Section 5. Contact Lenses, Tint, and Plano Safety Glasses.

(1) The department shall reimburse for contact lenses substituted for eyeglasses if a medical indication prevents the use of eyeglasses.

(2) The department's reimbursement for contact lenses shall include disposable contact lenses.

(3) The department shall not reimburse for tint unless the prescription specifically indicates a diagnosis of photophobia.

(4) The department shall not reimburse for plano safety glasses unless the glasses are medically indicated for the recipient.

Section 6. Noncovered Services or Items. The department shall not reimburse for:

(1) Tinting if not medically necessary;

(2) Photochromics if not medically necessary;

(3) Anti-reflective coatings if not medically necessary;

(4) Other lens options which are not medically necessary;

(5) Low vision services;

(6) A press-on prism if not medically necessary; or

(7) A service with a CPT code or item with an HCPCS code that is not listed on the Kentucky Medicaid Vision Fee Schedule.

Section 7. Required Provider Documentation.

(1)

(a) In accordance with 42 C.F.R. 431.17, a provider shall maintain medical records of a service provided to a recipient for the period of time currently required by the United States Health and Human Services Secretary unless the department requires a retention period, pursuant to 907 KAR 1:671, longer than the period required by the United States Health and Human Services Secretary.

(b) If, pursuant to 907 KAR 1:671, the department requires a medical record retention period longer than the period required by the United States Health and Human Services Secretary, the medical record retention period established in 907 KAR 1:671 shall be the minimum record retention period.

45 C.F.R. 164.316; and
45 C.F.R. 164.306.

(2) A provider shall maintain the following documentation in a recipient's medical record:

(a) Any covered service or covered item provided to the recipient;

(b) For each covered service or covered item provided to the recipient:

A signature by the individual who provided the service or item signed on the date the service or item was provided;
The date that the service or item was provided; and
Demonstration that the covered service or covered item was provided to the recipient;

(d) The medical necessity as substantiated by an appropriate medical order.

Section 8. No Duplication of Service.

(1) The department shall not reimburse for a service provided to a recipient by more than one (1) provider of any program in which the service is covered during the same time period.

(2) For example, if a recipient is receiving a speech-language pathology service from a speech-language pathologist enrolled with the Medicaid Program, the department shall not reimburse for the same service provided to the same recipient during the same time period via the physician services program.

Section 9. Third Party Liability. A provider shall comply with KRS 205.622.

Section 10. Auditing Authority. The department shall have the authority to audit any claim, medical record, or documentation associated with the claim or medical record.

Section 11. 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:

Be adhered to by each of the provider's employees, officers, agents, or contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 12. 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 13. Appeal Rights. An appeal of a department decision regarding a Medicaid recipient who is:

(1) Enrolled with a managed care organization shall be in accordance with 907 KAR 17:010; or

(2) Not enrolled with a managed care organization shall be in accordance with 907 KAR 1:563.

Section 14. Incorporation by Reference.

(1) "Kentucky Medicaid Vision Fee Schedule", April 2023, is incorporated by reference.

History

RELATES TO: KRS 205.520, 205.622, 205.8451(7), (9), Chapter 320, Chapter 326, 326.030, 326.040, 369.101 to 369.120, 42 C.F.R. 400.203, 431.17, 438.2, 440.40, 440.60, 447 Subpart B, 45 C.F.R. 147.126, Parts 160 and 164, 164.306, 164.316, 42 U.S.C. 1320d to 1320d-8, 1396a-d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 441.30, 42 C.F.R. 441.56(c)(1)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 Kentucky Medicaid Program provisions and requirements regarding the coverage of vision services.
History: 40 Ky.R. 2034; 2536; 2757; eff. 7-7-2014; Cert eff. 12-6-2019; 49 Ky.R. 2178; 50 Ky.R. 709; eff. 1-2-2024.

907 KAR 1:671 Conditions of Medicaid provider participation; withholding overpayments, administrative appeal process, and sanctions {#sec-907-kar-1-671 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:671}

Section 1. Definitions.

(1) "Abuse" means provider abuse or recipient abuse as defined by KRS 205.8451(8) and (10).

(2) "Active provider number" means the provider billing number issued by the department, or its fiscal agent, to a provider that has presented to the department, or its fiscal agent, a Medicaid claim for a supply or covered service for payment under that number during the period of the previous twelve (12) consecutive months.

(3) "Adequate access" means pursuant to 42 CFR 1396a(8) all individuals wishing to make application for medical assistance under the Medicaid Program shall have an opportunity to do so, and that assistance shall be furnished with reasonable promptness to all eligible individuals.

(4) "Administrative appeal process" means an initial written request for redress setting forth the issues in dispute, dispute resolution meeting, review of documentation, prehearing, administrative hearing, recommended order, final order and all deliberations or exchange of documents or information between a provider and the department in accordance with KRS Chapter 13B.

(5) "Affiliate" means an individual agency or organization controlled by a provider or associated with a provider under common ownership or control.

(6) "Applicant" means an individual, agency, entity, or organization that submits an application to become a Medicaid provider.

(7) "Application" means the completion and submission of a Medicaid provider agreement and all required addendum and documentation specific to a provider type, which is the contract between the provider and the department for the provision of Medicaid services.

(8) "Billing agent" means an individual, agency, entity or organization that is authorized by a provider to prepare and submit claims on behalf of a provider to the department, or its fiscal agent.

(9) "Bribes and kickbacks" means soliciting or receiving payment, or offering or making payment whether in cash or goods or services, in return for:

(a) Referring a recipient to a provider for medical care, services or supplies; or

(b) Purchasing, leasing, ordering or recommending medical care, services or supplies, for which payment is claimed under the Medicaid Program.

(10) "Cabinet" means the Cabinet for Health and Family Services.

(11) "Claim" means a manually-created paper, or a computer-based electronically-created and transmitted request for payment under the Medicaid Program that relates to each individual billing submitted by a provider, or their billing agent, to the department which details services rendered to a recipient on a specific date. A claim may be either a line item of service or multiple services for one (1) recipient on a bill.

(12) "Conversion" means converting a Medicaid payment, or a part of a payment, to a use or benefit other than for the use and benefit intended by the Medicaid Program.

(13) "Convicted" means as defined in KRS 205.8475.

(14) "Demand letter" means correspondence to an active or inactive provider stating a dollar amount is owed the program and shall be paid by a given date.

(15) "Department" means the Department for Medicaid Services and its designated agents.

(16) "Disclosing entity" means a Medicaid provider or the fiscal agent for the department.

(17) "Disclosure" means the provision of information in accordance with the requirements established in 42 CFR 455, Subpart B.

(18) "Exclusion" means the termination of the participation of a provider or the denial of the enrollment of a provider.

(19) "Factor" means as defined in 42 CFR 447.10.

(20) "False claim" means a claim for:

(a) Unfurnished medical care, services, or supplies; or

(b) Medical care, services, or supplies provided:

In excess of accepted standards of practice for the medical care or other type of service;
In excess of established limits which were communicated, in writing, to providers by the department; or
If there is documentation that the provider has knowledge of third-party coverage of the recipient, but the provider knowingly chooses not to bill the third-party payer.

(21) "Fiscal agent" means a contractor that processes or pays provider claims on behalf of the department.

(22) "Full investigation" means the activities of Kentucky's Medicaid Fraud and Abuse Control Unit of the Office of the Attorney General (MFACU) or other law enforcement or investigative agency having authority to resolve a complaint of Medicaid fraud or abuse.

(23) "Furnish" means to provide medical care, services, or supplies that are:

(a) Provided directly by a provider;

(b) Provided under the supervision of a provider; or

(24) "Inactive provider number" means the provider billing number issued by the department, or its fiscal agent, to a provider that failed to present a Medicaid claim for medical care, services, or supplies for payment under that number to the department, or its fiscal agent, during the period of the previous twelve (12) consecutive months;

(25) "Interest" means the prime interest rate that is:

(a) Charged as a simple interest by banks rounded to the nearest full percent, as quoted by commercial banks to large business, as determined by the board of governors of the Federal Reserve System; and

(b) In effect on the close of business, July 1, which is the first day of the state fiscal year.

(26) "Knowingly" means as defined in KRS 205.8451(5).

(27) "Managing employee" means a general manager, business manager, administrator, director, or other individual who exercises operational or managerial control over, or who conducts the day-to-day operation of, an institution, entity, organization, or agency.

(28) "Material omission" means a failure by a provider to report or advise the department of any fact, that if known to the department, would have caused the department to deny, reduce, or otherwise withhold any portion of reimbursement for a billed covered service.

(29) "Medicaid Fraud and Abuse Control Unit" or "MFACU" means a unit in the Office of the Attorney General of Kentucky, certified under the provisions of 42 U.S.C. 1396b(q), that conducts a statewide program for the investigation and prosecution of violations of state laws regarding fraud and abuse in connection with the Medicaid Program.

(30) "Preliminary investigation" means the activities of the Office of Inspector General (OIG), MFACU, or the department to determine whether a complaint of Medicaid fraud or abuse has sufficient basis to warrant a full investigation.

(31) "Program" means the state Medicaid Program as defined by 42 U.S.C. 1396a.

(32) "Provider" means as defined by KRS 205.8451(7).

(33) "Recipient" means as defined by KRS 205.8451(9).

(34) "Reliable evidence" means:

(a) A preliminary determination based upon a preponderance of evidence as verified by the department by audit, of unacceptable practices or significant overpayments;

(b) Information of an ongoing investigation of a provider based on a preponderance of evidence, as verified by the department, involving fraud or criminal conduct pertaining to the Medicaid Program;

(c) Information based on a preponderance of evidence, as verified by the department, from a state professional medical licensing or certifying agency of an ongoing investigation of a Medicaid provider involving fraud, abuse, professional misconduct, unprofessional conduct, or utilization; or

(d) Information from the department or other sources based on a preponderance of evidence regarding unacceptable practices, relevant past criminal activities or program abuse.

(35) "Sanction" means an administrative action taken by the department which limits or bars an individual's, agency's, entity's, or organization's participation in the Medicaid Program or imposes a fiscal penalty against the provider, including the imposition of civil penalties, or interest imposed at the department's discretion, or the withholding of future payments.

(36) "Service" or "services" means a supply, covered care or covered service under the Medicaid Program.

(37) "Subcontractor" means an individual, agency, entity, or organization to which a disclosing entity has:

(a) Contracted or delegated some of its management functions or responsibilities of providing medical care or services to its patients; or

(b) Entered into a contract, agreement, purchase order or lease including real property, to obtain space, supplies, equipment or nonmedical services associated with providing services and supplies that are covered under the Medicaid Program.

(38) "Supplier" means an individual, agency, entity, or organization from which a provider purchases goods or services used in carrying out its responsibilities under the Medicaid Program.

(39) "Terminated" means a provider's participation in the Medicaid Program has been ended, and that a contractual relationship no longer exists between a provider and the department for the provision of Medicaid covered services to Medicaid eligible recipients by that individual, agency, entity, organization, fiscal agents or subcontractors of the provider.

(40) "Unacceptable practice" means conduct by a provider which constitutes "fraud" or "provider abuse", as defined in KRS 205.8451(2) or (8), or willful misrepresentation, and includes the following practices:

(a) Knowingly submitting, or causing the submission of false claims, or inducing, or seeking to induce, a person to submit false claims;

(b) Knowingly making, or causing to be made, or inducing, or seeking to induce, a false, fictitious or fraudulent statement or misrepresentation of material fact in claiming a Medicaid payment, or for use in determining the right to payment;

(c) Having knowledge of an event that affects the right of a provider to receive payment and concealing or failing to disclose the event or other material omission with the intention that a payment be made or the payment is made in a greater amount than otherwise owed;

(d) Conversion;

(e) Soliciting or accepting bribes or kickbacks;

(f) Failing to maintain or to make available, for purposes of audit or investigation, administrative and medical records necessary to fully disclose the medical necessity for the nature and extent of the medical care, services and supplies furnished, or to comply with other requirements established in 907 KAR 1:673, Section 2;

(g) Knowingly submitting a claim or accepting payment for medical care, services, or supplies furnished by a provider who has been terminated or excluded from the program;

(h) Seeking or accepting additional payments, for example, gifts, money, donations, or other consideration, in addition to the amount paid or payable under the Medicaid Program for covered medical care, services, or supplies for which a claim is made;

(i) Charging or agreeing to charge or collect a fee from a recipient for covered services which is in addition to amounts paid by the Medicaid Program, except for required copayments or recipient liability, if any, required by the Medicaid Program;

(j) Engaging in conspiracy, complicity, or criminal syndication;

(k) Furnishing medical care, services, or supplies that fail to meet professionally recognized standards, or which are found to be noncompliant with licensure standards promulgated under KRS Chapter 216B and failing to correct the deficiencies or violation as reported to the department by the Office of Inspector General, for health care or which are beyond the scope of the provider's professional qualifications or licensure;

(l) Discriminating in the furnishing of medical care, services, or supplies as prohibited by 42 U.S.C. 2000d;

(m) Having payments made to or through a factor, either directly or by power of attorney, as prohibited by 42 CFR 447.10;

(n) Offering or providing a premium or inducement to a recipient in return for the recipient's patronage of the provider or other provider to receive medical care, services or supplies under the Medicaid Program;

(o) Knowingly failing to meet disclosure requirements;

(p) Unbundling as defined under subsection (40) of this section; or

(q) An act committed by a nonprovider on behalf of a provider which, if committed by a provider, would result in the termination of the provider's enrollment in the program.

(41) "Unbundling" means submitting fragmented or multiple bills that results in a higher total reimbursement for tests and services that were performed within a specified time period that are required to be billed under a single bill code pursuant to 42 U.S.C. 1396b, that mandates a provider utilize the uniform identification coding system Current Procedural Terminology ("CPT") that establishes the specific range of services that are to be billed as one (1) CPT code.

(42) "Withholding" means not paying a provider for claims which have been processed, pending the results of an investigation of a report of fraud or willful misrepresentation based upon receipt of reliable evidence or as a result of provider bankruptcy, failure to submit timely cost reports, or closure or termination of a business.

Section 2. Methods for Recoupment of Overpayments.

(1) If a determination is made by the department that a provider was overpaid, a demand letter shall be sent to the provider, at his last known mailing address. If a provider billed through an agent or entity, a copy of a demand letter may be mailed to a provider's designated payment last known mailing address. The demand letter shall contain:

(a) The amount of the overpayment;

(b) The period of time involved;

(d) Language granting a provider sixty (60) days advance notice that the repayment is due in full; and

(e) Appeal rights, if any.

(2) Departmental adjustments of the reimbursements rates, and differences between estimated and actual costs a provider incurred in determining reimbursements, may create situations where a provider was overpaid. The letter of notification of adjustments and the monies due under this subsection shall include:

(a) All required elements of subsection (1) of this section;

(b) Documentation to support the department's determination of adjustments; and

(3) The provider shall within:

(a) Sixty (60) calendar days from the date of the demand letter, pay the amount of overpayment in full; or

(b) Sixty (60) calendar days from the date of the demand letter, or during the administrative appeal process, submit a written request for a payment plan.

(4) If the amount of overpayment resulted from rate revisions and subsequent recalculations within the Medicaid Management Information System, the department shall apply a rate adjustment against the next payment cycle for the provider prior to notifying the provider in writing of the amount of the overpayment.

(5) A payment plan may be approved by the department, if a provider documents that payment in full would create an undue hardship. A written declaration of undue hardship shall include the following:

(a) Copies of financial statements which indicate payment in full within sixty (60) calendar days would create an undue hardship; and

(b) Copies of notarized letters from at least two (2) financial institutions indicating the provider's loan request was denied for the overpayment amount.

(6) Except as provided for in subsection (7) of this section, payment plans shall not extend beyond a six (6) month period.

(7) A payment plan approved, in writing, by the Commissioner of the Department for Medicaid Services, in accordance with subsection (5) of this section, may be approved in excess of six (6) months, if the monthly repayment exceeds twenty-five (25) percent of the provider's average monthly Medicaid payment based upon the payments made the previous twelve (12) months.

(8) A payment plan approved in excess of six (6) months shall include provisions for payments of both principal and interest as provided in KRS Chapter 360.

(9) If a provider fails to make a payment as specified in the payment plan or takes no action toward repayment, the department shall recoup the amount due from future payments. If a provider has insufficient funds available for recoupment through the payment system in the first payment cycle following the due date, or no longer participates in the Medicaid Program, payments shall continue to be recouped and the department may take all lawful actions to collect the debt.

(10) Disputes.

(a) If a provider disputes the amount of overpayment, a provider may initiate the administrative appeals process in accordance with Section 8 or 9 of this administrative regulation.

(b) A timely-filed request of administrative appeal process shall stay the recoupment activities by the department pertaining to the issues on appeal until the administrative appeal process is final.

(c) If the department, after reviewing all documentation submitted during the administrative appeal process, determines that no adjustments are required, the initial determination shall stand.

(d) If the department determines that the amount of overpayment demand should be reduced, a refund due to the provider shall be refunded to him within thirty (30) calendar days from the date of the determination.

(e) If it is determined that the amount requested should be increased, a provider shall be notified by a new demand letter pursuant to subsection (1) of this section.

(11) Withholding Medicare payments to recover Medicaid overpayments.

(a) The department may request that the Centers for Medicare and Medicaid Services (CMS) withhold future Medicare payments to a provider in order to recover Medicaid overpayments to that provider, pursuant to 42 U.S.C. 1395vv.

(b) Amounts withheld and forwarded to the department by CMS which are ultimately determined by the department to be in excess of overpayments due to the Medicaid Program shall be returned to the provider.

(12) Statutory recovery. The department shall not issue payments otherwise due to a provider, if the department has been notified by a state or federal government agency or by a court that a court order exists requiring the department to withhold payments. The payments shall be withheld in accordance with the provisions of the order.

(13) Medicare overpayments. If ordered to recoup payment by CMS, the department shall recoup the federal share of Medicaid payments, which is the portion of the payment funded with federal funds, as a means to recover Medicare overpayments pursuant to 42 U.S.C. 1396m.

(14) A contract for the sale or change of ownership of a provider participating in the Medicaid Program shall specify whether the buyer or seller is responsible for amounts owed to the department by the provider, regardless of whether the amounts have been identified at the time of the sale. In the absence of specification in the contract for the sale or change of ownership, the recipient of the payment, who otherwise would be the provider of record at the time the department made the erroneous payment, shall have the responsibility for liabilities arising from that payment, regardless of when identified.

Section 3. Administrative Process for Identification and Referral of Unacceptable Practices.

(1) A preliminary investigation of alleged unacceptable practice shall be conducted by the department or its agent, if:

(a) A complaint is received by or referred from:

The department;
The cabinet; or
The Office of Attorney General; or

(b) Questionable or unacceptable practices are identified by the department.

(2) If the findings of a preliminary investigation indicate that an incident of fraud or abuse involving substantial allegations or other indication of fraud may have occurred under the Medicaid Program, a referral for a full investigation shall be made to the MFACU or the Office of the United States Attorney, if appropriate.

(3) In order to facilitate a full investigation, the department shall, at the request of the MFACU or the Office of the United States Attorney, provide access to, and free copies of, records, data, or information kept by the department, its contractors, or providers, if authorized, as specified in 907 KAR 1:672, Section 4.

(4) A full investigation shall continue until:

(a) Appropriate legal action is initiated;

(b) The investigation is discontinued because of insufficient evidence to support the allegation of unacceptable practice; or

(5) During a preliminary or full investigation, the department may make an administrative determination that a provider has committed an act of unacceptable practice based on receipt of reliable evidence. The department shall issue a written notice of a determination of unacceptable practice to a provider upon which an exclusion or sanction is intended to be imposed, as specified in Section 5 of this administrative regulation. The notice shall be mailed to a provider's last know mailing address. A copy may be mailed to the provider's designated payment last known mailing address. The notice shall clearly state:

(a) The determination made;

(b) The basis and specific reasons for the determination;

(d) The amount of overpayment or penalty, if any;

(e) The effective date of the action; and

(f) The administrative appeal process rights of the provider, if any, as established in Sections 8 and 9 of this administrative regulation.

(6) During a preliminary or full investigation, the department may refer the case to the MFACU or the Office of the United States Attorney for appropriate action.

(7) The Medicaid Program or its fiscal agents or contractors may, as it deems necessary and reasonable, use random or other statistical sampling methodologies and extrapolate the Medicaid Program's findings based on the sample.

Section 4. Withholding of Payments During an Investigation of Fraud or Willful Misrepresentation.

(1) The department may withhold Medicaid payments pursuant to 42 CFR 455.23 upon receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payments involve fraud or willful misrepresentation under the Medicaid Program.

(2) The department may withhold payments without first notifying a provider of its intention to withhold payments.

(3) The department shall mail written notice to a provider at the provider's last known mailing address of its withholding of program payments within five (5) calendar days of the date upon which withholding began. The department may mail a copy of the written notice to an agent or entity that submitted the bills, which resulted in the amounts to be withheld pursuant to 42 CFR 455.23.

(a) The notice shall establish the general allegations of the nature of the withholding action, including the types of payments and payment code sections to which fraud or willful misrepresentation is alleged to have occurred. The notice shall not disclose specific information concerning its ongoing investigation.

(b) The notice shall advise a provider:

That payments are being withheld in accordance with this administrative regulation;
The statutory and regulatory basis for withholding and the facts upon which the action is taken;
The date upon which withholding began;
That withholding shall be for a temporary period;
The circumstances under which withholding shall be discontinued;
The type of Medicaid claim, as appropriate, to which withholding shall apply;
The provider's right to submit written evidence for consideration by the department; and
The provider's administrative appeal process rights, if any, in accordance with Sections 8 and 9 of this administrative regulation.

(4) A withholding of payment action under this section shall be temporary and shall not continue after:

(a) The investigation has been discontinued due to insufficient evidence of fraud or willful misrepresentation by the provider;

(b) Legal proceedings related to the provider's alleged unacceptable practice are final and not subject to further appeal and court-ordered, deferred prosecution, or plea-bargained restitution has been paid; or

(c) The matter has been resolved between the department and the provider through an administrative determination of unacceptable practice, as specified in Section 3 of this administrative regulation.

(5) Upon completion of the process established in subsection (4)(a) and (b) of this section, all moneys withheld not otherwise used to offset a valid overpayment or court-ordered restitution, due on claims shall be promptly disbursed to a provider.

Section 5. Sanctions.

(1) The department shall comply with the requirements of 42 CFR 1002 and 42 U.S.C. 1320a-7.

(2) The department shall impose sanctions as provided in KRS 205.8467 and Sections 3, 4, 5, and 6 of this administrative regulation.

(3) The department may hold, during its administrative determination of unacceptable practice, a provider responsible and liable for the conduct and actions of its affiliates, representatives, employees, or subcontractors. Conduct shall only be imputed to another if:

(a) The conduct was accomplished within the course of the duties of the provider to be sanctioned; and

(b) The provider had knowledge, if:

The provider knew or reasonably should have known of the conduct; or
The conduct was effected with the knowledge and consent of the provider.

(4) If the department sanctions a provider, it may also sanction an affiliate of the provider. A determination to sanction an affiliate shall be made during the process leading to the administrative determination of unacceptable practice, on a case-by-case basis, after full review and consideration of all relevant facts and circumstances leading to the sanction of the provider. An affiliate shall have the same notification, time limits to dispute, due process rights, and burden of proof as a provider.

(5) The sanction process may include a termination of a provider from the Medicaid Program. If a termination is made, the termination notice shall specify the period of exclusion. In determining the sanction, or the duration of exclusion, the department shall consider as appropriate:

(a) The number and nature of the unacceptable practice incidents;

(b) The nature and extent of the adverse impact the violations had on recipients;

(d) Past criminal records of activities involving a child, patient or adult in matters of abuse, neglect, sexual abuse, malpractice, or the personal involvement in fraud or another violation of 42 U.S.C. 1128a-b13, that may have been discovered as a result of the investigation of the unacceptable practice or other related material facts that may impact the health, safety and well-being of Medicaid recipients; and

(e) The previous record of violations by the provider under Medicare, Medicaid or other program administered by the department.

(6) The sanction process shall include liability for civil payments, restitution of overpayments and agency costs as specified in KRS 205.8467.

(7) The department shall use a lien, as specified in KRS 205.8471, to assure payment of restitution and monetary penalties imposed under the administrative determination of fraud.

(8) A provider excluded from the Medicare Program shall be excluded from the Medicaid Program for the same period of time.

(9) The provider shall be notified in writing by the department of the sanctions that are imposed pursuant to 42 CFR 1001.2002.

Section 6. Termination of Provider Participation.

(1) Terminations and hearings.

(a) Before the participation of a nursing facility, as defined in 42 U.S.C. 1396r(a), or an intermediate care facility for the mentally retarded, as defined in 42 U.S.C. 1396d(d), is terminated, it shall have the right to receive an administrative hearing in accordance with Sections 8 and 9 of this administrative regulation and 42 CFR 431.151 through 431.154.

(b) Except as provided in paragraph (a) of this subsection, provider participation shall be terminated without prior hearing.

(2) A provider's participation may be terminated by either the provider or the department upon thirty (30) calendar days written notice to the other without cause or as otherwise specified in the provider agreement.

(3) A provider's participation may be terminated and a period of exclusion imposed, if an administrative determination is made, as established in Section 3 of this administrative regulation, that the provider engaged in an unacceptable practice.

(4) Except as provided for in 907 KAR 1:672, failure to maintain up-to-date information, or to submit the information within thirty-five (35) calendar days of a request by the department, shall result in termination of a provider's participation in the Medicaid Program.

(5) A provider's participation shall be terminated immediately, if it is determined that the information provided at the time of application or reinstatement was incorrect, inaccurate or incomplete and if provision of correct, accurate and complete information would have resulted in the denial of the application based upon one (1) or more of the factors established in 907 KAR 1:672 or this administrative regulation.

(6) A provider's participation may be terminated, if the provider fails or refuses to pay or enter into an agreement to pay the amount of a penalty imposed, including interest, in accordance with Section 5 of this administrative regulation and KRS 205.8467 within sixty (60) calendar days from the date of the department's notice or the date of a hearing decision, if they occur.

(7) A provider's participation in Medicaid shall be terminated, if the provider fails to submit a completed and signed application within thirty-five (35) calendar days from the date of the notice to provide the application.

(8) A provider's participation in Medicaid shall be terminated and a period of exclusion imposed upon a Medicare or Medicaid related conviction through the judicial process pursuant to 42 U.S.C. 1320a-7.

(9) A provider's participation in Medicaid shall be terminated in accordance with 42 CFR 1003.105 on the date of termination or suspension from Medicare.

(10) A provider's participation in Medicaid shall be terminated as of the date of a termination, revocation, or suspension of a registration, certification or license to practice a medical profession, or as required to provide medical care, services or supplies under Medicaid.

(11) A provider's participation in Medicaid shall be terminated and a new application required, if the ownership or controlling interest of the provider has substantially changed since the acceptance of the current enrollment application, which may include one (1) or more of the following actions:

(a) A sole proprietor transfers title and property to another party;

(b) The addition, removal, or substitution of one (1) or more partners of a provider organized as a partnership effects the termination of the partnership, and creates a successor partnership or other entity;

(c) An incorporated provider merges with an incorporated institution which is not participating in the program and the nonparticipating institution is the surviving corporation;

(d) Two (2) or more corporate providers consolidate and the consolidation results in the creation of a new corporate entity;

(e) Two (2) or more unincorporated providers consolidate;

(f) The sale, purchase, exchange of stock, merger or other consolidation of the business or assets directly related to the provision of health care, if the sale results in a change of ownership or control of a provider;

(g) If the ownership or controlling interest of the provider has substantially changed since the acceptance of its enrollment application regardless of reason; or

(h) A provider, or a person, or organization having direct or indirect ownership, or control interest in the disclosing entity as defined by 42 CFR 455.101 and 102, is listed, or required to be listed, on the current Medicaid enrollment application and has been convicted in a court of appropriate jurisdiction of criminal violations involving either a Medicare- or Medicaid-related offense and that conviction is final and not under appeal.

(12) The department may take into consideration its requirement to provide recipients adequate access to medical care, prior to an actual provider's termination from the Medicaid Program.

(13) A provider shall submit a minimum of one (1) Medicaid claim for payment for each provider number issued to that provider within twelve (12) consecutive months to have that number remain as "active" and in good status.

(14) Termination of inactive provider numbers. A provider shall be determined to have abandoned his provider number if twenty-four (24) consecutive months shall have expired without a claim being submitted upon that provider number to the department, or its fiscal agent for payment.

(15) The department may terminate a provider number and the provider's corresponding right to participate in the program for inactivity of billing if:

(a) A provider fails to submit the first claim upon the number initially issued to the provider within a period of twenty (24) months from the date the number was issued by the department, or its fiscal agent; or

(b) A provider number, that has had at least one (1) Medicaid claim submitted to the department, or its fiscal agent for payment, has no bill submitted for that number for twenty-four (24) consecutive months defined as:

When a period of twelve (12) consecutive months shall pass without a Medicaid claim being submitted for payment, the number shall be inactive; and
When a period of an additional twelve (12) consecutive months has passed with the number remaining inactive.

(16) A notice advising a provider of the termination and of the requirements to make a new application for enrollment shall be sent to the provider thirty (30) calendar days prior to his termination from the program, unless:

(a) Twenty (20) days shall have elapsed from the date of the notice of Medicaid exclusion pursuant to 42 CFR 1001.2002;

(b) Immediately required due to federal exclusion pursuant to 42 U.S.C. 1320a-7;

A court of competent jurisdiction; or
The professional board governing the profession; or

(d) Otherwise required pursuant to this administrative regulation.

(17) Notice of termination.

(a) A notice of termination shall:

Be in writing;
Be mailed to a provider's last known mailing address;
State the reason for the termination;
State the effective date of the termination;
State the date the provider may submit an application for reenrollment, if appropriate;
State a provider's hearing rights, if any, in accordance with Sections 8 and 9 of this administrative regulation; and
Contain the basis of the exclusion, the length of the exclusion, the factors considered in setting the length of the exclusion, and the effect of the exclusion pursuant to 42 CFR 1001.2002, if the termination is the result of a federal or state sanction exclusion.

(b) If notice has been provided in accordance with Section 3 (5) of this administrative regulation, no additional notice of termination shall be required.

(18) The department may extend participation or waive termination for a provider of covered care, service or supply under the Medicaid Program, if necessary to assure that adequate access to Medicaid services will be available in the area served by the provider pursuant to 42 CFR 1396a(8).

(19) The department may terminate a provider immediately, if necessary to protect the health, safety, or well-being of Medicaid recipients.

Section 7. Provider Reinstatement or Reenrollment Following Termination.

(1) A provider whose participation has been terminated under the provisions of this administrative regulation may request reinstatement in accordance with:

(a) The requirements established in the department's written provider application;

(b) The enrollment requirements pursuant to 907 KAR 1:672;

(d) A written declaration of the provider's request for reinstatement on the first page of the application form.

(2) The department may grant reinstatement from an exclusion based on a program violation, if the provider shall have:

(a) Demonstrated to the department that the violation which led to the sanction is corrected; or

(b) Otherwise established to the department's satisfaction that further violations will not be repeated.

(3) If the department approves a request for reinstatement after imposition of a sanction in accordance with Section 5 of this administrative regulation, the department shall provide written notice to the provider and to all others who were informed of the sanction, specifying the date on which program participation may resume. Participation by a provider, reinstated under this section, is conditional upon their compliance with their assurance of no further violations.

(4) A provider terminated from the Medicaid Program and excluded for a specified period of time shall be eligible for reenrollment upon the expiration of the period of exclusion. Providers excluded on the basis of a conviction for a Medicare- or Medicaid-related offense shall not be eligible for reenrollment until:

(a) The conviction shall be final and not under appeal;

(b) The specified period of exclusion shall have expired; and

(5) A provider that has an outstanding debt to the program shall not be reinstated or reapproved for Medicaid Program participation.

Section 8. Resolution of Provider Disputes Prior to Administrative Hearing.

(1) If a provider disagrees with a Medicaid determination with regard to an appealable issue as provided for in Section 9 of this administrative regulation, the provider may request a dispute resolution meeting. The request shall be in writing and mailed to and received by the branch manager that initiated the department-written determination within thirty (30) calendar days of the date the notice was received by the provider. The department shall not accept or honor a request for administrative appeals process, or a part thereof, that is filed by a provider prior to receipt of the department-written determination that creates an administrative appeal right under this administrative regulation.

(2) A provider's request for a resolution meeting shall clearly:

(a) Identify each specific issue and dispute;

(b) State the basis on which the department's decision on each issue is believed to be erroneous;

(d) State the name, mailing address, and telephone number of individuals who are expected to attend the dispute resolution meeting on the provider's behalf.

(3) Either the department or the provider may request the presence of a court reporter at the dispute resolution meeting. A court reporter shall be secured in advance of the meeting, and a dispute resolution meeting shall not be postponed solely due to the failure to timely secure a court reporter.

(4) Except if the court reporter was requested solely by the provider, the department shall bear the cost of a court reporter. Each party shall at all times bear the costs of requested transcribed copies.

(5) Dispute resolution meetings involving a court reporter shall be conducted face to face, and shall not be conducted via telephone.

(6) If an administrative hearing is requested, the transcript shall become part of the official record of the hearing pursuant to KRS 13B.130.

(7) The department shall, within ten (10) calendar days of receipt of the request for a dispute resolution meeting, send a written response to the provider identifying the time and place in which the meeting shall be held within thirty (30) days of receipt of the request and identifying the department's representative who is expected to attend the meeting. The meeting shall be held within forty (40) calendar days of receipt of the request, unless a postponement is requested. The dispute resolution meeting may be postponed for a maximum additional period of sixty (60) calendar days, at the request of any party.

(8) The dispute resolution meeting shall be conducted in an informal manner as directed by the department's representative. The provider may present evidence or testimony to support his case. Each party shall be given an opportunity to ask questions to clarify the disputed issue or issues.

(9) A provider may, within the same deadline specified in subsection (1) of this section, submit information that the provider wishes to be considered in relation to the department's determination without requesting a dispute resolution meeting. The submission of additional documentation shall not extend the thirty (30) day time period for requesting a resolution meeting.

(10) The department, after the dispute resolution meeting, or the date the information to be considered was presented to the department as established in subsection (9) of this section, shall within thirty (30) calendar days:

(a) Uphold, rescind, or modify the original decision with regard to the disputed issue; and

(b) Provide written notice to the provider of the department's decision and the facts upon which it is based with reference to applicable statutes and administrative regulations.

(11) Information submitted for the purpose of informally resolving a provider dispute shall not be considered a request for an administrative hearing.

(12) The department may waive the dispute resolution meeting, at its sole discretion, and issue a decision in lieu of the meeting, with the decision subject to administrative hearing under Section 9 of this administrative regulation.

(13) The department may postpone the issuance of its findings of the dispute resolution meeting, or its review of the materials submitted in lieu of a dispute resolution meeting, by mailing a written notice to the provider stating the reason for the delay and the anticipated date of completion of the review. A postponement shall not extend beyond 180 days.

Section 9. Administrative Hearing.

(1) The administrative hearing shall be conducted in accordance with KRS Chapter 13B by a hearing officer who is knowledgeable of Medicaid policy, as established in federal and state laws.

(2) The secretary of the cabinet, pursuant to KRS 13B.030(1), shall delegate by administrative order conferred powers to conduct administrative hearings under this administrative regulation.

(3) The department, in addition to Section 8(1) of this administrative regulation, shall not accept or honor a request for administrative appeals process, or a part thereof, by a provider that is:

(a) Filed at the state level for a federal-mandated exclusion subsequent to a federal notice of the exclusion containing the federal appeal rights; or

(b) Filed at the state level for program exclusion resulting from a criminal conviction by the court of competent jurisdiction, upon exhaustion or failure to timely pursue the judicial appeal process.

(4) The administrative hearing process shall be used in the following situations:

(a) If a provider is a nursing facility as defined in 42 U.S.C. 1396r(a), or is an intermediate care facility for the mentally retarded as defined in 42 U.S.C. 1396d(d), and participation is terminated regardless of reason;

(b) A provider alleges discrimination by the department as prohibited by 42 U.S.C. 2000d;

(d) The department requires repayment of a noncourt-established overpayment or noncourt-ordered restitution; or

(e) A provider's payments are being withheld in accordance with Section 4 of this administrative regulation.

(5) A written request for an administrative hearing shall be received by the department within thirty (30) calendar days of the date of receipt of the department's notice of a determination or a dispute resolution decision. This request shall be sent to the Office of the Commissioner, Department for Medicaid Services, Cabinet for Health and Family Services, 275 East Main Street, 6th Floor, Frankfort, Kentucky 40621-0002.

(6) The department shall forward to the hearing officer an administrative record which shall include the notice of action taken, the statutory or regulatory basis for the action taken, the department's decision following the resolution process, and all documentary evidence provided by the provider, his billing agent, subcontractor, fiscal agent or another provider-authorized individual to the department.

(7) The notice of the administrative hearing shall comply with KRS 13B.050.

(a) The administrative hearing shall be held in Frankfort, Kentucky no later than sixty (60) calendar days from the date the request for the administrative hearing is received by the department.

(b) The administrative hearing date may be extended beyond the sixty (60) calendar days by:

A mutual agreement by the provider and the department; or
A continuance granted by the hearing officer.

(8) If a prehearing conference is requested, it shall be held at least seven (7) calendar days in advance of the hearing date. Conduct of the prehearing conference shall comply with KRS 13B.070.

(9) If a provider does not appear at the hearing on the scheduled date and the hearing has not been previously rescheduled, the hearing officer may find a provider in default pursuant to KRS 13B.050(3)(h). A hearing request shall be withdrawn only under the following circumstances:

(a) The hearing officer receives a written statement from a provider stating that the request is withdrawn; or

(b) A provider makes a statement on the record at the hearing that he is withdrawing his request for the hearing.

(10) Documentary evidence to be used at the hearing shall be made available in accordance with KRS 13B.090.

(11) Information relating to the selection of the provider for audit, investigation notes or other materials which may disclose auditor investigative techniques, methodologies, material prepared for submission to a law enforcement or prosecutorial agency, information concerning law enforcement investigations, judicial proceedings, confidential sources or confidential information shall not be revealed, unless exculpatory in nature as required pursuant to KRS 13B.090(3).

(12) A hearing officer shall preside over the hearing and shall conduct the hearing in accordance with KRS 13B.080 and 13B.090.

(13) The issues considered at a hearing shall be limited to:

(a) Issues directly raised in the initial request for a dispute resolution meeting;

(b) Issues directly raised during the disputed resolution meeting; or

(14) KRS 13B.090(7) shall govern the burdens of proof.

(a) The department shall have the initial burden of showing the existence of the administrative regulations or statutes upon which the determination was based.

(b) If the determination is based upon an alleged failure of a provider to comply with applicable generally accepted business, accounting, professional, chiropractic or medical practices or standards of health care, the department shall establish the existence of the practice or standard.

(c) The department shall be responsible for notifying the hearing officer of previous relevant violations by the provider under Medicare, Medicaid, or other program administered by the Cabinet for Health and Family Services, or relevant prior actions under Section 5(5) of this administrative regulation, which the department wishes the hearing officer to consider in his deliberations.

(15) The hearing officer shall issue a recommended order in accordance with KRS 13B.110.

(16) Except for the requirement that the request for the administrative appeal process, or a part thereof, be filed in a timely manner, the hearing officer may grant an extension of time specified in this section, if determined necessary for the efficient administration of the hearing process or to prevent an obvious miscarriage of justice with regard to the provider. An extension of time for completion of the recommended order shall comply with the requirements of KRS 13B.110(2) and (3).

(17) A final order shall be entered in accordance with KRS 13B.120.

(18) The cabinet shall maintain an official record of the hearing in compliance with KRS 13B.130.

(19) In the correspondence transmitting the final order, clear reference shall be made to the availability of judicial review pursuant to KRS 13B.140 and 13B.150

Section 10. Actions Taken at the Conclusion of the Administrative Appeal Process.

(1) The stay on recoupment granted under Section 2(10)(b) of this administrative regulation shall not extend to judicial review, unless a stay is granted pursuant to KRS 13B.140(4).

(2) If during an administrative appeal process circumstances require a new or modified determination letter, new appeal rights shall be provided in accordance with this administrative regulation.

(3) Thirty (30) calendar days after the issuance of the final order pursuant to KRS 13B.120, the department:

(a) Shall initiate collection activities, and take all lawful actions to collect the debt; and

(b) May enact program terminations, sanctions pursuant to 42 U.S.C. 1320a-7, or other actions that were held in abeyance pending the decision of the administrative appeal process.

History

RELATES TO: KRS Chapter 13B, 194.515, 205.510-205.990, 312.015, Chapter 360, 42 C.F.R. 431.107, 431.151-431.154, 447.10, 455, 1002, 1003, 42 U.S.C. 1128a-b(13), 1320a-3, a-3a, a-5, a-7, 1395cc, vv, 1396b, d, m, n, 2000d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560, 205.6318, 205.8467, 42 C.F.R. 1002.1-.230, 1003.105, 42 U.S.C. 1320a-7, 1396a, b(q), d(d), m, r(a), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid Program. KRS 205.8451 through 205.990, 205.624 and 194A.515 provide that the Cabinet for Health Services and the Department for Medicaid Services shall be responsible for the control of Medicaid provider fraud and abuse. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the provisions relating to Medicaid provider participation, withholding overpayments, appeal process and sanctions.
History: 21 Ky.R. 2346; 3043; 22 Ky.R. 73; eff. 6-21-95; 2178; eff. 7-5-96; 27 Ky.R. 137; eff. 7-17-2000; 28 Ky.R. 975; 1422; eff. 12-19-2001; TAm eff. 10-29-2004; Cert eff. 12-6-2019.

907 KAR 1:672 Provider enrollment, disclosure, and documentation for Medicaid participation {#sec-907-kar-1-672 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:672}

Section 1. Definitions.

(1) "Applicant" means a person or entity who applies for enrollment as a participating Medicaid provider.

(2) "Cabinet" means the Cabinet for Health and Family Services.

(3) "Claim" means a request for payment under the Medicaid Program that:

(a) Relates to each individual billing submitted by a provider to the department;

(b) Details services rendered to a recipient on a specific date; and

(4) "Credentialed provider" means a provider that is required to complete the credentialing process in accordance with KRS 205.560(12) and (13) and includes the following individuals who apply for enrollment in the Medicaid Program:

(a) A dentist;

(b) A physician;

(d) A certified registered nurse anesthetist;

(e) An optometrist;

(f) An advance registered nurse practitioner;

(g) A podiatrist;

(h) A chiropractor; or

(i) A physician assistant.

(5) "Department" means the Department for Medicaid Services or its designated agent.

(6) "Disclosure" means the provision of information required by 42 C.F.R. 455.100 through 455.106.

(7) "Evaluation" or "credentialing" means:

(a) A process for collecting and verifying professional qualifications of a health care provider;

(b) An assessment of whether a health care provider meets specified criteria relating to professional competence and conduct; and

(c) A process to be completed before a health care provider may participate in the Medicaid Program on an initial or ongoing basis.

(8) "Exclusion" is defined by 42 C.F.R. 1003.101.

(9) "Furnish" means to provide medical care, services, or supplies that are:

(a) Provided directly by a provider;

(b) Provided under the supervision of a provider; or

(10) "Managing employee" means a general manager, business manager, administrator, director, or other individual who exercises operational or managerial control over or conducts the day-to-day operation of an institution, entity, organization, or agency.

(11) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(12) "Noncredentialed provider" means a provider that is not required to complete the credentialing process in accordance with KRS 205.560(12) and includes any individual or entity not identified in subsection (4) of this section.

(13) "Provider" is defined by KRS 205.8451(7).

(14) "Recipient" is defined by KRS 205.8451(9).

(15) "Reevaluation" or "recredentialing" means a process for identifying a change that may have occurred in a health care provider since the last evaluation or credentialing that may affect the health care provider's ability to perform services.

(16) "Services" means medical care, services, or supplies provided to a Medicaid recipient.

(17) "Subcontractor" means an individual, agency, entity, or organization to which a Medicaid provider or the department's fiscal agent has:

(a) Contracted or delegated some of its management functions or responsibilities of providing medical care or services to its patients; or

(b) Entered into a contract, agreement, purchase order, or lease, including lease of real property, to obtain space, supplies, equipment, or nonmedical services associated with providing services and supplies that are covered under the Medicaid Program.

(18) "Terminated" means a provider's participation in the Medicaid Program has ended and a contractual relationship no longer exists between the provider and the department for the provision of Medicaid-covered services to eligible recipients by the provider or its subcontractor.

(19) "Unacceptable practice" means conduct by a provider which constitutes "fraud" or "provider abuse", as defined in KRS 205.8451(2) or (8), or willful misrepresentation, and includes the practices specified in Section 5 of this administrative regulation.

Section 2. Enrollment Process for Provider Participation in Medicaid.

(1) Scope.

(a) The department shall contract only with an individual or entity who meets the conditions of Medicaid provider participation in accordance with 907 KAR 1:671.

(b) The department shall reserve the right to contract or not contract with any potential provider.

in the Medicaid Program shall be enrolled as a participating provider prior to being eligible to receive reimbursement in accordance with federal and state laws; and
As a KenPAC primary care provider shall meet the provider participation criteria established in 907 KAR 1:320, Kentucky Patient Access and Care System (KenPAC).

(2) To apply for enrollment in the Medicaid Program as a noncredentialed provider, an individual or entity shall:

(a) Complete, and submit to the department, the noncredentialed provider section of a MAP-811, Provider Application; and

(b) Submit of a valid professional license, registration, or certificate that allows the:

Individual to provide services within the individual's scope of practice; or
Entity to operate or provide services within the entity's scope of practice.

(3) To apply for enrollment in the Medicaid Program as a credentialed provider, an individual shall:

(a) Complete, and submit to the department, the individual provider application section of a MAP-811, Provider Application;

(b) Submit proof of a valid professional license, registration, or certificate that allows the individual to provide services within the individual's scope of practice; and

(c)

Except for a dentist, submit either:

a. A completed KAPER-1, Kentucky Application for Provider Evaluation and Reevaluation; or

b. Pursuant to 806 KAR 17:480, Section 2(4), the provider application form of the Council for Affordable Quality Healthcare; or

If licensed to practice as a dentist, submit a completed Dental Credentialing Form.

(4)

(a) Within forty-five (45) days of receipt of a required credentialing form, the department shall notify the health care provider or entity applying for enrollment in the Medicaid Program of any omitted information or questionable information included on the form.

(b) The department shall deny enrollment if the applicant does not:

Respond with the requested information within the time period specified in the department's notice of omitted or questionnaire information; or
Requests an extension of time that is:

a. Requested during the time period specified in the department's notice; and

b. Grant by the department.

(c) The department may require that an on-site inspection be performed to ascertain compliance with applicable licensure standards established in KRS Chapter 216B, and certification standards, prior to an enrollment determination.

(d)

The department shall make an enrollment determination within ninety (90) days of receipt of:

a. The completed application documents required by subsection (2) or (3) of this section; and

b. Any additional information requested by the department.

The department:

a. May take additional time beyond ninety (90) days to render a decision if necessary for resolution of an issue or dispute; and

b. Shall notify the applicant that a decision will be issued after the ninety (90) day timeframe established in subparagraph 1 of this paragraph if additional time is needed to render a decision.

(5) Approval of enrollment in the Medicaid Program as a participating provider.

(a) Upon approval of enrollment, the department shall issue a provider number that shall be used by the provider solely for billing and identification purposes.

(b) A provider's participation shall begin and end on the dates specified in the notification of approval for program participation, unless the provider's participation is terminated in accordance with this administrative regulation, 907 KAR 1:671, or other applicable state or federal laws.

(6) By enrolling in the Medicaid Program, a provider, the provider's officers, directors, agents, employees, and subcontractors agree to:

(a) Maintain the documentation for claims as required by Section 4 of this administrative regulation;

(b) Provide, upon request, all information regarding the nature and extent of services and claims submitted by, or on behalf of the provider, to the:

Cabinet;
Department;
Attorney General;
Auditor of Public Accounts;
Secretary of the United States Department of Health and Human Services; or
Office of the United States Attorney;

(d) Comply with the applicable advance directive requirements established in 42 U.S.C. 1396a(w) regarding the right to accept or reject life-saving medical procedures as described in KRS 311.621 through 311.643;

(e) Accept payment from Medicaid as payment in full for all care, services, benefits, or and supplies billed to the Medicaid Program, except with regard to recipient cost-sharing charges and beneficiary liability, if any;

(f) Submit claims for payment only for care, services, benefits, or supplies;

Actually furnished to eligible recipients; and
Medically necessary or otherwise authorized by law;

(g) Provide true, accurate, and complete information in relation to any claim for payment;

(h) Permit review or audit of all books or records or, at the discretion of the auditing agency, a sample of books or records related to services furnished and payments received from Medicaid, including recipient histories, case files, and recipient specific data. Failure to allow access to records may result in the provider's liability for costs incurred by the cabinet associated with the review of records, including food, lodging and mileage;

(i) Not engage in any activity that would constitute an unacceptable practice;

(j) Comply with all terms and provisions contained in the application documents required by subsection (2) or (3) of this section;

(k) Comply with all applicable federal laws, state statutes, and state administrative regulations related to the applicant's provider type and provision of services under the Medicaid Program; and

(l) Bill third party payers in accordance with Medicaid statutes and administrative regulations.

(7) Denial of enrollment or reenrollment in the Medicaid Program.

(a) The department shall deny enrollment if an applicant meets one (1) of the following conditions:

Falsely represents, omits, or fails to disclose of any material fact in making an application for enrollments in accordance with subsection (2) or (3) of this section;
Is currently suspended, excluded, terminated, or involuntarily withdrawn from participation in any governmental medical insurance program as a result of fraud or abuse of that program;
Falsely represents, omits, or fails to disclose any material fact in making an application for a license, permit, certificate, or registration related to a health care profession or business;
Has failed to comply with applicable standards in the operation of a health care business or enterprise after having received written notice of noncompliance from:

a. The department; or

b. A state or federal licensing, certifying, or auditing agency;

Is under current investigation, indictment or conviction for fraud and abuse or unacceptable practice in:

a. The Kentucky Medicaid Program;

b. Another state's Medicaid Program;

c. The Medicare Program; or

d. Other publicly funded health care program;

Fails to comply with any Medicaid policy as specified in the Kentucky statutes or department's administrative regulations;
Fails to pay any outstanding debt owed to the department; or
Has engaged in an activity that would constitute an unacceptable practice.

(b) If enrollment or reenrollment is denied, the department shall consider reapplication only:

If the applicant corrects each deficiency that led to the denial; and
After the expiration of a period of exclusion imposed in accordance with 907 KAR 1:671, if applicable.

(c) Notice of denial of enrollment or reenrollment. The department shall send written notice of denial to an applicant's last known address and provide the reason for the denial.

(d) The denial shall be effective upon the date of the written notice.

(8)

(a) A provider may request limited enrollment for a period of time, not to exceed thirty (30) days, in an exceptional situation for emergency services provided to an eligible recipient.

(b) The department shall make an enrollment determination regarding the exceptional circumstances and notify the provider in writing of its decision.

(9) Recredentialing. A credentialed provider currently enrolled in the Medicaid Program shall submit to the department's recredentialing process three (3) years from the date of the provider's initial evaluation or last reevaluation.

Section 3. Required Provider Disclosure.

(1) A provider shall comply with the disclosure of information requirements contained in 42 C.F.R. 455.100 through 455.106 and KRS 205.8477.

(2) Time and manner of disclosure. Information disclosed in accordance with 42 C.F.R. 455.100 through 455.106 shall be provided:

(a) Upon application for enrollment;

(b) Annually thereafter; and

(c) Within thirty-five (35) days of a written request by the department or the United States Department of Health and Human Services.

(3) If a provider fails to disclose information required by 42 C.F.R. 455,.100 through 455.106 within thirty-five (35) days of the department's written request, the department shall terminate the provider's participation in the Medicaid Program in accordance with 907 KAR 1:671, Section 6, on the day following the last day for submittal of the required information.

(4)

(a) A provider shall file an amended, signed ownership and disclosure form with the department within thirty-five (35) days following a change in:

Ownership or control;
The managing employee or management company; or
A provider's federal tax identification number.

(b) Failure to comply with the requirements of paragraph (a) of this subsection may result in termination from the Medicaid Program.

Section 4. Required Provider Documentation.

(1) A provider shall maintain documentation of:

(a) Care, services, benefits, or supplies provided to an eligible recipient;

(b) The recipient's medical record or other provider file, as appropriate, which shall demonstrate that the care, services, benefits, or supplies for which the provider submitted a claim were actually performed or delivered;

(d) Medical necessity as substantiated by appropriate documentation including an appropriate medical order.

(2) A provider who is reimbursed using a cost-based method shall maintain all:

(a) Fiscal and statistical records and reports used for the purpose of establishing rates of payment made in accordance with Medicaid requirements established in 907 KAR Chapters 1, 3, 4, and 23, as applicable; and

(b) Underlying books, records, documentation and reports that formed the basis for the fiscal and statistical records and reports.

(3) All documentation required by this section shall be maintained by the provider for a minimum of five (5) years from the latter of:

(a) The date of final payment for services;

(b) The date of final cost settlement for cost reports; or

(4) If any litigation, claim, negotiation, audit, investigation, or other action involving the records started before expiration of the five (5) year retention period, the records shall be retained until the latter of:

(a) The completion of the action and resolution of all issues which arise from it; or

(b) The end of the regular five (5) year period.

Section 5. Unacceptable Practice. The activities listed in this section shall constitute unacceptable practice:

(1) Knowingly submitting, or causing the submission of false claims, or inducing, or seeking to induce, a person to submit false claims;

(2) Knowingly making, or causing to be made, or inducing, or seeking to induce a false, fictitious or fraudulent statement or misrepresentation of material fact in claiming a Medicaid payment, or for use in determining the right to payment;

(3) Having knowledge of an event that affects the right of a provider to receive payment and concealing or failing to disclose the event or other material omission with the intention that a payment be made or the payment is made in a greater amount than otherwise owned;

(4) Conversion;

(5) Soliciting or accepting bribes or kickbacks;

(6) Failing to maintain or to make available, for purposes of audit or investigation, administrative and medical records necessary to fully disclose the medical necessity for the nature and extent of the medical care, services and supplies furnished, or to comply with other requirements established in 907 KAR 1:673, Section 2;

(7) Knowingly submitting a claim or accepting payment for medical care, services, or supplies furnished by a provider who has been terminated or excluded from the program;

(8) Seeking or accepting additional payments, for example, gifts, money, donations, or other consideration, in addition to the amount paid or payable under the Medicaid Program for covered medical care, services, or supplies for which a claim is made;

(9) Charging or agreeing to charge or collect a fee from a recipient for covered services which is in addition to amounts paid by the Medicaid Program, except for required copayments recipient liability, if any, required by the Medicaid Program;

(10) Engaging in conspiracy, complicity, or criminal syndications;

(11) Furnishing medical care, services, or supplies that fail to meet professionally recognized standards, or which are found to be non compliant with licensure standards promulgated under KRS Chapter 216B and failing to correct the deficiencies or violation as reported to the department by the Office provider's professional qualifications or licensure;

(12) Discriminating in the furnishing of medical care, services, or supplies as prohibited by 42 U.S.C. 2000d;

(13) Having payments made to or through a factor, either directly or by power of attorney, as prohibited by 42 C.F.R. 447.10;

(14) Offering or providing a premium or inducement to a recipient in return for the recipient's patronage of the provider or other provider to receive medical care, services, or supplies under the Medicaid Program;

(15) Knowingly failing to meet disclosure requirements;

(16) Unbundling; or

(17) An act committed by a nonprovider on behalf of a provider which, if committed by a provider, would result in the termination of the provider's enrollment in the program.

Section 6. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Kentucky Application for Provider Evaluation and Reevaluation", Form KAPER-1, March 2007 edition;

(b) "Map-811, Provider Application", July 2007 edition; and

History

RELATES TO: KRS 205.520, 205.560, 205.8451(2),(7),(8),(9), 205.8477, 304.17A-545(5), 311.621-311.643, 42 U.S.C. 1396a(w), 42 C.F.R. 455.100-455.106, 42 C.F.R. 1003.101
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560(12), 42 U.S.C. 1396a, b, c
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. KRS 205.560(12) requires the Medical Assistance Program to use the form and guidelines established pursuant to KRS 304.17A-545(5) for assessing the credentials of those applying for participation in the Medical Assistance Program. KRS 205.560(13) requires the department to develop a specific form and establish guidelines for assessing the credentials of dentists applying for participation in the Medical Assistance Program. This administrative regulation establishes provisions related to Medicaid provider enrollment, disclosure, documentation requirements, and guidelines for assessing the credentials of those applying for participation in the Medicaid Program.
History: 22 Ky.R. 2198; eff. 7-5-1996; 34 Ky.R. 446; 1040; 1470; eff. 1-4-2008; TAm eff. 3-15-2017; TAm eff. 10-6-2017; Crt eff. 12-6-2019.

907 KAR 1:673 Claims processing {#sec-907-kar-1-673 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:673}

Section 1. Definitions.

(1) "Cabinet" means the Cabinet for Health and Family Services.

(2) "Claim" means a request for payment that relates to each individual billing submitted by a provider to the department which details services rendered to a recipient on a specific date. The claim may be either a line item of service or all services for one (1) recipient on a bill.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Home infusion therapy" means the parental administration of a premanufactured or sterile compounded product for intravenous, intramuscular, subcutaneous or intraspinal infusion to a patient in a nonacute alternative site setting.

(5) "POS" means on-line real time point of sale claims electronically transmitted to the department.

(6) "ProDUR" means prospective drug use review in accordance with 201 KAR 2:210.

(7) "Provider" means as defined in 907 KAR 1:002, Section 1.

(8) "Provider type fifty-four (54)" means an enrolled pharmacy provider who dispenses drugs to outpatient, long-term care residents, and personal care home residents who are Medicaid recipients. A number shall be assigned by the department to these providers and the first two (2) digits shall be fifty-four (54).

(9) "Recipient" means as defined by KRS 205.8451(9).

(10) "Services" means as defined in 907 KAR 1:671, Section 1.

(11) "Unacceptable practice" means as defined in 907 KAR 1:671, Section 1.

(12) "Withholding" means as defined in 907 KAR 1:671, Section 1.

Section 2. Claims Processing.

(1) Claim submittal process for all Medicaid providers.

(a) Providers, except for type fifty-four (54), shall submit a claim by an electronic billing process or by paper form approved by the department.

(b) Claims shall be submitted for payment within twelve (12) months of the date the service was rendered to an eligible Medicaid recipient for covered services or supplies.

(d) By submitting a claim a provider shall be:

Liable for the accuracy of all claims submitted by the provider, its representatives employees or any individual or entity working on the provider's behalf; and
Responsible for reviewing the statement of payment or remittance statement to assure that paid claims shown are true and correct, and for informing the department of any discrepancy.

(e) If a provider submits a claim electronically, the provider's acceptance of payment shall be considered to be the provider's certification that a paid claim is true and correct; and

(f) Any submittal of a false claim, statement, or document shall be considered an unacceptable practice and subject to all the remedies available to the department.

(2) Provider type fifty-four (54) claims shall meet POS submittal requirements for services provided on or after December 1, 1996.

(a) A provider who files in excess of 100 claims in a twelve (12) month period shall transmit by POS and be subject to ProDUR.

(b) Providers that receive a POS exemption shall be subject to ProDUR as specified in 201 KAR 2:210. POS exemptions shall be as follows:

Providers who are unable to submit POS claims for a period of two (2) or more hours, for drugs in an emergency situation which are essential to avoid life-threatening situations.
If a claim requires paper documentation as requested by the department, this claim shall not be subject to POS.
A provider type fifty-four (54) who files a maximum of 100 claims or less in a twelve (12) month period to the department may request an exemption from the department for the POS requirement.
A provider type fifty-four (54) who dispenses drugs to be used in the provision of home infusion therapy shall request an exemption from the department for the POS requirement.
Retroactive recipient eligibility or retroactive nursing facility resident status.

Section 3. Claim payment.

(1) Payment shall be made by the department, if:

(a) The information required to pay the claim is complete;

(b) The claim is not under review for medical necessity;

(d) The department is not withholding the provider's payments in accordance with 907 KAR 1:671.

(2) The department may audit a claim paid to determine if any unacceptable practices have occurred that may result in a sanction.

History

RELATES TO: KRS 205.520, 205.8451
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 447.45, 42 U.S.C. 1396a, b, c, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid Program. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation sets forth the provisions relating to Medicaid provider claims processing requirements.
History: 22 Ky.R. 2201; eff. 7-5-96; 23 Ky.R. 3453; 3786; eff. 4-16-97; Crt eff. 12-6-2019.

907 KAR 1:675 Program integrity {#sec-907-kar-1-675 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:675}

Section 1. Definitions.

(1) "Benefit" is defined in KRS 205.8451(1).

(2) "Department" means the Department for Medicaid Services or its designated agent.

(3) "Disqualification hearing" means a hearing conducted by a Cabinet for Health Services hearing officer if:

(a) An adult recipient or responsible party has been found, through an investigative process, to have committed MA IPV; and

(b) The individual has appealed the finding.

(4) "Extraordinary circumstance" means a medical condition other than pregnancy or postpartum which results from a communicable disease or other condition that creates a risk to public health, or a condition which, if not treated, could result in immediate grave bodily harm.

(5) "Judicial review" means a review of a final agency order by the appropriate circuit court, plus further appeal to the Kentucky Court of Appeals or Kentucky Supreme Court.

(6) "Medicaid intentional program violation" or "MA IPV" means an action in which a recipient or responsible party makes a false or misleading statement, or misrepresents, conceals or withholds a fact or commits a violation of a state or federal law relating to the Medicaid program which results in a financial loss to the department.

(7) "Penalty" means an administrative action taken by the department which restricts or revokes a recipient's participation in the Medicaid Program or requires the repayment of the value of the benefits received.

(8) "Recipient" is defined in KRS 205.8451.

(9) "Responsible party" means an individual who is either:

(a) A parent or legal guardian of a minor child who is a Medicaid recipient;

(b) A Medicaid recipient who is eighteen (18) years old or older;

(d) An individual who possesses a power of attorney for the Medicaid recipient; or

(e) A legal guardian for an incompetent adult Medicaid recipient.

Section 2. Medicaid Intentional Program Violation. A Medicaid intentional program violation shall be deemed to occur if the Medicaid recipient or responsible party, age eighteen (18) or older, caused a financial loss to Medicaid by:

(1) Making a false or misleading statement to obtain a Medicaid benefit;

(2) Misrepresenting, concealing, or withholding a fact to obtain a Medicaid benefit;

(3) Committing a violation of a state or federal law or regulation relating to the Medicaid Program;

(4) Defrauding the department during the Medicaid eligibility process;

(5) Abusing the Medicaid Program by allowing an individual other than the one (1) listed on the MAID card to obtain a health care benefit by use of the household's card; or

(6) Inappropriately obtaining a covered service.

Section 3. Medicaid Intentional Program Violation Identification Procedures.

(1) The department shall notify a Medicaid Program recipient of a change in Medicaid policy for which he shall be held liable with respect to a Medicaid intentional program violation in accordance with the criteria specified in this administrative regulation.

(2) The department shall provide a Medicaid recipient with a toll free number to report an allegation of possible fraud or abuse of the Medicaid Program by a recipient or provider.

(3) The department shall identify that a possible Medicaid intentional program violation occurred through:

(a) Computer matches;

(b) Collateral contacts;

(d) Quality control reviews; or

(e) Other valid reports or information previously unknown to the department.

Section 4. Medicaid Intentional Program Violation Referral Procedures.

(1) If a finding from a preliminary investigation in accordance with Section 3 of this administrative regulation warrants a full investigation, the department shall:

(a) Interview the responsible party and request verification of information previously unknown to the department for the specified period of time that the alleged Medicaid intentional program violation occurred;

(b) Allow the responsible party the opportunity to review and refute evidence obtained by the department; and

(c) Calculate the value of the covered services rendered based on Medicaid payments made on behalf of the recipient for the time period that the recipient received covered services through an alleged Medicaid intentional program violation.

(2) Within ten (10) days of the date of the interview, the following shall occur:

(a) The department shall provide the recipient or responsible party the opportunity to review and refute findings of the investigation;

(b) The responsible party shall be allowed to reimburse the Medicaid Program in full for the money expended for benefits by the department during the period of noneligibility based on the Medicaid intentional program violation;

(c) If the responsible party does not agree to the repayment or with the evidence he reviews, and wishes to request a disqualification hearing, he shall sign form MAP-800 and the disqualification hearing shall be scheduled, in accordance with Section 6 of this administrative regulation; and

(d) If the responsible party does not appear for the interview identified in subsection (1)(a) and (b) of this section or request a disqualification hearing, he shall be disqualified effective with the first administratively feasible month.

Section 5. Continued Participation in the Medicaid Program While Awaiting a Disqualification Hearing. A pending hearing shall not affect the recipient's right to participate in the Medicaid Program unless the hearing officer:

(1) Rules that the responsible party committed a Medicaid intentional program violation; and

(2) Revokes the recipient's current eligibility.

Section 6. Disqualification Hearing Process.

(1) The recipient or responsible party shall have thirty (30) days from the date listed on form MAP-800 to request a hearing through the department.

(2) Upon receipt of the hearing request, the Cabinet for Health Services shall conduct the disqualification hearing for a responsible party suspected of a Medicaid intentional program violation in accordance with the requirements of KRS Chapter 13B and 42 CFR Part 431, Subpart E.

(3) The department shall:

(a) Provide written notice in accordance with KRS 13B.050 to the responsible party suspected of a Medicaid intentional program violation at least twenty (20) days before the date the disqualification hearing is scheduled;

(b) Arrange the time and place of the hearing so that the hearing is accessible to the responsible party accused of a Medicaid intentional program violation;

(c) Indicate on the advance written notice an individual or organization who may be available to provide free legal representation; and

(d) Conduct a telephonic hearing if the responsible party and a party or witness required to testify under oath or affirmation consents.

(4) If requested by the responsible party, another designated person or his legal counsel, the department shall provide one (1) free copy of the portions of the case file that are relevant to the hearing.

(5) Pursuant to KRS 13B.110, within sixty (60) days of the date the responsible party requests a hearing in writing, the department shall:

(a) Schedule the hearing;

(b) Conduct the hearing;

(d) Notify the responsible party and the Cabinet for Families and Children, Department for Community-Based Services of the decision.

(6) The hearing decision shall comply with federal law and regulation and shall be based on the hearing record. The hearing record shall:

(a) Comply with the requirements of KRS 13B.130;

(b) Be binding on the department in that the department shall bear the burden of proof based on the preponderance of evidence;

(d) Specify the reasons for the decision; and

(e) Identify:

The supporting evidence;
Kentucky Revised Statutory citations, if applicable;
Kentucky administrative regulations; and
Corresponding federal law.

(7) A final order shall be issued by the commissioner of the department to the responsible party or legal counsel and the Department for Community-Based Services pursuant to KRS 13B.120. The final order shall include the following:

(a) The disqualification hearing decision;

(b) The reasons for the decision; and

(c) If a current recipient, the continuance or revocation of the Medicaid benefits for the recipient, and the amount of repayment due to the department as determined by the hearing officer.

(8) The hearing record shall be retained:

(a) For a period of five (5) years from the month of origin of each record, for program records; and

(b) For a period of five (5) years from the date of fiscal or administrative closure, for a fiscal record or accountable document.

(9) The hearing record shall be available to the responsible party, designated person or legal counsel during the normal business week, Monday through Friday, excluding state holidays from 8 a.m. through 4:30 p.m. (eastern standard time) for copying and inspection.

(10) One (1) copy of the hearing material shall be provided to the responsible party. If additional copies are required, an appropriate fee which approximates cost shall be paid by the responsible party in accordance with KRS 61.872.

Section 7. Failure to Appear or Postponement of the Hearing.

(1) If the responsible party fails to attend a disqualification hearing and is determined to have committed a Medicaid intentional program violation, and a hearing officer later determines that the responsible party or representative had good cause for not appearing, pursuant to subsection (2) of this section:

(a) The previous decision shall be void; and

(b) The department shall conduct a new disqualification hearing. The hearing officer who originally ruled on the case may conduct the new disqualification hearing.

(2) The responsible party shall have ten (10) days after the date of the scheduled hearing to present good cause for failure to appear. Reasons for good cause shall include:

(a) The responsible party was away from home during the entire hearing advance notice time period;

(b) The responsible party is unable to read or to comprehend the hearing notice;

(d) Serious illness of the responsible party or immediate family member;

(e) The failure to appear for the disqualification hearing was determined to be no fault of the responsible party; or

(f) Failure on the part of the responsible party to receive notification.

(3) A hearing officer shall enter a decision for good cause into the record in addition to the date and time of the rescheduled hearing as specified in subsection (2) of this section.

(4) The responsible party or legal representative shall be entitled to one (1) postponement not to exceed thirty (30) days from the date the disqualification hearing was originally scheduled. The request for postponement shall be made at least ten (10) days in advance of the date of the scheduled hearing.

(5) If the hearing is postponed, the time limits specified in Section 6(5) of this administrative regulation shall be extended for as many days as the hearing is postponed.

Section 8. Penalties for Medicaid Intentional Program Violations.

(1) If the disqualification hearing officer determines that the responsible party committed a Medicaid intentional program violation, the department shall:

(a) Disqualify the recipient from participation in the Medicaid Program for a period not to exceed one (1) year or until the money expended by the department for benefits obtained by Medicaid intentional program violation is repaid, whichever comes first;

(b) Provide to the responsible party a written notice prior to imposing the disqualification;

(d) Advise the responsible party when the disqualification shall take effect; and

(e) Inform the responsible party of the final value of the benefits received, as calculated at the time of the disqualification hearing, which shall be repaid to the department.

(2) If during a preliminary investigation a criminal offense is suspected, a case shall be referred for possible prosecution. In order to facilitate criminal investigative action, the department shall, at the request of the state agency conducting the criminal investigation, provide:

(a) Access to, and free copies of, any records or information kept by the department or its contractors;

(b) Computerized data stored by the department or its contractors; and

(3) If the recipient is no longer receiving Medicaid benefits, the department shall inform the responsible party in writing that the period of disqualification shall begin with the first administratively feasible month and shall continue for eleven (11) consecutive months.

(4) A notice of their rights and eligibility status shall be provided to other Medicaid recipients residing in a household with a responsible party determined to have committed a Medicaid intentional program violation.

(5) If more than one (1) Medicaid intentional program violation determination has been made, the twelve (12) month periods of disqualification shall be served consecutively.

(6) If the responsible party committed the Medicaid intentional program violation, the responsible party shall be disqualified. The recipient shall not be disqualified.

Section 9. Exemptions from Disqualifications.

(1) A recipient who shall be exempt from disqualification for a Medicaid intentional program violation shall include:

(a) A child under eighteen (18) years of age; and

(b) A pregnant woman through postpartum.

(2) An Individual meeting the criteria for extraordinary circumstances, as determined by the department's peer review organization, shall be permitted to participate in the Medicaid Program on a restricted basis, in accordance with Section 10 of this administrative regulation.

Section 10. Consideration of Extraordinary Circumstances during the Eligibility Revocation Period.

(1) If a recipient, who is the responsible party for the Medicaid case has his eligibility revoked as a result of a Medicaid intentional program violation, the remaining family members shall have eligibility determined for potential Medicaid benefits, in accordance with eligibility criteria contained in 907 KAR 20:005, 907 KAR 20:010, 907 KAR 20:020, 907 KAR 20:025, and 907 KAR 20:040.

(2) The department shall reinstate within ten (10) working days a recipient whose eligibility has been revoked due to a Medicaid intentional program violation and who has reapplied for benefits under extraordinary circumstances.

(3) If a recipient's eligibility has been revoked and then reinstated under extraordinary circumstances as specified in subsection (2) of this section, that person shall serve the balance, if any, of the disqualification period, when the extraordinary circumstance no longer exists. If the disqualification time period expires during the extraordinary circumstance period, an additional ineligibility period shall not be imposed on the individual.

(4) A determination of extraordinary circumstances due to pregnancy shall be made at the local Department for Community-Based Services office for a recipient who provides a written statement from a physician verifying pregnancy.

Section 11. Judicial Review.

(1) After notification of a final hearing decision which upholds the department's action, the department shall:

(a) Notify the responsible party of the right to pursue judicial review of the decision in accordance with KRS 13B.140; and

(b) Impose the Medicaid intentional program violation disqualification regardless of a pending action by the judicial review.

(2) Reversal of a hearing decision by judicial review shall result in:

(a) Medicaid benefits of the recipient being restored to the date of discontinuance; and

(b) All repayment collected from the responsible person being returned by the department within ninety (90) days of the decision.

Section 12. Collecting Claims Against the Responsible Party. The department shall, upon receipt of the hearing decision or voluntary agreement to repay signed by the recipient or responsible party, initiate collection action against the recipient or responsible party unless the recipient or responsible party is unable to be located or has repaid the value of benefits owed to the department.

Section 13. Repayment of Medicaid Benefits.

(1) A recipient or responsible party shall be liable for the repayment of the value of the benefits to the department if a determination is made that the benefits were obtained by committing a Medicaid intentional program violation.

(2) Repayment of the value of benefits shall be accomplished by:

(a) Lump sum payments.

If the recipient or responsible party states he is financially able to pay the entire amount of the claim at one (1) time, the department shall collect a lump sum payment by cashier's check, money order or personal check; and
The recipient or responsible party shall not be required to liquidate all of his resources to make this lump sum payment;

(b) Installments.

The department shall negotiate a payment schedule with the recipient or responsible party for repayment of an amount of the claim not repaid through a lump sum payment.
Payment shall be accepted by the department in regular installments and shall be paid no later than the tenth day of each month;

(d) A lien on property owned by the recipient or the responsible party in accordance with KRS 205.8471.

(3) If the benefits are not repaid within thirty (30) days of notice from the department, disqualification shall be applied in accordance with Section 8(1) of this administrative regulation.

Section 14. Incorporation by Reference.

(1) Form Map-800, Notice of Fraud and/or Abuse Committed Against The Medicaid Program, Department for Medicaid Services, 8/99 edition, is incorporated by reference.

(2) This material may be inspected, copied, or obtained at the Department for Medicaid Services, 275 East Main Street, Frankfort, Kentucky, 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 205.8451, 205.8453, 42 C.F.R. 431 Subpart E, 455.12, 455.13, 455.16(c)(4)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.8453(4), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid Program. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. KRS 205.8453(4) directs the Cabinet for Health Services to institute other measures necessary or useful in controlling fraud and abuse. This administrative regulation establishes an administrative process which provides due process prior to disqualification or request for repayment of Medicaid benefits paid on behalf of a recipient. This administrative regulation establishes the provisions relating to enhanced program integrity of the Medicaid Program and applies to all Kentucky Medicaid recipients.
History: 22 Ky.R. 1916; 2304; eff. 7-5-96; 26 Ky.R. 908; 1175; eff. 12-15-99; TAm eff. 9-30-2013; Crt eff. 12-6-2019.

907 KAR 1:677 Medicaid Recipient Lock-in Program {#sec-907-kar-1-677 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:677}

Section 1. Definitions.

(1) "Advanced practice registered nurse" or "APRN" is defined by KRS 314.011(7).

(2) "Cabinet" is defined by KRS 205.010(1).

(3) "Controlled substance" means a drug or substance identified in 21 C.F.R. 1308.12, 1308.13, or 1308.14.

(4) "Department" means the Department for Medicaid Services or its designee.

(5) "Emergency medical condition" is defined by 42 U.S.C. 1395dd(e)(1).

(6) "Emergency service" is defined by 42 C.F.R. 447.53.

(7) "Fraud" is defined by KRS 205.8451(2).

(8) "Kentucky All Schedule Prescription Electronic Reporting report" or "KASPER report" means a report displaying information regarding:

(a) All the scheduled prescriptions that an individual has had for the time period specified in the report;

(b) The prescriber for each prescription written for the individual during the time period specified in the report; and

(c) The dispenser who dispensed each prescription written for the individual during the time period specified in the report.

(9) "Lock-in program" means a department program which restricts a recipient to receiving Medicaid services from a designated provider.

(10) "Lock-in recipient" means a recipient enrolled in the lock-in program.

(11) "Medicaid Management Information System" means the department's mechanized claims processing and information retrieval system as defined by, and in accordance with, 42 C.F.R. 433.111(b).

(12) "Nonemergency care" means a service for a nonemergency condition.

(13) "Overutilization" means the receipt of a treatment, drug, medical supply, or other Medicaid service from one (1) or more providers in an amount, duration, or scope that exceeds the amount that would reasonably be expected to result in a medical or health benefit to the recipient.

(14) "Physician" is defined by KRS 311.550(12).

(15) "Physician assistant" or "PA" is defined by KRS 311.840(3).

(16) "Prescriber" means a health care professional who:

(a) Within the scope of practice under Kentucky licensing laws, has the legal authority to write or order a prescription for the drug that is ordered;

(b) Is enrolled in the Medicaid Program pursuant to 907 KAR 1:672; and

(d) Prescribes in accordance with his or her current registration with the U.S. Department of Justice's Drug Enforcement Administration.

(17) "Primary care provider" means an advanced practice registered nurse, a physician, or physician assistant.

(18) "Provider" is defined by KRS 205.8451(7).

(19) "Provider abuse" is defined by KRS 205.8451(8).

(20) "Recipient" is defined by KRS 205.8451(9).

(21) "Recipient abuse" is defined by KRS 205.8451(10)

(22) "Utilization review" means a department review and analysis:

(a) Of Medicaid claims for a twelve (12) consecutive month period including:

A recipient's medical conditions; and
Medicaid services received by the recipient; and

(b) To determine if recipient overutilization has occurred.

Section 2. Review of Complaints.

(1)

(a) A complaint relating to potential fraud, recipient abuse, provider abuse, or overutilization shall be reported to the department or Cabinet for Health and Family Services, Office of Inspector General via the Medicaid and Welfare Fraud and Abuse hotline at 1-800-372-2970.

(b) The department may also review data available to it to determine if potential fraud, recipient abuse, provider abuse, or overutilization has occurred regardless of whether or not a complaint was made regarding a given individual or provider.

(2) The department shall respond to a complaint or data review referenced in subsection (1) of this section by conducting a utilization review of the recipient.

(3) A utilization review of a recipient referenced in subsection (2) of this section shall include a review of claims using data collected from the Medicaid Management Information System or a KASPER report to identify if the recipient:

(a) Utilized Medicaid services at a frequency or amount which meets utilization criteria established in Section 4 of this administrative regulation; and

(b)

Shall be restricted to receiving Medicaid services from designated providers under the lock-in program.
Shall be excluded from the lock-in program if the recipient:

a. Resides in a facility reimbursed pursuant to 907 KAR 1:025 or 1:065 or in a personal care home.

b. Is under the age of eighteen (18) years;

c. Receives:

(i) Services through a home and community based waiver program in accordance with 907 KAR 1:145, 1:160, 1:595, 1:835, 3:090, or 3:210; or

(ii) Hospice services in accordance with 907 KAR 1:330.

d. Utilized Medicaid services at a frequency or amount which was medically necessary to treat a complex, life threatening medical condition as determined by the department.

Section 3. General Exemption. If the department determines that not enrolling a recipient in the lock-in program is in the best interest of the recipient, the department shall not enroll the recipient in the lock-in program.

Section 4. Lock-in Criteria.

(1) Except as established in Section 2(3)(b)2 and Section 3 of this administrative regulation, the department shall initiate the lock-in process, as established in Section 5 of this administrative regulation, for a recipient if in two (2) consecutive 180 calendar day periods, the recipient:

(a)

Received services from at least five (5) different providers;
Received at least ten (10) different prescription drugs; and
Received prescriptions from at least three (3) or more different pharmacies; or

(b)

Had at least four (4) hospital emergency department visits for a condition that was not an emergency medical condition; or
Received services from at least three (3) different hospital emergency departments for a condition that was not an emergency medical condition.

(2) A recipient shall be locked in to:

(a) One (1) primary care provider, one (1) controlled substance prescriber, and one (1) pharmacy if the recipient meets the criteria established in subsection (1)(a) of this section; or

(b) One (1) designated hospital for nonemergency care, except for a screening to determine if an emergency medical condition exists pursuant to 907 KAR 10:014, if the recipient meets the criteria established in subsection (1)(b) of this section.

Section 5. Lock-in Process.

(1) Upon identification of a recipient who shall be enrolled in the lock-in program in accordance with Section 2(3) of this administrative regulation, the department shall:

(a) Send a written notification in accordance with subsection (2) of this section; and

(b) Enroll the recipient in accordance with subsection (3) of this section.

(2) The written notification sent to the recipient shall include:

(a) The reason for enrolling the recipient in the lock-in program;

(b) A description of the lock-in program;

(d) Identification of the recipient's designated providers as established in subsection (2)(a) of this section;

(e) Information relating to the recipient's right to a hearing as established in Section 9 of this administrative regulation; and

(f) Contact information of an individual who may be contacted in writing or by telephone for information relating to the lock-in program.

(3) Except for a recipient who requests a hearing relating to a department lock-in determination, the department shall enroll the recipient in the lock-in program within thirty (30) days of sending the written notification referenced in subsection (2) of this section.

(a) Once enrolled, the lock-in recipient shall be restricted to receiving Medicaid services from designated providers including:

One (1) primary care provider who:

a. Shall be accessible to the recipient within normal time and distance standards for the community in which the recipient resides;

b. If the lock-in recipient has a designated hospital, has admitting privileges to the designated hospital;

c. Shall provide services and manage the lock-in recipient's necessary health care services;

d. If the lock-in recipient needs a Medicaid-covered service other than the service of the designated primary care provider, shall complete and forward a Lock-in Recipient Referral to a referred provider;

e. Shall participate in the recipient's periodic utilization review as identified in paragraph (c) of this subsection; and

f. If the designated primary care provider is a physician, may serve as the lock-in recipient's designated controlled substance prescriber;

One (1) controlled substance prescriber who shall serve as the sole prescriber and manager of controlled substances for the lock-in recipient;
One (1) pharmacy; and
If the recipient meets the criteria established in Section 4(2)(b) of this administrative regulation, one (1) hospital.

(b) The restrictions identified in paragraph (a) of this subsection shall be maintained for at least twenty-four (24) months.

(c) Following the initial twenty-four (24) month period of lock-in enrollment as established in paragraph (b) of this subsection, the department shall conduct a utilization review at twelve (12) month intervals to:

Measure the effectiveness of the recipient's enrollment in the lock-in program; and
Determine if the recipient shall:

a. Continue enrollment in the lock-in program if the recipient continues to meet the criteria established in Section 4(1) of this administrative regulation; or

b. Be discharged from the lock-in program if the recipient does not meet the criteria established in Section 4(1) of this administrative regulation.

(d) The department shall provide the lock-in recipient with a written notification, which shall include:

Findings of a utilization review as identified in paragraph (c) of this subsection; and
A decision to maintain enrollment in or discharge the recipient from the lock-in program.

Section 6. Designated Providers.

(1) A designated provider as identified in Section 5(2)(a) of this administrative regulation shall be the designated provider of a lock-in recipient for at least twenty-four (24) months except if:

(a) the designated provider submits to the department a written request for a release from serving as the recipient's designated provider. The provider shall continue to serve as the recipient's designated provider until a comparable designated provider is selected;

(b) The recipient relocates outside of the designated provider's geographic area;

Requests a designated provider change; and
Includes information to support cause or a necessary reason for the change, including the recipient:

a. Was denied access to a needed medical service;

b. Received poor quality of care; or

c. Does not have access to a provider qualified to treat the recipient's health care needs;

(d) The designated provider withdraws or is terminated from participation in the Medicaid Program; or

(e) The department determines that it is in the best interest of the lock-in recipient to change the designated provider.

(2) A designated provider for a recipient shall:

(a) Be chosen by the department; and

(b) Not be chosen by the recipient.

(3) A recipient shall not have more than one (1) change in a designated primary care provider within a twenty-four (24) month period except as allowed in subsection (1) of this section.

Section 7. Fees, Payments, and Nonpayments.

(1) On behalf of a lock-in recipient, the department shall pay:

(a) At the beginning of each month:

A fee of ten (10) dollars to a designated primary care provider for the management of a lock-in recipient's necessary health care; or
A fee of five (5) dollars to a designated controlled substance prescriber, unless the designated controlled substance prescriber is also the recipient's designated primary care provider. If a designated controlled substance prescriber is also the recipient's designated primary care provider, the department shall pay a fee of ten (10) dollars in aggregate for being the recipient's designated primary care provider; and

(b) For:

A medical screening examination performed in the emergency department of a hospital to determine if an emergency medical condition exists in accordance with 907 KAR 10:014; and
An emergency service.

(2) In addition to the fee established in subsection (1)(a)1. of this section, the department shall pay for necessary services provided to the recipient by the recipient's designated primary care provider.

(3) Except for a service as established in subsection (1)(b) of this section, the department shall not pay for a service rendered by a provider other than the recipient's designated primary care provider unless the designated primary care provider:

(a) Refers the recipient to the referred provider for a necessary service; and

(b) Completes and forwards a copy of the Lock-in Recipient Referral to the referred provider of the service.

Section 8. Lock-in Recipient Requirements. A lock-in recipient:

(1) Shall be restricted to receiving necessary nonemergency services from a designated provider as identified in Section 5(3)(a) of this administrative regulation except for services rendered by a referred provider in accordance with Section 7(3) of this administrative regulation;

(2) Shall be responsible for the payment of the charges for a service rendered by a provider who:

(a) Is not the recipient's designated primary care provider;

(b) Does not have a Lock-in Recipient Referral from the recipient's designated primary care provider; and

(c) Informs the lock-in recipient that the recipient shall be responsible for the costs of the provider's services before the service is rendered; and

(3) May request a change of a designated provider in accordance with Section 6(1)(c) of this administrative regulation:

(a) Within ninety (90) days of the date of the recipient notification letter as identified in Section 5(1) of this administrative regulation; or

(b) At least once in a twenty-four (24) month period following initial enrollment in the lock-in program.

Section 9. Appeal Rights.

(1) A recipient who is notified of a department decision to enroll or maintain enrollment of the recipient in the lock-in program shall have the right to request a hearing in accordance with this section.

(2) The subject of the hearing shall be limited to whether or not the department had sufficient evidence to support the department's decision.

(3) A request for a hearing shall be:

(a) In writing;

(b) Mailed to the department, to the attention of the commissioner; and

(c) Received by the department within thirty (30) calendar days from the date that the notice referenced in subsection (1) of this section was received by the recipient.

(4) A copy of the request for a hearing shall be mailed to and received by the department's Division of Program Integrity within thirty (30) calendar days from the date that the notice referenced in subsection (1) of this section was received by the recipient.

(5) If a request for a hearing which meets the criteria established in subsection (3) of this section is:

(a) Received by the department within ten (10) calendar days from the date that the recipient received a notice referenced in subsection (1) of this section, the lock-in action shall be delayed until a fair hearing has occurred; or

(b) Not received by the department within ten (10) calendar days from the date that the recipient received a notice referenced in subsection (1) of this section, the lock-in action shall not be delayed.

(6) A fair hearing shall be held in accordance with 907 KAR 1:563, Sections 6 through 15.

Section 10. Fraud and Abuse Referral. If fraud, provider abuse, or recipient abuse is identified in the course of a department utilization review for lock-in purposes, the department shall comply with KRS 205.8453(3).

Section 11. Incorporation by Reference.

(1) The "Lock-in Recipient Referral", November 2010 edition, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Medicaid Services, 275 East Main Street, 6C-C, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 205.8453, 21 C.F.R. 1308.12, 1308.13, 1308.14, 42 C.F.R. 431.54, 433.111(b), 42 U.S.C. 1396(a), 1396 (a)(2)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.6318, 205.6310, 205.8453, 42 C.F.R. 431.54, 2010 Extra. Sess. Ky. Acts ch. 1, Part I.G.3.b.(26)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid Program. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. KRS 205.8453(4) and 205.6318(6) direct the cabinet to promulgate administrative regulations to identify misutilization of Medicaid services, to institute other measures necessary or useful in controlling fraud and abuse. This administrative regulation establishes the Medicaid lock-in provisions relating to recipient overutilization of the Medicaid Services.
History: 22 Ky.R. 1920; 2307; eff. 7-5-1996; 37 Ky.R. 571; 1295; 1460; eff. 12-1-2010; TAm eff. 5-3-2011; Crt eff. 12-6-2019.

907 KAR 1:680 Vaccines for Children Program {#sec-907-kar-1-680 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:680}

Section 1. Definitions.

(1) "Immunization" means an inoculation against a vaccine preventable disease.

(2) "Program registered provider" means a health care provider that is:

(a) Licensed or otherwise authorized for administration of pediatric vaccines; and

(b) Enrolled in the Vaccines for Children Program.

(3) "Recipient" means a person age eighteen (18) or under who has been determined eligible to receive benefits under the Medicaid program or Kentucky Children's Health Insurance Program (KCHIP) in accordance with Title 907 KAR.

(4) "Vaccines for Children Program" means the program for distribution of pediatric vaccines administered by the Department for Public Health and described in 42 U.S.C. 1396s.

Section 2. Obtaining Vaccines.

(1) A program registered provider may obtain a vaccine for the administration of a childhood immunization to an eligible recipient from the Vaccines for Children Program.

(2) A fee for administering a vaccine obtained through the Vaccines for Children Program may be paid by the department through the appropriate provider program.

History

RELATES TO: KRS 205.520, 42 U.S.C. 1396s
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 U.S.C. 1396a, b, d, s
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the provisions relating to vaccines provided through the Vaccines for Children Program.
History: 21 Ky.R. 3107; eff. 7-26-1995; 29 Ky.R. 2776; eff. 7-16-2003; Cert eff. 7-23-2018; 49 Ky.R. 911, 1783; eff. 3-9-2023.

907 KAR 1:715 School-based health services {#sec-907-kar-1-715 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:715}

Section 1. Definitions.

(1) "Advanced practice registered nurse" is defined by KRS 314.011(7).

(2) "ARC" means an admissions and release committee which meets the:

(a) ARC requirements established in 707 KAR 1:320; and

(b) IEP team requirements established in 34 C.F.R. 300.321.

(3) "Assistive technology device" means an item, piece of equipment, or product system that is:

(a) Used to increase, maintain, or improve the functional capabilities of a child with a disability; and

(b) Medically necessary to implement the health services in the child's individualized education program.

(4) "Board Certified Assistant Behavior Analyst" or "BCABA" means an individual who:

(a) Has met all of the BCABA requirements established by the Behavior Analyst Certification Board®, Inc.; and

(b) Is currently recognized by the Behavior Analyst Certification Board®, Inc. as a BCABA.

(5) "Board Certified Behavior Analyst" or "BCBA" means an individual who:

(a) Has met all of the BCABA requirements established by the Behavior Analyst Certification Board®, Inc.; and

(b) Is currently recognized by the Behavior Analyst Certification Board®, Inc. as a BCBA.

(6) "Certified psychologist" means an individual who holds the title of certified psychologist pursuant to KRS 319.056.

(7) "Certified psychologist with autonomous functioning" means an individual who holds the title of certified psychologist with autonomous functioning pursuant to KRS 319.056.

(8) "Certified social worker" means an individual with a certified social worker license pursuant to KRS 335.080.

(9) "Department of Education" means the Commonwealth of Kentucky, Department of Education.

(10) "Federal financial participation" is defined in 42 C.F.R. 400.203.

(11) "IEP team" is defined by 34 C.F.R. 300.321.

(12) "Incidental interpreter services" means the interpreter services that are necessary to allow the child to benefit from other covered school-based health services.

(13) "Individualized Education Program" or "IEP" is defined by 34 C.F.R. 300.320.

(14) "Licensed clinical social worker" means an individual possessing a current licensed clinical social worker license pursuant to KRS 335.100.

(15) "Licensed practical nurse" is defined by KRS 314.011(9).

(16) "Licensed professional clinical counselor" is defined by KRS 335.500(3).

(17) "Licensed professional counselor associate" is defined by KRS 335.500(4).

(18) "Licensed psychological associate" means an individual holding the title of licensed psychological associate pursuant to KRS 319.064.

(19) "Licensed psychological practitioner" means an individual who meets the licensed psychological practitioner requirements established in KRS 319.053.

(20) "Licensed psychologist" means a psychologist who holds a licensed psychologist license pursuant to KRS 319.010(6).

(21) "Licensed social worker" means an individual possessing a current licensed social worker license pursuant to KRS 335.090.

(22) "Occupational therapist" is defined by KRS 319A.010(3).

(23) "Occupational therapy assistant" is defined by KRS 319A.010(4).

(24) "Physical therapist" is defined by KRS 327.010(2).

(25) "Physical therapist assistant" means an individual:

(a) With a current credential from the Kentucky Board of Physical Therapy; and

(b) Working under the supervision of a physical therapist.

(26) "Psychologist" is defined by KRS 319.010(9).

(27) "Recipient" is defined by KRS 205.8451(9).

(28) "Registered nurse" is defined by KRS 314.011(5).

(29) "Respiratory care practitioner" is defined by KRS 314A.010(3).

(30) "SBHS" or "School-based health services" means medically-necessary health services:

(a) Provided for in 907 KAR 11:034; and

(b) Specified in an individualized education program for a child determined to be eligible under the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. Chapter 33, and 707 KAR Chapter 1.

(31) "SBHS recipient" means a recipient who:

(a) Is under the age of twenty-one (21) years; and

(b) Receives school-based health services.

(32) "Special transportation" means a special arrangement, special equipment, or a special vehicle:

(a) Which is appropriate for the child's disability; and

(b) The need for which is described in the child's individualized education plan.

Section 2. Provider Requirements.

(1) A school district that requests to participate as a school-based health care provider shall not be qualified to provide school-based health services:

(a) Until it has enrolled as a Medicaid provider pursuant to 907 KAR 1:672;

(b) Until it has been certified by the Department of Education to provide school-based health services; and

(2) The Department of Education shall grant certification to a district that agrees to:

(a) Provide services as:

Required by 20 U.S.C. Chapter 33; and
Specified in an approved individualized education program developed by an ARC that includes a multidisciplinary team of professionals acting within their scope of practice;

(b) Comply with the service provision requirements mandated by 20 U.S.C. Chapter 33 and in accordance with 707 KAR 1:320;

(c) Employ or contract with health care professionals who meet the qualifications specified in Section 4 of this administrative regulation;

(d) Provide the Department of Education with a proposed quality assurance outline;

(e) Maintain and submit to the Department of Education all required records and reports to ensure compliance with 20 U.S.C. Chapter 33; and

(f) Provide the Department of Education with a list of school-based health services that the school district provides. This list shall contain the following information for employees and contractors providing the services:

Name; and
Credentials.

(3) The Department for Medicaid Services shall grant Medicaid enrollment to a provider who:

(a) Meets the criteria established in subsections (1) and (2) of this section;

(b) Works within his or her scope of practice as established in Kentucky law; and

(c) Is recommended by the Department of Education for certification and enrollment in the Kentucky Medicaid Program as a provider of school-based health services.

(4) A Medicaid school-based health services provider shall:

(a) Submit to an annual review by the Department of Education to ensure compliance with the standards for continued participation as a Medicaid provider;

(b) Have an on-site survey completed by the Department of Education as necessary to determine compliance with the Medicaid Program;

(c) Take action as specified by the Department of Education to correct a deficiency if found to be in noncompliance with the provision of services outlined in 707 KAR 1:320 or this administrative regulation;

(d) Agree to implement a quality assurance program approved by the Department of Education for the provision of Medicaid-covered services within one (1) year from the date the Department of Education recommends enrollment to the Medicaid Program;

(e) Maintain a current list of school-based health services that the school district provides. The list shall contain the information listed in subsection (2)(f) of this section for an employee or contractor providing the services;

(f) Maintain records on each SBHS recipient who receives services reimbursed by Medicaid. The records shall:

Identify the child, services performed, and quantity or units of service;
Be signed and dated by the professional who provided or supervised the service;
Be legible with statements written in an objective manner;
Indicate progress being made, any change in treatment, and response to the treatment; and
Be retained for a minimum of five (5) years plus any additional time required by law; and

(g) Comply with 907 KAR 1:671 and 1:672.

Section 3. Covered Services.

(1) A school-based health service that is included in an IEP authorized by an IEP team or ARC and provided in accordance with this administrative regulation shall:

(a) Be considered medically necessary; and

(b) Not be subject to additional Medicaid prior-authorization requirements.

(2) The following services shall be covered if provided to address a medical or mental disability and to assist an individual in benefiting from special education programming which is included, authorized, and provided in accordance with the individualized education program:

(a) Nursing;

(b) Audiology;

(d) Occupational therapy;

(e) Physical therapy;

(f) Behavioral health services;

(g) Incidental interpreter services provided in conjunction with another covered service;

(h) Orientation and mobility services;

(i) Respiratory therapy;

(j) Assistive technology devices and appropriate related evaluations if the devices purchased by the Medicaid Program become the property of the SBHS recipient; and

(k) Special transportation with the following limitations:

A special transportation service shall be limited to transporting an SBHS recipient to receive a Medicaid-covered service at:

a. A site other than the school building in which the child is enrolled for general education purposes;

b. The child's home if the child is a home-bound student and receives general education services at home; or

c. The school building where the child receives the Medicaid-covered service. Special transportation to the school building from the child's home or other site and return special transportation from the school building to the child's home or other site shall be covered for the day the Medicaid-covered service is provided at the school building;

A special transportation service shall be provided using a type of vehicle which:

a. Meets the specifications established by KRS 156.153, 702 KAR 5:060, and 702 KAR 5:130; and

b. Is appropriate for the child's disability as determined by the ARC in accordance with 702 KAR 5:100; and

A special transportation service provided by a member of an SBHS recipient's household to the SBHS recipient shall not be covered unless the SBHS recipient's household member is an employee of the school district.

(3) A covered school-based health service:

(a) Shall not be limited by site of service;

(b) Shall be provided in:

A group of no more than six (6); or
In a one-on-one situation; and

An assessment or evaluation if the assessment or evaluation is stated in the SBHS recipient's IEP, except as allowed in subsection (4) of this section; or
A treatment component if the treatment component is stated in the SBHS recipient's IEP.

(4) An assessment or evaluation conducted prior to the establishment of an individualized education program shall be covered if the individualized education program is subsequently developed and implemented as a result of the assessment or evaluation.

Section 4. Staffing Requirements. School-based health services shall be reimbursable if provided by a professional acting within his or her scope of practice as defined by state law and as provided in this section.

(1) A nursing service shall be provided by:

(a) An advanced practice registered nurse;

(b) A registered nurse;

(d) A health aide if:

The aide is under the supervision of a specific registered nurse or advanced practice registered nurse;
The supervising registered nurse or advanced practice registered nurse has trained the aide for the specific SBHS nursing service for the specific recipient; and
The supervising registered nurse or advanced practice registered nurse has verified in writing that the aide has appropriate training and skills to perform the specific service in a safe, effective manner.

(2) Audiology services shall be provided by an audiologist with a current license from the Kentucky Board of Speech-Language Pathology and Audiology.

(3) Speech and language services shall be provided by a speech-language pathologist who has a current certificate of clinical competence issued by the American Speech and Hearing Association.

(4) Occupational therapy services shall be provided by:

(a) An occupational therapist:

(b) An occupational therapy assistant; or

Provides supportive services to occupational therapists and occupational therapy assistants; and
Is under the direct supervision of an occupational therapist.

(5) Physical therapy services shall be provided by:

(a) A physical therapist;

(b) A physical therapist assistant;

(d) A student of physical therapy under the supervision of a physical therapist; or

(e) Physical therapy supportive personnel under the direct on-site supervision of a:

Physical therapist; or
Physical therapist assistant in accordance with the provisions of 201 KAR 22:053.

(6) A behavioral health service shall be provided by:

(a) A licensed psychologist;

(b) A licensed psychological practitioner;

(d) A certified psychologist;

(e) A licensed psychological associate;

(f) A licensed clinical social worker;

(g) A licensed social worker;

(h) A certified social worker;

(i) An advanced practice registered nurse who has a specialty area in accordance with the American Nurses' Association's Scope and Standards of Psychiatric-Mental Health Nursing Practice in accordance with 201 KAR 20:057;

(j) A licensed professional clinical counselor;

(k) A licensed professional counselor associate;

(l) A board certified behavior analyst; or

(m) A board certified assistant behavior analyst.

(7) An incidental interpreter service shall be provided by an interpreter licensed by the Kentucky Board of Interpreters for the Deaf and Hard of Hearing pursuant to KRS 309.312 or 309.314.

(8) Orientation and mobility services shall be provided by an orientation and mobility specialist certified by the:

(a) Academy for Certification of Vision Rehabilitation and Education Professionals (ACVREP); or

(b) National Blindness Professional Certification Board (NBPCB).

(9) Respiratory therapy services shall be provided by a respiratory care practitioner.

Section 5. Reimbursement.

(1) Reimbursement for SBHS shall be provided in accordance with the school-based health service reimbursement provisions established in 907 KAR 11:035.

(2) A school-based health services provider shall certify the expenditure of state or local funds for school-based health services in accordance with 702 KAR 3:285.

Section 6. Individualized Education Program. An IEP shall:

(1) Be developed, reviewed, and revised in accordance with:

(a) 707 KAR 1:320; and

(b) 34 C.F.R. 300.324; and

(2) Not be considered authorized unless it has been approved by an IEP team.

Section 7. Federal financial participation. A policy established in this administrative regulation shall be null and void if the Centers for Medicare and Medicaid Services:

(1) Denies federal financial participation for the policy; or

(2) Disapproves the policy.

History

RELATES TO: KRS 156.070, 205.520, 605.115, 314.470, 20 U.S.C. 33, 34 C.F.R. 300.320, 300.321, 300.324, 42 C.F.R. 440.110
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has 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 for the provision of Medicaid services to Kentucky's indigent citizenry. This administrative regulation establishes the provisions relating to school-based health services (SBHS) for which payment shall be made by the Medicaid Program on behalf of Medicaid recipients who are eligible for school-based health services under 20 U.S.C. Chapter 33.
History: 23 Ky.R. 1831; 2530; 2752; eff. 12-18-1996; 29 Ky.R. 2378; 2705; eff. 5-15-2003; 32 Ky.R. 1803; 2041; 2277; eff. 7-7-2006; 36 Ky.R. 694; 1289; 1491; eff. 2-5-2010; 37 Ky.R. 2298; 2886; 38 Ky.R. 25; eff. 8-5-2011; TAm eff. 5-12-2015; Crt eff. 12-6-2019.

907 KAR 1:720 Coverage and payments for the Kentucky Early Intervention Program services provided through an agreement with the state Title V agency {#sec-907-kar-1-720 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:720}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "Early intervention services" is defined in KRS 200.654(7).

(3) "Title V agency" means the Commission for Children with Special Health Care Needs.

Section 2. Covered Services.

(1) Services shall be provided for a Medicaid eligible child under the age of three (3) who meets eligibility requirements for early intervention as established in 902 KAR 30:120, Section 2.

(2) The service to be provided shall be a service described in 902 KAR 30:160 except for the following services which shall not be covered:

(a) Respite care;

(b) Transportation;

(d) Teacher of the visually impaired.

(3) Services shall be coordinated and information exchanged with the child's assigned primary care provider in the:

(a) Health Care Partnership in accordance with 907 KAR 1:705; or

(b) KenPAC Program in accordance with 907 KAR 1:320.

(4) Services shall be provided pursuant to an interagency agreement between the department and the Title V agency.

Section 3. Provider Qualifications and Conditions for Participation. The following provider qualifications and conditions for participation shall be applicable for services provided pursuant to this administrative regulation.

(1) Services shall be provided by the Title V agency or through a subcontractor of the Title V agency.

(2) If the Title V agency seeks to subcontract for the provision of services, the Title V agency shall subcontract for the provision of services in accordance with the provisions of the interagency agreement between the Title V agency and the department.

(3) A service which is provided by the Title V agency or its subcontractors shall meet the appropriate requirements for the service, as established in 902 KAR 30:160.

Section 4. Reimbursement.

(1) Reimbursement for services provided on and after October 22, 2001 shall be based on cost associated with providing the service that includes the:

(a) Direct cost;

(b) Overhead cost; and

(2) Payments shall be made on an interim basis in accordance with the fee schedule established in 902 KAR 30:200 with a settlement to cost at the end of the fiscal year.

(3) An annual cost report shall be submitted to the department within 180 days after the close of the state fiscal year.

(4) Interim payments shall be adjusted to actual cost based upon review and acceptance of the cost report by the department.

(5) The Title V agency may submit for consideration an amended cost report for a state fiscal year up to twenty-four (24) months after the close of that state fiscal year.

History

RELATES TO: KRS 200.654, 200.656, 200.664, 200.668, 200.676, 205.520, 42 C.F.R. 431.615, 42 U.S.C. 1471-1485
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 200.660(7), 205.520(3), EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. KRS 200.660(7) requires the cabinet to promulgate administrative regulations to implement the Kentucky Early Intervention Program. This administrative regulation establishes requirements for coverage and payment for early intervention services provided through an agreement with the state Title V agency, the Commission for Children with Special Health Care Needs.
History: 24 Ky.R. 809; 1108; eff. 11-14-1997; 28 Ky.R. 2742; 29 Ky.R. 464; eff. 8-12-2002; TAm eff. 8-20-2010; Cert eff. 7-23-2018; Cert eff. 2-5-2025.

907 KAR 1:755 Preadmission Screening and Resident Review Program {#sec-907-kar-1-755 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:755}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "Department approved system" means a technology system in which:

(a) Providers electronically submit and track level of care (LOC) requests through a self-service portal;

(b) The system triggers LOC tasks as reminders to providers and allows them to submit reassessments electronically; and

Medicaid Enterprise Management Solution (MEMS); and
Integrated eligibility and enrollment system.

(3) "Department for Behavioral Health, Intellectual and Developmental Disabilities" or "DBHDID" means the state agency or its designee with the responsibility for both the evaluation and determination functions for individuals with serious mental illness, an intellectual disability, or a related condition as defined by 42 C.F.R. 483.106(d) and (e).

(4) "Exempted hospital discharge" means an individual:

(a) Who is admitted to a nursing facility directly from a hospital after receiving acute inpatient care at the hospital;

(b) Who requires nursing facility services for the condition for which the individual received care in the hospital; and

(c) Whose attending physician has certified, prior to admission to the nursing facility, that the individual is likely to require less than thirty (30) days nursing facility services.

(5) "Intellectual disability" is defined by 42 C.F.R. 483.102(b)(3).

(6) "Interfacility transfer" means an individual who is transferred from one (1) nursing facility to another nursing facility, with or without an intervening hospital stay.

(7) "Level of care of nursing facility services" means those standards as established by 907 KAR 1:022, Section 4.

(8) "New admission" means an individual who is admitted to a nursing facility (NF) for the first time or who is not a readmission or an exempted hospital discharge.

(9) "Nursing facility" or "NF" means a facility meeting the requirements established in 907 KAR 1:022.

(10) "Preadmission screening and resident review program" or "PASRR" means the process that:

(a) Screens and identifies an individual with a serious mental illness, an intellectual disability, or a related condition prior to admission to an NF;

(b) Results in a determination, based on a physical and mental evaluation of each individual with a serious mental illness, an intellectual disability, or a related condition, of the appropriateness of the individual's admission to an NF; and

(11) "Provisional admission" means an individual:

(a) Is admitted to an NF for fourteen (14) calendar days or less before a PASRR level II is required;

(b) Meets the level of care of nursing facility services as established in 907 KAR 1:022; and

(c)

Has been diagnosed with delirium, which, pursuant to 42 C.F.R. 483.130(d)(4), precludes an accurate diagnosis and assessment until the delirium clears; or
Is in need of respite for an in-home care giver and to whom the individual with serious mental illness, an intellectual disability, or a related condition is expected to return after fourteen (14) days.

(12) "Readmission" means an individual who is readmitted to an NF from a hospital to which the individual was transferred for the purpose of receiving acute inpatient care.

(13) "Related condition" means a severe, chronic condition that meets the requirements established in 42 C.F.R. 435.1010.

(14) "Serious mental illness" means an individual's condition that meets the requirements established by 42 C.F.R. 483.102(b)(1).

(15) "Services of lesser intensity" means services that are:

(a) Within the scope of services provided or arranged by the nursing facility as included in the facility's per diem rate;

(b) Less intensive than specialized services; and

Improve, maintain, or prevent regression of optimal functional status; and
Achieve highest possible level of well-being.

(16) "Significant change" means that the individual's condition has had a major decline or improvement requiring a comprehensive reassessment.

(17) "Specialized services for an intellectual disability or a related condition" means the continuous, aggressive, and consistent implementation of a program of specialized and generic training, treatment, and health and related services, which are comparable to services an individual receives in an intermediate care facility for individuals with an intellectual disability (ICF-IID), or in a community based waiver program that provides services to persons with an intellectual disability in which twenty-four (24) hour supervision is available that is directed toward:

(a) The acquisition of the skills necessary for the person to function with as much self-determination and independence as possible;

(b) The prevention or deceleration of regression or loss of current optimal functional status; and

(c) The coordination and interaction, at all times and in all settings, of all staff and the individual served, in the implementation of the specified individual program plan (IPP) objectives for the individual.

(18) "Specialized services for serious mental illness" means the implementation of an individualized plan of care that:

(a) Is developed in conjunction with and supervised by a physician;

(b) Is provided by an interdisciplinary team of qualified mental health professionals;

(c) Prescribes specific therapies and activities for the treatment of a person who is experiencing an acute episode of serious mental illness that necessitates continuous supervision by trained mental health personnel; and

(d) Requires the level of intensity provided in a psychiatric inpatient hospital.

Section 2. General Applicability.

(1) The PASRR process shall comply with the requirements of 42 C.F.R. 483.100 through 483.138.

(2) The provisions of this administrative regulation shall be applicable to an individual applying for admission to, or continued stay in, a nursing facility (NF) participating in the Kentucky Medicaid Program.

(3) Pursuant to 42 C.F.R. 483.106(d) and (e), DBHDID shall be responsible for PASRR determination and evaluation functions.

(a) DBHDID shall evaluate and determine whether an individual applying for admission to an NF needs NF services and specialized services for a serious mental illness, an intellectual disability, or a related condition if indicated by a positive Level I PASRR screening.

(b) DBHDID may delegate the evaluation and determination functions for which it is responsible except that the designee shall not be an NF or an entity that has a direct relationship or indirect affiliation or relationship with an NF.

(4) For nursing facility reimbursement of services by the Medicaid Program, an individual shall be Medicaid eligible and meet the patient care criteria established by 907 KAR 1:022 and 907 KAR 1:025.

Section 3. Deemed Consent for PASRR. An individual applying for admission to, or requesting a continued stay in, a nursing facility participating in Medicaid shall be deemed to have given consent for the department to make the determination of appropriateness for the individual to enter or remain in the facility using the standards established by 42 U.S.C. 1396r.

Section 4. Level I PASRR Screening.

(1) Except as provided by subsection (2) of this section, prior to admitting an individual, a nursing facility shall conduct a Level I PASRR screening using the department approved system as required by 42 C.F.R. 483.128. If a provider is not enrolled with Kentucky Medicaid, the provider shall use the MAP 409 paper form to conduct a Level I PASRR screening.

(2) A Level I PASRR screening shall not be conducted for:

(a) Readmission;

(b) Interfacility transfer;

(d) Hospital swing bed facilities.

(3) For a Level I screening that does not indicate a referral for a Level II evaluation, the NF shall submit to the department the Level I screening prior to or simultaneously with a request for certification of level of care for nursing facility services.

Section 5. Level II PASRR Evaluations.

(1) If an individual is identified in the Level I PASRR screening as suspected of having a serious mental illness, an intellectual disability, or a related condition, a Level II PASRR evaluation shall be performed prior to the individual's admission to an NF unless the individual is a provisional admission, readmission, interfacility transfer, or exempted hospital discharge.

(a) The Level II PASRR evaluation shall be used to:

Evaluate and determine if an individual meets nursing facility level of care; and
Determine if the person requires specialized services or services of lesser intensity.

(b) The individual or legal guardian shall be notified by the NF of a referral to the appropriate entity for the Level II PASRR evaluation.

(2) If a Level II PASRR evaluation is required, the department approved system shall notify the appropriate entity to perform the Level II PASRR evaluation as required by this subsection.

(a) For a new admission, the appropriate entity shall complete a Level II PASRR evaluation prior to admission.

(b) For an exempted hospital discharge, the appropriate entity shall conduct a Level II PASRR evaluation and complete the determination within forty (40) calendar days of the date of admission to the NF.

(c) For a provisional admission pending clearing of delirium, the appropriate entity shall conduct a Level II PASRR evaluation and complete determination of the need for specialized services within nine (9) business days of the referral.

(d) If a significant change in the individual's condition occurs, the NF shall complete a significant change request in the department approved system within fourteen (14) calendar days and the appropriate entity shall complete the Level II PASRR evaluation within nine (9) business days.

(3) If a PASRR Level II determination results in a response to referral, an NF shall transmit to the department the Level I PASRR screening with a copy of the response to referral prior to or simultaneously with a request for certification of level of care for nursing facility services.

(4) DBHDID shall provide notification as required by 42 C.F.R. 483.130(k) and (l).

Section 6. Payments for PASRR Evaluations and Determinations.

(1) The department shall reimburse DBHDID for the cost of providing PASRR services under this administrative regulation.

(2) The department's reimbursement to DBHDID for this purpose shall not exceed the actual cost to DBHDID, including contract costs, of implementing and operating the PASRR program.

(3) Except as provided in subsection (4) of this section, the department shall reimburse an NF if:

(a) The Level I PASRR screening and, if required, Level II PASRR evaluation are completed prior to a new admission and in a timely fashion as established in Sections 4 and 5 of this administrative regulation; or

(b) A review is required because of a significant change in the individual's condition, and it is performed timely in accordance with Sections 4 and 5 of this administrative regulation.

(4) If a Level I PASRR screening and, if required, a Level II PASRR evaluation are not timely completed prior to admission or a subsequent review is required but not timely performed in accordance with Section 8 of this administrative regulation, but the required PASRR process is performed at a later date, reimbursement shall be made for NF services provided after the PASRR process is completed if the individual is determined to need the level of care of nursing facility services.

(5) The department shall not reimburse an NF for specialized services provided to an individual who has a serious mental illness, has an intellectual disability, or has a related condition, and is in an NF. Services of a lesser intensity than specialized services shall be provided by an NF to an individual as recommended by the Level II PASRR evaluation.

Section 7. Admissions Criteria Under PASRR.

(1) An admission to an NF shall be in accordance with 42 U.S.C. 1396r.

(2) An individual who has a serious mental illness, has an intellectual disability, or has a related condition shall not be admitted to an NF unless:

(a) The Level II PASRR evaluation determines that the individual requires the level of care of nursing facility services; and

(b) A determination of the need for specialized services for serious mental illness, intellectual disability, or a related condition is made.

Section 8. Criteria for Subsequent Reviews.

(1) An individual in an NF shall not be subject to mandatory annual resident review in accordance with 42 U.S.C. 1396r. If an individual experiences a significant change in condition, a Level II PASRR evaluation shall be conducted as established in Section 5 of this administrative regulation.

(2) An individual who is determined not to have a serious mental illness, not to have an intellectual disability, or not to have a related condition shall not be subject to further Level II PASRR activity.

(3) An individual who is determined to have a serious mental illness, to have an intellectual disability, or to have a related condition, but who requires the level of care of nursing facility services, may remain in the facility. A determination as specified in Section 5 of this administrative regulation shall be made as to whether specialized services for serious mental illness, intellectual disability, or a related condition are required.

(4)

(a) An individual who has a serious mental illness, has an intellectual disability, or has a related condition, but who is determined not to require the level of care of nursing facility services but does require specialized services, may remain in the facility if the individual has continuously resided in an NF for thirty (30) months or more before the date of the determination.

(b) If an individual meets the criteria in paragraph (a) of this subsection and requires specialized services for serious mental illness, intellectual disability, or a related condition, DBHDID shall be responsible for the cost of those services.

(5) An individual who has a serious mental illness, has an intellectual disability, or has a related condition, and who is determined not to require the level of care of nursing facility services but does require specialized services and who has resided in an NF for less than thirty (30) consecutive months, shall be discharged from the NF in accordance with 42 C.F.R. 483.15 to an appropriate setting where specialized services shall be provided or arranged. The individual shall be advised by DBHDID of the individual's discharge rights in accordance with 42 C.F.R. 431.200 through 431.250 and 483.15.

(6) An individual who has a serious mental illness, has an intellectual disability, or has a related condition, and who is determined not to require the level of care of nursing facility services and does not require specialized services, regardless of length of stay, shall be discharged. The individual shall be advised by DBHDID of the individual's discharge rights in accordance with 42 C.F.R. 431.200 through 431.250 and 483.15.

Section 9. Responsibility of the Department for Inappropriately Placed Persons.

(1) The department shall be responsible for the orderly discharge of an individual determined through the PASRR process established in this administrative regulation to be inappropriately placed.

(2) DBHDID shall be responsible for providing, or arranging for the provision of, specialized services to an individual for whom that need has been determined.

Section 10. Appeals. An individual who is determined not to require NF services or specialized services as a result of a PASRR determination by DBHDID may appeal the denial in accordance with 907 KAR 1:563.

Section 11. Incorporation by Reference.

(1) MAP 409, "Nursing Facility Identification Screen (Level I PASRR)", February 2018, is incorporated by reference.

History

RELATES TO: KRS 205.558, 42 C.F.R. 431.200-431.250, 435.1009, 483.15, 483.100-483.138, 483.440, 42 U.S.C. 1396r
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.558
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has the responsibility to administer the Medicaid Program. KRS 205.520 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 program requirements and payment provisions for preadmission screening and resident review (PASRR).
History: 25 Ky.R. 1776; 2396; eff. 4-21-1999; TAm eff. 7-16-2013; Crt eff. 7-23-2018; 45 Ky.R. 2796; eff, 8-2-2019; Cert eff. 2-5-2025.

907 KAR 1:780 Converted dual-licensed hospital-based nursing facility beds {#sec-907-kar-1-780 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:780}

Section 1. Definitions.

(1) "Administrative process" means meeting, review, investigation, hearing, appeal, deliberation or exchange of documents or information between the provider and the department.

(2) "Applicant" means a person or entity who submits an application to become a Medicaid provider.

(3) "Applicant's geographic area" means the county in which the applicant's converted dual-licensed hospital-based nursing facility beds are located and contiguous Kentucky counties.

(4) "Application" means a request for Medicaid certification for beds that were converted to hospital-based nursing facility beds pursuant to KRS 216B.020(4).

(5) "Certificate of need" is defined in KRS 216B.015(8).

(6) "Converted" means a bed that was previously a dual-licensed acute care hospital bed that, pursuant to KRS 216B.020(4) and (5), changed a dual-licensed acute care bed to a hospital-based nursing facility bed and is not presently participating in the Medicaid Program.

(7) "Provider" is defined in KRS 205.8451(7).

(8) "State Health Plan" is defined in KRS 216B.015(19).

Section 2. Enrollment Process for Converted Dual-Licensed Hospital-Based Nursing Facility Beds Participation in Medicaid.

(1) An application for converted dual-licensed hospital-based nursing facility beds which are not presently participating in the Medicaid Program, but requesting participation, shall be submitted to the Commissioner of the Department for Medicaid Services.

(a) The application shall be in writing in the form, content and manner required by the department in accordance with this administrative regulation and 907 KAR 1:672. The application shall contain the following, with pertinent information and supporting documentation:

The total number, each room number and bed designation of:

a. Dual-licensed acute care beds that were converted to hospital-based nursing facility beds and licensed pursuant to KRS 216B.020(4);

b. Converted beds already participating in Medicaid;

c. Converted hospital-based nursing facility beds applying for Medicaid certification; and

d. Licensed hospital-based nursing facility beds.

Data that demonstrates a need for additional not presently participating Medicaid certified beds in the applicant's geographic area in accordance with the factors listed in Section 3 of this administrative regulation;
The requested date for Medicaid certification of the converted beds; and

(b) Information in the application shall be current, presented clearly and precisely.

(2) The department shall:

(a) Review the application for completeness; and

(b) Review the notification from the Division of Licensing and Regulation of the Office of Inspector General recommending Medicaid certification for the converted beds.

(3) Upon receipt of notification from the Division of Licensing and Regulation, along with a complete and accurate application, with all requested documentation, the department shall determine:

(a) The number of licensed hospital-based nursing facility beds the applicant has available for certification; and

(b) Whether the application establishes a need for additional Medicaid certified beds in the applicant's geographic area in accordance with Section 3 of this administrative regulation.

(4) Except as provided in subsection (9) of this section, the department shall make a decision regarding the application within thirty (30) days of the receipt of information specified in subsection (3) of this section. The department shall:

(a) Grant, in whole or in part, the requested Medicaid certification; or

(b) Deny the request.

(5) The department shall notify the applicant, in writing, of the decision, and the basis for denial if applicable.

(6) If an applicant wishes to appeal an adverse determination, the appeal shall be in accordance with Sections 4 and 5 of this administrative regulation.

(7) Except as provided in subsection (8) of this section, if an application for Medicaid certification of converted beds is fully or partially granted and the applicant is not currently a Medicaid certified nursing facility provider, the applicant shall:

(a) Follow the enrollment procedures delineated in 907 KAR 1:672; and

(b) Include a copy of the department's decision granting certification in its enrollment packet.

(8) If the applicant is currently a Medicaid certified nursing facility provider:

(a) All converted beds that may be certified by the department shall be included under the existing provider number; and

(b) The provider shall comply with licensing requirements established in 902 KAR 20:300 and 902 KAR 20:310.

(9) Subsection (4) of this section shall:

(a) Apply to a request for new participation in the Medicaid Program; and

(b) Not apply to a bed previously approved by the department.

Section 3. Enrollment Criteria for Converted Dual-Licensed Hospital-Based Nursing Facility Beds Requesting Participation in Medicaid.

(1) Based on data submitted in the application, relevant factors in the applicant's geographic area shall be considered to assess the need for Medicaid certification of converted beds and shall include:

(a) The total number of free-standing and hospital-based nursing facility beds.

(b) The total number of the following:

Medicaid certified nursing facility beds; and
Medicaid certified hospital-based nursing facility beds;

(c) Survey data reported to the cabinet by providers for the two (2) calendar years preceding the date of receipt of the application, and data collected by the cabinet in accordance with 902 KAR 20:008 for licensed nursing facility beds in the applicant's geographic area relating to:

The occupancy percentage for each of the two (2) preceding calendar years; and
The number of admissions, discharges or deaths;

(d) The impact of the cost of the converted beds on the Medicaid budget;

(e) The current State Health Plan "nursing facility bed need calculations by county and state" maintained by the Cabinet for Health and Family Services, Office of the Certificate of Need; and

(f) Other documentation included in the application that demonstrates the need for Medicaid certification of a converted bed.

(2) The department may consider the following when making a determination of need:

(a) The most current Medicaid nursing facility financial data; and

(b) Other information, including relevant information that the department may have requested from:

The applicant;
Another provider in the applicant's geographic area; or
A medical services trend report.

Section 4. Resolution of Applicant Disputes Prior to an Administrative Hearing.

(1) If an applicant disagrees with the department's determination regarding Medicaid certification, the applicant may:

(a) Request a resolution meeting pursuant to subsections (2), (3), and (4) of this section; or

(b) Submit additional information for consideration in lieu of a request pursuant to subsection (5) of this section.

(2) A written request for a resolution meeting shall be received by the Director of the Department's Division of Long-term Care within thirty (30) calendar days of the date of the department's notice of decision. The request shall:

(a) Identify the disputed issue or issues;

(b) State the basis of the challenge to the department's decision;

(d) State the name, address, and telephone number of an individual expected to attend the resolution meeting on the applicant's behalf.

(3) The department shall, within thirty (30) calendar days of receipt of a request for resolution meeting, send written notice to the applicant of the date, time and place of the meeting.

(4) The resolution meeting shall be conducted by the department in an informal manner. The applicant or the department may present relevant evidence or testimony at the meeting in support of their respective positions.

(5) In lieu of requesting a resolution meeting, an applicant may submit additional information it wishes the department to consider.

(a) The additional information shall be received by the department within thirty (30) days of notice of the department's decision; and

(b) The submission of additional documentation shall not:

Constitute a request for a resolution meeting; and
Extend the thirty (30) day time period for requesting a resolution meeting.

(6) The department may rescind, modify or take no action with regard to its initial adverse decision.

(a) The department shall provide written notice to the provider of the department's decision within thirty (30) calendar days from:

The date of the resolution meeting; or
The date additional information was received for consideration.

(b) The notice shall state the decision and the facts on which it is based, including references to applicable statutes and administrative regulations.

(7) The department may extend a time frame specified in this section, upon written notice to the applicant, if an extension:

(a) Is determined to be necessary for the efficient administration of the resolution meeting process; or

(b) Is needed to prevent a miscarriage of justice with regard to the provider.

Section 5. Administrative Hearing Process. An applicant may appeal an adverse decision rendered by the department. An appeal shall be in accordance with the provisions established in 907 KAR 1:671, Section 9(1) and (3) through (14).

History

RELATES TO: KRS 216B.020(4), (5)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 216B.075, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services has the responsibility for administering the Kentucky Medicaid Program in an efficient, cost-effective manner, consonant with the funds that are available, and consistent with the objectives of the Program. One (1) of these objectives is for recipients to have reasonable access to health care and services under the Medicaid Program, taking into account such factors as geographic location, travel time, choice of providers, and utilization rates. This administrative regulation establishes the process and criteria relating to Medicaid participation for dual-licensed acute care hospital beds that were converted to nursing facility beds pursuant to KRS 216B.020(4), and supplements applicable provisions for provider enrollment in Section 2 of 907 KAR 1:672 and the administrative hearing process in 907 KAR 1:671.
History: 25 Ky.R. 2080; 2629; 26 Ky.R. 65; eff. 8-18-1999; Cert eff. 7-23-2018; Cert eff. 2-5-2025.

907 KAR 1:790 Medicaid service category expenditure information {#sec-907-kar-1-790 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:790}

Section 1. Definitions.

(1) "BBA" means the Balanced Budget Act of 1997 as amended and codified under 42 U.S.C. 1396u-2.

(2) "Department" means the Department for Medicaid Services or its designated agent.

(3) "MCO" means the risk-bearing managed care organization that provides physical or behavioral health services through provider networks on a prepaid capitated basis as either an HMO or a PSN.

(4) "Partnership" means a legal entity that satisfies the requirements of 907 KAR 1:705, Section 5, and while under contract with the department, in accordance with KRS Chapter 45A, agrees to provide or arrange for the provision of health services to Medicaid eligible members on a prepaid capitation payment basis.

Section 2. Medicaid Expenditure Data Requirements.

(1) A Medicaid managed care contract shall comply for financial reporting purposes with the provisions of 2000 Ky. Acts ch. 549, Part IX, 22., g.

(2) A category of Medicaid service reporting requirement shall pertain to a provider who has a managed care contract through one (1) of the following:

(a) A Section 1115 Waiver of the Social Security Act;

(b) The Region 3 Partnership; or

(3) The following categories of service shall be reported to the department:

(a) Inpatient hospital;

(b) Physicians;

(d) Outpatient hospital;

(e) Home health;

(f) Durable medical equipment (DME);

(g) Family planning;

(h) Early and periodic screening, diagnosis and treatment (EPSDT) screens;

(i) Early and periodic screening, diagnosis and treatment (EPSDT) related;

(j) Laboratories;

(k) Dental;

(l) Nonemergency transportation;

(m) Ambulance;

(n) Vision;

(o) Hearing;

(p) Primary care center or federally-qualified health clinic (FQHC);

(q) Rural health clinic;

(r) Qualified Medicare beneficiaries (QMB);

(s) Nurse practitioner or midwife;

(t) Intermediate care facility for individuals with an intellectual disability (ICF-IID);

(u) Pharmacy;

(v) Chiropractic services;

(w) Community mental health centers;

(x) Mental hospital;

(y) Psychiatric residential treatment facilities (PRTF);

(z) Renal dialysis;

(aa) Podiatry;

(bb) Supports for community living (SCL);

(cc) Ambulatory surgical care center;

(dd) Home and community based services;

(ee) Adult day care;

(ff) Model waivers;

(gg) Hospice;

(hh) Preventive;

(ii) Children with special health care needs;

(jj) Targeted case management - emotionally disturbed child;

(kk) Targeted case management - mentally ill adults;

(ll) Other lab or X-ray;

(mm) Nurse anesthetist;

(nn) Title V - disability determination services (DDS);

(oo) School-based services;

(pp) Early intervention - First Steps;

(qq) Brain injury;

(rr) Impact Plus;

(ss) Health Access Nurturing Developmental Services (HANDS);

(tt) Home care waiver;

(uu) Personal care assistance waiver;

(vv) Kentucky Children's Health Insurance Program (KCHIP);

(ww) Empower transportation; and

(xx) Drug rebate.

(4) Other categories shall be added as necessary in accordance with department expenditures in order to meet the reporting requirements of 2000 Ky. Acts ch. 549, Part IX, 22., g.

History

RELATES TO: KRS Chapter 45A, 304.17A, 304.38, 42 C.F.R. 440.230, 41 Subpart B, 42 U.S.C. 1396d(r), 1396u-2
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 440.230, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the provisions relating to Medicaid service category expenditure information for which a managed care organization and the Region 3 Partnership shall report expenditures to the department.
History: 27 Ky.R. 1124; 494; eff. 12-21-2000; TAm 7-16-2013; Crt eff. 12-6-2019; TAm eff. 3-20-2020.

907 KAR 1:835 Michelle P. waiver services and reimbursement {#sec-907-kar-1-835 omnilex-key=us-ky-regs-official--title-907--907 KAR 1:835}

Section 1. Definitions.

(1) "1915(c) home and community based waiver services program" means a Kentucky Medicaid program established pursuant to and in accordance with 42 U.S.C. 1396n(c).

(2) "ADHC" means adult day health care.

(3) "ADHC center" means an adult day health care center licensed in accordance with 902 KAR 20:066.

(4) "ADHC services" means health-related services provided on a regularly-scheduled basis that ensure optimal functioning of a participant who does not require twenty-four (24) hour care in an institutional setting.

(5) "Advanced practice registered nurse" or "APRN" means a person who acts within his or her scope of practice and is licensed in accordance with KRS 314.042.

(6) "Assessment team" means a team which:

(a) Conducts assessment or reassessment services; and

(b) Consists of:

Two (2) registered nurses; or
One (1) registered nurse and one (1) of the following:

a. A social worker;

b. A certified psychologist with autonomous functioning;

c. A licensed psychological practitioner;

d. A licensed marriage and family therapist; or

e. A licensed professional clinical counselor.

(7) "Behavior support specialist" means an individual who has:

(a) A master's degree from an accredited institution with formal graduate course work in a behavioral science; and

(b) At least one (1) year of experience in behavioral programming.

(8) "Blended services" means a nonduplicative combination of Michelle P. waiver services identified in Section 6 of this administrative regulation and participant-directed services identified in Section 7 of this administrative regulation provided pursuant to a participant's approved person-centered service plan.

(9) "Budget allowance" is defined by KRS 205.5605(1).

(10) "Certified psychologist" means an individual who is a certified psychologist in accordance with KRS 319.056.

(11) "Covered services and supports" is defined by KRS 205.5605(3).

(12) "DCBS" means the Department for Community Based Services.

(13) "Department" means the Department for Medicaid Services or its designee.

(14) "Developmental disability" means a severe, chronic disability that:

(a) Is attributable to:

Cerebral palsy or epilepsy; or
Any other condition, excluding mental illness, closely related to an intellectual disability resulting in impairment of general intellectual functioning or adaptive behavior similar to that of an individual with an intellectual disability and which requires treatment or services similar to those required by persons with an intellectual disability;

(b) Is manifested prior to the individual's 22nd birthday;

(d) Results in substantial functional limitations in three (3) or more of the following areas of major life activity:

Self-care;
Understanding and use of language;
Learning;
Mobility;
Self-direction; or
Capacity for independent living.

(15) "Direct care staff" means an individual hired by a Michelle P. waiver provider to provide services to the participant and who:

(a)

a. Is eighteen (18) years of age or older; and

b. Has a high school diploma or GED; or

a. Is twenty-one (21) years of age or older; and

b. Is able to communicate with a participant in a manner that the participant or participant's legal representative or family member can understand;

(b) Has a valid Social Security number or valid work permit if not a U.S. citizen;

(d) Has the ability to keep simple records; and

(e) Is managed by the provider's supervisory staff.

(16) "Electronic signature" is defined by KRS 369.102(8).

(17) "Federal financial participation" is defined in 42 C.F.R. 400.203.

(18) "Home health agency" means an agency that is:

(a) Licensed in accordance with 902 KAR 20:081; and

(b) Medicare and Medicaid certified.

(19) "ICF-IID" means an intermediate care facility for individuals with an intellectual disability.

(20) "Intellectual disability" means an individual has:

(a) Significantly sub-average intellectual functioning;

(b) An intelligence quotient of seventy (70) or below;

Communication;
Self-care;
Home living;
Social or interpersonal skills;
Use of community resources;
Self-direction;
Functional academic skills;
Work;
Leisure; or
Health and safety; and

(d) Had an onset prior to eighteen (18) years of age.

(21) "Intellectual disability professional" means an individual who:

(a) Has at least one (1) year of experience working with individuals with an intellectual or developmental disability;

(b) Meets the personnel and training requirements established in Section 2 of this administrative regulation; and

(c)

Is a doctor of medicine or osteopathy;
Is a registered nurse; or
Holds a bachelor's degree from an accredited institution in a human services field.

(22) "Level of care determination" means a determination that an individual meets the Michelle P. waiver service level of care criteria established in Section 5 of this administrative regulation.

(23) "Licensed clinical social worker" means an individual who meets the licensed clinical social worker requirements established in KRS 335.100.

(24) "Licensed marriage and family therapist" or "LMFT" is defined by KRS 335.300(2).

(25) "Licensed practical nurse" or "LPN" means a person who:

(a) Meets the definition of KRS 314.011(9); and

(b) Works under the supervision of a registered nurse.

(26) "Licensed professional clinical counselor" or "LPCC" is defined by KRS 335.500(3).

(27) "Licensed psychological associate" means an individual who meets the requirements established in KRS 319.064.

(28) "Licensed psychological practitioner" means an individual who:

(a) Meets the requirements established in KRS 319.053; or

(b) Is a certified psychologist with autonomous functioning.

(29) "Licensed psychologist" means an individual who:

(a) Currently possesses a licensed psychologist license in accordance with KRS 319.010(6); and

(b) Meets the licensed psychologist requirements established in 201 KAR Chapter 26.

(30) "MWMA" means the Kentucky Medicaid Waiver Management Application internet portal located at https://www.chfs.ky.gov/agencies/dms/dca/Pages/mwma.aspx.

(31) "Normal babysitting" means general care provided to a child which includes custody, control, and supervision.

(32) "Occupational therapist" is defined by KRS 319A.010(3).

(33) "Occupational therapy assistant" is defined by KRS 319A.010(4).

(34) "Participant" means an individual who:

(a) Is a recipient as defined by KRS 205.8451(9);

(b) Meets the Michelle P. waiver service level of care criteria established in Section 5 of this administrative regulation; and

(c) Meets the eligibility criteria for Michelle P. waiver services established in Section 4 of this administrative regulation.

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

(a) Assists with the design of the program;

(b) Chooses the providers of services; and

(36) "Patient liability" means the financial amount an individual is required to contribute toward cost of care in order to maintain Medicaid eligibility.

(37) "Person-centered service plan" means a written individualized plan of services for a participant that meets the requirements established in Section 8 of this administrative regulation.

(38) "Physical therapist" is defined by KRS 327.010(2).

(39) "Physical therapist assistant" means a skilled health care worker who:

(a) Is certified by the Kentucky Board of Physical Therapy; and

(b) Performs physical therapy and related duties as assigned by the supervising physical therapist.

(40) "Physician assistant" or "PA" is defined by KRS 311.840(3).

(41) "Plan of treatment" means a care plan used by an ADHC center.

(42) "Psychologist with autonomous functioning" means an individual who is licensed in accordance with KRS 319.056.

(43) "Qualified professional in the area of intellectual disabilities" is defined by KRS 202B.010(12).

(44) "Registered nurse" or "RN" means a person who:

(a) Meets the definition established in KRS 314.011(5); and

(b) Has at least one (1) year of experience as a licensed practical nurse or a registered nurse.

(45) "Representative" is defined by KRS 205.5605(6).

(46) "Sex crime" is defined by KRS 17.165(1).

(47) "Social worker" means a person with a bachelor's degree in social work, sociology, or a related field.

(48) "Speech-language pathologist" is defined by KRS 334A.020(9).

(49) "State plan" is defined by 42 C.F.R. 400.203.

(50) "Supervisory staff" means an individual employed by the Michelle P. waiver provider who shall manage direct care staff and who:

(a)

a. Is eighteen (18) years of age or older; and

b. Has a high school diploma or GED; or

Is twenty-one (21) years of age or older;

(b) Has a minimum of one (1) year experience in providing services to individuals with an intellectual or developmental disability;

(d) Has a valid Social Security number or valid work permit if not a U.S. citizen; and

(e) Has the ability to perform required record keeping.

(51) "Support broker" means an individual chosen by a participant from an agency designated by the department to:

(a) Provide training, technical assistance, and support to the participant; and

(b) Assist the participant in any other aspects of PDS.

(52) "Support spending plan" means a plan for a participant that identifies the:

(a) PDS requested;

(b) Employee name;

(d) Hours per month;

(e) Monthly pay;

(f) Taxes;

(g) Budget allowance; and

(h) Twelve (12) month budget.

(53) "Violent crime" is defined by KRS 17.165(3).

Section 2. Non-PDS Provider Participation Requirements.

(1) In order to provide Michelle P. waiver services, excluding participant-directed services, a provider shall be:

(a) Licensed in accordance with:

902 KAR 20:066 if an adult day health care provider;
902 KAR 20:078 if a group home;
902 KAR 20:081 if a home health agency; or
902 KAR 20:091 if a community mental health center; or

(b) Certified by the department in accordance with 907 KAR 12:010 if the provider's type is not listed in paragraph (a) of this subsection.

(2) A Michelle P. waiver provider shall:

(a) Comply with:

907 KAR 1:671;
907 KAR 1:672;
907 KAR 1:673;
This administrative regulation;
The Health Insurance Portability and Accountability Act, 42 U.S.C. 1320d-2, and 45 C.F.R. Parts 160, 162, and 164;
42 U.S.C. 1320d to 1320d-8; and
The provider participation requirements for Supports for Community Living (SCL) providers established in 907 KAR 12:010, Section 3;

(b) Not enroll a participant for whom the provider is unequipped or unable to provide Michelle P. waiver services; and

(3) In order to provide a Michelle P. waiver service in accordance with Section 4 of this administrative regulation, a Michelle P. waiver service provider:

(a) Shall, for a potential employee or volunteer, obtain the results of a Vulnerable Adult Maltreatment Registry check as described in 922 KAR 5:120 or an equivalent out-of-state agency if the individual resided or worked outside of Kentucky during the year prior to employment or volunteerism; and

(b) May use Kentucky's national background check program established by 906 KAR 1:190 to satisfy the background check requirements of paragraph (a) of this subsection.

Section 3. Maintenance of Records.

(1) A Michelle P. waiver provider shall maintain:

(a) A clinical record in the MWMA for each participant that shall contain the following:

Pertinent medical, nursing, and social history;
A comprehensive assessment entered on form MAP 351, Medicaid Waiver Assessment, and signed by the:

a. Assessment team; and

b. Department;

A person-centered service plan completed in accordance with Section 8 of this administrative regulation;
A copy of the MAP-350, Long Term Care Facilities and Home and Community Based Program Certification Form, signed by the participant or his or her legal representative at the time of application or reapplication and each recertification thereafter;
The name of the case manager;
Documentation of all level of care determinations;
All documentation related to prior authorizations, including requests, approvals, and denials;
Documentation of each contact with, or on behalf of, a participant;
Documentation that the participant receiving ADHC services or legal representative was provided a copy of the ADHC center's posted hours of operation;
Documentation that the participant or legal representative was informed of the procedure for reporting complaints; and
Documentation of each service provided. The documentation shall include:

a. The date the service was provided;

b. The duration of the service;

c. The arrival and departure time of the provider, excluding travel time, if the service was provided at the participant's home;

d. Itemization of each service delivered;

e. The participant's arrival and departure time, excluding travel time, if the service was provided outside the participant's home;

f. Progress notes, which shall include documentation of changes, responses, and treatments utilized to meet the participant's needs; and

g. The signature of the service provider; and

(b) Fiscal reports, service records, and incident reports regarding services provided. The reports and records shall be retained for the longer of:

At least six (6) years from the date that a covered service is provided; or
For a minor, three (3) years after the participant reaches the age of majority under state law.

(2) Upon request, a Michelle P. waiver provider shall make information regarding service and financial records available to the:

(a) Department;

(b) Kentucky Cabinet for Health and Family Services, Office of Inspector General or its designee;

(d) United States Government Accountability Office or its designee;

(e) Kentucky Office of the Auditor of Public Accounts or its designee; or

(f) Kentucky Office of the Attorney General or its designee.

Section 4. Participant Eligibility Determinations and Redeterminations.

(1) A Michelle P. waiver service shall be provided to a Medicaid-eligible participant who:

(a) Is determined by the department to meet the Michelle P. waiver service level of care criteria in accordance with Section 5 of this administrative regulation; and

(b) Would, without waiver services, be admitted to an ICF-IID or a nursing facility.

(2) To apply for participation in the program, an individual or individual's representative shall:

(a) Apply for 1915(c) home and community based waiver services via the MWMA; and

(b) Complete and upload into the MWMA a MAP – 115 Application Intake – Participant Authorization.

(3) The department shall perform a Michelle P. waiver service level of care determination for each participant at least once every twelve (12) months or more often if necessary.

(4) A Michelle P. waiver service shall not be provided to an individual who:

(a) Does not require a service other than:

An environmental and minor home adaptation;
Case management; or
An environmental and minor home adaptation and case management;

(b) Is an inpatient of:

A hospital;
A nursing facility; or
An ICF-IID;

(d) Is receiving services from another 1915(c) home and community based waiver services program.

(5) A Michelle P. waiver provider shall inform a participant or the participant's legal representative of the choice to receive:

(a) Michelle P. waiver services; or

(b) Institutional services.

(6) An eligible participant or the participant's legal representative shall select a participating Michelle P. waiver provider from which the participant wishes to receive Michelle P. waiver services.

(7) A Michelle P. waiver provider shall notify the department in writing electronically or in print of a participant's:

(a) Termination from the Michelle P. waiver program;

(b) Admission to an ICF-IID or nursing facility for less than sixty (60) consecutive days;

(d) Admission to a hospital; or

(e) Transfer to another waiver program within the department.

(8) Involuntary termination of a service to a participant by a Michelle P. waiver provider shall require:

(a) Simultaneous notice in writing electronically or in print to the participant or legal representative, the case manager or support broker, and the department at least thirty (30) days prior to the effective date of the action, which shall include:

A statement of the intended action;
The basis for the intended action;
The authority by which the action is taken; and
The participant's right to appeal the intended action through the provider's appeal or grievance process; and

(b) The case manager or support broker in conjunction with the provider to:

Provide the participant with the name, address, and telephone number of each current provider in the state;
Provide assistance to the participant in making contact with another provider;
Arrange transportation for a requested visit to a provider site;
Provide a copy of pertinent information to the participant or legal representative;
Ensure the health, safety, and welfare of the participant until an appropriate placement is secured;
Continue to provide supports until alternative services are secured; and
Provide assistance to ensure a safe and effective service transition.

Section 5. Michelle P. Waiver Service Level of Care Criteria.

(1) An individual shall be determined to have met the Michelle P. waiver service level of care criteria if the individual:

(a) Requires physical or environmental management or rehabilitation, and:

Has a developmental disability or significantly sub-average intellectual functioning;
Requires a protected environment while overcoming the effects of a developmental disability or sub-average intellectual functioning while:

a. Learning fundamental living skills;

b. Obtaining educational experiences which will be useful in self-supporting activities; or

c. Increasing awareness of his or her environment; or

Has a primary psychiatric diagnosis if:

a. The individual possesses care needs listed in subparagraph 1 or 2 of this paragraph;

b. The individual's mental care needs are adequately handled in an ICF-IID; and

c. The individual does not require psychiatric inpatient treatment; or

(b) Has a developmental disability and meets the:

High-intensity nursing care patient status criteria pursuant to 907 KAR 1:022, Section 4(2); or
Low-intensity nursing care patient status criteria pursuant to 907 KAR 1:022, Section 4(3).

(2) An individual who does not require a planned program of active treatment to attain or maintain an optimal level of functioning shall not meet the Michelle P. waiver service level of care criteria.

(3) The department shall not determine that an individual fails to meet the Michelle P. waiver service level of care criteria solely due to the individual's age, length of stay in an institution, or history of previous institutionalization if the individual meets the criteria established in subsection (1) of this section.

Section 6. Covered Services.

(1) A Michelle P. waiver service shall:

(a) Be prior authorized by the department to ensure that the service or modification of the service meets the needs of the participant;

(b) Be provided pursuant to a person-centered service plan or, for a PDS, pursuant to a person-centered service plan and support spending plan;

(c) Except for a PDS, not be provided by a member of the participant's family. A PDS may be provided by a participant's family member; and

(d) Be accessed within sixty (60) days of the date of prior authorization.

(2) To request prior authorization, a provider shall submit to the department a:

(a) Completed MAP 10, Waiver Services Physician's Recommendation, that has been signed and dated by:

A physician;
An advanced practice registered nurse;
A physician assistant; or
An intellectual disability professional; and

(b) Person-centered service plan and MAP 351, Medicaid Waiver Assessment.

(3) Covered Michelle P. waiver services shall include:

(a) A comprehensive assessment, which shall:

Be completed by the department;
Identify a participant's needs and the services the participant or the participant's family cannot manage or arrange for on the participant's behalf;
Evaluate a participant's physical health, mental health, social supports, and environment;
Be requested by an individual seeking Michelle P. waiver services or the individual's family, legal representative, physician, physician assistant, APRN, or intellectual disability professional;
Be conducted by an assessment team; and
Include at least one (1) face-to-face home visit by a member of the assessment team with the participant and, if appropriate, the participant's family;

(b) A reassessment service, which shall:

Be completed by the department;
Determine the continuing need for Michelle P. waiver services and, if appropriate, PDS;
Be performed at least every twelve (12) months;
Be conducted using the same procedures used in an assessment service; and
Not be retroactive;

(c) Case management, which shall meet the requirements established in Section 9 of this administrative regulation, and which shall:

Consist of coordinating the delivery of direct and indirect services to a participant;
Be provided by a case manager who shall:

a. Arrange for a service but not provide a service directly;

b. Contact the participant monthly through a face-to-face visit at the participant's home, in the ADHC center, or the adult day training provider's location; and

c. Assure that service delivery is in accordance with a participant's person-centered service plan;

Not include a group conference;
Include documentation with a detailed monthly summary note in the MWMA, which includes:

a. The month, day, and year for the time period each note covers;

b. Progression, regression, and maintenance toward outcomes identified in the person-centered service plan;

c. The signature, date of signature, and title of the individual preparing the note; and

d. Documentation of at least one (1) face-to-face meeting between the case manager and participant, family member, or legal representative;

Include requiring a participant or legal representative to sign a MAP-350, Long Term Care Facilities and Home and Community Based Program Certification Form, at the time of application or reapplication and at each recertification to document that the individual was informed of the choice to receive Michelle P. waiver services or institutional services; and
Not be provided to a participant by an agency if the agency provides any other Michelle P. waiver service to the participant;

(d) A homemaker service, which shall consist of general household activities and shall:

Be provided by direct care staff;
Be provided to a participant:

a. Who is functionally unable, but would normally perform age-appropriate homemaker tasks; and

b. If the caregiver regularly responsible for homemaker activities is temporarily absent or functionally unable to manage the homemaking activities; and

Include documentation with a detailed note in the MWMA, which shall include:

a. The month, day, and year for the time period each note covers; and

b. The signature, date of signature, and title of the individual preparing the note;

(e) A personal care service, which shall:

Be age appropriate;
Consist of assisting a participant with eating, bathing, dressing, personal hygiene, or other activities of daily living;
Be provided by direct care staff;
Be provided to a participant:

a. Who does not need highly skilled or technical care;

b. For whom services are essential to the participant's health and welfare and not for the participant's family; and

c. Who needs assistance with age-appropriate activities of daily living; and

Include documentation with a detailed note in the MWMA, which shall include:

a. The month, day, and year for the time period each note covers;

b. The signature, date of signature, and title of the individual preparing the note; and

c. The beginning and ending time of service;

(f) An attendant care service, which shall consist of hands-on care that is:

Provided by direct care staff to a participant who:

a. Is medically stable but functionally dependent and requires care or supervision twenty-four (24) hours per day; and

b. Has a family member or other primary caretaker who is employed or attending school and is not able to provide care during working hours;

Not of a general housekeeping nature;
Not provided to a participant who is receiving any of the following Michelle P. waiver services:

a. Personal care;

b. Homemaker;

c. ADHC;

d. Adult day training;

e. Community living supports; or

f. Supported employment; and

Include documentation with a detailed note in the MWMA, which shall include:

a. The month, day, and year for the time period each note covers;

b. The signature, date of signature, and title of the individual preparing the note; and

c. Beginning and ending time of service;

(g) A respite care service, which shall be short term care based on the absence or need for relief of the primary caretaker and:

Be provided by direct care staff who provide services at a level that appropriately and safely meets the medical needs of the participant;
Be provided to a participant who has care needs beyond normal babysitting;
Be used no less than every six (6) months; and
Include documentation with a detailed note in the MWMA, which shall include:

a. The month, day, and year for the time period each note covers;

b. The signature, date of signature, and title of the individual preparing the note; and

c. The beginning and ending time of service;

(h) An environmental and minor home adaptation service, which shall be a physical adaptation to a home that is necessary to ensure the health, welfare, and safety of a participant and which shall:

Meet all applicable safety and local building codes;
Relate strictly to the participant's disability and needs;
Exclude an adaptation or improvement to a home that has no direct medical or remedial benefit to the participant;
Be submitted on a MAP 95 Request for Equipment Form that is uploaded into the MWMA for prior authorization; and
Include documentation with a detailed note in the MWMA, which shall include:

a. The month, day, and year for the time period each note covers; and

b. The signature, date of signature, and title of the individual preparing the note;

(i) Occupational therapy, which shall be:

A physician ordered evaluation of a participant's level of functioning by applying diagnostic and prognostic tests;
Physician-ordered services in a specified amount and duration to guide a participant in the use of therapeutic, creative, and self-care activities to assist the participant in obtaining the highest possible level of functioning;
Training of other Michelle P. waiver providers on improving the level of functioning;
Exclusive of maintenance or the prevention of regression;
Provided by an occupational therapist or an occupational therapy assistant supervised by an occupational therapist in accordance with 201 KAR 28:130; and
Documented with a detailed staff note in the MWMA, which shall include:

a. The month, day, and year for the time period each note covers;

b. Progression, regression, and maintenance toward outcomes identified in the person-centered service plan; and

c. The signature, date of signature, and title of the individual preparing the note;

(j) Physical therapy, which shall:

Be a physician-ordered evaluation of a participant by applying muscle, joint, and functional ability tests;
Be physician-ordered treatment in a specified amount and duration to assist a participant in obtaining the highest possible level of functioning;
Include training of other Michelle P. waiver providers on improving the level of functioning;
Be exclusive of maintenance or the prevention of regression;
Be provided by a physical therapist or a physical therapist assistant supervised by a physical therapist in accordance with 201 KAR 22:001 and 201 KAR 22:053; and
Be documented with a detailed monthly summary note in the MWMA, which shall include:

a. The month, day, and year for the time period each note covers;

b. Progression or lack of progression toward outcomes identified in the person-centered service plan; and

c. The signature, date of signature, and title of the individual preparing the note;

(k) Speech language pathology services, which shall:

Be a physician-ordered evaluation of a participant with a speech or language disorder;
Be a physician-ordered habilitative service in a specified amount and duration to assist a participant with a speech and language disability in obtaining the highest possible level of functioning;
Include training of other Michelle P. waiver providers on improving the level of functioning;
Be provided by a speech-language pathologist; and
Be documented with a detailed monthly summary note in the MWMA, which shall include:

a. The month, day, and year for the time period each note covers;

b. Progression, regression, and maintenance toward outcomes identified in the person-centered service plan; and

c. The signature, date of signature, and title of the individual preparing the note;

(l) An adult day training service, which shall:

Support the participant in daily, meaningful routines in the community;
Stress training in:

a. The activities of daily living;

b. Self-advocacy;

c. Adaptive and social skills; and

d. Vocational skills;

Be provided in a community setting that may:

a. Be a fixed location; or

b. Occur in public venues;

Not be diversional in nature;
If provided on site:

a. Include facility-based services provided on a regularly-scheduled basis;

b. Lead to the acquisition of skills and abilities to prepare the participant for work or community participation; or

c. Prepare the participant for transition from school to work or adult support services;

If provided off site:

a. Include services provided in a variety of community settings;

b. Provide access to community-based activities that cannot be provided by natural or other unpaid supports;

c. Be designed to result in increased ability to access community resources without paid supports;

d. Provide the opportunity for the participant to be involved with other members of the general population; and

e. Be provided as:

(i) An enclave or group approach to training in which participants work as a group or are dispersed individually throughout an integrated work setting with people without disabilities;

(ii) A mobile crew performing work in a variety of community businesses or other community settings with supervision by the provider; or

(iii) An entrepreneurial or group approach to training for participants to work in a small business created specifically by or for the participant or participants;

Ensure that any participant performing productive work that benefits the organization is paid commensurate with compensation to members of the general work force doing similar work;
Require that an adult day training service provider conduct, at least annually, an orientation informing the participant of supported employment and other competitive opportunities in the community;
Be provided at a time mutually agreed to by the participant and Michelle P. waiver provider;

a. Be provided to participants of age twenty-two (22) years or older; or

b. Be provided to participants of age sixteen (16) to twenty-one (21) years as a transition process from school to work or adult support services; and

Be documented in the MWMA with:

a. A detailed monthly summary note, which shall include:

(i) The month, day, and year for the time period each note covers;

(ii) Progression, regression, and maintenance toward outcomes identified in the person-centered service plan; and

(iii) The signature, date of signature, and title of the individual preparing the note; and

b. A time and attendance record, which shall include:

(i) The date of service;

(ii) The beginning and ending time of the service;

(iii) The location of the service; and

(iv) The signature, date of signature, and title of the individual providing the service;

(m) A supported employment service, which shall:

Be intensive, ongoing support for a participant to maintain paid employment in an environment in which an individual without a disability is employed;
Include attending to a participant's personal care needs;
Be provided in a variety of settings;
Be provided on a one-to-one basis;
Be unavailable under a program funded by either 29 U.S.C. Chapter 16 or 34 C.F.R. Subtitle B, Chapter III (34 C.F.R. Parts 300 to 399), proof of which shall be documented in the participant's file;
Exclude work performed directly for the supported employment provider;
Be provided by a staff person who has completed a supported employment training curriculum conducted by staff of the cabinet or its designee;
Be documented in the MWMA by:

a. A detailed monthly summary note, which shall include:

(i) The month, day, and year for the time period each note covers;

(ii) Progression, regression, and maintenance toward outcomes identified in the person-centered service plan; and

(iii) The signature, date of signature, and title of the individual preparing the note; and

b. A time and attendance record, which shall include:

(i) The date of service;

(ii) The beginning and ending time of the service;

(iii) The location of the service; and

(iv) The signature, date of signature, and title of the individual providing the service;

(n) A behavioral support service, which shall:

Be the systematic application of techniques and methods to influence or change a behavior in a desired way;
Be provided to assist the participant to learn new behaviors that are directly related to existing challenging behaviors or functionally equivalent replacement behaviors for identified challenging behaviors;
Include a functional assessment of the participant's behavior, which shall include:

a. An analysis of the potential communicative intent of the behavior;

b. The history of reinforcement for the behavior;

c. Critical variables that preceded the behavior;

d. Effects of different situations on the behavior; and

e. A hypothesis regarding the motivation, purpose, and factors that maintain the behavior;

Include the development of a behavioral support plan, which shall:

a. Be developed by the behavior support specialist;

b. Be implemented by Michelle P. waiver provider staff in all relevant environments and activities;

c. Be revised as necessary;

d. Define the techniques and procedures used;

e. Be designed to equip the participant to communicate his or her needs and to participate in age-appropriate activities;

f. Include the hierarchy of behavior interventions ranging from the least to the most restrictive;

g. Reflect the use of positive approaches; and

h. Prohibit the use of restraints, seclusion, corporal punishment, verbal abuse, and any procedure that denies private communication, requisite sleep, shelter, bedding, food, drink, or use of a bathroom facility;

Include the provision of training to other Michelle P. waiver providers concerning implementation of the behavioral support plan;
Include the monitoring of a participant's progress, which shall be accomplished by:

a. The analysis of data concerning the frequency, intensity, and duration of a behavior; and

b. The reports of a Michelle P. waiver provider involved in implementing the behavior support plan;

Provide for the design, implementation, and evaluation of systematic environmental modifications;
Be provided by a behavior support specialist; and
Be documented in the MWMA by a detailed staff note, which shall include:

a. The date of service;

b. The beginning and ending time; and

c. The signature, date of signature, and title of the behavior support specialist;

(o) An ADHC service, which shall:

Be provided to a participant who is at least twenty-one (21) years of age;
Include the following basic services and necessities provided to participants during the posted hours of operation:

b. Meal service corresponding with hours of operation with a minimum of one (1) meal per day and therapeutic diets as required;

c. Snacks;

d. Supervision by an RN;

e. Age and diagnosis appropriate daily activities; and

f. Routine services that meet the daily personal and health care needs of a participant, including:

(i) Monitoring of vital signs;

(ii) Assistance with activities of daily living; and

(iii) Monitoring and supervision of self-administered medications, therapeutic programs, and incidental supplies and equipment needed for use by a participant;

Include developing, implementing, and maintaining nursing policies for nursing or medical procedures performed in the ADHC center;
Include respite care services pursuant to paragraph (g) of this subsection;
Be provided to a participant by the health team in an ADHC center, which may include:

a. A physician;

b. A physician assistant;

c. An APRN;

d. An RN;

e. An LPN;

f. An activities director;

g. A physical therapist;

h. A physical therapist assistant;

i. An occupational therapist;

j. An occupational therapy assistant;

k. A speech-language pathologist;

l. A social worker;

m. A nutritionist;

n. A health aide;

o. An LPCC;

p. An LMFT;

q. A certified psychologist with autonomous functioning; or

r. A licensed psychological practitioner; and

Be provided pursuant to a plan of treatment that shall:

a. Be developed and signed by each member of the plan of treatment team, which shall include the participant or a legal representative of the participant;

c. Be developed annually from information on the MAP 351, Medicaid Waiver Assessment, and revised as needed; and

(p) Community living supports, which shall:

Be provided to facilitate independence and promote integration into the community for a participant residing in his or her own home or in his or her family's home;
Be supports and assistance that shall be related to chosen outcomes, not be diversional in nature, and may include:

a. Routine household tasks and maintenance;

b. Activities of daily living;

c. Personal hygiene;

d. Shopping;

e. Money management;

f. Medication management;

g. Socialization;

h. Relationship building;

i. Leisure choices;

j. Participation in community activities;

k. Therapeutic goals; or

l. Nonmedical care not requiring nurse or physician intervention;

Not replace other work or day activities;
Be provided on a one-on-one basis;
Not be provided at an adult day training or children's day habilitation site;
Be documented in the MWMA by:

a. A time and attendance record, which shall include:

(i) The date of the service;

(ii) The beginning and ending time of the service; and

(iii) The signature, date of signature, and title of the individual providing the service; and

b. A detailed monthly summary note, which shall include:

(i) The month, day, and year for the time period each note covers;

(ii) Progression, regression, and maintenance toward outcomes identified in the person-centered service plan; and

(iii) The signature, date of signature, and title of the individual preparing the summary note; and

Be limited to sixteen (16) hours per day alone or in combination with adult day training and supported employment.

Section 7. Participant-Directed Services.

(1) Covered services and supports provided to a participant receiving PDS shall be nonmedical and include:

(a) A home and community support service, which shall:

Be available only as participant-directed services;
Be provided in the participant's home or in the community;
Be based upon therapeutic goals and not be diversional in nature;
Not be provided to an individual if the same or similar service is being provided to the individual via non-PDS Michelle P. waiver services; and
Include:

a. Assistance, support, or training in activities including meal preparation, laundry, or routine household care or maintenance;

b. Activities of daily living including bathing, eating, dressing, personal hygiene, shopping, or the use of money;

c. Reminding, observing, or monitoring of medications;

d. Nonmedical care that does not require a nurse or physician intervention;

e. Respite; or

f. Socialization, relationship building, leisure choice, or participation in generic community activities;

(b) Goods and services, which shall:

Be individualized;
Be utilized to reduce the need for personal care or to enhance independence within the home or community of the participant;
Not include experimental goods or services; and
Not include chemical or physical restraints;

Be available only as participant-directed services;
Be provided in a community setting;
Be tailored to the participant's specific personal outcomes related to the acquisition, improvement, and retention of skills and abilities to prepare and support the participant for work or community activities, socialization, leisure, or retirement activities;
Be based upon therapeutic goals and not be diversional in nature; and
Not be provided to an individual if the same or similar service is being provided to the individual via non-PDS Michelle P. waiver services; or

(d) Financial management, which shall:

Include managing, directing, or dispersing a participant's funds identified in the participant's approved PDS budget;
Include payroll processing associated with the individuals hired by a participant or participant's representative;
Include withholding local, state, and federal taxes and making payments to appropriate tax authorities on behalf of a participant;
Be performed by an entity:

a. Enrolled as a Medicaid provider in accordance with 907 KAR 1:672; and

b. With at least two (2) years of experience working with individuals possessing the same or similar level of care needs as those referenced in Section 5 of this administrative regulation;

Include preparing fiscal accounting and expenditure reports for:

a. A participant or participant's representative; and

b. The department.

(2) To be covered, a PDS shall be specified in a person-centered service plan.

(3) Reimbursement for a PDS shall not exceed the department's allowed reimbursement for the same or similar service provided in a non-PDS Michelle P. waiver setting except that respite may be provided in excess of the cap established in Section 14(2) of this administrative regulation if:

(a) Necessary per the participant's person-centered service plan; and

(b) Approved by the department in accordance with subsection (13) of this section.

(4) A participant, including a married participant, shall choose providers and a participant's choice shall be reflected or documented in the person-centered service plan.

(5)

(a) A participant may designate a representative to act on the participant's behalf.

(b) The PDS representative shall:

Be twenty-one (21) years of age or older;
Not be monetarily compensated for acting as the PDS representative or providing a PDS; and
Be appointed by the participant on a MAP-2000, Initiation/Termination of Consumer Directed Option (CDO)/Participant Directed Services (PDS).

(6) A participant may voluntarily terminate PDS by completing a MAP-2000, Initiation/Termination of Consumer Directed Option (CDO)/Participant Directed Services (PDS), and submitting it to the support broker.

(7) The department shall immediately terminate a participant from PDS if:

(a) Imminent danger to the participant's health, safety, or welfare exists;

(b) The participant fails to pay patient liability;

(c) The participant's person-centered service plan indicates he or she requires more hours of service than the program can provide; thus, jeopardizing the participant's safety and welfare due to being left alone without a caregiver present; or

(d) The participant, caregiver, family, or guardian threatens or intimidates a support broker or other PDS staff.

(8) The department may terminate a participant from PDS if it determines that the participant's PDS provider has not adhered to the person-centered service plan.

(9) Except for a termination required by subsection (7) of this section, prior to a participant's termination from PDS, the support broker shall:

(a) Notify the assessment or reassessment service provider of potential termination;

(b) Assist the participant in developing a resolution and prevention plan;

(c) Allow at least thirty (30) but no more than ninety (90) days for the participant to resolve the issue, develop and implement a prevention plan, or designate a PDS representative;

(d) Complete, and submit to the department, a MAP-2000, Initiation/Termination of Consumer Directed Option (CDO)/Participant Directed Services (PDS), terminating the participant from PDS if the participant fails to meet the requirements in paragraph (c) of this subsection; and

(e) Assist the participant in transitioning back to traditional Michelle P. waiver services.

(10) Upon an involuntary termination of PDS, the department shall:

(a) Notify a participant in writing of its decision to terminate the participant's PDS participation; and

(b) Inform the participant of the right to appeal the department's decision in accordance with Section 16 of this administrative regulation.

(11) A PDS provider shall:

(a) Be selected by the participant;

(b) Submit a completed Kentucky Consumer Directed Options/Participant Directed Services Employee/Provider Contract to the support broker;

(d)

Be a citizen of the United States with a valid Social Security number; or
Possess a valid work permit if not a U.S. citizen;

(e) Be able to communicate effectively with the participant, participant's representative, or family;

(f) Be able to understand and carry out instructions;

(g) Be able to keep records as required by the participant;

(h) Submit to a criminal background check from the Kentucky Administrative Office of the Courts and equivalent out-of-state agency if the individual resided or worked outside of Kentucky during the twelve (12) months prior to being a PDS provider;

(i) Submit to a check of the:

Nurse Aide Abuse Registry maintained in accordance with 906 KAR 1:100 and not be found on the registry;
Vulnerable Adult Maltreatment Registry maintained in accordance with 922 KAR 5:120 and not be found on the registry; and
Central Registry maintained in accordance with 922 KAR 1:470 and not be found on the registry;

(j) Not have pled guilty or been convicted of committing a sex crime or violent crime;

(k) Complete training on the reporting of abuse, neglect, or exploitation in accordance with KRS 209.030 or 620.030 and on the needs of the participant;

(l) Be approved by the department;

(m) Maintain and submit timesheets documenting hours worked; and

(n) Be a friend, spouse, parent, family member, other relative, employee of a provider agency, or other person hired by the participant.

(12) A parent, parents combined, or a spouse shall not provide more than forty (40) hours of services in a calendar week (Sunday through Saturday) regardless of the number of children who receive waiver services.

(13)

(a) The department shall establish a twelve (12) month budget for a participant based on the participant's person-centered service plan.

(b) A participant's twelve (12) month budget shall not exceed $40,000 unless:

The participant's support broker requests a budget adjustment to a level higher than $40,000; and
The department approves the adjustment.

(c) The department shall consider the following factors in determining whether to grant a twelve (12) month budget adjustment:

If the proposed services are necessary to prevent imminent institutionalization;
The cost effectiveness of the proposed services;
Protection of the participant's health, safety, and welfare; and
If a significant change has occurred in the participant's:

a. Physical condition, resulting in additional loss of function or limitations to activities of daily living and instrumental activities of daily living;

b. Natural support system; or

c. Environmental living arrangement, resulting in the participant's relocation.

(d) A participant's twelve (12) month budget may encompass a service or any combination of services listed in subsection (1) of this section, if each service is established in the participant's person-centered service plan and approved by the department.

(14) Unless approved by the department pursuant to subsection (13)(a) through (c) of this section, if a PDS is expanded to a point in which expansion necessitates a twelve (12) month budget increase, the entire service shall only be covered via traditional (non-PDS) waiver services.

(15) A support broker shall:

(a) Provide needed assistance to a participant with any aspect of PDS or blended services;

(b) Be available to a participant twenty-four (24) hours per day, seven (7) days per week;

(d) Continually monitor a participant's health, safety, and welfare; and

(e) Complete or revise a person-centered service plan in accordance with Section 8 of this administrative regulation.

(16)

(a) A support broker or case manager may conduct an assessment or reassessment for a PDS participant.

(b) A PDS assessment or reassessment performed by a support broker shall comply with the assessment or reassessment provisions established in this administrative regulation.

(17) Services provided by a support broker shall meet the conflict free requirements established for case management in Section 9(4)(f) and 9(5) of this administrative regulation.

Section 8. Person-centered Service Plan Requirements.

(1) A person-centered service plan shall be established:

(a) For each participant; and

(b) By the participant's person-centered team.

(2) A participant's person-centered service plan shall:

(a) Be developed by:

The participant, the participant's guardian, or the participant's representative;
The participant's case manager;
The participant's person-centered team; and
Any other individual chosen by the participant if the participant chooses any other individual to participate in developing the person-centered service plan;

(b) Use a process that:

Provides the necessary information and support to empower the participant, the participant's guardian, or participant's legal representative to direct the planning process in a way that empowers the participant to have the freedom and support to control the participant's schedules and activities without coercion or restraint;
Is timely and occurs at times and locations convenient for the participant;
Reflects cultural considerations of the participant;
Provides information:

a. Using plain language in accordance with 42 C.F.R. 435.905(b); and

b. In a way that is accessible to an individual with a disability or who has limited English proficiency;

Offers an informed choice defined as a choice from options based on accurate and thorough knowledge and understanding to the participant regarding the services and supports to be received and from whom;
Includes a method for the participant to request updates to the person-centered service plan as needed;
Enables all parties to understand how the participant:

a. Learns;

b. Makes decisions; and

c. Chooses to live and work in the participant's community;

Discovers the participant's needs, likes, and dislikes;
Empowers the participant's person-centered team to create a person-centered service plan that:

a. Is based on the participant's:

(i) Assessed clinical and support needs;

(ii) Strengths;

(iii) Preferences; and

(iv) Ideas;

b. Encourages and supports the participant's:

(i) Rehabilitative needs;

(ii) Habilitative needs; and

(iii) Long term satisfaction;

c. Is based on reasonable costs given the participant's support needs;

d. Includes:

(i) The participant's goals;

(ii) The participant's desired outcomes; and

(iii) Matters important to the participant;

e. Includes a range of supports including funded, community, and natural supports that shall assist the participant in achieving identified goals;

f. Includes:

(i) Information necessary to support the participant during times of crisis; and

(ii) Risk factors and measures in place to prevent crises from occurring;

g. Assists the participant in making informed choices by facilitating knowledge of and access to services and supports;

h. Records the alternative home and community-based settings that were considered by the participant;

i. Reflects that the setting in which the participant resides was chosen by the participant;

j. Is understandable to the participant and to the individuals who are important in supporting the participant;

k. Identifies the individual or entity responsible for monitoring the person-centered service plan;

l. Is finalized and agreed to with the informed consent of the participant or participant's legal representative in writing with signatures by each individual who will be involved in implementing the person-centered service plan;

m. Shall be distributed to the individual and other people involved in implementing the person-centered service plan;

n. Includes those services that the individual elects to self-direct; and

o. Prevents the provision of unnecessary or inappropriate services and supports; and

Have access to make private phone calls, texts, or emails at the participant's preference or convenience;

a. Choose when and what to eat;

b. Have access to food at any time;

c. Choose with whom to eat or whether to eat alone; and

d. Choose appropriating clothing according to the:

(i) Participant's preference;

(ii) Weather; and

(iii) Activities to be performed.

(3) If a participant's person-centered service plan includes ADHC services, the ADHC services plan of treatment shall be addressed in the person-centered service plan.

(4)

(a) A participant's person-centered service plan shall be:

Entered into the MWMA by the participant's case manager; and
Updated in the MWMA by the participant's case manager.

(b) A participant or participant's authorized representative shall complete and upload into the MWMA a MAP - 116 Service Plan – Participant Authorization prior to or at the time the person-centered service plan is uploaded into the MWMA.

Section 9. Case Management Requirements.

(1) A case manager shall:

(a) Have a bachelor's degree from an accredited institution in a human services field and be supervised by:

A qualified professional in the area of intellectual disabilities who:

a. Has at least one (1) year of experience working directly with individuals with an intellectual disability or a developmental disability;

b. Meets the federal educational requirements for a qualified intellectual disability professional established in 42 C.F.R. 483.430; and

c. Provides documentation of education and experience;

A registered nurse who has at least two (2) years of experience working with individuals with an intellectual or a development disability;
An individual with a bachelor's degree in a human service field who has at least two (2) years of experience working with individuals with an intellectual or a developmental disability;
A licensed clinical social worker who has at least two (2) years of experience working with individuals with an intellectual or a developmental disability;
A licensed marriage and family therapist who has at least two (2) years of experience working with individuals with an intellectual or a developmental disability;
A licensed professional clinical counselor who has at least two (2) years of experience working with individuals with an intellectual or a developmental disability;
A certified psychologist or licensed psychological associate who has at least two (2) years of experience working with individuals with an intellectual or a developmental disability; or
A licensed psychological practitioner or certified psychologist with autonomous functioning who has at least two (2) years of experience working with individuals with an intellectual or a developmental disability;

(b) Be a registered nurse;

(d) Be a licensed clinical social worker;

(e) Be a licensed marriage and family therapist;

(f) Be a licensed professional clinical counselor;

(g) Be a licensed psychologist; or

(h) Be a licensed psychological practitioner.

(2) A case manager shall:

(a) Communicate in a way that ensures the best interest of the participant;

(b) Be able to identify and meet the needs of the participant;

(c)

Be competent in the participant's language either through personal knowledge of the language or through interpretation; and
Demonstrate a heightened awareness of the unique way in which the participant interacts with the world around the participant;

(d) Ensure that:

The participant is educated in a way that addresses the participant's:

a. Need for knowledge of the case management process;

b. Personal rights; and

c. Risks and responsibilities as well as awareness of available services; and

All individuals involved in implementing the participant's person-centered service plan are informed of changes in the scope of work related to the person-centered service plan as applicable;

(e) Have a code of ethics to guide the case manager in providing case management, which shall address:

Advocating for standards that promote outcomes of quality;
Ensuring that no harm is done;
Respecting the rights of others to make their own decisions;
Treating others fairly; and
Being faithful and following through on promises and commitments;

(f)

Lead the person-centered service planning team; and
Take charge of coordinating services through team meetings with representatives of all agencies involved in implementing a participant's person-centered service plan;

(g)

Include the participant's participation or legal representative's participation in the case management process; and
Make the participant's preferences and participation in decision making a priority;

(h) Document:

A participant's interactions and communications with other agencies involved in implementing the participant's person-centered service plan; and
Personal observations;

(i) Advocate for a participant with service providers to ensure that services are delivered as established in the participant's person-centered service plan;

(j) Be accountable to:

A participant to whom the case manager provides case management in ensuring that the participant's needs are met;
A participant's person-centered team and provide leadership to the team and follow through on commitments made; and
The case manager's employer by following the employer's policies and procedures;

(k) Stay current regarding the practice of case management and case management research;

(l) Assess the quality of services, safety of services, and cost effectiveness of services being provided to a participant in order to ensure that implementation of the participant's person-centered service plan is successful and done so in a way that is efficient regarding the participant's financial assets and benefits;

(m) Document services provided to a participant by entering the following into the MWMA:

A monthly department approved person-centered monitoring tool; and
A monthly entry, which shall include:

a. The month and year for the time period the note covers;

b. An analysis of progress toward the participant's outcome or outcomes;

c. Identification of barriers to achievement of outcomes;

d. A projected plan to achieve the next step in achievement of outcomes;

e. The signature and title of the case manager completing the note; and

f. The date the note was generated;

(n) Accurately reflect in the MWMA if a participant is:

Terminated from the Michelle P. waiver program;
Admitted to an intermediate care facility for individuals with an intellectual disability;
Admitted to a hospital;
Admitted to a skilled nursing facility;
Transferred to another Medicaid 1915(c) home and community based waiver service program; or
Relocated to a different address; and

(o) Provide information about participant-directed services to the participant or the participant's guardian:

At the time the initial person-centered service plan is developed;
At least annually thereafter; and
Upon inquiry from the participant or participant's guardian.

(3) If a participant:

(a) Voluntarily terminates participation in the Michelle P. waiver program in order to be admitted to a hospital, to a nursing facility, or to an intermediate care facility for individuals with an intellectual disability, the participant's case manager shall enter the request into the MWMA; or

(b) Is transferred to another 1915(c) home and community based waiver services program, the case manager shall enter the transfer request into the MWMA.

(4) Case management shall:

(a) Consist of coordinating the delivery of direct and indirect services to a participant;

(b) Be provided by a case manager who shall:

Arrange for a service but not provide a service directly;
Contact the participant monthly through a face-to-face visit at the participant's home, in the ADHC center, or at the adult day training provider's location;
Assure that service delivery is in accordance with a participant's person-centered service plan; and
Meet the requirements of this section;

(d) Include documenting:

The following regarding notes:

a. The signature of the individual preparing the note;

b. The date of the signature; and

c. The title of the individual preparing the note; and

At least one (1) face-to-face meeting between the case manager and participant, family member, or legal representative;

(e) Include requiring a participant or legal representative to sign a MAP-350, Long Term Care Facilities and Home and Community Based Program Certification Form, at the time of application or reapplication and at each recertification to document that the individual was informed of the choice to receive Michelle P. waiver or institutional services; and

(f) Not be provided to a participant by an agency if the agency provides any other Michelle P. waiver service to the participant.

(5)

(a) Case management for any participant who begins receiving Michelle P. waiver services after the effective date of this administrative regulation shall be conflict free except as allowed in paragraph (b) of this subsection.

(b)

Conflict free case management shall be a scenario in which a provider including any subsidiary, partnership, not-for-profit, or for-profit business entity that has a business interest in the provider who renders case management to a participant shall not also provide another 1915(c) home and community based waiver service to that same participant unless the provider is the only willing and qualified Michelle P. waiver provider within thirty (30) miles of the participant's residence.
An exemption to the conflict free case management requirement shall be granted if:

a. A participant requests the exemption;

b. The participant's case manager provides documentation of evidence to the department that there is a lack of a qualified case manager within thirty (30) miles of the participant's residence;

c. The participant or participant's representative and case manager signs a completed MAP - 531 Conflict-Free Case Management Exemption; and

d. The participant, participant's representative, or case manager uploads the completed MAP - 531 Conflict-Free Case Management Exemption into the MWMA.

If a case management service is approved to be provided despite not being conflict free, the case management provider shall:

a. Document conflict of interest protections, separating case management and service provision functions within the provider entity; and

b. Demonstrate that the participant is provided with a clear and accessible alternative dispute resolution process.

An exemption to the conflict free case management requirement shall be requested upon reassessment or at least annually.

(c) A participant who receives Michelle P. waiver services prior to the effective date of this administrative regulation shall transition to conflict free case management when the participant's next level of care determination occurs.

(d) During the transition to conflict free case management, any case manager providing case management to a participant shall educate the participant and members of the participant's person-centered team of the conflict free case management requirement in order to prepare the participant to decide, if necessary, to change the participant's:

Case manager; or
Provider of non-case management Michelle P. waiver services.

(6) Case management shall involve:

(a) A constant recognition of what is and is not working regarding a participant; and

(b) Changing what is not working.

Section 10. Annual Expenditure Limit Per Individual.

(1) The department shall have an annual expenditure limit per individual receiving services via this administrative regulation.

(2) The limit referenced in subsection (1) of this section shall:

(a) Be an overall limit applied to all services whether PDS, Michelle P. waiver services not provided as PDS, or a combination of PDS and Michelle P. waiver services; and

(b) Equal $63,000 per year.

Section 11. Incident Reporting Process.

(1)

(a) There shall be two (2) classes of incidents.

(b) The following shall be the two (2) classes of incidents:

An incident; or
A critical incident.

(2) An incident shall be any occurrence that impacts the health, safety, welfare, or lifestyle choice of a participant and includes:

(a) A minor injury;

(b) A medication error without a serious outcome; or

(3) A critical incident shall be an alleged, suspected, or actual occurrence of an incident that:

(a) Can reasonably be expected to result in harm to a participant; and

(b) Shall include:

Abuse, neglect, or exploitation;
A serious medication error;
Death;
A homicidal or suicidal ideation;
A missing person; or
Other action or event that the provider determines may result in harm to the participant.

(4)

(a) If an incident occurs, the Michelle P. waiver provider shall:

Report the incident by making an entry into the MWMA that includes details regarding the incident; and
Be immediately assessed for potential abuse, neglect, or exploitation.

(b) If an assessment of an incident indicates that the potential for abuse, neglect, or exploitation exists:

The incident shall immediately be considered a critical incident;
The critical incident procedures established in subsection (5) of this section shall be followed; and
The Michelle P. waiver provider shall report the incident to the participant's case manager and participant's guardian, if the participant has a guardian, within twenty-four (24) hours of discovery of the incident.

(5)

(a) If a critical incident occurs, the individual who witnessed the critical incident or discovered the critical incident shall immediately act to ensure the health, safety, and welfare of the at-risk participant.

(b) If the critical incident:

Requires reporting of abuse, neglect, or exploitation, the critical incident shall be immediately reported via the MWMA; or
Does not require reporting of abuse, neglect, or exploitation, the critical incident shall be reported via the MWMA within eight (8) hours of discovery.

Conduct an immediate investigation and involve the participant's case manager in the investigation; and
Prepare a report of the investigation, which shall be recorded in the MWMA and shall include:

a. Identifying information of the participant involved in the critical incident and the person reporting the critical incident;

b. Details of the critical incident; and

c. Relevant participant information including:

(i) A listing of recent medical concerns;

(ii) An analysis of causal factors; and

(iii) Recommendations for preventing future occurrences.

(6)

(a) Following a death of a participant receiving Michelle P. waiver services from a Michelle P. waiver provider, the Michelle P. waiver provider shall enter mortality data documentation into the MWMA within fourteen (14) days of the death.

(b) Mortality data documentation shall include:

The participant's person-centered service plan at the time of death;
Any current assessment forms regarding the participant;
The participant's medication administration records from all service sites for the past three (3) months along with a copy of each prescription, if applicable;
Progress notes regarding the participant from all service elements for the past thirty (30) days, including case management notes;
The results of the participant's most recent physical exam, if available;
All incident reports, if any exist, regarding the participant for the past six (6) months;
The most recent psychological evaluation of the participant, if applicable and available;
A full life history and any updates;
Emergency medical services notes regarding the participant if available;
The police report if available;
A copy of:

a. The participant's advance directive, medical order for scope of treatment, living will, or health care directive if applicable; and

b. Any functional assessment of behavior or positive behavior support plan regarding the participant that has been in place over any part of the past twelve (12) months; and

A record of all medical appointments or emergency room visits by the participant within the past twelve (12) months, if available.

(7) A Michelle P. waiver provider shall document all medication error details on a medication error log retained on file at the Michelle P. waiver provider site.

Section 12. Michelle P. Waiver Program Waiting List.

(1)

(a) If a slot is not available for an individual to enroll in the Michelle P. Waiver Program at the time of applying for the program, the individual shall be placed on a statewide Michelle P. Waiver Program waiting list:

In accordance with subsection (2) of this section; and
Maintained by the department.

(b) Each slot for the Michelle P. Waiver Program shall be contingent upon:

Biennium budget funding;
Federal financial participation; and
Centers for Medicare and Medicaid Services approval.

(2) For an individual to be placed on the Michelle P. Waiver Program waiting list, the individual or individual's representative shall:

(a) Apply for 1915(c) home and community based waiver services via the MWMA; and

(b) Complete and upload to the MWMA a MAP – 115 Application Intake – Participant Authorization.

(3) Individuals shall be placed on the Michelle P. Waiver Program waiting list in the chronological order that each application is received and validated by the department.

(4) The department shall send a written notice of placement on the Michelle P. Waiver Program waiting list to the:

(a) Applicant; or

(b) Applicant's legal representative.

(5) At least annually, the department shall contact each individual, or individual's legal representative, on the Michelle P. Waiver Program waiting list to:

(a) Verify the accuracy of the individual's information; and

(b) Verify whether the individual wishes to continue to pursue enrollment in the Michelle P. Waiver Program.

(6) The department shall remove an individual from the Michelle P. Waiver Program waiting list if:

(a) The individual is deceased;

(b) The department notifies the individual or the individual's legal representative of potential funding approved to enroll the individual in the Michelle P. Waiver Program and the individual or individual's legal representative:

Declines the potential funding for enrollment in the program; and
Does not request to remain on the Michelle P. Waiver Program waiting list; or

(c) Pursuant to subsection (5) of this section, the individual elects to not continue to pursue enrollment in the Michelle P. Waiver Program.

(7) If, after being notified by the department of potential funding approved to enroll the individual in the Michelle P. Waiver Program, the individual or individual's legal representative declines the potential funding but requests to remain on the Michelle P. Waiver Program waiting list, the individual shall:

(a) Lose his or her current position on the waiting list; and

(b) Be moved to the bottom of the waiting list.

(8) If the department removes an individual from the Michelle P. Waiver Program waiting list pursuant to this section, the department shall send written notice of the removal to:

(a) The individual or the individual's legal representative; and

(b) The individual's Michelle P. Waiver Program coordination provider if the individual has a Michelle P. Waiver Program coordination provider.

(9) The removal of an individual from the Michelle P. Waiver Program waiting list shall not preclude the individual from applying for Michelle P. Waiver Program participation in the future.

(10)

(a) An individual who is placed on the Michelle P. Waiver Program waiting list shall be informed about and told how to apply for Medicaid state plan services for which the individual might qualify.

(b) An individual who is under twenty-one (21) years of age and who is placed on the Michelle P. Waiver Program waiting list shall also be informed about Early and Periodic Screening, Diagnostic, and Treatment services.

Section 13. Use of Electronic Signatures. 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.

Section 14. Reimbursement.

(1) The following Michelle P. waiver services, alone or in any combination, shall be limited to forty (40) hours per calendar week:

(a) Homemaker;

(b) Personal care;

(d) Supported employment;

(e) Adult day health care;

(f) Adult day training;

(g) Community living supports;

(h) Physical therapy;

(i) Occupational therapy;

(j) Speech therapy; and

(k) Behavior supports.

(2) Respite services shall not exceed $4,000 per member, per calendar year.

(3) Environmental and minor home adaptation services shall not exceed $500 per member, per calendar year.

(4)

(a) The department shall reimburse for a Michelle P. waiver service at the lesser of billed charges or the base payment rate for each unit of service.

(b) The unit amounts, base payment rate, and other limits established in the following table shall apply:

Section 15. Federal Financial Participation and Approval. The department's coverage and reimbursement for services pursuant to this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval of the coverage and reimbursement.

Section 16. Appeal Rights. An appeal of a department determination regarding Michelle P. waiver service level of care or services to a participant shall be in accordance with 907 KAR 1:563.

Section 17. Federal Approval and Federal Financial Participation. The department's coverage of and reimbursement for services pursuant to this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval for the coverage and reimbursement.

Section 18. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "MAP – 115 Application Intake – Participant Authorization", May 2015;

(b) "MAP – 116 Service Plan – Participant Authorization", May 2015;

(d) "MAP 95 Request for Equipment Form", June 2007;

(e) "MAP - 350, Long Term Care Facilities and Home and Community Based Program Certification Form", June 2015;

(f) "MAP 351, Medicaid Waiver Assessment", July 2015;

(g) "MAP-2000, Initiation/Termination of Consumer Directed Option (CDO)/Participant Directed Services (PDS)", June 2015;

(h) "MAP 10, Waiver Services Physician's Recommendation", June 2015; and

(i) "Kentucky Consumer Directed Options/Participant Directed Services Employee/Provider Contract", June 2015.

(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/mpw.aspx.

History

RELATES TO: KRS 17.165(1), (3), 202B.010(12), 205.5605,, 205.5607, 205.635, 205.8451(9), 209.030, 311.840(3), 314.011(5), (9), 314.042, 319.010(6), 319.046, 319.053, 319.056, 319.064, 319A.010(3), (4), 327.010(2), 334A.020(9), 335.100, 335.300(2), 335.500(3), 369.101 to 369.120, 620.030, 34 C.F.R. Parts 300 to 399, 42 C.F.R. 440.180, 400.203, 435.905(b), 483.430, 45 C.F.R. Parts 160, 162, 164, 29 U.S.C. Chapter 16, 42 U.S.C. 1320d to 1320d-8
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.5606, 42 C.F.R. 440.180, 42 U.S.C. 1396a, 1396b, 1396d, 1396n
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has responsibility to administer the Medicaid program. KRS 205.520(3) authorizes the cabinet 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 coverage and reimbursement provisions for Michelle P. waiver services.
History: 907 KAR 001:835. 35 Ky.R. 688, 1493, 1804; 1974; eff. 2-6-2009; TAm 7-16-2013; 40 Ky.R. 2899, 41 Ky.R. 516; 796; eff. 10-31-2014; 42 Ky.R. 972, 1811, 2747; eff. 6-3-2016; Cert eff. 5-9-2023; 51 Ky.R. 1562; eff. 7-30-2025.

Chapter 3 Payment and Services

907 KAR 3:005 Coverage of physicians' services {#sec-907-kar-3-005 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:005}

Section 1. Definitions.

(1) "Advanced practice registered nurse" or "APRN" is defined by KRS 314.011(7).

(2) "Behavioral health practitioner under supervision" means an individual who is:

(a)

A licensed psychological associate;
A licensed professional counselor associate;
A certified social worker;
A marriage and family therapy associate;
A licensed professional art therapist associate;
A licensed assistant behavior analyst;
A licensed clinical alcohol and drug counselor associate;
A certified psychologist; or
A certified alcohol and drug counselor; and

(b) Employed by or under contract with the same billing provider as the billing supervisor.

(3) "Common practice" means an arrangement through which a physician assistant administers health care services under the supervision of a physician via a supervisory relationship that has been approved by the Kentucky Board of Medical Licensure.

(4) "CPT code" means a code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(5) "Department" means the Department for Medicaid Services or its designee.

(6) "Designated controlled substance provider" means the provider designated as a lock-in recipient's controlled substance prescriber:

(a) Pursuant to 907 KAR 1:677, if the recipient is not an enrollee; or

(b) As established by the managed care organization in which the lock-in recipient is enrolled, if the lock-in recipient is an enrollee.

(7) "Designated primary care provider" means the provider designated as a lock-in recipient's primary care provider:

(a) Pursuant to 907 KAR 1:677, if the recipient is not an enrollee; or

(b) As established by the managed care organization in which the lock-in recipient is enrolled, if the lock-in recipient is an enrollee.

(8) "Direct physician contact" means that the billing physician is physically present with and evaluates, examines, treats, or diagnoses the recipient.

(9) "Early and periodic screening and diagnosis and treatment" or "EPSDT" is defined by 42 C.F.R. 440.40(b).

(10) "Emergency care" means:

(a) Covered inpatient or outpatient services furnished by a qualified provider that are needed to evaluate or stabilize an emergency medical condition that is found to exist using the prudent layperson standard; or

(b) Emergency ambulance transport.

(11) "Enrollee" means a recipient who is enrolled with a managed care organization.

(12) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(13) "Global period" means the period of time in which related preoperative, intraoperative, and postoperative services and follow-up care for a surgical procedure are customarily provided.

(14) "Graduate medical education program" or "GME program" means:

(a) A residency program approved by:

The Accreditation Council for Graduate Medical Education of the American Medical Association;
The Committee on Hospitals of the Bureau of Professional Education of the American Osteopathic Association;
The Commission on Dental Accreditation of the American Dental Association; or
The Council on Podiatric Medicine Education of the American Podiatric Medical Association; or

(b) An approved medical residency program as defined by 42 C.F.R. 413.75(b).

(15) "Incidental" means that a medical procedure:

(a) Is performed at the same time as a primary procedure; and

(b)

Requires little additional resources; or
Is clinically integral to the performance of the primary procedure.

(16) "Integral" means that a medical procedure represents a component of a more complex procedure performed at the same time.

(17) "Lock-in recipient" means:

(a) A recipient enrolled in the lock-in program in accordance with 907 KAR 1:677; or

(b) An enrollee enrolled in a managed care organization's lock-in program pursuant to 907 KAR 17:020, Section 6.

(18) "Locum tenens APRN" means an APRN:

(a) Who temporarily assumes responsibility for the professional practice of a physician participating in the Kentucky Medicaid program; and

(b) Whose services are billed under the APRN's provider number.

(19) "Locum tenens physician" means a substitute physician:

(a) Who temporarily assumes responsibility for the professional practice of a physician participating in the Kentucky Medicaid program; and

(b) Whose services are paid under the participating physician's provider number.

(20) "Managed care organization" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(21) "Medicaid basis" means a scenario in which:

(a) A provider provides a service to a recipient as a Medicaid-participating provider in accordance with:

907 KAR 1:671; and
907 KAR 1:672;

(b) The Medicaid program is the payer for the service; and

(c) The recipient is not liable for payment to the provider for the service other than any Medicaid cost sharing obligation owed by the recipient to the provider.

(22) "Medical necessity" or "medically necessary" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(23) "Medical resident" means:

(a) An individual who participates in an approved graduate medical education (GME) program in medicine or osteopathy; or

(b) A physician who is not in an approved GME program, but who is authorized to practice only in a hospital, including:

An individual with a:

a. Temporary license;

b. Resident training license; or

c. Restricted license; or

An unlicensed graduate of a foreign medical school.

(24) "Mutually exclusive" means that two (2) procedures:

(a) Are not reasonably performed in conjunction with each other during the same patient encounter on the same date of service;

(b) Represent two (2) methods of performing the same procedure;

(d) Are described in Current Procedural Terminology as inappropriate coding of procedure combinations.

(25) "Non-Medicaid basis" means a scenario in which:

(a) A provider provides a service to a recipient;

(b) The Medicaid program is not the payer for the service; and

(26) "Other licensed medical professional" means a health care provider:

(a) Other than a physician, physician assistant, advanced practice registered nurse, certified registered nurse anesthetist, nurse midwife, or registered nurse; and

(b) Who has been approved to practice a medical specialty by the appropriate licensure board.

(27) "Other provider preventable condition" is defined by 42 C.F.R. 447.26(b).

(28) "Physician administered drug" or "PAD" means any rebateable covered outpatient drug that is:

(a) Provided or administered to a Medicaid recipient;

(b) Billed by a provider other than a pharmacy provider through the medical benefit, including a provider that is a physician office or another outpatient clinical setting; and

(29) "Physician assistant" is defined by KRS 311.840(3).

(30) "Podiatrist" is defined by KRS 205.510(13).

(31) "Provider group" means at least one (1) licensed physician who:

(a) Is enrolled with the Medicaid program individually and as a group; and

(b) Share the same Medicaid group provider number, if more than one (1) physician is in the group.

(32) "Rebateable" means a drug for which the drug manufacturer has entered into and has in effect a rebate agreement in accordance with 42 U.S.C. 1396r-8(a).

(33) "Recipient" is defined by KRS 205.8451(9).

(34) "Screening" means the evaluation of a recipient by a physician to determine:

(a) If a disease or medical condition is present; and

(b) If further evaluation, diagnostic testing, or treatment is needed.

(35) "Supervising physician" is defined by KRS 311.840(4).

(36) "Supervision" is defined by KRS 311.840(6).

(37) "Timely filing" means receipt of a Medicaid claim by the department:

(a) Within twelve (12) months of the date the service was provided;

(b) Within twelve (12) months of the date retroactive eligibility was established; or

(38) "Unlisted procedure or service" means a procedure or service:

(a) For which there is not a specific CPT code; and

(b) That is billed using a CPT code designated for reporting unlisted procedures or services.

Section 2. Conditions of Participation.

(1)

(a) A participating physician shall:

Be licensed as a physician in the state in which the medical practice is located;
Comply with the:

a. Terms and conditions established in 907 KAR 1:005, 907 KAR 1:671, and 907 KAR 1:672; and

b. Requirements regarding the confidentiality of personal records pursuant to 42 U.S.C. 1320d to 1320d-8 and 45 C.F.R. Parts 160 and 164;

Have the freedom to choose whether to provide services to a recipient; and
Notify the recipient referenced in paragraph (b) of this subsection of the provider's decision to accept or not accept the recipient on a Medicaid basis prior to providing any service to the recipient.

(b) A provider may provide a service to a recipient on a non-Medicaid basis:

If the recipient agrees in writing to receive the service on a non-Medicaid basis before the service begins; and
The service is not a Medicaid-covered service.

(c)

If a provider renders a Medicaid-covered service to a recipient, regardless of if the service is billed through the provider's Medicaid provider number or any other entity including a non-Medicaid provider, the recipient shall not be billed for the service.
The department shall terminate from Medicaid program participation a provider who participates in an arrangement in which an entity bills a recipient for a Medicaid-covered service rendered by the provider.

(2) If a provider agrees to provide services to a recipient, the provider:

(a) Shall bill the department rather than the recipient for a covered service;

(b) May bill the recipient for a service not covered by Medicaid if the physician informed the recipient of noncoverage prior to providing the service; and

The service being incidental, integral, or mutually exclusive to a covered service or within the global period for a covered service;
Incorrect billing procedures, including incorrect bundling of services;
Failure to obtain prior authorization for the service; or
Failure to meet timely filing requirements.

(3)

(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:

Interpreted to be fraud or abuse; and
Prosecuted in accordance with applicable federal or state law.

(4)

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

(b)

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.
The individual who provided the service shall date and sign the health record within seventy-two (72) hours from the date that the individual provided the service.

(5)

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

Section 3. Covered Services.

(1) To be covered by the department, a service shall be:

(a) Medically necessary;

(b) Clinically appropriate pursuant to the criteria established in 907 KAR 3:130;

(d) Eligible for reimbursement as a physician service.

(2) Direct physician contact between the billing physician and recipient shall not be required for:

(a) A service provided by a:

Medical resident if provided under the direction of a program participating teaching physician in accordance with 42 C.F.R. 415.174 and 415.184;
Locum tenens physician who provides direct physician contact;
Physician assistant in accordance with Section 6 of this administrative regulation; or
Locum tenens APRN who provides direct APRN contact;

(b) A radiology service, imaging service, in office lab, pathology service, ultrasound study, echographic study, electrocardiogram, electromyogram, electroencephalogram, vascular study, or other service that is usually and customarily performed without direct physician contact;

(d) A sleep disorder service; or

(e) A telehealth consultation provided in accordance with 907 KAR 3:170.

(3) A service provided by another licensed medical professional shall be covered if the other licensed medical professional is:

(a) Employed by the supervising physician; and

(b) Licensed in the state of practice.

Section 4. Service Limitations.

(1) A covered service provided to a lock-in recipient shall be limited to a service provided by the lock-in recipient's designated primary care provider or designated controlled substance provider unless:

(a) The service represents emergency care; or

(b) The lock-in recipient has been referred to the provider by the lock-in recipient's designated primary care provider.

(2) An EPSDT screening service shall be covered in accordance with 907 KAR 11:034.

(3) A laboratory procedure performed in a physician's office shall be limited to a procedure for which the physician has been certified in accordance with 42 C.F.R. Part 493.

(4) A drug listed on the Physician Administered Drug List shall be covered in accordance with 907 KAR 23:010.

(5) A service allowed in accordance with 42 C.F.R. 441, Subpart E (441.200 to 441.208) or Subpart F (441.250 to 441.259 and the Appendix to Subpart F), shall be covered within the scope and limitations of 42 C.F.R. 441, Subpart E and Subpart F.

(6)

(a) Except as provided in paragraph (b) of this subsection, coverage for a service designated as a psychiatry service CPT code and provided by a physician shall be limited to four (4) services, per physician, per recipient, per twelve (12) months.

(b) Coverage for a service designated as a psychiatry service CPT code that is provided by a board certified or board eligible psychiatrist or by an advanced practice registered nurse with a specialty in psychiatry shall not be subject to the limits established in paragraph (a) of this subsection.

(7) Coverage for a fetal diagnostic ultrasound procedure shall be limited to two (2) per nine (9) month period per recipient unless the diagnosis code justifies the medical necessity of an additional procedure.

(8) An anesthesia service shall be covered if:

(a) Administered by:

An anesthesiologist who remains in attendance throughout the procedure; or
An individual who:

a. Is licensed in Kentucky to practice anesthesia;

b. Is licensed in Kentucky within his or her scope of practice; and

c. Remains in attendance throughout the procedure;

(b) Medically necessary; and

(9) The following shall not be covered:

(a) An acupuncture service;

(b) An autopsy;

(d) Except for therapeutic bandage lenses, contact lenses;

(e) A hysterectomy performed for the purpose of sterilization;

(f) Lasik surgery;

(g) Paternity testing;

(h) A procedure performed for cosmetic purposes only;

(i) A procedure performed to promote or improve fertility;

(j) Radial keratotomy;

(k) A thermogram;

(l) An experimental service that is not in accordance with current standards of medical practice;

(m) A service that does not meet the requirements established in Section 3(1) of this administrative regulation; or

(n) Medical assistance for another provider preventable condition in accordance with 907 KAR 14:005.

(10)

(b) The department shall not reimburse for a:

Prescription prescribed by a provider that is not currently:

a. Participating in the Medicaid program pursuant to 907 KAR 1:671; and

b. Enrolled in the Medicaid program pursuant to 907 KAR 1:672; or

Service:

a. Ordered by a provider that is not currently:

(i) Participating in the Medicaid program pursuant to 907 KAR 1:671; and

(ii) Enrolled in the Medicaid program pursuant to 907 KAR 1:672; or

b. Referred by a provider that is not currently:

(i) Participating in the Medicaid program pursuant to 907 KAR 1:671; and

(ii) Enrolled in the Medicaid program pursuant to 907 KAR 1:672.

Section 5. Prior Authorization Requirements for Recipients Who are Not Enrolled with a Managed Care Organization.

(1) Except as provided by subsection (3) of this section, the following procedures for a recipient who is not enrolled with a managed care organization shall require prior authorization by the department:

(a) Magnetic resonance imaging;

(b) Magnetic resonance angiogram;

(d) Positron emission tomography;

(e) Cineradiography or videoradiography;

(f) Xeroradiography;

(g) Ultrasound subsequent to second obstetric ultrasound;

(h) Myocardial imaging;

(i) Cardiac blood pool imaging;

(j) Radiopharmaceutical procedures;

(k) Gastric restrictive surgery or gastric bypass surgery;

(l) A procedure that is commonly performed for cosmetic purposes;

(m) A surgical procedure that requires completion of a federal consent form;

(n) An organ transplant in accordance with 907 KAR 1:350;

(o) Genetic testing; or

(p) A covered unlisted procedure or service.

(2)

(a) Prior authorization by the department shall not be a guarantee of recipient eligibility.

(b) Eligibility verification shall be the responsibility of the provider.

(3) The prior authorization requirements established in subsection (1) of this section shall not apply to:

(a) An emergency service;

(b) A radiology procedure if the recipient has a cancer or transplant diagnosis code; or

(4) A referring physician, a physician who wishes to provide a given service, a podiatrist, a chiropractor, or an advanced practice registered nurse:

(a) May request prior authorization from the department; and

(b) If requesting prior authorization, shall request prior authorization by:

a. A written request to the department with information sufficient to demonstrate that the service meets the requirements established in Section 3(1) of this administrative regulation; and

b. If applicable, any required federal consent forms; or

Submitting a request via the department's web-based portal with information sufficient to demonstrate that the service meets the requirements established in Section 3(1) of this administrative regulation.

Section 6. Physician Assistant Services.

(1) Except for a service limitation specified in subsection (2) or (3) of this section, a service provided by a physician assistant in common practice with a Medicaid-enrolled physician shall be covered if:

(a) The service meets the requirements established in Section 3(1) of this administrative regulation;

(b) The service is within the legal scope of certification of the physician assistant;

(c) The service is approved in the contractual supervisory relationship between the physician assistant, their supervising physician, and the Kentucky Board of Medical Licensure; and

(d) The physician assistant complies with:

KRS 311.840 to 311.862; and
If applicable, Section 2(1)(b) of this administrative regulation.

(2) A same service performed by a physician and either a physician assistant or an APRN on the same day within a common practice shall be considered as one (1) covered service.

(3) The following physician assistant services shall not be covered:

(a) A physician noncovered service specified in Section 4(9) of this administrative regulation;

(b) An anesthesia service;

(d) A service provided in assistance of surgery.

Section 7. Behavioral Health Services Covered Pursuant to 907 KAR 15:010. The requirements and provisions established in 907 KAR 15:010 for a service covered pursuant to this administrative regulation and 907 KAR 15:010 shall apply if the service is provided by:

(1) A physician who is the billing provider;

(2) A provider group that is the billing provider; or

(3) A behavioral health practitioner under supervision who works for a:

(a) Physician who is the billing provider; or

(b) Provider group that is the billing provider.

Section 8. Duplication of Service Prohibited.

(1) The department shall not reimburse for a service provided to a recipient by more than one (1) provider of any program in which the service is covered during the same time period.

(2) For example, if a recipient is receiving a speech-language pathology service from a speech-language pathologist enrolled with the Medicaid program, the department shall not reimburse for the same service provided to the same recipient during the same time period via the physicians' services program.

Section 9. Third Party Liability. A provider shall comply with KRS 205.622.

Section 10. 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:

Be adhered to by each of the provider's employees, officers, agents, or contractors;
Identify each electronic signature for which an individual has access; and
Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b) Develop a consent form that shall:

Be completed and executed by each individual using an electronic signature;
Attest to the signature's authenticity; and
Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

A copy of the provider's electronic signature policy;
The signed consent form; and
The original filed signature.

Section 11. Auditing Authority. The department may audit any claim, medical record, or documentation associated with the claim or medical record.

Section 12. 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 13. Appeal Rights. An appeal of a department decision regarding:

(1) A Medicaid recipient who is not enrolled with a managed care organization based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563; or

(2) An enrollee based upon an application of this administrative regulation shall be in accordance with 907 KAR 17:010.

History

RELATES TO: KRS 205.510, 205.622, 205.8451, 311.840-311.862, 314.011, 369.101-369.120, 42 C.F.R. 400.203, 413.75(b), 415.174, 415.184, 431.17, 438.2, 440.40(b), 440.50, 441.20, 441.200-441.208, 441.250-441.259, 447.26, 455.410, Part 493, 45 C.F.R. Parts 160, 164, 42 U.S.C. 1320 - 1320d-8, 1396a(a)(19), (30), 1396r-8(a)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560(1)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 relating to physicians' services.
History: 907 KAR 003:005. 23 Ky.R. 1308; eff. 9-18-1996; Am. 25 Ky.R. 1737; 2574; eff. 5-19-1999; 30 Ky.R. 747; 1541; eff. 1-5-2004; 33 Ky.R. 617; 1405; 1585; eff. 1-5-2007; 34 Ky.R. 451; 1474; eff. 1-4-2008; TAm eff. 4-28-2011; TAm eff. 7-16-2013; 40 Ky.R. 2002; 2540; 2759; eff. 7-7-2014; 41 Ky.R. 959; 1686; 1798; eff. 3-6-2015; 44 Ky.R. 405, 1048; eff. 2-2-2018; 47 Ky.R. 1834; 48 Ky.R. 838; eff. 10-20-2021; 52 Ky.R. 1453, 1832; eff. 7-16-2026.

907 KAR 3:010 Reimbursement for physicians' services {#sec-907-kar-3-010 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:010}

Section 1. Definitions.

(1) "Add-on code" or "add-on service" means a service designated by a specific CPT code that may be used in conjunction with another CPT code to denote that an adjunctive service has been performed.

(2) "Anesthesia under medical direction" means a service that is:

(a) Directed by an anesthesiologist;

(b) Delivered by an appropriate and qualified anesthesia provider, including a certified registered nurse anesthetist; and

(3) "Assistant surgeon" means a physician who attends and acts as an auxiliary to a physician performing a surgical procedure.

(4) "Community mental health center" means a facility that meets the community mental health center requirements established in 902 KAR 20:091.

(5) "CPT code" means a code used for reporting procedures and services performed by physicians and published annually by the American Medical Association in Current Procedural Terminology.

(6) "Department" means the Department for Medicaid Services or its designee.

(7) "Direct physician contact" means that the billing physician is physically present with and evaluates, examines, treats, or diagnoses the recipient.

(8) "Drug" means the definition of "drugs" pursuant to 42 U.S.C. 1395x(t)(1).

(9) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(10) "Global period" means the period of time in which related preoperative, intraoperative, and postoperative services and follow-up care for a surgical procedure are customarily provided.

(11) "Healthcare common procedure coding system" means a collection of codes acknowledged by the Centers for Medicare and Medicaid Services (CMS) that represents procedures or items.

(12) "Incidental" means that a medical procedure:

(a) Is performed at the same time as a primary procedure; and

(b)

Requires little additional resources; or
Is clinically integral to the performance of the primary procedure.

(13) "Integral" means that a medical procedure represents a component of a more complex procedure performed at the same time.

(14) "Locum tenens physician" means a substitute physician:

(a) Who temporarily assumes responsibility for the professional practice of a physician participating in the Kentucky Medicaid program; and

(b) Whose services are paid under the participating physician's provider number.

(15) "Major surgery" means a surgical procedure assigned a ninety (90) day global period.

(16) "Managed care organization" means an entity for which the department has contracted to serve as a managed care organization as defined by 42 C.F.R. 438.2.

(17) "Medicaid Physician Fee Schedule" means a list, located at https://chfs.ky.gov/agencies/dms/Pages/feesrates.aspx, that:

(a) Contains the current reimbursement rates for physician services established by the department in accordance with this administrative regulation; and

(b) Is updated at least annually to include the updates made by the Centers for Medicare and Medicaid Services as required by 42 U.S.C. 1395m and 1395w-4 and 42 C.F.R. Part 414.

(18) "Minor surgery" means a surgical procedure assigned a ten (10) day global period.

(19) "Modifier" means a reporting indicator used in conjunction with a CPT code to denote that a medical service or procedure that has been performed has been altered by a specific circumstance while remaining unchanged in its definition or CPT code.

(20) "Mutually exclusive" means that two (2) procedures:

(a) Are not reasonably performed in conjunction with each other during the same patient encounter on the same date of service;

(b) Represent two (2) methods of performing the same procedure;

(d) Are described in Current Procedural Terminology as inappropriate coding of procedure combinations.

(21) "Pediatric teaching hospital" is defined by KRS 205.565(1).

(22) "Physician administered drug" or "PAD" means any rebateable covered outpatient drug that is:

(a) Provided or administered to a Medicaid recipient;

(b) Billed by a provider other than a pharmacy provider through the medical benefit, including a provider that is a physician office or another outpatient clinical setting; and

(23) "Physician assistant" is defined by KRS 311.840(3).

(24) "Professional component" means the physician service component of a service or procedure that has both a physician service component and a technical component.

(25) "Provider group" means at least one licensed physician who:

(a) Is enrolled with the Medicaid program individually and as a group; and

(b) Share the same Medicaid group provider number, if more than one physician is in the group.

(26) "Relative value unit" or "RVU" means the Medicare-established value assigned to a CPT code that takes into consideration the physician's work, practice expense, and liability insurance.

(27) "Resource-based relative value scale" or "RBRVS" means the product of the relative value unit (RVU) and a resource-based dollar conversion factor.

(28) "State university teaching hospital" means:

(a) A hospital that is owned or operated by a Kentucky state-supported university with a medical school; or

(b) A hospital:

In which three (3) or more departments or major divisions of the University of Kentucky or University of Louisville medical school are physically located and that are used as the primary (greater than fifty (50) percent) medical teaching facility for the medical students at the University of Kentucky or the University of Louisville; and
That does not possess only a residency program or rotation agreement.

(29) "Technical component" means the part of a medical procedure performed by a technician, inclusive of all equipment, supplies, and drugs used to perform the procedure.

(30) "Usual and customary charge" means the uniform amount that a physician charges the general public in the majority of cases for a specific medical procedure or service.

Section 2. Standard Reimbursement.

(1) Reimbursement for a covered service shall be made to:

(a) The individual participating physician who provided the covered service; or

(b) The physician:

In a provider group enrolled in the Kentucky Medicaid program; and
Who provided the covered service.

(2) Except as provided in subsection (3) of this section and Sections 3 through 11 of this administrative regulation, reimbursement for a covered service shall be the lesser of:

(a) The physician's usual and customary charge; or

(b) The amount specified in the Medicaid Physician Fee Schedule established in accordance with this administrative regulation.

(3) If there is not an established fee for a listed service in the Medicaid Physician Fee Schedule, the reimbursement shall be forty-five (45) percent of the usual and customary billed charge.

Section 3. Rates Established Using a Relative Value Unit and a Dollar Conversion Factor.

(1) Except for a service specified in Sections 4 through 10 of this administrative regulation:

(a) The rate for a non-anesthesia related covered service shall be established by multiplying RVU by a dollar conversion factor to obtain the RBRVS maximum amount specified in the Medicaid Physician Fee Schedule; and

(b) The rate for a covered anesthesia service shall be established by multiplying the dollar conversion factor (designated as X) by the sum of each specific procedure code RVU (designated as Y) plus the number of units spent on that specific procedure (designated as Z). A unit shall equal a fifteen (15) minute increment of time.

(2) The dollar conversion factor shall be:

(a) Fifteen (15) dollars and twenty (20) cents for a nondelivery related anesthesia service; or

(b) Twenty-nine (29) dollars and sixty-seven (67) cents for all non-anesthesia related services.

Section 4. Medicare Part B Covered Services. Reimbursement for a service covered under Medicare Part B shall be made in accordance with 907 KAR 1:006, Section 3.

Section 5. Services with a Modifier. Reimbursement for a service denoted by a modifier used in conjunction with a CPT code shall be as established in this section.

(1) A service reported with a two (2) digit modifier of "51" shall be reimbursed at fifty (50) percent of the fee listed on the Medicaid Physician Fee Schedule for the service.

(2) A professional component of a service reported by the addition of the two (2) digit modifier "26" shall be reimbursed at the product of:

(a) The Medicare value assigned to the physician's work; and

(b) The dollar conversion factor specified in Section 3(2) of this administrative regulation.

(3) A technical component of a service reported by the addition of the two (2) letter modifier "TC" shall be reimbursed at the product of:

(a) The Medicare value assigned to the practice expense involved in the performance of the procedure; and

(b) The dollar conversion factor specified in Section 3(2) of this administrative regulation.

(4) A bilateral procedure reported by the addition of the two (2) digit modifier "50" shall be reimbursed at 150 percent of the amount assigned to the CPT code.

(5) An assistant surgeon procedure reported by the addition of the two (2) digit modifier "80" shall be reimbursed at sixteen (16) percent of the allowable fee for the primary surgeon.

(6) A procedure performed by a physician acting as a locum tenens physician for a Medicaid-participating physician reported by the addition of the two (2) character modifier "Q6" shall be reimbursed at the Medicaid Physician Fee Schedule amount for the applicable CPT code.

(7) An evaluation and management telehealth consultation service provided by a telehealth provider or telehealth practitioner in accordance with 907 KAR 3:170 and reported by the appropriate letter modifier, as applicable, shall be reimbursed at the Medicaid Physician Fee Schedule amount for the applicable evaluation and management CPT code.

(8) A level II national healthcare common procedure coding system modifier designating a location on the body shall be reimbursed at the Medicaid Physician Fee Schedule amount for the applicable code.

Section 6. Laboratory, Venipuncture, and Catheter.

(1) Except for a service specified in paragraph (a) or (b) of this subsection, a physician laboratory service shall be reimbursed in accordance with 907 KAR 1:028.

(a) Charges for a laboratory test performed by dipstick or reagent strip or tablet in a physician's office shall be included in the office visit charge.

(b) A routine venipuncture procedure shall not be separately reimbursed if submitted with a charge for an office, hospital, or emergency room visit or in addition to a laboratory test.

(2) Reimbursement for placement of a central venous, arterial, or subclavian catheter shall be:

(a) Included in the fee for the anesthesia if performed by the anesthesiologist;

(b) Included in the fee for the surgery if performed by the surgeon; or

(3) A laboratory test performed with microscopy shall be reimbursed separately from an evaluation and management CPT code.

Section 7. Delivery-Related Anesthesia, Anesthesia Add-On Services, and Oral Surgery-Related Anesthesia.

(1) The department shall reimburse as follows for the following delivery-related anesthesia services:

(a) For a vaginal delivery, the lesser of:

$215; or
The actual billed charge;

(b) For a cesarean section, the lesser of:

$335; or
The actual billed charge;

$350; or
The actual billed charge;

(d) For an additional anesthesia for cesarean delivery following neuraxial labor anesthesia for vaginal delivery, the lesser of:

Twenty-five (25) dollars; or
The actual billed charge; or

(e) For an additional anesthesia for cesarean hysterectomy following neuraxial labor anesthesia, the lesser of:

Twenty-five (25) dollars; or
The actual billed charge.

(2) For an anesthesia add-on service provided to a recipient under the age of one (1) year or over the age of seventy (70) years, the department shall reimburse the lesser of:

(a) Twenty-five (25) dollars; or

(b) The actual billed charge.

(3) For deep sedation or general anesthesia relating to oral surgery performed by an oral surgeon, the department shall reimburse the lesser of:

(a) $150; or

(b) The actual billed charge.

Section 8. Medical Direction of Anesthesia and Anesthesia Under Medical Direction Services.

(1) A provider or facility performing medical direction shall comply with all Medicare requirements to perform medical direction services located in 42 C.F.R. 415.110 and as found in the Medicare Claims Processing Manual, Chapter 12, Section 50, Paragraph C, as those Medicare requirements existed at the time of the applicable claim submission. This is a link to the Medicare Claims Processing Manual, Chapter 12, as it existed in July 2021: https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/clm104c12.pdf.

(2) A reimbursement shall not be made for an anesthesiologist assistant or a student registered nurse anesthetist unless those provider types are:

(a) Otherwise eligible for licensure or certification;

(b) Appropriately enrolled with the department; and

Section 9. Vaccines.

(1) The department shall reimburse administration of a:

(a) Pediatric vaccine to a recipient under the age of nineteen (19) years;

(b) Department approved vaccines; or

(2)

(a) The department shall reimburse for the cost of a vaccine administered to a recipient under nineteen (19) years of age, in addition to administration of the vaccine, for a vaccine that is administered to a recipient by a provider.

(b) For those providers who are enrolled in the Vaccines for Children Program, the department shall not reimburse for the cost of a vaccine if the vaccine is readily available at the provider's facility and free through the Vaccines for Children Program in accordance with 42 U.S.C. 1396s and 907 KAR 1:680.

Section 10. Physician Assistant. Reimbursement for a service provided by a physician assistant shall be seventy-five (75) percent of the amount reimbursable to a physician in accordance with this administrative regulation.

Section 11. Reimbursement Limits and Related Requirements.

(1) Reimbursement for an anesthesia service shall include:

(a) Preoperative and postoperative visits;

(b) Administration of the anesthetic;

(d) Postoperative pain management until discharge from the recovery area;

(e) Preoperative, intraoperative, and postoperative monitoring services; and

(f) Insertion of arterial and venous catheters.

(2) With the exception of an anesthetic, contrast, or neurolytic solution, administration of a substance to a recipient by epidural or spinal injection for the control of chronic pain shall be limited to three (3):

(a) Injections per date of service; and

(b) Dates of service per six (6) month period.

(3) If related to the surgery and provided by the physician who performs the surgery, reimbursement for a surgical procedure shall include the following:

(a) A preoperative service;

(b) An intraoperative service; and

Ninety (90) calendar days following the date of major surgery; or
Ten (10) calendar days following the date of minor surgery.

(4) Reimbursement for the application of a cast or splint shall be in accordance with 907 KAR 1:104, Section 3(4).

(5) Multiple surgical procedures performed by a physician during the same operative session shall be reimbursed as follows:

(a) The major procedure, an add-on code, and other CPT codes approved by the department for billing with units shall be reimbursed in accordance with Section 3(1)(a) or (2)(b) of this administrative regulation; and

(b) The additional surgical procedure shall be reimbursed at fifty (50) percent of the amount determined in accordance with Section 3(1)(a) or (2)(b) of this administrative regulation.

(7) The department shall not reimburse for an evaluation and management CPT code unless:

(a) Direct physician contact occurred during the visit; or

(b) Direct physician contact is not required in accordance with 907 KAR 3:005, Section 3(2).

Section 12. Other Provider Preventable Conditions. In accordance with 907 KAR 14:005, the department shall not reimburse for other provider preventable conditions.

Section 13. Supplemental Payments.

(1) In addition to a reimbursement made pursuant to Sections 2 through 11 of this administrative regulation, the department shall make a supplemental payment to a medical school faculty physician:

(a) Who:

Is licensed to practice medicine or osteopathy in Kentucky;
Is enrolled in the Kentucky Medicaid program in accordance with 907 KAR 1:672;
Is participating in the Kentucky Medicaid program in accordance with 907 KAR 1:671;
Is employed by a state university teaching hospital, a pediatric teaching hospital, or a state university school of medicine that is part of a university health care system; and
Agrees to assign his or her Medicaid reimbursement, in accordance with 42 C.F.R. 447.10, to the state university entity with whom the physician is employed; and

(b) For services provided:

Directly by the medical school faculty physician; or
By a resident working under the supervision of the medical school faculty physician.

(2) A supplemental payment plus other reimbursements made in accordance with this administrative regulation shall:

(a) Not exceed the physician's charge for the service provided; and

(b) Be paid directly or indirectly to the medical school.

(3) A supplemental payment made in accordance with this section shall be:

(a) Based on the funding made available through an intergovernmental transfer of funds for this purpose by a state-supported school of medicine meeting the criteria established in subsection (1) of this section;

(b) Consistent with the requirements of 42 C.F.R. 447.325; and

Section 14. The department shall reimburse for physician administered drugs in accordance with 907 KAR 23:020.

Section 15. Not Applicable to Managed Care Organizations.

(1) A managed care organization may elect to reimburse the same amount for physician services as the department does.

(2) A managed care organization shall not be required to reimburse the same amount as established in this administrative regulation for a physician service reimbursed by the department via this administrative regulation.

Section 16. Federal Financial Participation. The department's reimbursement for 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 17. Appeal Rights.

(1) An appeal of a department decision regarding a Medicaid recipient based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563.

(2) An appeal of a department decision regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) An appeal of a department decision regarding a Medicaid provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

History

RELATES TO: KRS 205.560, 205.565, 210.370-210.485, 311.840, 42 C.F.R. 400.203, Part 414, 415.110, 438.2, 440.50, 447.10, 447.200-447.205, 447.325, 42 U.S.C. 1395m, 1395w-4, 1395x(t)(1), 1396a, 1396b, 1396c, 1396d, 1396s
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 method of reimbursement for physicians' services by the Medicaid program.
History: 907 KAR 003:010. 23 Ky.R. 1309; eff. 9-18-1996; Am. 25 Ky.R. 1739; 2575; eff. 5-19-1999; 27 Ky.R. 2596; eff. 5-14-2001; 28 Ky.R. 985; eff. 12-19-2001; 30 Ky.R. 750; 1543; eff. 1-5-2004; 31 Ky.R. 646; eff. 1-4-2005; 33 Ky.R. 1180; 2322; eff. 3-9-2007; 34 Ky.R. 456; 1045; 1478; eff. 1-4-2008; TAm. eff. 1-27-2012; TAm. 4-11-2012; 44 Ky.R. 410, 1054, 1528; eff. 2-2-2018; 47 Ky.R. 1839; 48 Ky.R. 89, 1174; eff. 10-20-2021; 49 Ky.R. 913; eff. 3-9-2023; 52 Ky.R. 1459; eff. 7-16-2026.

907 KAR 3:015 Supplemental payments for certain primary care and vaccines {#sec-907-kar-3-015 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:015}

Section 1. Definitions.

(1) "Advanced practice registered nurse" is defined by KRS 314.011(7).

(2) "CPT code" means a code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Eligible evaluation and management service" means a service:

(a) Which qualifies for supplemental reimbursement in accordance with Section 3(1)(a), (b), and (c)1. of this administrative regulation; and

(b) For which there is a corresponding paid claim.

(5) "Eligible provider" means a provider who qualifies for supplemental reimbursement in accordance with Section 2 of this administrative regulation.

(6) "Eligible vaccine" means a vaccine:

(a) Which qualifies for supplemental reimbursement in accordance with Section 3(1)(a), (b) and (c)2. of this administrative regulation; and

(b) For which there is a corresponding paid claim.

(7) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(8) "Managed care organization" or "MCO" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

(9) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(10) "Medicaid program" means Kentucky's program of services and benefits covered by the Department for Medicaid Services or managed care organizations.

(11) "Personal supervision" means being professionally responsible for the services rendered by an advanced practice registered nurse or a physician assistant.

(12) "Physician" is defined by KRS 311.550(12).

(13) "Physician assistant" is defined by KRS 311.840(3).

(14) "Provider" is defined by KRS 205.8451(7).

(15) "Recipient" is defined in KRS 205.8451(9).

Section 2. Conditions to Qualify for Supplemental Reimbursement for Primary Care Services and Vaccines.

(1) To qualify for a supplemental payment, a provider shall:

(a) Be currently enrolled with the Medicaid program in accordance with 907 KAR 1:672;

(b)

Be currently participating in the Medicaid program in accordance with 907 KAR 1:671; and
Comply with 907 KAR 1:671;

Family medicine;
General internal medicine; or
Pediatric medicine; and

(d) Attest to being a primary care physician and to one (1) of the following:

Currently having board certification as a primary care physician by the:

a. American Board of Medical Specialties;

b. American Board of Physician Specialties; or

c. American Osteopathic Association;

Unless a newly eligible physician or physician without a prior billing history, having provided the following evaluation and management services or vaccines in an amount that equals at least sixty (60) percent of Medicaid codes billed to the Medicaid program during the most recently completed calendar year:

a. Evaluation and management CPT codes:

(i) Within the range of 99201 through 99499; and

(ii) That are covered by the department in accordance with 907 KAR 3:010; or

b. Vaccine codes which are covered by the department in accordance with 907 KAR 1:680 (regardless of the age of the recipient) or 907 KAR 3:010;

If a newly eligible physician, having provided the services or vaccines referenced in subparagraph 2a or 2b of this paragraph in an amount that equals at least sixty (60) percent of Medicaid codes billed to the Medicaid program during the prior month; or
Being an eligible primary care physician:

a. Without a billing history; and

b. For whom sixty (60) percent of total Medicaid billings shall be of codes referenced in subparagraph 2a or 2b of this paragraph.

(2) Services or vaccines which meet the qualifying criteria in Section 3 of this administrative regulation and which are provided by a physician assistant or advanced practice registered nurse working under the personal supervision of a qualifying primary care physician shall qualify for the supplemental reimbursement.

Section 3. Supplemental Reimbursement for Primary Care Services and Vaccines.

(1) Supplemental reimbursement shall be made, as established in subsections (2) and (3) of this section, for providing a service or vaccine:

(a) On a day on or after January 1, 2013 until midnight December 31, 2014:

To a recipient; and
By a:

a. Provider who qualifies for the supplemental reimbursement pursuant to Section 2 of this administrative regulation; or

b. An APRN or a physician assistant working under the personal supervision of a primary care physician who qualifies for the supplemental reimbursement pursuant to Section 2 of this administrative regulation;

(b) That is medically necessary for the given recipient; and

An evaluation and management service which:

a. Corresponds to a CPT code within the range of 99201 through 99499; and

b. Is currently covered by the department in accordance with 907 KAR 3:010; or

Billed using a vaccine code which is covered by the department in accordance with 907 KAR 1:680 (regardless of the age of the recipient) or 907 KAR 3:010.

(2)

(a) For a given quarter of paid claims associated with eligible evaluation and management services provided by an eligible provider to recipients who were not enrolled in a managed care organization and for which:

DMS had an established rate as of July 1, 2009, the department shall make a lump sum payment that represents the difference between:

a. The DMS established rates as of July 1, 2009 for the claims in aggregate for the quarter; and

b. What the provider would have received for the same paid claims in aggregate for the same quarter if the provider's reimbursement for the claims had been the amount established in 42 C.F.R. 447.405(a); or

DMS did not have an established rate as of July 1, 2009, but established a rate prior to January 1, 2013, the department shall make a lump sum payment that represents the difference between:

a. The DMS established rates as of December 31, 2012 for the claims in aggregate for the quarter; and

(b) For a given quarter of paid claims associated with eligible vaccines provided by an eligible provider to recipients who were not enrolled in a managed care organization and for which:

DMS had an established rate as of July 1, 2009, the department shall make a lump sum payment that represents the difference between:

a. The DMS established rates as of July 1, 2009 for the claims in aggregate for the quarter; and

DMS did not have an established rate as of July 1, 2009, but established a rate prior to January 1, 2013, the department shall make a lump sum payment that represents the difference between:

a. The DMS established rates as of December 31, 2012 for the claims in aggregate for the quarter; and

(3)

(a) For a given quarter of paid claims associated with eligible evaluation and management services provided by all eligible providers to recipients who were enrolled in a given managed care organization, the:

Department shall send funds to the managed care organization representing the aggregate supplemental reimbursement amount for the paid claims; and
Managed care organization shall:

a. Within fifteen (15) business days of receiving the funds referenced in subparagraph 1. of this paragraph, supplement reimbursement to each eligible provider in an amount determined using the methodology described in subsection (2)(a) of this section; and

b. Submit documentation to the department demonstrating that the supplemental reimbursement referenced in subparagraph 1 of this paragraph was made to all eligible providers for the corresponding quarter.

(b) For a given quarter of paid claims associated with eligible vaccines provided by all eligible providers to recipients who were enrolled in a given managed care organization, the:

Department shall send funds to the managed care organization representing the aggregate supplemental reimbursement amount for the paid claims; and
Managed care organization shall:

a. Within fifteen (15) business days of receiving the funds referenced in subparagraph 1 of this paragraph, supplement reimbursement to each eligible provider in an amount determined using the methodology described in subsection (2)(b) of this section; and

Section 4. Applicability.

(1) The policies and requirements established in this administrative regulation shall govern supplemental payments for certain primary care services and vaccines in accordance with Title V, Subtitle F, Section 5501 of the Affordable Care Act (42 U.S.C. 1395l and 42 U.S.C. 1395w-4(c)(2)(B)), 42 C.F.R. 447.400, 42 C.F.R. 447.405, 42 C.F.R. 447.410, and 42 C.F.R. 447.415.

(2) Any policy or requirement regarding payments for physician or primary care services or vaccines established in any other administrative regulation within Title 907 of the Kentucky Administrative Regulations shall not apply to the supplemental payments referenced in subsection (1) of this section.

Section 5. Auditing.

(1) A provider shall be subject to departmental review or audit.

(2) The department shall be authorized to take action regarding fraud or abuse in accordance with:

(a) 907 KAR 1:671; or

(b) KRS 205.8453.

Section 6. Federal Financial Participation. A policy established in this administrative regulation shall be null and void if the Centers for Medicare and Medicaid Services:

(1) Denies or does not provide federal financial participation for the policy; or

(2) Disapproves the policy.

History

RELATES TO: KRS 205.520, 205.560
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560(1), 42 U.S.C. 1395l, 42 U.S.C. 1395w-4(c)(2)(B), 42 C.F.R. 447.400, 42 C.F.R. 447.405, 42 C.F.R. 447.410, 42 C.F.R. 447.415
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 policies and requirements regarding Medicaid program supplemental payments for certain primary care services and vaccines in accordance with Title V, Subtitle F, Section 5501 of the Affordable Care Act (42 U.S.C. 1395l and 42 U.S.C. 1395w-4(c)(2)(B)), 42 C.F.R. 447.405, 42 C.F.R. 447.410, and 42 C.F.R. 447.415.
History: 39 Ky.R. 2284; 40 Ky.R. 19; eff. 8-2-2013; Crt eff. 12-6-2019.

907 KAR 3:020 Coverage and payments for targeted case management and rehabilitative services provided through an agreement with the state Title V agency {#sec-907-kar-3-020 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:020}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services.

(2) "Rehabilitative services" means medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under state law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level.

(3) "Targeted case management services" means a set of activities which assist an individual in accessing needed medical, social, educational, and other support services.

(4) "Title V agency" means the Department for Public Health.

Section 2. Interagency Agreement. Services provided pursuant to this administrative regulation shall be in accordance with an interagency agreement between the department and the Title V agency.

Section 3. Coverage. Services provided shall be the following:

(1) Targeted case management services provided to the following:

(a) Medicaid-eligible children under the age of twenty-one (21) who meet the Department for Social Services' conditions and circumstances to be defined as a child in the custody of, or under the supervision of or at risk of being in the custody of the state; and

(b) Medicaid-eligible adults (persons twenty-one (21) years of age or older) who meet the Department for Social Services' conditions and circumstances to be defined as an adult in need of protective services.

(2) Rehabilitative services provided to Medicaid-eligible children under the age of twenty-one (21) who meet the Department for Social Services' conditions and circumstances as a child in the custody of, or under the supervision of or at risk of being in the custody of the state.

Section 4. Provider Qualifications and Conditions for Participation. The following provider qualifications and conditions for participation shall be applicable for services provided pursuant to this administrative regulation.

(1) The Title V agency may provide services directly or through agreement with the Department for Social Services as the state agency responsible for the provision of child and adult protective services, which includes the following:

(a) Children in the custody of the state; or

(b) Under the supervision of the state; or

(d) Adults who may receive protective services from the state as a component of the Title V Maternal and Child Health Program.

(2) Services which are provided by the Department for Social Services and its subcontractors shall meet appropriate requirements for the service, including as appropriate a plan of care, supervision, and reporting.

(3) Providers and subcontractors shall maintain records to document services provided for not less than five (5) years or until any audit dispute or issue is resolved if beyond five (5) years.

Section 5. Access to Records, Providers, and Recipients.

(1) The treatment and financial records of providers and subcontractors shall be made available to the department upon request to verify services provided and the cost of the services.

(2) Inspection may be on site or through the submittal of written or electronic materials as determined to be appropriate by the department.

(3) The department shall have the right to interview all current or previous provider or subcontractor staff with regard to services provided pursuant to this administrative regulation and all recipients of targeted case management or rehabilitative services with regard to services received pursuant to this administrative regulation.

(4) Access to provider or subcontractor records relating to services provided shall be required for:

(a) Representatives of the United States Department of Health and Human Services;

(b) The state Attorney General's Office; and

(5) Providers or subcontractors shall be required to provide to the department and representatives of those agencies or offices referenced in this section of this administrative regulation, on request, any information maintained by the provider to document the service provided and any information regarding payments claimed by the provider for furnishing services.

Section 6. Reimbursement. The following reimbursement provisions shall be applicable:

(1) Payments shall be based on cost.

(2) An interim rate based on projected cost shall be used as necessary with a settlement to cost at the end of the state fiscal year.

(3) A billable unit of service shall include all services of that type (targeted case management or rehabilitative services) provided during the month.

Section 7. Incorporation by Reference of the Provider Manual.

(1) "The Policies and Procedures Manual for Title V Services provided by the Department for Social Services", dated July 1996, shall be incorporated by reference in this administrative regulation.

(2) The manual shall be on file in the Office of the Commissioner, Department for Medicaid Services, 275 East Main Street, Third Floor East, Frankfort, Kentucky 40621.

(3) The manual shall be available for review during the normal business week, Monday through Friday, 8 a.m. through 4:30 p.m. (eastern time), excluding state holidays.

(4) Each participating provider shall be provided one (1) copy of the manual and appropriate manual updates following their incorporation by reference. Additional copies may be obtained from the Department for Medicaid Services upon payment of an appropriate fee which approximates cost in accordance with KRS 61.872.

Section 8. Implementation Date. The provisions of this administrative regulation shall be applicable with regard to services provided on or after July 1, 1996.

History

RELATES TO: KRS 205.520
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 431.615, 440.130, 447 Subpart B, 42 U.S.C. 1396a-d, 1396s, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid Program. KRS 205.520(3) empowers the cabinet, by administrative regulation, to comply with any requirement that may be imposed or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation provides for coverage and payments for targeted case management and rehabilitative services provided through an agreement with the state Title V agency, the Department for Public Health.
History: 23 Ky.R. 2656; eff. 2-19-1997; Crt eff. 12-6-2019.

907 KAR 3:035 Criteria for certification for out-of-state residential services for Medicaid-eligible children under twenty-one (21) {#sec-907-kar-3-035 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:035}

Section 1. Definitions.

(1) "Comparable cost per child" means total payments made by the department per child to an out-of-state facility are comparable to total payments made by the department per child to an in-state facility for comparable residential care.

(2) "Comparable services" mean services provided by an in-state residential provider equal to or surpassing services provided by an out-of-state residential provider.

(3) "Department" means the Department for Medicaid Services or its designated agent.

(4) "Participating provider" means a provider who receives reimbursement from the Department for Medicaid Services for services provided to a Medicaid-eligible child under age twenty-one (21).

(5) "Residential care" means behavioral health services provided twenty-four (24) hours a day by a participating provider in a structured setting with an organized program of care.

Section 2. Exceptions and Exclusions.

(1) The department shall not preauthorize or reimburse an out-of-state provider for a Medicaid-eligible child except as provided by KRS 199.680 and 205.634.

(2) An incidental acute physical health care or routine preventive care payment made by the department during the residential episode of care shall be excluded from the calculation of comparable cost per child.

(3) A participating in-state or out-of-state provider shall meet the provider qualification criteria established in 907 KAR 11:034 or 907 KAR 3:030.

Section 3. Procedures for Placement.

(1) The following actions shall occur before an out-of-state placement:

(a) The department or its designated agent shall document that there is no in-state provider with comparable services and costs capable of and willing to serve a specific child.

(b) The department or its designated agent shall obtain all necessary information, both demographic and medical, about each child who presents for review and services.

Child's demographics;
Child's parent or legal guardian's name and address;
Child's clinical history, placements and diagnoses;
Child's proposed treatment plan, including the estimated date of discharge and a proposed transition plan to the home and community; and
Other pertinent information regarding the child's case, including special medical needs.

(d) A participating in-state provider shall fax, call, or otherwise transmit to the department, a weekly report of the availability of residential care, which shall be reviewed by the department prior to approval of an out-of-state placement.

(e) The department shall create a database of participating in-state and out-of-state providers containing each participating provider's identifying information, clinical program descriptions, staff credentials, staffing models, quality improvement plan, utilization management, protocols and opportunity for family interaction, discharge and outcome management, services, costs, licensure status, and negotiated payment rates by the department. The department shall utilize this database to determine comparable costs and services among providers and shall update the database not less than annually.

(2) For a child approved for out-of-state residential care, the department shall maintain records documenting diagnoses, specific treatment needs, demographics, and the specific reason for an exception, meeting the criteria established in KRS 199.680(1) and 205.634(2). The department shall transmit this data to a participating provider who requests it.

History

RELATES TO: KRS 199.680, 205.634
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 199.680, 205.520(3), 205.634, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. KRS 199.680(3) and 205.634(4) require the department to promulgate an administrative regulation establishing the requirements for a determination of the availability of providers of residential care within Kentucky. KRS 199.680(1) and 205.634(2) prohibit the reimbursement of an out-of-state provider of residential care for children whose care is paid by state general funds or state administered federal funds unless a determination has been made that a provider in Kentucky is not capable or willing to provide comparable services to the child. This administrative regulation establishes uniform conditions and requirements for certification for out-of-state residential services for Medicaid-eligible children under age twenty-one (21), and for determining the availability of providers of residential care within the Commonwealth.
History: 25 Ky.R. 2732; 26 Ky.R. 407; 619; eff. 9-15-1999; TAm eff. 4-28-2011; Crt eff. 12-6-2019.

907 KAR 3:060 Ambulance provider assessment program {#sec-907-kar-3-060 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:060}

Section 1. Definitions.

(1) "Assessment" is defined by KRS 205.5602(1)(b).

(2) "Department" is defined by KRS 205.5602(1)(e).

(3) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(4) "Ground ambulance provider" is defined by KRS 205.5602(1)(a).

(5) "Medicaid" is defined by KRS 142.301(14).

(6) "MMIS" means the Medicaid Management Information System or its successor program.

(7) "Program year" means the calendar year during which supplemental payments and tax assessments are made.

Section 2. Ambulance Provider Assessment Program.

(1) Prior to the program year, the department shall calculate for eligible ground ambulance providers an interim uniform add-on amount for:

(a) Emergent transports that the ground ambulance provider is eligible to receive as a supplemental payment for the program year for Medicaid fee-for-service transports; and

(b) Non-emergent transports that the ground ambulance provider is eligible to receive as a supplemental payment for the program year for Medicaid managed care transports.

(2) On an annual basis, the department shall calculate a lump sum periodic, of at least once per quarter, interim supplemental payment for each eligible ground ambulance provider by:

(a) Utilizing the uniform add-on amounts referenced in subsection (1)(a) and (1)(b) of this section;

(b) Utilizing MMIS fee-for-service data, MMIS managed care encounter data, and ground ambulance survey data to calculate the transport volume; and

(3) At least once per quarter in a program year, the department shall make a Medicaid:

(a) Fee-for-service interim payment to each qualifying ground ambulance provider in accordance with the methodology established by KRS 205.5602; and

(b) Managed care interim payment to each qualifying ground ambulance provider in accordance with the methodology established by KRS 205.5602.

(4) Payment of the Medicaid managed care interim payment shall be made at least once per quarter by distribution to each Medicaid managed care organization through a supplemental capitation payment.

(5) At least once per quarter, the department shall submit to each Medicaid managed care organization a listing of the Medicaid managed care supplemental payments that the Medicaid managed care organization shall make to each eligible ground ambulance providers.

(6) Each Medicaid managed care organization shall remit to each ground ambulance provider, as directed by the department, the Medicaid managed care supplemental payment within ten (10) business days of receipt of the supplemental payment.

(7) On an annual basis, the department shall calculate the monthly tax assessment for each ground ambulance provider in accordance with KRS 142.318 and KRS 205.5602.

(8) If a ground ambulance provider tax assessment is not received in a timely manner, the requirements of this subsection shall be met.

(a) The department may deny or withhold future supplemental payments until the assessment is submitted.

(b) The department shall refer a provider to the Kentucky Board of Emergency Medical Services (KBEMS) for potential action related to licensure.

Section 3. Annual Reconciliation.

(1) On an annual basis following the program year, the department shall make final reconciled payments to ground ambulance providers based on:

(a) A review of the interim emergent and non-emergent transport add-ons from Section 2(1)(a) and (b) of this administrative regulation;

(b) Any interim add-ons that may be adjusted to account for differences between:

Expected utilization known at the time of the interim add-ons; and
Actual utilization following the program year; and

(c) Final add-ons that shall be applied to actual transport utilization, based on MMIS data, to determine the final supplemental payment amount owed to each provider.

(2) Interim payments shall be subtracted from the final supplemental payment owed.

(a) A positive balance shall be paid to the provider.

(b) A negative balance shall be paid to the department.

(3) When a survey is not received, the department may use a statewide average of revenue per transport multiplied by provider transport count data, collected by KBEMS, as a proxy for calculating taxable revenues for the following program year.

Section 4. Reporting Requirements.

(1) By April 1 of each program year, a ground ambulance provider shall submit a completed revenue survey. An extension may be granted on a temporary and case-by-case basis, not to exceed thirty (30) days, following a written request detailing the exigent circumstances that prevented timely filing of the completed revenue survey.

(2) If a complete revenue survey is not received in a timely manner the department may deny or withhold future supplemental payments until a complete survey is submitted.

(3) A ground ambulance provider, licensed in Kentucky, operating outside of the state of Kentucky shall report only revenues for transports originating in Kentucky on the revenue survey.

Section 5. Access to Supporting Records. Pursuant to 907 KAR 1:672, Section 2(6)(b), a ground ambulance provider shall maintain and make available, upon request of the department or any other auditing or investigating entity, any records and data necessary to justify and document:

(1) Revenue survey amounts, submitted in accordance with Section 4, of this administrative regulation;

(2) Resolution of a supplemental payment that the ground ambulance provider suspects is in error; or

(3) Quality metrics necessary for program reporting to the Centers for Medicare and Medicaid Services.

Section 6. Appeal Rights. An appeal of a department decision regarding final reconciled payments shall be in accordance with 907 KAR 1:671.

Section 7. 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.

History

RELATES TO: KRS 45.229, 142.301, 142.318, 142.343, 142.359, 194A.030(2), 205.5601, 205.5602, 205.5603, 42 C.F.R. 413, 42 U.S.C. 1396a
STATUTORY AUTHORITY: KRS 194A.050(1), 205.520(3), 205.5601, 205.5602(2), 205.5603
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has responsibility to administer the Medicaid Program. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed, or opportunity presented, by federal law to qualify for federal funds. KRS 205.5602(2) requires the department to promulgate an administrative regulation to implement the Ambulance Provider Assessment Program, as established pursuant to KRS 205.5601 and 205.5603. This administrative regulation establishes the requirements for implementing the Ambulance Provider Assessment Program for ground ambulance providers.
History: 47 Ky.R. 2507; eff. 10-20-2021.

907 KAR 3:062 Public Ground Ambulance Supplemental Payment Program {#sec-907-kar-3-062 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:062}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "Direct cost" is defined by 2 C.F.R. 200.413 and 45 C.F.R. 75.413.

(3) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(4) "Government owned or operated ambulance provider" is established pursuant to 42 C.F.R. 433.50.

(5) "Indirect cost" is defined by 2 C.F.R. 200.414 and 45 C.F.R. 75.414.

(6) "Intergovernmental transfer" means any transfer of money by or on behalf of a public agency for purposes of qualifying funds for federal financial participation in accordance with 42 C.F.R. 433.51.

(7) "Medicaid" means the state program of medical assistance as administered by the Cabinet for Health and Family Services in compliance with 42 U.S.C. sec. 1396.

(8) "MMIS" means the Medicaid Management Information System or its successor program.

(9) "Program year" means the calendar year during which supplemental payments and intergovernmental payments are made.

Section 2. Public Ground Ambulance Supplemental Payment Program. Prior to the program year, the department shall calculate a statewide average uniform per trip cost for transports provided by eligible government owned or operated, or special taxing district based, emergency medical transportation services that have opted in to this voluntary program.

(1) For each quarter in a program year, the department shall calculate a quarterly Medicaid managed care payment to each qualifying government owned or operated emergency ambulance provider by:

(a) Computing the total allowable costs for providing medical transportation services based on the statewide average cost per trip multiplied by each provider's eligible trips.

(b) Utilizing MMIS managed care encounter data to be requested ninety (90) days after the quarter ends.

(2) The department shall submit to each Medicaid managed care organization a listing of the quarterly Medicaid managed care supplemental payments that the Medicaid managed care organization shall make to each eligible government owned or operated ambulance provider.

(3) Each Medicaid managed care organization shall remit to each government owned or operated ambulance provider, as directed by the department, the quarterly Medicaid managed care supplemental payment within ten (10) business days of receipt of the quarterly supplemental payment transfer.

(4) On a quarterly basis, within fifteen (15) days of receiving quarterly managed care payments, each eligible government owned or operated ambulance provider shall transfer an intergovernmental transfer to the department in accordance with 42 C.F.R. 433.51.

(5) If an intergovernmental transfer is not received in a timely manner, the department may consider the provider to be ineligible to participate in future periods.

Section 3. Reporting Requirements.

(1) By November 30 of each program year, a government owned or operated ground ambulance provider shall submit a completed cost report. An extension may be granted on a temporary and case-by-case basis, not to exceed thirty (30) days, following a written request detailing the exigent circumstances that prevented the timely filing of the completed cost report.

(2)

(a) If a completed cost report and supporting documentation is not received by November 30, and an extension has not been requested and approved by the department, the department may deny or withhold future quarterly supplemental payments until a complete cost report is submitted.

(b) If a provider is sanctioned pursuant to paragraph (a) of this subsection, the provider shall be ineligible to participate in the next program year.

Section 4. Access to Supporting Records. A government owned or operated ground ambulance provider shall maintain and make available, upon request, any records and data necessary to justify and document:

(1) Cost report amounts submitted in accordance with Section 2;

(2) Resolution of a supplemental payment that the government owned or operated ground ambulance provider suspects is in error; or

(3) Quality metrics necessary for program reporting to the Centers for Medicare and Medicaid Services.

Section 5. Appeal Rights. An appeal of a department decision regarding quarterly payments shall be in accordance with 907 KAR 1:671.

Section 6. 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.

History

RELATES TO: KRS 45.229, 194A.030(2), 2 C.F.R. 200.413, 200.414, 42 C.F.R. 400.203, 413, 45 C.F.R. 75.413, 75.414, 42 U.S.C. 1396a
STATUTORY AUTHORITY: KRS 194A.050(1), 205.520(3), 205.560(1), 205.5604
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has responsibility to administer the Medicaid program. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed, or opportunity presented, by federal law to qualify for federal funds. KRS 205.5604 requires the department to promulgate an administrative regulation to implement a cost-based directed payment program for public ground ambulance providers. This administrative regulation establishes the requirements for implementing the ambulance supplemental payment program for ground ambulance providers.
History: 907 KAR 003:062. 52 Ky.R. 670; eff. 1-22-2026.) COMPILER'S NOTE: 2025 RS HB 6, enacted by the General Assembly on March 27, 2025, altered the information to be provided at the time an administrative regulation is filed. Aside from formatting changes necessary to upload the regulation into the LRC's publication application, this regulation has been published as submitted by the agency.

907 KAR 3:066 Nonemergency medical transportation waiver services and payments {#sec-907-kar-3-066 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:066}

Section 1. Definitions.

(1) "Capitated rate" means one (1) amount paid each month:

(a) For each Medicaid recipient covered under authority of the waiver; and

(b) That is:

Not a statewide rate; and
Set individually for each human service transportation delivery region as established in 603 KAR 7:080.

(2) "Department" means the Department for Medicaid Services or its designee.

(3) "Human service transportation" means provision of mass transportation and taxi services to transport an individual who is eligible to receive Medicaid transportation services.

(4) "Nonemergency medical transportation" or "NEMT" means medical transportation not of an emergency nature, excluding ambulance stretcher services, provided to an eligible Medicaid recipient by the Transportation Cabinet pursuant to an agreement between the Transportation Cabinet and the department.

(5) "Waiver authority" means the provisions contained in 42 U.S.C. 1396n(b).

Section 2. Interagency Agreement. Pursuant to waiver authority granted by the Centers for Medicare and Medicaid Services, the Department for Medicaid Services may enter into an agreement with the Transportation Cabinet for the provision of nonemergency medical transportation to a Medicaid recipient.

Section 3. Coverage.

(1) The coverage provisions established in 603 KAR 7:080 shall comply with this administrative regulation.

(2)

(a) A Medicaid-eligible recipient may receive nonemergency medical transportation services if the recipient meets the following conditions:

The recipient is traveling to or from a Medicaid-covered service;
The service is determined to be of medical necessity; and

a. The recipient does not own a vehicle; or

b. The recipient owns a vehicle, but a clinician, employer, school, mechanic, or transportation authority issues a note that is submitted by the recipient that states the vehicle is not:

(i) Operable; or

(ii) Usable for the recipient.

(b) A recipient who is under the age of eighteen (18) shall have the same vehicle ownership status as the custodial parent or legal guardian.

(c) A parent or guardian may request a two (2) week exemption to paragraph (b) of this subsection in order to allow a child recipient to attend medically necessary services.

(3)

(a) A transportation provider shall not self-refer or solicit a recipient or a recipient's parent or guardian to use NEMT if the recipient or recipient's parent or guardian owns or has access to appropriate transportation pursuant to this section.

(b) A transportation provider that self-refers or solicits a recipient or a recipient's parent or guardian pursuant to paragraph (a) of this subsection may be excluded from offering NEMT on a permanent or temporary basis.

Section 4. Reimbursement.

(1) The Transportation Cabinet shall be reimbursed at a monthly capitated rate set by the department for each Medicaid recipient receiving services pursuant to this administrative regulation.

(2) The capitated rate shall not exceed the Medicaid Program's usual aggregate cost on a projected statewide basis of providing nonemergency medical transportation services to the covered group of recipients.

Section 5. Appeal Rights.

(1) An appeal of a negative action regarding a Medicaid recipient shall be in accordance with 907 KAR 1:563.

(2) An appeal of a negative action regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) An appeal of a negative action regarding a Medicaid provider shall be in accordance with 907 KAR 1:671.

Section 6. Implementation. The provisions of this administrative regulation shall be applicable for nonemergency transportation waiver services provided in accordance with KRS Chapter 45A and Section 2 of this administrative regulation.

Section 7. Federal Approval and Federal Financial Participation. The department's coverage and reimbursement of services pursuant to this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval of the coverage and reimbursement, as relevant.

History

RELATES TO: KRS 96A.095, 205.520, 281.010, 281.605(9), 281.635(5), 281.872, 281.875, 42 C.F.R. 431.53, 440.170, 42 U.S.C. 1396n(b)
STATUTORY AUTHORITY: KRS 194A.050(1), 205.520(3), 42 C.F.R. 431.53, 42 U.S.C. 1396a
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 coverage and payment requirements for nonemergency medical transportation services, excluding ambulance stretcher services, provided pursuant to 42 U.S.C. 1396n(b) and approved by the Centers for Medicare and Medicaid Services to waive Medicaid requirements related to nonemergency medical transportation of Medicaid requirements.
History: 27 Ky.R. 648; Am. 994; eff. 10-16-2000; 44 Ky.R.152; eff. 10-6-2017; 50 Ky.R. 1417; eff. 6-18-2024.

907 KAR 3:090 Acquired brain injury waiver services {#sec-907-kar-3-090 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:090}

Section 1. Definitions.

(1) "1915(c) home and community based services waiver program" means a Kentucky Medicaid program established pursuant to and in accordance with 42 U.S.C. 1396n(c).

(2) "ABI" means an acquired brain injury.

(3) "ABI provider" means an entity that meets the criteria established in Section 2 of this administrative regulation.

(4) "Acquired Brain Injury Branch" or "ABIB" means the Acquired Brain Injury Branch of the Department for Medicaid Services, Division of Community Alternatives.

(5) "Acquired brain injury waiver service" or "ABI waiver service" means a home and community based waiver service provided to a Medicaid eligible individual who has acquired a brain injury.

(6) "Advanced practice registered nurse" is defined by KRS 314.l011(7).

(7) "Assessment" or "reassessment" means a comprehensive evaluation of abilities, needs, and services that:

(a) Serves as the basis for a level of care determination;

(b) Is completed on a MAP 351, Medicaid Waiver Assessment that is uploaded into the MWMA; and

(8) "Behavior intervention committee" or "BIC" means a group of individuals established to evaluate the technical adequacy of a proposed behavior intervention for an ABI recipient.

(9) "Blended services" means a nonduplicative combination of ABI waiver services identified in Section 4 of this administrative regulation and participant directed services identified in Section 10 of this administrative regulation provided pursuant to a recipient's approved person-centered service plan.

(10) "Board certified behavior analyst" means an independent practitioner who is certified by the Behavior Analyst Certification Board, Inc.

(11) "Budget allowance" is defined by KRS 205.5605(1).

(12) "Case manager" means an individual who manages the overall development and monitoring of a recipient's person-centered service plan.

(13) "Covered services and supports" is defined by KRS 205.5605(3).

(14) "Crisis prevention and response plan" means a plan developed by the person centered team to identify any potential risk to a recipient and to detail a strategy to minimize the risk.

(15) "DCBS" means the Department for Community Based Services.

(16) "Department" means the Department for Medicaid Services or its designee.

(17) "Good cause" means a circumstance beyond the control of an individual that affects the individual's ability to access funding or services, including:

(a) Illness or hospitalization of the individual which is expected to last sixty (60) days or less;

(b) Death or incapacitation of the primary caregiver;

(c) Required paperwork and documentation for processing in accordance with Section 3 of this administrative regulation that has not been completed but is expected to be completed in two (2) weeks or less; or

(d) The individual or his or her legal representative has made diligent contact with a potential provider to secure placement or access services but has not been accepted within the sixty (60) day time period.

(18) "Human rights committee" or "HRC" means a group of individuals established to protect the rights and welfare of an ABI recipient.

(19) "Level of care certification" means verification, by the department, of ABI program eligibility for:

(a) An individual; and

(b) A specific period of time.

(20) "Licensed marriage and family therapist" or "LMFT" is defined by KRS 335.300(2).

(21) "Licensed medical professional" means:

(a) A physician;

(b) An advanced practice registered nurse;

(d) A registered nurse;

(e) A licensed practical nurse; or

(f) A pharmacist.

(22) "Licensed professional clinical counselor" is defined by KRS 335.500(3).

(23) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(24) "MWMA" means the Kentucky Medicaid Waiver Management Application internet portal located at http://chfs.ky.gov/dms/mwma.htm.

(25) "Occupational therapist" is defined by KRS 319A.010(3).

(26) "Occupational therapy assistant" is defined by KRS 319A.010(4).

(27) "Participant directed services" or "PDS" 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

(28) "Patient liability" means the financial amount, determined by the department, that an individual is required to contribute towards cost of care in order to maintain Medicaid eligibility.

(29) "Person-centered service plan" means a written individualized plan of services for a participant that meets the requirements established in Section 4 of this administrative regulation.

(30) "Person centered team" means a participant, the participant's guardian or representative, and other individuals who are natural or paid supports and who:

(a) Recognize that evidenced based decisions are determined within the basic frame-work of what is important for the participant and within the context of what is important to the participant based on informed choice;

(b) Work together to identify what roles they will assume to assist the participant in becoming as independent as possible in meeting the participant's needs; and

Be active contributing members of the person centered team meetings;
Base their input upon evidence-based information; and
Not request reimbursement for person-centered team meetings.

(31) "Personal services agency" is defined by KRS 216.710(8).

(32) "Psychologist" is defined by KRS 319.010(9).

(33) "Psychologist with autonomous functioning" means an individual who is licensed in accordance with KRS 319.056.

(34) "Qualified mental health professional" is defined by KRS 202A.011(12).

(35) "Representative" is defined by KRS 205.5605(6).

(36) "Speech-language pathologist" is defined by KRS 334A.020(3).

(37) "Support broker" means an individual designated by the department to:

(a) Provide training, technical assistance, and support to a participant; and

(b) Assist a participant in any other aspects of PDS.

(38) "Support spending plan" means a plan for a participant that identifies the:

(a) PDS requested;

(b) Employee name;

(d) Hours per month;

(e) Monthly pay;

(f) Taxes; and

(g) Budget allowance.

(39) "Transition plan" means a plan that is developed by the person centered team to aid an ABI recipient in exiting from the ABI program into the community.

Section 2. Non-PDS Provider Participation Requirements.

(1) In order to provide an ABI waiver service in accordance with Section 4 of this administrative regulation, excluding a participant-directed service, an ABI provider shall:

(a) Be enrolled as a Medicaid provider in accordance with 907 KAR 1:671;

(b) Be certified by the department prior to the initiation of the service;

(d) Have an office within the Commonwealth of Kentucky; and

(e) Complete and submit a MAP-4100a to the department.

(2) An ABI provider shall comply with:

(a) 907 KAR 1:671;

(b) 907 KAR 1:672;

(d) 907 KAR 7:005;

(e) The Health Insurance Portability and Accountability Act, 42 U.S.C. 1320d-2, and 45 C.F.R. Parts 160, 162, and 164; and

(f) 42 U.S.C. 1320d to 1320d-8.

(3) An ABI provider shall have a governing body that shall be:

(a) A legally-constituted entity within the Commonwealth of Kentucky; and

(b) Responsible for the overall operation of the organization including establishing policy that complies with this administrative regulation concerning the operation of the agency and the health, safety and welfare of an ABI recipient served by the agency.

(4) An ABI provider shall:

(a) Unless providing PDS, ensure that an ABI waiver service is not provided to a participant by a staff member of the ABI provider who has one (1) of the following blood relationships to the participant:

Child;
Parent;
Sibling; or
Spouse;

(b) Not enroll a participant for whom the ABI provider cannot meet the service needs; and

(c) Have and follow written criteria that complies with this administrative regulation for determining the eligibility of an individual for admission to services.

(5) An ABI provider shall meet the following requirements if responsible for the management of a participant's funds:

(a) Separate accounting shall be maintained for each participant or for his or her interest in a common trust or special account;

(b) Account balance and records of transactions shall be provided to the participant or legal representative on a quarterly basis; and

(c) The participant or legal representative shall be notified when a large balance is accrued that may affect Medicaid eligibility.

(6) An ABI provider shall have a written statement of its mission and values.

(7) An ABI provider shall have written policy and procedures for communication and interaction with a family and legal representative of a participant, which shall:

(a) Require a timely response to an inquiry;

(b) Require the opportunity for interaction with direct care staff;

(d) Permit visitation with the participant at a reasonable time and with due regard for the participant's right of privacy;

(e) Require involvement of the legal representative in decision-making regarding the selection and direction of the service provided; and

(f) Consider the cultural, educational, language, and socioeconomic characteristics of the participant.

(8)

(a) An ABI provider shall have written policies and procedures for all settings that assure the participant has:

Rights of privacy, dignity, respect, and freedom from coercion and restraint;
Freedom of choice:

a. As defined by the experience of independence, individual initiative, or autonomy in making life choices, both in small everyday matters (what to eat or what to wear), and in large, life-defining matters (where and with whom to live and work); and

b. Including the freedom to choose:

(i) Services;

(ii) Providers;

(iii) Settings from among setting options including non-disability specific settings; and

(iv) Where to live with as much independence as possible and in the most community-integrated environment.

(b) The setting options and choices shall be:

Identified and documented in the person-centered service plan; and
Based on the participant's needs and preferences.

(c) For a residential setting, the resources available for room and board shall be documented in the person-centered service plan.

(9) An ABI provider shall have written policies and procedures for residential settings that assure the participant has:

(a) Privacy in the sleeping unit and living unit in a residential setting;

(b) An option for a private unit in a residential setting;

(d) A choice of roommate or housemate;

(e) The freedom to furnish or decorate their sleeping or living units within the lease or other agreement;

(f) Visitors of the participant's choosing at any time and access to a private area for visitors; and

(g) Physical accessibility, defined as being easy to approach, enter, operate, or participate in a safe manner and with dignity by a person with or without a disability.

Settings considered to be physically accessible shall also meet the Americans with Disabilities Act standards of accessibility for all participants served in the setting.
All communal areas shall be accessible to all participants as well as have a means to enter the building (i.e. keys, security codes, etc.).
Bedrooms shall be accessible to the appropriate persons.

a. Any modification of an additional residential condition except for the setting being physically accessible requirement shall be supported by a specific assessed need and justified in the participant's person-centered service plan.

b. Regarding a modification, the following shall be documented in a participant's person-centered service plan:

(i) That the modification is the result of an identified specific and individualized assessed need;

(ii) Any positive intervention or support used prior to the modification;

(iii) Any less intrusive method of meeting the participant's need that was tried but failed;

(iv) A clear description of the condition that is directly proportionate to the specific assessed need;

(v) Regular collection and review of data used to measure the ongoing effectiveness of the modification;

(vi) Time limits established for periodic reviews to determine if the modification remains necessary or should be terminated;

(vii) Informed consent by the participant or participant's representative for the modification; and

(viii) An assurance that interventions and supports will cause no harm to the participant.

(10) An ABI provider shall cooperate with monitoring visits from monitoring agents.

(11) An ABI provider shall maintain a record for each participant served that shall:

(a) Be recorded in permanent ink;

(b) Be free from correction fluid;

(d) Contain no blank lines between each entry.

(12) A record of each participant who is served shall:

(a) Be cumulative;

(b) Be readily available;

(d) Contain the following specific information:

The participant's name and Medical Assistance Identification Number (MAID);
An assessment summary relevant to the service area;
The person-centered service plan;
The crisis prevention and response plan that shall include:

a. A list containing emergency contact telephone numbers; and

b. The participant's history of any allergies with appropriate allergy alerts for severe allergies;

The transition plan that shall include:

a. Skills to be obtained from the ABI waiver program;

b. A listing of the on-going formal and informal community services available to be accessed;

c. A listing of additional resources needed; and

d. Expected date of transition from the ABI waiver program;

The training objective for any service that provides skills training to the participant;
The participant's medication record, including a copy of the prescription or the signed physician's order and the medication log if medication is administered at the service site;
Legally-adequate consent for the provision of services or other treatment including a consent for emergency attention, which shall be located at each service site;
The MAP-350, Long Term Care Facilities and Home and Community Based Program Certification form updated at recertification; and
Current level of care certification;

(e) Be maintained by the provider in a manner to ensure the confidentiality of the participant's record and other personal information and to allow the participant or legal representative to determine when to share the information as provided by law;

(f) Be secured against loss, destruction, or use by an unauthorized person ensured by the provider; and

(g) Be available to the participant or legal representative according to the provider's written policy and procedures, which shall address the availability of the record.

(13) An ABI provider:

(a) Shall:

Ensure that each new staff person or volunteer performing direct care or a supervisory function has had a tuberculosis (TB) risk assessment performed by a licensed medical professional and, if indicated, a TB skin test with a negative result within the past twelve (12) months as documented on test results received by the provider;
Maintain, for existing staff, documentation of each staff person's or, if a volunteer performs direct care or a supervisory function, the volunteer's annual TB risk assessment or negative tuberculosis test required by subparagraph 1 of this paragraph;
Ensure that an employee or volunteer who tests positive for TB or has a history of a positive TB skin test shall be assessed annually by a licensed medical professional for signs or symptoms of active disease;
Before allowing a staff person or volunteer determined to have signs or symptoms of active disease to work, ensure that follow-up testing is administered by a physician with the test results indicating the person does not have active TB disease; and
Maintain annual documentation for an employee or volunteer with a positive TB test to ensure no active disease symptoms are present;

(b)

Shall for each potential employee or volunteer expected to perform direct care or a supervisory function, obtain:

a. Prior to the date of hire or date of service as a volunteer, the results of:

(i) A criminal record check from the Administrative Office of the Courts or equivalent out-of-state agency if the individual resided, worked, or volunteered outside Kentucky during the year prior to employment or volunteer service;

(ii) A Nurse Aide Abuse Registry check as described in 906 KAR 1:100; and

(iii) A Caregiver Misconduct Registry check as described in 922 KAR 5:120; and

b. Within thirty (30) days of the date of hire or date of service as a volunteer, the results of a Central Registry check as described in 922 KAR 1:470; or

May use Kentucky's national background check program established by 906 KAR 1:190 to satisfy the background check requirements of subparagraph 1 of this paragraph;

(c) Shall annually, for twenty-five (25) percent of employees randomly selected, obtain the results of a criminal record check from the Kentucky Administrative Office of the Courts or equivalent out-of-state agency if the individual resided or worked outside of Kentucky during the year prior to employment;

(d) Shall not employ or permit an individual to serve as a volunteer performing direct care or a supervisory function if the individual has a prior conviction of an offense delineated in KRS 17.165(1) through (3) or prior felony conviction;

(e) Shall not permit an employee or volunteer to transport an ABI recipient if the employee or volunteer:

Does not possess a valid operator's license issued pursuant to KRS 186.410; or
Has a conviction of Driving Under the Influence (DUI) during the past year;

(f) Shall not employ or permit an individual to serve as a volunteer performing direct care or a supervisory function if the individual has a conviction of trafficking, manufacturing, or possession of an illegal drug during the past five (5) years;

(g) Shall not employ or permit an individual to serve as a volunteer performing direct care or a supervisory function if the individual has a conviction of abuse, neglect or exploitation;

(h) Shall not employ or permit an individual to serve as a volunteer performing direct care or a supervisory function if the individual has a Cabinet for Health and Family Services finding of:

Child abuse or neglect pursuant to the Central Registry; or
Adult abuse, neglect, or exploitation pursuant to the Caregiver Misconduct Registry;

(i) Shall not employ or permit an individual to serve as a volunteer performing direct care or a supervisory function if the individual is listed on the:

Nurse Aide Abuse Registry pursuant to 906 KAR 1:100; or
Caregiver Misconduct Registry pursuant to 922 KAR 5:120;

(j) Shall evaluate and document the performance of each employee upon completion of the agency's designated probationary period and at a minimum of annually thereafter; and

(k) Shall conduct and document periodic and regularly-scheduled supervisory visits of all professional and paraprofessional direct-service staff at the service site in order to ensure that high quality, appropriate services are provided to the participant.

(14) An ABI provider shall:

(a) Have an executive director who:

Is qualified with a bachelor's degree from an accredited institution in administration or a human services field; and
Has a minimum of one (1) year of administrative responsibility in an organization which served an individual with a disability; and

(b) Have adequate direct-contact staff who:

Is eighteen (18) years of age or older;
Has a high school diploma or GED; and

a. Has a minimum of two (2) years' experience in providing a service to an individual with a disability; or

b. Has successfully completed a formalized training program such as nursing facility nurse aide training.

(15) An ABI provider shall establish written guidelines that address the health, safety and welfare of a participant, which shall include:

(a) Ensuring the health, safety and welfare of the participant;

(b) Maintenance of sanitary conditions;

Operational smoke detectors placed in strategic locations; and
A minimum of two (2) correctly-charged fire extinguishers placed in strategic locations, one (1) of which shall be capable of extinguishing a grease fire and have a rating of 1A10BC;

(d) For a supervised residential care or adult day training provider, ensuring the availability of an ample supply of hot and cold running water with the water temperature at a tap used by the participant not exceeding 120 degrees Fahrenheit;

(e) Ensuring that the nutritional needs of the participant are met in accordance with the current recommended dietary allowance of the Food and Nutrition Board of the National Research Council or as specified by a physician;

(f) Ensuring that staff who supervise medication administration:

Unless the employee is a licensed or registered nurse, have specific training provided by a licensed medical professional and documented competency on cause and effect and proper administration and storage of medication; and
Document all medication administered, including self-administered, over-the-counter drugs, on a medication log, with the date, time, and initials of the person who administered the medication and ensure that the medication shall:

a. Be kept in a locked container;

b. If a controlled substance, be kept under double lock;

c. Be carried in a proper container labeled with medication, dosage, time of administration, and the recipient's name if administered to the participant or self-administered at a program site other than his or her residence; and

d. Be documented on a medication administration form and properly disposed of if discontinued; and

(g) Establish policies and procedures for on-going monitoring of medication administration as approved by the department.

(16) An ABI provider shall establish and follow written guidelines for handling an emergency or a disaster which shall:

(a) Be readily accessible on site;

(b) Include an evacuation drill:

To be conducted and documented at least quarterly; and
For a residential setting, scheduled to include a time overnight when a participant is typically asleep;

The result of an evacuation drill be evaluated and modified as needed; and
Results of the prior year's evacuation drill be maintained on site.

(17) An ABI provider shall:

(a) Provide orientation for each new employee which shall include the mission, goals, organization and policy of the agency;

(b) Require documentation of all training which shall include:

The type of training provided;
The name and title of the trainer;
The length of the training;
The date of completion; and
The signature of the trainee verifying completion;

(c) Ensure that each employee complete ABI training consistent with the curriculum that has been approved by the department prior to working independently with a participant, which shall include:

Required orientation in brain injury;
Identifying and reporting abuse, neglect and exploitation;
Unless the employee is a licensed or registered nurse, first aid, which shall be provided by an individual certified as a trainer by the American Red Cross or other nationally-accredited organization; and
Coronary pulmonary resuscitation, which shall be provided by an individual certified as a trainer by the American Red Cross or other nationally-accredited organization;

(d) Ensure that each employee completes at least six (6) hours of continuing education in brain injury annually;

(e) Not be required to receive the training specified in paragraph (c)1 of this subsection if the provider is a professional who has, within the prior five (5) years, 2,000 hours of experience in serving a person with a primary diagnosis of a brain injury including:

An occupational therapist or occupational therapy assistant providing occupational therapy;
A psychologist or psychologist with autonomous functioning providing psychological services;
A speech-language pathologist providing speech-language pathology services; or
A board certified behavior analyst; and

(f) Ensure that prior to the date of service as a volunteer, an individual receives training which shall include:

Required orientation in brain injury as specified in paragraph (c)1, 2, 3, and 4 of this subsection;
Orientation to the agency;
A confidentiality statement; and
Individualized instruction on the needs of the participant to whom the volunteer will provide services.

(18) An ABI provider shall provide information to a case manager necessary for completion of a Mayo-Portland Adaptability Inventory-4 for each participant served by the provider.

(19) A case management provider shall meet the requirements established in Section 5 of this administrative regulation.

Section 3. Participant Eligibility, Enrollment and Termination.

(1) To be eligible to receive a service in the ABI program:

(a) An individual shall:

Be at least eighteen (18) years of age;
Have acquired a brain injury of the following nature, to the central nervous system:

a. An injury from physical trauma;

b. Damage from anoxia or from a hypoxic episode; or

c. Damage from an allergic condition, toxic substance, or another acute medical incident;

Apply to be placed on the ABI waiting list in accordance with Section 9 of this administrative regulation; and
Be screened by the department for the purpose of making a preliminary determination of whether the individual might qualify for ABI waiver services;

(b) An individual or the individual's representative shall:

Apply for 1915(c) home and community based waiver services via the MWMA; and
Complete and upload to the MWMA a MAP - 115 Application Intake - Participant Authorization;

(c) A case manager or support broker, on behalf of an applicant, shall enter into the MWMA a certification packet containing the following:

A copy of the allocation letter;
A MAP 351, Medicaid Waiver Assessment;
A statement for the need for ABI waiver services which shall be signed and dated by a physician on a MAP-10, Waiver Services – Physician's Recommendation;
A MAP 350, Long Term Care Facilities and Home and Community Based Program Certification form; and
A person-centered service plan;

(d) An individual shall receive notification of potential funding allocated for ABI services for the individual;

(e) An individual shall meet the patient status criteria for nursing facility services established in 907 KAR 1:022 including nursing facility services for a brain injury;

(f) An individual shall meet the following conditions:

Have a primary diagnosis that indicates an ABI with structural, nondegenerative brain injury;
Be medically stable;
Meet Medicaid eligibility requirements established in 907 KAR 20:010;
Exhibit cognitive, behavioral, motor or sensory damage with an indication for rehabilitation and retraining potential; and
Have a rating of at least four (4) on the Family Guide to the Rancho Levels of Cognitive Functioning; and

(g) An individual shall receive notification of approval from the department.

(2) An individual shall not remain in the ABI waiver program for an indefinite period of time.

(3) The basis of an eligibility determination for participation in the ABI waiver program shall be:

(a) The presenting problem;

(b) The person-centered service plan goal;

(d) The expected outcome;

(e) The service required; and

(f) The cost effectiveness of service delivery as an alternative to nursing facility and nursing facility brain injury services.

(4) An ABI waiver service shall not be furnished to an individual if the individual is:

(a) An inpatient of a hospital, nursing facility or an intermediate care facility for individuals with an intellectual disability; or

(b) Receiving a service in another 1915(c) home and community based services waiver program.

(5) The department shall make:

(a) An initial evaluation to determine if an individual meets the nursing facility patient status criteria established in 907 KAR 1:022; and

(b) A determination of whether to admit an individual into the ABI waiver program.

(6) To maintain eligibility as a participant:

(a) An individual shall maintain Medicaid eligibility requirements established in 907 KAR 20:010; and

(b) A reevaluation shall be conducted at least once every twelve (12) months to determine if the individual continues to meet the patient status criteria for nursing facility services established in 907 KAR 1:022.

(7) The department may exclude an individual from receiving ABI waiver services if the projected cost of ABI waiver services for the individual is reasonably expected to exceed the cost of nursing facility services for the individual.

(8) Involuntary termination or loss of an ABI waiver program placement shall be in accordance with 907 KAR 1:563 and shall be initiated if:

(a) An individual fails to initiate an ABI waiver service within sixty (60) days of notification of potential funding without good cause shown. The individual or legal representative shall have the burden of providing documentation of good cause, including:

A statement signed by the participant or legal representative;
Copies of letters to providers; and
Copies of letters from providers;

(b) A participant or legal representative fails to access the required service as outlined in the person-centered service plan for a period greater than sixty (60) consecutive days without good cause shown.

The participant or legal representative shall have the burden of providing documentation of good cause including:

a. A statement signed by the participant or legal representative;

b. Copies of letters to providers; and

c. Copies of letters from providers; and

Upon receipt of documentation of good cause, the department shall grant one (1) extension in writing which shall be:

a. Sixty (60) days for an individual who does not reside in a facility; and

b. For an individual who resides in a facility, the length of the transition plan and contingent upon continued active participation in the transition plan;

(d) A participant does not meet the patient status criteria for nursing facility services established in 907 KAR 1:022;

(e) A participant is no longer able to be safely served in the community;

(f) The participant has reached maximum rehabilitation potential; or

(g) The participant is no longer actively participating in services within the approved person-centered service plan as determined by the person-centered team.

(9) Involuntary termination of a service to a participant by an ABI provider shall require:

(a) Simultaneous notice to the department, the participant or legal representative and the case manager at least thirty (30) days prior to the effective date of the action, which shall include:

A statement of the intended action;
The basis for the intended action;
The authority by which the action is taken; and
The participant's right to appeal the intended action through the provider's appeal or grievance process; and

(b) The case manager in conjunction with the provider to:

Provide the participant with the name, address and telephone number of each current ABI provider in the state;
Provide assistance to the participant in making contact with another ABI provider;
Arrange transportation for a requested visit to an ABI provider site;
Provide a copy of pertinent information to the participant or legal representative;
Ensure the health, safety and welfare of the participant until an appropriate placement is secured;
Continue to provide supports until alternative services or another placement is secured; and
Provide assistance to ensure a safe and effective service transition.

(10) Voluntary termination and loss of an ABI waiver program placement shall be initiated if a participant or legal representative submits a written notice of intent to discontinue services to the service provider and to the department.

(a) An action to terminate services shall not be initiated until thirty (30) calendar days from the date of the notice; and

(b) The participant or legal representative may reconsider and revoke the notice in writing during the thirty (30) calendar day period.

Section 4. Person-centered Service Plan Requirements.

(1) A person-centered service plan shall be established:

(a) For each participant; and

(b) By the participant's person-centered service plan team.

(2) A participant's person-centered service plan shall:

(a) Be developed by:

The participant, the participant's guardian, or the participant's representative;
The participant's case manager;
The participant's person-centered team; and
Any other individual chosen by the participant if the participant chooses any other individual to participate in developing the person-centered service plan;

(b) Use a process that:

Provides the necessary information and support to empower the participant, the participant's guardian, or participant's legal representative to direct the planning process in a way that empowers the participant to have the freedom and support to control the recipient's schedules and activities without coercion or restraint;
Is timely and occurs at times and locations convenient for the participant;
Reflects cultural considerations of the participant;
Provides information:

a. Using plain language in accordance with 42 C.F.R. 435.905(b); and

b. In a way that is accessible to an individual with a disability or who has limited English proficiency;

Offers an informed choice defined as a choice from options based on accurate and thorough knowledge and understanding to the participant regarding the services and supports to be received and from whom;
Includes a method for the participant to request updates to the person-centered service plan as needed;
Enables all parties to understand how the participant:

a. Learns;

b. Makes decisions; and

c. Chooses to live and work in the participant's community;

Discovers the participant's needs, likes, and dislikes;
Empowers the participant's person-centered team to create a person-centered service plan that:

a. Is based on the participant's:

(i) Assessed clinical and support needs;

(ii) Strengths;

(iii) Preferences; and

(iv) Ideas;

b. Encourages and supports the participant's:

(i) Rehabilitative needs;

(ii) Habilitative needs; and

(iii) Long term satisfaction;

c. Is based on reasonable costs given the participant's support needs;

d. Includes:

(i) The participant's goals;

(ii) The participant's desired outcomes; and

(iii) Matters important to the participant;

e. Includes a range of supports including funded, community, and natural supports that shall assist the participant in achieving identified goals;

f. Includes:

(i) Information necessary to support the participant during times of crisis; and

(ii) Risk factors and measures in place to prevent crises from occurring;

g. Assists the participant in making informed choices by facilitating knowledge of and access to services and supports;

h. Records the alternative home and community-based settings that were considered by the participant;

i. Reflects that the setting in which the participant resides was chosen by the recipient;

j. Is understandable to the participant and to the individuals who are important in supporting the participant;

k. Identifies the individual or entity responsible for monitoring the person-centered service plan;

l. Is finalized and agreed to with the informed consent of the participant or recipient's legal representative in writing with signatures by each individual who will be involved in implementing the person-centered service plan;

m. Shall be distributed to the individual and other people involved in implementing the person-centered service plan;

n. Includes those services that the individual elects to self-direct; and

o. Prevents the provision of unnecessary or inappropriate services and supports; and

Have access to make private phone calls, texts, or emails at the participant's preference or convenience; and

a. Choose when and what to eat;

b. Have access to food at any time;

c. Choose with whom to eat or whether to eat alone; and

d. Choose appropriating clothing according to the:

(i) Participant's preference;

(ii) Weather; and

(iii) Activities to be performed.

(3) If a participant's person-centered service plan includes ADHC services, the ADHC services plan of treatment shall be addressed in the person-centered service plan.

(4)

(a) A participant's person-centered service plan shall be:

Entered into the MWMA by the participant's case manager; and
Updated in the MWMA by the participant's case manager.

Section 5. Case Management Requirements.

(1) A case manager shall:

(a)

Be a registered nurse;
Be a licensed practical nurse; or
Be an individual with a bachelor's degree or master's degree in a human services field who meets all applicable requirements of his or her particular field including a degree in:

a. Psychology;

b. Sociology;

c. Social work;

d. Rehabilitation counseling; or

e. Occupational therapy;

(b)

Be independent as defined as not being employed by an agency that is providing ABI waiver services to the participant; or
Be employed by or work under contract with a free-standing case management agency; and

(c) Have completed case management training that is consistent with the curriculum that has been approved by the department prior to providing case management services.

(2) A case manager shall:

(a) Communicate in a way that ensures the best interest of the participant;

(b) Be able to identify and meet the needs of the participant;

(c)

Be competent in the participant's language either through personal knowledge of the language or through interpretation; and
Demonstrate a heightened awareness of the unique way in which the participant interacts with the world around the participant;

(d) Ensure that:

The participant is educated in a way that addresses the participant's:

a. Need for knowledge of the case management process;

b. Personal rights; and

c. Risks and responsibilities as well as awareness of available services; and

All individuals involved in implementing the participant's person-centered service plan are informed of changes in the scope of work related to the person-centered service plan as applicable;

(e) Have a code of ethics to guide the case manager in providing case management, which shall address:

Advocating for standards that promote outcomes of quality;
Ensuring that no harm is done;
Respecting the rights of others to make their own decisions;
Treating others fairly; and
Being faithful and following through on promises and commitments;

(f)

Lead the person-centered service planning team;
Take charge of coordinating services through team meetings with representatives of all agencies involved in implementing a participant's person-centered service plan;

(g)

Include the participant's participation or legal representative's participation in the case management process; and
Make the participant's preferences and participation in decision making a priority;

(h) Document:

A participant's interactions and communications with other agencies involved in implementing the participant's person-centered service plan; and
Personal observations;

(i) Advocate for a participant with service providers to ensure that services are delivered as established in the participant's person-centered service plan;

(j) Be accountable to:

A participant to whom the case manager providers case management in ensuring that the participant's needs are met;
A participant's person-centered service plan team and provide leadership to the team and follow through on commitments made; and
The case manager's employer by following the employer's policies and procedures;

(k) Stay current regarding the practice of case management and case management research;

(m) Document services provided to a participant by entering the following into the MWMA:

A monthly department-approved person centered monitoring tool; and
A monthly entry, which shall include:

a. The month and year for the time period the note covers;

b. An analysis of progress toward the participant's outcome or outcomes;

c. Identification of barriers to achievement of outcomes;

d. A projected plan to achieve the next step in achievement of outcomes;

e. The signature and title of the case manager completing the note; and

f. The date the note was generated;

(n) Document via an entry into the MWMA if a participant is:

Admitted to the ABI long term care waiver program;
Terminated from the ABI long-term care waiver program;
Temporarily discharged from the ABI long term care waiver program;
Admitted to a hospital;
Admitted to a nursing facility;
Changing the primary ABI provider;
Changing the case management agency;
Transferred to another Medicaid 1915(c) home and community based waiver service program; or
Relocated to a different address; and

(o) Provide information about participant-directed services to the participant or the participant's guardian:

At the time the initial person-centered service plan is developed;
At least annually thereafter; and
Upon inquiry from the participant or participant's guardian.

(3) A case management provider shall:

(a) Establish a human rights committee which shall:

Include an:

a. Individual with a brain injury or a family member of an individual with a brain injury;

b. Individual not affiliated with the ABI provider; and

c. Individual who has knowledge and experience in human rights issues;

Review and approve each person-centered service plan with human rights restrictions at a minimum of every six (6) months;
Review and approve, in conjunction with the participant's team, behavior intervention plans that contain human rights restrictions; and
Review the use of a psychotropic medication by a participant without an Axis I diagnosis;

(b) Establish a behavior intervention committee which shall:

Include one (1) individual who has expertise in behavior intervention and is not the behavior specialist who wrote the behavior intervention plan;
Be separate from the human rights committee; and
Review and approve, prior to implementation and at a minimum of every six (6) months in conjunction with the participant's team, an intervention plan that includes highly restrictive procedures or contain human rights restrictions; and

Within thirty (30) days of the participant's admission into the ABI program;
Annually thereafter; and
Upon discharge from the ABI waiver program.

(4)

(a) Case management for any participant who begins receiving ABI waiver services after the effective date of this administrative regulation shall be conflict free.

(b)

Conflict free case management shall be a scenario in which a provider including any subsidiary, partnership, not-for-profit, or for-profit business entity that has a business interest in the provider who renders case management to a participant shall not also provide another 1915(c) home and community based waiver service to that same participant unless the provider is the only willing and qualified ABI waiver services provider within thirty (30) miles of the participant's residence.
An exemption to the conflict free case management requirement shall be granted if:

a. A participant requests the exemption;

b. The participant's case manager provides documentation of evidence to the department that there is a lack of a qualified case manager within thirty (30) miles of the participant's residence;

c. The participant or participant's representative and case manager signs a completed MAP - 531 Conflict-Free Case Management Exemption; and

d. The participant, participant's representative, or case manager uploads the completed MAP - 531 Conflict-Free Case Management Exemption into the MWMA.

If a case management service is approved to be provided despite not being conflict free, the case management provider shall document conflict of interest protections, separating case management and service provision functions within the provider entity, and demonstrate that the participant is provided with a clear and accessible alternative dispute resolution process.
An exemption to the conflict free case management requirement shall be requested upon reassessment or at least annually.

(c) A participant who receives ABI waiver services prior to the effective date of this administrative regulation shall transition to conflict free case management when the participant's next level of care determination occurs.

Case manager; or
Provider of non-case management ABI waiver services.

(5) Case management shall:

(a) Include initiation, coordination, implementation, and monitoring of the assessment or reassessment, evaluation, intake, and eligibility process;

(b) Assist a participant in the identification, coordination, and facilitation of the person centered team and person centered team meetings;

(c) Assist a participant and the person-centered team to develop an individualized person-centered service plan and update it as necessary based on changes in the participant's medical condition and supports;

(d) Include monitoring of the delivery of services and the effectiveness of the person-centered service plan, which shall:

Be initially developed with the participant and legal representative if appointed prior to the level of care determination;
Be updated within the first thirty (30) days of service and as changes or recertification occurs; and
Include the person-centered service plan being sent to the department or its designee prior to the implementation of the effective date the change occurs with the participant;

(e) Include a transition plan that shall be developed within the first thirty (30) days of service, updated as changes or recertification occurs, and updated thirty (30) days prior to discharge, and shall include:

The skills or service obtained from the ABI waiver program upon transition into the community;
A listing of the community supports available upon the transition; and
The expected date of transition from the ABI waiver program;

(f) Assist a participant in obtaining a needed service outside those available by the ABI waiver;

(g) Be provided by a case manager who:

a. Is a registered nurse;

b. Is a licensed practical nurse;

c. Is an individual who has a bachelor's or master's degree in a human services field who meets all applicable requirements of his or her particular field including a degree in psychology, sociology, social work, rehabilitation counseling, or occupational therapy;

d. Is an independent case manager; or

e. Is employed by a free-standing case management agency;

Has completed case management training that is consistent with the curriculum that has been approved by the department prior to providing case management services;
Shall provide a participant and legal representative with a listing of each available ABI provider in the service area;
Shall maintain documentation signed by a participant or legal representative of informed choice of an ABI provider and of any change to the selection of an ABI provider and the reason for the change;
Shall provide a distribution of the crisis prevention and response plan, transition plan, person-centered service plan, and other documents within the first thirty (30) days of the service to the chosen ABI service provider and as information is updated;
Shall provide twenty-four (24) hour telephone access to a participant and chosen ABI provider;
Shall work in conjunction with an ABI provider selected by a participant to develop a crisis prevention and response plan, which shall be:

a. Individual-specific; and

b. Updated as a change occurs and at each recertification;

Shall assist a participant in planning resource use and assuring protection of resources;

a. Shall conduct two (2) face-to-face meetings with a participant within a calendar month occurring at a covered service site with one (1) visit quarterly at the participant's residence; and

b. For a participant receiving supervised residential care, shall conduct at least one (1) of the two (2) monthly visits at the participant's supervised residential care provider site;

Shall ensure twenty-four (24) hour availability of services; and
Shall ensure that the participant's health, welfare, and safety needs are met; and

(h) Be documented in the MWMA by a detailed staff note, which shall include:

The participant's health, safety, and welfare;
Progress toward outcomes identified in the approved person-centered service plan;
The date of the service;
The beginning and ending times;
The signature and title of the individual providing the service; and
A quarterly summary, which shall include:

a. Documentation of monthly contact with each chosen ABI provider; and

b. Evidence of monitoring of the delivery of services approved in the participant's person-centered service plan and of the effectiveness of the person-centered service plan.

(6) Case management shall involve:

(a) A constant recognition of what is and is not working regarding a participant; and

(b) Changing what is not working.

Section 6. Covered Services.

(1) An ABI waiver service shall:

(a) Not be covered unless it has been prior-authorized by the department; and

(b) Be provided pursuant to the participant's person-centered service plan.

(2) The following services shall be provided to a participant by an ABI waiver provider:

(a) Case management services in accordance with Section 4 of this administrative regulation;

(b) Behavior programming services, which shall:

Be the systematic application of techniques and methods to influence or change a behavior in a desired way;
Include a functional analysis of the participant's behavior which shall include:

a. An evaluation of the impact of an ABI on cognition and behavior;

b. An analysis of potential communicative intent of the behavior;

c. The history of reinforcement for the behavior;

d. Critical variables that precede the behavior;

e. Effects of different situations on the behavior; and

f. A hypothesis regarding the motivation, purpose and factors which maintain the behavior;

Include the development of a behavioral support plan, which shall:

a. Be developed by the behavioral specialist;

b. Not be implemented by the behavior specialist who wrote the plan;

c. Be revised as necessary;

d. Define the techniques and procedures used;

e. Include the hierarchy of behavior interventions ranging from the least to the most restrictive;

f. Reflect the use of positive approaches; and

g. Prohibit the use of prone or supine restraint, corporal punishment, seclusion, verbal abuse, and any procedure which denies private communication, requisite sleep, shelter, bedding, food, drink, or use of a bathroom facility;

Include the provision of training to other ABI providers concerning implementation of the behavioral intervention plan;
Include the monitoring of a participant's progress, which shall be accomplished through:

a. The analysis of data concerning the frequency, intensity, and duration of a behavior;

b. Reports involved in implementing the behavioral service plan; and

c. A monthly summary, which assesses the participant's status related to the plan of care;

Be provided by a behavior specialist who shall:

(i) Be a psychologist;

(ii) Be a psychologist with autonomous functioning;

(iii) Be a licensed psychological associate;

(iv) Be a psychiatrist;

(v) Be a licensed clinical social worker;

(vi) Be a clinical nurse specialist with a master's degree in psychiatric nursing or rehabilitation nursing;

(vii) Be an advanced practice registered nurse;

(viii) Be a board certified behavior analyst; or

(ix) Be a licensed professional clinical counselor; and

b. Have at least one (1) year of behavior specialist experience or provide documentation of completed coursework regarding learning and behavior principles and techniques; and

Be documented in the MWMA by a detailed staff note which shall include:

a. The date of the service;

b. The beginning and ending time; and

c. The signature and title of the behavioral specialist;

Include a nonmedical service, supervision or socialization as indicated in the recipient's plan of care;
Include assisting with but not performing meal preparation, laundry and shopping;
Include light housekeeping tasks which are incidental to the care and supervision of a participant;
Include services provided according to the approved plan of care which are therapeutic and not diversional in nature;
Include accompanying and assisting a participant while utilizing transportation services;
Include documentation in the MWMA by a detailed staff note which shall include:

a. Progress toward goal and objectives identified in the approved plan of care;

b. The date of the service;

c. Beginning and ending time; and

d. The signature and title of the individual providing the service;

Not be provided to a participant who receives supervised residential care; and
Be provided by:

a. A home health agency licensed and operating in accordance with 902 KAR 20:081;

b. A community mental health center licensed and operating in accordance with 902 KAR 20:091 and certified at least annually by the department;

c. A community habilitation program certified by the department; or

d. A supervised residential care provider;

(d) Supervised residential care level I services, which:

Shall be provided by:

a. A community mental health center licensed and operating in accordance with 902 KAR 20:091 and certified at least annually by the department; or

b. An ABI provider;

Shall not be provided to a participant unless the participant has been authorized to receive residential care by the department's residential review committee, which shall:

a. Consider applications for residential care in the order in which the applications are received;

b. Base residential care decisions on the following factors:

(i) Whether the applicant resides with a caregiver or not;

(ii) Whether the applicant resides with a caregiver but demonstrates maladaptive behavior which places the applicant at significant risk of injury or jeopardy if the caregiver is unable to effectively manage the applicant's behavior or the risk it poses, resulting in the need for removal from the home to a more structured setting; or

(iii) Whether the applicant demonstrates behavior which may result in potential legal problems if not ameliorated;

c. Be comprised of three (3) Cabinet for Health and Family Services employees:

(i) With professional or personal experience with brain injury or other cognitive disabilities; and

(ii) None of whom shall be supervised by the manager of the acquired brain injury branch; and

d. Only consider applications at a monthly committee meeting if the applications were received at least three (3) business days before the committee convenes;

Shall not have more than three (3) participants simultaneously in a residence rented or owned by the ABI provider;
Shall provide twenty-four (24) hours of supervision daily unless the provider implements, pursuant to subparagraph 5 of this paragraph, an individualized plan allowing for up to five (5) unsupervised hours per day;
May include the provision of up to five (5) unsupervised hours per day per participant if the provider develops an individualized plan for the participant to promote increased independence. The plan shall:

a. Contain provisions necessary to ensure the participant's health, safety, and welfare;

b. Be approved by the participant's treatment team, with the approval documented by the provider; and

c. Contain periodic reviews and updates based on changes, if any, in the participant's status;

Shall include assistance and training with daily living skills including:

a. Ambulating;

b. Dressing;

c. Grooming;

d. Eating;

e. Toileting;

f. Bathing;

g. Meal planning;

h. Grocery shopping;

i. Meal preparation;

j. Laundry;

k. Budgeting and financial matters;

l. Home care and cleaning;

m. Leisure skill instruction; or

n. Self-medication instruction;

Shall include social skills training including the reduction or elimination of maladaptive behaviors in accordance with the participant's person-centered service plan;
Shall include provision or arrangement of transportation to services, activities, or medical appointments as needed;
Shall include accompanying or assisting a participant while the participant utilizes transportation services as specified in the participant's person-centered service plan;
Shall include participation in medical appointments or follow-up care as directed by the medical staff;
Shall be documented in the MWMA by a detailed staff note which shall document:

a. Progress toward goals and objectives identified in the approved person-centered service plan;

b. The date of the service;

c. The beginning and ending time of the service; and

d. The signature and title of the individual providing the service;

Shall not include the cost of room and board;
Shall be provided to a participant who:

a. Does not reside with a caregiver;

b. Is residing with a caregiver but demonstrates maladaptive behavior that places him or her at significant risk of injury or jeopardy if the caregiver is unable to effectively manage the behavior or the risk it presents, resulting in the need for removal from the home to a more structured setting; or

c. Demonstrates behavior that may result in potential legal problems if not ameliorated;

May utilize a modular home only if the:

a. Wheels are removed;

b. Home is anchored to a permanent foundation; and

c. Windows are of adequate size for an adult to use as an exit in an emergency;

Shall not utilize a motor home;
Shall provide a sleeping room which ensures that a participant:

a. Does not share a room with an individual of the opposite gender who is not the participant's spouse;

b. Does not share a room with an individual who presents a potential threat; and

c. Has a separate bed equipped with substantial springs, a clean and comfortable mattress, and clean bed linens as required for the participant's health and comfort; and

Shall provide service and training to obtain the outcomes for the participant as identified in the approved person-centered service plan;

(e) Supervised residential care level II services, which shall:

Meet the requirements established in paragraph (d) of this subsection, except for the requirements established in paragraph (d)4 and 5;
Provide twelve (12) to eighteen (18) hours of daily supervision, the amount of which shall:

a. Be based on the participant's needs;

b. Be approved by the participant's treatment team; and

c. Be documented in the participant's person-centered service plan, which shall also contain periodic reviews and updates based on changes, if any, in the participant's status; and

Include provision of twenty-four (24) hour on-call support;

(f) Supervised residential care level III services, which shall:

Meet the requirements established in paragraph (d) of this subsection except for the requirements established in paragraph (d)4 and 5;
Be provided in a single family home, duplex, or apartment building to a participant who lives alone or with an unrelated roommate;
Not be provided to more than two (2) participants simultaneously in one (1) apartment or home;
Not be provided in more than two (2) apartments in one (1) building;
If provided in an apartment building, have staff:

a. Available twenty-four (24) hours per day and seven (7) days per week; and

b. Who do not reside in a dwelling occupied by a participant; and

Provide less than twelve (12) hours of supervision or support in the residence based on an individualized plan developed by the provider to promote increased independence which shall:

a. Contain provisions necessary to ensure the recipient's health, safety, and welfare;

b. Be approved by the participant's treatment team, with the approval documented by the provider; and

c. Contain periodic reviews and updates based on changes, if any, in the participant's status;

(g) Counseling services, which:

Shall be designed to help a participant resolve personal issues or interpersonal problems resulting from his or her ABI;
Shall assist a family member in implementing an approved person-centered service plan;
In a severe case, shall be provided as an adjunct to behavioral programming;
Shall include substance abuse or chemical dependency treatment, if needed;
Shall include building and maintaining healthy relationships;
Shall develop social skills or the skills to cope with and adjust to the brain injury;
Shall increase knowledge and awareness of the effects of an ABI;
May include a group therapy service if the service is:

a. Provided to a minimum of two (2) and a maximum of eight (8) participants; and

b. Included in the participant's approved person-centered service plan for:

(i) Substance abuse or chemical dependency treatment, if needed;

(ii) Building and maintaining healthy relationships;

(iii) Developing social skills;

(iv) Developing skills to cope with and adjust to a brain injury, including the use of cognitive remediation strategies consisting of the development of compensatory memory and problem solving strategies, and the management of impulsivity; and

(v) Increasing knowledge and awareness of the effects of the acquired brain injury upon the participant's functioning and social interactions;

Shall be provided by:

a. A psychiatrist;

b. A psychologist;

c. A psychologist with autonomous functioning;

d. A licensed psychological associate;

e. A licensed clinical social worker;

f. A clinical nurse specialist with a master's degree in psychiatric nursing;

g. An advanced practice registered nurse; or

h. A certified alcohol and drug counselor;

i. A licensed marriage and family therapist;

j. A licensed professional clinical counselor;

k. A licensed clinical alcohol and drug counselor associate effective and contingent upon approval by the Centers for Medicare and Medicaid Services; or

l. A licensed clinical alcohol and drug counselor effective and contingent upon approval by the Centers for Medicare and Medicaid Services; and

Shall be documented in the MWMA by a detailed staff note, which shall include:

a. Progress toward the goals and objectives established in the person-centered service plan;

b. The date of the service;

c. The beginning and ending time; and

d. The signature and title of the individual providing the service;

(h) Occupational therapy which shall be:

A physician-ordered evaluation of a participant's level of functioning by applying diagnostic and prognostic tests;
Physician-ordered services in a specified amount and duration to guide a participant in the use of therapeutic, creative, and self-care activities to assist the participant in obtaining the highest possible level of functioning;
Exclusive of maintenance or the prevention of regression;
Provided by an occupational therapist or an occupational therapy assistant if supervised by an occupational therapist in accordance with 201 KAR 28:130; and
Documented in the MWMA by a detailed staff note, which shall include:

a. Progress toward goal and objectives identified in the approved person-centered service plan;

b. The date of the service;

c. The beginning and ending times; and

d. The signature and title of the individual providing the service;

(i) Personal care services, which shall:

Include the retraining of a participant in the performance of an activity of daily living by using repetitive, consistent and ongoing instruction and guidance;
Be provided by:

a. An adult day health care center licensed and operating in accordance with 902 KAR 20:066;

b. A home health agency licensed and operating in accordance with 902 KAR 20:081;

c. A personal services agency; or

d. Another ABI provider;

Include the following activities of daily living:

a. Eating, bathing, dressing or personal hygiene;

b. Meal preparation; and

c. Housekeeping chores including bed-making, dusting and vacuuming;

Be documented in the MWMA by a detailed staff note which shall include:

a. Progress toward goal and objectives identified in the approved person-centered service plan;

b. The date of the service;

c. Beginning and ending time; and

d. The signature and title of the individual providing the service; and

Not be provided to a participant who receives supervised residential care

(j) A respite service, which shall:

Be provided only to a participant unable to administer self-care;
Be provided by a:

a. Nursing facility;

b. Community mental health center;

c. Home health agency;

d. Supervised residential care provider; or

e. Community habilitation program;

Be provided on a short-term basis due to absence or need for relief of a non-paid primary caregiver;
Be limited to 336 hours per one (1) year authorized person-centered service plan period unless an individual's non-paid caregiver is unable to provide care due to a:

a. Death in the family;

b. Serious illness; or

c. Hospitalization;

Not be provided to a participant who receives supervised residential care;
Not include the cost of room and board if provided in a nursing facility; and
Be documented in the MWMA by a detailed staff note, which shall include:

a. Progress toward goals and objectives identified in the approved person-centered service plan;

b. The date of the service;

c. The beginning and ending time; and

d. The signature and title of the individual providing the service;

(k) Speech- language pathology services, which shall be:

A physician-ordered evaluation of a participant with a speech, hearing, or language disorder;
A physician-ordered habilitative service in a specified amount and duration to assist a participant with a speech and language disability in obtaining the highest possible level of functioning;
Exclusive of maintenance or the prevention of regression;
Provided by a speech language pathologist; and
Documented in the MWMA by a detailed staff note, which shall include:

a. Progress toward goals and objectives identified in the approved person-centered service plan;

b. The date of the service;

c. The beginning and ending time; and

d. The signature and title of the individual providing the service;

(l) Adult day training services, which shall:

Be provided by:

a. An adult day health care center that is certified by the department and licensed and operating in accordance with 902 KAR 20:066;

b. An outpatient rehabilitation facility that is certified by the department and licensed and operating in accordance with 902 KAR 20:190;

c. A community mental health center licensed and operating in accordance with 902 KAR 20:091;

d. A community habilitation program;

e. A sheltered employment program; or

f. A therapeutic rehabilitation program;

Rehabilitate, retrain and reintegrate a participant into the community;
Not exceed a staffing ratio of five (5) participants per one (1) staff person, unless a participant requires individualized special service;
Include the following services:

a. Social skills training related to problematic behaviors identified in the participant's person-centered service plan;

b. Sensory or motor development;

c. Reduction or elimination of a maladaptive behavior;

d. Prevocational; or

e. Teaching concepts and skills to promote independence including:

(i) Following instructions;

(ii) Attendance and punctuality;

(iii) Task completion;

(iv) Budgeting and money management;

(v) Problem solving; or

(vi) Safety;

Be provided in a nonresidential setting;
Be developed in accordance with a participant's overall approved person-centered service plan;
Reflect the recommendations of a participant's interdisciplinary team;
Be appropriate:

a. Given a participant's age, level of cognitive and behavioral function and interest;

b. Given a participant's ability prior to and since his or her injury; and

c. According to the approved person-centered service plan and be therapeutic in nature and not diversional;

Be coordinated with occupational, speech, or other rehabilitation therapy included in a participant's person-centered service plan;
Provide a participant with an organized framework within which to function in his or her daily activities;
Entail frequent assessments of a participant's progress and be appropriately revised as necessary; and
Be documented in the MWMA by a detailed staff note, which shall include:

a. Progress toward goal and objectives identified in the approved person-centered service plan;

b. The date of the service;

c. The beginning and ending time;

d. The signature and title of the individual providing the service; and

e. A monthly summary that assesses the participant's status related to the approved person-centered service plan;

(m) Supported employment services, which shall be:

Intensive, ongoing services for a participant to maintain paid employment in an environment in which an individual without a disability is employed;
Provided by a:

a. Supported employment provider;

b. Sheltered employment provider; or

c. Structured day program provider;

Provided one-on-one;
Unavailable under a program funded by either the Rehabilitation Act of 1973 (29 U.S.C. Chapter 16) or Pub.L. 99-457 (34 C.F.R. Parts 300 to 399), proof of which shall be documented in the participant's file;
Limited to forty (40) hours per week alone or in combination with structured day services;
An activity needed to sustain paid work by a participant receiving waiver services including supervision and training;
Exclusive of work performed directly for the supported employment provider; and
Documented in the MWMA by a time and attendance record, which shall include:

a. Progress towards the goals and objectives identified in the person-centered service plan;

b. The date of service;

c. The beginning and ending time; and

d. The signature and title of the individual providing the service;

(n) Specialized medical equipment and supplies, which shall:

Include durable and nondurable medical equipment, devices, controls, appliances, or ancillary supplies;
Enable a participant to increase his or her ability to perform daily living activities or to perceive, control, or communicate with the environment;
Be ordered by a physician, documented in a participant's person-centered service plan, and entered into the MWMA by the participant's case manager or support broker, and include three (3) estimates if the equipment is needed for vision and hearing;
Include equipment necessary to the proper functioning of specialized items;
Not be available through the department's durable medical equipment, vision or hearing programs;
Not be necessary for life support;
Meet applicable standards of manufacture, design and installation; and
Exclude those items which are not of direct medical or remedial benefit to a participant;

(o) Environmental modifications, which shall:

Be provided in accordance with applicable state and local building codes;
Be provided to a participant if:

a. Ordered by a physician;

b. Prior-authorized by the department;

c. Specified in the participant's approved person-centered service plan and entered into the MWMA by the participant's case manager or support broker;

d. Necessary to enable a participant to function with greater independence within his or her home; and

e. Without the modification, the participant would require institutionalization;

Not include a vehicle modification;
Be limited to no more than $2,000 for a participant in a twelve (12) month period; and
If entailing:

a. Electrical work, be provided by a licensed electrician; or

b. Plumbing work, be provided by a licensed plumber;

(p) An assessment, which shall:

Be a comprehensive assessment which shall identify:

a. A participant's needs; and

b. Services that a participant's family cannot manage or arrange for the participant;

Evaluate a participant's physical health, mental health, social supports, and environment;
Be requested by:

a. An individual requesting ABI waiver services;

b. A family member of the individual requesting ABI services; or

c. A legal representative of the individual requesting ABI services;

Be conducted:

a. By an ABI case manager or support broker; and

b. Within seven (7) calendar days of receipt of the request for an assessment;

Include at least one (1) face-to-face contact in the participant's home between the assessor, the participant, and, if appropriate, the participant's family; and
Not be reimbursable if the individual no longer meets ABI program eligibility requirements; or

(q) A reassessment, which shall:

Be performed at least once every twelve (12) months;
Be conducted:

a. Using the same procedures as for an assessment; and

b. By an ABI case manager or support broker;

Be timely conducted to enable the results to be submitted to the department within three (3) weeks prior to the expiration of the current level of care certification to ensure that certification is consecutive;
Not be reimbursable if the individual no longer meets ABI program eligibility requirements; and
Not be retroactive.

Section 7. Exclusions of the Acquired Brain Injury Waiver Program. A condition included in the following list shall not be considered an acquired brain injury requiring specialized rehabilitation:

(1) A stroke treatable in a nursing facility providing routine rehabilitation services;

(2) A spinal cord injury for which there is no known or obvious injury to the intracranial central nervous system;

(3) Progressive dementia or another condition related to mental impairment that is of a chronic degenerative nature, including senile dementia, organic brain disorder, Alzheimer's Disease, alcoholism or another addiction;

(4) A depression or a psychiatric disorder in which there is no known or obvious central nervous system damage;

(5) A birth defect;

(6) An intellectual disability without an etiology to an acquired brain injury;

(7) A condition which causes an individual to pose a level of danger or an aggression which is unable to be managed and treated in a community; or

(8) Determination that the participant has met his or her maximum rehabilitation potential.

Section 8. Incident Reporting Process.

(1)

(a) There shall be two (2) classes of incidents.

(b) The following shall be the two (2) classes of incidents:

An incident; or
A critical incident.

(2) An incident shall be any occurrence that impacts the health, safety, welfare, or lifestyle choice of a participant and includes:

(a) A minor injury;

(b) A medication error without a serious outcome; or

(3) A critical incident shall be an alleged, suspected, or actual occurrence of an incident that:

(a) Can reasonably be expected to result in harm to a participant; and

(b) Shall include:

Abuse, neglect, or exploitation;
A serious medication error;
Death;
A homicidal or suicidal ideation;
A missing person; or
Other action or event that the provider determines may result in harm to the participant.

(4)

(a) If an incident occurs, the ABI provider shall:

Report the incident by making an entry into the MWMA that includes details regarding the incident; and
Be immediately assessed for potential abuse, neglect, or exploitation.

(b) If an assessment of an incident indicates that the potential for abuse, neglect, or exploitation exists:

The incident shall immediately be considered a critical incident;
The critical incident procedures established in subsection (5) of this section shall be followed; and
The ABI provider shall report the incident to the participant's case manager and participant's guardian, if the participant has a guardian, within twenty-four (24) hours of discovery of the incident.

(5)

(b) If the critical incident:

Requires reporting of abuse, neglect, or exploitation, the critical incident shall be immediately reported via the MWMA by the individual who witnessed or discovered the critical incident; or
Does not require reporting of abuse, neglect, or exploitation, the critical incident shall be reported via the MWMA by the individual who witnessed or discovered the critical incident within eight (8) hours of discovery.

Conduct an immediate investigation and involve the participant's case manager in the investigation; and
Prepare a report of the investigation, which shall be recorded in the MWMA and shall include:

a. Identifying information of the participant involved in the critical incident and the person reporting the critical incident;

b. Details of the critical incident; and

c. Relevant participant information including:

(i) Axis I diagnosis or diagnoses;

(ii) Axis II diagnosis or diagnoses;

(iii) Axis III diagnosis or diagnoses;

(iv) A listing of recent medical concerns;

(v) An analysis of causal factors; and

(vi) Recommendations for preventing future occurrences.

(6)

(a) Following a death of a participant receiving ABI services from an ABI provider, the ABI provider shall enter mortality data documentation into the MWMA within fourteen (14) days of the death.

(b) Mortality data documentation shall include:

The participant's person-centered service plan at the time of death;
Any current assessment forms regarding the participant;
The participant's medication administration records from all service sites for the past three (3) months along with a copy of each prescription;
Progress notes regarding the participant from all service elements for the past thirty (30) days;
The results of the participant's most recent physical exam;
All incident reports, if any exist, regarding the participant for the past six (6) months;
Any medication error report, if any exists, related to the participant for the past six (6) months;
The most recent psychological evaluation of the participant;
A full life history of the participant including any update from the last version of the life history;
Names and contact information for all staff members who provided direct care to the participant during the last thirty (30) days of the participant's life;
Emergency medical services notes regarding the participant if available;
The police report if available;
A copy of:

a. The participant's advance directive, medical order for scope of treatment, living will, or health care directive if applicable;

b. Any functional assessment of behavior or positive behavior support plan regarding the participant that has been in place over any part of the past twelve (12) months; and

c. The cardiopulmonary resuscitation and first aid card for any ABI provider's staff member who was present at the time of the incident that resulted in the participant's death;

A record of all medical appointments or emergency room visits by the participant within the past twelve (12) months; and
A record of any crisis training for any staff member present at the time of the incident that resulted in the participant's death.

(7)

(a) An ABI provider shall report a medication error to the MWMA.

(b) An ABI provider shall document all medication error details on a medication error log retained on file at the ABI provider site.

Section 9. ABI Waiting List.

(1) An individual of age eighteen (18) years or older applying for an ABI waiver service shall be placed on a statewide waiting list which shall be maintained by the department.

(2) In order to be placed on the ABI waiting list, an individual or individual's representative shall:

(a) Apply for 1915(c) home and community based waiver services via the MWMA;

(b) Complete and upload into the MWMA a MAP – 115 Application Intake – Participant Authorization; and

(c) Upload to the MWMA a completed MAP-10, Waiver Services – Physician's Recommendation that has been signed by a physician.

(3) The order of placement on the ABI waiting list shall be determined by the:

(a) Chronological date of complete application information regarding the individual being entered into the MWMA; and

(b) Category of need.

(4) The ABI waiting list categories of need shall be emergency or nonemergency.

(5) To be placed in the emergency category of need, an individual shall be determined by the emergency review committee to meet the emergency category criteria established in subsection (8) of this section.

(6) The emergency review committee shall:

(a) Be comprised of three (3) individuals from the department:

Who shall each have professional or personal experience with brain injury or cognitive disabilities; and
None of whom shall be supervised by the branch manager of the department's acquired brain injury branch; and

(b) Meet during the fourth (4th) week of each month to review and consider applications for the acquired brain injury waiver program to determine if applicants meet the emergency category of need criteria established in subsection (8) of this subsection.

(7) An individual's application via the MWMA shall be completed no later than three (3) business days prior to the fourth (4th) week of each month in order to be considered by the emergency review committee during that month's emergency review committee meeting.

(8) An applicant shall meet the emergency category of need criteria if the applicant is currently demonstrating behavior related to his or her acquired brain injury:

(a) That places the individual, caregiver, or others at risk of significant harm; or

(b) Which has resulted in the applicant being arrested.

(9) An applicant who does not meet the emergency category of need criteria established in subsection (8) of this subsection shall be considered to be in the nonemergency category of need.

(10) In determining chronological status of an applicant, the original date of the individual's complete application information being entered into the MWMA shall:

(a) Be maintained; and

(b) Not change if the individual is moved from one (1) category of need to another.

(11) A written statement by a physician or other qualified mental health professional shall be required to support the validation of risk of significant harm to a recipient or caregiver.

(12) Written documentation by law enforcement or court personnel shall be required to support the validation of a history of arrest.

(13) A written notification of placement on the waiting list shall be mailed to the individual or his or her legal representative and case management provider if identified.

(14) Maintenance of the ABI waiting list shall occur as follows:

(a) The department shall, at a minimum, annually update the waiting list during the birth month of an individual;

(b) If an individual is removed from the ABI waiting list, written notification shall be mailed by the department to the individual and his or her legal representative and also the ABI case manager; and

(c) The requested data shall be received by the department within thirty (30) days from the date on the written notice required by subsection (13) of this section.

(15) Reassignment of an applicant's category of need shall be completed based on the updated information and validation process.

(16) An individual or legal representative may submit a request for consideration of movement from one category of need to another at any time that an individual's status changes.

(17) An individual shall be removed from the ABI waiting list if:

(a) After a documented attempt, the department is unable to locate the individual or his or her legal representative;

(b) The individual is deceased;

(c) The individual or individual's legal representative refuses the offer of ABI placement for services and does not request to be maintained on the waiting list;

(d) An ABI placement for services offer is refused by the individual or legal representative; or

(e) The individual does not access services without demonstration of good cause within sixty (60) days of the placement allocation date.

The individual or individual's legal representative shall have the burden of providing documentation of good cause including:

a. A signed statement by the individual or the legal representative;

b. Copies of letters to providers; and

c. Copies of letters from providers.

Upon receipt of documentation of good cause, the department shall grant one (1) sixty (60) day extension in writing.

(18) If an individual is removed from the ABI waiting list, written notification shall be mailed by the department to the individual or individual's legal representative and the ABI case manager.

(19) The removal of an individual from the ABI waiting list shall not prevent the submittal of a new application at a later date.

(20) Potential funding allocated for services for an individual shall be based upon:

(a) The individual's category of need; and

(b) The individual's chronological date of placement on the waiting list.

Section 10. Participant-Directed Services.

(1) Covered services and supports provided to a participant receiving PDS shall include:

(a) Home and community support services;

(b) Community day support services;

(d) Financial management.

(2) A home and community support service shall:

(a) Be available only as a participant-directed service;

(b) Be provided in the participant's home or in the community;

(d) Not be diversional in nature;

(e) Not be provided to an individual if the same or similar service is being provided to the individual via non-PDS ABI services; and

(f)

Be respite for the primary caregiver; or
Be supports and assistance related to chosen outcomes to facilitate independence and promote integration into the community for an individual residing in his or her own home or the home of a family member and may include:

a. Routine household tasks and maintenance;

b. Activities of daily living;

c. Personal hygiene;

d. Shopping;

e. Money management;

f. Medication management;

g. Socialization;

h. Relationship building;

i. Meal planning;

j. Meal preparation;

k. Grocery shopping; or

l. Participation in community activities.

(3) A community day support service shall:

(a) Be available only as a participant-directed service;

(b) Be provided in a community setting;

(d) Not be diversional in nature;

(e) Be tailored to the participant's specific personal outcomes related to the acquisition, improvement, and retention of skills and abilities to prepare and support the participant for:

Work;
Community activities;
Socialization;
Leisure; or
Retirement activities; and

(f) Not be provided to an individual if the same or similar service is being provided to the individual via non-PDS ABI services.

(4) Goods or services shall:

(a) Be individualized;

(b) Be utilized to:

Reduce the need for personal care; or
Enhance independence within the participant's home or community;

(d) Not include chemical or physical restraints.

(5) To be covered, a PDS shall be specified in a participant's person-centered service plan.

(6) Reimbursement for a PDS shall not exceed the department's allowed reimbursement for the same or a similar service provided in a non-PDS ABI setting.

(7) A participant, including a married participant, shall choose providers and the choice of PDS provider shall be documented in his or her person-centered service plan.

(8)

(a) A participant may designate a representative to act on the participant's behalf.

(b) The PDS representative shall:

Be twenty-one (21) years of age or older;
Not be monetarily compensated for acting as the PDS representative or providing a PDS; and
Be appointed by the participant on a MAP-2000 form.

(9) A participant may voluntarily terminate PD services by completing a MAP-2000 and submitting it to the support broker.

(10) The department shall immediately terminate a participant from CDO services if:

(a) Imminent danger to the participant's health, safety, or welfare exists;

(b) The recipient's person-centered service plan indicates he or she requires more hours of service than the program can provide, thus jeopardizing the recipient's safety or welfare due to being left alone without a caregiver present; or

(11) The department may terminate a participant from PDS if it determines that the participant's PDS provider has not adhered to the person-centered service plan.

(12) Prior to a participant's termination from PDS, the support broker shall:

(a) Notify the assessment or reassessment service provider of potential termination;

(b) Assist the participant in developing a resolution and prevention plan;

(c) Allow at least thirty (30), but no more than ninety (90), days for the participant to resolve the issue, develop and implement a prevention plan, or designate a PDS representative;

(d) Complete and submit to the department a MAP-2000 form terminating the participant from PDS if the participant fails to meet the requirements in paragraph (c) of this subsection; and

(e) Assist the participant in transitioning back to traditional ABI services.

(13) Upon an involuntary termination of PDS, the department shall:

(a) Notify a participant in writing of its decision to terminate the participant's PDS participation; and

(b) Inform the participant of the right to appeal the department's decision in accordance with Section 10 of this administrative regulation.

(14) A PDS provider:

(a) Shall be selected by the participant;

(b) Shall submit a completed Kentucky Participant-Directed Services Employee Provider Contract to the support broker;

(d) Shall be a citizen of the United States with a valid Social Security number or possess a valid work permit if not a U.S. citizen;

(e) Shall be able to communicate effectively with the participant, participant's representative, or family;

(f) Shall be able to understand and carry out instructions;

(g) Shall be able to keep records as required by the participant;

(h) Shall submit to a criminal background check conducted by the Administrative Office of the Courts if the individual is a Kentucky resident or equivalent out-of-state agency if the individual resided or worked outside Kentucky during the year prior to selection as a provider of PDS;

(i) Shall submit to a check of the Central Registry maintained in accordance with 922 KAR 1:470 and not be found on the registry:

A participant may employ a provider prior to a Central Registry check result being obtained for up to thirty (30) days; and
If a participant does not obtain a Central Registry check result within thirty (30) days of employing a provider, the participant shall cease employment of the provider until a favorable result is obtained;

(j) Shall submit to a check of the:

Nurse Aide Abuse Registry maintained in accordance with 906 KAR 1:100 and not be found on the registry; and
Caregiver Misconduct Registry maintained in accordance with 922 KAR 5:120 and not be found on the registry;

(k) Shall not have pled guilty or been convicted of committing a sex crime or violent crime as defined in KRS 17.165 (1) through (3);

(l) Shall complete training on the reporting of abuse, neglect or exploitation in accordance with KRS 209.030 or 620.030 and on the needs of the participant;

(m) Shall be approved by the department;

(n) Shall maintain and submit timesheets documenting hours worked; and

(o) Shall be a friend, spouse, parent, family member, other relative, employee of a provider agency, or other person hired by the participant.

(15) A PDS provider may use Kentucky's national background check program established by 906 KAR 1:190 to satisfy the background check requirements of subsection (14)(h), (i), and (j) of this section.

(16) A parent, parents combined, or a spouse shall not provide more than forty (40) hours of services in a calendar week (Sunday through Saturday) regardless of the number of family members who receive waiver services.

(17)

(a)

The department shall establish a budget for a participant based on the individual's historical costs minus five (5) percent to cover costs associated with administering the participant-directed services.
If no historical cost exists for the participant, the participant's budget shall equal the average per capita historical costs of ABI recipients minus five (5) percent.

(b) Cost of services authorized by the department for the individual's prior year person-centered service plan but not utilized may be added to the budget if necessary to meet the individual's needs.

(c) The department may adjust a participant's budget based on the participant's needs and in accordance with paragraphs (d) and (e) of this subsection.

(d) A participant's budget shall not be adjusted to a level higher than established in paragraph (a) of this subsection unless:

The participant's support broker requests an adjustment to a level higher than established in paragraph (a) of this subsection; and
The department approves the adjustment.

(e) The department shall consider the following factors in determining whether to allow for a budget adjustment:

If the proposed services are necessary to prevent imminent institutionalization;
The cost effectiveness of the proposed services;
Protection of the participant's health, safety, and welfare; and
If a significant change has occurred in the recipient's:

a. Physical condition resulting in additional loss of function or limitations to activities of daily living and instrumental activities of daily living;

b. Natural support system; or

c. Environmental living arrangement resulting in the recipient's relocation.

(f) A participant's budget shall not exceed the average per capita cost of services provided to individuals with a brain injury in a nursing facility.

(18) Unless approved by the department pursuant to subsection (16)(b) through (e) of this section, if a PDS is expanded to a point in which expansion necessitates a budget allowance increase, the entire service shall only be covered via a traditional (non-PDS) waiver service provider.

(19)

(a) A support broker shall:

Provide needed assistance to a participant with any aspect of PDS or blended services;
Be available to a participant by phone or in person:

a. Twenty-four (24) hours per day, seven (7) days per week; and

b. To assist the participant in obtaining community resources as needed;

Comply with applicable federal and state laws and requirements;
Continually monitor a participant's health, safety, and welfare; and
Complete or revise a person-centered service plan in accordance with Section 4 of this administrative regulation.

(b) For a PDS participant, a support broker may conduct an assessment or reassessment.

(c) Services provided by a supporter broker shall meet the conflict free requirements established for case management in Section 5(4) of this administrative regulation.

(20) Financial management shall:

(a) Include managing, directing, or dispersing a participant's funds identified in the participant's approved PDS budget;

(b) Include payroll processing associated with the individual hired by a participant or the participant's representative;

Withholding local, state, and federal taxes; and
Making payments to appropriate tax authorities on behalf of a participant;

(d) Be performed by an entity that:

Is enrolled as a Medicaid provider in accordance with 907 KAR 1:672;
Is currently compliant with 907 KAR 1:671;
Has at least two (2) years of experience working with individuals with an acquired brain injury; and

(e) Include preparation of fiscal accounting and expenditure reports for:

A participant or participant's representative; and
The department.

Section 11. Electronic Signature Usage. The creation, transmission, storage, or other use of electronic signatures and documents shall comply with the requirements established in KRS 369.101 to 369.120.

Section 12. Appeal Rights.

(1) An appeal of a department decision regarding a participant or applicant based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563.

(2) An appeal of a department decision regarding Medicaid eligibility of an individual based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:560.

(3) An appeal of a department decision regarding a provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

Section 13. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "MAP-10, Waiver Services – Physician's Recommendation", June 2015;

(b) "MAP – 115 Application Intake – Participant Authorization", May 2015;

(d) "MAP – 531 Conflict-Free Case Management Exemption", October 2015;

(e) "MAP-2000, Initiation/Termination of Participant-Directed Services (CDO)", June 2015;

(f) "MAP-350, Long Term Care Facilities and Home and Community Based Program Certification Form", June 2015;

(g) "Family Guide to the Rancho Levels of Cognitive Functioning", August 2006;

(h) "MAP-351, Medicaid Waiver Assessment", July 2015;

(i) "Mayo-Portland Adaptability Inventory-4", March 2003;

(j) "MAP-4100a", September 2010; and

(k) "Kentucky Participant-Directed Services Employee Provider Contract", June 2015.

(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 http://www.chfs.ky.gov/dms/incorporated.htm.

History

RELATES TO: KRS 205.5605, 205.5606, 205.5607, 205.8451, 205.8477, 42 C.F.R. 441.300 - 310, 42 C.F.R. 455.100 - 106, 42 U.S.C. 1396a, b, d, n
STATUTORY AUTHORITY: KRS 194A.010(1), 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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. KRS 205.5606(1) requires the cabinet to promulgate administrative regulations to establish a participant-directed services program to provide an option for the home and community-based services waivers. This administrative regulation establishes the coverage provisions relating to home- and community-based waiver services provided to an individual with an acquired brain injury as an alternative to nursing facility services and including a participant-directed services program pursuant to KRS 205.5606.
History: 25 Ky.R. 2993; Am. 26 Ky.R. 400; eff. 8-16-1999; 28 Ky.R. 1244; 1878; eff. 2-7-2002; 30 Ky.R. 1970; 2042; eff. 3-18-2004; 31 Ky.R. 471; 720; eff. 11-5-2004; 34 Ky.R. 460; 1050; 1480; eff. 1-4-2008; 37 Ky.R. 585; Am. 1301; Am. 1460; eff. 12-1-2010; TAm eff. 9-30-2013; 42 Ky.R. 987; 1828; 2157; eff. 2-5-2016; Cert. eff. 1-30-2023.

907 KAR 3:100 Reimbursement for acquired brain injury waiver services {#sec-907-kar-3-100 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:100}

Section 1. Definitions.

(1) "ABI" means an acquired brain injury.

(2) "ABI provider" means an entity that meets the provider criteria established in 907 KAR 3:090, Section 2.

(3) "ABI recipient" means an individual who meets the ABI recipient criteria established in 907 KAR 3:090, Section 3.

(4) "Acquired brain injury waiver service" or "ABI waiver service" means a home and community based waiver service provided to a Medicaid eligible individual who has acquired a brain injury.

(5) "Consumer" is defined by KRS 205.5605(2).

(6) "Consumer directed option" or "CDO" means an option established by KRS 205.5606 within the home and community based services waiver that allows recipients to:

(a) Assist with the design of their programs;

(b) Choose their providers of services; and

(7) "Department" means the Department for Medicaid Services or its designated agent.

(8) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

Section 2. Coverage. The department shall reimburse a participating provider for an ABI waiver service if the service is:

(1) Provided to an ABI recipient;

(2) Prior authorized;

(3) Included in the recipient's plan of care;

(4) Medically necessary; and

(5) Essential for the rehabilitation and retraining of the recipient.

Section 3. Exclusions to Acquired Brain Injury Waiver Program. Under the ABI waiver program, the department shall not reimburse a provider for a service provided:

(1) To an individual who has a condition identified in 907 KAR 3:090, Section 5; or

(2) That has not been prior authorized as a part of the recipient's plan of care.

Section 4. Payment Amounts.

(1) A participating ABI waiver service provider shall be reimbursed a fixed rate for reasonable and medically necessary services for a prior-authorized unit of service provided to a recipient.

(2) A participating ABI waiver service provider certified in accordance with 907 KAR 3:090 shall be reimbursed at the lesser of:

(a) The provider's usual and customary charge; or

(b) The Medicaid per unit of service as established in Section 5 of this administrative regulation.

Section 5. Base Payment Rate Table and Reimbursement Requirements.

(1) The rates established in the following table shall establish the base payment rate for ABI waiver services:

(2) Specialized medical equipment and supplies shall be reimbursed on a per-item basis based on a reasonable cost as negotiated by the department if the equipment or supply is:

(a) Not covered through the Medicaid durable medical equipment program established in 907 KAR 1:479; and

(b) Provided to an individual participating in the ABI waiver program.

(3) Respite care may exceed 336 hours in a twelve (12) month period if an individual's normal caregiver is unable to provide care due to a death in the family, serious illness, or hospitalization.

(4) If an ABI recipient is placed in a nursing facility to receive respite care, the department shall pay the nursing facility its per diem rate for that individual.

(5) If supported employment services are provided at a work site in which persons without disabilities are employed, payment shall:

(a) Be made only for the supervision and training required as the result of the ABI recipient's disabilities; and

(b) Not include payment for supervisory activities normally rendered.

(6)

(a) The department shall only pay for supported employment services for an individual if supported employment services are unavailable under a program funded by either the Rehabilitation Act of 1973 (29 U.S.C. Chapter 16) or Pub.L. 94-142 (34 C.F.R. Subtitle B, Chapter III).

(b) For an individual receiving supported employment services, documentation shall be maintained in his or her record demonstrating that the services are not otherwise available under a program funded by either the Rehabilitation Act of 1973 (29 U.S.C. Chapter 16) or Pub.L. 94-142 (34 C.F.R. Subtitle B, Chapter III).

Section 6. Payment Exclusions. Payment shall not include:

(1) The cost of room and board, unless provided as part of respite care in a Medicaid certified nursing facility;

(2) The cost of maintenance, upkeep, an improvement, or an environmental modification to a group home or other licensed facility;

(3) Excluding an environmental modification, the cost of maintenance, upkeep, or an improvement to a recipient's place of residence;

(4) The cost of a service that is not listed in the recipient's approved plan of care; or

(5) A service provided by a family member.

Section 7. Records Maintenance. A participating provider shall:

(1) Maintain fiscal and service records for at least six (6) years;

(2) Provide, as requested by the department, a copy of, and access to, each record of the ABI waiver program retained by the provider pursuant to:

(a) Subsection (1) of this section; or

(b) 907 KAR 1:672; and

(3) Upon request, make available service and financial records to a representative or designee of:

(a) The Commonwealth of Kentucky, Cabinet for Health and Family Services;

(b) The United States Department for Health and Human Services, Comptroller General;

(d) The General Accounting Office;

(e) The Commonwealth of Kentucky, Office of the Auditor of Public Accounts; or

(f) The Commonwealth of Kentucky, Office of the Attorney General.

Section 8. Appeal Rights. An ABI waiver provider may appeal department decisions as to the application of this administrative regulation as it impacts the provider's reimbursement in accordance with 907 KAR 1:671, Sections 8 and 9.

Section 9. 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.

History

RELATES TO: KRS 205.5605(2), 205.5606, 34 C.F.R. Subtitle B, Chapter III, 42 C.F.R. 441.300 - 310, 29 U.S.C. Chapter 16, 42 U.S.C. 1396a, b, d, n
STATUTORY AUTHORITY: KRS 194A.010(1), 194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health Services, Department for Medicaid Services, has the 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the payment provisions relating to home - and community -based waiver services provided to an individual with an acquired brain injury as an alternative to nursing facility services for the purpose of rehabilitation and retraining for reentry into the community with existing resources.
History: 907 KAR 003:100. 25 Ky.R. 2993, 26 Ky.R. 402; eff. 8-16-1999; 28 Ky.R. 987; eff. 12-19-2001; 29 Ky.R. 1141, 1657; eff. 12-18-2002; 37 Ky.R. 601, 1487; eff. 12-2-2010; Crt eff. 7-23-2018; TAm eff. 3-20-2020; Cert eff. 2-5-2025; 51 Ky.R. 1576, 52 Ky.R. 39; eff. 7-30-2025.

907 KAR 3:125 Chiropractic services and reimbursement {#sec-907-kar-3-125 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:125}

Section 1. Definitions.

(1) "Chiropractic service" means the diagnosis and the therapeutic adjustment or manipulation of the subluxations of the articulations of the human spine and its adjacent tissues performed by, and within the scope of licensure of, a licensed chiropractor in accordance with KRS 312.015 and 312.017.

(2) "Chiropractor" is defined in KRS 312.015(3).

(3) "Current procedural terminology code" or "CPT code" means the code used for reporting procedures and services performed by medical practitioners and published annually by the American Medical Association in Current Procedural Terminology.

(4) "Department" means the Department for Medicaid Services or its designee.

(5) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(6) "Usual and customary charge" means the uniform amount that a medical provider charges to a private-pay patient or third-party payor in the majority of cases for a specific medical procedure or service.

Section 2. Covered Services.

(1) A covered chiropractic service shall include the following:

(a) An evaluation and management service;

(b) Chiropractic manipulative treatment;

(d) Application of a hot or cold pack to one (1) or more areas;

(e) Application of mechanical traction to one (1) or more areas;

(f) Application of electrical stimulation to one (1) or more areas; or

(g) Application of ultrasound to one (1) or more areas.

(2) A chiropractic service shall be covered to the extent that the same service is covered by the department for a physician and with the same reimbursement limits.

(3) A chiropractic service shall be reported using:

(a) An evaluation and management CPT code;

(b) A chiropractic manipulative treatment CPT code;

(d) Physical modality application CPT codes for the following:

Application of a hot or cold pack to one (1) or more areas;
Application of mechanical traction to one (1) or more areas;
Application of electrical stimulation to one (1) or more areas; or
Application of ultrasound to one (1) or more areas.

(4) Coverage of chiropractic services shall:

(a) Be based on medical necessity;

(b) Be limited to twenty-six (26) visits per recipient per twelve (12) month period.

Section 3. Reimbursement for Covered Services.

(1) A charge for a chiropractic service submitted to the department for payment shall not exceed the usual and customary charge to a private-pay patient or third-party payor for an identical procedure or service.

(2) For reimbursement of a covered service, a chiropractor shall be paid the lessor of the chiropractor's usual and customary actual billed charge or an amount determined in accordance with the Medicaid Physician Fee Schedule established in 907 KAR 3:010.

Section 4. Conditions for Provider Participation. A participating chiropractor shall:

(1) Be licensed as a chiropractor in Kentucky or in the geographic location in which chiropractic services are provided;

(2) Have an active Medicare provider number; and

(3) Meet the requirements for provider participation in the Kentucky Medicaid Program in accordance with 907 KAR 1:671, 907 KAR 1:672, and 907 KAR 1:673.

Section 5. Appeal Rights.

(1) An appeal of a negative action taken by the department regarding a Medicaid recipient shall be in accordance with 907 KAR 1:563.

(2) An appeal of a negative action taken by the department regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) An appeal of a negative action taken by the department regarding a Medicaid provider shall be in accordance with 907 KAR 1:671.

History

RELATES TO: KRS 312.015, 312.017, 42 C.F.R. 440.230, 441 Subpart B
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560, Pub.L. 109-171
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the provisions relating to chiropractic services for which payment shall be made by the Medicaid Program on behalf of both the categorically needy and the medically needy.
History: 27 Ky.R. 2015; 2487; eff. 3-6-2001; 33 Ky.R. 624; 1409; 1588; eff. 1-5-2007; Cert eff. 7-23-2018; Cert eff. 2-5-2025.

907 KAR 3:130 Medical necessity and clinically appropriate determination basis {#sec-907-kar-3-130 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:130}

Section 1. Definitions.

(1) "Clinically appropriate" means appropriate pursuant to the nationally-recognized clinical criteria known as Interqual developed by McKesson Health Solutions:

(a) For which the department has contracted; and

(b) Which is available for purchase from McKesson Health Solutions by:

Visiting www.mckesson.com;
Calling 1-800-522-6780; or
Submitting a written request to McKesson Health Solutions, 275 Grove Street Suite 1 - 210, Newton, MA 02466-2273.

(2) "Covered benefit" or "covered service" means a health care service or item for which the department shall reimburse in accordance with state and federal regulations.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Prudent layperson standard" means the standard for determining the existence of an emergency medical condition whereby a prudent layperson who possesses an average knowledge of health and medicine determines that a medical condition manifests itself by acute symptoms of sufficient severity (including severe pain) such that the person could reasonably expect the absence of immediate medical attention to result in placing the health of the individual (or with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.

Section 2. Medical Necessity Determination.

(1) The determination of whether a covered benefit or service is medically necessary shall:

(a) Be based on an individualized assessment of the recipient's medical needs; and

(b) Comply with the requirements established in this paragraph. To be medically necessary or a medical necessity, a covered benefit shall be:

Reasonable and required to identify, diagnose, treat, correct, cure, palliate, or prevent a disease, illness, injury, disability, or other medical condition, including pregnancy;
Appropriate in terms of the service, amount, scope, and duration based on generally-accepted standards of good medical practice;
Provided for medical reasons rather than primarily for the convenience of the individual, the individual's caregiver, or the health care provider, or for cosmetic reasons;
Provided in the most appropriate location, with regard to generally-accepted standards of good medical practice, where the service may, for practical purposes, be safely and effectively provided;
Needed, if used in reference to an emergency medical service, to exist using the prudent layperson standard;
Provided in accordance with early and periodic screening, diagnosis, and treatment (EPSDT) requirements established in 42 U.S.C. 1396d(r) and 42 C.F.R. Part 441 Subpart B for individuals under twenty-one (21) years of age; and
Provided in accordance with 42 C.F.R. 440.230.

(2) The department shall have the final authority to determine the medical necessity and clinical appropriateness of a covered benefit or service and shall ensure the right of a recipient to appeal a negative action in accordance with 907 KAR 1:563.

Section 3. Criteria to Establish Clinical Appropriateness.

(1) The department shall utilize criteria to determine if a given Medicaid service or benefit is clinically appropriate.

(2) The criteria referenced in subsection (1) of this section shall be the nationally-recognized clinical criteria that meets the definition established in Section 1(1) of this administrative regulation.

Section 4. Medical Director Role in Service Denials.

(1) If a request for a service is denied for failing to meet medical necessity or clinical appropriateness criteria, the department's medical director shall have the authority to reverse or approve the denial.

(2) The letter of denial shall include the specific clinical reason that the service was denied including any appropriate Interqual or other criteria.

History

RELATES TO: KRS 205.520, 42 C.F.R. 440.230, 441 Subpart B, 42 U.S.C. 1396d (r)
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.560, 42 U.S.C. 1396a, b, d
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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 for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the basis for the determination of the medical necessity and clinical appropriateness of benefits and services for which payment shall be made by the Medicaid Program on behalf of both the categorically and the medically needy.
History: 27 Ky.R. 1713; eff. 2-1-2001; 33 Ky.R. 626; 1412; 1590; eff. 1-5-2007; TAm 1-13-2014; Crt eff. 12-6-2019.

907 KAR 3:140 Coverage and payments for the Health Access Nurturing Development Services (HANDS) Program {#sec-907-kar-3-140 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:140}

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designated agent.

(2) "Title V agency" means the Department for Public Health.

(3) "HANDS" means health access nurturing development services provided in accordance with 902 KAR 4:120.

(4) "Recipient" is defined in KRS 205.8541.

(5) "Partnership" means an entity that meets the criteria established in 907 KAR 1:705, and under contract with the department in accordance with KRS Chapter 45A, agrees to provide, or arrange for the provision of health services to members, on the basis of prepaid capitation payments.

(6) "KenPAC" means the Kentucky Patient Access and Care System which operates as primary care case management system in accordance with 907 KAR 1:320E.

(7) "Managed care organization" means the risk-bearing managed care organization that provides physical or behavioral health services through provider networks on a prepaid basis as either a health maintenance organization or a provider sponsored integrated health care delivery network.

Section 2. Covered Services.

(1) Services shall be provided pursuant to an interagency agreement between the department and the Title V agency.

(2) Except for a screening service as established in 902 KAR 4:120, Section 4(1), HANDS services shall be provided to a recipient who meets the eligibility requirements for HANDS as established in 902 KAR 4:120, Section 2.

(3) Medicaid services to be provided shall be the case management services described in 902 KAR 4:120, Section 4(2) through (6).

Section 3. Provider Qualifications and Conditions for Participation.

(1) Services shall be provided by the Title V agency:

(a) Directly; or

(b) Indirectly through a subcontract that requires a subcontractor to meet the provisions of 902 KAR 4:120, Section 3(2).

(2) If a HANDS service is provided to a recipient who is a member of a Medicaid managed care partnership, managed care organization or KenPAC, a provider of service shall coordinate and exchange information with the recipient's primary care provider.

Section 4. Reimbursement.

(1) Payments shall be based on the cumulative cost of providing the service.

(2) An interim rate based on projected cost shall be used with a settlement to cost after the end of the state fiscal year.

(3) A HANDS provider that meets the criteria in 902 KAR 4:120, Section 3(2), shall have on file an approved cost allocation plan.

(4) Interim rates for services provided in accordance with 902 KAR 4:120, Section 4(2) through (6), shall be based on the:

(a) Type of service;

(b) Personnel providing the service;

(d) Costs related to providing the service, including:

Contacting other persons in agencies who may be familiar with the family's circumstances;
Telephone contacts; and
Indirect costs, including:

a. Utilities;

b. Building space;

c. Travel expenses; and

d. Office administration.

(5) An annual cost report shall be submitted to the Department for Medicaid Services within 180 days after the close of the fiscal year.

(6) Interim payments shall be adjusted to actual cost based upon review and acceptance of the cost report by the department.

(7) The provider may submit for consideration an amended cost report for a fiscal year up to twenty-four (24) months after the close of that fiscal year.

History

RELATES TO: KRS 194A.030(2), 205.520, 211.690, 42 U.S.C. 1396a-d, 1396n(g)
STATUTORY AUTHORITY: KRS 194A.050(1), 205.520(3), 205.560, EO 2004-726
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services, Department for Medicaid Services, has the 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 or state regulation for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes requirements for coverage and payment for Health Access Nurturing Development Services (HANDS) provided through an agreement with the state Title V agency, the Department for Public Health.
History: 27 Ky.R. 1126; 1495; eff. 12-21-2000; Crt eff. 12-6-2019.

907 KAR 3:160 Specialized children's services clinics {#sec-907-kar-3-160 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:160}

Section 1. Definitions.

(1) "Affiliation agreement" means a written agreement between a provider and a children's advocacy center to perform a child medical evaluation.

(2) "Approved behavioral health practitioner" means an independently licensed practitioner who is:

(a) A physician;

(b) A psychiatrist;

(d) A physician assistant;

(e) A licensed psychologist;

(f) A licensed psychological practitioner;

(g) A certified psychologist with autonomous functioning;

(h) A licensed clinical social worker;

(i) A licensed professional clinical counselor;

(j) A licensed marriage and family therapist;

(k) A licensed professional art therapist;

(l) A licensed clinical alcohol and drug counselor; or

(m) A licensed behavior analyst.

(3) "Approved behavioral health practitioner under supervision" means an individual under billing supervision of an approved behavioral health practitioner who is:

(a)

A licensed psychological associate working under the supervision of a board-approved licensed psychologist;
A certified psychologist working under the supervision of a board-approved licensed psychologist;
A marriage and family therapy associate;
A certified social worker;
A licensed professional counselor associate;
A licensed professional art therapist associate;
A licensed clinical alcohol and drug counselor associate;
A certified alcohol and drug counselor; or
A licensed assistant behavior analyst; and

(b) Employed by or under contract with the same billing provider as the billing supervisor.

(4) "Child medical evaluation" is defined by KRS 205.557(1)(c).

(5) "Children's advocacy center" is defined in KRS 620.020(4).

(6) "Department" means the Department for Medicaid Services or its designated agent.

(7) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(8) "Sexual assault nurse examiner" or "SANE" is defined in KRS 314.011(14).

(9) "Specialized children's services clinic" means a clinic enrolled with the Kentucky Medicaid program that provides child medical evaluations and that meets the requirements of Section 3 of this administrative regulation.

Section 2. Covered Services.

(1) A child medical evaluation provided as a clinic service by a specialized children's services clinic shall be covered if medically necessary and provided to a recipient who is under the age of eighteen (18) years.

(2) A child medical evaluation includes any combination of one (1) or more of the services as established in KRS 205.557(1)(c) oran evidence-based trauma screening approved by the Children's Advocacy Centers of Kentucky, or its successor agency.

(3) A child medical evaluation shall be performed by:

(a) A licensed physician, an advance practice registered nurse, a physician assistant, or a sexual assault nurse examiner who:

Completes the medical history and physical examination;
Is employed by, under contract with, or has an affiliation agreement with a specialized children's services clinic;
Has received specialized training in the medical examination of sexually-abused children; and
Shall make reports resulting from child medical evaluations available for peer review and maintain confidentiality in accordance with Section 7 of this administrative regulation; and

(b) As necessary, an approved behavioral health practitioner or an approved behavioral health practitioner under supervision who:

Performs a mental health screening or evidence-based trauma screening to determine the mental health status of the child and the need for further mental health services;
Is supervised by the physician, physician assistant, or advanced practice registered nurse who performs the medical examination and evaluation;
Is employed by, under contract with, or has an affiliation agreement with a specialized children's services clinic; and
Has received specialized training in the mental health screening or evidence-based trauma screening and assessment of sexually-abused children.

(4) Mental health treatment services, limited to those as established in paragraphs (a) through (i) of this subsection, may be offered by a specialized children's services clinic to a person who is involved with or impacted by the subject matter of a child medical evaluation, and services shall meet the requirements as established in this subsection.

(a) A screening shall:

Determine the likelihood that an individual has a mental health disorder, a substance use disorder, or co-occurring disorders;
Not establish the presence or specific type of disorder;
Establish the need for an in-depth assessment; and
Be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

(b) An assessment shall:

Include gathering information and engaging in a process with the individual that enables the provider to:

a. Establish the presence or absence of a mental health disorder, substance use disorder, or co-occurring disorders;

b. Determine the individual's readiness for change;

c. Identify the individual's strengths or problem areas that may affect the treatment and recovery processes; and

d. Engage the individual in developing an appropriate treatment relationship;

Establish or rule out the existence of a clinical disorder or service need;
Include working with the individual to develop a treatment and service plan;
Not include a psychological or psychiatric evaluation or assessment; and
Be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

Shall be a therapeutic intervention for the purpose of immediately reducing or eliminating the risk of physical or emotional harm to:

a. The recipient; or

b. Another individual;

Shall consist of clinical intervention and support services necessary to provide integrated crisis response, crisis stabilization interventions, or crisis prevention activities for an individual with a behavioral health disorder;
Shall be provided:

a. On-site at a specialized children's clinic;

b. As an immediate relief to the presenting problem or threat; and

c. In a one-on-one encounter between the provider and the recipient, which is delivered either in-person or via telehealth if appropriate pursuant to 907 KAR 3:170;

May include:

a. Verbal de-escalation, risk assessment, or cognitive therapy; or

b. Further service planning including:

(i) Lethal means reduction for suicide; or

(ii) Substance use disorder or relapse prevention;

Shall be followed by a referral to non-crisis services if applicable; and
Shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

(d)

Intensive outpatient program services shall:

a. Be an alternative to or transition from a higher level of care for a mental health disorder;

c. Be provided at least three (3) hours per day at least three (3) days per week for adults;

d. Be provided at least six (6) hours per week for adolescents;

e. Include:

(i) Individual outpatient therapy, group outpatient therapy, or family outpatient therapy unless contraindicated;

(ii) Crisis intervention; or

(iii) Psycho-education related to identified goals in the recipient's treatment plan; and

f. Be provided in-person.

During psycho-education, the recipient or recipient's family member shall be:

a. Provided with knowledge regarding the recipient's diagnosis, the causes of the condition, and the reasons why a particular treatment might be effective for reducing symptoms; and

b. Taught how to cope with the recipient's diagnosis or condition in a successful manner.

An intensive outpatient program services treatment plan shall:

a. Be individualized; and

b. Focus on stabilization and transition to a lesser level of care.

To provide intensive outpatient program services, a specialized services clinic shall have:

a. Access to a board-certified or board-eligible psychiatrist for consultation;

b. Access to a psychiatrist, a physician, or an advanced practiced registered nurse for medication prescribing and monitoring;

c. Adequate staffing to ensure a minimum recipient-to-staff ratio of ten (10) recipients to one (1) staff person;

d. The capacity to provide services utilizing a recognized intervention protocol based on nationally accepted treatment principles; and

e. The capacity to employ staff authorized to provide intensive outpatient program services in accordance with this section and to coordinate the provision of services among team members.

Intensive outpatient program services shall be provided by:

a. An approved behavioral health practitioner, except for a licensed behavior analyst; or

b. An approved behavioral health practitioner under supervision, except for a licensed assistant behavior analyst.

(e) Individual outpatient therapy shall:

Be provided to promote the:

a. Health and wellbeing of the individual; and

b. Restoration of a recipient to the recipient's best possible functional level from a mental health disorder;

Consist of:

a. A one-on-one encounter between the provider and recipient conducted in-person or via telehealth as appropriate pursuant to 907 KAR 3:170; and

b. A behavioral health therapeutic intervention provided in accordance with the recipient's identified treatment plan;

Be aimed at:

a. Reducing adverse symptoms;

b. Reducing or eliminating the presenting problem of the recipient; and

c. Improving functionality;

Not exceed three (3) hours per day; and
Be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

(f)

Family outpatient therapy shall consist of an in-person, or via telehealth as appropriate pursuant to 907 KAR 3:170, behavioral health therapeutic intervention provided:

a. Through scheduled therapeutic visits between the therapist and the recipient and at least one (1) member of the recipient's family; and

b. To address issues interfering with the relational functioning of the family and to improve interpersonal relationships within the recipient's home environment.

A family outpatient therapy session shall be billed as one (1) service regardless of the number of individuals, including multiple members from one (1) family, who participate in the session.
Family outpatient therapy shall:

a. Be provided to promote the:

(i) Health and wellbeing of the individual; or

(ii) Restoration of a recipient to the recipient's best possible functional level from a mental health disorder; and

b. Not exceed three (3) hours per day alone or in combination with any other outpatient therapy per recipient unless additional time is medically necessary.

Family outpatient therapy shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

(g)

Group outpatient therapy shall:

a. Be a behavioral health therapeutic intervention provided in accordance with a recipient's identified plan of care;

b. Be provided to promote the:

(i) Health and wellbeing of the individual; and

(ii) Restoration of a recipient to the recipient's best possible functional level from a mental health disorder;

d. Be provided to a recipient in a group setting:

(i) Of nonrelated individuals; and

(ii) Not to exceed twelve (12) individuals in size;

e. Focus on the psychological needs of the recipients as evidenced in each recipient's plan of care;

f. Center on goals including building and maintaining healthy relationships, personal goals setting, and the exercise of personal judgment;

g. Not include physical exercise, a recreational activity, an educational activity, or a social activity; and

h. Not exceed three (3) hours per day alone or in combination with any other outpatient therapy per recipient unless additional time is medically necessary.

A family outpatient therapy group shall have a:

a. Deliberate focus; and

b. Defined course of treatment.

The subject of a group receiving group outpatient therapy shall be related to each recipient participating in the group.
The provider shall keep individual notes regarding each recipient within the group and within each recipient's health record.
Family outpatient therapy shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

(h)

Collateral outpatient therapy shall:

a. Consist of an in-person or appropriate telehealth, provided pursuant to 907 KAR 3:170, behavioral health consultation:

(ii) That is provided in accordance with the recipient's treatment plan; and

b. Not exceed three (3) hours per day alone or in combination with any other outpatient therapy per recipient unless additional time is medically necessary.

Written consent by a parent or custodial guardian to discuss a recipient's treatment with any person other than a parent or legal guardian shall be signed and filed in the recipient's health record.
Collateral outpatient therapy shall be provided by:

a. An approved behavioral health practitioner; or

b. An approved behavioral health practitioner under supervision.

(i)

Peer support services shall:

a. Be emotional support that is provided by:

(i) An individual who has been trained and certified in accordance with 908 KAR 2:220 and who is experiencing or has experienced a mental health disorder to a recipient by sharing a similar mental health disorder in order to bring about a desired social or personal change;

(ii) A parent or other family member, who has been trained and certified in accordance with 908 KAR 2:230, of a child having or who has had a mental health disorder to a parent or family member of a child sharing a similar mental health disorder in order to bring about a desired social or personal change; or

(iii) An individual, who has been trained and certified in accordance with 908 KAR 2:240 and identified as experiencing as a child or youth an emotional, social, or behavioral disorder that is defined in the current version of the Diagnostic and Statistical Manual for Mental Disorders;

b. Be an evidence-based practice;

c. Be structured and scheduled non-clinical therapeutic activities with an individual recipient or a group of recipients;

d. Promote socialization, recovery, self-advocacy, preservation, and enhancement of community living skills for the recipient;

e. Be coordinated within the context of a comprehensive, individualized plan of care developed through a person-centered planning process;

f. Be identified in each recipient's plan of care;

g. Be designed to directly contribute to the recipient's individualized goals as specified in the recipient's plan of care; and

h. Be provided face-to-face or via telehealth, as established pursuant to 907 KAR 3:170.

To provide peer support services, a specialized children's services clinic shall:

a. Have demonstrated:

(i) The capacity to provide peer support services for the behavioral health population being served including the age range of the population being served; and

(ii) Experience in serving individuals with behavioral health disorders;

b. Employ peer support specialists who are qualified to provide peer support services in accordance with 908 KAR 2:220, 908 KAR 2:230, or 908 KAR 2:240;

c. Use an approved behavioral health practitioner to supervise peer support specialists;

d. Have the capacity to coordinate the provision of services among team members;

e. Have the capacity to provide ongoing continuing education and technical assistance to peer support specialists;

f. Require individuals providing peer support services to recipients to provide no more than thirty (30) hours per week of direct recipient contact; and

g. Require peer support services provided to recipients in a group setting not exceeding eight (8) individuals within any group at a time.

(5) Ongoing mental health treatment services shall be provided by:

(a)

An approved behavioral health practitioner; or
An approved behavioral health practitioner under supervision; and

(b)

A provider who is an employee of the specialized children's services clinic; or
A provider who has a contractual relationship with the specialized children's services clinic and who does not duplicate the provided behavioral health services to the recipient for another Medicaid provider.

Section 3. Provider Requirements.

(1) A provider shall be enrolled with the department as a specialized children's services clinic.

(2) A specialized children's services clinic shall be a children's advocacy center whose providers are employed by, under contract with, or have a signed affiliation agreement with the clinic.

(3) A SANE who is a registered nurse, but not an APRN, shall be under the supervision of a physician, an APRN, or a physician assistant who is employed or contractually associated with the specialized children's services clinic for billing purposes.

Section 4. Billing for Services.

(1) A child medical evaluation shall be billed by a specialized children's services clinic as a comprehensive clinic service which shall include:

(a) The services of the:

Physician;
Advanced practice registered nurse;
Physician assistant; or
SANE.

(b) Mental health screening services provided by an approved behavioral health practitioner or an approved behavioral health practitioner under supervision;

(c) Services and supplies furnished as an incidental part of the professional services performed by a provider listed in paragraph (a) of this subsection in the course of diagnosis and treatment;

(d) Medical services provided by other clinic employees under the direct supervision of the physician, advanced practice registered nurse, physician assistant, or SANE; or

(e) Follow-up services provided by the physician, advanced practice registered nurse, physician assistant, SANE, approved behavioral health practitioner, or approved behavioral health practitioner under supervision.

(2) Child medical evaluation services provided by a physician, an advanced practice registered nurse, a physician assistant, a SANE, or an approved behavioral health practitioner or an approved behavioral health practitioner under supervision employed by, under contract with, or having a signed affiliation agreement with a specialized children's services clinic shall be billed under the clinic's provider number using a single reimbursement code designated by the department.

(3) Mental health treatment by an approved behavioral health practitioner or approved behavioral health practitioner under supervision shall be billed per encounter by the specialized children's services clinic as consistent with:

(a) The Outpatient Behavioral Health Fee Schedule, or its successor fee schedule, available at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx; and

(b) Section 2 of this administrative regulation.

(4)

(a) A specialized children's services clinic may provide laboratory services directly if:

The clinic has the appropriate Clinical Laboratory Improvement Amendments (CLIA) certificate to perform laboratory testing pursuant to 907 KAR 1:028; and
The services are prescribed by a physician, an advanced practice registered nurse, a physician assistant, or a SANE who has a contractual relationship with the clinic.

(b) If a specialized children's services clinic does not have the appropriate CLIA certificate to perform necessary laboratory testing, it shall establish a contractual relationship with a laboratory or facility with the appropriate CLIA certificate in order to perform any laboratory service required pursuant to this administrative regulation. The contracted laboratory shall not separately bill for any services provided for a specialized children's services clinic that are also submitted for reimbursement pursuant to this administrative regulation.

A physician;
An APRN;
A physician assistant;
A SANE;
An approved behavioral health practitioner; or
An approved behavioral health practitioner under supervision.

Section 5. Reimbursement.

(1) The department shall establish a prospective payment rate or rates for each specialized children's services clinic based on an annual cost report or survey.

(a) The prospective payment rate shall reflect a true and actual cost for a specialized children's services clinic as established by expenses from the previous year.

(b) The prospective reimbursement rate shall incorporate additional expected expenses for the next year, including expected inflation for the next year.

(2)

(a) A managed care organization shall accept the surveys submitted by the department and the department's determination of a prospective reimbursement rate for each and any specialized children's services clinic.

(b) A managed care organization shall not require separate submission of a cost report by a specialized children's services clinic to the managed care organization.

(3)

(a) The department shall utilize the rates established pursuant to subsection (1) of this section to inform the prospective reimbursement rate.

(b)

A cost report shall be submitted by each center annually or upon request by the department.
A specialized children's clinic may submit a cost report to the department at any time that there is an increase of five (5) percent in cost during the year.

(4)

(a) An ongoing mental health treatment service shall be billed consistent with Section 4(3) of this administrative regulation.

(b) The department and each managed care organization shall reimburse at least at the minimum of the rates published on the Outpatient Behavioral Health Fee Schedule, or its successor fee schedule, for services related to ongoing mental health treatment.

Section 6. Reimbursement Prior to Implementation of a Prospective Payment Rate. The department and each managed care organization (MCO) shall reimburse pursuant to this subsection until a prospective payment rate is established pursuant to Section 5 of this administrative regulation. At that time, this section shall become nonoperational.

(1)

(a) The department and each managed care organization shall reimburse at least twenty-five (25) percent greater than the Physician's Fee Schedule established pursuant to 907 KAR 3:010 for each service related to a child medical evaluation.

(b)

The department may establish and publish a Specialized Children's Clinic Fee Schedule for use by specialized children's clinics.
If established and published the fee schedule shall be located at https://www.chfs.ky.gov/agencies/dms/Pages/feesrates.aspx.

(c) The department shall establish any additional procedure codes needed to perform services pursuant to this administrative regulation.

(2) The department and each managed care organization shall reimburse at least at the minimum of the rate for a specialized children's services clinic established pursuant to subsections (1) or (3) of this section.

(3) In the alternative, a specialized children's services clinic may bill a comprehensive rate for services rendered during the time that this section is operational, not including a follow-up evaluation:

(a) The initial rate shall be no less than $894, and shall be updated, if necessary, for inflation.

(b) The department may collaborate with designated representatives of the children's advocacy centers to establish a comprehensive rate that is based on any increases in fees or rates established pursuant to subsection (1) of this section.

(4)

(a) An ongoing mental health treatment service shall be billed consistent with Section 4(3) of this administrative regulation.

Section 7. Medical Records and Confidentiality.

(1) Except to the department, duly authorized representatives of federal or state agencies, multidisciplinary team members acting pursuant to KRS 620.050 or a physician, a physician assistant, an APRN, a SANE, or an approved behavioral health practitioner participating in a peer review of a specific child sexual or physical abuse or neglect case, a specialized children's services clinic shall not disclose any information concerning an eligible recipient without:

(a) Written consent of:

The recipient; or
If the recipient is a minor, the recipient's parent, legal guardian, or attorney; or

(b) A subpoena from a court of appropriate jurisdiction.

(2) A specialized children's services clinic shall:

(a) Maintain a recipient's medical records in accordance with 907 KAR 1:672;

(b) Maintain up-to-date recipient medical records at the site where the medical services are provided;

(c) Ensure that a recipient's medical record shall be readily retrievable, complete, organized, and legible and shall reflect sound medical recordkeeping practices; and

(d) Safeguard medical records against loss, destruction, and unauthorized use.

Section 8. Appeal Rights.

(1) An appeal of a negative action taken by the department regarding a Medicaid recipient shall be in accordance with 907 KAR 1:563.

(2) An appeal of a negative action taken by the department regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) An appeal of a negative action taken by the department regarding a Medicaid provider shall be in accordance with 907 KAR 1:671.

Section 9. The department may administer any benefits or services related to a specialized children's services clinic outside of the managed care benefit.

Section 10. Federal Approval and Federal Financial Participation. The cabinet's coverage and reimbursement of services pursuant to this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval of the coverage and reimbursement, as relevant.

History

RELATES TO: KRS 205.557(1)(c), 205.560, 314.011(14), 620.020(4), 620.050
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.557(5)
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services has responsibility to administer the Medicaid program. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed, or opportunity presented, by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes the requirements for providers and reimbursement by the Medicaid program for services provided by a specialized children's services clinic.
History: 28 Ky.R. 207; 634; eff. 9-10-2001; Cert eff. 12-6-2019; 49 Ky.R. 1188, 1622; eff. 2-16-2023.

907 KAR 3:170 Telehealth service coverage and reimbursement {#sec-907-kar-3-170 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:170}

Section 1. Definitions.

(1) "Asynchronous telehealth" means a store and forward telehealth service that is electronically mediated.

(2) "Department" means the Department for Medicaid Services or its designated agent.

(3) "Federal financial participation" is defined by 42 C.F.R. 400.203.

(4) "In-person" means a healthcare encounter occurring:

(a) Via direct contact and interaction between the individual and healthcare provider;

(b) At the same location; and

(5) "Medical necessity" or "medically necessary" means a covered benefit is determined to be needed in accordance with 907 KAR 3:130 or pursuant to the process established by KRS 304.38-240.

(6) "Place of service" means anywhere the patient is located at the time a telehealth service is provided, and includes telehealth services provided to a patient located at the patient's home or office, or a clinic, school, or workplace.

(7) "Remote patient monitoring" means a digital technology that collects medical and health data from an individual in one (1) location and electronically and securely transmits that data to a telehealth care provider in a different location.

(8) "Synchronous telehealth" means a telehealth service that simulates an in-person encounter via real-time interactive audio and video technology between a telehealth care provider and a Medicaid recipient.

(9) "Telehealth" is defined by KRS 205.510(16).

(10) "Telehealth care provider" means a Medicaid provider who is:

(a)

Currently enrolled as a Medicaid provider in accordance with 907 KAR 1:672;
Currently participating as a Medicaid provider in accordance with 907 KAR 1:671;
Operating within the scope of the provider's professional licensure; and
Operating within the provider's scope of practice; or

(b) A community mental health center (CMHC) that is participating in the Medicaid Program in compliance with 907 KAR 1:044, 907 KAR 1:045, or 907 KAR 1:047.

(11) "Telehealth service" means any service that is provided by telehealth and is one (1) of the following:

(a) Event;

(b) Encounter;

(d) Visit;

(e) Store and forward transfer, as limited by Section 6 of this administrative regulation;

(f) Remote patient monitoring;

(g) Referral; or

(h) Treatment.

Section 2. Recipient Right to Receive Care In-Person or Via Synchronous Telehealth.

(1) Any recipient, upon being offered the option of an asynchronous or audio-only telehealth visit, shall have the opportunity or option to request to be accommodated by that provider in an in-person encounter or synchronous telehealth encounter.

(2)

(a) A telehealth care provider that has received a request for an in-person encounter or synchronous telehealth encounter shall provide an alternative in-person or synchronous telehealth encounter for the recipient within:

A reasonable time;
The existing availability constraints of the provider's schedule; and
No more than three (3) weeks of the recipient's request, unless the recipient's condition or described symptoms suggest a need for an earlier synchronous or in-person encounter.

(b)

A provider's failure to accommodate a recipient with a synchronous telehealth or in-person encounter shall be reported to the Office of the Ombudsman and Administrative Review of the Cabinet for Health and Family Services, or its successor organization by a:

a. Recipient;

b. Recipient's guardian or representative;

c. Another provider; or

d. Managed care organization.

The Office of the Ombudsman and Administrative Review shall investigate as appropriate and forward reports of a failure to accommodate to the department.

(c) If a provider fails to accommodate any recipient or combination of recipients ten (10) or more times within a calendar year, the department may:

Issue a corrective action plan to ensure that recipients are receiving appropriate and timely care.
Suspend the provider from providing asynchronous telehealth services to Medicaid recipients.

(d) The requirement to accommodate established in this subsection shall not apply to a provider who is participating in the encounter only to diagnose or evaluate an image or data file.

(e) A request for an in-person or synchronous encounter shall be recorded within the recipient's medical record.

Section 3. General Policies.

(1)

(a) The telehealth policies established in this administrative regulation shall supersede any in-person requirement established within KAR Title 907.

(b) The requirement established in paragraph (a) of this subsection shall not supersede an in-person requirement established pursuant to:

State or federal law, including via the state plan or a waiver;
A standard set by a professional criteria, such as the American Society of Addiction Medicine's (ASAM) Criteria, if applicable;
A licensing body; or
A billing code requirement established pursuant to a department utilized procedure code.

(2) Subject to any relevant restrictions in this administrative regulation, a telehealth service shall be reimbursable if it is:

(a) Appropriate and safe to be delivered via the telecommunication technology used. For the purposes of this section, whether a service is appropriate shall include any requirements and descriptions relating to a department utilized procedure code;

(b) Not prohibited by the licensing board of the telehealth care provider delivering or supervising the service; and

(3) Unless prohibited by the relevant licensing board of the telehealth care provider, a telehealth care provider may establish a new patient and conduct an initial visit with the new patient via the use of synchronous telehealth.

(4)

(a) Except as provided in paragraph (b) of this subsection, the coverage policies established in this administrative regulation shall apply to:

Medicaid services for individuals not enrolled in a managed care organization; and
A managed care organization's coverage of Medicaid services for individuals enrolled in the managed care organization for the purpose of receiving Medicaid or Kentucky Children's Health Insurance Program services.

(b) A managed care organization shall reimburse the same amount for a telehealth service as the department reimburses unless a different payment rate is negotiated in accordance with Section 4(1)(b) of this administrative regulation.

(5) A telehealth service shall not be reimbursed by the department if:

(a) It is not medically necessary;

(b) The equivalent service is not covered by the department if provided in an in-person setting; or

Not currently enrolled in the Medicaid Program pursuant to 907 KAR 1:672;
Not currently participating in the Medicaid Program pursuant to 907 KAR 1:671;
Not in good standing with the Medicaid Program;
Currently listed on the Kentucky DMS Provider Terminated and Excluded Provider List, which is available at https://chfs.ky.gov/agencies/dms/dpi/pe/Pages/terminated.aspx;
Currently listed on the United States Department of Health and Human Services, Office of Inspector General List of Excluded Individuals and Entities, which is available at https://oig.hhs.gov/exclusions/;
Otherwise prohibited from participating in the Medicaid program in accordance with 42 C.F.R. Part 455; or
Not physically located within the United States or a United States territory at the time of service.

(6)

(a) A telehealth service shall be subject to utilization review for:

Medical necessity;
Compliance with this administrative regulation; and
Compliance with applicable state and federal law.

(b) The department shall not reimburse for a telehealth service if the department determines that a telehealth service is not:

Medically necessary:
Compliant with this administrative regulation;
Applicable to this administrative regulation; or
Compliant with applicable state or federal law.

(c) The department shall recover the paid amount of a reimbursement for a previously reimbursed telehealth service if the department determines that a telehealth service was not:

Medically necessary;
Compliant with this administrative regulation;
Applicable to this administrative regulation; or
Compliant with applicable state or federal law.

(7)

(a) If a telehealth service is delivered as an audio-only encounter and a telephonic code exists for the same or similar service, the department shall reimburse at the lower reimbursement rate between the two (2) types of services.

(b) An attempted and scheduled telehealth service that is completed telephonically due to provider or recipient technological failure shall be reimbursed at the reimbursement rate of the telehealth encounter.

(8) A telehealth service shall have the same referral requirements as an in-person service.

(9) Within forty-eight (48) hours of the reconciliation of the record of the telehealth service, a provider shall document within the patient's medical record that a service was provided via telehealth, and follow all documentation requirements established by Section 5 of this administrative regulation.

(10) Pursuant to 907 KAR 1:671 and 1:672, the department shall require a telehealth care provider to meet all relevant licensure and accreditation requirements that would be required for that provider to provide care to a recipient in an in-person setting.

Section 4. Telehealth Reimbursement.

(1)

(a) The department shall reimburse an eligible telehealth care provider for a telehealth service in an amount that is at least 100 percent of the amount paid for a comparable in-person service.

(b) A managed care organization and provider may establish a different rate for telehealth reimbursement via contract as allowed pursuant to KRS 205.5591(2)(a)1..

(2) A provider shall appropriately denote telehealth services by place of service or other means as designated by the department or as required in a managed care organization's contract with the provider or member.

(3)

(a) Pursuant to KRS 205.559(2)(a)1., the department shall reimburse an originating site fee for a qualifying Medicare-participating telehealth care provider if the Medicaid beneficiary served was physically located at a rural health clinic, federally qualified health center, or federally qualified health center look-alike when the telehealth service was performed.

(b) The payment for an originating site facility fee shall be consistent with the amounts established in 42 U.S.C. 1395m(m)(2)(B)(i).

Section 5. Telehealth Provided by an Out-of-State Telehealth Care Provider.

(1) The department shall evaluate and monitor the healthcare quality and outcomes for recipients who are receiving healthcare services from out-of-state telehealth care providers.

(2) The department shall implement any in-state or out-of-state participation restrictions established by a state licensing board for the impacted provider.

Section 6. Asynchronous Telehealth.

(1) An asynchronous telehealth service or store and forward transfer shall be limited to those telehealth services that have an evidence base establishing the service's safety and efficacy.

(2) A store and forward service shall be permissible if the primary purpose of the asynchronous interaction involves high quality digital data transfer, such as digital image transfers. An asynchronous telehealth service within the following specialties or instances of care that meets the criteria established in this section shall be reimbursable as a store and forward telehealth service:

(a) Radiology;

(b) Cardiology;

(d) Obstetrics and gynecology;

(e) Ophthalmology and optometry, including a retinal exam;

(f) Dentistry;

(g) Nephrology;

(h) Infectious disease;

(i) Dermatology;

(j) Orthopedics;

(k) Wound care consultation;

(l) A store and forward telehealth service in which a clear digital image is integral and necessary to make a diagnosis or continue a course of treatment;

(m) A speech language pathology service that involves the analysis of a digital image, video, or sound file, such as for a speech language pathology diagnosis or consultation; or

(n) Any code or group of services included as an allowed asynchronous telehealth service pursuant to subsection (4) of this section.

(3) Unless otherwise prohibited by this section, an asynchronous telehealth service shall be reimbursable if that service supports an upcoming synchronous telehealth or in-person visit to a provider that is providing one (1) of the specialties or instances of care listed in subsection (2) of this section.

(4)

(a) The department shall evaluate available asynchronous telehealth services quarterly, and may clarify that certain asynchronous telehealth services meet the requirements of this section to be included as permissible asynchronous telehealth, as appropriate and as funds are available, if those asynchronous telehealth services have an evidence base establishing the service's:

Safety; and
Efficacy.

(b) Any asynchronous service that is determined by the department to meet the criteria established pursuant to this subsection shall be available on the department's Web site.

(5) Except as allowed pursuant to subsection (4) of this section or otherwise within the Medicaid program, a provider shall not receive additional reimbursement for an asynchronous telehealth service if the service is an included or integral part of the billed office visit code or service code.

(6) Pursuant to Section 7 of this administrative regulation, remote patient monitoring shall be an eligible telehealth service within the fee-for-service and managed care Medicaid programs.

(7) Each asynchronous telehealth service shall involve timely actual input and responses from the provider, and shall not be solely the result of reviewing an artificial intelligence messaging generated interaction with a recipient.

Section 7. Remote Patient Monitoring.

(1) Conditions for which remote patient monitoring shall be covered include:

(a) Pregnancy;

(b) Diabetes;

(d) Cancer;

(e) Chronic obstructive pulmonary disease;

(f) Hypertension;

(g) Congestive heart failure;

(h) Mental illness or serious emotional disturbance;

(i) Myocardial infarction;

(j) Stroke; or

(k) Any condition that the department determines would be appropriate and effective for remote patient monitoring.

(2) Except for a recipient participating due to a pregnancy, a recipient receiving remote patient monitoring services shall have two (2) or more of the following risk factors:

(a) Two (2) or more inpatient hospital stays during the prior twelve (12) month period;

(b) Two (2) or more emergency department admissions during the prior twelve (12) month period;

(d) A documented history of poor adherence to ordered medication regimens;

(e) A documented history of falls in the prior six (6) month period;

(f) Limited or absent informal support systems;

(g) Living alone or being home alone for extended periods of time;

(h) A documented history of care access challenges; or

(i) A documented history of consistently missed appointments with health care providers.

(3) A recipient may participate in a remote patient monitoring program as the result of a pregnancy if the provider documents that the recipient has a condition that would be improved by a remote patient monitoring service.

(4) Remote patient monitoring shall be ordered by:

(a) A physician;

(b) An advanced practice registered nurse;

(d) When operating within their scope of practice and licensure, the following behavioral health practitioners:

A psychiatrist;
A licensed psychologist;
A licensed psychological practitioner;
A certified psychologist with autonomous functioning;
A licensed clinical social worker;
A licensed marriage and family therapist;
A licensed professional art therapist;
A licensed clinical alcohol and drug counselor; or
A licensed behavior analyst.

(5) Providers who may provide remote patient monitoring services include:

(a) A home health agency;

(b) A hospital;

(d) A rural health center;

(e) A primary care center;

(f) A physician;

(g) An advanced practice registered nurse;

(h) A physician assistant;

(i) A behavioral health multi-specialty group participating in the Medicaid Program pursuant to 907 KAR 15:010;

(j) A behavioral health services organization participating in the Medicaid Program pursuant to 907 KAR 15:020 or 907 KAR 15:022;

(k) A residential crisis stabilization unit participating in the Medicaid Program pursuant to 907 KAR 15:070;

(l) A chemical dependency treatment center participating in the Medicaid Program pursuant to 907 KAR 15:080;

(m) A community mental health center that is participating in the Medicaid Program in compliance with 907 KAR 1:044, 907 KAR 1:045, or 907 KAR 1:047; or

(n) A certified community behavioral health clinic that is participating in the Medicaid Program.

(6) A recipient participating in a remote patient monitoring service shall:

(a) Have the capability to utilize any monitoring tools involved with the ordered remote patient monitoring service. For the purposes of this paragraph, capability shall include the regular presence of an individual in the home who can utilize the involved monitoring tools; and

(b) Have the internet or cellular internet connection necessary to accommodate any needed remote patient monitoring equipment in the home.

(7) The department may restrict the remote patient monitoring benefit by excluding:

(a) Remote patient monitoring equipment;

(b) Upgrades to remote patient monitoring equipment; or

Section 8. Telephonic Services. Telephonic code reimbursement shall be:

(1) An alternative option for telehealth care providers to deliver audio-only telecommunications services, and shall not supersede reimbursement for an audio-only telehealth service as established pursuant to KRS 205.559 or 205.5591;

(2) For a service that has an evidence base establishing the service's safety and efficacy;

(3) Subject to any relevant licensure board restrictions of the telehealth care provider;

(4) Subject to any synchronous telehealth limits of this administrative regulation or other state or federal law; and

(5) For a service that is listed on the most recent version of the Medicaid Physician Fee Schedule, as established by 907 KAR 3:010, Section 1(17).

Section 9. Department Maintained List.

(1) In order to assist with the effective and appropriate delivery of services, the department may establish and maintain an informational listing of procedure codes that are:

(a) Not allowed to be provided via telehealth due to conflicts with the requirements established within state or federal law, or this administrative regulation; or

(b) Subject to additional restrictions related to telehealth, such as a requirement that any telehealth associated with a procedure be conducted via a connection that has both video and audio of the recipient and provider.

(2) Any informational listing shall be available on the department's Web site at https://chfs.ky.gov/agencies/dms/Pages/default.aspx.

Section 10. Medical Records.

(1) A medical record of a telehealth service shall be maintained in compliance with 907 KAR 1:672 and 45 C.F.R. 164.530(j).

(2) A health care provider shall have the capability of generating a hard copy of a medical record of a telehealth service.

Section 11. Federal Financial Participation. A policy established in this administrative regulation shall be null and void if the Centers for Medicare and Medicaid Services:

(1) Denies federal financial participation for the policy; or

(2) Disapproves the policy.

Section 12. Appeal Rights.

(1) An appeal of a department determination regarding a Medicaid beneficiary shall be in accordance with 907 KAR 1:563.

(2) An appeal of a department determination regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) A provider may appeal a department-written determination as to the application of this administrative regulation in accordance with 907 KAR 1:671.

(4) An appeal of a managed care organization's determination regarding a Medicaid beneficiary shall be in accordance with 907 KAR 17:010.

History

RELATES TO: KRS 194A.060, 205.510(16), (17), 205.559, 205.5591, 205.560, 304.38-240, 422.317, 434.840-434.860, 42 C.F.R. 400.203, 415.174, 415.184, 431.300-431.307, 440.50, Part 455, 45 C.F.R. 164.530, 42 U.S.C. 1395m
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), 205.559, 205.5591, 205.560
NECESSITY, FUNCTION, AND CONFORMITY: In accordance with KRS 194A.030(2), the Cabinet for Health and Family Services, Department for Medicaid Services, has 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. KRS 205.559 establishes the requirements regarding Medicaid reimbursement of telehealth providers, and KRS 205.5591 requires the cabinet to promulgate an administrative regulation relating to telehealth services and reimbursement. This administrative regulation establishes the Department for Medicaid Services' coverage and reimbursement policies relating to telehealth services in accordance with KRS 205.559 and 205.5591.
History: 28 Ky.R. 150; Am. 1430; eff. 12-19-2001; 30 Ky.R. 1861; 2055; eff. 3-18-2004; 32 Ky.R. 1934; 2279; eff. 7-7-2006; 35 Ky.R. 1923; 2456; 2757; eff. 7-6-2009; 39 Ky.R. 1070; 1738; 2036; eff. 5-3-2013; TAm eff. 11-16-2017; 46 Ky.R. 273, 1267, 1423; eff. 12-6-2019; 48 Ky.R. 1667, 2485, 2598; eff. 6-2-2022.

Section 1. Definitions.

(1) "Department" means the Department for Medicaid Services or its designee.

(2) "Qualifying clinical trial" has the same meaning as in 42 U.S.C. 1396d(gg)(2).

(3) "Routine patient costs" has the same meaning as in 42 U.S.C. 1396d(gg)(1).

Section 2. Policy. Consistent with 42 U.S.C. 1396d(gg), services related to qualifying clinical trials shall be reimbursable if:

(1) The services are covered services pursuant to Title 907 KAR;

(2) The services would otherwise be provided to a participant who is not participating in a clinical trial; and

(3) The services are not covered by the clinical trial sponsor.

Section 3. Qualifying Clinical Trial Treatment Related Expenses.

(1) The department shall comply with 42 U.S.C. 1396d and provide coverage for routine patient costs associated with a qualifying clinical treatment.

(2) Any required coverage determination shall be expedited and completed within seventy-two (72) hours.

(3) In complying with this section, the provider shall not be:

(a) Required to provide the geographic location or network affiliation of a provider associated with a qualifying clinical trial and treating an enrolled Medicaid recipient.

(b) Required to submit:

Protocols of the qualifying clinical trial;
Proprietary documentation; or
Any information determined by the federal Health and Human Services cabinet to be burdensome to provide.

(4)

(a) A provider and principal investigator shall attest to the appropriateness of the qualifying clinical trial by completion of the form located on the Medicaid.gov Web site at this link: https://www.medicaid.gov/resources-for-states/downloads/medicaid-attest-form.docx.

(b) The form established in paragraph (a) shall be submitted upon request and available for auditing purposes.

Section 4. Federal Approval and Federal Financial Participation. The department's coverage and reimbursement of services pursuant to this administrative regulation shall be contingent upon:

(1) Receipt of federal financial participation for the coverage and reimbursement; and

(2) Centers for Medicare and Medicaid Services' approval of the coverage and reimbursement.

Section 5. Use of Electronic Signatures. The creation, transmission, storage, or other use of electronic signatures and documents shall comply with the requirements established in KRS 369.101 to 369.120.

Section 6. Appeal Rights.

(1) An appeal of a department decision regarding a Medicaid recipient based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:563.

(2) An appeal of a department decision regarding Medicaid eligibility of an individual shall be in accordance with 907 KAR 1:560.

(3) An appeal of a department decision regarding a Medicaid provider based upon an application of this administrative regulation shall be in accordance with 907 KAR 1:671.

History

RELATES TO: KRS 205.520, 205.5605, 205.5606, 205.5607, 42 U.S.C. 1396d
STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3),
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Department for Medicaid Services, has 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. 42 U.S.C. 1396d(gg) establishes federal requirements for reimbursement relating to a qualifying clinical trial. In keeping with that federal requirement, this administrative regulation establishes the department's coverage and reimbursement for routine patient costs relating to a qualifying clinical trial.
History: 49 Ky.R. 703, 1434; eff. 1-12-2023; 49 Ky.R. 2385; 50 Ky.R. 594; eff. 9-27-2023; 49 Ky.R. 1868; eff. 9-27-2023.

907 KAR 3:210 Acquired brain injury long-term care waiver services and reimbursement {#sec-907-kar-3-210 omnilex-key=us-ky-regs-official--title-907--907 KAR 3:210}

Section 1. Definitions.

(1) "1915(c) home and community based services waiver program" means a Kentucky Medicaid program established pursuant to and in accordance with 42 U.S.C. 1396n(c).

(2) "ABI" means an acquired brain injury.

(3) "ABI provider" means an entity that meets the criteria established in Section 2 of this administrative regulation.

(4) "ABIB" means the Acquired Brain Injury Branch in the Division of Community Alternatives, in the Cabinet for Health and Family Services.

(5) "Acquired brain injury long term care waiver service" means a home and community based waiver service for an individual who requires long term maintenance and has acquired a brain injury involving the central nervous system that resulted from:

(a) An injury from a physical trauma;

(b) Anoxia or a hypoxic episode; or

(6) "ADHC services" means adult day health care services provided on a regularly scheduled basis that ensure optimal functioning of a participant who does not require twenty-four (24) hour care in an institutional setting.

(7) "Assessment" or "reassessment" means a comprehensive evaluation of abilities, needs, and services that:

(a) Serves as the basis for a level of care determination;

(b) Is completed on a MAP 351, Medicaid Waiver Assessment that is uploaded into the MWMA; and

(8) "Axis I diagnosis" means a clinical disorder or other condition that may be a focus of clinical attention.

(9) "Behavior intervention committee" or "BIC" means a group of individuals established to evaluate the technical adequacy of a proposed behavior intervention for a participant.

(10) "Blended services" means a nonduplicative combination of ABI waiver services identified in Section 6 of this administrative regulation and participant-directed services identified in Section 10 of this administrative regulation provided in accordance with the participant's approved person-centered service plan.

(11) "Board certified behavior analyst" means an independent practitioner who is certified by the Behavior Analyst Certification Board, Inc.

(12) "Case manager" means an individual who manages the overall development and monitoring of a participant's person-centered service plan.

(13) "Covered services and supports" is defined by KRS 205.5605(3).

(14) "Crisis prevention and response plan" means a plan developed to identify any potential risk to a participant and to detail a strategy to minimize the risk.

(15) "DCBS" means the Department for Community Based Services.

(16) "Department" means the Department for Medicaid Services or its designee.

(17) "Family training" means providing to the family or other responsible person:

(a) Interpretation or explanation of medical examinations and procedures;

(b) Treatment regimens;

(d) Advice in how to assist the participant.

(18) "Good cause" means a circumstance beyond the control of an individual that affects the individual's ability to access funding or services, including:

(a) Illness or hospitalization of the individual that is expected to last sixty (60) days or less;

(b) Death or incapacitation of the primary caregiver;

(d) The individual not having been accepted for services or placement by a potential provider despite the individual or individual's legal representative having made diligent contact with the potential provider to secure placement or access services within sixty (60) days.

(19) "Human rights committee" means a group of individuals established to protect the rights and welfare of a participant.

(20) "Human rights restriction" means the denial of a basic right or freedom to which all humans are entitled, including the right to life and physical safety, civil and political rights, freedom of expression, equality before the law, social and cultural justice, the right to participate in culture, the right to food and water, the right to work, and the right to education.

(21) "Licensed marriage and family therapist" or "LMFT" is defined by KRS 335.300(2).

(22) "Licensed medical professional" means:

(a) A physician;

(b) An advanced practice registered nurse;

(d) A registered nurse;

(e) A licensed practical nurse; or

(f) A pharmacist.

(23) "Licensed practical nurse" or "LPN" means a person who:

(a) Meets the definition of KRS 314.011(9); and

(b) Works under the supervision of a registered nurse.

(24) "Licensed professional clinical counselor" or "LPCC" is defined by KRS 335.500(3).

(25) "Medically necessary" or "medical necessity" means that a covered benefit is determined to be needed in accordance with 907 KAR 3:130.

(26) "MWMA" means the Kentucky Medicaid Waiver Management Application internet portal located at https://www.chfs.ky.gov/agencies/dms/dca/Pages/mwma.aspx.

(27) "Nursing supports" means training and monitoring of services by a registered nurse or a licensed practical nurse.

(28) "Occupational therapist" is defined by KRS 319A.010(3).

(29) "Occupational therapy assistant" is defined by KRS 319A.010(4).

(30) "Participant" means an individual who meets the criteria established in Section 3 of this administrative regulation.

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

(a) Assists with the design of the program;

(b) Chooses the providers of services; and

(32) "Person-centered service plan" means a written individualized plan of services for a participant that meets the requirements established in Section 4 of this administrative regulation.

(33) "Person-centered team" means the participant, the participant's guardian or representative, and other individuals who are natural or paid supports, and who:

(a) Recognize that evidenced based decisions are determined within the basic framework of what is important for the participant and within the context of what is important to the participant based on informed choice;

(b) Work together to identify what roles they will assume to assist the participant in becoming as independent as possible in meeting the participant's needs; and

Be active contributing members of the person centered team meetings;
Base their input upon evidence-based information; and
Not request reimbursement for person centered team meetings.

(34) "Physical therapist" is defined by KRS 327.010(2).

(35) "Physical therapist assistant" means a skilled health care worker who:

(a) Is certified by the Kentucky Board of Physical Therapy; and

(b) Performs physical therapy and related duties as assigned by the supervising physical therapist

(36) "Pro re nata" or "PRN" means as needed.

(37) "Psychologist" is defined by KRS 319.010(9).

(38) "Psychologist with autonomous functioning" means an individual who is licensed in accordance with KRS 319.056.

(39) "Qualified mental health professional" is defined by KRS 202A.011(13).

(40) "Registered nurse" or "RN" means a person who:

(a) Meets the definition established in KRS 314.011(5); and

(b) Has one (1) year or more experience as a professional nurse.

(41) "Representative" is defined by KRS 205.5605(6).

(42) "Speech-language pathologist" is defined by KRS 334A.020(9).

(43) "Support broker" means an individual designated by the department to:

(a) Provide training, technical assistance, and support to a participant; and

(b) Assist a participant in any other aspects of participant-directed services.

Section 2. Non-PDS Provider Participation Requirements.

(1) In order to provide an ABI waiver service in accordance with Section 4 of this administrative regulation, excluding a participant-directed service, an ABI provider shall:

(a) Be enrolled as a Medicaid provider in accordance with 907 KAR 1:671;

(b) Be located within an office in the Commonwealth of Kentucky; and

(c)

Be a licensed provider in accordance with:

a. 902 KAR 20:066, if an adult day health care provider;

b. 902 KAR 20:081, if a home health service provider; or

c. 902 KAR 20:091, if a community mental health center; or

Be certified by the department in accordance with 907 KAR 12:010, Section 3, or 907 KAR 3:090, Section 2, if a provider type is not listed in subparagraph 1. of this paragraph; and

(d) Complete and submit a MAP-4100a to the department.

(2) An ABI provider shall comply with:

(a) 907 KAR 1:671;

(b) 907 KAR 1:672;

(d) 907 KAR 7:005;

(e) The Health Insurance Portability and Accountability Act, 42 U.S.C. 1320d-2, and 45 C.F.R. Parts 160, 162, and 164; and

(f) 42 U.S.C. 1320d to 1320d-8.

(3) An ABI provider shall have a governing body that shall be:

(a) A legally-constituted entity within the Commonwealth of Kentucky; and

(b) Responsible for the overall operation of the organization including establishing policy that complies with this administrative regulation concerning the operation of the agency and the health, safety, and welfare of a participant served by the agency.

(4) An ABI provider shall:

(a) Unless providing participant-directed services, ensure that an ABI waiver service is not provided to a participant by a staff member of the ABI provider who has one (1) of the following blood relationships to the participant:

Child;
Parent;
Sibling; or
Spouse;

(b) Not enroll a participant for whom the ABI provider cannot meet the service needs; and

(c) Have and follow written criteria in accordance with this administrative regulation for determining the eligibility of an individual for admission to services.

(5) An ABI provider shall meet the following requirements if responsible for the management of a participant's funds:

(a) Separate accounting shall be maintained for each participant or for the participant's interest in a common trust or special account;

(b) Account balance and records of transactions shall be provided to the participant or legal representative on a quarterly basis; and

(c) The participant or legal representative shall be notified if a large balance is accrued that may affect Medicaid eligibility.

(6) An ABI provider shall have a written statement of its mission and values.

(7) An ABI provider shall have written policies and procedures for communication and interaction with a family and legal representative of a participant that shall:

(a) Require a timely response to an inquiry;

(b) Require the opportunity for interaction with direct care staff;

(d) Permit visitation with the participant at a reasonable time and with due regard for the participant's right of privacy;

(e) Require involvement of the legal representative in decision-making regarding the selection and direction of the service provided; and

(f) Consider the cultural, educational, language, and socioeconomic characteristics of the participant.

(8)

(a) An ABI provider shall have written policies and procedures for all settings that assure the participant has:

Rights of privacy, dignity, respect, and freedom from coercion and restraint; and
Freedom of choice:

b. Including the freedom to choose:

(i) Services;

(ii) Providers;

(iii) Settings from among setting options including non-disability specific settings; and

(iv) Where to live with as much independence as possible and in the most community-integrated environment.

(b) The setting options and choices shall be:

Identified and documented in the person-centered service plan; and
Based on the participant's needs and preferences.

(c) For a residential setting, the resources available for room and board shall be documented in the person-centered service plan.

(9) An ABI provider shall have written policies and procedures for residential settings that assure the participant has:

(a) Privacy in the sleeping unit and living unit in a residential setting;

(b) An option for a private unit in a residential setting;

(d) A choice of roommate or housemate;

(e) The freedom to furnish or decorate the sleeping or living units within the lease or other agreement;

(f) Visitors of the participant's choosing at any time and access to a private area for visitors; and

(g) Physical accessibility, defined as being easy to approach, enter, operate, or participate in a safe manner and with dignity by a person with or without a disability.

Settings considered to be physically accessible shall also meet the Americans with Disabilities Act standards of accessibility for all participants served in the setting.
All communal areas shall be accessible to all participants as well as have a means to enter the building (i.e. keys, security codes, etc.).
Bedrooms shall be accessible to the appropriate persons.