Neb. Admin. Code tit. 404 — Developmental Disabilities Services

Chapter 1 Scope and Authority

Neb. Admin. Code tit. 404, ch. 1 Scope and Authority {#sec-404-nac-1 omnilex-key=us-ne-regs-official--title-404--404 NAC 1}

001. SCOPE . This title governs services for individuals with developmental disabilities (DD).

002. LEGAL AUTHORITY . The following laws and regulations give legal authority to the Department of Health and Human Services for the establishment, administration, and implementation of these regulations:

(A) Developmental Disabilities Services Act (DDSA) (Nebraska Revised Statutes [Neb. Rev. Stat.] §§ 83-1201 to 83-1226); and

(B) The Health and Human Services Act (Neb. Rev. Stat. §§ 81-3110 to 81-3124).

003. ALTERNATIVE COMPLIANCE PROCEDURE . The Department has the discretion to authorize alternative methods of compliance with any standards or compliance procedures specified in these regulations when the method of compliance meets the purpose and intent of any regulation.

003.01 To apply for alternative compliance with a regulation, a provider or designee must submit a written request to the Department. The written request must include:

(A) The citation of the specific part of the regulation for which alternative compliance is being requested;

(B) The rationale supporting the request for alternative compliance;

(C) If appropriate, activities or performance criteria to replace the requirement of the regulation and the date the provider is expected to attain alternative compliance;

(D) The signature of the director; and

(E) Authorization from the provider's governing board or designee to request alternative compliance.

003.02 The Department may grant the request for alternative compliance when the provider's proposal meets the following conditions:

(A) It is consistent with the intent of the specified regulation;

(B) It conforms to good and customary administrative, management, and programmatic practices;

(D) It does not relieve the provider of the responsibility to comply with other pertinent regulatory requirements.

003.03 The Department will issue a written decision regarding a request for alternative compliance to the provider within 30 calendar days following the receipt of the request. When a request for alternative compliance is granted:

(A) It will be for a specified time period not to exceed the duration of the certification period for which the alternative compliance is requested;

(B) A provider must receive written authorization from the Department prior to implementing the proposal for alternative compliance; and

(C) A provider must meet all the conditions prescribed by the Department in granting the request for alternative compliance. Failure to comply with the specified conditions will automatically void the authorization for alternative compliance.

003.04 The Department’s decision regarding a request of alternative compliance is not appealable.

History

Effective 2022-11-19

Chapter 2 Definitions

Neb. Admin. Code tit. 404, ch. 2 Definitions {#sec-404-nac-2 omnilex-key=us-ne-regs-official--title-404--404 NAC 2}

001. DEFINITIONS . For the purposes of these regulations, definitions found in the Developmental Disabilities Services Act (Nebraska Revised Statute [Neb. Rev. Stat.] §§ 83-1201 to 83-1226), the Public Guardianship Act (Neb. Rev. Stat. §§ 30-4101 to 30-4118), the Workforce Innovation and Opportunity Act 34 C.F.R. parts 361, 363, and 397), the Adult Protective Services Act (Neb. Rev. Stat. §§ 28-348 to 28-387), the Child Protection and Family Safety Act (Neb. Rev. Stat. §§ 28-710 to 28-727), and the following definitions apply:

001.01 APPLICANT FOR CERTIFICATION. The individual, governmental entity, corporation, partnership, limited liability company or other form of business organization who applies for certification as a provider of specialized services.

001.02 ASSESSMENT. The process of evaluating and identifying the preferences, skills, and needs of a participant and what services, interventions, and supports would facilitate the health, safety, and welfare of that participant.

001.03 CERTIFIED PROVIDER. The person or entity providing developmental disabilities services and to whom the Department has issued a certification.

001.04 DEPARTMENT. The Department has the same definition as set forth in Neb. Rev. Stat. § 83-1204.

001.05 DIRECTOR. The person hired by, reporting to, and authorized by the certified provider to direct the day-to-day activities of the provider agency. The director may also be identified as the administrator, executive director, chief executive officer, program administrator, or other similar terms.

001.06 EMERGENCY SAFETY SITUATION. Unanticipated behavior by a participant that places the participant or others at serious threat of violence or injury if no intervention occurs and that requires an emergency safety intervention.

001.07 EMERGENCY SAFETY INTERVENTION. Use of physical restraint or separation as an immediate response to an emergency safety situation.

001.08 EMOTIONAL ABUSE. Humiliation, harassment, threats of punishment or deprivation, sexual coercion, or intimidation, resulting in emotional harm or emotional anguish.

001.09 INTERMEDIATE CARE FACILITY FOR INDIVIDUALS WITH DEVELOPMENTAL DISABILITIES (ICF/DD). Intermediate care facility for persons with developmental disabilities, has the same definition as that set forth at Neb. Rev. Stat. § 71-421.

001.10 INDIVIDUAL SUPPORT PLAN (ISP). A written plan which identifies the supports, activities, and resources required for a participant to achieve and maintain personal goals and health and safety.

001.11 INDIVIDUAL SUPPORT PLANNING TEAM. The team, consisting of the participant, legal representative, if applicable, service coordinator, provider representative, and other individuals chosen by the participant served, that develops the individual support plan (ISP).

001.12 INFORMED CHOICE. An individual’s voluntary, well-considered decision made on the basis of options, information, and understanding. The decision-making process should result in a free and informed decision by the individual about whether he or she desires supports and services and which services he or she needs.

001.13 OBJECTIVE ASSESSMENT PROCESS (OAP). The process used by the Department to determine the amount of funding for any participant receiving services, which includes the Inventory for Client and Agency Planning (ICAP) and other assessments.

001.14 PARTICIPANT. An individual receiving Waiver program services and supports. Where the right to receive notice, to participate in the individual support planning team process and development of the individual support plan (ISP), or informed choice are regulated in this Title, participant also means any competent person legally authorized to act on behalf of the individual receiving Waiver program services and supports.

001.15 PLAN OF IMPROVEMENT. A written plan outlining the provider’s strategies to address any areas found to be out of compliance with applicable standards found during certification or service reviews.

001.16 POSITIVE BEHAVIORAL SUPPORTS. Supports that emphasize positive approaches directed towards maximizing the growth and development of each individual.

001.17 RISK ENDORSEMENT. An addendum for which a certified agency may apply in order to serve participants determined to meet the need for behavioral risk services.

001.18 SECLUSION. The involuntary confinement of a participant alone in a room or an area from which the participant is physically prevented from having contact with others or leaving. Seclusion is prohibited. Seclusion is not separation of a participant to a safe room or area in an emergency safety situation as part of an emergency safety intervention.

001.19 SERVICE COORDINATION. Targeted case management services provided by Department staff to assist a participant in facilitating services and supports for which he or she qualifies.

001.20 SUBSTANTIAL FUNCTIONAL LIMITATION. A score that is two standard deviations or more below the mean on a properly administered and valid, norm-referenced assessment of adaptive functioning that is generally accepted within the field of psychology.

001.21 VERBAL ABUSE. The use of oral, written, or gestured language that willfully includes disparaging and derogatory terms to individuals served.

History

Effective 2022-11-19

Chapter 3 Eligibility and Authorization

Neb. Admin. Code tit. 404, ch. 3 Eligibility and Authorization {#sec-404-nac-3 omnilex-key=us-ne-regs-official--title-404--404 NAC 3}

001. ELIGIBILITY AND AUTHORIZATION FOR DD SERVICES . The Department authorizes funding for services to individuals determined to be eligible as set forth in 404 NAC.

001.01 The following apply to developmental disabilities services, regardless of whether the services are funded by state general funds or Medicaid waiver funds.

001.01(A) FAMILY MEMBERS. The Department will not pay a legally responsible adult to provide developmental disabilities services. A legally responsible adult is a person who has a legal obligation under the provision of state law to care for another individual including a parent (natural or adoptive) of a minor child, a spouse, or legal guardian.

001.01(B) EDUCATIONAL SERVICES. No service that is the responsibility of the school system will be authorized as a developmental disabilities service. The Department will not authorize developmental disabilities services for the hours the child is attending school or in a vocational rehabilitation program. Regular school hours and days apply for a child who receives home schooling.

001.02 ELIGIBILITY CRITERIA FOR DEVELOPMENTAL DISABILITIES SERVICES. To be eligible for funding under the Developmental Disabilities Services Act, the individual must:

(1) Be a citizen of the United States of America, or a qualified alien lawfully present in the United States and comply with all requirements set forth in Chapter 4 of the Nebraska Revised Statutes pertaining to alien eligibility for public benefits;

(2) Be a legal resident of the State of Nebraska; and

(3) Have a developmental disability as defined in the Nebraska Developmental Disabilities Services Act and any applicable definitions contained in this Title.

001.02(A) All individuals eligible for funding for specialized services under the Developmental Disabilities Services Act must apply for and accept any federal Medicaid benefits for which they may be eligible and benefits from other funding sources within the Department; the Department of Education, specifically including the Division of Rehabilitation Services; and other agencies to the maximum extent possible.

001.03 ELIGIBILITY DETERMINATION. A determination of eligibility is made without regard to whether the Department has sufficient funds to provide or obtain needed services for the individual.

001.04 STATEWIDE DATA REGISTRY. All individuals who have been determined eligible for developmental disabilities services are included in the statewide data registry. The Department will use the statewide data registry to:

(1) Track the specialized service and support needs of persons with developmental disabilities;

(2) Plan for future specialized support and service needs of persons with developmental disabilities; and

(3) Budget for future specialized support and service needs of persons with developmental disabilities.

Information in the registry is considered confidential and will not be released without proper authorization as provided by law.

001.04(A) Information for each eligible individual listed in the data registry system may include:

(i) Demographics;

(ii) Individual diagnosis;

(iii) Eligibility factors;

(iv) Financial information;

(v) Family and legal representative information; and

(vi) The objectively assessed needs for specialized supports and services, specifying amount and type.

001.05 DETERMINATION OF ELIGIBILITY. The Department determines eligibility for developmental disabilities services and notifies the individual in writing.

001.05(A) REASONS FOR INELIGIBILITY. An individual is ineligible if:

(i) The individual does not meet the criteria set forth in this Title; or

(ii) The individual or persons acting on his or her behalf have not supplied needed information. Upon supplying this information, eligibility will be determined.

001.05(B) SERVICE COORDINATION. Upon request, service coordination is provided to all eligible individuals when all statutory and regulatory requirements are fulfilled. Acceptance of service coordination is required to receive other developmental disabilities services.

001.06 AUTHORIZATION OF FUNDS FOR DEVELOPMENTAL DISABILITIES SERVICES. Funding for developmental disabilities services with State General Funds other than service coordination is authorized for eligible individuals contingent upon legislative appropriations and availability of funds.

001.06(A) The amount of funding for any person receiving services is determined using an objective assessment process (OAP).

001.06(B) Specialized services for an individual is authorized according to the individual’s objective assessment.

001.06(C) The Department will authorize funding for services only when services and supports are not being provided through other available sources.

002. DEVELOPMENTAL DISABILITIES SERVICES FUNDED BY STATE GENERAL FUNDS . The following provisions govern services funded by State General Funds.

002.01 DENIAL OF STATE GENERAL FUNDS. The Department may at any time deny or terminate funding for specialized services funded solely by State General Funds for one or more of the following reasons:

(A) The individual does not meet eligibility requirements;

(B) The Legislature has not appropriated sufficient fiscal resources to fund all services for all persons determined eligible for specialized services;

(D) Funding for requested specialized services is available from other sources;

(E) The eligible individual has not met prioritization criteria;

(F) The eligible individual has not met criteria for funding available through legislative mandates, or court decisions addressing specific population, groups, or order of services offered;

(G) The eligible individual or legal representative has failed to apply for and accept any federal Medicaid benefits for which she or he may be eligible; for benefits from other funding sources within the Department or the Nebraska Department of Education; and for benefits from other agencies to the maximum extent possible;

(H) The eligible individual is not eligible for Medicaid benefits or the eligible individual or legal representative has failed to comply with requirements for initial or continued eligibility of any federal Medicaid benefits for which she or he may be eligible;

(I) The eligible individual or legal representative failed to comply with the requirements for initial or continued benefits from other funding sources within the Department, the Nebraska Department of Education, and other agencies to the maximum extent possible;

(J) The eligible individual or legal representative has not signed documentation required by the Department;

(K) The eligible individual or legal representative has failed to cooperate with, or refused the services funded by the Department;

(L) The child under the age of 22 could receive educational services during a normal, regular, or adjusted school day;

(M) A plan of services and supports to protect the individual’s health and welfare cannot be developed or maintained; or

(N) The eligible individual, legal representative, or representative payee has not supplied information requested by the Department including information regarding the individual’s ability to pay a portion of the costs of services if required by applicable law.

002.02 FUNDING PRIORITIZATION. As State General Funds are available, the Department will authorize funding of specialized services to individuals on the basis of priority criteria as set forth in the Developmental Disabilities Services Act. Services provided under the Developmental Disabilities Services Act with State General Funds are:

(A) Habilitative Community Inclusion;

(B) Habilitative Workshop;

(D) Service Coordination;

(E) Supported Employment-Enclave;

(F) Supported Employment-Follow Along; and

(G) Supported Employment-Individual.

002.03 ABILITY TO PAY. Prior to entry into services and annually, the Department will assess the ability of an individual to pay all or part of the cost of services provided under this Title. This does not apply to persons receiving Medicaid Waiver services.

003. ANNUAL AND ONGOING ELIGIBILITY REVIEW FOR SERVICES . The Department will complete a review of eligibility on an annual basis or when changes in the individual’s circumstances appear. If the individual is determined to be ineligible, the Department will notify the individual.

003.01 AUTHORIZATION OF SERVICES FUNDING. All State General Funds services funding must be authorized by the Department, prior to the service being provided.

003.02 PROHIBITED USES OF DEPARTMENT FUNDS. State General Funds will not be used to pay for:

(A) The care of individuals residing in a hospital, nursing facility, or intermediate care facility for individuals with developmental disabilities (ICF/DD);

(B) Room and board;

(D) Services to a child when educational services could be provided during a normal, regular, or adjusted school day.

004. HEARINGS FOR ISSUES RELATED TO DEVELOPMENTAL DISABILITIES SERVICES FUNDED BY STATE GENERAL FUNDS . An individual has the right to appeal decisions made by the Department with respect to State General Fund services as follows:

(A) The denial, change, or termination of eligibility of the individual for specialized services;

(B) The evaluation of the individual;

(D) The amount of the individual’s authorized funding; or

(E) The records relating to the individual.

004.01 An individual is not entitled to appeal when state or federal law requires automatic changes adversely affecting some or all classes of persons applying for or receiving services under the Developmental Disabilities Services Act.

004.02 TIMELINESS OF APPEAL. In order to exercise the right to appeal, an individual must file a formal appeal, within 90 days of the mailing date of the decision being contested. If the individual does not file an appeal, the decision becomes final on the 90th day after the mailing date of the decision.

004.03 REQUESTING A HEARING. In order to exercise the right to a hearing, the individual must file a petition with the Department. The appeal may be made on a form provided by the Department for such purpose or in another writing that contains at least the following information:

(1) The name, address, and phone number of the appellant; the name, address, and phone number of the legal representative, if applicable; and the signature of the appellant or legal representative;

(2) The specific decision contested;

(3) The date of the decision contested; and

(4) Any other information that the individual wants to be included at the hearing.

004.03(A) If the appeal fails to include any of the above information, it will be ineffective to initiate the hearing process and the Department may either reject the appeal or request additional information from the individual.

004.03(B) In order to be effective, the appeal must be either mailed, sent via electronic mail, submitted by telephone or online portal, or hand delivered to the Department.

004.03(C) If mailed, the appeal will be deemed to be received by the Department on the date of the postmark. If hand delivered, emailed, or submitted via online portal or telephone, the appeal will be deemed to be received by the Department on the actual date of receipt.

004.04 STAYING THE DECISION OR ACTION. If an individual appeals within 10 days of a notice of decision being mailed, it is assumed that the individual is requesting that any ongoing assistance that is the subject of the appeal will continue during the pendency of the appeal unless the individual indicates a contrary intent.

004.05 HEARING OFFICER. Upon receipt of an appeal, the Director of the Division of Developmental Disabilities will assign the matter to a hearing officer who will receive all subsequent pleadings and will conduct the hearing.

004.05(A) Any party may challenge a hearing officer on the grounds that the hearing officer has a conflict of interest. The challenge may be made to the hearing officer on, or before, the date set for hearing. The hearing officer may hear and decide the challenge or may refer the matter to the Director of the Division of Developmental Disabilities. If the hearing officer does not hear the challenge immediately, the hearing on the appeal will be continued until the challenge is resolved. The hearing officer will notify all parties of the new hearing date by mail at least five business days before the date of the hearing.

004.05(B) The Director of the Division of Developmental Disabilities may substitute a hearing officer for good cause. The substitution of a hearing officer is reason for a continuance.

004.06 AUTHORITY AND DUTIES OF THE HEARING OFFICER. A hearing officer is assigned to each appeal and has the duty to:

(1) Conduct full, fair, and impartial hearings;

(2) Take appropriate action to avoid unnecessary delay in the disposition of proceedings; and

(3) Maintain order during the hearing.

004.06(A) The hearing officer has all the powers necessary to carry out his or her duties, including to:

(i) Administer oaths and affirmations;

(ii) Issue subpoenas as authorized by law to compel the appearance of witnesses and the production of relevant evidence;

(iii) Compel discovery and to impose appropriate sanctions for failure to make discovery;

(iv) Rule upon offers of proof and receive relevant, competent, and probative evidence;

(v) Regulate the course of the proceedings in the conduct of the parties and their representatives;

(vi) Hold conferences for simplification of the issues, settlement of the proceedings, or any other proper purpose;

(vii) Consider and rule orally or in writing, upon all procedural and other motions appropriate in adjudicative proceedings, including the application of, or exclusion from, the stay of an action or decision on appeal;

(viii) Establish the time for filing briefs;

(ix) Grant a specific extension of time, at the request of either party for good cause shown;

(x) Produce evidence on his or her own motion;

(xi) Exclude people from the hearing;

(xii) See that facts are fully developed including witness examination and cross examination, if needed; and

(xiii) Take any other action consistent with the purpose of the law and consistent with these rules.

004.07 THE HEARING. The hearing officer will set the date, time, and location of the hearing.

004.07(A) Unless as otherwise specified in these regulations or applicable statutes, the hearing officer and all parties may serve all motions, notices, pleadings, orders, or other papers personally or by mail.

004.07(B) The hearing officer and all parties must serve all parties who have entered their appearances with all notices, motions, pleadings, orders, or other papers filed. Service on an attorney of record is service on the party represented by the attorney.

004.07(C) The Nebraska Evidence Rules, Neb. Rev. Stat. §§ 27-101 et seq., will not apply unless invoked in writing by either party at least three business days before the hearing. However, the hearing officer will admit competent, relevant, and material evidence, but will exclude evidence that is incompetent, irrelevant, immaterial, or unduly repetitious.

004.07(C)(i) Any party invoking the Nebraska Evidence Rules is liable for the payment of all costs related thereto, including the cost of court reporting services, which the party is responsible for procuring for the hearing.

004.07(D) At the hearing, the parties will present evidence on the issues raised in the appeal and any subsequent pleadings.

004.07(D)(i) The order in which evidence and testimony is presented will be at the discretion of the hearing officer.

004.07(D)(ii) The appellant has the burden of persuasion throughout the hearing.

004.07(D)(iii) The appellant must prove his or her case by a preponderance of the evidence.

004.07(E) RIGHTS. A party at a hearing has the right to:

(i) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to needs of persons with developmental disabilities, request subpoenas, and issue discovery as authorized by law to compel the appearance of witnesses and the production of relevant evidence;

(ii) Present evidence and confront, cross-examine, and compel the attendance of witnesses;

(iii) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five calendar days before the hearing;

(iv) Obtain a written or electronic verbatim record of the hearing at his or her cost; and

(v) Obtain written findings of fact and decisions from the Director of the Division of Developmental Disabilities.

004.07(F) WITNESSES. The hearing officer may issue subpoenas to compel witnesses to attend or produce evidence. Witnesses are entitled to the fees and expenses as allowed in District Court.

004.07(F)(i) The Director of the Division of Developmental Disabilities shall certify failure to respond to a subpoena to the District Court of Lancaster County for enforcement or for punishment for contempt of the District Court.

004.07(F)(ii) Each party is responsible for the payment of witness fees and mileage, including the fees and expenses of expert witnesses that the party calls.

004.07(F)(iii) The Department will provide personnel as witnesses when served with a subpoena without payment of witness fees or mileage fees.

004.07(G) At the completion of the proceedings, the hearing officer will prepare a report based on the evidence presented containing recommendations for the Director of the Division of Developmental Disabilities to make findings of fact and conclusions of law.

004.08 JUDICIAL REVIEW. Any party aggrieved by the final decision and order of the Director of the Division of Developmental Disabilities is entitled to judicial review under applicable state law.

History

Effective 2022-11-19

Chapter 4 Certification Requirements for Certified Providers of Services

Neb. Admin. Code tit. 404, ch. 4 Certification Requirements for Certified Providers of Services {#sec-404-nac-4 omnilex-key=us-ne-regs-official--title-404--404 NAC 4}

TITLE 404 DEVELOPMENTAL DISABILITIES SERVICES

CHAPTER 4 CERTIFICATION REQUIREMENTS FOR CERTIFIED PROVIDERS OF SERVICES

001. CERTIFICATION OF PROVIDERS. All agency providers of services under the Developmental Disabilities Services Act must meet the certification and accreditation requirements established by the Department of Health and Human Services.

001.01 OVERVIEW OF CERTIFICATION PROCESS. To become a certified provider, the provider applicant must:

(1) Submit a complete application;

(2) Be a United States citizen or qualified alien under applicable federal and state law;

(3) Provide all additional information the Department may require; and

(4) Comply with all provider requirements in this chapter.

001.01(A) APPLICATION. An applicant for certification as an agency provider of developmental disabilities services must apply for certification on the forms supplied by the Department. The applicant shall provide the following:

(i) The legal name of the applicant, address, and contact information;

(ii) The structure, such as partnership, corporation, government, or limited liability company;

(iii) A list of names and addresses of all persons with financial interest in the agency provider;

(iv) The preferred mailing address for receipt of official notices from the Department;

(v) The applicant’s federal employer identification number;

(vi) The signature of the person of authority applying to be a certified agency provider;

(vii) A copy of the registration as a foreign corporation filed with the Nebraska Secretary of State, if applicable;

(viii) Program description for provision of services that includes:

(1) A copy of the applicant’s organizational chart identifying authority over the agency and the organization of management positions;

(2) The developmental disabilities services to be provided;

(3) The address, including street and city, and telephone number of each location for service delivery, including type of service to be provided at each location and planned capacity at each location;

(4) Copies of current policies and procedures, as required by this chapter; and

(5) A list of all subcontractors and proposed subcontracts that will provide services under this application; and

(ix) A disclosure of any criminal history or listing on the Department’s Central Abuse and Neglect registries or the Nebraska State Patrol Sex Offender Registry for any management positions, including owners, directors, and managers;

(x) At initial certification only, documentation showing the provider maintains a $10,000.00 minimum cash reserve or business line of credit; and

(xi) A statement of intent to seek a risk endorsement (if applicable).

001.01(B) INITIAL CERTIFICATION. For prospective providers, the Department will issue an initial certification for a six-month period upon approval of the application. Before the expiration of initial certification, the Department will conduct an on-site review to determine compliance.

001.01(B)(i) EXTENSIONS. Initial certification may be extended for up to six additional months when the provider has not been serving a participant for at least 90 days before the initial certification expires.

001.01(B)(ii) REVIEW. Following on-site review, the Department will:

(1) Issue a one or two year certification when the provider is found to be in compliance with applicable regulations;

(2) Extend initial certification on a one-time basis for up to six months when the on-site review shows the provider is not in compliance with applicable regulations, but there are no health or safety issues, and the provider is making satisfactory progress towards compliance; or

(3) Deny certification when the on-site certification review shows the provider is not in compliance with applicable regulations and has not made progress in doing so, or there are serious health or safety issues identified.

001.01(C) LENGTH OF CERTIFICATION. Provider certification is contingent upon compliance with applicable 404 NAC standards as required by the Department. Agencies, organizations, or individuals seeking certification will receive a two-year certification upon successful completion of the certification review. If the outcomes of the certification review show significant or repeated deficiencies, or if there is evidence that provider systems are not functioning properly, the Department may issue a one-year certification.

001.01(D) DENIAL OF CERTIFICATION. The Department, in its discretion, may deny or terminate a provider’s certification for good cause, which includes but is not limited to the following grounds:

(1) Violations of any of the provisions of Nebraska Administrative Code (NAC) Titles 172, 403, 404, 471, 480, 482 or other applicable law or regulation governing services provided;

(2) The provider or its owner is the respondent of a protection order;

(3) The provider or its owner committed a crime:

(a) Against a child or vulnerable adult;

(b) Involving the illegal use, possession, or distribution of a controlled substance; or

(c) That, if repeated, could injure or harm the Developmental Disabilities Services Waiver program or a developmental disabilities services participant;

(4) A provider’s owner or administrative staff or management have been convicted of any of the crimes listed in this chapter; or

(5) The provider or its owner is listed as a perpetrator on the Nebraska Adult Protective Services Central Registry or the Child Abuse and Neglect Central Registry in a court-substantiated or agency-substantiated case or is listed as a perpetrator on any comparable registry in any other state.

001.01(D)(i) COMMISSION OF CRIMES. The Department deems a crime to have been committed when a conviction, admission, or substantial evidence of commission exists. In exercising its discretion, the Department considers the severity of the crime(s), the applicability of the crime(s) to the service of the provider, and the amount of time that has passed since the commission of the crime.

001.01(D)(ii) FAILURE TO DISCLOSE. Failure to disclose requested information on the application or providing incomplete or incorrect information on the application may result in the denial of a certification.

001.01(E) CONDITIONS FOR DENIAL OR TERMINATION. Provider certification will be denied or terminated when any person with a 5% or greater direct or indirect ownership interest in the provider has been convicted of a criminal offense related to that person’s involvement with a Medicare, Medicaid, or Title XXI program within the last ten years, unless the Department determines that denial or termination of enrollment is not in the best interest of the program.

001.02 EXTENSION OF CERTIFICATION. The Department may extend the certification for up to 60 calendar days, for good cause shown.

001.03 CERTIFICATION RENEWAL. Renewal applications must be submitted at least 90 calendar days prior to the expiration of the current certification. At any time, the Department may conduct an onsite review and request additional documentation.

001.03(A) ON-SITE CERTIFICATION REVIEW. Initial and renewal certifications will not be issued until the Department has conducted an on-site certification review to assess compliance.

001.03(B) RENEWAL APPLICATION. The provider must submit a complete renewal application which includes all requirements outlined in this chapter.

001.04 RISK ENDORSEMENT. In addition to all other certification requirements in this chapter, a certified agency seeking risk endorsement must meet specific qualifications including the following:

(A) Full-time employment of a clinician who is currently licensed in Nebraska as one of the following:

(i) Licensed Independent Mental Health Practitioner (LIMHP);

(ii) Licensed Clinical Psychologist; or

(iii) Advanced Practice Registered Nurse (APRN);

(B) Two consecutive years operating as a certified, licensed, or accredited agency provider of Medicaid 1915(c) Waiver Home and Community-Based Services for individuals with developmental disabilities in Nebraska or another state;

(D) Any other requirements as defined by and at the Department’s discretion.

001.05 NOTIFICATION REQUIREMENTS. The provider must notify the Department, in writing, of any:

(1) Change of ownership or control within 10 business days of the effective date;

(2) Change in director within 10 business days of the effective date;

(3) Addition of a new service option at least 30 calendar days prior to the effective date;

(4) Termination of a service option currently being provided to participants at least 60 calendar days prior to the effective date;

(5) Addition of a new provider-operated or controlled service setting at least 15 calendar days prior to opening;

(6) Change in contact information, including physical business address, phone number, mailing address, and e-mail address, within 10 business days of the effective date; and

(7) For any provider with a risk endorsement, a change in clinician, change in clinician’s employment status with the provider, or change in clinician’s license status, within 5 business days of the effective date of the change.

001.05(A) CHANGE IN OWNERSHIP. A provider certification is issued only to the person named in the application as the certified provider. When a change of ownership occurs, the new owner must assume responsibility for correction of all previously cited deficient practices from the acquired provider.

001.06 CERTIFICATION AND SERVICE REVIEWS. The Department may, at any time, conduct unannounced on-site reviews. Providers must cooperate with site reviews and documentation requests.

001.06(A) RESULTS OF CERTIFICATION OR SERVICE REVIEWS. If the Department determines there are deficiencies or discovers non-compliance, the provider may:

(i) Be required to provide a plan of improvement;

(ii) Have a disciplinary action imposed; or

(iii) Have its certification terminated.

001.06(B) PLAN OF IMPROVEMENT. If the Department determines that a provider is in non-compliance with the provider requirements outlined in the Medicaid provider agreement or applicable law or regulation, a plan of improvement will be required from the provider. Within 20 days of receipt of the Department’s written findings of non-compliance, the provider must submit an acceptable plan of improvement to address areas found to be out of compliance. The plan of improvement must:

(i) Be specific in identifying a planned action on how the areas found to be out of compliance have been or will be corrected for the individual cases included in the review and system wide within the provider organization;

(ii) Include an expected date for completion of the plan of improvement that is timely, taking into consideration the nature of the violation;

(iii) Identify a means to prevent a recurrence;

(iv) Identify who is responsible for implementing the plan of improvement and ensuring all areas are corrected and compliance is maintained; and

(v) Be signed and dated by the director of the provider or designee.

001.07 DISCIPLINARY ACTIONS. When a provider is out of compliance with the provider requirements outlined in the Medicaid provider agreement or applicable law or regulation, the Department may impose, in any order, one or more of the following types of disciplinary action.

001.07(A) DIRECTED PLAN OF IMPROVEMENT. The provider will be required to implement a directed plan of improvement, within the specified period of time, developed by the Department, containing specific actions and timeframes.

001.07(B) DIRECTED IN-SERVICE TRAINING. The provider will be required to train staff as required by the Department. The provider is responsible for the required training and the associated cost of the training.

001.07(C) STATE MONITORING. The provider will be required to submit to monitoring by the Department or designee as a safeguard against further harm or injury to participants or serious risk to the safety of the participants.

001.07(D) PROBATION. The provider will be placed on probation and be required to meet the terms and conditions of the probation in order to continue to operate.

001.07(E) SUSPENSION OF SERVICES. The provider will be prohibited from:

(i) Accepting new participants;

(ii) Providing a specific service to any participants;

(iii) Providing a specific service at a specific site; or

(iv) Providing services as otherwise deemed appropriate by the department.

001.07(F) TERMINATION OF THE PROVIDER CERTIFICATION. The provider’s certification may be terminated when:

(i) The provider’s non-compliance poses an immediate and serious threat to one or more participant’s health and safety;

(ii) The provider’s conduct or practices are detrimental to the health or safety of a participant or others;

(iii) The provider knowingly fails to report abuse, neglect, or exploitations as required by applicable law;

(iv) The provider has established a pattern of not maintaining compliance;

(v) The provider has not corrected previously identified areas of non-compliance;

(vi) The provider has established a pattern of not using internal quality improvement practices;

(vii) The provider commits, permits, aids, or abets any unlawful act that would disqualify it from enrollment as a provider;

(viii) The provider failed to disclose information on the application or provided incomplete or incorrect information on the application;

(ix) The provider has failed to submit an acceptable plan of improvement; or

(x) The provider has failed to comply with any previously imposed disciplinary action directed by the Department.

001.07(G) NOTICE OF DISCIPLINARY ACTION TO PROVIDER. Notice of disciplinary action will be given to the provider in writing via mail or email.

001.07(H) IMMEDIATE AND SERIOUS THREATS TO HEALTH AND SAFETY. When situations involving immediate and serious threat to one or more participants’ health and safety are identified, the provider:

(i) Upon discovery, must take immediate action to remove the risk to the identified individual and implement corrective measures to prevent further immediate and serious threat situations;

(ii) May have participants removed from its services, if the provider fails to remove the risk to identified participants and to implement corrective measures to prevent further immediate and serious threat situations;

(iii) May have its certification terminated unless the provider has eliminated the immediate and serious threat and is able to maintain corrective actions;

(iv) Must submit written evidence of correction or that the circumstances causing the immediate and serious threat no longer exist and that safeguards are in place to ensure the health and safety of participants; and

(v) May be required to submit to monitoring by the Department, including revisits, to verify compliance.

001.08 APPEAL RIGHTS. Any adverse action taken under Chapter 4 of this Title may be appealed to the Director of the Division of Developmental Disabilities by the person or entity against whom the action was taken.

001.08(A) HEARING REQUEST PROCEDURE. The person or entity appealing an adverse action under Chapter 4 of this Title must submit a written hearing request to the Director of the Division of Developmental Disabilities within 30 days of the date of the action.

001.08(B) HEARINGS. Appeal and hearing procedures are governed by 465 NAC.

002. ADMINISTRATION STANDARDS. All agency providers of services under the Developmental Disabilities Services Act must meet the administration standards and requirements in this section.

002.01 MEDICAID PROVIDERS. All providers must be an enrolled Medicaid provider pursuant to applicable laws and regulations relating to the Nebraska Medical Assistance Program.

002.02 DIRECTOR. Each provider must have a director who is responsible for overall management and compliance of the requirements in this Title, establish policies and procedures as specified in this chapter and ensure compliance with applicable laws and regulations.

002.03 PROVIDER POLICIES AND PROCEDURES. The provider must establish and implement written policies and procedures that:

(1) Describe the provider’s operation and how systems are set up to meet participants’ needs;

(2) Comply with all applicable regulations and laws governing providers;

(3) Are available to staff; and

(4) Are reviewed at least annually and revised if needed.

002.03(A) PROCEDURAL REQUIREMENTS REGARDING RIGHTS. The provider must establish procedures that:

(i) Specify participant rights and responsibilities and this specification does not conflict with Title 404 NAC;

(ii) Inform each participant served, and if applicable, the participant’s parent if a minor, or the participant’s legal representative, of the participant’s rights and responsibilities;

(1) The information must be given at the time of entry to services, at the participant’s annual individual support plan (ISP) review, and when significant changes occur; and

(2) The information must be provided in a manner that is easily understood, given verbally and in writing, in the native language of the participant, or through other modes of communication necessary for understanding;

(iii) Require the provision of supports to participants receiving services in exercising their rights;

(iv) Do not treat participants’ rights as privileges; and

(v) Prohibit retaliation against participants’ services and supports due to the participant, family members, or legal representatives advocating on behalf of the participant served. This includes initiating a complaint with outside agencies.

002.04 PSYCHOTROPIC MEDICATION. Psychotropic medications administered by the certified agency provider must:

(1) Only be given as prescribed by the participant’s treating medical professional acting within his or her scope of practice;

(2) Be reviewed by the individual support planning team to determine if the benefits outweigh the risks and potential side effects;

(3) Be supported by evidence that a less restrictive and more positive technique has been systematically tried and shown to be ineffective, and that administration of the medications is part of the participant’s person-centered plan as demonstrated by supporting data and outcome measures;

(4) Be reviewed by the rights review committee, unless all of the following are clearly documented:

(a) The psychotropic medication and dosage;

(b) The diagnosis for which the medication has been prescribed;

(d) Changes in the medication prescribed or dosage, if any;

(5) Be reviewed annually by the prescribing physician and semi-annually by the individual support planning team;

(6) Not be used as a way to deal with under-staffing; ineffective, inappropriate, or other nonfunctional programs or environments;

(7) Also have a positive behavioral supports plan established and in place to address problem behavior when it occurs; and

(8) Be monitored and documented on an ongoing basis by the provider to provide the individual support planning team and physician sufficient information regarding:

(a) The effectiveness of and any side effects experienced from the medication;

(b) Frequency and severity of symptoms; and

002.04(A) BEHAVIORAL SUPPORT PLAN. No positive behavioral support plan is required when an individual is prescribed a medication that has the effect of behavior modification, but is prescribed for other reasons, as documented by a physician.

002.05 RIGHTS REVIEW COMMITTEE. The provider must establish a rights review committee to review any situation requiring an emergency safety intervention, the use of certain psychotropic medications, any restrictive measure, and any situation where violation of a participant’s rights occurred.

002.05(A) MEMBERSHIP OF THE RIGHTS REVIEW COMMITTEE. At least half of the committee members must be participants, family, or other interested persons who are not provider staff. The provider must appoint members of the committee that:

(i) Are free from conflict of interest; and

(ii) Will ensure the confidentiality of information related to participants served.

002.05(B) RECUSAL OF RIGHTS REVIEW COMMITTEE MEMBER. If the person responsible for approving the participant’s program or any staff who provides direct services serve as a member of a rights review committee, he or she must recuse him or herself from participation in rights review committee proceedings pertaining to such participant.

002.05(C) MEETINGS. The committee must meet, at a minimum, semi-annually. The review may include obtaining additional information and gathering input from the affected participant and his or her legal representative, if applicable, to make recommendations to the provider.

002.05(D) SUB-COMMITTEES. The rights review committee may utilize sub-committees to complete its work. The sub-committee must document its activities and submit that documentation to the rights review committee, as evidenced in the rights review committee’s meeting minutes.

002.05(E) INTERIM APPROVAL OF RESTRICTIVE MEASURES. Interim approvals of restrictive measures are allowed in circumstances that require immediate attention. The interim approval may be done by a documented designee of the rights review committee, who must be a current member of the rights review committee and can be an employee of the certified provider but must be free from conflict of interest. The meeting minutes must document final approval by the rights review committee at its next meeting.

002.05(F) ALLEGATIONS OF ABUSE OR NEGLECT. The rights review committee must evaluate all known allegations and investigations of abuse or neglect for any violation of a participant’s rights.

002.06 PARTICIPANTS’ PERSONAL FUNDS AND PROPERTY. The provider shall have written policies and procedures to protect the participant’s funds and property. The provider must:

(1) Have a policy to address who is responsible for replacement or compensation when a participant’s personal items are damaged or missing;

(2) Not use the participant’s funds and personal property as a reward or punishment;

(3) Not assess the participant’s funds and personal property as payment for damages unless approved by the individual support planning team, and written consent is received from the participant to make the restitution;

(4) Not use the participant’s funds and personal property to purchase inventory or services for the provider; and

(5) Not allow the participant’s funds and personal property to be used by provider staff or subcontractors for their personal use.

002.06(A) SUPPORT IN MANAGING FINANCIAL RESOURCES. When a participant does not have the skills necessary to manage his or her financial resources, the provider may, with the informed choice of the participant, offer services and supports that temporarily transfers some of the control of handling the participant’s financial resources to the provider.

002.06(A)(i) TRANSFER OF CONTROL. The transfer of control of a participant’s financial resources:

(1) Must not be for a convenience of staff, or as a substitute for habilitation;

(2) Must be temporary;

(3) Must be based on the choice of the participant and the extent to which the participant can participate; and

(4) Must not be transferred to another entity and the participant must not be charged for the service.

002.06(A)(ii) DOCUMENTATION REQUIREMENTS. The participant’s individual support planning team must determine and document in the individual support plan (ISP) the following regarding the temporary transfer of control of a participant’s finances to the provider:

(1) The extent in which the participant can participate in management of his or her financial resources;

(2) The participant’s informed choice; and

(3) The rationale for the transfer of control.

002.06(B) PROVIDER MANAGEMENT OF PARTICIPANTS’ FINANCES. If the provider is responsible for handling participants’ funds:

(i) The provider must maintain a financial record for each participant that includes:

(1) Documentation of all cash funds, savings, and checking accounts, deposits, and withdrawals; and

(2) An individual ledger which provides a record of all funds received and disbursed and the current balance;

(ii) The provider must provide account balances and records of transactions to each participant at least quarterly, unless otherwise requested;

(iii) Before the provider allows a non-routine expenditure exceeding $150, the participant must review and prior authorize it, as well as notify the participant’s individual support planning team;

(iv) The provider must have policies and procedures that outline how financial errors, overdrafts, late fees, and missing money will be handled when the provider is responsible for managing participants’ funds. The policies and procedures must include that:

(1) The provider is responsible for service charges and fees assessed due to staff errors;

(2) The provider must replace missing money promptly if missing money is due to staff error; and

(3) The provider is responsible for taking steps to correct a participant’s credit history when it is affected by provider staff actions in managing the participant’s finances; and

(v) When the provider is maintaining participants’ personal funds in a common trust, a separate accounting is maintained for each participant or for the participant’s interest in a common trust fund.

002.07 ENTRY TO SERVICE. Prior to accepting a participant into services, the provider must:

(A) Gather and review referral information regarding the participant, to the greatest extent possible, to make an informed determination as to whether the agency is capable of providing services to meet the participant’s needs;

(B) Consider the safety of all participants in the decision to accept new participants to service or the location for the services;

(C) Consider whether the provider has the capacity, commitment, and resources necessary to provide supports to the participant for the long term. The provider must not admit a participant to services if it cannot reasonably assure that it has the ability to meet the participant’s needs; and

(D) Participate in the transition process for a participant from one provider to another, whether the provider is ending services or beginning to provide services.

002.08 TERMINATION OF SERVICES. A provider may terminate services to a participant when the provider has determined that it can no longer effectively and appropriately serve the participant due to a lack of resources, skills, or capacity. Written notification outlining the reasons for termination of services must be given to the participant no less than 60 unless the participant is served under a risk endorsement, in which case written notification outlining the reason for termination of services must be given to the participant no less than 90 calendar days prior to the final day of services.

002.08(A) TRANSITION PLAN. If a provider or participant elects to terminate services, prior to terminating services, the provider must develop a transition plan in conjunction with the participant’s individual support planning team. If another provider has been identified to serve the participant, that provider must be invited to the transition meeting. The individual support plan (ISP) must include:

(i) A primary focus on the participant’s needs and preferences;

(ii) Timelines for the transition; and

(iii) Supports and strategies that are needed for the new and current provider that meet the needs of the participant during and after the transition from one provider to another.

002.08(B) ADDITIONAL TIME. If additional time is needed to transition the participant from one provider to another, the provider terminating services may be required to provide services for up to an additional 10 calendar days.

002.09 ACCESS TO RECORDS. The provider must provide access to or copies of all records or other documents relating to the operation of the provider, and all participants served by the provider, to the Department upon request.

002.10 PARTICIPANT RECORD KEEPING. The provider must maintain participant records that:

(A) Designate staff responsible for the maintenance of the individual’s records;

(B) Develop and implement a systematic organization of records to ensure permanency, accuracy, completeness, and easy retrieval of information;

(C) Have a method to access the records by staff and other relevant persons as needed. The provider must ensure that current and applicable records relating to the participant are readily available to staff when providing services to participants. If there are changes in ownership, all participant records must be transferred to the current owner. Before dissolution of any provider agency, the administrator must notify the Department in writing of the location and storage of participant records;

(D) Govern access to, duplication, dissemination, and release of information from the participant’s record;

(i) The provider must ensure written consent is obtained from the participant or the participant’s legal representative for the release of information specific to the participant, including release of photographs to persons not authorized under law to receive them. The consent must identify the specific information to be released and the time period the consent is in effect, except that no written consent to release or access information is necessary for Department representatives to review the records; and

(ii) The provider must specify the method and frequency for obtaining authorizations for medical treatment and consents.

002.11 INCIDENT REPORTING. The provider must report incidents using the electronic system approved and used by the Department. The provider must implement a system for handling and reporting incidents that includes:

(A) Identification of incidents that require completion of an incident report to the Department that includes:

(i) Situations that adversely affect the physical or emotional well-being of a participant served;

(ii) Alleged or suspected cases of abuse, neglect, exploitation, or mistreatment; and

(iii) Emergency safety situations that require the use of emergency safety interventions;

(B) Recording the essential facts of the incident, including the results of the incident and any actions which might have prevented the incident;

(D) Timelines to ensure prompt reporting of incidents as appropriate, including reporting to:

(i) Provider management;

(ii) The individual who receives services involved in the incident;

(iii) Family member or legal representative as appropriate;

(iv) Child and Adult Abuse and Neglect in the Department; and

(v) Law enforcement;

(E) Reporting requirements including:

(i) A verbal report to the Department upon becoming aware of the incident;

(ii) A written report using the Department approved format within 24 hours of the verbal report;

(iii) A written summary submitted to the Department of the provider’s investigation and action taken within 14 calendar days; and

(iv) An aggregate report of incidents must be submitted to the Department on a quarterly basis. Each report must be received by the Department no later than 30 calendar days after the last day of the previous quarter. The reports must include a compilation, analysis, and interpretation of data, and include evidentiary examples to evaluate performance that result in a reduction in the number of incidents over time; and

(F) A process to review and analyze information from incident reports to identify trends and problematic practices which may be occurring and take appropriate corrective actions to address problematic practices identified.

003. STAFF REQUIREMENTS. When recruiting, training, managing, and retaining staff, the provider must:

(1) Recruit, train, manage, and retain qualified staff with the skills necessary to meet the needs of participants and respond to emergencies;

(2) Comply with the employee verification requirements of Neb. Rev. Stat. § 4-114;

(3) Only hire staff who are at least 18 years of age if they will be providing direct services alone;

(4) Obtain a National Criminal background check prior to working alone providing direct support to a participant, and annually thereafter, on all staff members, and subcontractors, if providing direct support to a participant, and, if in provider owned or operated residential settings, on household members age 18 and older;

(5) Obtain a check of the Central Registry of Child Protection cases and Adult Protective Services prior to working alone providing direct support to a participant, and annually thereafter, on all staff members, and subcontractors, if providing direct support to a participant, and, if in provider owned or operated residential settings, on household members age 13 and older;

(6) Obtain a check of the Nebraska State Patrol Sex Offender Registry prior to working alone providing direct support to a participant, and annually thereafter, on all staff members, and subcontractors, if providing direct support to a participant, and, if in provider owned or operated residential settings, on household members age 18 and older; and

(7) Retain results of registry or background checks for one year following the termination of the staff person’s employment.

003.01 EMPLOYEE BACKGROUND CHECKS. Employees who provide direct support services may not work alone with participants until the results of the registry checks and the criminal history background checks are reviewed by the provider. Background checks cannot be completed more than 180 calendar days before the staff person’s hire date. Employees listed on the Central Abuse and Neglect Registry, Nebraska State Patrol Sex Offender Registry, or who have been charged pending disposition or convicted of crimes set forth in this chapter may not provide direct support services.

003.02 CRIMES. The Department may, at its discretion, impose any of the types of discipline set forth in this chapter against a provider certification if the Department determines that the provider allowed employees or independent contractors who committed any of the crimes listed in 471 NAC 2 to work directly with participants. The Department deems a crime to have been committed when a conviction, admission, or substantial evidence of commission exists. In exercising its discretion, the Department considers the severity of the crime(s), the applicability of the crime(s) to the service(s) of the provider, the person's role within the provider entity, and the amount of time that has passed since the commission of the crime(s).

003.02(A) NOTIFICATION. All employees must notify the provider immediately if charged or convicted of any of the crimes listed above or if placed on any of the Department’s registries or State Patrol Sex Offender Registry.

003.03 STAFF TRAINING AND COMPETENCY. The provider must ensure that employees, including subcontractors and management, responsible for providing supports and services to individuals with developmental disabilities are trained on the minimum requirements necessary to address the individual’s needs prior to working with individuals in services.

003.03(A) COMPETENCY. Staff responsible for providing direct services must demonstrate the competence to support individuals as part of a required and on-going training program. The provider must ensure staff receive training and demonstrate competencies under the guidance of an already trained and proficient staff member prior to working alone with individuals.

003.03(B) RISK ENDORSEMENT TRAINING. For staff responsible for providing direct services to participants served under a Risk Endorsement, the provider must ensure staff receive training from the provider-employed clinician on the participant’s Individual Support Plan and any behavioral and safety plans and demonstrate competency in the implementation of these plans prior to working alone with a participant served under a risk endorsement.

003.03(C) DOCUMENTATION. The provider must document in the employee’s personnel record that required orientation and training was completed and competency was demonstrated. It is the responsibility of the provider to ensure that training and verification of such is completed by persons with expertise who are qualified by education, training, or experience in those areas.

003.03(D) INITIAL ORIENTATION REQUIREMENTS. Initial orientation must be completed by all new employees prior to working alone with individuals. Employees must complete the following training requirements:

(i) Individual’s choice;

(ii) Individual’s rights in accordance with state and federal laws;

(iii) Confidentiality;

(iv) Dignity and respectful interactions with individuals;

(v) Individual support plan and any medical, behavioral, or safety protocols for all participants to whom the staff provides direct services; and

(vi) Abuse, neglect, or exploitation and state law reporting requirements and prevention.

003.03(E) REQUIRED TRAINING. Employees must be trained to respond to injury, illness, and emergencies, and competency verified within 30 calendar days of hire or before working alone with an individual. The following training areas must be completed:

(i) Emergency procedures;

(ii) Cardiopulmonary resuscitation (CPR);

(iii) Basic first aid; and

(iv) Infection control.

003.03(F) IMPLEMENTATION. Employees must be trained and demonstrate competency within 180 calendar days of hire regarding the implementation of the provision of services to individuals. This training must include:

(i) Implementation and development of the individual support plan (ISP) and interdisciplinary process;

(ii) Positive support techniques;

(iii) Division approved emergency safety intervention techniques;

(iv) Concepts of habilitation, socialization, and age-appropriateness, depending on the needs of the individual;

(v) Use of adaptive and augmentative devices used to support individuals, as necessary;

(vi) Other training required by the provider; and

(vii) Other training as required by the specific service options.

003.03(G) DIRECT SERVICES REQUIREMENTS. For employees providing direct services to individuals served under a risk endorsement, all training requirements outlined in this chapter must be completed prior to working alone with a participant served under a risk endorsement.

003.03(H) VERIFICATION. Training and verification of competencies in the above areas must be conducted by persons with expertise who are qualified by education, training, or expertise in those areas.

003.03(H)(i) DEMONSTRATION OF COMPETENCY. Staff training and demonstration of competency must be documented and maintained by the provider, and must include:

(1) The training topic;

(2) Date staff attended training;

(3) Date competencies verified;

(4) Name of person conducting training; and

(5) Verification of competencies.

003.04 STAFF CREDENTIALS. The provider must maintain documentation of all current credentials of individuals providing services for which credentialing is required.

003.05 SUFFICIENT STAFF. The provider must at all times maintain enough persons providing services, supports, and supervision to meet the needs of each participant served.

003.06 STAFF RECORDS. All agency providers of services under the Developmental Disabilities Services Act must meet the staff records requirements in this section.

003.06(A) WORK RECORDS. The provider must maintain a record of hours worked by staff who provide direct services. The record must include the:

(i) Name of the staff person;

(ii) Staff person’s position title;

(iii) Date and specific time period worked; and

(iv) Location the staff person worked for the specified period of time.

003.06(B) EMPLOYMENT RECORDS. The provider must maintain a current employment record for each staff person. The record must include:

(i) Date of hire;

(ii) Initial and ongoing training;

(iii) Credentialing information, if applicable;

(iv) Background checks;

(v) Job qualifications; and

(vi) Personnel actions, if applicable.

004. QUALITY ASSURANCE AND QUALITY IMPROVEMENT (QA/QI). The provider must have a quality assurance and quality improvement (QA/QI) process. This process must include:

(1) Ongoing proactive internal review of the quality and individualization of services;

(2) Continuous quality review of the services provided; and

(3) The provider must provide evidence that participants served, and their families are involved in the quality assurance and quality improvement (QA/QI) process.

004.01 QUALITY ASSURANCE AND QUALITY IMPROVEMENT (QA/QI) STRUCTURAL COMPONENTS. The provider must create the structural components of the quality assurance

and quality improvement (QA/QI) process. The process must be applied on a provider-wide basis and include:

(A) Areas of services to be monitored and evaluated to determine the quality of these services through identification of patterns and trends of the provider services; and

(B) Provisions for reviewing quality assurance and quality improvement (QA/QI) policies and procedures at least annually and revising as needed.

004.02 QUALITY ASSURANCE AND QUALITY IMPROVEMENT (QA/QI) ACTIVITIES. The quality assurance and quality improvement (QA/QI) activities must result in:

(A) Identification and correction of problems and noncompliance with applicable requirements in a timely manner and on a provider-wide basis; and

(B) Use of information from reviews, results, and recommendations to correct problems, improve services to participants served, and revise policies and procedures, if necessary.

004.03 DOCUMENTATION OF QUALITY ASSURANCE AND QUALITY IMPROVEMENT (QA/QI) ACTIVITIES. The provider must maintain documentation of all quality assurance and quality improvement (QA/QI) activities, including the results of reviews, recommendations, action taken, effectiveness of action taken, review by the director and certified provider, and other relevant information.

History

Effective 2024-09-17

Chapter 5 Core Requirements for All Certified and Independent Providers of Services

Neb. Admin. Code tit. 404, ch. 5 Core Requirements for All Certified and Independent Providers of Services {#sec-404-nac-5 omnilex-key=us-ne-regs-official--title-404--404 NAC 5}

001. PROVIDER SERVICE STANDARDS . All certified agency providers and independent providers of services under Medicaid Home and Community-Based Services waivers must meet requirements established by the Department of Health and Human Services in this chapter.

001.01 Provider services are based on goals and needs identified in the participant’s individual support plan (ISP). The provider must:

(A) Participate in the individual support planning team;

(B) Provide services in accordance with the participant’s individual support plan (ISP);

(i) The participant is challenged to overcome barriers that result in the need for specialized services; and

(ii) The highest level of independence in all areas of community living is achieved;

(D) Develop strategies and supports that are:

(i) Based on prioritized needs;

(ii) Relevant to the individual support plan (ISP);

(iii) Functional;

(iv) Tailored to individual needs, and respectful of participant choice; and

(v) Documented in the individual support plan (ISP);

(E) Implement training and supports consistently in all settings, as the need arises and as opportunities occur;

(F) Encourage and reinforce incidental learning and appropriate behaviors;

(G) Provide activities and environments that facilitate acquisition of skills, appropriate behavior, greater independence, and personal choice;

(H) Accurately measure performance and modify training, supports, or both based on data and changes in the participant’s circumstances; and

(I) Monitor service delivery and address needs as they occur.

Participants with conditions that make further growth or development unlikely must receive training and supports designed to maintain skills and functioning and to prevent regression to the fullest extent possible.

001.02 NON-RESIDENTIAL LOCATION REQUIREMENTS. When a service is provided in a provider-controlled or operated setting outside of the participant’s home, the provider must provide services in a facility or location that:

(A) Is architecturally designed to accommodate the needs of the participant being served;

(B) Is accessible to the participant, clean, in good repair, free from hazards, and free of rodents and insects;

(D) Has an operable telephone and emergency numbers available;

(E) Has toilet facilities that are clean and in working order;

(F) Has eating areas and equipment that are clean and in good repair;

(G) Is free from fire hazards and contains working smoke detectors;

(H) Has the furnace and water heater located safely;

(I) Ensures any firearms on site are in a locked unit and inaccessible to the participant;

(J) Has an area that is inaccessible to participants in which medications, harmful chemicals, and poisons are stored; and

(K) If it has household pets, keeps the necessary vaccinations current.

001.03 RESPITE PROVIDERS. In addition to general provider standards, providers of respite services must:

(A) Be 18 years old or older, if certified provider staff, and 19 or older if an Independent Provider;

(B) Hold a current certification in basic first aid and cardiopulmonary resuscitation (CPR);

(D) Prepare and serve any appropriate meals and snacks to meet the participant’s dietary needs, as explained by the usual caregiver.

001.04 HOMEMAKER SERVICE PROVIDERS. In addition to general provider standards, providers of homemaker service must:

(A) Be 19 years old or older. If no provider age 19 or older is available and acceptable to the family, and the participant requests a younger provider, the Department may authorize a younger provider, considering the following:

(i) The capacity of the provider to meet the child’s needs in the case of an emergency; and

(ii) Which of the homemaker tasks will be authorized;

(B) Exercise reasonable caution and care in the family’s home and in the use of the family’s equipment, appliances, and supplies;

(D) Provide any tools or equipment necessary to perform authorized tasks or duties, if the family does not provide them; and

(E) If he or she is less than 19 years old and not emancipated, have the service provider agreement signed by his or her parent or legal guardian.

001.05 HOME MODIFICATION PROVIDERS. In addition to general provider standards, providers of home modification service must:

(A) Comply with applicable local and state building codes;

(B) Be appropriately licensed or certified persons, when applicable;

(C) Ensure all products and materials installed conform to specifications, unless blemished or reused building materials are stated in the cost estimate and prior approval;

(D) Accept responsibility for repair of all surfaces including furniture, walls, floor covering, doors, woodwork and trim, exterior pavement and yards, and equipment and fixtures affected during the course of constructions, to original or better condition;

(E) Warranty all work, materials, and products for a minimum of one year;

(F) Ensure any and all subcontractors’ work will conform to the terms and conditions of the home modification service contract;

(G) Accept sole responsibility for all work performed pursuant to the home modification service contract; and

(H) Have the service provider agreement signed by his or her parent or legal guardian, if the provider is less than 19 years old and not emancipated.

001.06 ASSESSMENTS. The provider must conduct assessments for each participant to obtain accurate and complete information related to the participant’s history, preferences, strengths, abilities, and needed services. The assessments must be the basis of development of the individual support plan (ISP). Assessments, as assigned to the provider, must be completed for each participant within 30 calendar days of entry to services. At least annually, the assessments must be reviewed and updated to reflect the participant’s current status.

001.07 INDIVIDUAL SUPPORT PLAN. The provider must participate in development of the annual individual support plan (ISP) and review the individual support plan (ISP), discussions, and decisions for accuracy. The provider must develop and implement programs and supports based on the individual support plan (ISP).

001.07(A) INDIVIDUAL SUPPORT PLAN TEAM PROCESS. The individual support plan (ISP) is developed through an individual support planning team process. The individual support planning team assigns responsibility for obtaining and providing services to meet the identified needs of the participant. The individual support planning team will get input from the participant and provider.

001.08 POSITIVE BEHAVIORAL SUPPORTS. In addressing the participant’s behaviors, the provider must:

(A) Develop and implement policies and procedures that emphasize positive approaches directed towards maximizing the growth and development of each participant;

(B) Develop an assessment that defines the communicative function of the behavior for the participant and focuses on what purpose the identified behavior serves in the participant’s life;

(C) Review the participant’s day supports, residential supports, and other relevant data and incorporate it in the assessment process;

(D) Develop a plan for the participant that emphasizes positive meaningful activities and options that are inconsistent with the behavior targeted for change;

(E) Plan a meaningful day that has individualized supports for the participant;

(F) Document potential stressors and triggers that may lead to the participant experiencing a crisis. Once identified, there must be a comprehensive safety plan developed and implemented;

(G) Conduct meaningful and individualized data collection and data analysis that tracks the progress of the participant. The data must be presented in a useful manner and collected through a range of methods that are valid and meaningful for planning and evaluation efforts; and

(H) Utilize data analysis and progress to adjust services to meet the participant’s needs.

001.09 NOTICE OF COSTS TO THE PARTICIPANT. The provider must develop and implement a system for notification to participants of any associated cost to the participant for services or items not funded by developmental disabilities services, and terms of payment. Written notice must be given to the participant before initiation of service and before any change, giving adequate time for the participant to respond to the notice. The notice must specify that participants will not be charged for services or items that are covered through other funding sources, including but not limited to, items necessary to provide habilitation and transportation related to habilitation.

001.10 HEALTH SERVICES. Unless otherwise assigned in the individual support plan (ISP), the provider must assist and support participants in obtaining health services and arrange for or assist the participant in obtaining evaluations consistent with his or her needs. Participant health services and evaluations include, but are not limited to:

(1) Physical exams;

(2) Dental services;

(3) Psychological services;

(4) Physical and occupational therapy;

(5) Speech therapy;

(6) Audiological services;

(7) Vision services;

(8) Nutrition therapy;

(9) A medical evaluation at the frequency determined appropriate by the participant’s treating medical provider;

(10) A dental evaluation at the frequency determined appropriate by the participant’s treating dental provider;

(11) Medication administration and monitoring;

(12) Medical services;

(13) Nutritional services;

(14) Health monitoring and supervision;

(15) Assistance with personal care;

(16) Personal health care and education;

(17) Exercise; and

(18) Other therapies.

001.10(A) OBSERVING AND REPORTING. Regardless of whether the provider has been assigned the responsibility of obtaining health services for the participant, the provider must observe, report, and respond to the participant’s health status and physical conditions, in a timely and appropriate manner, as needed.

001.11 DISASTER PREPAREDNESS AND MANAGEMENT. The provider must establish and implement disaster preparedness plans and procedures to ensure that participants’ care, safety, and well-being are provided and maintained during and following instances of natural or other disasters, disease outbreaks, or other similar situations. These plans and procedures must address and delineate:

(A) How the provider will maintain the proper identification of each participant to ensure that care coincides with the participant’s needs;

(B) How the provider will move participants to points of safety or provide other means of protection when all or part of the building is damaged or uninhabitable due to natural or other disaster;

(C) How the provider will protect participants during the threat of exposure to the ingestion, absorption, or inhalation of hazardous substances or materials;

(D) How the provider will provide food, water, medicine, medical supplies, and other necessary items for care in the event of a natural or other disaster; and

(E) How the provider will provide for the comfort, safety, and well-being of participants served in the event of 24 or more consecutive hours of:

(i) Electrical or gas outage;

(ii) Heating, cooling, or sewer system failure; or

(iii) Loss or contamination of water supply.

002. TRANSPORTATION . If the provider transports participants, the provider must ensure that all participants are transported in a safe and comfortable manner that meets the needs of each participant. The provider must:

(A) Use vehicles adapted to meet the needs of the participants;

(B) Take adequate measures to provide a sufficient number of staff in the vehicle to ensure safety and to meet the needs of each participant being transported; and

(i) Have a valid driver’s license with the appropriate class code;

(ii) Assist participants into and out of vehicles and to and from parking places, as appropriate; and

(iii) Have received training in first aid, cardiopulmonary resuscitation (CPR), and in meeting the needs of the specific participants for whom transportation is provided.

003. COMPLAINTS AND GRIEVANCES . The provider must promptly address complaints and grievances filed with the provider on behalf of participants served. The provider’s process to address complaints and grievances must:

(A) Be made available to participants, legal representatives, staff, and other representatives. Utilization of the provider’s process is voluntary and is not meant to deny or delay a participant’s right to file a complaint elsewhere or to access the legal system;

(B) Be convenient to the participant;

(D) Be reviewed by the provider with the participant and his or her legal representative, where applicable; and

(E) Include the right to access the court system.

The provider must maintain documentation of the receipt of all complaints and grievances, the resolution, and the response to the complainant.

004. ABUSE AND NEGLECT . The provider must develop and implement a system to detect and prevent abuse or neglect and to handle allegations or suspicions of abuse, neglect, or exploitation. The provider must:

(A) Establish a definition of abuse or neglect that is consistent with these regulations;

(B) Establish a process and timelines for prompt and accurate reporting of allegations or suspicions of abuse or neglect to appropriate outside authorities that is in accordance with applicable law;

(C) Have measures and timelines for reporting of allegations or suspicions of abuse or neglect to appropriate provider administrative staff; the legal representative, if appropriate; and the service coordinator;

(D) Conduct a timely, thorough, and objective investigation of all allegations or suspicions of abuse or neglect, including protection of participants during the investigation;

(E) Establish a process for disciplinary action taken when staff are found to have engaged in abusive or neglectful behavior; and

(F) Take appropriate corrective or disciplinary action in response to the investigation. As part of this action, the provider must:

(i) Complete a review, by the director of the entity or designee, of all allegations or suspicions, and investigations and make decisions on the action to be taken;

(ii) Identify the means to lessen the likelihood of further incidents if the allegation or suspicion is substantiated; and

(iii) Document the allegation or suspicion, investigation, conclusion, action taken, and means to prevent further incidents.

005. CONFIDENTIALITY . The provider must protect the confidentiality of each participant’s information, including verbal, electronic, and written forms. Participant information must be protected regardless of the form or storage method of the records. Participant information may not be released without valid legal consent except as otherwise provided by law.

005.01 The provider must specify the method and frequency for obtaining authorizations for medical treatment and consents.

006. RECORD KEEPING . The provider must maintain accurate, current, and complete administrative records and records specific to participants in services.

006.01 PARTICIPANT RECORDS. The participant’s records must contain information that includes, but is not limited to:

(A) Date of entry into services with the provider;

(B) Name, gender, and birth date of the participant;

(D) The language or means of communication utilized by the participant;

(E) Legal status of participant, and name, telephone number, and address of guardian, if applicable;

(F) Name, phone number, and address of persons to contact in an emergency;

(G) Name, phone number, and address of the participant’s current personal physician and other health care professionals, if applicable;

(H) Relevant medical information including but not limited to: history of seizures, illness, physician orders, treatments, medications, medication history, known allergies, immunizations, physician contacts, emergency room visits, dental visits, counseling visits, and hospitalizations;

(I) Records of incidents and accidents;

(J) Consents as appropriate;

(K) Records of emergency safety intervention usage and the rationale for use;

(L) Individual support plan (ISP);

(M) Documentation of delivery of services and supports;

(N) The participant’s rights notification;

(O) Notice of charges;

(P) Name of service coordinator and phone number;

(Q) Accounting of the participant’s funds, if managed by provider;

(R) Notification of termination of services with the provider, if applicable; and

(S) Social history information.

006.02 ADMINISTRATIVE AND PARTICIPANT RECORD KEEPING REQUIREMENTS. The provider must keep administrative and participant records that:

(A) Have time frames for the completion, routing, and filing of all records or documents as required and as appropriate to the participant;

(B) Are sufficient, current, and accurate to verify the delivery of services and comply with state and federal laws and regulations; and

(C) Are dated, legible, and clearly identify the person making the entry. In the case of electronic records, signatures may be replaced by an approved, uniquely identifiable electronic equivalent.

006.03 RECORD MAINTENANCE REQUIREMENTS. Providers must maintain, for six years, records relating to the participant and the provision of services.

007. RESTRICTIVE MEASURES . To the fullest extent possible, a participant’s rights may not be suspended or restricted. If a restrictive measure is necessary:

(A) The restrictive measure determined necessary for one participant must not unreasonably affect other individuals who receive services in that setting;

(B) The restrictive measure must not be used as punishment, for the convenience of staff, due to a shortage of staff, as a substitute for habilitation, or as an element of a positive behavior support plan;

(D) There must be a goal of reducing and eliminating the restrictive measure;

(E) Prior to proposing a restrictive measure, there must be documented evidence that other less restrictive methods had been applied by trained staff and failed, unless a participant’s behavior resulted in an immediate and serious threat to the health and safety;

(F) The participant or their legal representative, if applicable, must give consent to the restrictive measure;

(G) The restrictive measure must be safe for the participant; and

(H) The restrictive measure must be documented in the participant’s individual support plan (ISP).

007.01 REVIEW AND APPROVAL OF RESTRICTIVE MEASURE. Prior to implementation of a restrictive measure, the provider must ensure review and approval by the individual support planning team and rights review committee, except where the provider is not required under this Title to have a rights review committee.

007.02 RESTRAINTS. The use of mechanical and physical restraints is prohibited unless required by law.

007.02(A) EMERGENCY SAFETY INTERVENTION. An emergency safety intervention is allowed to respond to an emergency safety situation. The provider must document all incidents of emergency safety interventions and give the documentation to the participant’s individual support planning team and provider rights review committee to review that the emergency safety intervention was appropriate rather than an instance of mechanical or physical restraint.

007.02(B) EXCEPTION. Devices used to provide support for the achievement of functional body position or proper balance, and devices used for specific medical and surgical (as distinguished from behavioral) treatment are not considered restraints.

007.02(C) PROHIBITED METHOD. The provider must prohibit the use of:

(i) Mechanical restraint;

(ii) Physical restraint, except when used as emergency safety intervention;

(iii) Chemical restraint;

(iv) Aversive stimuli;

(v) Corporal punishment;

(vi) Seclusion;

(vii) Verbal abuse;

(viii) Physical abuse;

(ix) Emotional abuse;

(x) Denial of basic needs;

(xi) Discipline;

(xii) Implementation of an intervention of a participant in services by another participant in services; or

(xiii) Other means of intervention that results in, or is likely to result in injury to the participant.

History

Effective 2022-11-19

Chapter 6 Provider Data Collection and Reporting

Neb. Admin. Code tit. 404, ch. 6 Provider Data Collection and Reporting {#sec-404-nac-6 omnilex-key=us-ne-regs-official--title-404--404 NAC 6}

001. DATA COLLECTION AND REPORTING . Each provider must maintain data, statistics, schedules, reports, and other information as required by the Department.

001.01 PROVISION OF INFORMATION. The provider must, upon request, submit data, statistics, schedules, reports, and any other requested information to the Department.

002. DEPARTMENT ACCESS . Each provider must allow access to records, must provide copies of documents upon request, and must allow access to the provider’s operations for on-site review by the Department.

003. FISCAL ACCOUNTABILITY . Each provider must have fiscal and budgetary financial systems that provide accounting for funds received from the Department. Fiscal accountability must be consistent with generally accepted accounting principles and standards acceptable to the Department.

003.01 ACCOUNTING RECORDS. The provider must maintain accounting records that allow the provider to:

(A) Produce a complete annual financial report in a format specified by the Department;

(B) Provide copies of source documents and work papers;

(i) Are prepared at the end of each pay period;

(ii) Show the employee’s:

(1) Name;

(2) Position title or description;

(3) Gross salary;

(4) Taxes; and

(5) All other deductions or contributions;

(iii) Are the final, approved copies;

(iv) Document when personnel are compensated in whole or in part with room and board; and

(v) Show charges for employee benefits;

(D) Maintain itemized records of:

(i) Expenditures for technical assistance;

(ii) Cost of the operation of programs;

(iii) Rent;

(iv) Equipment leasing expenses; and

(v) Maintenance costs for facilities and services; and

(E) Maintain accounting records in sufficient detail to allow for the calculation of the cost of each service provided;

(F) Identify costs that are not allowed for consideration by Center for Medicaid and Children’s Health Insurance Program (CHIP) Services for rate setting purposes, including costs associated with the provision of room and board for participants; and

(G) Identify transactions between the provider and a related party.

004. ANNUAL AUDIT OF CERTIFIED PROVIDERS . The certified provider must contract with a certified public accountant licensed to practice in the State of Nebraska for an annual independent audit of its financial operations. This audit must be conducted using generally accepted auditing standards acceptable to the Department. A certified provider is exempt from the annual audit requirement described in this paragraph if the certified provider’s gross receipts from Medicaid Home and Community Based Services developmental disabilities waiver program payments for its fiscal year are less than $1,500,000.00. A certified provider must comply with the annual audit requirement for any fiscal year in which its gross receipts from Medicaid Home and Community Based Services Developmental Disabilities Waiver program payments equal or exceed $1,500,000.00.

004.01 AUDIT REPORT. The certified provider must submit the required audit report, if any, to the Department within 180 calendar days after the end of the provider’s first full fiscal year, and for every fiscal year thereafter unless otherwise exempt. At a minimum, the audit report must include:

(A) A review of receipts and disbursements;

(B) A review of cash control procedures;

(D) An accounting of all lease agreements and mortgages and, if requested by the Department, a copy of any such documents;

(E) A review of the cash balance on hand at the beginning and at the end of the fiscal year;

(F) A disclosure of all related party transactions, or a statement attesting that no such transactions were found;

(G) A disclosure of all deficiencies in internal control over financial reporting identified during the audit; and

(H) An accounting of all business lines of credit for which the provider is approved at the end of its fiscal year.

005. COMPLIANCE AUDITS . All providers must permit the Department, the U.S. Department of Health and Human Services, and any other duly authorized agent or governmental agency to perform audits or inspections, or both, of its records.

005.01 The provider must retain all financial records, supporting documents, statistical records, and all other records as directed by the Department. The provider must retain such records in a format acceptable to the Department.

005.02 The provider may be required to prepare and submit a plan to the Department to address audit findings.

005.03 The certified provider may establish a fiscal year for accounting purposes, but if the provider does not establish a fiscal year the Department will presume the provider’s fiscal year is July 1 through June 30 for purposes of enforcing the requirements of this chapter

005.04 Failure to comply with the requirements imposed upon certified providers in this chapter may result in reduction in or reimbursement of funds, or disciplinary action or termination of certification as provided for in 404 NAC 4, or other applicable law or regulation.

History

Effective 2022-11-19

Neb. Admin. Code tit. 404 — Developmental Disabilities Services

Chapter 1 Scope and Authority

Neb. Admin. Code tit. 404, ch. 1 Scope and Authority {#sec-404-nac-1 omnilex-key=us-ne-regs-official--title-404--404 NAC 1}

Chapter 2 Definitions

Neb. Admin. Code tit. 404, ch. 2 Definitions {#sec-404-nac-2 omnilex-key=us-ne-regs-official--title-404--404 NAC 2}

Chapter 3 Eligibility and Authorization

Neb. Admin. Code tit. 404, ch. 3 Eligibility and Authorization {#sec-404-nac-3 omnilex-key=us-ne-regs-official--title-404--404 NAC 3}

Chapter 4 Certification Requirements for Certified Providers of Services

Neb. Admin. Code tit. 404, ch. 4 Certification Requirements for Certified Providers of Services {#sec-404-nac-4 omnilex-key=us-ne-regs-official--title-404--404 NAC 4}

Chapter 5 Core Requirements for All Certified and Independent Providers of Services

Neb. Admin. Code tit. 404, ch. 5 Core Requirements for All Certified and Independent Providers of Services {#sec-404-nac-5 omnilex-key=us-ne-regs-official--title-404--404 NAC 5}

Chapter 6 Provider Data Collection and Reporting

Neb. Admin. Code tit. 404, ch. 6 Provider Data Collection and Reporting {#sec-404-nac-6 omnilex-key=us-ne-regs-official--title-404--404 NAC 6}

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