Chapter 46. Home and Community-Based Services Waiver for Individuals with Brain Injury
Regulation .01 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Applicant” means an individual who is applying as a participant in the BI waiver.
(2)
“Behavior intervention” means services designed to assist individuals who exhibit challenging behaviors in acquiring skills, gaining social acceptance, and becoming full participants in the community, consistent with behavior support services program service plans set forth in COMAR 10.22.10.
(3)
“Behavioral Health Administration (BHA)” means the administration of the Department that:
(a)
Is charged with the responsibility for providing services to individuals with behavioral health conditions as defined by Health-General Article, Title 10, Annotated Code of Maryland;
(b)
Is designated as the State’s lead agency for service delivery to individuals with brain injury; and
(c)
Manages the BI waiver, in collaboration with the Program and in accordance with a memorandum of agreement signed with the Program.
(4)
“Brain injury (BI)” means an insult to the brain caused by an external or internal mechanism that occurs after birth and is not related to congenital or degenerative disease, which results in cognitive, physical, behavioral, or emotional disability that is documented in the medical record.
(5)
“CARF” means the Commission on Accreditation of Rehabilitation Facilities, a nonprofit accrediting body which promotes quality, value, and optimal outcomes of services through a consultative accreditation process that centers on enhancing the lives of individuals receiving services.
(6)
Case Management.
(a)
“Case management” means the services provided by a case manager who assists an individual in gaining access to needed medical, social, educational, and other services.
(b)
“Case management” includes assessment, referral, coordination, and monitoring of the plan of care.
(7)
“Case manager” means an individual who provides administrative case management services for BI waiver participants.
(8)
“Day habilitation” means assistance with acquisition, retention, or improvement in self-help, socialization, and adaptive skills which takes place in a nonresidential setting, separate from the home or facility in which the individual resides, normally furnished 4 or more hours per day.
(9)
“Department” means the Maryland Department of Health as stated in COMAR 10.09.36.01B, or its authorized agents acting on behalf of the Department.
(10)
“Eligible individual” means an individual who is determined to meet the qualifications for participation in the BI waiver as specified in Regulation .03 of this chapter.
(11)
“Health care professional” means an individual who is licensed and authorized by the Health Occupations Article to provide the health service for which the individual is privileged.
(12)
Home and community-based services waiver for individuals with brain injury (BI waiver) means the program implemented under this chapter.
(13)
“Individual support services (ISS)” means assistance with acquisition, retention, or improvement in skills related to self-help, socialization, and/or adaptive skills furnished in the participant's home or community by a provider who does not have round-the-clock responsibility for the participant's health and welfare.
(14)
“Medical day care” means medically supervised, health-related services provided in an ambulatory setting to medically handicapped individuals who, due to their degree of impairment, need health maintenance and restorative services supportive to their community living in accordance with COMAR 10.09.07.
(15)
“Nursing facility level of care” means an assessment that an individual needs the level of services provided in a nursing facility, as defined in COMAR 10.09.10.01.
(16)
“Participant” means an eligible individual who is enrolled in the BI Waiver.
(17)
“Program” means the Medical Assistance Program, as stated in COMAR 10.09.36.01B, which exercises administrative discretion in the administration and supervision of the BI waiver and issues policies, rules, and regulations related to the BI waiver.
(18)
“Provider” means an individual or an agency that:
(a)
Is approved by the BHA and the Program as meeting the conditions for waiver participation specified in Regulations .05 and .06 of this chapter; and
(b)
Has enrolled with the Program to provide one or more of the waiver services described under Regulations .07—.09 of this chapter.
(19)
“Provider agreement” means a contract between the Program and a provider to provide services to waiver participants.
(20)
“Residential habilitation” means assistance with acquisition, retention, or improvement in skills related to activities of daily living and the social and adaptive skills necessary to enable the individual to live in a noninstitutional setting.
(21)
“Room and board” means rent or mortgage, utilities, maintenance, furnishings, and food, which are provided in or associated with an individual's place of residence.
(22)
“State Plan” means a comprehensive, written commitment by a State Medicaid agency, submitted under §1902(a) of Title XIX of the Social Security Act and approved by the federal Centers for Medicare and Medicaid Services, to administer or supervise the administration of the Medical Assistance Program in accordance with federal requirements.
(23)
“Supported employment” means activities needed to support paid work by individuals receiving waiver services, including supervision and training.
(24)
“Utilization control agent” means the organization responsible for reviewing services to determine medical necessity according to professional standards and for conducting patient assessments.
(25)
“Virtual supports” is an electronic method of service delivery used to maintain or improve a participant’s functional abilities, enhance interactions, support meaningful relationships, and promote their ability to live independently and meaningfully participate in their community.
(26)
“Waiver plan of care” means a participant's written, individualized care plan as specified in Regulation .04 of this chapter.
Regulation .02 Medical Assistance Eligibility.LinkCopy Citation
A.
Financial eligibility for waiver participants is determined according to the provisions of this regulation and applicable sections of COMAR 10.09.24 Medical Assistance Eligibility, as cited in this section.
B.
Categorically Needy. An individual is eligible for waiver services as categorically needy if the individual is receiving Medical Assistance as:
(1)
A recipient of Supplemental Security Income (SSI);
(2)
A member of a low income family with children, as described in §1931 of the Social Security Act; or
(3)
A recipient eligible in another mandatory or optional categorically needy coverage group with full Medical Assistance benefits, covered in the community under the State Plan.
C.
Optionally Categorically Needy.
(1)
An individual is eligible for waiver services as optionally categorically needy in accordance with 42 CFR §435.217, if the individual's countable income does not exceed 300 percent of the applicable payment rate for SSI, and the individual's countable resources do not exceed the SSI resource standard for one person.
(2)
For the purpose of determining financial eligibility for the optionally categorically needy, the individual is treated as an assistance unit of one person.
(3)
For the purpose of determining countable income for the optionally categorically needy, income is determined based on the income rules set forth in COMAR 10.09.24, which are applicable to an aged, blind, or disabled individual who is institutionalized, with the exceptions specified in §C(9) of this regulation.
(4)
For the purpose of determining countable resources for the optionally categorically needy, resources are determined based on the resource rules set forth in COMAR 10.09.24, which are applicable to an aged, blind, or disabled person who is institutionalized, with the exceptions specified in §C(9) of this regulation.
(5)
An individual is not eligible to receive waiver services if a disposal of assets or establishment of a trust or annuity results in a penalty under COMAR 10.09.24, until the penalty time expires.
(6)
The spousal impoverishment rules at COMAR 10.09.24.10-1 are applicable, except for the following differences in definitions:
(a)
“Community spouse” means an individual who:
(i)
Lives in the community outside a medical institution;
(ii)
Is not determined to meet the criteria for participation in the Waiver for Individuals with Brain Injury or any other waiver under §1915(c) of Title XIX of the Social Security Act; and
(iii)
Is married to an institutionalized spouse.
(b)
“Continuous period of institutionalization” means:
(i)
At least 30 consecutive days of institutional care in a nursing facility or other medical institution; or
(ii)
A determination that a spouse meets the criteria for participation in the waiver for individuals with brain injury or any other waiver under §1915(c) of Title XIX of the Social Security Act.
(c)
“Institutionalized spouse” means an individual who is married to a community spouse and who is:
(i)
An inpatient in a nursing facility or other medical institution with a length of stay exceeding 30 days; or
(ii)
Determined to meet the criteria for participation in the waiver for individuals with brain injury or any other waiver under §1915(c) of the Social Security Act.
(7)
Medical Assistance eligibility shall be redetermined at least every 12 months.
(8)
As part of the determination and redetermination of Medical Assistance eligibility as optionally categorically needy, the Department of Human Services shall determine whether the applicant or recipient is eligible as a disabled person in accordance with COMAR 10.09.24.05E, unless the applicant or recipient is aged, blind, or has been determined as disabled by the Social Security Administration.
(9)
All provisions of COMAR 10.09.24 which are applicable to an aged, blind, or disabled individual who is institutionalized are applicable to waiver applicants and participants who are considered as optionally categorically needy, with the following exceptions in full or in part:
(a)
COMAR 10.09.24.04J(1)—(3);
(b)
COMAR 10.09.24.04K;
(c)
COMAR 10.09.24.06B(2)(a)(ii);
(d)
COMAR 10.09.24.08G(1);
(e)
COMAR 10.09.24.08H;
(f)
COMAR 10.09.24.09;
(g)
COMAR 10.09.24.10;
(h)
COMAR 10.09.24.10-1; and
(i)
COMAR 10.09.24.15A-2(2).
(10)
Home Exclusion. The home, as defined in COMAR 10.09.24.08B, is not a countable resource under §C of this regulation if it is occupied by the waiver applicant or participant, the applicant's or participant's spouse, or any one of the following relatives who are medically or financially dependent on the applicant or participant:
(a)
Child;
(b)
Parent; or
(c)
Sibling.
D.
Posteligibility Determination of Available Income for Optionally Categorically Needy. Participants in the waiver for individuals with brain injury are not required to pay towards their cost of care, and therefore they are not subject to a posteligibility determination of available income.
E.
Medically Needy. An individual is not eligible for waiver services if the individual is receiving Medical Assistance as a medically needy person in accordance with COMAR 10.09.24.03D.
Regulation .03 Participant Eligibility.LinkCopy Citation
A.
Medical Eligibility for the Waiver.
(1)
To be medically eligible for the services covered under this chapter, an applicant shall be certified by the Program's utilization control agent to need nursing facility level of care or special hospital level of care.
(2)
Every 12 months, or more frequently if determined necessary by the BHA or Program due to a significant change in the participant's condition or need, a participant's medical need for nursing facility level of care or special hospital level of care shall be reevaluated by the Program's utilization control agent.
B.
Technical Eligibility for the Waiver. An applicant or participant shall be determined by the BHA, using the form for determination of eligibility for BI waiver services, to meet the waiver's technical eligibility criteria if the individual:
(1)
Is 22 years old or older but younger than 65 years old at the time of initial admission to the waiver;
(2)
Is diagnosed with brain injury as defined in Regulation .01B(4) of this chapter by a qualified physician;
(3)
Was 18 years old or older when the brain injury was sustained;
(4)
Is receiving:
(a)
Care in a State psychiatric hospital that is determined to be inappropriate because the individual does not need that level of care;
(b)
Brain injury community placement funded by the BHA with all-State funds;
(c)
Care in a nursing facility owned and operated by the State or an out-of-State rehabilitation institution funded by the Program; or
(d)
Care in a Maryland licensed special hospital for chronic disease accredited by CARF in brain injury inpatient rehabilitation;
(5)
Is not enrolled in another waiver program under §1915(c) of Title XIX of the Social Security Act;
(6)
Is clinically appropriate to be served in the waiver program and the waiver plan of care can serve the individual safely in the community;
(7)
Chooses directly, or a legal representative chooses on the individual's behalf, to receive waiver services as an alternative to services in a nursing facility or special hospital, and documents that choice on the consent form for BI waiver services included in the approved waiver proposal;
(8)
Costs the Program no more in the community than what the individual would have cost the Program in the alternative institutional placement at the nursing facility level of care or special hospital level of care, as demonstrated on the waiver plan of care and by the Program's paid claims; and
(9)
Uses at least one waiver service in a 12 month period.
C.
Financial Eligibility for Medicaid. Waiver participants shall qualify for one of the categories of assistance set forth in Regulation .02 of this chapter.
D.
During a 12-month waiver year, as defined in the approved waiver proposal, eligible individuals shall be enrolled in the waiver up to the maximum number of unduplicated participants established for that waiver year in the approved waiver proposal.
E.
Overall Waiver Eligibility.
(1)
Using the form for determination of eligibility for BI waiver services, if an applicant is determined by the BHA:
(a)
To meet all of the criteria specified in §§A—C of this regulation, the BHA or its authorized representatives shall sign and date the form to certify waiver eligibility and establish the effective date for waiver enrollment; or
(b)
Not to meet all of the criteria specified in §§A—C of this regulation:
(i)
The BHA or its authorized representatives shall sign and date the form to certify waiver ineligibility determination and specify in writing the reason or reasons for the determination; and
(ii)
The applicant or legal representative shall be informed of the determination and the right to appeal and request a fair hearing, in accordance with COMAR 10.01.04 and 42 CFR Part 431, Subpart E.
(2)
Every 12 months, or more often if there is a significant change in the participant's condition or needs:
(a)
The BHA and the Program's utilization control agent shall reevaluate whether the participant remains eligible for the waiver by meeting all of the criteria specified in §§A—C of this regulation;
(b)
The BHA or its authorized representatives shall sign and date the form for determination of eligibility for BI waiver services to certify the redetermination of waiver eligibility; and
(c)
If the BHA determines that the participant no longer meets all of the eligibility criteria specified in §§A—C of this regulation, the:
(i)
Participant's eligibility shall be terminated, as of the effective date established by the BHA; and
(ii)
The participant or legal representative shall be informed of the determination and the right to appeal and request a fair hearing, in accordance with COMAR 10.01.04 and 42 CFR Part 431, Subpart E.
F.
Cause for Termination of a Participant's Waiver Enrollment.
(1)
A participant shall be disenrolled from the waiver, as of the date established by the Department, if the participant:
(a)
No longer meets all of the criteria for waiver eligibility specified in §§A—C of this regulation;
(b)
Voluntarily chooses, or the participant's legal representative chooses on the participant's behalf, to disenroll from the waiver;
(c)
Is an inpatient for more than 30 days in a State psychiatric hospital, nursing facility, or intermediate care facility for individuals with intellectual disabilities or persons with related conditions (ICF/IID);
(d)
Moves to another state; or
(e)
Dies.
(2)
Reentering the Waiver. If a participant is discharged from the waiver, the same individual may reenter the waiver during the same waiver year, if the individual meets all eligibility requirements of the waiver.
(3)
The participant or legal representative shall be informed of the determination and the right to appeal and request a fair hearing, in accordance with COMAR 10.01.04 and 42 CFR Part 431, Subpart E.
Regulation .04 Program Model.LinkCopy Citation
A.
The program services and supports shall:
(1)
Maximize the level of functioning of an individual with BI through assistance and support with independent living, self care skills, and social skills in an environment which encourages the participant's ability to make decisions about the individual's life and create opportunities for choice regarding home, school or work, and community activities;
(2)
Promote the use of community resources to integrate the individual into the community;
(3)
Provide services that are:
(a)
Appropriate to the age of the populations being served;
(b)
Offered at times and places suitable to the individuals served; and
(c)
Coordinated by BHAs administrative case manager with other medical rehabilitation, mental health, and primary care services that the individual is receiving; and
(4)
Assure that staff are available, on call, 24 hours per day, 7 days per week.
B.
Development of the Initial Waiver Plan of Care. Before the start of waiver services:
(1)
A case manager shall meet with the participant or the participant's legal representative, in person or remotely, to develop the initial waiver plan of care;
(2)
The case manager, the participant, or the participant's legal representative shall sign the waiver plan of care to indicate approval of its recommendations; and
(3)
The BHAs authorized representative shall review the initial waiver plan of care and sign to indicate approval if the plan of care is determined to be:
(a)
Sufficient to assure the participant's health and safety and meet the participant's needs in a community-based setting;
(b)
Feasible according to the specifications in the waiver plan of care; and
(c)
Individually cost-neutral by costing the Program no more for the participant's waiver and other Program services than the participant would have cost the Program in the alternative nursing facility or special hospital setting.
C.
Waiver Plan of Care.
(1)
The participant's waiver plan of care:
(a)
Preauthorizes the specific waiver services to be provided to the participant, as covered under Regulations .07—.09 of this chapter;
(b)
Is documented on the waiver plan of care form included in the approved waiver proposal;
(c)
Specifies for each preauthorized waiver service the following information, as appropriate:
(i)
Description of the specific service to be provided;
(ii)
Level of service;
(iii)
Service start date;
(iv)
Estimated duration;
(v)
Approved frequency and units of service to be delivered;
(vi)
Approved service delivery mode;
(vii)
The provider for that service, if known; and
(viii)
Estimated unit costs and monthly costs;
(d)
Describes other Program services recommended for the participant;
(e)
Evaluates the participant's total costs to the Program, to ensure the participant's cost-neutrality as compared to the cost to the Program for the individual in the alternative nursing facility or special hospital setting; and
(f)
Is subject to the BHAs approval.
(2)
A participant shall be given freedom of choice among all qualified and available providers for each service included in the participant's waiver plan of care.
D.
Periodic Review of the Waiver Plan of Care.
(1)
At least every 12 months or more frequently if determined necessary by the BHA:
(a)
A case manager and the participant or the participant's legal representative shall review the waiver plan of care and revise it as necessary;
(b)
The case manager and the participant or the participant's legal representative shall sign the waiver plan of care, as revised, to indicate approval of its recommendations; and
(c)
The BHA or its authorized representative shall review the revised waiver plan of care, and if the plan of care is determined to meet all of the criteria specified in §C(3) of this regulation, sign to indicate approval.
(2)
Periodic reviews and updates shall take place to:
(a)
Determine the appropriateness and adequacy of the participant's services; and
(b)
Ensure that the furnished services are consistent with the services needed for the participant's disability.
Regulation .05 Conditions for Provider Participation — General.LinkCopy Citation
General requirements for participation in the Medical Assistance Program as a provider of BI waiver services are that the provider, with the exception of a medical day care provider, shall:
A.
Be approved by the BHA as meeting the requirements and able to provide the services specified in this chapter;
B.
Have a provider agreement in effect;
C.
Meet all the conditions for participation in COMAR 10.09.36, except as otherwise specified in this chapter;
D.
Have demonstrated experience in the provision of services to individuals with BI as evidenced by:
(1)
Having:
(a)
A history of serving individuals with brain injury for at least the past 2 years;
(b)
A program of specialized services appropriate for the needs of individuals with brain injury; and
(c)
Availability of licensed healthcare professionals with experiences in the provision of services to individuals with brain injury to supervise, train, or consult with program staff regarding the needs of waiver participants; or
(2)
Accreditation by CARF for the provision of brain injury services;
E.
Verify the licenses or credentials of all agencies and individuals who render services on the provider's behalf under this chapter, and have a copy of the licenses or credentials available for inspection;
F.
Assure that direct care workers who render services under this chapter:
(1)
Receive oversight from an appropriately licensed or certified health care professional; and
(2)
Are determined by the provider as qualified to meet the participants' needs;
G.
Provide an annual continuing education program approved by BHA for all staff working with waiver participants on the needs of individuals with BI that may include:
(1)
Types of brain injury;
(2)
Behavioral, emotional, cognitive, and physical changes after brain injury; and
(3)
Strategies for compensation and remediation of deficits caused by a brain injury;
H.
Provide services in accordance with the requirements of Regulation .04 of this chapter and all applicable federal, State, and local laws and regulations;
I.
Agree to provide and bill BHA or its authorized representative for only those services covered under this chapter which have been preauthorized in the participant's waiver plan of care;
J.
Be ineligible to participate in the BI Waiver if the provider or any of its current or previous principals have overpayments that remain due and owing to the Department;
K.
Provide services in person, except as authorized by the Department; and
L.
If providing services via virtual supports, comply with the requirements established in Regulation .09-1 of this chapter.
Regulation .06 Conditions for Provider Participation — Specific.LinkCopy Citation
A.
Provider of Residential Habilitation or Rehabilitation Services. To provide the services covered under Regulation .07 of this chapter, the provider agency shall:
(1)
Operate a community-based program of residential habilitation or rehabilitation services that is licensed by the Department's Office of Health Care Quality under COMAR 10.22.08 for the Community Residential Services Program;
(2)
Meet the participant's needs for room and board and clothing, although these services are not reimbursed by the Program; and
(3)
If the facility is covered by §1616(e) of the Social Security Act, comply with applicable State standards that meet the requirements of 45 CFR Part 1937 for board and care facilities.
B.
Provider of Day Habilitation Services. To provide the services covered under Regulation .08 of this chapter, the provider agency shall operate a community-based program of day habilitation services that is licensed by the Department's Office of Health Care Quality under COMAR 10.22.07, Vocational and Day Services Program Service Plan.
C.
Provider of Supported Employment Services. To provide the services covered under Regulation .09 of this chapter, the provider agency shall operate a community-based program of supported employment services that is:
(1)
Licensed by the Department's Office of Health Care Quality under COMAR 10.22.07, Vocational and Day Services Program Services Plan; or
(2)
Approved by the Department's Office of Health Care Quality under COMAR 10.21.28, Mental Health Vocational Programs.
D.
Provider of Individual Support Services. To provide the services covered under Regulation .09-1 of this chapter, the provider agency shall operate a community-based program of individual support services that is licensed by the Department's Office of Health Care Quality under COMAR 10.22.06 for Family and Individual Support Services.
E.
Provider of Medical Day Care Services.
(1)
To provide the services covered under Regulation .09-2 of this chapter, the provider shall meet the:
(a)
Licensure requirements as provided in COMAR 10.12.04; and
(b)
Requirements of COMAR 10.09.07.
(2)
Medical day care providers are not required to meet the conditions of Regulation .05 of this chapter.
Regulation .07 Covered Services — Residential Habilitation Services.LinkCopy Citation
A.
The residential habilitation services covered under this regulation shall be provided in a community-based residential facility.
B.
The covered services shall include:
(1)
Habilitative services to assist a participant in acquiring, regaining, retaining, or improving the self-help skills related to activities of daily living and the socialization and adaptive skills which are necessary to reside successfully in home and community-based settings;
(2)
Supervision and support, up to 24 hours a day, in a residence, based on the individual's plan of care; and
(3)
Any of the following additional services which are medically necessary to prevent the participant's institutionalization and are not otherwise covered for the participant by the Program or another payer:
(a)
Nursing supervision, in accordance with the Maryland Nurse Practice Act and COMAR 10.27.11 for any medication administration or other delegated nursing functions provided to the participant in the residence by a direct care worker; and
(b)
Behavior intervention services.
C.
The residential habilitation services provider shall provide daily coordination of the participant's clinical treatment, rehabilitation, health, and medical services with the other providers of BI waiver services and the BI waiver case manager.
D.
Levels of Service.
(1)
Services provided in a residential program shall be provided and reimbursed at one of three levels of service, as preauthorized in the participant's waiver plan of care approved by the BHA.
(2)
Level 1 requires a minimum of 1:3 staff to participant ratio during day and evening shifts and nonawake supervision during overnight shift or an awake staff person covering more than one site during the overnight shift. The participant shall meet nursing facility or special hospital level of care.
(3)
Level 2 requires a minimum of 1:3 staff to participant ratio during day and evening shifts and awake, on-site supervision during overnight shift. The participant shall meet nursing facility or special hospital level of care.
(4)
Level 3 requires a 1:1 staff to participant ratio during day and evening shifts and awake on-site supervision during overnight shift. The participant shall meet special hospital level of care.
Regulation .08 Covered Services — Day Habilitation Services.LinkCopy Citation
A.
The day habilitation services covered under this regulation shall be provided in a nonresidential setting, separate from the home or facility in which the participant resides.
B.
The covered services, as defined in this chapter shall include:
(1)
Habilitative or rehabilitative services to assist a participant in acquiring, regaining, retaining, or improving the self-help skills related to activities of daily living and the social and adaptive skills, which are necessary to reside successfully in home and community-based settings;
(2)
Meals furnished as part of the program;
(3)
Any of the following additional services which are provided at the provider's site, are medically necessary to prevent the participant's institutionalization, and are not otherwise covered for the participant by the Program or another payer:
(a)
Nursing supervision, in accordance with the Maryland Nurse Practice Act and COMAR 10.27.11 for any medication administration or other delegated nursing functions provided to the participant by a qualified direct care worker; and
(b)
Behavior intervention services; and
(4)
Transportation between a participant's residence and the provider's site, or between habilitation sites if the participant receives habilitation services in more than one place.
C.
Day habilitation services shall regularly be provided 4 or more hours per day on a regularly scheduled basis for 1 or more days per week, unless provided as an adjunct to other day activities included in the participant's waiver plan of care.
D.
Day habilitation services shall focus on enabling the participant to regain, attain, or maintain the participant's maximum functional level.
E.
The provider shall provide services in collaboration with the participant's other BI waiver services, clinical treatment, rehabilitation, and health and medical services.
F.
Levels of Service.
(1)
Services provided in a day habilitation program shall be provided and reimbursed at one of three levels of service, as preauthorized in the participant's waiver plan of care approved by the BHA.
(2)
Level 1 requires a minimum of 1:6 staff to participant ratio. The participant shall meet nursing facility or special hospital level of care.
(3)
Level 2 requires a minimum of 1:4 staff to participant ratio. The participant shall meet nursing facility or special hospital level of care.
(4)
Level 3 requires a minimum of 1:1 staff to participant ratio. The participant shall meet special hospital level of care.
G.
The program under this regulation does not cover recreational activities which are not related to specific treatment goals or are solely diversional.
Regulation .09 Covered Services — Supported Employment Services.LinkCopy Citation
A.
The supported employment services covered under this regulation shall be provided in nonresidential community settings, separate from the home or facility in which the participant resides.
B.
The covered services shall:
(1)
Include a work program that includes supports necessary for the participant to achieve desired outcomes established in the waiver plan of care;
(2)
Include rehabilitation activities needed to sustain the participant's job including support and training;
(3)
Consist of training, skill development, and paid employment for participants:
(a)
For whom competitive employment at or above the minimum wage is unlikely; and
(b)
Who, because of disabilities, need intensive ongoing support to perform in a work setting;
(4)
Be provided to help individuals obtain and maintain paid work in integrated community settings; and
(5)
Include transportation or the coordination of transportation between a participant's residence and the supported employment job site.
C.
Levels of Service.
(1)
Services shall be provided and reimbursed at one of three levels of service, as preauthorized in the participant's waiver plan of care approved by the BHA.
(2)
Level 1 requires that staff members provide daily contacts to the waiver participant. The participant shall meet nursing facility or special hospital level of care.
(3)
Level 2 requires that staff members provide a minimum of 1 hour of direct support per day. The participant shall meet nursing facility or special hospital level of care.
(4)
Level 3 requires that staff members provide continuous support for a minimum of 4 hours of service per day. The participant shall meet special hospital level of care.
D.
When provided at a work site where individuals without disabilities are employed, services shall only include the adaptations, supervision, and training required by the participants as a result of their disabilities, not the supervisory activities rendered as a normal part of the business setting.
E.
The Program may not reimburse for the following:
(1)
Incentive payments, subsidies, or unrelated incentive payments made to an employer to encourage or subsidize the employer's participation in a supported employment program;
(2)
Payments that are passed through to participants in a supported employment program; or
(3)
Payments for vocational training that is not directly related to a participant's supported employment program.
Regulation .09-1 Covered Services — Individual Support Services.LinkCopy Citation
A.
Individual support services, as defined in Regulation .01B of this chapter, shall be provided in a participant's own home or their community.
B.
The service involves the training and development of compensatory strategies and skills such that a waiver participant may learn to initiate and complete activities on their own to fully engage in their community, live independently, and compensate for cognitive and behavioral deficits related to short term memory, planning, attention, concentration, impulse control, and judgment, with the intended goal of minimizing the level of staff support the individual needs over time and preventing institutionalization.
C.
The provider shall provide services in collaboration with the participant's other BI waiver services, clinical treatment, and health and medical services.
D.
Individual support services shall be provided as pre-authorized by BHA and included in the waiver plan of care and provided in 15-minute units.
E.
Services may be provided in-person or via virtual supports as determined appropriate by the Department.
F.
Providers delivering services via virtual supports:
(1)
Shall ensure the participant's rights of privacy, dignity, and respect, and freedom from coercion and restraint; and
(2)
May provide direct support via virtual supports according to the following requirements and restrictions:
(a)
Virtual supports do not isolate the participant from integration in the community or interacting with people without disabilities;
(b)
The use of virtual supports is based on the participant’s preferences, has been agreed to by the participant and their team, and is outlined in the Plan of Service (POS);
(c)
Virtual supports may not be used for the provider's convenience;
(d)
The use of virtual supports and the service delivery method shall be documented per State requirements, policies, and guidance;
(e)
Text messaging and emailing do not constitute virtual supports;
(f)
The virtual supports shall comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act, and their applicable regulations to protect the privacy and security of the participant’s protected health information;
(g)
ISS may not be provided entirely via virtual supports;
(h)
Virtual supports shall allow flexibility of service delivery and supplement in-person direct supports as recommended and monitored by the case manager;
(i)
The provider shall develop, maintain, and enforce written policies, approved by BHA, which address their procedures for ensuring:
(i)
The participant’s rights of privacy, dignity, and respect, and freedom from coercion and restraint;
(ii)
The virtual supports meet applicable information security standards; and
(iii)
Their provision of virtual supports complies with applicable laws governing individuals’ right to privacy;
(j)
The provider shall train direct support staff on their policies and advise participants and their person-centered planning teams regarding the policies that indicate how a participant’s needs, including health and safety, will be addressed safely via virtual supports;
(k)
The virtual supports shall meet all federal and State requirements, policies, guidance, and regulations;
(l)
The provider shall ensure that virtual supports are accessible to the participant and provide in-person trainings, prior to the initiation of virtual services, to help the participant learn to use the required technology independently; and
(m)
Video cameras/monitors are not permitted in bedrooms and bathrooms.
Regulation .09-2 Covered Services — Medical Day Care Services.LinkCopy Citation
A.
Covered medical day care services are those set forth in COMAR 10.09.07.
B.
A unit of service is a minimum of 4 hours present at the medical day care center.
Regulation .10 Conditions for Reimbursement.LinkCopy Citation
The Department shall reimburse for services covered under this chapter if the services are:
A.
Provided to a participant who meets the qualifications for eligibility specified in Regulations .02 and .03 of this chapter;
B.
Preauthorized in the participant's waiver plan of care by the BHA, as being reasonable and medically necessary to prevent institutionalization;
C.
Provided by an approved provider which meets the conditions for participation in Regulations .05 and .06 of this chapter; and
D.
Rendered pursuant to:
(1)
The relevant definition of covered services in Regulation .01 of this chapter;
(2)
All other requirements specified in this chapter and COMAR 10.09.36; and
(3)
The waiver proposal and any amendments to it approved by the Secretary of the U.S. Department of Health and Human Services.
Regulation .11 Limitations.LinkCopy Citation
A.
Reimbursement shall be made by the Program only if all of the requirements of this chapter are met.
B.
Reimbursement may not be made by the Program for a waiver service furnished before:
(1)
Enrollment of the participant in the waiver;
(2)
Development of the participant's waiver plan of care; and
(3)
Inclusion of the specific service in the participant's approved waiver plan of care.
C.
The Program shall reimburse for a participant not more than:
(1)
One unit of residential habilitation services for a date of service;
(2)
One unit of day habilitation per day;
(3)
One unit of supported employment per day;
(4)
A combined maximum of seven units of supported employment and day habilitation per week; or
(5)
32 units of individual support services for a date of service.
D.
The Program does not cover the following:
(1)
Room and board for the participant;
(2)
Room and board for an unrelated personal caregiver who lives with the participant;
(3)
Direct payments to the participant's family;
(4)
Respite care for a participant residing in an out-of-home facility;
(5)
Activities or supervision reimbursed by a source other than Medicaid;
(6)
Payment for day habilitation on the same date of service as medical day care under COMAR 10.09.07;
(7)
Payment for day habilitation on the same date of services as on-site psychiatric rehabilitation as defined in COMAR 10.21.21 and COMAR 10.21.25;
(8)
Payment for residential habilitation on the same date of service as personal care under COMAR 10.09.20;
(9)
Payment for residential habilitation on the same date of service as residential rehabilitation services as defined in COMAR 10.21.22;
(10)
Payment for supported employment on the same date of service as mental health vocational supported employment as defined in COMAR 10.21.28;
(11)
Payment for individual support services on the same day as residential habilitation services as defined in Regulation .01B of this chapter; or
(12)
Payment for individual support services on the same day as family and individual support services as defined in Regulation .01B of this chapter.
Regulation .12 Payment Procedures.LinkCopy Citation
A.
Request for Payment.
(1)
An approved provider, with the exception of a medical day care provider, shall submit requests for payment to BHA or its authorized representative for the services covered under this chapter, according to procedures set forth in COMAR 10.09.36.04 or otherwise established by the Department. Medical day care providers shall submit requests for payment to the Department in accordance with COMAR 10.09.07.08.
(2)
The provider shall:
(a)
Bill the Department in accordance with the payment methodology specified in §C of this regulation;
(b)
Accept payment from the Department as payment in full for the services covered under this chapter and make no additional charge for the covered services to the participant or any other party; and
(c)
Submit a request for payment in a manner approved by the Department, which includes the:
(i)
Date or dates of service;
(ii)
Participant's name and Medicaid number;
(iii)
Provider's name, location, and Program identification number;
(iv)
Type, procedure code or codes, and unit or units of covered services provided; and
(v)
Amount of reimbursement requested.
B.
Billing time limitations for the services covered under this chapter are the same as those set forth in COMAR 10.09.36.06.
C.
Payments.
(1)
Payments shall be made only to a qualified provider for services covered under this chapter which are rendered to a participant.
(2)
The Program shall pay according to the following fee-for-service schedule:
(a)
Residential habilitation reimbursed at:
(i)
$305.51 per day for Level 1 effective July 1, 2024;
(ii)
$404.52 per day for Level 2 effective July 1, 2024; and
(iii)
$559.63 per day for Level 3 effective July 1, 2024;
(b)
Day habilitation reimbursed at:
(i)
$78.88 per day for Level 1 effective July 1, 2024;
(ii)
$137.59 per day for Level 2 effective July 1, 2024; and
(iii)
$193.57 per day for Level 3 effective July 1, 2024;
(c)
Supported employment reimbursed at:
(i)
$46.80 per day for Level 1 effective July 1, 2024;
(ii)
$78.88 per day for Level 2 effective July 1, 2024; and
(iii)
$193.57 per day for Level 3 effective July 1, 2024; and
(d)
Individual support services (ISS): reimbursed at the rate of $9.5666 per 15 minutes effective July 1, 2024; and
(e)
Individual support services—virtual: reimbursed at the rate of $9.5666 per 15 minutes effective July 1, 2024.
(3)
The Program shall pay for medical day care services in accordance with COMAR 10.09.07 and the participant's approved plan of care.
(4)
Program rates specified in this regulation shall increase each fiscal year through FY 2026, subject to the limitations of the State budget.
Regulation .13 Recovery and Reimbursement.LinkCopy Citation
Recovery and reimbursement under this chapter are as set forth in COMAR 10.09.36.07 and COMAR 10.09.07.09.
Regulation .14 Cause for Suspension or Removal and Imposition of Sanctions.LinkCopy Citation
Cause for suspension or removal and imposition of sanctions under this chapter are as set forth in COMAR 10.09.36.08.
Regulation .15 Appeal Procedures.LinkCopy Citation
A.
Appeal procedures for applicants and participants are those set forth in COMAR 10.09.24.13 and COMAR 10.01.04.
B.
Provider appeal procedures under this chapter are set forth in COMAR 10.09.36.09.
Regulation .16 Interpretive Regulation.LinkCopy Citation
Interpretation of this regulation is subject to COMAR 10.09.36.10.
Chapter annotations
Authority: Health-General Article, §§2-104(b), 15-103, 15-105, and 15-141.2, Annotated Code of Maryland
History: Effective date:
History: Regulations .01—.16 adopted as an emergency provision effective July 1, 2003 (30:14 Md. R. 933); adopted permanently effective December 11, 2003 (30:24 Md. R. 1740)
History: Regulation .01B amended effective April 9, 2007 (34:7 Md. R. 698)
History: Regulation .01B amended as an emergency provision effective July 1, 2008 (35:17 Md. R. 1481); amended permanently effective October 6, 2008 (35:20 Md. R. 1774)
History: Regulation .01B amended effective January 6, 2014 (40:26 Md. R. 2163); May 18, 2020 (47:10 Md. R. 516); May 1, 2023 (50:8 Md. R. 338)
History: Regulation .02B amended effective January 25, 2010 (37:2 Md. R. 67)
History: Regulation .02C, D amended effective January 6, 2014 (40:26 Md. R. 2163)
History: Regulation .03 amended effective May 18, 2020 (47:10 Md. R. 516)
History: Regulation .03B, E amended effective January 6, 2014 (40:26 Md. R. 2163)
History: Regulation .03B, F amended effective April 9, 2007 (34:7 Md. R. 698)
History: Regulation .03F amended effective October 14, 2013 (40:20 Md. R. 1652)
History: Regulation .04 amended effective May 18, 2020 (47:10 Md. R. 516); May 18, 2020 (47:10 Md. R. 516)
History: Regulation .04A amended effective January 6, 2014 (40:26 Md. R. 2163)
History: Regulation .04B amended effective April 9, 2007 (34:7 Md. R. 698); May 1, 2023 (50:8 Md. R. 338)
History: Regulation .04C amended effective May 1, 2023 (50:8 Md. R. 338)
History: Regulation .05 amended effective April 9, 2007 (34:7 Md. R. 698)
History: Regulation .05 amended as an emergency provision effective July 1, 2008 (35:17 Md. R. 1481); amended permanently effective October 6, 2008 (35:20 Md. R. 1774)
History: Regulation .05 amended effective January 6, 2014 (40:26 Md. R. 2163); May 18, 2020 (47:10 Md. R. 516); May 1, 2023 (50:8 Md. R. 338)
History: Regulation .06 amended effective April 9, 2007 (34:7 Md. R. 698)
History: Regulation .06E adopted as an emergency provision effective July 1, 2008 (35:17 Md. R. 1481); adopted permanently effective October 6, 2008 (35:20 Md. R. 1774)
History: Regulation .07C amended effective January 6, 2014 (40:26 Md. R. 2163)
History: Regulation .07D amended effective May 18, 2020 (47:10 Md. R. 516)
History: Regulation .08E amended effective January 6, 2014 (40:26 Md. R. 2163)
History: Regulation .08F amended effective May 18, 2020 (47:10 Md. R. 516)
History: Regulation .09C amended effective May 18, 2020 (47:10 Md. R. 516)
History: Regulation .09-1 adopted effective April 9, 2007 (34:7 Md. R. 698)
History: Regulation .09-1 amended effective May 18, 2020 (47:10 Md. R. 516); May 1, 2023 (50:8 Md. R. 338)
History: Regulation .09-1C amended effective January 6, 2014 (40:26 Md. R. 2163)
History: Regulation .09-2 adopted as an emergency provision effective July 1, 2008 (35:17 Md. R. 1481); adopted permanently effective October 6, 2008 (35:20 Md. R. 1774)
History: Regulation .10B amended effective May 18, 2020 (47:10 Md. R. 516)
History: Regulation .11C amended effective May 18, 2020 (47:10 Md. R. 516)
History: Regulation .11C, D amended effective April 9, 2007 (34:7 Md. R. 698)
History: Regulation .12A amended effective May 18, 2020 (47:10 Md. R. 516)
History: Regulation .12A, C amended as an emergency provision effective July 1, 2008 (35:17 Md. R. 1481); amended permanently effective October 6, 2008 (35:20 Md. R. 1774)
History: Regulation .12C amended effective May 1, 2023 (50:8 Md. R. 338); March 3, 2025 (52:4 Md. R. 218); June 8, 2026 (53:11 Md. R. 485)
History: Regulation .13 amended as an emergency provision effective July 1, 2008 (35:17 Md. R. 1481); amended permanently effective October 6, 2008 (35:20 Md. R. 1774)