404 Neb. Admin. Code, ch. 4, § 002

Current through September 17, 2024

Section 404-4-002 - ADMINISTRATION STANDARDS

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

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

002.02DIRECTOR. 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.

002.03PROVIDER 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.

002.04PSYCHOTROPIC 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;

(c) The justification or reason for the medication; and

(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

(c) The effectiveness of the positive behavioral supports plan.

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.

002.05RIGHTS 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.

002.06PARTICIPANTS' 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.

002.07ENTRY 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.

002.08TERMINATION 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.

002.09ACCESS 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.

002.10PARTICIPANT 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.

002.11INCIDENT 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;

(C) An action plan that includes the provider's immediate effort to address the situation and prevent recurrence;

(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.

404 Neb. Admin. Code, ch. 4, § 002

Amended effective 11/19/2022

Amended effective 9/17/2024