Okla. Admin. Code § 317:35-17-3

Current through Vol. 42, No. 4, November 1, 2024

Section 317:35-17-3 - ADvantage program services

(a) The ADvantage program is a Medicaid Home and Community-Based waiver used to finance non-institutional, longterm care services for the elderly and a targeted group of physically disabled adults when there is a reasonable expectation that within a thirty (30) calendar day period, the person's health, due to disease process or disability, would without appropriate services, deteriorate and require long-term care (LTC) facility care to arrest the deterioration. Individuals may not be enrolled in ADvantage for the sole purpose of enabling them to obtain Medicaid eligibility. Eligibility for ADvantage program services is contingent on an individual requiring one (1) or more of the services offered in the waiver, at least monthly, to avoid institutionalization.

(b) The number of individuals who may receive ADvantage services is limited.

(1) To receive ADvantage program services, individuals must meet one of the categories in (A) through (D) of this paragraph. He or she must:

(A) Be sixty-five (65) years of age or older; or

(B) Be nineteen (19) to sixty-four (64) years of age with a physical disability; or

(C) Be nineteen (19) to sixty-four (64) years of age with a developmental disability, provided he or she does not have a cognitive impairment (intellectual disability); or

(D) Be nineteen (19) to sixty-four (64) years of age with a clinically documented, progressive, degenerative disease process that responds to treatment and previously required hospital or LTC facility level of care services to maintain the treatment regimen to prevent health deterioration.

(2) In addition, the individual must meet criteria in (A) through (C) of this paragraph. He or she must:

(A) Require long-term care facility level of care, per Oklahoma Administrative Code (OAC) 317:35-172;

(B) Meet service eligibility criteria, per OAC 317:35-17-3(f); and

(C) Meet program eligibility criteria, per OAC 317:35-17-3(g).

(c) ADvantage members are eligible for limited types of living arrangements. The specific living arrangements are set forth in (1) through (5) of this subsection.

(1) ADvantage program members are not eligible to receive services while residing in an unlicensed institutional living arrangement, such as a room and board home or facility; an institutional setting including, but not limited to, licensed facilities, such as a hospital, a LTC facility, licensed residential care facility, or licensed assisted living facility, unless the facility is an ADvantage assisted living center.

(2) Additional living arrangements in which members may receive ADvantage services are the member's own home, apartment, or independent-living apartment, or a family or friend's home or apartment. A home or apartment unit is defined as a self-contained living space having a lockable entrance to the unit and including a bathroom, food storage and preparation amenities in addition to the bedroom or living space.

(3) ADvantage program members may receive services in a shelter or similar temporary-housing arrangement that may or may not meet the definition of home or apartment in emergency situations, for a period not to exceed sixty (60) calendar days during which location and transition to permanent housing is sought.

(4) For ADvantage members who are full-time students, a dormitory room qualifies as an allowable living arrangement in which to receive ADvantage services while the member is a student.

(5) Members may receive ADvantage respite services in an LTC facility for a continuous period not to exceed thirty (30) calendar days.

(d) Home and Community-Based waiver services are outside of the scope of Medicaid State Plan services. The Medicaid waiver allows the Oklahoma Health Care Authority to offer certain Home and Community-Based services to an annually capped number of persons, who are categorically needy, per Oklahoma Human Services (OKDHS) Appendix C-1, Schedule VIII. B. 1., and without such services would be institutionalized. The estimated cost of providing an individual's care outside of the LTC facility cannot exceed the annual cost of caring for that individual in a LTC facility. When determining the ADvantage service plan cost cap for an individual, the comparable Medicaid cost to serve that individual in a LTC facility is estimated.

(e) Services provided through the ADvantage waiver are:

(1) Case management;

(2) Respite;

(3) Adult day health care;

(4) Environmental modifications;

(5) Specialized medical equipment and supplies;

(6) Physical, occupational, or speech therapy or consultation;

(7) Advanced supportive and/or restorative assistance;

(8) Nursing;

(9) Skilled nursing;

(10) Home-delivered meals;

(11) Hospice care;

(12) Medically necessary prescription drugs, within the limits of the ADvantage waiver;

(13) Personal care, State Plan, or ADvantage personal care;

(14) A Personal Emergency Response System (PERS);

(15) Consumer Directed Personal Assistance Services and Supports (CD-PASS);

(16) Institution Transition Services (Transitional Case Management);

(17) Assisted living;

(18) Remote Supports;

(19) Assistive technology; and

(20) SoonerCare medical services for individuals, twenty-one (21) years of age and over, within the State Plan scope.

(f) The OKDHS area nurse or nurse designee determines service eligibility prior to evaluating the Uniform Comprehensive Assessment Tool (UCAT) assessment for long-term care facility level of care. The criteria in (1) through (5) of this subsection are used to make the service eligibility determination, which includes:

(1) An open ADvantage program waiver slot, as authorized by the Centers for Medicare and Medicaid Services (CMS), is available to ensure federal participation in payment for services to the individual. When Oklahoma Human Services Community Living, Aging and Protective Services (CAP) determines all slots are filled, the individual cannot be certified as eligible for ADvantage services, and his or her name is placed on a waiting list for entry when an open slot becomes available.

(2) The ADvantage waiver-targeted service groups are individuals, who:

(A) Are frail and sixty-five (65) years of age and older; or

(B) Are nineteen(19) to sixty-four (64) years of age and physically disabled; or

(C) When developmentally disabled and nineteen (19) to sixty-four (64) years of age and do not have an intellectual disability or cognitive impairment related to the developmental disability; or

(D) Are nineteen (19) to sixty-four (64) years of age and not physically disabled but have a clinically documented, progressive, degenerative disease process that responds to treatment and previously required hospital or long-term care facility level of care services to maintain the treatment regimen to prevent health deterioration. The individual must meet criteria, per OAC 317:35-17-3(b)(2) (A) through (C).

(3) An individual is ineligible when posing a physical threat to self or others, as supported by professional documentation.

(4) An individual is ineligible when members of the household or persons who routinely visit the household pose a threat of harm or injury to the individual or other household visitors, as supported by professional documentation.

(5) An individual is ineligible when his or her living environment poses a physical threat to self or others, as supported by professional documentation where applicable, and measures to correct hazardous conditions or assist the individual to move are unsuccessful or not feasible.

(g) The State, as part of the ADvantage waiver program approval process, ensures CMS that each member's health, safety, or welfare can be maintained in his or her home. When a member's identified needs cannot be met through provision of the ADvantage program or Medicaid State Plan services and other formal or informal services are not in place or immediately available to meet those needs, the individual's health, safety, or welfare in his or her home cannot be ensured. The ADvantage Administration (AA) determines ADvantage program eligibility through the service plan approval process. An individual is deemed ineligible for the ADvantage program based on criteria (1) through (8) of this subsection.

(1) The individual's needs, as identified by the UCAT and other professional assessments, cannot be met through ADvantage program services, Medicaid State Plan services, or other formal or informal services.

(2) One (1) or more members of the individual's household pose a physical threat to themselves, or others as supported by professional documentation.

(3) The individual or other household members use threatening, intimidating, degrading, or use sexually inappropriate language or innuendo or behavior towards service providers, in the home or through other contact or communications, and significant efforts were attempted to correct such behavior, as supported by professional documentation or other credible documentation.

(4) The individual, or the individual's authorized agent, is uncooperative or refuses to participate in service development or service delivery and these actions result in unacceptable increases of risk to the individual's health, safety, or welfare in his or her home, as determined by the individual, the interdisciplinary team, or the AA.

(5) The individual's living environment poses a physical threat to self or others, as supported by professional documentation, and measures to correct hazardous conditions or assist the person to move are unsuccessful or are not feasible.

(6) The individual provides false or materially inaccurate information necessary to determine program eligibility or withholds information necessary to determine program eligibility.

(7) The individual does not require at least one ADvantage service monthly.

(8) The individual, his or her family member(s), associate(s), or any other person(s) or circumstances as relates to care and coordination in the living environment produces evidence of illegal drug activity or substances used illegally as intoxicants. This includes:

(A) The use, possession, or distribution of illegal drugs;

(B) The abusive use of other drugs, such as medication prescribed by a doctor;

(C) The use of substances, such as inhalants including, but not limited to:

(i) Typewriter correction fluid;

(ii) Air conditioning coolant;

(iii) Gasoline;

(iv) Propane;

(v) Felt-tip markers;

(vi) Spray paint;

(vii) Air freshener;

(viii) Butane;

(ix) Cooking spray;

(x) Paint; and

(xi) Glue;

(D) The observed intoxication, consumption, or sensory indicators, such as smell of the use of any drug or intoxicant by the individual, family members, associates, or any other person(s) present at the time care is provided may be construed as evidence indicative of illegal drug activity or intoxication. This includes drug use or intoxicated activity that is menacing to the member or staff providing services;

(E) The observance of drug paraphernalia or any instrument used in the manufacturing, production, distribution, sale, or consumption of drugs or substances including, but not limited to:

(i) Smoking pipes used to consume substances other than tobacco;

(ii) Roach clips containing marijuana cigarettes;

(iii) Needles and other implements used for injecting drugs into the body;

(iv) Plastic bags or other containers used to package drugs;

(v) Miniature spoons used to prepare drugs; or

(vi) Kits used in the production of synthetic controlled substances including descriptive materials that accompany the item, describing or depicting its use.

(F) Instructions, verbal or written, concerning the item or device including, but not limited to, the manner in which the object is labeled and displayed for sale;

(G) The typical use of such items in the community; or

(H) Testimony of an expert witness regarding use of the item.

(h) The case manager provides the AA with professional documentation or other credible documentation to support the recommendation for redetermination of program eligibility. The service providers continue providing services according to the person-centered service plan as provider safety permits until the individual is removed from the ADvantage program. As a part of the procedures requesting redetermination of program eligibility, CAP provides technical assistance to the provider for transitioning the individual to other services.

(i) Individuals determined ineligible for ADvantage program services are notified in writing by CAP of the determination and of their right to appeal the decision.

Okla. Admin. Code § 317:35-17-3

Added at 12 Ok Reg 753, eff 1-6-95 through 7-14-95 (emergency); Added at 12 Ok Reg 3133, eff 7-27-95 ; Amended at 14 Ok Reg 56, eff 4-30-96 (emergency); Amended at 14 Ok Reg 1802, eff 5-27-97 ; Amended at 15 Ok Reg 3715, eff 5-18-98 (emergency); Amended at 16 Ok Reg 1438, eff 5-27-99 ; Amended at 17 Ok Reg 2410, eff 6-26-00 ; Amended at 18 Ok Reg 277, eff 11-21-00 (emergency); Amended at 18 Ok Reg 515, eff 1-1-01 (emergency); Amended at 18 Ok Reg 1139, eff 5-11-01 ; Amended at 18 Ok Reg 2969, eff 5-17-01 ; Amended at 19 Ok Reg 1071, eff 5-13-02 ; Amended at 20 Ok Reg 1958, eff 6-26-03 ; Amended at 21 Ok Reg 2252, eff 6-25-04 ; Amended at 22 Ok Reg 2741, eff 5-4-05 (emergency); Amended at 23 Ok Reg 168, eff 7-1-05 (emergency); Amended at 23 Ok Reg 1390, eff 5-25-06 ; Amended at 26 Ok Reg 263, eff 12-1-08 (emergency) ¹ ; Amended at 27 Ok Reg 1481, eff 6-11-10 ; Amended at 28 Ok Reg 1542, eff 6-25-11 ; Amended at 29 Ok Reg 204, eff 11-22-11 (emergency); Amended at 29 Ok Reg 1172, eff 6-25-12 ; Amended at 30 Ok Reg 1262, eff 7-1-13

Amended by Oklahoma Register, Volume 34, Issue 23, August 15, 2017, eff. 9/1/2017

Amended by Oklahoma Register, Volume 37, Issue 24, September 1, 2020, eff. 9/14/2020

Amended by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Amended by Oklahoma Register, Volume 41, Issue 12, March 1, 2024, eff. 1/30/2024, exp. 9/14/2024 (Emergency)

Amended by Oklahoma Register, Volume 41, Issue 23, August 15, 2024, eff. 9/1/2024

¹ This emergency action expired without being superseded by a permanent action. Upon expiration of an emergency amendatory action, the last effective permanent text is reinstated. Therefore, on 7-15-09 (after the 7-14-09 expiration of the emergency action), the text of 317:35-17-3 reverted back to the permanent text that became effective 5-25-06, as was last published in the 2006 Edition of the OAC, and remained as such until amended again by permanent action on 6-11-10.

² Due to technical error, the text in subsection (i) was duplicated in this subsection (g) when the Section was published in the 2012 OAC Supplement.