Tenn. Comp. R. & Regs. 1200-13-01-.31

Current through December 10, 2024

Section 1200-13-01-.31 - TENNCARE EMPLOYMENT AND COMMUNITY FIRST CHOICES (ECF CHOICES) PROGRAM

(1) Definitions. See Rule 1200-13-01-.02.

(2) Program components. The TennCare ECF CHOICES Program is a managed LTSS program that is administered by specified TennCare MCOs under contract with the Bureau. The specified MCOs are responsible for coordinating all covered physical, behavioral, and LTSS for their Members who qualify for and are enrolled in ECF CHOICES. The program consists of HCBS, as described in this Chapter.

(3) Eligibility for ECF CHOICES.

(a) There are three (3) groups in ECF CHOICES:

1. ECF CHOICES Group 4 (Essential Family Supports).

(i) Participation in ECF CHOICES Group 4 is limited to TennCare Members living at home with family who qualify for and are receiving TennCare-reimbursed ECF CHOICES HCBS. "Family" shall mean individual(s) to whom the child or adult with I/DD is legally related, whether the relationship is by blood, by marriage, or by adoption. "Family" shall not include a foster care or paid living arrangement. To be eligible for ECF CHOICES Group 4, Applicants must meet the following criteria:

(I) Be in one of the defined target populations;

(II) Qualify in the specified eligibility categories;

(III) Meet NF LOC or be "At Risk for Institutionalization," as defined in Rule 1200-13-01-.02;

(IV) Need and upon enrollment in ECF CHOICES Group 4, receive on an ongoing basis ECF CHOICES HCBS;

(V) Have needs that can be safely and appropriately met in the community and at a cost that does not exceed the Expenditure Cap, as described in Section 1200-13-01-.31(4)(d); and

(VI) Qualify in one of the priority categories for which enrollment into ECF CHOICES is currently open and for which a slot is available, or for an available reserve capacity slot.

(ii) Target Populations for ECF CHOICES Group 4. Only persons in one of the target populations below may qualify to enroll in ECF CHOICES Group 4:

(I) Persons who have an intellectual disability as defined in Rule 1200-13-01-.02.

(II) Persons who have a developmental disability as defined in Rule 1200-13-01-.02.

(iii) Eligibility Categories Served in ECF CHOICES Group 4. Participation in ECF CHOICES Group 4 is limited to TennCare Members who are in the ECF CHOICES Group 4 target population(s) and qualify in one of the following eligibility categories:

(I) SSI eligible, who are determined eligible for SSI by the Social Security Administration. SSI eligibles are enrolled in TennCare Medicaid.

(II) ECF CHOICES 217-Like Group as defined in Rule 1200-13-01-.02. Persons who qualify in the ECF CHOICES 217-Like Group are enrolled in TennCare Standard.

(III) Interim ECF CHOICES At-Risk Group as defined in Rule 1200-13-01-.02. Persons who qualify in the Interim ECF CHOICES At-Risk Group are enrolled in TennCare Standard.

2. ECF CHOICES Group 5 (Essential Supports for Employment and Independent Living).

(i) Participation in ECF CHOICES Group 5 is limited to TennCare Members who qualify for and are receiving TennCare-reimbursed ECF CHOICES HCBS. To be eligible for ECF CHOICES Group 5, Applicants must meet the following criteria:

(I) Be in one of the defined target populations;

(II) Qualify in the specified eligibility categories;

(III) Do not meet NF LOC but are At Risk for Institutionalization, as defined in Rule 1200-13-01-.02, provided however, that an adult age 21 and older who meets NF LOC may choose to enroll in ECF CHOICES Group 5, subject to (V) below when the enrollment target for ECF CHOICES Group 6 has been reached;

(IV) Need and upon enrollment in ECF CHOICES Group 5, receive on an ongoing basis ECF CHOICES HCBS;

(V) Have needs that can be safely and appropriately met in the community and at a cost that does not exceed the Expenditure Cap, as described in Section 1200-13-01-.31(4)(d); and

(VI) Qualify in one of the priority categories for which enrollment into ECF CHOICES is currently open and for which a slot is available, or for an available reserve capacity slot.

(ii) Target Populations for ECF CHOICES Group 5. Only persons in one of the target populations below may qualify to enroll in ECF CHOICES Group 5:

(I) Adults age 21 or older who have an intellectual disability, as defined in Rule 1200-13-01-.02.

(II) Adults age 21 or older who have a developmental disability, as defined in Rule 1200-13-01-.02.

(iii) Eligibility Categories Served in ECF CHOICES Group 5. Participation in ECF CHOICES Group 5 is limited to TennCare Members who are in the ECF CHOICES Group 5 target population(s) and qualify in one of the following eligibility categories:

(I) SSI eligible, who are determined eligible for SSI by the Social Security Administration. SSI eligibles are enrolled in TennCare Medicaid.

(II) ECF CHOICES 217-Like Group as defined in Rule 1200-13-01-.02. Persons who qualify in the ECF CHOICES 217-Like Group are enrolled in TennCare Standard.

(III) Interim ECF CHOICES At-Risk Group as defined in Rule 1200-13-01-.02. Persons who qualify in the Interim ECF CHOICES At-Risk Group are enrolled in TennCare Standard.

3. ECF CHOICES Group 6 (Comprehensive Supports for Employment and Community Living).

(i) Participation in ECF CHOICES Group 6 is limited to TennCare Members who qualify for and are receiving TennCare-reimbursed ECF CHOICES HCBS. To be eligible for ECF CHOICES Group 6, Applicants must meet the following criteria:

(I) Be in one of the defined target populations;

(II) Qualify in the specified eligibility categories:

(III) Meet NF LOC, provided however, that the State may grant an exception to individuals transitioning from the Statewide or Comprehensive Aggregate Cap Waivers who are At Risk for Institutionalization and meet the ICF/IID level of care but not the NF level of care;

(IV) Need and upon enrollment in ECF CHOICES Group 6, receive on an ongoing basis ECF CHOICES HCBS;

(V) Have needs that can be safely and appropriately met in the community and at a cost that does not exceed the Expenditure Cap, as described in Section 1200-13-01-.31(4)(d); and

(VI) Qualify in one of the priority categories for which enrollment into ECF CHOICES is currently open and for which a slot is available, or for an available reserve capacity slot.

(ii) Target Populations for ECF CHOICES Group 6. Only persons in one of the target populations below may qualify to enroll in ECF CHOICES Group 6:

(I) Adults age 21 or older who have an intellectual disability, as defined in Rule 1200-13-01-.02.

(II) Adults age 21 or older who have a developmental disability, as defined in Rule 1200-13-01-.02.

(iii) Eligibility Categories Served in ECF CHOICES Group 6. Participation in ECF CHOICES Group 6 is limited to TennCare Members who are in the ECF CHOICES Group 6 target population(s), meet NF LOC (except as provided in (i)(III) above, and qualify in one of the following eligibility categories:

(I) SSI eligible, who are determined eligible for SSI by the Social Security Administration. SSI eligibles are enrolled in TennCare Medicaid.

(II) ECF CHOICES 217-Like Group as defined in Rule 1200-13-01-.02. Persons who qualify in the ECF CHOICES 217-Like Group are enrolled in TennCare Standard.

(b) Level of Care (LOC). All Enrollees in TennCare ECF CHOICES must meet the applicable LOC criteria, as determined by the Bureau in accordance with Rule 1200-13-01-.10. Physician certification of LOC shall not be required for enrollment in ECF CHOICES.

1. Applicants shall meet NF LOC criteria or be At Risk for Institutionalization, as defined in Rule 1200-13-01-.02 in order to enroll in ECF CHOICES Group 4 (Essential Family Supports).

2. Applicants shall not be required to meet NF LOC, but shall be At Risk for Institutionalization as defined in Rule 1200-13-01-.02 in order to enroll in ECF CHOICES Group 5 (Essential Supports for Employment and Community Living), provided however, that an adult age 21 and older who meets NF LOC may choose to enroll in ECF CHOICES Group 5, subject to requirements specified in 1200-13-01-.31(3)(a) 2.(i)(V) when the enrollment target for ECF CHOICES Group 6 has been reached;

3. Applicants shall meet NF LOC in order to enroll in ECF CHOICES Group 6 (Comprehensive Supports for Community Living). For enrollment in ECF CHOICES Group 6, the State may grant an exception to individuals transitioning from the Statewide or Comprehensive Aggregate Cap Waivers who are At Risk for Institutionalization and meet the ICF/IID level of care but not the NF level of care.

(c) With respect to the PASRR process described in Rule 1200-13-01-.23, members in ECF CHOICES are not required to complete the PASRR process unless they are admitted to a NF for Short-Term NF Care described in Paragraph (8) of Rule 1200-13-01-.05 and defined in Rule 1200-13-01-.02.

(d) All Members in TennCare ECF CHOICES must be determined by the MCO to be able to be served safely and appropriately in the community within the array of services and supports available in the ECF CHOICES Group in which the Member is or will be enrolled, including ECF CHOICES HCBS up to the applicable Expenditure Caps for each benefit group, as described in Rule 1200-13-01-.31(4)(d), non-ECF CHOICES HCBS available through TennCare (e.g., home health), services available through Medicare, private insurance or other funding sources, and unpaid supports provided by family members and other caregivers who are willing and able to provide such care.

(4) Enrollment in TennCare ECF CHOICES. Enrollment into ECF CHOICES shall be processed by the Bureau as follows:

(a) There shall be separate Enrollment Targets for ECF CHOICES Groups 4, 5, and 6. The Enrollment Target for each ECF CHOICES Group functions as a cap on the total number of persons who can be enrolled into that ECF CHOICES Group at any given time.

1. Effective July 1, 2016, the Enrollment Target for ECF CHOICES shall be five hundred (500) for Group 4, one thousand (1,000) for Group 5, and two hundred (200) for Group 6.

2. Once the Enrollment Target (including Reserve Capacity as defined in Rule 1200-13-01-.02 and as described in Rule 1200-13-01-.31(4)(b) is reached for a particular ECF CHOICES Group, qualified Applicants shall not be enrolled into that ECF CHOICES Group or qualify in the ECF CHOICES 217-Like Group or the Interim ECF CHOICES At-Risk Group based on receipt of HCBS until such time that capacity within the Enrollment Target is available, with the following exceptions:

(i) NF-to-Community Transitions. A Member being served in CHOICES Group 1 or receiving services in an ICF/IID who meets requirements to enroll in ECF CHOICES Group 4, 5, or 6 can enroll in ECF CHOICES even though the Enrollment Target has been met. This Member will be served in ECF CHOICES outside the Enrollment Target but shall be moved within the ECF CHOICES Enrollment Target at such time that a slot becomes available. A request to transition a Member from CHOICES Group 1 or an ICF/IID to ECF CHOICES in excess of the ECF CHOICES Enrollment Targets must specify the name of the facility where the Member currently resides, the date of admission and the planned date of transition.

(ii) CEA Enrollment. An MCO with an SSI-eligible recipient who meets all other criteria for enrollment into ECF CHOICES Group 4, 5, or 6, but who cannot enroll in ECF CHOICES because the Enrollment Target for that group has been met, has the option, at its sole discretion, of offering HCBS as a CEA to the Member. Upon receipt of satisfactory documentation from the MCO of its CEA determination and assurance of provider capacity to meet the Member's needs, the Bureau will enroll the person into ECF CHOICES Group 4, 5, or 6, as applicable, based on all applicable eligibility and enrollment criteria, regardless of the Enrollment Targets. The person will be served in ECF CHOICES Group 4, 5 or 6 outside the Enrollment Target, but shall be moved within the ECF CHOICES Group 4, 5, or 6 Enrollment Target at such time that a slot becomes available. Satisfactory documentation of the MCO's CEA determination shall include an explanation of the Member's circumstances that warrant the immediate provision of NF services unless HCBS are immediately available. Documentation of adequate provider capacity to meet the Member's needs shall include a listing of providers for each HCBS in the Member's PCSP which the MCO has confirmed are willing and able to initiate HCBS as required by TennCare upon the Member's enrollment into ECF CHOICES Group 4, 5, or 6.

(iii) If a Potential Applicant is not permitted to proceed with application for enrollment into ECF CHOICES because the Enrollment Target has been reached, the Potential Applicant shall remain on the Referral List for ECF CHOICES.

(iv) Once the ECF CHOICES Enrollment Target for an ECF CHOICES Group is reached, any persons enrolled in that Group in excess of the Enrollment Target in accordance with this Rule must receive the first available slots in that Group. Only after all persons enrolled in excess of the Enrollment Target have been moved under the Enrollment Target can additional persons be enrolled into the ECF CHOICES Group.

(b) Reserve Capacity.

1. The Bureau shall reserve 250 slots within the ECF CHOICES Groups 4, 5, 6 Enrollment Target. These slots are available only to the following:

(i) Applicants being discharged from a NF or ICF/IID;

(ii) Applicants being discharged from an acute care setting who are at imminent risk of being placed in a NF setting absent the provision of HCBS;

(iii) Applicants with ID who have an Aging Caregiver as defined in these rules;

(iv) Applicants determined by an Interagency Review Committee to meet one or more Emergent Circumstances criteria as defined in these rules; and

(v) Applicants determined by an Interagency Review Committee to meet Multiple Complex Health Conditions criteria as defined in these rules.

2. Only Applicants who meet specified reserve capacity criteria (including new Applicants seeking to establish eligibility in the ECF CHOICES 217-Like Group or the Interim ECF CHOICES At-Risk Group as well as current SSI-eligible individuals seeking enrollment into ECF CHOICES) may be enrolled into reserve capacity slots. TennCare may require confirmation of the NF or hospital discharge and in the case of hospital discharge, written explanation of the Applicant's circumstances that warrant the immediate provision of NF services unless HCBS are immediately available. TennCare may also require confirmation that an Applicant meets other applicable reserve capacity criteria, i.e., Aging Caregiver, Emergent Circumstances, or Multiple Complex Health Conditions.

3. Once all reserve capacity slots set aside for a particular purpose have been filled, persons who meet such criteria shall not proceed with the enrollment process, but shall remain on the Referral List for ECF CHOICES.

4. If a Potential Applicant does not meet criteria for a Reserve Capacity slot, the Potential Applicant shall not proceed with the enrollment process, but shall remain on the Referral List for ECF CHOICES.

(c) Enrollment into ECF CHOICES.

1. To qualify for enrollment into ECF CHOICES Group 4:

(i) An Applicant must be in one of the target populations: an individual with an intellectual or developmental disability;

(ii) An Applicant must have an approved unexpired PAE for NF LOC or be determined to be At Risk for Institutionalization as defined in Rule 1200-13-01-.02;

(iii) An Applicant must be approved by TennCare for TennCare reimbursement of LTSS as an SSI recipient, or in the ECF CHOICES 217-Like Group or the Interim ECF CHOICES At-Risk Group defined in Rule 1200-13-01-.02;

(iv) The Bureau must have received a determination by the MCO that the Applicant's needs can be safely and appropriately met in the community, and at a cost that does not exceed his Expenditure Cap, as described in this Rule, except in instances where the Applicant is not eligible for TennCare at the time of ECF CHOICES application, in which case, such determination shall be made by the MCO upon enrollment into ECF CHOICES Group 4; and

(v) There must be capacity within the established Enrollment Target to enroll the Applicant in accordance with this Rule which may include satisfaction of criteria for Reserve Capacity, as applicable; or the Applicant must meet specified exceptions to enroll even when the Enrollment Target has been reached.

2. To qualify for enrollment into ECF CHOICES Group 5:

(i) An Applicant must be in one of the target populations: an individual with an intellectual or developmental disability who is over twenty-one (21) years old;

(ii) An Applicant must have an approved unexpired PAE for NF LOC or be determined to be At Risk for Institutionalization as defined in Rule 1200-13-01-.02;

3. To qualify for enrollment into ECF CHOICES Group 6:

(i) An Applicant must be in one of the target populations: an individual with an intellectual or developmental disability who is over twenty-one (21) years old;

(ii) An Applicant must have an approved unexpired PAE for NF LOC and require specialized services/supports for their I/DD;

(iii) An Applicant must be approved by TennCare for TennCare reimbursement of LTSS as an SSI recipient or in the ECF CHOICES 217-Like Group as defined in Rule 1200-13-01-.02;

(d) Expenditure Caps for ECF CHOICES.

1. Each Member enrolling or enrolled in ECF CHOICES shall be subject to an Expenditure Cap on the benefit package assigned to that member, depending on the member's need. Each benefit package has a distinct Expenditure Cap, outlined below:

(i) For Members enrolled in Group 4, the Expenditure Cap shall be eighteen thousand dollars ($18,000) per person per calendar year. The Expenditure Cap shall apply to Group 4 ECF CHOICES HCBS only (not other Medicaid services). For Members enrolled in Group 4, the cost of Minor Home Modifications shall not count against the expenditure cap. Except as provided in 1200-13-01-.31(4)(d) 4.(vii), there shall be no exceptions to the Expenditure Cap for a Member enrolled in Group 4.

(ii) For Members enrolled in Group 5, the Expenditure Cap shall be thirty-six thousand dollars ($36,000) per person per calendar year. The Expenditure Cap shall apply to Group 5 ECF CHOICES HCBS only (not other Medicaid services). All ECF CHOICES HCBS shall be counted against a CHOICES Group 5 Member's Expenditure Cap, including the cost of Minor Home Modifications except as provided in 1200-13-01-.31(4)(d) 4.(vii).

(I) TennCare may grant an exception for emergency needs up to six thousand dollars ($6,000) per calendar year. Any exception that may be granted shall apply only for the calendar year in which the exception is approved.

(II) Expenditures for ECF CHOICES HCBS for a Member enrolled in CHOICES Group 5 shall not exceed $42,000 per calendar year.

(iii) The Expenditure Cap for a Member enrolled in ECF CHOICES Group 6 shall depend on the Member's assessed Level of Need as defined in Rule 1200-13-01-.02, except as provided in 1200-13-01-.31(4)(d) 4.(vii).

(I) An ECF CHOICES Group 6 Member assessed to have a low Level of Need shall have an Expenditure Cap of $54,000 per calendar year.

(II) An ECF CHOICES Group 6 Member assessed to have a moderate Level of Need shall have an Expenditure Cap of $82,000 per calendar year.

(III) An ECF CHOICES Group 6 Member assessed to have a high Level of Need shall have an Expenditure Cap of $108,000 per calendar year.

(IV) TennCare may grant an exception only for an ECF CHOICES Group 6 Member assessed to have exceptional medical or behavioral needs pursuant to the Level of Need process described in Rule 1200-13-01-.02. If an exception is granted, the Member's Expenditure Cap shall be based on the average annualized cost of the comparable level of care in an institution as follows:

I. For an ECF CHOICES Group 6 member who has an intellectual disability and is assessed pursuant to the Level of Need process described in Rule 1200-13-01-.02 to have exceptional medical or behavioral needs, the Member's Expenditure Cap shall be based on the average annualized cost of services in a private ICF/IID (Intermediate Care Facility for Individuals with Intellectual Disabilities).

II. For an ECF CHOICES Group 6 member who has a developmental disability and is assessed pursuant to the Level of Need process described in Rule 1200-13-01-.02 to have exceptional medical or behavioral needs, the Member's Expenditure Cap shall be based on the average annualized cost of nursing facility services plus the average annualized cost of specialized services that a person with a developmental disability would be expected to need in a nursing facility. On a case-by-case basis and applicable only to an ECF CHOICES Group 6 member who has a developmental disability and is assessed pursuant to the Level of Need process described in Rule 1200-13-01-.02 to have exceptional medical or behavioral needs, and is receiving Community Living Supports (not Family Model) at the CLS-4 level of reimbursement, this Expenditure Cap may be exceeded when necessary to permit access to Supported Employment Individual Employment Support.

III. The average annualized cost of the comparable level of care in an institution (private ICF/IID or NF) shall be adjusted by TennCare each calendar year.

IV. The average annualized cost of specialized services that a person with a developmental disability would be expected to need in a nursing facility may also be adjusted each calendar year.

V. When an ECF CHOICES Group 6 member has exceptional medical or behavioral needs and has an Expenditure Cap based on the average annualized cost of care in a private ICF/IID or NF plus specialized services in the NF, the cost of any home health or private duty nursing reimbursed by TennCare shall be counted against the Member's Expenditure Cap.

2. The Expenditure Cap shall be used to determine:

(i) Whether or not an Applicant qualifies to enroll in an ECF CHOICES benefit group (4, 5, or 6);

(ii) Whether or not a Member qualifies to remain enrolled in an ECF CHOICES benefit group (4, 5, or 6);

(iii) The total cost of ECF CHOICES HCBS a Member can receive while enrolled in an ECF CHOICES Benefit Group, excluding only for Members in Group 4 the cost of Minor Home Modifications. The Expenditure Cap functions as a limit on the total cost of ECF CHOICES HCBS, excluding only for Members in Group 4 the cost of Minor Home Modifications, that can be provided by the MCO to the Member in the home or community setting. ECF CHOICES HCBS in excess of a Member's Expenditure Cap are non-covered benefits.

3. A Member shall not be entitled to receive services up to the amount of the Expenditure Cap. A Member shall receive only those services that are medically necessary (i.e., required in order to help ensure the Member's health, safety and welfare in the home or community setting and to delay or prevent the need for NF placement). Determination of the services that are needed shall be based on a comprehensive assessment of the Member's needs and the availability of Natural Supports and other (non-TennCare reimbursed) services to meet identified needs, which shall be conducted by the Member's Support Coordinator.

4. Application of the Expenditure Cap.

(i) When a Member is enrolled in any ECF CHOICES Group (including transition from another CHOICES or ECF CHOICES Group), the Member's Expenditure Cap shall be pro-rated for the remainder of that calendar year (i.e., the portion of the calendar year that the Member will actually be enrolled in the ECF CHOICES Group).

(ii) When an ECF CHOICES Group 6 member has exceptional medical or behavioral needs and has an Expenditure Cap based on the average annualized cost of care in a private ICF/IID or NF (plus specialized services in the NF), the cost of any home health or private duty nursing reimbursed by TennCare shall be counted against the Member's Expenditure Cap.

(iii) Except as specified in Rule 1200-13-01-.31(4)(d) 1.(iii)(III)V., TennCare services other than ECF CHOICES HCBS shall not be counted against a Member's Expenditure Cap.

(iv) The annual Expenditure Cap shall be applied on a calendar year basis. The Bureau and the MCOs will track utilization of ECF CHOICES HCBS excluding only for Members in Group 4 the cost of Minor Home Modifications, across each calendar year.

(v) A Member's Expenditure Cap must also be applied prospectively on a twelve (12) month basis. This is to ensure that a Member's PCSP does not establish a threshold level of supports that cannot be sustained over the course of time. This means that, for purposes of person-centered planning, the MCO will always project the total cost of ECF CHOICES HCBS (excluding only for Members in Group 4 the cost of Minor Home Modifications) forward for twelve (12) months in order to determine whether the Member's needs can continue to be met based on the most current PCSP that has been developed. The cost of one-time services such as short-term services or short-term increases in services must be counted as part of the total cost of ECF CHOICES HCBS for a full twelve (12) month period following the date of service delivery.

(vi) If it can be reasonably anticipated, based on the ECF CHOICES HCBS currently received or determined to be needed (in addition to non-CHOICES HCBS available through TennCare, e.g., home health, services available through Medicare, private insurance or other funding sources, and unpaid supports provided by family members and other caregivers) in order to safely meet the person's needs in the community, that the person will exceed his Expenditure Cap, then the person does not qualify to enroll in or to remain enrolled in ECF CHOICES.

(vii) Notwithstanding the Expenditure Caps specified herein, a person enrolled in ECF CHOICES shall not be disenrolled, nor shall currently authorized ECF CHOICES HCBS be reduced, if the sole reason the person's Expenditure Cap would be exceeded is the targeted rate increases in ECF CHOICES HCBS provided via Tennessee's HCBS Spending Plan under Section 9817 of the American Rescue Plan Act of 2021.

5. As the setting of an individual's Expenditure Cap does not, in and of itself, result in any increase or decrease in a Member's services, notice of action shall not be provided regarding the Bureau's Expenditure Cap calculation.

(i) A Member has a right to due process regarding his Expenditure Cap when services are denied or reduced, when a determination is made that an Applicant cannot be enrolled into ECF CHOICES, or a currently enrolled ECF CHOICES Member can no longer remain enrolled in ECF CHOICES because his needs cannot be safely and effectively met in the home and community-based setting at a cost that does not exceed his Expenditure Cap.

(ii) When an adverse action is taken, notice of action shall be provided, and the Applicant or Member shall have the right to a fair hearing regarding any valid factual dispute pertaining to such action, which may include, but is not limited to, whether his Expenditure Cap was calculated appropriately, and to present all relevant and material evidence pertaining to such action.

(iii) Denial of or reductions in ECF CHOICES HCBS based on a Member's Expenditure Cap shall constitute an adverse action, as defined in Rules 1200-13-13-.01 and 1200-13-14-.01, and shall give rise to notice of action and due process rights to request a fair hearing in accordance with Rules 1200-13-13-.11 and 1200-13-14-.11.

(iv) Denial of enrollment and/or involuntary disenrollment because a person's Expenditure Cap will be exceeded shall constitute an eligibility/enrollment action, and shall give rise to notice of action and due process rights to request a fair hearing in accordance with this rule.

(5) Disenrollment from ECF CHOICES. A Member may be disenrolled from ECF CHOICES voluntarily or involuntarily.

(a) Voluntary disenrollment from ECF CHOICES means the Member has chosen to disenroll, and no notice of action shall be issued regarding a Member's decision to voluntarily disenroll from ECF CHOICES. However, notice shall be provided regarding any subsequent adverse action that may occur as a result of the Member's decision, including any change in benefits, cost-sharing responsibility, or continued eligibility for TennCare when the Member's eligibility was conditioned on receipt of LTSS. Voluntary disenrollment shall proceed only upon:

1. Election by the Member to receive institutional services (e.g., NF or ICF/IID services), including hospice services in a NF, which is not a LTSS, provided however, that a Member shall not be disenrolled from ECF CHOICES in order to receive Short-Term NF care as defined in 1200-13-01-.02;

2. Election by the Member to enroll in an MCO that does not administer the ECF CHOICES program (i.e., United Healthcare Community Plan until such time as specified by TennCare or TennCare Select, including Select Community); or

3. Receipt of a statement signed by the Member or his authorized Representative voluntarily requesting disenrollment.

(b) A Member may be involuntarily disenrolled from ECF CHOICES only by the Bureau, although such process may be initiated by a Member's MCO. Reasons for involuntary disenrollment include but are not limited to:

1. The Member no longer meets one or more criteria for eligibility and/or enrollment as specified in this Rule.

2. The Member's needs can no longer be safely met in the community. This may include but is not limited to the following instances:

(i) The home or home environment of the Member becomes unsafe to the extent that it would reasonably be expected that HCBS could not be provided without significant risk of harm or injury to the Member or to individuals who provide covered services to the Member.

(ii) The Member or his representative/conservator or caregiver refuses to abide by the PCSP.

(iii) Even though an adequate provider network is in place, there are no providers who are willing to provide necessary services to the Member.

(iv) The Member's decision to continue receiving services in the home or community poses an unacceptable level of risk.

3. The Member's needs can no longer be safely met in the community at a cost that does not exceed the Member's Expenditure Cap as described in this Rule.

4. The Member no longer needs or is no longer receiving LTSS.

5. The Member has refused to pay his or her Patient Liability. The MCO and/or its participating providers are unwilling to serve the Member in ECF CHOICES because he has not paid his or her Patient Liability, and/or no other MCO is willing to serve the Member in ECF CHOICES.

(6) Transitioning To and From ECF CHOICES.

(a) Transition from CHOICES Group 1 to ECF CHOICES.

1. A member may request to transition from CHOICES Group 1 to ECF CHOICES at any time. The member's MCO is responsible for assessing the member's services and supports needs in the community, developing and implementing a transition plan, as appropriate, and submitting the transition request to TennCare. Only an MCO may submit to TennCare a request to transition a Member from CHOICES Group 1 to ECF CHOICES. An MCO may request to transition a Member from CHOICES Group 1 to ECF CHOICES only when the Member chooses to transition from the NF to an HCBS setting and meets eligibility criteria to enroll in that group, as specified in Rule 1200-13-01-.31(3). Members shall not be required to transition from CHOICES Group 1 to ECF CHOICES.

2. A Member that has already been discharged from the NF shall not be transitioned to ECF CHOICES. Once a Member has discharged from the NF, the Member has voluntarily disenrolled from CHOICES Group 1 and must be newly enrolled into ECF CHOICES, in accordance with these rules. A new PAE shall be required for enrollment into ECF CHOICES.

3. When Members move from CHOICES Group 1 to ECF CHOICES, TennCare must recalculate the Member's Patient Liability based on the Community PNA.

(b) Transition from ECF CHOICES to CHOICES Group 1.

1. An MCO may request to transition a Member from ECF CHOICES to CHOICES Group 1 only under the following circumstances:

(i) The MCO provides advance notification to TennCare, which shall include documentation of thoroughly exploring and exhausting all attempts to provide services in a more integrated community setting.

(ii) The member must meet the nursing facility level of care in place at the time of admission and make an informed choice to transition to a nursing facility and enroll in CHOICES Group 1. Informed choice requires thorough exploration and exhaustion of all integrated community setting options.

(iii) A PASRR shall be completed prior to admission, the member must be determined appropriate for placement in a nursing facility, and all identified specialized services must be coordinated by the MCO immediately upon admission.

2. When Members transition from ECF CHOICES to CHOICES Group 1, TennCare must recalculate the Member's Patient Liability based on the Institutional PNA.

3. At such time as a transition between ECF CHOICES and CHOICES Group 1 is made, the MCO shall issue notice of transition to the Member. Because the Member has elected the transition, such transition shall not constitute an adverse action. Thus, the notice will not include the right to appeal or request a fair hearing regarding the Member's decision.

(c) Individuals enrolled in a Section 1915(c) Waiver shall not be permitted to transition into ECF CHOICES, even if they meet applicable eligibility and enrollment criteria for ECF CHOICES, until such time that the State determines that such transitions can be permitted and in accordance with timeframes and procedures established by TennCare.

(d) Individuals enrolled in CHOICES Group 2 or 3 shall not be permitted to transition into ECF CHOICES, even if they meet applicable eligibility and enrollment criteria for ECF CHOICES, unless the State determines that the individual qualifies for ECF CHOICES, the individual's needs can be more appropriately met in ECF CHOICES, and in accordance with timeframes and procedures established by TennCare.

(7) Benefits in the TennCare ECF CHOICES Program.

(a) Members of ECF CHOICES receive HCBS as specified in an approved Initial Support Plan or PCSP, as applicable, in addition to medically necessary covered benefits available for TennCare Medicaid and TennCare Standard recipients, as specified in Rules 1200-13-13-.04 and 1200-13-14-.04. While receiving ECF CHOICES HCBS, Members are not eligible for NF care, except for Short-Term NF care, as described in this Chapter.

(b) Members are not eligible to receive any other HCBS during the time that Short-Term NF services are provided. ECF CHOICES HCBS such as Minor Home Modifications which are required to facilitate transition from the NF back to the home or community may be provided during the NF stay and billed with date of service being on or after discharge from the NF.

(c) All ECF CHOICES HCBS must be authorized by the MCO in order for MCO payment to be made for the services. ECF CHOICES HCBS must be specified in an approved Initial Support Plan or PCSP, as applicable, and authorized by the MCO prior to delivery of the service in order for MCO payment to be made for the service.

(d) ECF CHOICES HCBS covered under the ECF CHOICES Program and applicable limits are specified below. The benefit limits are applied across all services received by the Member regardless of whether the services are received through CD and/or a traditional provider agency. Corresponding limitations regarding the scope of each service are defined in Rule 1200-13-01-.02 and in Subparagraphs (a) through (c) above.

Service	Benefits for ECF CHOICES Members	Benefits for Consumer Direction ("Eligible ECF CHOICES HCBS")
1. Adult Dental Services	Covered for adults age 21 and older in accordance with limitations specified in Rule 1200-13-01-.02. Orthodontic services are excluded from coverage. Limited to a maximum of five thousand dollars ($5,000) per person per calendar year, and a maximum of seven thousand five hundred dollars ($7,500) per person across three (3) consecutive calendar years. Adult Dental Services that are received on or after January 1, 2023, shall apply to the maximum amount allowable under this rule only if the service is not covered as part of the Dental Services benefit outlined in 1200-13-13-.04 and 1200-13-14-.04. Any Adult Dental Services received prior to January 1, 2023, shall apply to the maximum amounts allowable for the qualifying time period during which the service was performed as outlined by this rule.	No
2. Assistive Technology, Adaptive Equipment and Supplies	Covered with a limit of five thousand dollars ($5,000) per person per calendar year, in combination with Enabling Technology. Not covered under ECF CHOICES if available under Section 110 of the Rehabilitation Act of 1973, or the IDEA (20 U.S.C. §§ 1401 et seq.).	No
3. Community Integration Support Services	Covered in accordance with limitations specified in Rule 1200-13-01-.02. Not covered as a separate service for persons receiving CLS or CLS-FM. For members not working in the community (excludes a facility-based setting) and not receiving any employment services: Up to 20 hours per week of Community Integration Support Services and Independent Living Skills Training combined after completing an Employment Informed Choice process. For members working in the community or receiving at least one employment service: Up to 30 hours per week of Community Integration Support Services, Independent Living Skills Training, and Individual or Small Group Employment Supports combined. For members working in individualized integrated employment or self-employment: Up to 40 hours per week of Community Integration Support Services, Independent Living Skills Training, Job Coaching, Co-Worker Supports and the hours worked without paid supports combined. For members working in individualized integrated employment or self-employment at least 30 hours a week: Up to 50 hours per week of Community Integration Support Services, Independent Living Skills Training, Job Coaching, Co-Worker Supports and the hours worked without paid supports combined. Payment for attendance and materials and supplies at classes and conferences and club/association dues can be covered, but cannot exceed five hundred dollars ($500) per year for children under age twenty (20) or one thousand dollars ($1,000) for adults age twenty-one (21) or older.	No
4. Community Living Supports (CLS) and Community Living Supports"Family Model (CLS-FM)	Covered only for adults age 21 and older enrolled in ECF CHOICES Group 5 or 6.	No
5. Community Support Development, Organization and Navigation	Covered only for Members enrolled in ECF CHOICES Group 4.	No
6. Community Transportation	Covered for transportation to employment and to support participation in community activities when public or other community-based transportation services are not available or when assistance is needed in order to access such benefits. Shall not supplant NEMT available for medical appointments. Limited to $225 per month for Members electing to receive this benefit through Consumer Direction.	Yes
7. Decision Making Supports	Covered. Limited to five hundred dollars ($500) in one-time assistance per member. Legal or court fees may be reimbursed only upon completion of counseling services to protect and preserve individual rights and freedoms.	No
8. Enabling Technology	Covered with a limit of five thousand dollars ($5,000) per person per calendar year, in combination with Assistive Technology, Adaptive Equipment and Supplies. Not covered under ECF CHOICES if available under Section 110 of the Rehabilitation Act of 1973, or the IDEA (20 U.S.C. §§ 1401 et seq.).	No
9. Family Caregiver Education and Training	Covered only for Members enrolled in ECF CHOICES Group 4 when approved in advance by the Member's MCO. Limited to five hundred dollars ($500) per calendar year.	No
10. Family Caregiver Stipend in lieu of SHC	Covered only for Members enrolled in ECF CHOICES Group 4 and only when supports for employment and community integration are provided. For a child under age eighteen (18), the Family Caregiver Stipend shall be limited to five hundred dollars ($500) per month. For an adult age eighteen (18) or older, the Family Caregiver Stipend shall be no more than one thousand dollars ($1,000) per month.	No
11. Family-to-Family Support	Covered only for Members enrolled in ECF CHOICES Group 4.	No
12. Health Insurance Counseling/Forms Assistance	Covered only for Members enrolled in ECF CHOICES Group 4. Limited to fifteen (15) hours per person per calendar year.	No
13. Independent Living Skills Training	Covered in accordance with limitations specified in Rule 1200-13-01-.02. Not covered as a separate service for persons receiving CLS or CLS-FM. For members not working in the community (excludes a facility-based setting) and not receiving any employment services: Up to 20 hours per week of Independent Living Skills Training and Community Integration Support Services combined after completing an Employment Informed Choice process. For members working in the community or receiving at least one employment service: Up to 30 hours per week of Independent Living Skills Training, Community Integration Support Services, and Individual or Small Group Employment Supports combined. For members working in individualized integrated employment or self-employment: Up to 40 hours per week of Independent Living Skills Training, Community Integration Support Services, Job Coaching, Co-Worker Supports and the hours worked without paid supports combined. For members working in individualized integrated employment or self-employment at least 30 hours a week: Up to 50 hours per week of Independent Living Skills Training, Community Integration Support Services, Job Coaching, Co-Worker Supports and the hours worked without paid supports combined.	No
14. Individual Education and Training Services	Covered only for Members enrolled in ECF CHOICES Group 5 or 6 when approved in advance by the Member's MCO. Limited to five hundred dollars ($500) per Member per calendar year.	No
15. Integrated Employment Path Services (time limited prevocational training)	Covered for persons age 16 or older in accordance with limitations specified in Rule 1200-13-01-.02. Limited to no more than twelve (12) months. One extension of up to twelve (12) months can be allowed only if the individual is actively pursuing individualized employment in an integrated setting and has documentation that a service(s) (e.g. Job Development or Self-Employment Start-Up funded by Tennessee Rehabilitation Services, this Waiver or another similar source) is concurrently authorized for this purpose. Limited to 30 hours per week of Integrated Employment Path Services, other Individual or Small Group Employment Supports, Independent Living Skills Training, and Community Integration Support Services combined.	No
16. Minor Home Modifications	Covered in accordance with limitations specified in Rule 1200-13-01-.02 and with a limit of $6,000 per project, $10,000 per calendar year, and $20,000 per lifetime.	No
17. Peer-to-Peer Support and Navigation for Person-Centered Planning, Self-Direction, Integrated Employment/Self-Employment and Independent Community Living	Covered only for Members enrolled in ECF CHOICES Group 5 or 6. Limited to one thousand five hundred dollars ($1,500) per person per lifetime.	No
18. Personal Assistance	Covered only for ECF CHOICES Members enrolled in Group 5 or 6. In ECF CHOICES Group 6 (Comprehensive Supports for Employment and Community Living) benefit group, Personal Assistance is limited to two hundred fifteen (215) hours per month.	Yes
19. Respite	Covered with limitations as follows: Up to thirty (30) days of service per person per calendar year or up to two hundred sixteen (216) hours per person per calendar year, depending on the needs and preferences of the individual as reflected in the PCSP. The two (2) limits cannot be combined in a calendar year.	Yes for hourly Respite only; daily Respite shall not be available through Consumer Direction
20. Specialized Consultation and Training	Covered only for adults age 21 or older enrolled in ECF CHOICES Group 5 or 6. Limited to five thousand dollars ($5,000) per person per calendar year, except for adults in the Comprehensive Supports for Employment and Community Living benefit group determined to have exceptional medical and/or behavioral support needs pursuant to the Level of Need process described in Rule 1200-13-01-.02. For adults age 21 and older in ECF CHOICES Group 6 (Comprehensive Supports for Employment and Community Living) determined by TennCare to have exceptional medical and/or behavioral support needs, Specialized Consultation and Training shall be limited to ten thousand dollars ($10,000) per person per calendar year.	No
21. Supportive Home Care (SHC)	Covered only for Members enrolled in ECF CHOICES Group 4.	Yes
22. Supported Employment Individual Employment Support	Covered for persons age 16 or older (or age 14 or older, as specified) in accordance with limitations specified in Rule 1200-13-01-.02, and with the following components:	No
	Exploration " Covered for persons age 14 or older in accordance with limitations specified in Rule 1200-13-01-.02. Limited to once per year (with a minimum 365-day interval between services) and only if the person, at the time of re-authorization, is not already engaged in individualized integrated employment or self-employment, or other services to obtain such employment.	No
	Benefits Counseling " Covered for persons age 16 or older in accordance with limitations specified in Rule 1200-13-01-.02. Limited to people receiving individual employment supports. Persons receiving small group employment supports are not eligible for this benefit. Initial Benefits Counseling for someone actively considering or seeking individualized integrated employment or self-employment, or career advancement in these types of employment: up to twenty (20) hours. This service may be authorized no more than once every two (2) years (with a minimum of two 365-day intervals between services). Supplementary Benefits Counseling for someone evaluating an individualized integrated job offer/promotion or self-employment opportunity: up to an additional six (6) hours. This service may be authorized up to three (3) times per year if needed. PRN problem-solving services for someone to maintain individualized integrated employment or self-employment: up to eight (8) hours per situation requiring PRN assistance. This service may be authorized up to four (4) times per year if necessary for the individual to maintain individualized integrated employment or self-employment. Service must not be available under Section 110 of the Rehabilitation Act of 1973, or the IDEA (20 U.S.C. §§ 1401, et seq.). ECF may not fund this service if CWIC Benefits Counseling services funded through the Federal Work Incentives Planning and Assistance (WIPA) program are available.	No
	Discovery - Covered for persons age 14 or older in accordance witii limitations specified in Rule 1200-13-01-.02. Limited to no more than ninety (90) calendar days from the date of service initiation.	No
	Situational Observation and Assessment - Covered for persons age 14 or older in accordance with limitations specified in Rule 1200-13-01-.02. Limited to once every three years (with a minimum of three 365-day intervals between services), and only if the person, at the time of re-authorization, is not already engaged in individualized integrated employment or self-employment, or other services to obtain such employment, and the person has a goal to obtain individualized integrated employment or self-employment within twelve (12) months.	No
	Job Development Plan or Self-Employment Plan - Covered for persons age 16 or older in accordance with limitations specified in Rule 1200-13-01-.02. Limited to once every three years (with a minimum of three 365-day intervals between services), and only if the person, at the time of re-authorization, is not already engaged in individualized integrated employment or self-employment, or other services to obtain such employment, and the person has a goal to obtain individualized integrated employment or self-employment within twelve (12) months. Medicaid funds may not be used to defray the capital expenses associated with starting a business.	No
	Job Development Plan or Self-Employment Start Up " Covered for persons age 16 or older in accordance with limitations specified in Rule 1200-13-01-.02. Limited to once per year (with a minimum 365-day interval between services), and only if the person, at the time of re-authorization, is not already engaged in individualized integrated employment or self-employment, or other services to obtain such employment, and the person has a goal to obtain individualized integrated employment or self-employment within nine (9) months.	No
	Job Coaching " Covered for persons age 16 or older in accordance with limitations specified in Rule 1200-13-01-.02. Covered only for members working in individualized integrated employment or self-employment. Limited to 40 hours per week of Job Coaching, Co-Worker Supports, the hours worked without paid supports, Independent Living Skills Training, and Community Integration Support Services combined. For members working in individualized integrated employment or self-employment at least 30 hours a week: Limited to 50 hours per week of Job Coaching, Co-Worker Supports, the hours worked without paid supports, Independent Living Skills Training, and Community Integration Support Services combined.	No
	Co-Worker Supports " Covered for persons age 16 or older in accordance with limitations specified in Rule 1200-13-01-.02. Covered only for members working in individualized integrated employment or self-employment. Limited to 40 hours per week of Co-Worker Supports, Job Coaching, the hours worked without paid supports, Independent Living Skills Training, and Community Integration Support Services combined. For members working in individualized integrated employment or self-employment at least 30 hours a week. Limited to 50 hours per week of Co-Worker Supports, Job Coaching, the hours worked without paid supports, Independent Living Skills Training, and Community Integration Support Services combined.	No
	Career Advancement " Covered for persons age 16 or older in accordance with limitations specified in Rule 1200-13-01-.02. This service shall not be authorized retroactive to a promotion or second job being made available to a person. Supports for Career Advancement may be authorized and paid once every three (3) years (with a minimum of three 365-day intervals between services), if evidence exists that the individual is eligible for promotion or able to present as a strong candidate for employment in a second job (e.g. has strong reference, performance reviews and attendance record from current employer).	No
23. Supported Employment Small Group Supports	Covered for persons age 16 or older in accordance with limitations specified in Rule 1200-13-01-.02. Limited to 30 hours per week of Small Group or Individual Employment Supports, Integrated Employment Path Services, Independent Living Skills Training, and Community Integration Support Services combined.	No

(8) Consumer Direction (CD).

(a) CD is a model of service delivery that affords ECF CHOICES Members the opportunity to have more choice and control with respect to Eligible ECF CHOICES HCBS that are needed by the Member, in accordance with this Rule. CD is not a service or set of services.

(b) ECF CHOICES HCBS eligible for CD (Eligible ECF CHOICES HCBS).

1. CD shall be limited to the following HCBS:

(i) Personal Assistance.

(ii) Supportive Home Care.

(iii) Hourly Respite. (Daily Respite shall not be available through CD.)

(iv) Community Transportation.

2. ECF CHOICES Members determined to need Eligible ECF CHOICES HCBS may elect to receive one or more of the Eligible ECF CHOICES HCBS through a Contract Provider, or they may participate in CD.

3. ECF CHOICES Members who do not need Eligible ECF CHOICES HCBS shall not be offered the opportunity to enroll in CD.

4. The model of CD that will be implemented in ECF CHOICES is a modified budget authority model.

5. Each Eligible ECF CHOICES HCBS identified in the Member's PCSP that the Member elects to receive through CD shall have an individual monthly or annual budget, as specified below.

6. The amount of the budget authorized for each Eligible ECF CHOICES HCBS the Member elects to receive through CD shall be based on a comprehensive needs assessment performed by a Support Coordinator that identifies the Member's needs, the availability of family and other unpaid caregivers to meet those needs, and the gaps in care for which paid ECF CHOICES may be authorized.

(i) Each Eligible ECF CHOICES HCBS received through CD shall have a separate budget.

(ii) The budget for each Eligible ECF CHOICES HCBS received through CD shall be based on the number of units of that service the member is assessed to need, subject to applicable benefit limits and the Member's Expenditure Cap.

(iii) Once the budget for each Eligible ECF CHOICES HCBS is determined and authorized, the Member shall have flexibility to determine the rate of reimbursement for that service (subject to any limitations established by TennCare), and to purchase additional units of the service so long as the budget for that service is not exceeded.

(iv) The budget for each Eligible ECF CHOICES HCBS shall be separately maintained. A Member shall not direct money from the budget for one Eligible ECF CHOICES HCBS to purchase a different Eligible ECF CHOICES HCBS, provided however, that a Member's PCSP (and consequently, the budget for any affected Eligible ECF CHOICES HCBS) may be amended based on the Member's needs, as appropriate.

(v) Any money remaining in a Member's monthly budget for Personal Assistance, Supportive Home Care or Community Transportation at the end of a month shall not be carried over to the next month, and cannot be used to purchase units of service in any other month.

(vi) Any money remaining in a Member's annual budget for hourly Respite at the end of the calendar year shall not be carried over to the next year, and cannot be used to purchase additional units of service in a subsequent calendar year.

7. The amount of the budget for each Eligible ECF CHOICES HCBS shall be authorized as follows:

(i) Personal Assistance for Members enrolled in ECF CHOICES Group 5 or Group 6 and Supportive Home Care for Members enrolled in ECF CHOICES Group 4 shall have a monthly budget if provided through Consumer Direction.

(I) A Member shall only direct CD Workers to provide Personal Assistance or Supportive Home Care, as applicable, up to the amount of the authorized monthly budget for that service.

(II) A Member shall not ask or allow a CD Worker to provide services in excess of the authorized monthly budget for that service.

(III) If a Member exhausts the authorized monthly budget for a service before the month has ended, additional services shall not be authorized for the remainder of the month.

(IV) If a Member (or his Representative for CD) is not able to manage services within the approved budget for the service, the Member may not be able to remain in CD.

(ii) Community Transportation for Members enrolled in ECF CHOICES shall have a monthly budget if provided through CD.

(I) The monthly budget shall be based on the number of days in the month that the Member is expected to need Community Transportation services.

(II) The Member may receive the first month's budget allotment in advance. The advance monthly budget allotment shall be used to purchase only Community Transportation services as defined in these rules.

(III) A Member may purchase Community Transportation services in the most cost-efficient manner possible, including public transportation (e.g., bus passes), paying a co-worker to share gas expenditures, etc.

(IV) A Member shall not reimburse any person who resides with the Member for Community Transportation.

(V) The Member is obligated to maintain a Community Transportation log and receipts for Community Transportation expenditures as required by TennCare and to submit such information on a monthly basis to his MCO.

(VI) A Member shall only purchase Community Transportation up to the amount of the authorized monthly budget for that service.

(VII) The Member's monthly Community Transportation budget shall be reimbursed only for documented purchases of Community Transportation services submitted to the MCO.

(VIII) A Member shall not be reimbursed for Community Transportation services in excess of the authorized monthly budget for that service.

(IX) If a Member exhausts the authorized monthly budget for Community Transportation services before the month has ended, additional services shall not be authorized for the remainder of the month.

(X) If a Member (or his Representative for CD) is not able to manage services within the approved budget for the service, the Member may not be able to remain in CD.

(iii) Respite services for Members enrolled in ECF CHOICES shall have an annual budget if provided through Consumer Direction.

(I) The annual budget shall operate on a calendar year (January 1 through December 31).

(II) A Member who elects to receive Respite through CD shall receive up to 216 hours per year of Respite services. (Daily Respite shall not be available through CD.)

(III) A Member shall only direct CD Workers to provide Respite services, as applicable, up to the amount of the authorized annual budget for that service.

(IV) A Member shall not ask or allow a CD Worker to provide services in excess of the authorized annual budget for that service.

(V) If a Member exhausts the authorized annual budget for Respite services before the calendar year has ended, additional services shall not be authorized for the remainder of the year.

(VI) If a Member (or his Representative for CD) is not able to manage services within the approved budget for the service, the Member may not be able to remain in CD.

8. HH Services, PDN Services, and ECF CHOICES HCBS other than those specified above shall not be available through CD.

(c) Eligibility for CD. To be eligible for CD, an ECF CHOICES Member must meet all of the following criteria:

1. Be a Member of ECF CHOICES.

2. Be determined by a Support Coordinator, based on a comprehensive needs assessment, to need one or more Eligible ECF CHOICES HCBS.

3. Be willing and able to serve as the Employer of Record for his Consumer-Directed Workers and to fulfill all of the required responsibilities for CD, or he must have a qualified Representative who is willing and able to serve as the Employer of Record and to fulfill all of the required responsibilities for CD. Assistance shall be provided to the Member or his Representative by the FEA.

4. Any additional risks associated with a Member's decision to participate in CD must be identified and addressed in the PCSP, as applicable, and the MCO must determine that the Member's needs can be safely and appropriately met in the community while participating in CD.

5. The Member or his Representative for CD and any Workers he employs must agree to use the services of the Bureau's contracted FEA to perform required Financial Administration and Supports Brokerage functions.

(d) Enrollment in CD.

1. An ECF CHOICES Member assessed to need one or more Eligible ECF CHOICES HCBS may elect to participate in CD at any time.

2. If the Member is unable to make a decision regarding his participation in CD or to communicate his decision, only a legally appointed Representative may make such decision on his behalf. The Member, or a family member or other caregiver, must sign a CD participation form reflecting the decision the Member has made.

3. If the Member is unable to make a decision regarding CD or to communicate his decision and does not have a legally appointed Representative, the Member cannot participate in CD since there is no one with the legal authority to assume and/or delegate the Member's CD responsibilities.

4. Self-Assessment Tool. If a Member elects to participate in CD, he must complete a self-assessment tool developed by the Bureau to determine whether he requires the assistance of a Representative to perform the responsibilities of CD.

5. Representative. If the Member requires assistance in order to participate in CD, he must designate, or have appointed by a legally appointed Representative, a Representative to assume the CD responsibilities on his behalf.

(i) A Representative for CD must meet all of the following criteria:

(I) Be at least eighteen (18) years of age;

(II) Have a personal relationship with the Member and understand his support needs;

(III) Know the Member's daily schedule and routine, medical and functional status, medication regimen, likes and dislikes, strengths and weaknesses; and

(IV) Be physically present in the Member's residence on a regular basis or at least at a frequency necessary to supervise and evaluate each Consumer-Directed Worker.

(ii) If a Member requires a Representative but is unwilling or unable to appoint one, the MCO may submit to the Bureau, for review and approval, a request to deny the Member's participation in CD.

(iii) If a Member's Support Coordinator believes that the person selected as the Member's representative for CD does not meet the specified requirements (e.g., the Representative is not physically present in the Member's residence at a frequency necessary to adequately supervise Workers), the Support Coordinator may request that the Member select a different Representative who meets the specified requirements. If the Member does not select another Representative who meets the specified requirements, the MCO may, in order to help ensure the Member's health and safety, submit to the Bureau, for review and approval, a request to deny the Member's participation in CD.

(iv) A Member's Representative shall not receive payment for serving in this capacity and shall not serve as the Member's paid Worker for any Consumer-Directed Service.

(v) Representative Agreement. A Representative Agreement must be signed by the Member (or person authorized to sign on the Member's behalf) and the Representative in the presence of the Support Coordinator. By completing a Representative agreement, the Representative confirms that he agrees to serve as a Member's representative and that he accepts the responsibilities and will perform the duties associated with being a Representative.

(vi) A Member may change his Representative at any time by notifying his Support Coordinator and his Supports Broker that he intends to change Representative. The Support Coordinator shall verify that the new Representative meets the qualifications as described above. A new Representative Agreement must be completed and signed, in the presence of a Support Coordinator, prior to the new Representative assuming his respective responsibilities.

(e) Employer of Record.

1. If a Member elects to participate in CD, either he or his Representative must serve as the Employer of Record.

2. The Employer of Record is responsible for the following:

(i) Finding, interviewing, hiring and firing Workers;

(ii) Determining Workers" duties and developing job descriptions;

(iii) Training Workers to provide personalized support based on the Member's needs and preferences;

(iv) Scheduling Workers;

(v) Ensuring there are enough Workers hired to provide all of the support needed by the Member (including when the Worker scheduled is unable to report to work);

(vi) Ensuring the Worker(s) keep correct time sheets for the services and supports provided;

(vii) Reviewing and approving hours reported by Consumer-Directed Workers;

(viii) Ensuring Workers provide only as much support as assigned to provide and as needed by the Member;

(ix) Ensuring that no Worker provides more than 40 hours of support each week unless the Member or Representative for CD has decided to pay overtime out of the Member's approved budget;

(x) Managing the services the Member needs within the Member's approved budget for each service;

(xi) Supervising Workers;

(xii) Evaluating Worker performance and addressing any identified deficiencies or concerns;

(xiii) Setting wages from a range of reimbursement levels established by the Bureau;

(xiv) Reviewing and ensuring proper documentation for services provided; and

(xv) Developing and implementing as needed a Back-up Plan to address instances when a scheduled Worker is not available or fails to show up as scheduled.

(f) Denial of Enrollment in CD.

1. Enrollment into CD may be denied by the Bureau when:

(i) The person is not enrolled in TennCare or in ECF CHOICES.

(ii) The Member does not need one or more of the HCBS eligible for CD, as specified in the PCSP.

(iii) The Member is not willing or able to serve as the Employer of Record for his Consumer-Directed Workers and to fulfill all of the required responsibilities for CD, and does not have a qualified Representative who is willing and able to serve as the Employer of Record and to fulfill all of the required responsibilities for CD.

(iv) The Member is unwilling, with the assistance of his Support Coordinator, to identify and address any additional risks associated with the Member's decision to participate in CD, or the risks associated with the Member's decision to participate in CD pose too great a threat to the Member's health, safety and welfare.

(v) The Member does not have an adequate Back-up Plan for CD.

(vi) The Member's needs cannot be safely and appropriately met in the community while participating in CD.

(vii) The Member or his Representative for CD, or the Consumer-Directed Workers he wants to employ, are unwilling to use the services of the Bureau's contracted FEA to perform required Financial Administration and Supports Brokerage functions.

(viii) Other significant concerns regarding the Member's participation in CD which jeopardize the health, safety or welfare of the Member.

2. Denial of enrollment in CD gives rise to notice and due process including the right to a fair hearing, as set forth in this rule.

(g) Fiscal Employer Agent (FEA).

1. The FEA shall perform the following functions on behalf of all Members participating in CD:

(i) Financial Administration functions in the performance of payroll and related tasks; and

(ii) Supports Brokerage functions to assist the Member or his Representative with other non-payroll related tasks such as the completion of CD enrollment paperwork and assistance with employer functions as requested.

2. The FEA shall:

(i) Assign a Supports Broker to each ECF CHOICES Member electing to participate in CD of Eligible ECF CHOICES HCBS.

(ii) Provide initial and ongoing training to Members and their Representatives (as applicable) on CD and other relevant issues.

(iii) Verify Worker qualifications, including conducting background checks on Workers, enrolling Workers into TennCare, requesting from TennCare the assignment of Medicaid provider ID numbers, and holding TennCare provider agreements.

(iv) Provide initial and ongoing training to Workers on CD and other relevant issues such as the use of the FEA time keeping system.

(v) Assist the Member and/or Representative in developing and updating Service Agreements.

(vi) Withhold, file and pay applicable federal, state and local income taxes; employment and unemployment taxes; and worker's compensation.

(vii) Pay Workers for authorized services rendered within authorized timeframes.

(h) Back-up Plan for Consumer-Directed Workers.

1. Each Member participating in CD or his Representative is responsible for the development and implementation of a Back-up Plan that identifies how the Member or Representative will address situations when a scheduled Worker is not available or fails to show up as scheduled.

2. The Member or Representative may not elect, as part of the Back-up Plan, to go without services.

3. The Back-up Plan for CD shall include the names and telephone numbers of contacts (Workers, agency staff, organizations, supports) for alternate care, the order in which each shall be notified and the services to be provided by contacts.

4. Back-up contacts may include paid and unpaid supports; however, it is the responsibility of the Member electing CD and/or his Representative to secure paid (as well as unpaid) back-up contacts who are willing and available to serve in this capacity, and for initiating the back-up plan when needed.

5. The Member's Back-up Plan for Consumer-Directed Workers shall be integrated into the Member's Back-up Plan for services provided by Contract Providers, as applicable, and the Member's PCSP.

6. The Support Coordinator shall review the Back-up Plan developed by the Member and/or his Representative to determine its adequacy to address the Member's needs. If an adequate Back-up Plan cannot be provided to CD, enrollment into CD may be denied, as set forth in this Rule.

7. The Back-up Plan shall be reviewed and updated at least annually, and as frequently as necessary if there are changes in the type, amount, duration, scope of eligible ECF CHOICES HCBS or the schedule at which such services are needed, changes in Workers (when such Workers also serve as a back-up to other Workers) and changes in the availability of paid or unpaid back-up Workers to deliver needed support.

8. A Member may use Contract Providers to serve as back-up to Consumer Directed Workers only upon prior arrangement by the Member (or Representative for CD) with the Contract Provider, inclusion in the Member's back-up plan, verification by the Supports Broker, prior approval by the MCO, and subject to the Member's Expenditure Cap as described in Rule 1200-13-01-.31(4)(d). If the higher cost of services delivered by a Contract Provider would result in a Member's Expenditure Cap being exceeded, a Member shall not be permitted to use Contract Providers to provide back-up workers. A Member's MCO shall not be required to maintain Contract Providers on "stand-by" to provide back-up for services delivered through Consumer Direction.

(i) Consumer-Directed Workers (Workers).

1. Hiring Consumer-Directed Workers.

(i) Members shall have the flexibility to hire individuals with whom they have a close personal relationship to serve as Workers, such as neighbors or friends.

(ii) Members may hire family members, excluding spouses, to serve as Workers. However, a family member shall not be reimbursed for a service that he would have otherwise provided without pay. A Member shall not be permitted to employ any person who resides with the Member to deliver Personal Assistance, Supportive Home Care or hourly Respite services. A Member shall not reimburse any person who resides with the Member for Community Transportation.

(iii) Members may elect to have a Worker provide more than one service, have multiple Workers, or have both a Worker and a Contract Provider for a given service, in which case, there must be a set schedule which clearly defines when Contract Providers will be used.

2. Qualifications of Consumer-Directed Workers. Workers must meet the following requirements prior to providing services:

(i) Be at least eighteen (18) years of age or older;

(ii) Complete a background check that includes a criminal background check (including fingerprinting), or, as an alternative, a background check from a licensed private investigation company;

(iii) Verification that the person's name does not appear on the State abuse registry;

(iv) Verification that the person's name does not appear on the State and national sexual offender registries and licensure verification, as applicable;

(v) Verification that the person has not been excluded from participation in Medicare, Medicaid, SCHIP, or any Federal health care programs (as defined in Section 128B(f) of the Social Security Act);

(vi) Complete all required training;

(vii) Complete all required applications to become a TennCare provider;

(viii) Sign an abbreviated Medicaid agreement;

(ix) Be assigned a Medicaid provider ID number;

(x) Sign a Service Agreement; and

(xi) If the Worker will be transporting the Member as specified in the Service Agreement, a valid driver's license and proof of insurance must also be provided.

3. Disqualification from Serving as a Consumer-Directed Worker. A Member cannot waive the completion of a background check for a potential Worker. A background check may reveal a potential Worker's past criminal conduct that may pose an unacceptable risk to the Member. Any of the following findings may place the Member at risk and may disqualify a person from serving as a Worker:

(i) Conviction of an offense involving physical, sexual or emotional abuse, neglect, financial exploitation or misuse of funds, misappropriation of property, theft from any person, violence against any person, or manufacture, sale, possession or distribution of any drug; and/or

(ii) Entering of a plea of nolo contendere or when a jury verdict of guilty is rendered but adjudication of guilt is withheld with respect to a crime reasonably related to the nature of the position sought or held.

4. Individualized Assessment of a Consumer-Directed Worker with a Criminal Background.

(i) If a potential Worker's background check includes past criminal conduct, the Member (or Representative for CD) must review the past criminal conduct with the help of the FEA. The Member (or Representative for CD), with the assistance of the FEA, will consider the following factors:

(I) Whether or not the evidence gathered during the potential Worker's individualized assessment shows the criminal conduct is related to the job in such a way that could place the Member at risk;

(II) The nature and gravity of the offense or conduct, such as whether the offense is related to physical or sexual or emotional abuse of another person, if the offense involves violence against another person, or the manufacture, sale, or distribution of drugs; and

(III) The time that has passed since the offense or conduct and/or completion of the sentence.

(ii) After considering the above factors and any other evidence submitted by the potential Worker, the Member (or Representative for CD) must decide whether to hire the potential Worker.

(iii) If a Member (or Representative for CD) decides to hire the Worker, the FEA shall assist the Member (or Representative for CD) in notifying the Member's MCO of this decision and shall collaborate with the Member's MCO to amend the Member's PCSP to reflect the Member's (or CD Representative's) decision to voluntarily assume the risk associated with hiring an individual with a criminal history and that the Member (or Representative for CD) is solely responsible for any negative consequences stemming from that decision. The FEA shall also collaborate with the Member's MCO on a risk mitigation strategy.

5. Service Agreement.

(i) A Member shall develop a Service Agreement with each Worker, which includes, at a minimum:

(I) The roles and responsibilities of the Worker and the Member;

(II) The Worker's typical schedule (as developed by the Member and/or Representative), including hours and days;

(III) The scope of each service (i.e., the specific tasks and functions the Worker is to perform);

(IV) The service rate; and

(V) The requested start date for services.

(ii) The Service Agreement must be in place for each Worker prior to the Worker providing services.

6. Payments to Consumer-Directed Workers.

(i) Rates. Members participating in CD have the flexibility to set wages for their Workers from a range of reimbursement levels established by TennCare.

(ii) Payments to Consumer-Directed Workers. In order to receive payment for services rendered, all Workers must:

(I) Deliver services in accordance with the services specified in the Member's PCSP, the monthly or annual budget as approved in the MCO's service authorization, and in accordance with the schedule set by the Member or the Member's Representative for CD and Worker assignments determined by the Member or his Representative.

(II) Use the FEA time keeping system to record in and out times for each visit.

(III) Provide detailed documentation of service delivery including but not limited to the specific tasks and functions performed for the Member at each visit, which shall be maintained in the Member's home.

(IV) Provide no more than forty (40) hours of services within a consecutive seven (7) day period, unless explicitly directed by the Employer of Record who by such direction, agrees to pay the worker over-time pay out of the Member's budget in accordance with the Fair Labor Standards Act. This shall reduce the amount of services that may be purchased for the Member during that month.

(iii) Termination of Consumer-Directed Workers" Employment.

(I) A Member may terminate a Worker's employment at any time.

(II) The MCO may not terminate a Worker's employment, but may request that a Member be involuntarily withdrawn from CD if it is determined that the health, safety and welfare of the Member may be in jeopardy if the Member continues to employ a Worker but the Member and/or Representative does not want to terminate the Worker.

(j) Withdrawal from Participation in Consumer Direction (CD).

1. General.

(i) Voluntary Withdrawal from CD. Members participating in CD may voluntarily withdraw from participation in CD at any time. The Member's request must be in writing. Whenever possible, notice of a Member's decision to withdraw from participation in CD should be provided in advance to permit time to arrange for delivery of services through Contracted Providers.

(ii) Voluntary or involuntary withdrawal of a Member from CD of Eligible ECF CHOICES HCBS shall not affect a Member's eligibility for LTSS or enrollment in ECF CHOICES, provided the Member continues to meet all requirements for enrollment in ECF CHOICES as defined in this Chapter.

(iii) If a Member voluntarily withdraws or is involuntarily withdrawn from CD, any Eligible ECF CHOICES HCBS he receives shall be provided through Contract Providers, subject to the requirements in this Chapter.

2. Involuntary Withdrawal.

(i) A person may be involuntarily withdrawn from participation in CD of HCBS for any of the following reasons:

(I) The person is no longer enrolled in TennCare.

(II) The person is no longer enrolled in ECF CHOICES.

(III) The Member no longer needs any of the Eligible ECF CHOICES HCBS, as specified in the PCSP.

(IV) The Member is no longer willing or able to serve as the Employer of Record for his Consumer-Directed Workers and to fulfill all of the required responsibilities for CD, and does not have a qualified Representative who is willing and able to serve as the Employer of Record and to fulfill all of the required responsibilities for CD.

(V) The Member is unwilling to work with the Support Coordinator to identify and address any additional risks associated with the Member's decision to participate in CD, or the risks associated with the Member's decision to participate in CD pose too great a threat to the Member's health, safety and welfare.

(VI) The health, safety and welfare of the Member may be in jeopardy if the Member or his Representative continues to employ a Worker but the Member or Representative does not want to terminate the Worker.

(VII) The Member does not have an adequate Back-up Plan for CD.

(VIII) The Member's needs cannot be safely and appropriately met in the community while participating in CD.

(IX) The Member or his Representative for CD, or Consumer-Directed Workers he wants to employ are unwilling to use the services of the Bureau's contracted FEA to perform required Financial Administration and Supports Brokerage functions.

(X) The Member or his Representative for CD is unwilling to abide by the requirements of the ECF CHOICES CD program.

(XI) If a Member's Representative fails to perform in accordance with the terms of the Representative Agreement and the health, safety and welfare of the Member is at risk, and the Member wants to continue to use the Representative.

(XII) If a Member has consistently demonstrated that he is unable to manage, with sufficient supports, including appointment of a Representative, his services and the Support Coordinator or FEA has identified health, safety and/or welfare issues.

(XIII) A Support Coordinator has determined that the health, safety and welfare of the Member may be in jeopardy if the Member continues to employ a Worker but the Member or Representative does not want to terminate the Worker.

(XIV) Other significant concerns regarding the Member's participation in CD which jeopardize the health, safety or welfare of the Member.

(ii) The Bureau must review and approve all MCO requests for involuntary withdrawal from CD of eligible HCBS before such action may occur. If the Bureau approves the request, written notice shall be given to the Member at least ten (10) days in advance of the withdrawal. The date of withdrawal may be delayed when necessary to allow adequate time to transition the Member to Contract Provider services as seamlessly as possible.

(iii) The Member shall have the right to appeal involuntary withdrawal from CD.

(iv) If a person is no longer enrolled in TennCare or in ECF CHOICES, his participation in CD shall be terminated

(9) HCBS Providers in ECF CHOICES.

(a) HCBS providers delivering services under ECF CHOICES must meet specified license, training and background check requirements and shall meet conditions for reimbursement outlined in their provider agreements with the TennCare MCOs.

(b) MCOs may contract with non-participating HCBS providers as needed through a single case agreement and will reimburse the provider at no less than eighty percent (80%) of the lowest rate paid to any contracted HCBS provider in the state for that service.

(10) Appeals.

(a) Appeals related to determinations of eligibility for TennCare Medicaid or TennCare Standard are processed by TennCare, in accordance with Chapters 1200-13-13 and 1200-13-14.

(b) Appeals related to the denial, reduction, suspension, or termination of a covered service are processed by the Bureau in accordance with Rules 1200-13-13-.11 and 1200-13-14-.11, provided however that notice and continuation of benefits shall not be provided for ECF CHOICES HCBS identified in the Initial SP that are needed by the ECF CHOICES member immediately upon enrollment in ECF CHOICES while the Support Coordinator develops the comprehensive PCSP. A member may request a fair hearing regarding any covered benefit not approved in the PCSP that he believes is needed.

(c) Appeals related to the PAE process (including decisions pertaining to the PASRR process) are processed by the Bureau's Division of Long-Term Services and Supports in accordance with Rule 1200-13-01-.10(7).

(d) Appeals related to the enrollment or disenrollment of an individual in ECF CHOICES or to denial or involuntary withdrawal from participation in CD are processed by the Division of Long-Term Services and Supports in the Bureau, in accordance with the following procedures:

1. If enrollment into ECF CHOICES or if participation in CD is denied, notice containing an explanation of the reason for such denial shall be provided. The notice shall include the person's right to request a fair hearing within thirty (30) days from receipt of the written notice regarding valid factual disputes pertaining to the enrollment denial decision.

2. If a Member is involuntarily disenrolled from ECF CHOICES, or if participation in CD is involuntarily withdrawn, advance notice of involuntary disenrollment or withdrawal shall be issued. The notice shall include a statement of the Member's right to request a fair hearing within thirty (30) days from receipt of the written notice regarding valid factual disputes pertaining to the decision.

3. Appeals regarding denial of enrollment into ECF CHOICES, involuntary disenrollment from ECF CHOICES, or denial or involuntary withdrawal from participation in CD must be filed in writing with the TennCare Division of Long-Term Services and Supports within thirty-five (35) days of issuance of the written notice if the appeal is filed with the Bureau by fax, and within forty (40) days of issuance of the written notice if the appeal is mailed to the Bureau. This allows five (5) days mail time for receipt of the written notice and when applicable, five (5) days mail time for receipt of the written appeal.

4. In the case of involuntary disenrollment from ECF CHOICES only, if the appeal is received prior to the date of action, continuation of ECF CHOICES benefits shall be provided, pending resolution of the disenrollment appeal.

5. In the case of involuntary withdrawal from participation in CD, if the appeal is received prior to the date of action, continuation of participation in CD shall be provided, unless such continuation would pose a serious risk to the Member's health, safety and welfare, in which case, services specified in the PCSP shall be made available through Contract Providers pending resolution of the appeal.

(e) A member may present all relevant and material evidence pertaining to the adverse action.

(11) Management of the Referral List for ECF CHOICES.

(a) A new referral list shall be established for ECF CHOICES.

(b) The referral list shall be managed by TennCare on a statewide basis.

1. The ECF CHOICES referral list management process generally includes three (3) steps: screening, intake and enrollment. The referral management process shall be used to help manage Potential Applicants and Applicants for ECF CHOICES in accordance with established prioritization and enrollment criteria.

2. Intake and enrollment into ECF CHOICES from the referral list shall proceed in accordance with these Rules and with TennCare policies and protocols.

3. Potential Applicants for ECF CHOICES shall be categorized on the ECF CHOICES referral list as follows:

(i) Category 1 - Any age or level of disability, employed and in need of supports to maintain employment that are not otherwise available as vocational rehabilitation services funded under Section 110 of the Rehabilitation Act of 1973, 29 U.S.C. § 730, or as special education or related services as those terms are defined in Section 602 of the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1401.

(I) Includes youth age 18-22 transitioning from school and young adults completing post-secondary education or training who are employed and in need of supports to maintain employment.

(II) If employment is lost after enrollment into ECF CHOICES occurs, the person shall not be disenrolled if other ECF CHOICES HCBS are needed on an ongoing basis, which may include supports to obtain and maintain new employment.

(ii) Category 2 - 18-22 years old, regardless of the level of disability, transitioning from school and young adults completing post-secondary education or training who are employed or who have the commitment of employment from an employer and are in need of employment supports that are not otherwise available as vocational rehabilitation services funded under Section 110 of the Rehabilitation Act of 1973, 29 U.S.C. § 730.

Includes individuals age 18-22 and young adults completing post-secondary education or training who are participating in paid or unpaid internships with the commitment of employment and individuals with more significant needs who may require employment customization.

(iii) Category 3 - Any age or level of disability, recently unemployed and in need of supports to obtain and/or maintain new employment that are not otherwise available as vocational rehabilitation services funded under Section 110 of the Rehabilitation Act of 1973, 29 U.S.C. § 730

(iv) Category 4 - 18-22 years old, regardless of the level of disability, transitioning from school with expressed desire for employment.

(v) Category 5 - Unemployed, regardless of the level of disability, with desire and commitment to work.

(vi) Category 6 - Youth of transition age, regardless of the level of disability, living at home with family caregivers, who are actively planning for employment as part of the transition process and in need of supports provided in ECF CHOICES, including for individuals with more significant needs, employment customization, in order to achieve and maintain employment that are not otherwise available as vocational rehabilitation services funded under Section 110 of the Rehabilitation Act of 1973, 29 U.S.C. § 730, or as special education or related services as those terms are defined in Section 602 of the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1401.

Category 6 shall be applicable only to enrollment into ECF CHOICES Group 4 (Essential Family Supports).

4. ECF CHOICES referral list categories are listed in the order of prioritization. These categories shall be applicable for all non-reserve capacity slots for Potential Applicants of all ages and levels of disability, and for all ECF CHOICES benefit groups.

5. Potential Applicants on the ECF CHOICES referral list shall have the opportunity to apply for enrollment into ECF CHOICES when the category in which they are placed on the ECF CHOICES referral list is open for enrollment, and when there is an available slot in which the Potential Applicant can be enrolled, if all applicable eligibility and enrollment criteria are met.

6. ECF CHOICES referral list categories shall apply only to prioritization for enrollment into ECF CHOICES.

7. Employment shall not be a condition or requirement for enrollment in ECF CHOICES.

(i) Potential Applicants who are not employed and not interested in employment may be enrolled in ECF CHOICES in accordance with these rules and with TennCare policies and protocols for management of the statewide ECF CHOICES referral list, including prioritization criteria.

(ii) Criteria applicable to ECF CHOICES referral list categories shall apply only to prioritization for enrollment into ECF CHOICES.

(iii) Persons prioritized for enrollment in ECF CHOICES on the basis of employment who are enrolled in ECF CHOICES and subsequently lose their job shall not be disenrolled from ECF CHOICES because they are no longer employed, so long as other ECF CHOICES HCBS are needed on an ongoing basis, which may include supports to obtain and maintain new employment.

8. A person who does not meet the conditions for any of the Categories specified above shall be placed on the ECF CHOICES referral list in an "Other Active" category if ECF CHOICES HCBS are requested at time of referral or in a "Deferred" category if ECF CHOICES HCBS are not requested at time of referral.

9. Reserve Capacity Slots.

In addition to the categories identified above, a specified number of slots shall be held in reserve capacity for individuals who meet one or more of the following criteria:

(i) One or more emergent circumstances as follows:

(I) The person's primary caregiver is recently deceased and there is no other caregiver available to provide needed long-term supports.

(II) The person's primary caregiver is permanently incapacitated and there is no other caregiver available to provide needed long-term supports.

(III) There is clear evidence of serious abuse, neglect, or exploitation in the current living arrangement. The person must move from the living arrangement to prevent further abuse, neglect or exploitation, and there is no alternative living arrangement available.

(IV) Enrollment into ECF CHOICES is necessary in order to facilitate transition out of a long-term care institution, i.e., a NF or a private or public ICF/IID into a more integrated community-based setting.

(V) The person is an adult age 21 or older enrolled in ECF CHOICES Group 4 (Essential Family Supports) or ECF CHOICES Group 5 (Essential Support for Employment and Independent Living) and has recently experienced a significant change in needs or circumstances. TennCare has determined via a Safety Determination that the person can no longer be safely served within the array of benefits available in ECF CHOICES Group 4 (Essential Family Supports) or 5 (Essential Supports for Employment and Independent Living), as applicable, the person meets NF level of care, and must be transitioned to ECF CHOICES Group 6 in order to sustain community living in the most integrated setting.

(VI) The health, safety or welfare of the person or others is in immediate and ongoing risk of serious harm or danger. Other interventions including Behavioral Health Crisis Prevention, Intervention and Stabilization services, where applicable, have been tried but were not successful in minimizing the risk of serious harm to the person or others without additional services available in ECF CHOICES, and the situation cannot be resolved absent the provision of such services available in ECF CHOICES.

(ii) The Potential Applicant has multiple complex chronic or acquired health conditions that prevent the person from being able to work, and the Potential Applicant is in urgent need of supports in order to maintain the current living arrangement and delay or prevent the need for more expensive services (applicable only to individuals of working age).

(iii) A Potential Applicant may apply for enrollment into a reserve capacity slot for persons in emergent circumstances or who have multiple complex health conditions only if determined through an Interagency Committee review process, including both TennCare and DIDD, that enrollment into ECF CHOICES is the most appropriate way to provide needed supports. Such review shall include consideration of other options, including the relative costs of such options.

(iv) Discharge from another service system (DCS, DMHSAS, etc.) shall not be deemed an emergent situation unless specified emergent criteria are met and unless diligent and timely efforts to plan and prepare for discharge and to facilitate transition to community living without long-term services and supports available in ECF CHOICES have been made, and it is determined through the Interagency Committee review process that enrollment in ECF CHOICES is the most appropriate way to provide needed supports.

10. The waiting list maintained by DIDD for the 1915(c) HCBS Waivers shall be one source of referrals for ECF CHOICES. Persons on the DIDD waiting list for the 1915(c) HCBS Waivers as of June 30, 2016:

(i) Shall be automatically referred for the ECF CHOICES program and placed on the ECF CHOICES referral list.

(ii) May submit documentation regarding employment that shall be reviewed in determining their category on the ECF CHOICES referral list, or if they may meet criteria for a reserve capacity slot based on emergent circumstances or multiple complex health conditions.

(iii) Who do not submit information regarding employment or indicating that they may meet criteria for enrollment in a reserve capacity slot based on emergent circumstances or multiple complex health conditions shall be placed on the ECF CHOICES referral list in the "Other Active" category, unless they are currently on the HCBS Waiver waiting list in a "Deferred" category, in which case they shall be automatically placed on the ECF CHOICES referral list in the "Deferred" category.

11. A Potential Applicant may request an administrative review of his or her category on the ECF CHOICES referral list at any time. This request should be submitted to TennCare in writing.

12. A Potential Applicant may submit additional information at any time that may affect his or her category on the ECF CHOICES referral list. The additional information should be submitted to the Potential Applicant's MCO (if the Potential Applicant is assigned to an MCO participating in ECF CHOICES), or to DIDD (if the Potential Applicant is assigned to an MCO not participating in ECF CHOICES or is not currently enrolled in TennCare).

13. A Potential Applicant shall not be granted a fair hearing regarding the category in which he has been placed on the ECF CHOICES referral list.

14. A Potential Applicant shall be entitled to a determination regarding his or her eligibility to enroll in the ECF CHOICES program and, if the application is denied, to due process, including notice and the right to request a fair hearing only when the Potential Applicant is determined to meet criteria for an available reserve capacity slot or meets prioritization criteria for an available program slot for which enrollment is currently open and will be enrolled into the program if all applicable eligibility and enrollment criteria are met.

(12) Safety Determination Requests. (See Rule 1200-13-01-.05(6)).

Tenn. Comp. R. & Regs. 1200-13-01-.31

Emergency rules filed July 1, 2016; effective through December 28, 2016. Amendments filed September 30, 2016; effective December 29, 2016. Emergency rules filed November 20, 2020; effective through May 19, 2021. Amendments filed February 17, 2021; effective May 18, 2021. Emergency rules filed December 27, 2022 to become effective January 1, 2023; effective through June 30, 2023. Amendments filed November 1, 2022; effective January 30, 2023. Amendments filed January 19, 2023; effective 4/19/2023. Emergency rules filed December 27, 2022 to become effective 1/1/2023; effective through 6/30/2023.

Authority: T.C.A. §§ 4-5-202, 4-5-208, 71-5-105, 71-5-106, 71-5-107, 71-5-109, 71-5-110, 71-5-111, 71-5-112, and 71-5-164 and TennCare II/III Section 1115(a) Medicaid Demonstration Waiver Extension.