212 Consumer Directed Services

Georgia State Seal

Georgia Division of Aging Services
Home and Community-Based Services Manual

Chapter:

200

Effective Date:

January 2010

Section Title:

Consumer Directed Services

Reviewed or Updated in:

Section Number:

212

Previous Update:

212.1 Purpose and Background

This chapter establishes policies, guidelines and standards for Area Agencies on Aging that contract for or provide directly a consumer-directed option for services and supports to the elderly, their caregivers, and certain disabled adults. The purposes of the service option are:

  • to promote the investment of Older Americans Act and state funds in strategies for services that target community-dwelling individuals who are potential consumers of institutional long-term care services, and their caregivers when present, and promote their ability to remain in their homes and communities,

  • to promote consumer independence, choice, and control over his/her circumstances,

  • to assure that appropriate and effective relationships are established,

  • to assure that consumers, and/or their representatives, receive adequate information and support in planning and decision-making, and

  • to assure consumers’ health and safety, while at the same time assuring accountability for any public (State and/or Federal) funds used to secure goods, services and supports.

The Consumer Directed Care service option has been developed through the federal Administration on Aging’s Nursing Home Diversion and Modernization demonstration grant funding to the Division of Aging Services and the Atlanta Regional Commission Area Agency on Aging (ARC), as partnering organization during Fiscal Years 2008 and 2009. The demonstration grant initiative was renamed the “Community Living Program” by AoA during 2009. During the grant phase, ARC (has) used the term “Support Options” and “Support Options Counselors” to identify the program and staff involved, and those terms will be used in these policies. These guidelines are based on the experience and results from the demonstration and are intended to guide Georgia’s Area Agencies in replicating and implementing consumer-directed models and options in their planning and service areas.

212.2 Scope

These guidelines apply to consumer-directed service options provided in whole or in part with non-Medicaid federal and state funds managed by Area Agencies, any associated matching funds, and any cost share payments made by participants. Fund sources that may be used include Older Americans Act Title III-B, Supportive Services and Title III-E, National Family Caregiver Support Program, the Social Services Block Grant (SSBG), State-funded Alzheimer’s Services, and State Community Based Services (CBS) appropriations.

212.3 Definitions

Following are definitions of terms commonly used in consumer directed programs:

Authorized Representative (or Representative)

An uncompensated individual who is designated by the consumer to assist in managing the consumer’s budget allowance and needed services.

Budget allowance

The amount of public funding available each month to a consumer to purchase needed long-term care services.

Consumer

An individual who chooses to participate in the consumer-directed care program, meets the targeting/eligibility requirements, and on whose behalf a monthly budget allowance is paid to a fiscal/employer agent for payment of wages to employees or reimbursement of expenses for goods and services. For the purpose of this program, the consumer may be an eligible caregiver of a functionally and/or cognitively impaired adult who is completely dependent for care and who is not capable of participating in directing his/her own care. Within this document, where “consumer” is used, for the sake of brevity, this also can be read to mean “authorized representative,” if one has been designated and is actively providing support.

Consumer- or Self-Directed Care

The embodiment of both a philosophy and a practice model for home care. As a philosophy, it emphasizes consumer choice and control, recognizing that service recipients themselves are the ones who best know their needs and preferences and, as such, should have primary authority and responsibility for making decisions about those services. In practice, consumer direction means that consumers make concrete choices about their care and ultimately manage the delivery of their services to the extent that they are willing and able to do so.[1]

Consultant Services

One of two broad categories of support in a consumer-directed care program. Consultants train, coach, and provide technical assistance to consumers. The training and technical assistance are to assist consumers in using their budgets correctly and avoiding overspending. See also “Support Options Counselor.”

Direct support worker

A provider of supports and services who is privately hired, works under the direction of the consumer/participant, working when and where the consumer chooses, and using materials, equipment and methods selected or designated by the consumer.

Employee

Anyone who performs services for any entity, including an individual, if that entity can control what will be done and how it will be done, even if the entity gives the employee freedom of action.[2] Except for spouses, family members of enrollees in the consumer-directed option may be hired to provide assistance, and thus, may be considered an employee, for the purpose of this program. Employees of participants in self-directed programs are classified by the IRS as “household or domestic” workers.

Employer of Record

An entity or individual who handles legally defined responsibilities of an employer.

Fiscal Management Services (FMS)[3]

An entity/organization (which may be an Area Agency on Aging) that assists consumers by handling such activities as payroll processing, withholding of required taxes, and reconciling expenditures with authorized spending plans.

The FMS receives, disburses and tracks public funds on behalf of individuals. FMS is a broad category of a type of self-directed support, the purpose of which is to provide protections and safeguards for participants, their representatives, and agencies administering consumer-directed programs.

Independent Contractor

In a consumer-directed service model, an entity/individual who is self-employed. According to the IRS, the general rule is that an individual is an independent contractor if the person for whom the services are performed has the right to control or direct only the result of the work and not the means and methods of accomplishing the result. An example of an independent contractor is a physical therapist hired to assist a consumer in regaining range of motion in the shoulder after rotator cuff repair surgery.

Information and Assistance in Support of Self-Direction

For the purpose of this program, a broad range of assistance to individuals in managing their self-directed support services (help with developing and implementing service plans and budgets, assistance to access services and workers).[4]

Repurposed Funds

A budgeting strategy that redirects funding from the service(s) or function(s) for which it originally was allocated, in order to implement other service(s), function(s) or initiatives, subject to the prior authorization by or approval of the Division.

Service Provider

An individual, such as a family member or friend who provides assistance to a consumer, or an agency, whose employees provide services and supports

Support Options Counselor

An individual who provides skills training and support to consumers in meeting their responsibilities as participants in the consumer-directed model of services.

Vendor

In reference to a provider of Fiscal Management Services, a private or public entity (non-governmental), approved by the Internal Revenue Service to act as an employer agency on behalf of individuals/their representatives. May also be referred to as a Fiscal/Employer Agent (F/EA). A vendor also may be an agency or independent contractor that provides services. The consumer does not pay employment taxes for agency or independent contractors.

212.4 Role of the State Unit on Aging in Consumer Directed Care

  1. Program Administration: The Georgia Department of Human Services Division of Aging Services is designated by the Governor as the State Agency on Aging, commonly referred to as the State Unit on Aging. The Division’s role in creating consumer directed options is to provide direction and guidance to Area Agencies on Aging as they develop and implement consumer-directed options, through policy development and implementation and the provision of technical assistance to Area Agencies on Aging and providers. Further the Division provides allocations of federal and state funding to Area Agencies on Aging wishing to implement the consumer-directed model of community based services. To implement consumer-directed care initiatives, Area Agencies are expected to repurpose a portion of funding originally allocated to them for the provision of traditional services. The Division is not the employer of workers, vendors or providers of services, goods, or benefits funded through consumer-directed options, nor does the Division assume responsibility for emergency, backup care for program participants.

  2. Problem Resolution/Grievances: The Division will participate in resolving problems with consumers’ concerns regarding service delivery that cannot be addressed informally, to the consumers’ satisfaction, within the provisions of DAS HCBS policies, Chapter 110 Grievance Procedures for Individuals in Non-Medicaid HCBS Programs. If allegations of abuse, neglect or exploitation are made to the Division, a report will be made to the DAS Adult Protective Services program.

  3. Program Oversight: The Division will provide a reasonable degree of oversight of the consumer-directed options program by conducting periodic monitoring and reviews of agency and consumer records and activities, expenditure and reimbursement data and other relevant programmatic data. DAS will provide feedback necessary for corrective action at the programmatic level and to assure program integrity to Area Agencies, counselors, providers, and consumers/caregivers, as appropriate and indicated.

212.5 Eligibility and Target Consumer Groups

  1. Consumer eligibility criteria:

    1. Adults, age 60 and older

    2. People at risk of nursing home admission, based on a functional impairment level of at least 15 points, plus at least 1 point for unmet need for care, on the Determination of Need-Revised (DON-R) assessment tool, for a total minimum score of 16 points.

    3. Adult caregivers of the elderly (age 60+) and adult caregivers of people of any age with Alzheimer’s Disease or Related Disorders.

    4. Military veterans with disabilities, and their caregivers, who are deemed eligible and qualify through Veterans Administration programs and initiatives.

    5. People who have the capacity and interest to direct their own care, or who have an appropriate representative, able and willing to do so.

    6. People whose needs for care can be safely and adequately met through the services and supports available through a given self-direction program.

  2. Financial targeting criteria.[5] Applicants for the Consumer Directed Care program must meet all of the following criteria to enroll in the program:

    1. Can not be currently Medicaid eligible, but must be at risk of “spending down” to Medicaid eligibility.

    2. Have a monthly income at or below 300% of Supplemental Security Income (SSI) level.[6]

    3. For individuals, may have resources between $12,000 and $39,000; for couples between $116,400 and $143,000.[7]

    4. Must be willing to participate in cost sharing for specified services, based on individual income status.

212.6 Consumer Enrollment Process

  1. Program Access:

    1. Through the intake and telephone screening process Area Agency Gateway staff will identify applicants for service who meet eligibility criteria and fall into the target financial status for individuals and couples.

    2. Gateway staff will refer people who are eligible, within the target group, and interested in participating in self-directing their services to a Support Options Counselor or Consultant, either on the AAA staff, or to individual or agency contractors.

  2. Initial Contact: The Support Options Counselor (SOC) will visit the consumer at home, to validate the initial DON-R score, verify income and resources, and conduct any other assessment activities indicated to permit the counselor to effectively assist the consumer in developing his/her support plan.

    1. In addition to interpreting DON-R scoring results, the SOC may assist the consumer in using a self-assessment to identify care needs. See Appendix 212-B-1 for suggested content.

    2. The SOC will determine and document the consumer’s ability to understand the risks, rights and responsibilities of managing his/her own care with a monthly budget allowance.

    3. The SOC will obtain the consumer’s clear, express and voluntary agreement to enroll and participate in the program, as documented by appropriate language in and the consumer’s signature on an enrollment agreement.

  3. Evaluation of Need for Authorized Representative:

    1. If the consumer cannot or elects not to direct his/her own care, s/he will be asked to select a willing and appropriate representative, with the SOC’s assistance, as needed.

    2. If the consumer clearly has the capacity to direct his/her care, the SOC nevertheless should encourage the consumer to designate in advance a representative willing and able to serve if/when the consumer no longer can or no longer wishes to direct care, but could remain in the program with the assistance of a representative.

    3. If the consumer’s capacity to self-direct is questionable at the outset of enrollment, and the consumer has no known available and appropriate representative, the SOC should:

      1. review DON-R assessment results to determine whether there are physical/functional indicators of ability or inability to self-direct. Examples: Does s/he demonstrate insight to and understanding of his/her care needs? Can the consumer follow/give directions? Can s/he give directions to the home? Can s/he review and sign a timesheet?

      2. assess potential representatives, using the A/R Screening Questionnaire (See Appendix 212-B-4). The SOC will provide information to the consumer about potential, suitable representatives the consumer may choose to designate.

    4. If the SOC has concerns about a proposed authorized representative’s willingness and ability to serve in the consumer’s best interests, the SOC will advise the consumer (and family if present) of those concerns, document the information shared in the consumer’s file, and proceed with enrollment. The consumer may elect to designate a different authorized representative.

  4. Suspension or Discontinuation of Enrollment:

    1. The SOC shall suspend or discontinue the enrollment process, if designation of an authorized representative is indicated, but not completed by a consumer, who clearly cannot direct his/her own care by reason of incapacity, or who elects not to direct his/her own care.

    2. If enrollment is suspended, the process may be reinstated, within 30 calendar days, upon the consumer’s request and designation of a suitable representative.

    3. After 30 calendar days, the SOC shall terminate enrollment and provide written notice of same to the consumer, by registered mail (USPS), with return receipt notification.

    4. The SOC shall assist the consumer with identifying and referring to other community resources and/or refer him/her to a traditional care management provider for assistance.

  5. Consumer/Representative Agreement: If an authorized representative will be assisting the consumer, the SOC will assure the completion and signing of the agreement form by both the consumer and the representative, except where a guardian for the consumer has been appointed. In this instance, the legal guardian has the right to consent to participation. (See Appendix 212-B-5)

  6. Consumer/SOC Agreement: The SOC will provide the program participation agreement to be signed by both the consumer and SOC. (See Appendix 212-B-2)

  7. Income/Resource Documentation: The SOC will document the consumer’s income and resources, using the Consumer Direction Financial Worksheet. (See Appendix 212-B-6)

  8. Support Plan and Backup Plan: The SOC will assist the consumer, as needed, in developing his/her support plan, including the identification of emergency or backup plans, should a worker fail to work as scheduled for any reason. Having a reliable backup plan is a mandatory condition for participating in the self-directed program. Also see §212.6.1(d) regarding consumers’ responsibility for backup planning.

  9. Explanation of Consumer’s Role and Responsibilities as Employer: The SOC will explain the role and responsibilities of the consumer as the employer and assist, as needed, with the completion of any paperwork required of the consumer for working with a fiscal/employer agent or bookkeeping firm.

212.7 Support Options Counselors

The role of the Support Options Counselor, and his/her relationship to the consumer/caregiver, differs significantly from that of a traditional care coordinator, caseworker or case manager. The SOC’s primary role is that of acting in a consultative capacity to provide skills training to consumers to help them become employers of their support workers, to inform consumers of their options and provide them support in decision-making. However, the SOC does not substitute his/her judgment in decision-making for that of the consumer. Central to the relationship between the SOC and the consumer is the counselor’s role in providing access to information about service options. The SOC may not serve as a consumer’s representative, nor provide any other supports or services outside of the consulting role. A key component of the SOC’s job is to help maximize the consumer’s capacity to manage risk without clearly becoming a danger to herself or the victim of someone else’s fraudulent or abusive behavior.

  1. Staff qualifications: Support Options Counselors must meet the minimum educational and experiential qualifications for case managers/care coordinators, as provided in DAS HCBS Manual Chapter 210, and complete any required training on program content, policies and procedures.

  2. Operational Responsibilities: The Support Options Counselor is responsible for:

    1. Receiving referrals from AAA Gateway staff and verifying potential enrollees’ eligibility for program participation based on targeting criteria;

    2. Conducting initial assessment of consumers’ functional status and needs for care, and/or assisting consumers with completing a self-assessment of support needs and options, using tools or instruments authorized or approved by the Division;

    3. Documenting all interactions with consumers, their authorized representatives, the F/EA and any other parties to the program, in the manner authorized or approved by the Division;

    4. Periodically (at least annually, or when changes in the consumer’s condition/situation indicate) review and verify consumers’ eligibility status and continued appropriateness for self-direction, efficacy of support plans and adequacy of monthly allowance. The SOC will assist the consumer as necessary in making any changes in plans and budgets that are indicated, based on the consumers’ current status, needs and preferences.

    5. Collecting, maintaining and reporting any consumer-related and programmatic data required by the Division or other entities, in the format and medium authorized or approved.

212.7.1 Support Options Counseling Services and Activities

Support Options Counselors provide skills training and consultation to consumers and representatives as follows:

  1. Orientation and Training: Concurrent with the Enrollment Process, SOCs will provide orientation and training on self-direction to consumers/representatives, either individually or in small groups when appropriate. Orientation will determine the knowledge the consumer/representative possesses on employer issues and determine the type and amount of training needed on the topics of their role and responsibilities as an employer and recruitment, interviewing, hiring, supervising, evaluating and terminating service providers. During this phase, the SOC will assess the consumer’s/representative’s ability to self-direct and will provide individualized training to assure that all needs are identified and appropriately addressed. During orientation and training, the SOC should encourage the consumer to request background checks for any prospective employees with whom the consumer has had no prior relationship.

    It is of utmost importance that the SOC clearly communicate to and with the consumer that the consumer bears primary and ultimate responsibility for decisions regarding the development of the spending plan, the backup plan, and the selection and supervision of workers, including hiring/firing, training and scheduling of workers. The consumer also bears full responsibility for the purchase of goods and services required for his/her care. See Appendix 212-B-2 for a template for a Consumer/SOC Agreement Form.

  2. Assistance with Development of the Support and Spending Plans. The SOC will use the DON-R to assess the consumer’s status for activities of daily living/instrumental activities of daily living, and other aspects of the consumer’s ability to live at home/in the community, and, as needed, provide information about resources that may be available to meet those needs. Based on the consumer’s individual needs and preferences:

    1. During the enrollment process, the SOC will assist each consumer/representative with development of an individual plan that projects how the monthly allowance will be spent. The SOC will approve the plan, provided it addresses needs identified in the assessment process, including those identified by the consumer, within the bounds of goods, services and supports that are allowable through the program.

    2. In instances in which plan fulfillment requires resources in excess of the monthly budget allowance, or calls for otherwise ineligible expenditures, the SOC may override the plan and assist the consumer with developing a corrective action to modify the plan.

    3. The SOC may assist with reviewing and adjusting the plans whenever circumstances change, subject to the continued availability of public funding, but not less than annually. The consumer must obtain the SOC’s concurrence with any adjustments the consumer initiates, to assure that needs continue to be safely met and that the changes can be supported by the monthly budget allowance.

    4. The SOC may approve a plan through which the consumer, through the assistance of the FMS, saves a portion of the monthly allowance to accumulate enough funding to budget for some higher cost needs.

      1. Public funds must be liquidated within the state fiscal year that they are allocated.

      2. If the savings are accrued from the consumer’s cost share payments, the funds may be carried over from one fiscal year the next, but the consumer must have a specific plan for using the accrued funds and a goal completion date for making the desired transactions.

    5. Consistent inability or failure of the consumer to adhere to the allocated budget and approved spending plan may result in the SOC’s decision to terminate and discharge the consumer from the consumer directed program. Should this occur, the SOC will evaluate other community resources that may be available to provide assistance and follow the process established for providing notice of discharge.

  3. Assistance with Work Agreements

    1. The SOC will verify that the consumer, or representative, has executed a separate, written work agreement with each employee. Both the consumer/representative and worker will indicate acceptance of the terms of the agreement by their signatures.

    2. The SOC will verify that the agreement(s) detail the tasks to be performed, scheduled days and number of hours of service that the consumer/representative and each employee have agreed upon.

    3. The consumer/representative and each employee will retain copies of each agreement executed.

    4. Work agreements shall reflect at-will employment status as provided in Georgia law. (Also see Appendix 212-C, regarding dismissal of employees/termination of employment.)

  4. Assistance with Backup and Emergency Plans

    1. The SOC will assist the consumer/representative in developing contingency plans for how the consumer’s needs will be met should a worker/service provider fail to keep a scheduled appointment, terminate a work agreement without notice, or fail to provide scheduled assistance for any reason.

    2. The consumer’s contingency plan may identify informal caregivers who will agree to provide assistance on a timely, short term basis, or may identify a home care or other provider agency which has the capacity, including adequate staff, to provide timely, short term or long term assistance for a fee to be paid by the consumer from the monthly allowance.

    3. Contingency planning also is to address how the consumer will have needs met should a shortage or rescission of public funding occur.

    4. During periodic direct contacts, the SOC will determine whether the consumer has had a need to use the backup plan, how often, and whether the backup resources were actually available and adequate.

    5. The SOC will assure that the consumer/representative amends the backup plan as often as is necessary to assure that an adequate plan is in place at all times.

    6. In anticipation of a community-wide emergency (natural disaster or other catastrophic event) or in the recovery phase of such an emergency, the SOC will identify consumers who may be or have been impacted and provide assistance as directed by the emergency management plans of the state, region, or county of residence (either permanent or temporary) of the consumer.

    7. The consumer or representative is ultimately responsible for developing and maintaining a viable backup plan that addresses all interruptions of support and care, including those caused by emergencies and disasters.

  5. Monitoring and Evaluation:

    1. Through home visits, telephone contacts, and reviews of financial/expenditure reports, and other pertinent information, the SOC will monitor the support plan and related expenditures frequently enough to determine that the consumer’s self-direction, or that of his/her representative, is adequate to maintain the consumer’s health, safety, well-being and satisfaction.

    2. The SOC will maintain periodic contact with consumers/representatives through telephone calls, at which time the SOC will review expenditures, use of backup plans, the consumer’s satisfaction with care and support, and any other issues pertinent to a consumer’s individual situation.

    3. Once the consumer has begun receiving planned assistance and supports, the SOC will make a home visit during the second month of service activity and plan implementation, and at a minimum, annually thereafter, for the dual purposes of assessing the status of the consumer’s plans and service use, as well as nurturing and sustaining the relationship with the consumer and family. If the SOC has concerns about the quality of care the consumer is receiving, including concerns about abuse or neglect, the consultant may make unannounced home visits. The SOC is a mandated reporter under Georgia law, with regard to making reports to the DHS DAS Adult Protective Services Section about suspected incidents of abuse, neglect or exploitation of adults enrolled in the program.

    4. The SOC will, as a part of monitoring, use the DON-R at least annually, or more often as indicated, to identify and document any changes in the consumer’s functional capacity and unmet need for care, and recommend any adjustments to the consumer’s plans that may be indicated to preserve the health and safety of the consumer. The SOC may initiate discharge planning to conventional forms of case management and supportive service assistance for consumers whose conditions decline to the point that available assistance no longer supports safe and adequate care.

    5. At least annually the SOC will evaluate the quality of the self-directed care, taking into account the stability of the support plan, the efficacy of costs incurred, the adequacy of the backup plan, and the consumer’s satisfaction with care received.

    6. The SOC will determine whether the needs identified by the consumer in the support plan are being addressed in such a way that provides for the consumer’s safety, independence and overall well-being.

  6. Documentation:

    1. The SOC will establish a record in the manner and medium authorized or approved by DAS for each person enrolled in the consumer-directed program.

    2. The SOC will maintain records in accordance with any standards established in DAS HCBS Manual Chapter 210, Case Management.

    3. The SOC will retain copies of all consumer assessments, support plans, monthly budgets/spending plans, work agreements, backup plans, authorized representative designations, and any other documentation pertaining to program participation.

    4. The SOC will document all contacts, activities and assistance provided by the counselor in each consumer’s record. Each contact will be recorded as a summary or narrative note. Upon development and implementation of the Support Options Counselor Activity Log, the SOC will enter required data into AIMS. Any standards of promptness for documentation established by DAS HCBS Manual Chapter 210, Case Management, shall apply.

    5. The SOC will observe the consumer for any changes in condition that would indicate that a complete re-assessment is indicated; assess the continued appropriateness of activities by any authorized representative; assess the quality of the self-directed care in terms of positive consumer outcomes; and assess whether the consumer’s needs identified in the current plan are being met.

    6. The SOC will document in each consumer record that s/he has provided the consumer/representative with written information about potential risks of enrolling in the consumer direction program and the consumer’s/representative’s agreement to assuming these risks. The voluntary participation agreement may serve as the required documentation if signed by the consumer/representative and if the SOC has provided written information about risk management to the consumer. (See Appendix 212-B-3)

  7. Reporting: The Division will establish reporting requirements, timeframes and mechanisms. The SOC is responsible for reporting any consumer-related and programmatic data required by the Division in the format and medium authorized or approved.

212.8 Authorized Representatives

Some consumers may desire, need or require an authorized representative to assure their successful participation in the consumer-directed model of care. If these consumers have competent caregivers, they should, to the greatest extent possible, be assisted to continue to express their values in receiving care and to participate in the planning process, with respect to having their preferences for care addressed and met.

  1. Consumers who have a legal guardian or an established payee of income for reason of mental or cognitive incapacity will be required to have an authorized representative.

  2. SOCs will evaluate consumers who have had representative payees for income management appointed due solely to consumers’ physical incapacity or who have given general power of attorney to another who serves as attorney-in-fact to determine whether an authorized representative for the purpose of self-direction is indicated.

  3. A potential enrollee will be required to designate an authorized representative if s/he is known to be or appears to be affected in one or more of the following areas of functioning:

    1. unable to understand his/her own personal care needs;

    2. unable to make decisions about his/her own care;

    3. unable to organize his/her lifestyle and environment by making these choices;

    4. unable to understand how to recruit, hire, train and supervise personal care assistants and other support providers;

    5. unable to understand the impact of his/her decisions and assume responsibility for the results; and/or

    6. at any time, has been determined to have experienced a change in competency/capacity or ability to continue to direct his/her own care.

  4. Who may request a representative:

    1. The potential enrollee

    2. The Support Options Counselor

    3. A representative who is no longer willing/able to continue to assist;

    4. A representative of the fiscal intermediary organization.

  5. Who may serve as a representative[8]:

    1. A family member of the consumer, who is not or will not be receiving payment for providing care

    2. A friend of the consumer

    3. A legal guardian, appointed by the Probate Court

    4. Any other legally appointed representative

    5. A representative payee for income from Social Security benefits, Supplemental Security Income, Railroad Retirement benefits, and any other source of income which provides for payeeship.

  6. Responsibilities of the Authorized Representative. The authorized representative shall:

    1. demonstrate a strong personal commitment to the consumer;

    2. demonstrate knowledge of the consumer’s preferences;

    3. agree to a predetermined frequency of contact with the consumer;

    4. be at least 18 years old;

    5. be able and willing to serve;

    6. obtain approval from the consumer, if nominated by someone else, and obtain agreement to the nomination from a family member, if one is available.

    7. agree to serve without compensation;

    8. be willing to become payee of the consumer’s income, such as Social Security or Supplemental Security Income benefits, if necessary;

    9. be willing to serve as joint employer and participate, with or on behalf of the consumer, in part or in full, in the hiring, training, supervision, and dismissal of workers;

    10. not be known to abuse alcohol or drugs;

    11. not be known to have a history of physical, mental abuse or financial exploitation.

    12. be willing to complete and sign the Representative Screening Questionnaire and Authorized Representative Designation Form. (See Appendix 212-B-4 and 212-B-5)

  7. Misfeasance/Negligence or Malfeasance[9] of the Authorized Representative. If a representative is negligent in performing his duties or otherwise fails to act in the consumer’s best interests, the SOC shall document all observations, facts and conclusions in support of the finding of negligence or malfeasance and in consultation with his/her supervisor/the administrative agency, communicate these findings to the consumer and the representative.

    1. If the consumer is able to do so, s/he may terminate the designation of the negligent representative and designate another person to serve.

    2. If the negligent/malfeasant representative is a court-appointed guardian, the SOC/administrative agency shall report the suspect activity to the Probate Court of jurisdiction and to the Division.

    3. If the negligent/malfeasant representative is a benefits payee appointed by the Social Security Administration, or other payor of benefits, the SOC/administrative agency will report the suspect activity to that agency and to the Division.

    4. If the negligence or malfeasance of the representative is found to have resulted in abuse, neglect and/or exploitation of the consumer, the SOC, immediately upon making that determination, shall make a report to the DAS Adult Protective Services Central Intake Office. If the situation is one of medical emergency or other urgency, the SOC also shall contact the law enforcement agency with jurisdiction and/or obtain emergency medical assistance for the consumer. The SOC will inform the Area Agency within one business day of any reports made to DAS Adult Protective Services. The Area Agency likewise will inform the DAS Director within one business day of any reports made.

    5. If negligence/malfeasance on the part of the representative is confirmed and involves the fiscal affairs of the consumer, the SOC also shall communicate such findings within one business day to the FMS.

    6. If in these circumstances the consumer, family members or friends cannot identify a suitable alternative representative, and self-direction is no longer feasible, the SOC shall initiate discharge planning to traditional case management and supportive services programs, or to other home and community based or institutional long-term care programs.

212.9 Fiscal Management Services

Area Agencies desiring to implement consumer-directed options shall solicit through a competitive procurement process the services of a qualified fiscal/employer agent or agents (F/EA), negotiate to use an F/EA currently under contract to the state, or provide fiscal management services directly through its own organization, employing adequate numbers of qualified staff to do so. At a minimum the F/EA must demonstrate capacity to provide hardware and standardized financial management software to establish individual accounts, to segregate public funds for each enrolled participant, to track the receipt and use of funds held in the accounts, to transfer cash to interest-bearing accounts identified solely for participant savings. Services provided by the F/EA include, but may not be limited to:

  1. Orientation, Training and Ongoing Support. The F/EA will provide any necessary training and assistance to new consumers/representatives that may be needed for them to successfully complete and submit all applicable state and federal tax withholding forms, insurance forms and any other forms required in conjunction with employing and paying workers. The F/EA will prepare and distribute a start-up kit for consumers that includes information on how and when to contact the fiscal agent. The F/EA will be available to provide assistance and consultation for the duration of the consumer’s enrollment in the program. On a continuous basis, the F/EA shall accept and answer any questions related to financial management from consumers, representatives and employees.

  2. Employee Management: The F/EA assists the consumer in managing employees by:

    1. Preparing and distributing employment forms packets, including multiple copies of the time sheet for employee use and required federal and state forms, such as W-4 forms for tax withholding;

    2. Conducting employee background screening/criminal records checks upon request of the consumer or representative;

    3. Verifying citizenship/legal alien status of all workers;

    4. Providing Worker’s Compensation insurance coverage for each employee[10]

  3. Banking and Payroll Functions: The F/EA provides banking and payroll assistance by:

    1. Receiving public funds and establishing individual accounts on behalf of the consumer, including assigning employer and employee Federal Identification Numbers;

    2. Receiving timesheets signed and submitted by the consumer/representative and each worker and entering data into the payroll system;

    3. Processing and issuance of payroll checks;

    4. Invoicing consumers for and receiving and applying cost share payments to account balances;

    5. Providing monthly reports (or for other specified time periods) to consumers, counselors/program administrators with information regarding expenditures, payments and account balances;

    6. Managing federal and state employment taxes, preparing filings, and distributing funds, net of employment taxes;

    7. Reconciling consumer accounts monthly and mailing statements to each consumer, with a copy to the consumer’s SOC;

    8. Assisting the consumer to accrue funds from monthly budgets over time in order to make approved special purchases;

    9. Receiving private funds and establishing individual accounts on behalf of the consumer.

  4. Other: Providing any equipment/communications devices to consumers as agreed contractually.

212.10 Services and Supports Eligible for Reimbursement

Area Agencies will determine the services and supports that will be available for consumers who self-direct their care, subject to the approval of the State Unit. Area Agencies will document plans for implementing consumer-directed models of care in the Area Plan or Area Plan Update that precedes the fiscal year of anticipated implementation. The AAA shall describe the goods, services and supports that will be authorized, giving special attention to those not currently included in and defined by the DAS Taxonomy of Services. The State Unit reserves the right to disallow certain goods, services and supports, if in the SUA’s opinion, the use of federal and/or state funds to purchase or reimburse for these options would be inappropriate, inconsistent with the purpose of the program, or not beneficial to consumers. See Appendix 212-D for currently-approved services and supports.

212.11 Ineligible Expenditures

  1. Division of Aging Services policy does not allow for the purchase of, nor reimbursement for, such items that include, but are not limited to:

    • Gifts for workers, family or friends

    • Loans to workers

    • Rent or mortgage payments

    • Payments to someone to be a consumer’s representative

    • Clothing (exception: special clothing items, such as compression hose, or clothing/footwear modified for accessible and independent use)

    • Groceries (exception: special food/nutritional products required to improve/maintain nutritional status)

    • Lottery tickets

    • Alcoholic beverages

    • Entertainment activities and equipment

    • Tobacco products

    • Services and supplies that can be obtained at no cost from community organizations

    • Items, such as durable medical equipment and medical supplies, which may be obtained through Medicare or other insurance coverage, if the consumer is a beneficiary of that coverage.

  2. The Division retains final approval authority for any purchases or expenditures that are unusual or not within the stated guidelines. Area Agencies/SOCs may submit to the Division written requests for consideration of exceptions or waivers for good cause.

212.12 Development and Management of Monthly Budgets / Spending Plans

During the demonstration phase of the AoA Community Living Program (CLP) (formerly the Nursing Home Diversion and Modernization Grant), the amount available for consumers’ monthly spending plans/budgets is determined by the amount of federal funds allocated and the availability of state funds used to match them. Consumers may arrange to purchase goods, services and other supports, as allowed by policy, up to the amount available in the approved budget.

  1. The consumer will develop a monthly spending plan that will demonstrate a correlation to his/her assessment of need and preference for receiving care; the DON-R standardized assessment of unmet need for assistance with activities of daily living, instrumental activities of daily living, home/environmental improvements or services, health related services and supplies and any other allowable services or purchases that will enable the consumer to live as independently as possible and avoid the need for admission to a nursing home or other long-term care facility. When a caregiver is involved and identified as the consumer, the spending plan may reflect supports and services for the caregiver, in order to maintain/sustain his/her ability to provide care to the care receiver.

  2. The SOC will review each consumer’s reports of expenditures provided by the F/EA frequently enough to verify that the consumer is complying with his/her spending plan and budget. The SOC will review reports with consumers during periodic telephone or other contacts. The SOC will use his/her professional judgment and knowledge of individual consumers to determine the appropriate frequency of contacts, but shall have direct contact not less than twice a year.

  3. Consumers/representatives shall not submit for reimbursement nor shall the F/EA reimburse for expenses for goods, services and supports in amounts that will exceed the approved monthly spending plan.

  4. Workers will complete, sign and submit to the employer of record and the employer of record will sign and submit workers’ timesheets to the FE/A in the form and manner specified. The employer’s signature attests to the provision of authorized services within timeframes for pay periods established by the F/EA. Failure of workers to complete and submit timesheets to their employers in a timely manner will result in a delay in the employers’ signing and submission to from the F/EA, delaying payments from the F/EA.

  5. The F/EA will confirm with the SOC that any changes to a spending plan/budget requested/submitted by a consumer has been reviewed and approved by the SOC.

212.13 Risk Management and Accountability

  1. Consumer’s clear decision to participate: The decision to participate in a consumer directed model of services means that the consumer/representative agrees to take on a particular set of risks and responsibilities. Agreement to participate must involve three components:

    1. The consumer’s choice to participate is completely voluntary. In order to assure that the decision to participate is, in fact, voluntary, it is important that the consumer retain the option of obtaining care from the traditional model of agency-provided home and community based services. The consumer’s choices must include the option not to direct his/her own care.

    2. The consumer must be provided all information about participation that s/he needs to make a voluntary and intelligent decision. This information may be provided both orally and in writing and may be conveyed through a consumer’s agreement or guide to participation.

    3. The consumer has the capacity to understand the information provided and to make a choice.

  2. Liability: In the consumer-directed model of community supports and services, the consumer assumes risk in exchange for the ability to make decisions and choices about and control of the care and support s/he needs and receives. It is essential that SOCs advise consumers during enrollment and orientation, their family members, and representatives of areas of potential risk and ways that they can minimize risk and avoid potential liability. See Appendix 212-C regarding suggested advisory information content.

  3. Programmatic and Financial Accountability: Four strategies are employed to prevent misuse or abuse of the monthly allowance.

    1. Upon enrollment, each consumer will be provided a statement of his/her role and responsibilities, in which accountability is emphasized. See Appendix 212-B-2 for the Consumer/Support Options Counselor Agreement and listing of the consumer’s and counselor’s roles and responsibilities.

    2. SOCs periodically will review the consumer’s recent financial statements, prepared and distributed by the F/EA, with the consumer or representative during a direct contact (call or visit).

    3. Consumers will maintain a record of any incidental purchases they have made and keep receipts for those purchases, in order to be reimbursed.

    4. The F/EA will pay only for services provided and purchases specifically identified in the approved purchasing plan, except for incidental purchases as described in item (3) preceding.

    5. The SOC will call for a corrective action plan to be developed and implemented by any consumer whose spending and service use does not comport to the approved budget and spending plan, for either over-expending or underutilizing resources.

212.14 Continuation in and Termination / Discharge from Consumer Directed Care

  1. Continuation: Admission to the Consumer Directed Care program is predicated upon the consumer’s informed consent and clear and express agreement to voluntarily participate in the program. As a part of annual reassessment (at a minimum), SOCs will review the consumer’s willingness, ability and desire to continue to participate.

    1. Consumer’s Status Unchanged: If there have been no significant changes in the consumer’s status, condition and situation, continuation in the program is contingent upon the consumer’s interest and willingness to continue to direct his/her own care and the continued availability and willingness to serve of a representative, if one has been designated and serving on the consumer’s behalf.

    2. Temporary Absence from the Home: At the discretion of the SOC, the consumer may continue to receive scheduled supports and services outside of his/her residence, if the SOC authorizes in advance the provision of needed services during a trip or vacation.

    3. Hospitalization: At the discretion of the SOC, a consumer who is hospitalized for a brief duration may remain in the program to continue to receive scheduled services upon his/her discharge and return home. The consumer or representative shall be responsible for communicating with the SOC, and with care providers, regarding all hospital admissions and expected durations. The SOC may discharge a consumer whose stay is anticipated to be of such length that significant lapse of state/federal funds could occur, with the understanding that the consumer could apply for readmission at a later time.

    4. Continued enrollment also is contingent upon the continued availability of public funds allocated to the program.

  2. Voluntary Withdrawal: The consumer may request withdrawal from the program at any time. See Appendix 212-B-7 for voluntary withdrawal form template.

    1. If a consumer indicates a desire to withdraw from the program, the SOC will try to identify and resolve any problems that may be barriers to continued participation.

    2. The SOC will use the Voluntary Disenrollment Form to document the consumer’s reasons for withdrawing from the program and the SOC’s efforts to resolve problems prior to termination.

    3. Area Agencies and the Division will consider data collected regarding voluntary withdrawals from the program in evaluating program results and designing program improvements.

  3. Involuntary Disenrollment/Discharge: SOCs may discharge consumers for two primary reasons:

    1. The consumer directed services program can no longer meet the consumer’s health, welfare and safety needs, for whatever reason. This can include a significant change in the consumer’s condition and/or his/her refusal of assistance of a representative, when one is indicated for successful continued participation.

    2. The consumer/representative has failed to carry out budget management and/or employer responsibilities in accordance with program policy, despite the provision of reasonable technical assistance and support consultation by the SOC. This can include misuse of a budget allowance, consistent over-expenditures, consistent failure to complete and submit workers’ timesheets, consistent failure to provide required documentation and failure to pay agreed-upon cost share. If no representative has been involved up to this point, the SOC may explore the possibility of the designation of a responsible representative, prior to initiating involuntary discharge plans.

  4. Other Administrative Reasons for Discharge:

    1. Loss of Eligibility Status: The SOC will initiate discharge plans if the consumer no longer meets program eligibility criteria for the nursing home level of care or financial eligibility.

    2. Loss of Public Funding: If for any reason there is a shortfall or rescission of public funds allocated to the Consumer Directed Care program, the SOC in coordination with the Area Agency will initiate discharge planning for affected consumers. If provision of notice of discharge within current standards is not possible, the SOC and AAA will provide as much prior notice as possible, and assist consumers with obtaining services from other sources that may be available.

      Discharge due to a program’s or agency’s loss of funding, through no fault of its own, is not subject to the consumer appeal process.

    3. Death of the consumer;

    4. Relocation of the consumer from the service area.

    5. The consumer is more appropriately served by another home and community based program, based on assessment data and/or consumer’s choice.

    6. The consumer enters the institutional long-term care system.

  5. Governing Standards for Discharge: SOCs will use the guidelines and standards for due process and timeliness established in the DAS HCBS Manual, Chapter 210, Case Management Services, §210.2(i), “Transitions due to Discharge/Termination.”

  6. Referral Assistance: Except in the case of the death of a consumer, SOCs will offer assistance to consumers, as appropriate, in identifying other sources of services and supports, including working with AAA Gateway staff to help the consumers access traditional agency-provided services through the Area Agency’s network of providers.

Effective Date

Upon Issuance. AAAs shall assure that staff and providers subject to these policies and guidelines receive copies of this chapter in a timely manner and shall allow providers a reasonable period of time in which to make adjustments to comply. The official copy of this policy document will be posted to the DHS Online Directives Information System (ODIS) not later than the first day of the next month following issuance.

1. National Institute on Consumer Directed Long-term care Services
2. Financial Management Services (FMS): Facilitating the Use of Individual-Directed Support Services, S. Flanagan, June 2008
3. Also referred to as “fiscal intermediary,” “fiscal/employer agent,” “fiscal agency,” FMS is the term used by both CMS and in Section 3504 of the Internal Revenue Code. The concept of fiscal agency emerged in Medicaid-funded programs because of the policy that prohibits the payment of cash directly to beneficiaries, even if the beneficiary were to use the cash benefit to pay for home care.
4. Sue Flanagan, MPH, Ph.D., AoA NHD Program Grantee technical assistance presentation, June 2008.
5. The Division will update Income thresholds annually or as indicated by changes in relevant public policies.
6. People with incomes above 300% of the Supplemental Security Income benefit ($2,022 per month in 2009) may be eligible for a Qualified Income, or “Miller” Trust arrangement for the purposes of participating in a consumer-directed model of services.
7. See Appendix 212-_ for method of calculating resource thresholds and limits.
8. There is no legal order of preference for designating authorized representatives. Acceptability is based on the A/R’s willingness and ability to assume the responsibility of assisting the consumer.
9. “Misfeasance” is defined as doing a legal thing negligently. “Malfeasance” means doing an illegal thing.
10. Provision of Workers’ Compensation by an F/EA is optional. AAAs engaging in competitive procurements to contract for F/EA services should be specific in detailing the scope of work if the intent is for the F/EA to provide workers’ compensation benefits.