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Participant Directed Services:
Legally Responsible Individuals as EmployeesCommonwealth of Kentucky
Cabinet for Health and Family Services
September 19, 2019
2
Who will benefit from this webinar?1
Who is a Legally Responsible Individual (LRI)?2
Why does an LRI need to be approved?3
How is an LRI approved to be a PDS employee? 4
Questions answered by this Webinar:
3
WHO WILL BENEFIT FROM
THIS WEBINAR?
4
WHO WILL BENFIT FROM THIS WEBINAR?
Webinar Purpose:
Inform participants and their families on DMS policies and
procedures for employing a legally responsible individual
(LRI) as a PDS employee. Outlined policies will go into
effect following redesign regulation approval.
This webinar will explain:
• Who legally responsible individuals are;
• Who must go through the approval process;
• Why the approval process is in place; and
• How to apply for approval.
5
WHO WILL BENFIT FROM THIS WEBINAR?
Legally responsible individuals who wish to become
Participant Directed Services (PDS) employees must be
approved by the Kentucky Department for Medicaid
Services (DMS). Following redesign regulation
approval, each waiver type that utilizes PDS must meet
the new LRI approval criteria.
Who should view the webinar:
• Participants using participant directed services in
Medicaid 1915(c) waivers;
• Legally responsible individuals of the waiver
participant;
• Families of the participant;
• Friends of the participant.
6
WHO IS A LEGALLY
RESPONSIBLE INDIVIDUAL?
7
WHO IS A LEGALLY RESPONSIBLE INDIVIDUAL?
CMS Definition of a Legally Responsible Individual: A
person who has a legal obligation under the provisions of
state law to care for another person. Legal responsibility is
defined by State law, and generally includes parents
(natural or adoptive) of minor children, legally-assigned
caretaker relatives of minor children, and sometimes
spouses.
Source: Centers for Medicare and Medicaid Services, Application for a 1915(c) Home and Community-Based Waiver.
Instructions, Technical Guide and Review Criteria. January 2019. page 108
https://www.medicaid.gov/medicaid-chip-program-information/by-topics/waivers/downloads/technical-guidance.pdf
8
WHO IS A LEGALLY RESPONSIBLE INDIVIDUAL?
LRI for a Minor Child (Younger than Age 18)
LRI for an Adult(Age 18 or older)
• Parent
• Stepparent
• Adoptive parent
• A Kentucky Court Appointed
Legal Guardian
• Spouse
• A Kentucky Court Appointed
Legal Guardian
Kentucky Medicaid defines the following people as legally responsible
individuals:
Source: Appendix C-2, proposed 1915(c) Home and Community Based Services Waivers
9
WHO IS A LEGALLY RESPONSIBLE INDIVIDUAL?
Legally Responsible Individual
• Has authority to make legal decisions for the participant;
• Speaks on behalf of the participant in legal matters;
• Has a responsibility to provide some care to the participant.
PDS Representative (if appointed)
• Speaks on behalf of the participant ONLY for PDS matters;
• Attends PDS meetings with the participant or on their behalf;
• May provide unpaid care to the participant but can never be paid to provide care;
• Signs timesheets.
Differences between the LRI and PDS Representative
10
WHO IS NOT A LEGALLY RESPONSIBLE INDIVIDUAL?
The following individuals are NOT considered legally
responsible individuals by the Department:
Other Immediate Family Members
(such as siblings, grandparents, cousins,
etc.*)
Powers of Attorney
Social Security Representative
Payee
PDS Representative**
1 2
3 4
*Excludes legally responsible individuals described previously
**PDS Representatives may not be paid to provide care to the Participant
11
WHO IS A LEGALLY RESPONSIBLE INDIVIDUAL?
Putting the Pieces Together: What it all Means
• CMS allows states to define who is
considered a legally responsible
individual;
• Kentucky chose a definition for legally
responsible individual based on who has
legal authority for the participant;
• Kentucky does not ask other natural
supports to go through an approval process*.
* PDS Representatives can never be a paid PDS employee for the participant.
12
WHY DOES AN LRI NEED TO
BE APPROVED?
13
WHY DOES AN LRI NEED TO BE APPROVED?
The Centers for Medicare and Medicaid Services
(CMS) provides federal rules, regulations, and
guidance to state Medicaid programs.
States follow CMS rules
and regulations in
exchange for federal funds.
States use these federal
funds to help provide
services, like those in a
1915(c) HCBS waiver.
14
WHY DOES AN LRI NEED TO BE APPROVED?
Kentucky Medicaid allows
participants to hire legally
responsible individuals as
participant directed employees.
CMS allows states to choose if a legally
responsible individual can be paid as a
participant directed services employee.
15
WHY DOES AN LRI NEED TO BE APPROVED?
Each state that allows participants to employ a legally responsible
individual must follow federal guidance to establish requirements
for ‘extraordinary care’.
CMS Definition of ‘Extraordinary Care’:
“By extraordinary, CMS means Care exceeding the range of
activities that a legally responsible individual would ordinarily
perform in the household on behalf of a person without a
disability or chronic illness of the same age; and
Which are necessary to assure the health and welfare of the
participant and avoid institutionalization.”
Source: Centers for Medicare and Medicaid Services, Application for a 1915(c) Home and Community-Based Waiver. Instructions, Technical Guide and Review Criteria.
January 2019. page 109
16
Kentucky’s Definition of Extraordinary Care
WHY DOES AN LRI NEED TO BE APPROVED?
Kentucky Department for Medicaid Services
(DMS) defines extraordinary care using a set of
criteria that a participant or the legally responsible
individual must meet. The criteria is explained in
detail in the next section.
CMS requires Kentucky (and all states) to create clear
conditions that describe when a participant requires
‘extraordinary care.’
If the participant meets those conditions, the legally
responsible individual may be paid to provide services.
17
WHY DOES AN LRI NEED TO BE APPROVED?
Explaining Conflict of Interest
LRI
Personal
Interest
Participant
InterestConflict of
Interest
Conflict of Interest: When a legally responsible individual is
authorized to make decisions on behalf of a participant and they have
an opportunity to prioritize payment for the services they deliver over
the participant’s best interests.
18
WHY DOES AN LRI NEED TO BE APPROVED?
Putting the Pieces Together: What it all Means
A participant requires extraordinary care when:
• They require care more often when compared to
someone of the same age who does not have a
disability;
• They require more care compared to someone of
the same age who does not have a disability;
• The care provided is necessary to maintain
health and safety;
• They are at risk of institutional placement
(nursing home, intermediate care facility, hospital,
etc.) without the caregiver.
19
HOW IS AN LRI APPROVED TO
BE A PDS EMPLOYEE?
20
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Kentucky’s Policy on Legally Responsible Individuals as PDS Employees
Kentucky policy allows legally responsible individuals
to become PDS employees if the participant meets
the criteria for ‘extraordinary care’. This allows
participants a choice in who provides their care.
Adults
Children
An adult participant (18 years old or older) must meet one of the
conditions in Category A to employ a legally responsible
individual.
A participant who is a minor child (17 years old or younger) must
meet one of the conditions in Category A AND one of the conditions
in Category B to employ a legally responsible individual.
21
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Category A: Criteria for ALL PDS participants
22
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Criteria: The participant’s care needs have reduced or eliminated the legally responsible individual’s ability to maintain paid employment in the past and there is not an alternative caregiver who is functionally able to provide care.
1
Caregiver must leave work often to provide care to the participant
(i.e. reducing hours of work);
Caregiver frequently takes leave of absence from work to provide
care to the participant (i.e. eliminating hours of work);
Scheduling job interviews is challenging because of the care
needs of the participant.
Examples of Employment Challenges for a Legally Responsible
Individual:
Category A
23
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Criteria: The legally responsible individual can demonstrate attempts within the first 30 days to recruit a qualified provider, but cannot secure one.*
2
There are no providers or PDS employees willing to travel to the
participant’s home or work during required timeframes (e.g. the
nearest provider is not willing to drive sixty miles to your home);
Providers or PDS employees are not willing to provide the type
of care the participant requires (such as transferring someone
who is large, providing toileting assistance, etc.);
Providers or PDS employees are not willing to work for the pay
rate.
Examples of Recruitment Challenges:
Category A
*In some instances, an individual electing the traditional option for delivery of services may not be able to secure a
qualified provider, allowing their LRI to be an employee under this criteria.
24
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Criteria: The participant has a communication barrier exceeding that of his or her age matched peers that impacts his or her ability to effectively communicate needs and wishes.
3
The participant uses sign language;
The participant’s speech is affected by their disability, making
them hard to understand by someone who does not know him/her;
The participant uses a combination of body language and
vocalizations which require interpretation;
The participant is non-verbal and would have difficulty
communicating if an employee made him or her uncomfortable or
afraid.
Examples of Communication Barriers:
Category A
25
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Criteria: The participant has a sincerely held religious belief and cannot secure a provider who is culturally competent or shares the same religion.*
4
The participant is unable to find a provider or PDS employee who can
prepare foods according to their religious beliefs;
The participant is unable to find a provider or PDS employee who
delivers care with respect for the participant’s cultural or religious
beliefs;
The household’s culture requires you to remove your shoes when
entering the home and you cannot find an employee willing to do that.
Examples of Challenges with Cultural Competency:
Category A
*In some instances, an individual electing the traditional option for delivery of services may not be able to secure a
qualified provider, allowing their LRI to be an employee under this criteria.
26
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Category B: Criteria for minor child PDS
participants
1 Criteria from Category A
AND
1 Criteria from Category B
27
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Criteria: The child’s dependency in performing activities of daily living (ADLs) must be directly related to his or her disability and exceed that of his or her age matched peers.
1
Getting dressed
Brushing your teeth
Combing/styling your hair
Preparing a simple meal
Eating
Taking a shower or bath
Other activities included in your
“daily routine”
Examples of Activities of Daily Living:
Category B
28
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Criteria: The child demonstrates destructive or injurious behaviors exceeding that of his or her age matched peers and such behaviors represent a risk of serious injury or death to self or others.
2
The child strikes or hits furniture,
walls, or other parts of the
environment;
The child breaks toys, rips
clothing, or causes damage to
things within their reach.
Examples of Destructive
Behaviors:
The child strikes or hits a part of the
body against the environment;
The child strikes another in any way;
The child takes an action that could
cause immediate harm to
themselves or others, such as
running into the street.
Examples of Injurious
Behaviors:
29
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
A parent, who is having trouble keeping a job, wants to go to work for
their child, a PDS participant.
Case study: Employing an LRI as a PDS Employee for a minor child
The parent of the child lost their job and cannot find another job because of the
care needs of the child. The participant meets the criteria for Category A,
Number 1.
The Department assesses the child and determines they have functional
needs. Now, the participant meets the criteria for Category B, Number 1.
The child has more functional needs than other children their age. And the
legally responsible individual can document the challenges in getting a job,
maintaining normal hours, or keeping a job.
The legally responsible individual is likely to be approved to work as a PDS
employee for the participant.
30
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Criteria Reduced
Employment
Provider
Recruitment
Communication
Barrier
Religious
Beliefs
Functional
Needs
Behavioral
Needs
31
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Criteria Reduced
Employment
Provider
Recruitment
Communica-
tion Barrier
Religious
Beliefs
Functional
Needs
Behavioral
Needs
32
HOW IS AN LRI APPOVED TO BE A PDS EMPLOYEE?
How does a legally responsible individual apply to be a PDS employee?
Legally responsible individuals must apply and
be approved by the Kentucky Department for
Medicaid Services (DMS), or its designee.
The legally responsible individual works with the participant-
directed case manager (formerly the support broker or service
advisor) to begin the application process.
33
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Discuss with PDCM
• Why does LRI need to be PDS Employee?
• Any other trusted employee available?
• Can someone be taught?
Documents
• Functional Assessment;
• Proof of PDS employee recruiting attempts;
• Documents from past providers;
• Affidavit.
DMS or Its Designee
• Receive documents;
• Review case;
• Make determination.
What are the steps for a participant to hire a legally responsible individual
to be a PDS employee?
34
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
What if DMS denies the application and the LRI disagrees?
If the legally responsible individual disagrees with the
DMS determination, they may request a reconsideration
and/or appeal the decision.
The legally responsible individual may work with the
participant-directed case manager to request a
reconsideration or appeal.
The process for appeal is outlined in Kentucky
Administrative Regulations (907 KAR 2:040).
The legally responsible individual does not need to hire
a lawyer or other legal counsel to appeal a DMS
decision; however, they may do so if they wish.
35
HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?
Additional resources for participants and legally responsible individuals:
Participant Directed Case Manager
Participant Guide
DMS Participant Directed Services
Website
The Participant Directed Case
Manager can assist you with the
entire process.
Participants have access to a
written Participant Guide to help
you with step-by-step instructions.
The PDS website has
information, forms, and other
resources to help you.
36
ADDITIONAL RESOURCES
Please visit the Division of Community Alternatives
website found at:
https://chfs.ky.gov/agencies/dms/dca/Pages/default.a
spx for general information on 1915 (c) HCBS Waiver
resources.
Specific information on PDS can be found at:
https://chfs.ky.gov/agencies/dms/dca/Pages/cdo.aspx
https://chfs.ky.gov/agencies/dms/dca/Documents/pdsonepager.pdf
More information on criteria required to hire an LRI:
37
THANK YOU FOR YOUR VALUABLE INPUT
AND CONTINUED PARTNERSHIP WITH DMS.
All questions and comments can be emailed to:
MedicaidPublicComment@ky.gov
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