RULEMAKING NOTICE FORM

RULEMAKING NOTICE FORM

Notice Number 2019-48 Rule Number He-M 525

1. Agency Name & Address:

Dept. of Health & Human Services

Bureau of Developmental Services

105 Pleasant Street, Main Bldg.

Concord NH 03301

2. RSA Authority: RSA 171-A:3, RSA 171-A:18,

IV; RSA 137-K:3, IV

3. Federal Authority:

4. Type of Action:

Adoption

Amendment

Repeal

Readoption X

Readoption w/amendment X

5. Short Title: Participant Directed and Managed Services

6. (a) Summary of what the rule says and of any proposed amendments:

He-M 525 specifies minimum standards for participant directed and managed services (PDMS) for

individuals who have a developmental disability or acquired brain disorder, to enable individuals to

direct the services they receive to the greatest extent possible.

Most of He-M 525 expires on 3/22/19, but is subject to extension pursuant to RSA 541-A:14-a. He-M

525.13(b)-(c), effective 3-22-11 (Document #9890-B), are not expiring, but are being included in this

proposal so that the proposal as a whole is understandable.

The proposed rule includes the following revisions:

Amending definitions to align with other Departmental rules;

Inserting the word “basic” for education in He-M 525.05(e)(1) to clarify the type of adult

education that can be provided and to align this clarification with rules He-M 503 and He-M

522;

Clarifying that it is an area agency’s responsibility to provide written and verbal notice of the

right to appeal when the area agency doesn’t approve the individual’s or representative’s

selection of a person or entity to provide services;

Clarifying that service planning takes place in accordance with He-M 503.09;

Insertion of requirements for the service agreement to provide clarity on what elements need to

be included in the service agreement. These include:

o The individual’s clinical and support needs as identified through current assessment;

o The individual’s need for guardianship; and

o The identification of the person or entity responsible for monitoring the service plan;

Insertion of language to further clarify and define the criminal records checks that must be

completed, and the hiring that may occur based on the results of said checks, to bring checks in

line with other Department rules. These changes include:

o The requirement to submit the name of the potential staff or provider, and persons

residing in the home of a non-family provider for review against the registry of

founded reports of abuse, neglect, and exploitation to ensure that the person is not on

the registry pursuant to RSA 169-C:35 or RSA 161-F:49;

o The requirement to complete a NH criminal records check no more than 30 days prior

to contracting with the staff or provider;

o The requirement to complete a criminal records check for the person’s previous state of

residence if the current state of residence is not NH;

o The requirement to complete a criminal records check for the person’s state of

residence if it is not New Hampshire;

o The requirement to complete a criminal records check for the person’s previous state of

residence if the person has resided in New Hampshire for less than one year;

o Language to permit, upon granting of a waiver, the area agency, individual,

representative, or subcontract agency to hire a person with a criminal record if the

single offense occurred more than 10 years ago, and to review the person’s history

prior to approving employment;

o Language stipulating that employment of a person with a criminal record shall be

approved if the individual, guardian, area agency, or subcontract agency approves

the employment, such employment does not impact the health or safety of the

individual, and does not impact the quality of services;

o Documentation requirements for the hiring of a person with a criminal record to

include the dates of the approval, the name of the person, the type of service being

provided, the description of the person’s criminal offense, the explanation for the

hiring, and signatures of the individual, guardian, area agency staff, and the person

being hired; and

o An annual documentation requirement to have the person state that since being hired

he or she has not been convicted of any criminal offense or had a finding by an

administrative agency for assault, fraud, abuse, neglect, or exploitation; and

Clarifying and updating the waiver process to align with other Department rules.

6. (b) Brief description of the groups affected:

These rules affect area agencies and individuals engaged in participant directed managed services.

6. (c) Specific section or sections of state statute or federal statute or regulation which the rule is

intended to implement.

Rule State Statute Implemented

He-M 525.01 171-A:1; 4-8; 11-13; 18, I

He-M 525.02 171-A:4-8; 11-13; 18, I

He-M 525.03 RSA 171-A:4

He-M 525.04 RSA 171-A:4; 12

He-M 525.05 RSA 171-A:13; 14

He-M 525.06 RSA 171-A:11; 12; 13

He-M 525.07 RSA 171-A:18, I, II

He-M 525.08 RSA 171-A:11; 13

He-M 525.09 RSA 171-A:18, I, II

He-M 525.10 RSA 171-A:1, V; 18, I, II

He-M 525.11 RSA 171-A:6, V

He-M 525.12 RSA 171-A:18, I, II

He-M 525.13 RSA 171-A:3; RSA 541-A:22, IV

7. Contact person for copies and questions including requests to accommodate persons with disabilities:

Name: Kim Reeve, Esq. Title: Legal Counsel – Admin Rules

Address: NH Dept. of Health & Human Services

Administrative Rules Unit

129 Pleasant St.

Concord, NH 03301

Phone #:

Fax#:

E-mail:

271-9640

271-5590

[email protected]

TTY/TDD Access: Relay NH 1-800-735-2964 or dial 711 (in NH)

The proposed rules may be viewed and downloaded at:

http://www.dhhs.nh.gov/oos/aru/comment.htm

8. Deadline for submission of materials in writing or, if practicable for the agency, in the electronic format

specified: April 24, 2019

Fax E-mail

Other format (specify):

9. Public hearing scheduled for:

Date and Time: Wednesday April 17, 2019 3PM

Place: DHHS Brown Bldg., Auditorium, 129 Pleasant St., Concord, NH 03301

10. Fiscal Impact Statement (Prepared by Legislative Budget Assistant)

FIS # 19:028 , dated 03/07/19

mailto:[email protected]

http://www.dhhs.nh.gov/oos/aru/comment.htm

1. Comparison of the costs of the proposed rule(s) to the existing rule(s):

There is no difference in cost when comparing the proposed rules to the existing rules.

2. Cite the Federal mandate. Identify the impact on state funds:

No federal mandate, no impact on state funds.

3. Cost and benefits of the proposed rule(s):

A. To State general or State special funds:

None.

B. To State citizens and political subdivisions:

None.

C. To independently owned businesses:

None.

11. Statement Relative to Part I, Article 28-a of the N.H. Constitution:

The proposal does not mandate any fees, duties or expenditures on the political subdivisions of the

state, and therefore does not violate Part I, Article 28-a of the N.H. Constitution.

Initial Proposal 2/26/2019 1

CHAPTER He-M 500 DEVELOPMENTAL SERVICES

Readopt with amendment He-M 525.01 through He-M 525.06, effective 3-22-11 (Document #9890-A),

cited and to read as follows:

PART He-M 525 PARTICIPANT DIRECTED AND MANAGED SERVICES

Statutory Authority: New Hampshire RSA 171-A:3; RSA 171-A:18, IV; RSA 137-K:3, IV

He-M 525.01 Purpose and Scope.

(a) The purpose of these rules is to establish minimum standards for participant directed and

managed services for individuals who have a developmental disability or acquired brain disorder.

(b) Participant directed and managed services enable individuals who have a developmental

disability or acquired brain disorder to direct their services and to experience, to the greatest extent possible,

independence, community inclusion, employment, and a fulfilling home life, while promoting personal

growth, responsibility, health, and safety.

(c) These rules shall not apply to individuals who receive services under He-M 524, in-home

supports.

(d) Nothing in these rules shall superscede the provisions of He-M 503.08 regarding service

guarantees for persons with developmental disabilities.

He-M 525.02 Definitions.

(a) “Area agency” means “area agency” as defined under RSA 171-A:2, I-b., namely, “an entity

established as a nonprofit corporation in the state of New Hampshire which is established by rules adopted

by the commissioner to provide services to developmentally disabled persons in the area.”

(b) “Area agency director” means that person who is appointed as executive director or acting

executive director of an area agency by the area agency’s board of directors.

(c) “Bureau” means the bureau of developmental services of the department of health and human

services.

(d) “Bureau administrator” means the chief administrator of the bureau of developmental services.

(e) “Department” means the New Hampshire department of health and human services.

(f) “Developmental disability” means “developmental disability” as defined in RSA 171-A:2,V,

namely, “a disability:

(a) Which is attributable to intellectual disability, cerebral palsy, epilepsy, autism or a specific

learning disability or any other condition of an individual found to be closely related to an

intellectual disability as it refers to general intellectual functioning or impairment in adaptive

behavior or requires treatment similar to that required for persons with an intellectual disability;

and

(b) Which originates before such individual attains age 22, has continued or can be expected

to continue indefinitely, and constitutes a severe disability to such individual’s ability to

function normally in society.”


(g) “Direct and manage” means to be actively involved in all aspects of the service arrangement,

including:

(1) Designing the services;

(2) Selecting the service providers;

(3) Deciding how the authorized funding is to be spent based on the needs identified in the

individual’s service agreement; and

(4) Performing ongoing oversight of the services provided.

(h) “Employer” means an area agency or subcontract agency or person that handles legally defined

and other employer-related functions such as, but not limited to:

(1) Paying employer taxes;

(2) Withholding employee taxes;

(3) Performing other payroll functions, including issuing paychecks;

(4) Providing workers’ benefits; and

(5) Obtaining workers’ compensation and liability insurance.

(i) “Family” means a group of 2 or more persons related by ancestry, marriage, or other legal

arrangement that has at least one member who has a developmental disability or acquired brain disorder.

(j) “Guardian” means a person appointed pursuant to RSA 547-B, RSA 463, or RSA 464-A or the

parent of a child under the age of 18 whose parental rights have not been terminated or limited by law.

(k) “Home provider” means a person who is under contract with the area agency, a subcontract

agency, or another entity and who is responsible for providing services to an individual in the provider’s

home.

(l) “Individual” means a person who is eligible for developmental services or services for acquired

brain disorder pursuant to He-M 503 or He-M 522.

(m) “Informed decision” means “informed decision” as defined in RSA 171-A:2, XI.

(n) “Nursing-related tasks” means those nursing services that are delegated to unlicensed personnel

and:

(1) That are routine in nature;

(2) That do not require nursing judgment;

(3) That pose little risk to the individual if done inappropriately or incorrectly; and

(4) Whose outcomes are stable and predictable.

(o) “Participant directed and managed services” means services provided pursuant to He-M 525a

service arrangement whereby the individual or representative, if applicable, directs and manages the

services as defined in (g) aboveand makes the decisions about how the funds available for the individual’s

services are to be spent. ServicesIt includes assistance and resources to individuals in order to maintain or

improve their skills and experiences in living, working, socializing, and recreating.


(p) “Provider” means a person receiving any form of remuneration for the provision of services to

an individual.

(q) “Representative” means:

(1) The parent or guardian of an individual under the age of 18;

(2) The legal guardian of an individual 18 or over; or

(3) A person who has power of attorney for the individual.

(r) “Respite” means the provision of short-term care, in accordance with He-M 513, for an individual

in or out of the individual’s home for the temporary relief and support of the individual’s family with whom

the individual lives.

(s) “Service coordinator” means a person who meets the criteria in He-M 503.08(e) – (f) and is

chosen or approved by an individual or and his or her guardian or representative and designated by the area

agency to organize, facilitate, and document service planning and to negotiate and monitor the provision of

the individual’s services and who is:

(1) An area agency service coordinator, family support coordinator, or any other area agency

or subcontract agency employee;

(2) A member of the individual’s family;

(3) A friend of the individual; or

(4) Any other person chosen by the individual.

(t) “Sheltered workshop” means a program run by an area agency or a subcontract agency, person,

or entity that provides a segregated work environment.

(u) “Staff” means a person employed by an area agency, subcontract agency, or other employer.

(v) “Staffed home” means a residence owned or leased by an area agency or subcontract agency

exclusive of any independent living arrangement where supports are provided to the individual.

(w) “Subcontract agency” means an entity that is under contract with any area agency to provide

services to individuals who have a developmental disability or acquired brain disorder.

(x) “Team” means that group that participates in service planning and review meetings and includes

the individual and his or her service coordinator and representative and others invited by the individual.

He-M 525.03 Eligibility.

(a) Participant directed and managed services shall be open to any individual who:

(1) Is eligible and has funding for services pursuant to He-M 503 or He-M 522; and

(2) Wishes to direct, or whose representative wishes to direct, his or her services.

(b) Participant directed and managed services shall not be used in congregate service arrangements

or programs where individuals, families, or guardians do not direct and manage the services and approved

funding pursuant to He-M 525.02 (g) and there is a per diem payment made to the provider rather than a

budget that is available to the individual, family, or guardian to manage.


(c) Individuals who receive services under He-M 524 shall not be eligible for services under this

partHe-M 525.

(d) A person shall not be eligible to receive payment for providing services under He-M 525 if he

or she is the spouse of the individual.

(e) Participant directed and managed services shall not be available for an individual with the

following:

(1) Incident(s) of behaviors that pose a risk to community safety with or without police or

court involvement, or a history of civil commitment under RSA 171-B;

(2) A formal risk assessment conducted within the past year by a N.H. licensed psychologist

or psychiatrist that finds the individual to pose a moderate or high risk to community safety

and includes recommendations on the level of security, services, and treatment necessary for

the individual; and

(3) Concurrence from the area agency’s human rights committee, established pursuant to RSA

171-A:17, I, that services under He-M 525 would not provide the degree of security, services,

or treatment needed by the individual.

(f) Upon a positive finding pursuant to (e)(2) above, the individual may obtain a second opinion

from a New Hampshire licensed psychologist or psychiatrist.

(g) The human rights committee shall consider the findings of the assessment conducted in (f) above.

(h) If a human rights committee convenes pursuant to (e)(3) or (g) above, the committee shall meet,

if requested, with the individual and the individual’s representative.

He-M 525.04 Non-Covered Services. The following services shall not be fundable under this

partHe-M 525:

(a) Custodial care programs provided only to maintain the individual’s basic welfare;

(b) Educational services or education programs for individuals under 21 years of age for which

school districts are responsible;

(c) Sheltered workshops; and

(d) Services not related to supports required because of an individual’s developmental disability or

acquired brain disorder.

He-M 525.05 Service Principles.

(a) Participant directed and managed services shall promote the individual’s and his or her

representative’s involvement, choice, and control in all levels of planning, provision, and monitoring of

services.

(b) Individuals who are involved in participant directed and managed services may identify others

of their choice to assist them in directing their services.

(c) Participant directed and managed services shall:

(1) Be tailored to the individual’s competencies, interests, preferences, and needs;

(2) Promote the health, safety, and emotional well-being of the individual;


(3) Be provided in a manner which protects the individual’s rights as described in He-M 202

and

He-M 310; and

(4) Provide the degree of support an individual needs to direct services, increase his or her

level of independence, and advocate for himself or herself.

(d) Participant directed and managed services that support families who are caring for their family

members shall:

(1) Respect each family’s values, beliefs, and traditions; and

(2) Recognize and draw on each family’s strengths and competencies.

(e) For an individual who is 21 years of age or older, participant directed and managed services shall

include supports identified in the service agreement, such as:

(1) Personal care, employment supports, adult basic education, and avocational and leisure

activities;

(2) Adaptations through environmental and vehicle modifications and assistive technology;

(3) Services that assist the individual to acquire and maintain life skills in such areas as

personal safety, meal preparation, and budgeting;

(4) Services that, based on the individual’s preferences, broaden his or her life experiences

through social, artistic, and spiritual expression;

(5) Respite and family support services that meet the needs of individuals living with their

families;

(6) Provider training including, at a minimum:

a. Individual rights; and

b. Universal precautions and other nursing-related tasks; and

(7) Consultations and assessments; and

(8) Services needed, but not currently available.

(f) For an individual who is under the age of 21, participant directed and managed services shall

include supports identified in the service agreement for the individual and his or her family, such as:

(1) Respite;

(2) Environmental and vehicle modifications, and assistive technology;

(3) Provider training including, at a minimum:

a. Individual rights; and

b. Universal precautions and other nursing-related tasks;

(4) Consultations and assessments; and


(5) The following, to the extent that they are not the responsibility of the school district to

provide:

a. Transition planning;

b. After school supports; and

c. Acquisition and maintenance of life skills, such as:

1. Preparing meals;

2. Budgeting;

3. Obtaining and maintaining employment;

4. Socializing; and

5. Maintaining personal safety.

(g) The area agency or subcontract agency shall discuss options for service provision with the

individual and representative.

(h) The individual or representative shall select the provider and staff to deliver participant directed

and managed services based on the discussion of options required in (g) above.

(i) When the individual or representative opts for services that are to be provided by a person or an

entity other than the area agency or a subcontract agency:

(1) The area agency shall hire the person or contract with the person or entity, consistent with

the area agency’s or subcontract agency’s personnel policies; or

(2) The individual or representative may choose to hire or contract with the person or entity.

(j) If the individual or representative chooses to hire or contract with the person or entity:

(1) The area agency shall:

a. Approve the identified person or entity;

b. Discuss with the individual and representative each party’s responsibilities regarding

service planning, provision, and oversight; and

c. Establish a contract with the individual or representative regarding service planning,

provision, and oversight; and

(2) The individual or representative shall give to the area agency a copy of any contract

established with a contractor pursuant to (i)(2) above.

(k) In those situations where the area agency does not approve the individual’s or representative’s

selection of a person or entity, the area agency shall:

(1) Provide, in writing, the reasons why the area agency will not hire, contract with, or approve

the person or entity; and

(2) Advise the individual or representative in writing and verbally of his or her appeal rights

under He-M 525.11; and


(32) Assist the individual or representative in selecting another person or entity to provide the

services, as needed.

He-M 525.06 Administrative, Service, and Personnel Requirements.

(a) During the service planning process, the area agency shall inform each individual and

representative that participant directed and managed services are available as an option to them Service

planning shall be conducted in accordance with He-M 503.09.

(b) For each individual receiving participant directed and managed services, the service coordinator

shall develop a service agreement upon the area agency’s identification of the availability of funding and

prior to the initiation of services.

(bc) The service coordinator shall assist the individual and representative and other persons chosen

by the individual to develop a written service agreement in accordance with the principles outlined in He-

M 525.05, signed by the individual or representative and the area agency director or designee, that includes

the following:

(1) A brief description of the individual’s strengths, needs, and interests, as applicable;

(2) The individual’s clinical and support needs as identified through current evaluations and

assessment;

(32) The specific services to be furnished and the goal associated with each service;

(43) The amount, frequency, duration, and desired outcome of each service;

(54) Timelines for initiation of services;

(65) The provider to furnish the services;

(7) The individual’s need for guardianship, if any;

(86) Service documentation requirements for tracking outcomes and service provision,

including the type of documentation;

(9) Identification of the person or entity responsible for monitoring the plan;

(107) The frequency of service coordinator visits with the individual and contact with the

representative pursuant to He-M 525.08 (a) and (b);

(118) An individualized budget pursuant to (g) below; and

(129) If medication is administered, provision for compliance with (k)(5) below.

(d) Requirements for documentation of service provision shall be specified in the service agreement

and include, at minimum:

(1) The dates services are provided; and

(2) Reports on progress toward achieving desired outcomes.

(e) Service agreements shall be renewed at least annually and include a review of guardianship.


(f) Amendments to the service agreement may be made at any time. Amendments shall be

documented by the service coordinator with the approval of the individual or representative and the area

agency director or designee.

(g) The individual or representative and the area agency shall develop an individualized budget that

includes:

(1) The specific service components;

(2) The frequency and duration of the services required;

(3) An itemized cost of services; and

(4) The frequency at which budget reports will be provided by the area agency or subcontractor

to the individual or representative pursuant to (h) below.

(h) In providing services, the area agency or subcontract agency shall establish a budget reporting

mechanism, detailing expenditures to date and the amount remaining in the budget, to assist the individual

-and representative to manage his or her budget.

(i) When participant directed and managed services are to be provided by a subcontract agency of

the area agency, one of the following shall apply:

(1) The individual or representative shall establish an agreement with the subcontract agency;

or

(2) The area agency shall establish a contract with the subcontract agency for service provision

and oversight.

(j) Agencies providing participant directed and managed services shall have policies regarding:

(1) Administration of medication, pursuant to (k)(5) below; and

(2) Individual rights in accordance with He-M 202 and He-M 310.

(k) For individuals who are 21 years of age or older, the following shall apply:

(1) Unless otherwise requested by the individual or representative the area agency or a

subcontract agency shall be the employer;

(2) When the individual or representative requests to be the employer or designates an entity

to perform that function that is not a subcontractor of an area agency, the area agency shall

identify and review with the individual and representative the responsibilities referenced in (3)

below;

(3) Prior to hiring or contracting with a staff or provider, tThe individual,

representative,employer, or person or area agency or subcontract agency that intends to is

contracting with a provider, shall:

a. Submit the name of the potential staff or provider and all other persons residing in the

home of a non-family provider for review against the registry of founded reports of abuse,

neglect, and exploitation to ensure that the person is not on the registry pursuant to RSA

169-C:35 or RSA 161-F:49;


ba. Complete a nduct criminal records checks in New Hampshire, no more than 30 days

prior to contracting with the staff or provider to ensure that the person and all other

persons residing in the home of a non-family provider have no history of fraud, felony,

or misdemeanor conviction; and check the state registry of founded reports of abuse,

neglect, and exploitation as established by RSA 161-F:49 for all persons who:

1. Are being considered for a position as staff or provider; or

2. Reside in the home of a non-family provider;

c. Complete a criminal records check for the person’s state of residence if it is not New

Hampshire to ensure that the person and all other persons residing in the home of a non-

family provider have no history of fraud, felony, or misdemeanor conviction;

d. Complete a criminal records check for the person’s previous state of residence if they

have resided in New Hampshire for less than one year to ensure that the person and all

other persons residing in the home of a non-family provider have no history of fraud,

felony, or misdemeanor conviction;

eb. Provide information obtained pursuant to (3) a. above to the area agency;

fc. Obtain at a minimum one reference on each prospective staff or non-family provider;

gd. Provide proof of insurance coverage, including general liability and workers’

compensation, to the area agency; and

he. Comply, as applicable, with all employer-employee legal requirements such as wage

reporting and tax withholding;

(4) Upon receipt of the information pursuant to (3) a. or b. above, an area agency, individual,

or representative shall exclude a provider or provider applicant, if he or she, or any other person

residing in the home of the provider or the provider applicant, is listed on the state registry or

has committed a crime listed in He-M 525.09 (b) (8)-(9)An individual, representative, area

agency, or subcontract agency may hire a person with a criminal record listed in (3)b.-d. above

for a single offense that occurred 10 or more ago in accordance with (5) and (6) below. In such

instances, the individual, his or her guardian, if applicable, the area agency, and the subcontract

agency, if applicable, shall review the person’s history prior to approving the person’s

employment;

(5) Unless a waiver is granted pursuant to (6) below, an individual, representative, area agency,

or subcontract agency may not hire a person with a criminal record, other than as specified in

(4) above;

(6) The department may grant a waiver of (5) above if, after reviewing the underlying

circumstances, it determines that the person does not pose a threat to the health, safety, or well-

being of individuals;

(7) Employment of a person pursuant to (4) above shall only occur if such employment:

a. Is approved by the individual, his or her guardian if applicable, the area agency, and

the subcontract agency if applicable;

b. Does not negatively impact the health or safety of the individual(s); and


c. Does not affect the quality of services to individuals.

(9) Upon the hiring of a person pursuant to (4) above, the area agency shall document and

retain the following information in the individual’s record:

a. The dates of the approval in (4) above;

b. The name of the person hired;

c. The description of the person’s criminal offense;

d. The type of service the person is hired to provide;

e. The subcontract agency’s name and address, if applicable;

f. A full explanation as to why the individual, representative, or agency is hiring the

person despite the person’s criminal record;

g. The signature of the individual, guardian, or representative indicating agreement with

the employment and the date signed;

h. The signature of the area agency representative approving the employment; and

i. The signature and phone number of the person being hired.

(10) All personnel shall sign a statement annually, which shall be maintained in the personnel

file, stating that since the time of hire they:

a. Have not been convicted of a felony or misdemeanor in this or any other state; and

b. Have not had a finding by the department or any administrative agency in this or any

other state for assault, fraud, abuse, neglect, or exploitation of any person.

(115) Medication administration shall:

a. Comply with He-M 1201 or Nur 404 except in situations where the individuals are

living with their families and receiving respite arranged by the family; or

b. When performed by family members paid under He-M 525, include discussion

between the area agency or subcontract agency and the family about any concerns the

family might have regarding medication administration;

(126) Provision of nursing-related tasks shall:

a. Comply with Nur 404 except in situations where individuals are living with their

families and receiving respite arranged by the family; or

b. When performed by family members paid under He-M 525, include discussion

between the area agency or subcontract agency and the family about concerns the family

might have regarding the provision of nursing-related tasks;


(137) Staff and providers who are not family members shall:

a. Meet the educational qualifications, or the equivalent combination of education and

experience, identified in the job description;

b. Meet the certification and licensing requirements of the position, if any; and

c. Be 18 years of age or older;

(148) The employer, when not the individual or representative, shall provide information to

the individual and representative regarding the staff development elements identified in He-M

506.05 to assist him or her in making informed decisions with respect to orientation and training

of staff and providers; and

(159) Subsequent to (148) above and consistent with the area agency’s or subcontract agency’s

personnel policies, the employer shall insure that the staff and providers receive the orientation

and training selected by the individual or representative.

(l) In addition to complying with (k) above, when an individual is 21 years of age or older and lives

in a staffed home:

(1) The home shall comply with applicable local and state health, zoning, building and fire

codes;

(2) The physical layout and environment of the home shall meet the health and safety needs

of the individual;

(3) A signed statement from the local fire official shall be obtained before the individual moves

into the home:

a. Verifying that the home complies with all state and local fire codes; and

b. Specifying the number of beds that can safely be occupied by individuals living in the

home; and

(4) Quarterly fire drills in the home shall be conducted and documented such that:

a. One drill per year shall be conducted during sleep hours; and

b. The first drill shall be conducted no more than 5 days after the individual has moved

into the home.

(m) In addition to complying with (k) above, when an individual is 21 years of age or older and

lives with a home provider who is not a family member, the home shall have:

(1) An integrated fire alarm system with a functioning smoke detector in each bedroom and

on each level of the home including the basement and attic, if the attic is used as living or

storage space;

(2) A functioning septic or other sewage disposal system;

(3) A source of potable water for drinking and food preparation, such that, if the water for

drinking and food preparation is not from a public water supply:

a. At the time of the initial certification there shall be well water test results less than 2

years old that indicate the water is potable; or


b. There shall be documentation that bottled water is used; and

(4) Two means of egress.

(n) If the home in which supports are provided is not owned by a family member, a fire safety

assessment shall be conducted by staff in a staffed home or a home provider, when not a family member,

to address the individual’s following risk factors:

(1) Response to alarm;

(2) Response to instructions;

(3) Vision and hearing difficulties;

(4) Impaired judgment;

(5) Mobility problems; and

(6) Resistance to evacuation.

(o) Based on the findings of the fire safety assessment, the individual and other members of his or

her team shall develop a fire safety plan that addresses fire drill frequencies, procedures to achieve

evacuation within 3 minutes, and other fire safety related strategies determined by the team to be applicable.

(p) When an individual’s service agreement specifies unsupervised time and the provider is not a

family member, the staff in a staffed home or the home provider shall conduct a personal safety assessment

that identifies the individual's ability to demonstrate the following safety skills:

(1) Responding to a fire, including exiting safely and seeking assistance;

(2) Caring for personal health, including understanding health issues, taking medication,

seeking assistance for health needs and applying basic first aid;

(3) Seeking safety if victimized or sexually exploited;

(4) Negotiating one’s community, including finding one’s way, riding in vehicles safely,

handling money safely, and interacting with strangers appropriately;

(5) Responding appropriately in severe weather and other natural disasters, including storms

and extreme temperature; and

(6) Maintaining a safe home, including:

a. Operating heating, cooking, and other appliances; and

b. Responding to common household problems such as a blocked toilet, power failure

or gas odors.

(q) Based on the findings of the personal safety assessment, the individual and other members of

his or her team shall develop a personal safety plan that:

(1) Identifies any supports necessary for an individual to respond to each of the contingencies

listed in (p) above;

(2) Indicates who will provide the needed supports;


(3) Describes how the supports will be activated in an emergency;

(4) Indicates approval of the individual or legal guardian, provider, residential coordinator,

and service coordinator;

(5) Is reviewed by the provider or staff at the time of the individual’s service agreement; and

(6) Is revised whenever there is a change in the individual’s residence or ability to respond to

the contingencies listed in the plan.

Readopt He-M 525.07, effective 3-22-11 (Document #9890-A), to read as follows:

He-M 525.07 Certification.

(a) Participant directed and managed services provided in the home to individuals who are 21 years

or older shall be certified by the bureau, except for respite care or in those situations where the individual

is living independently.

(b) To facilitate the certification process, the area agency shall:

(1) Review the service arrangement and documentation to confirm that all applicable

requirements identified in He-M 525.06 are being met; and

(2) Forward to the bureau, 30 days prior to the initiation of services, the individual’s proposed

service agreement and proposed individualized budget and the area agency’s recommendation

for certification.

(c) Within 14 days of receiving the area agency recommendation, the bureau shall issue a

certification if the requirements in He-M 525.06 are being met.

(d) All certifications granted by the bureau under (c) above shall be effective for no more than 24

months.

(e) To renew a participant directed and managed services certification, the area agency shall:

(1) Review the service arrangement and documentation to confirm that all applicable

requirements identified in He-M 525.06 are being met; and

(2) Forward to the bureau the individualized budget, the service agreement, and the area

agency’s recommendation for re-certification 30 days prior to the expiration of the current

services.

(f) Within 14 days of receiving the area agency recommendation, the bureau shall renew a

certification if the requirements in He-M 525.06 and He-M 525.12 (b) are being met.

(g) Upon request by the area agency, the bureau shall issue a 60-day emergency certification to

enable an individual to relocate to a staffed or provider home if the area agency executive director, or his

or her designee, submits to the bureau a signed statement documenting that the individual’s safety has been

addressed.

(h) Within 5 business days of an individual’s relocation pursuant to (g) above, a service coordinator

and licensed nurse shall visit the individual in the home to determine if the transition has resulted in adverse

changes in the health or behavioral status of the individual.

(i) A service coordinator shall document the visit described in (h) above in the individual’s record.


Readopt with amendment He-M 525.08 and He-M 525.09, effective 3-22-11 (Document #9890-A), to

read as follows:

He-M 525.08 Quality Review.

(a) When an individual receives services in a staffed home or with a home provider, the service

coordinator shall contact the representative and visit with the individual at least twice a year in the home

where the individual resides, or more frequently if specified in the service agreement.

(b) When an individual lives with his or her family or in his or her own home, the individual or

representative and service coordinator shall establish within the service agreement the minimum number

of:

(1) Service coordinator visits per year with the individual in the home; and

(2) Contacts with the representative per year.

(c) Based on the frequency identified in the service agreement, the service coordinator shall visit

with the individual and contact the representative and document their satisfaction with:

(1) Staff or providers such as their availability, compatibility, and adherence to the provisions

of the service agreement;

(2) Progress on achieving the outcomes specified in the service agreement;

(3) Communication among the individual, the representative, the area agency, and the

providers;

(4) The individual’s health and safety supports as identified in the service agreement; and

(5) The utilization of allocated funds.

(d) The bureau shall conduct yearly reviews of participant directed and managed services to ensure

compliance with He-M 525this part by reviewing documentation at the area agency of, at minimum, 10%

of participant directed and managed service arrangements.

He-M 525.09 Denial and Revocation of Certification.

(a) In the event of the denial or revocation of certification of participant directed and managed

services, the individual’s service coordinator shall assist him or her to continue receiving alternative

services that meet his or her needs.

(b) The bureau shall deny an application for certification or revoke certification of participant

directed and managed services, following written notice pursuant to (d) below and opportunity for a hearing

pursuant to He-C 200, due to:

(1) Failure of a staff, provider, subcontract agency, or area agency to comply with this partHe-

M 525 or any other applicable rule adopted by the department;

(2) Hiring of persons below the age of 18 as staff or non-family providers;

(3) Knowing submission of materially false or misleading information to the department or

failure to provide information requested by the department and required pursuant to He-M 500;

(4) The staff, provider, subcontract agency, or area agency preventing or interfering with any

review or investigation by the department;


(5) The staff, provider, subcontract agency, or area agency failing to provide required

documents to the department;

(6) Any abuse, neglect, or exploitation by a provider, staff, or person living in a non-family

provider’s home, as reported on the state registry in accordance with RSA 161-F: 49, I (a), if

such finding has not been overturned on appeal, been annulled, or received a waiver pursuant

to He-M 525.13;

(7) Failure by the employer to perform criminal background checks on all persons paid to

provide services under He-M 525 who begin to provide such services on or after the effective

date of He-M 525;

(8) Except as allowed in He-MW 525.06(k)(4),A misdemeanor conviction against any staff,

provider, or person living in a non-family provider’s home has been found guilty of fraud, a

felony, or a misdemeanor against a person in this or any other state by a court of law, unless a

waiver has been obtained pursuant to He-M 525.13; orthat involves:

a. Physical or sexual assault;

b. Violence or exploitation;

c. Child pornography;

d. Threatening or reckless conduct;

e. Theft;

f. Fraud;

g. Driving under the influence of drugs or alcohol; or

h. Any other conduct that represents evidence of behavior that could endanger the well

being of an individual;

(9) A conviction of a felony against any staff, provider, or person living in a non-family

provider’s home; or

(910) Evidence that any provider or staff, working directly with individuals, has an illness or

behavior that, as evidenced by the documentation obtained or the observations made by the

department, would endanger the well- being of the individuals or impair the ability of the

provider to comply with department rules, except in cases where such personnel have been

reassigned and the well- being of all individuals and the provider’s ability to comply with these

rules are no longer at risk.

(c) If the department determines that services meet any of the criteria for denial or revocation listed

in (b) above, the department shall deny or revoke the certification of the participant directed and managed

services.

(d) Certification shall be denied or revoked upon the written notice by the department to the

provider, subcontract agency, or area agency stating the specific rule(s) with which the service does not

comply.

(e) Any certificate holder aggrieved by the denial or revocation of the certificate may request an

adjudicative proceeding in accordance with He-M 525.11. The denial or revocation shall not become final


until the period for requesting an adjudicative proceeding has expired or, if the certificate holder requests

an adjudicative proceeding, until such time as the administrative appeals unit issues a decision upholding

the department’s action.

(f) Pending compliance with all requirements for certification specified in the written notice made

pursuant to (d) above, a provider, subcontract agency, or area agency shall not provide additional participant

directed and managed services if a notice of revocation has been issued concerning a violation that presents

potential danger to the health or safety of the individuals being served.

Readopt He-M 525.10, effective 3-22-11 (Document #9890-A), to read as follows:

He-M 525.10 Immediate Suspension of Certification.

(a) Notwithstanding the provision of He-M 525.09 (e), in the event that a violation poses an

immediate and serious threat to the health or safety of the individuals, the bureau administrator shall, in

accordance with RSA 541-A:30, III, suspend a service’s certification immediately upon issuance of written

notice specifying the reasons for the action.

(b) The bureau administrator or his or her designee shall schedule and hold a hearing within 10

working days of the suspension for the purpose of determining whether to revoke or reinstate the

certification. The hearing shall provide opportunity for the provider, subcontract agency, or area agency

whose certification has been suspended to demonstrate that it has been, or is, in compliance with the

specified requirements.

Readopt with amendment He-M 525.11 and He-M 525.12, effective 3-22-11 (Document #9890-A), to

read as follows:

He-M 525.11 Appeals.

(a) An individual or guardian may choose to pursue informal resolution to resolve any disagreement

with an area agency, or, within 30 business days of the area agency decision, she or he may choose to file

a formal appeal pursuant to (e) below. Any determination, action, or inaction by an area agency may be

appealed by an individual or guardian.

(b) An applicant for certification, provider, subcontract agency, or area agency may request a

hearing regarding a proposed revocation or denial of certification, except as provided in He-M 525.10

above.

(c) The following actions shall be subject to the notification requirements of (d) below:

(1) Adverse eligibility actions under He-M 525.03;

(2) Area agency determinations regarding an individual’s or guardian’s selection of a provider

under He-M 525.05 (h) or removal of a provider under He-M 525.05 (k);

(3) Area agency determinations regarding provider certification under He-M 525.09;

(4) Area agency determinations regarding the removal of a service coordinator selected by an

individual or guardian under He-M 503.089 (fd) (2) and (3); and

(5) A determination to terminate services under He-M 503.156 (f).

(d) An area agency shall provide written and verbal notice to the applicant and guardian of the

actions specified in (c) above, including:


(1) The specific rules that support, or the federal or state law that requires, the action;

(2) Notice of the individual’s right to appeal in accordance with He-C 200 within 30 business

days and the process for filing an appeal, including the contact information to initiate the appeal

with the bureau administrator;

(3) Notice of the individual’s continued right to services pending appeal, when applicable,

pursuant to (f) below;

(4) Notice of the right to have representation with an appeal by:

a. Legal counsel;

b. A relative;

c. A friend; or

d. Another spokesperson;

(5) Notice that neither the area agency nor the bureau is responsible for the cost of

representation;

(6) Notice of organizations with their addresses and phone numbers that might be available to

provide legal assistance and advocacy, including the Disabilities Rights Center and pro bono

or reduced fee assistance; and

(7) Notice of individual’s right to request a second formal risk assessment from a qualified

evaluator.

(e) Appeals shall be submitted, in writing, to the bureau administrator in care of the department’s

office of client and legal services within 30 business days following the date of the notification of an area

agency’s decision or the bureau’s denial or revocation of certification. An exception shall be that appeals

may be filed verbally if the individual is unable to convey the appeal in writing.

(f) The bureau administrator shall immediately forward the appeal to the department’s

administrative appeals unit which shall assign a presiding officer to conduct a hearing or independent

review, as provided in He-C 200. The burden shall be as provided by He-C 2034.142.

(g) If a hearing is requested, the following actions shall occur:

(1) For current recipients, services and payments shall be continued as a consequence of an

appeal for a hearing until a decision has been made; and

(2) If the bureau’s decision is upheld, benefits shall cease 60 days from the date of the denial

letter or 30 days from the hearing decision, whichever is later.

He-M 525.12 Funding and Payment.

(a) Area agencies shall submit to the bureau a proposed individualized budget for each individual

requesting initial provision of services under He-M 525, which contains detailed line item information

regarding all services to be provided.

(b) The bureau shall review the proposed budget and issue a response within 10 business days from

the date of request.


(c) For each request an area agency makes for funding individual services under He-M 525, the

bureau shall make the final determination on the budget and proposed services.

(d) Based on an approved individualized budget, service agreement and, if applicable, certification

issued pursuant to He-M 525.07 (c), the area agency shall request a prior authorization from the bureau.

(e) Requests for prior authorization shall be made in writing to:


Hugh J. Gallen State Office Park

105 Pleasant Street

Concord, NH 03301

(f) Once an area agency obtains a prior authorization from the bureau it shall submit claims for

Medicaid waiver participant directed and managed services to:

Professional ClaimsConduent

HP Enterprise Services

P.O. Box 20012 Pillsbury Street, Suite 200

Concord, NH 03301

(g) Payment for mMedicaid waiver participant directed and managed services shall only be made if

prior authorization has been obtained from the bureau.

(h) For those individuals whose net income exceeds the nursing facility cap as established in He-W

658.05, area agencies shall subtract the cost of care from the mMedicaid billings for the individuals unless

they qualify for medicaid for employed adults with disabilities (MEAD) pursuant to He-W 641.03.

(i) In those situations where cost of care is subtracted from the mMedicaid billings, the area agency

shall recover the cost from individuals.

(j) Payment for participant directed and managed services shall not be available to any service

provider who:

(1) Is the parent of the individual under age 18;

(2) Is a person under age 18 if the individual is 21 years or older; or

(3) Is the spouse of an individual receiving services.

Readopt with amendment He-M 525.13, effective 3-22-11 (Document #9890-A & B), to read as

follows:

He-M 525.13 Waivers.

(a) An area agency, subcontract agency, individual, representative, or provider may request a waiver

of specific procedures outlined in He-M 525 by completing and submitting the department’s form entitled

“NH Bureau of Developmental Services Waiver Request” (August 2018). The area agency shall submit the

request in writing to the bureau administrator.

(b) The entity requesting a waiver shall:

(1) Complete the form entitled “NH Bureau of Developmental Services Waiver Request”

(September 2013 edition);


(2) Include a signature from the individual(s) or legal guardian(s) indicating agreement with

the request and the area agency’s executive director or designee recommending approval of

the waiver; and

(b3) If the waiver request is of He-M 525.09 (b) (8) or (9), the entity requesting a waiver shall

include a copy of the relevant criminal record check.

(c) A completed waiver request form shall be signed by:

(1) The individual, guardian, or representative indicating agreement with the request; and

(2) The area agency’s executive director or designee recommending approval of the waiver.

(d) A waiver request shall be submitted to:


Hugh J. Gallen State Office Park

105 Pleasant Street, Main Building

Concord, NH 03301

(ec) All information entered on the forms described in (ab) above shall be typewritten or otherwise

legibly written.

(fd) No provision or procedure prescribed by statute shall be waived.

(ge) The request for a waiver shall be granted by the commissioner or his or her designee within

30 days if the alternative proposed by the requesting entity meets the objective or intent of the rule and it:

(1) Does not negatively impact the health or safety of the individual(s); and

(2) Does not affect the quality of services to individuals.

(f) The determination on the request for a waiver shall be made within 30 days of the receipt of

the request.

(hg) Upon receipt of approval of a waiver request, the requesting entity’s subsequent compliance

with the alternative provisions or procedures approved in the waiver shall be considered compliance with

the rule for which waiver was sought.

(ih) Waivers shall be granted in writing for a specific duration not to exceed 5 years except as in (i)-

(j) below.

(ji) Those waivers which relate to the following shall be effective for the current certification period

only:

(1) Fire safety; or

(2) Other issues relative to the health, safety or welfare of individuals that require periodic

reassessment.

(kj) Any waiver shall end with the closure of the related program or service.

(lk) An area agency, subcontract agency, individual, representative, or provider may request a

renewal of a waiver from the bureau. Such request shall be made at least 90 days prior to the expiration of

a current waiver.


(ml) A request for renewal of a waiver shall be approved in accordance with the criteria specified

in (ge) above.

APPENDIX

Rule State Statute Implemented

He-M 525.01 171-A:1; 4-8; 11-13; 18, I

He-M 525.02 171-A:4-8; 11-13; 18, I

He-M 525.03 RSA 171-A:4

He-M 525.04 RSA 171-A:4; 12

He-M 525.05 RSA 171-A:13; 14

He-M 525.06 RSA 171-A:11; 12; 13

He-M 525.07 RSA 171-A:18, I, II

He-M 525.08 RSA 171-A:11; 13

He-M 525.09 RSA 171-A:18, I, II

He-M 525.10 RSA 171-A:1, V; 18, I, II

He-M 525.11 RSA 171-A:6, V

He-M 525.12 RSA 171-A:18, I, II

He-M 525.13 RSA 171-A:3; RSA 541-A:22, IV

Documents

RULEMAKING NOTICE FORM