10 Colo. Code Regs. § 2505-10-8.600

Current through Register Vol. 47, No. 16, August 25, 2024

Section 10 CCR 2505-10-8.600 - [Repealed effective 9/14/2024] Services for Individuals with Intellectual and Developmental Disabilities

8.600.1Authority

A. These rules are promulgated under the authorities established in Section 25.5 -10, C.R.S.

B. These rules and the program guidelines, standards and policies of the Colorado Department of Health Care Policy and Financing, These rules and the program guidelines, standards and policies of the Colorado Department of Health Care Policy and Financing, shall apply to all community centered boards, service agencies and regional centers receiving funds administered by the Colorado Department of Health Care Policy and Financing.

8.600.2Scope and Purpose

These rules govern services and supports for individuals with developmental disabilities authorized and funded in whole or in part through the Colorado Department of Health Care Policy and Financing. These services and supports include the following, as provided by the Colorado Revised Statutes and through annual appropriation authorizations by the Colorado General Assembly:

A. Services and supports provided to residents of a State operated facility or program or purchased by the Department.

B. The purchase of services and supports through Community Centered Boards, case management agencies, and service agencies.

C. Other services and supports specifically authorized by the Colorado General Assembly.

D. Services and supports funded through the Home and Community-Based Services waivers under Sections 1915(c), 1902(a)(10), and 1902(a)(1) of the Social Security Act and under Section 25.5-4-401, et seq., C.R.S.

8.600.3Consequences for Non-Compliance

A. Pursuant to Title 25.5, Article 10, C.R.S., upon a determination by the Executive Director or designee that services and supports have not been provided in accordance with the program or financial administration standards contained in these rules, the Executive Director or designee may reduce, suspend, or withhold payment to a community centered board, service agency under contract with a community centered board, or service agency from which the Department purchases services or supports directly.

B. Prior to initiating action to reduce, suspend, or withhold payment to a community centered board or service agency for failure to comply with rules and regulations of the Department, the Executive Director or designee shall specify the reasons therefor in writing and shall specify the actions necessary to achieve compliance.

C. The Executive Director or designee may revoke the designation of a community centered board upon a finding that the community centered board is in violation of provisions of Section 25.5-10, C.R.S., other state or federal laws, or these rules.

8.600.4Definitions

As used in these rules, unless the context requires otherwise:

"Abuse" is as defined at Sections 16-22-102(9), 19-1-103, 25.5-10-202(1) (a) -(c), and 26.3.1-101 C.R.S..

"Algorithm" means a formula that establishes a set of rules that precisely defines a sequence of operations. An algorithm is used to assign Clients into one of six support levels in the Home and Community Based Services for Persons with Developmental Disabilities (HCBS-DD) and Home and Community Based Services-Supported Living Services (HCBS-SLS) waivers.

"Assistive Technology Devices" means any item, piece of equipment, or product system that is used to increase, maintain, or improve functional capabilities of individuals with disabilities.

"Assistive Technology Services" includes, but is not limited to, the evaluation of a person's need for assistive technology; helping to select and obtain appropriate devices; designing, fitting and customizing those devices; purchasing, repairing or replacing the devices; and, training the individual, or if appropriate a family member, to use the devices effectively.

"Authorized Representative" means an individual designated by a Client or by the parent or guardian of the Client, if appropriate, to assist the Client in acquiring or utilizing services and supports, this does not include the duties associated with an Authorized Representative for Consumer Directed Attendant Support Services (CDASS) as defined in 8.510.1.

"Authorized Services" means those services and supports authorized pursuant to Section 25.5-10-206, C.R.S., which the Department shall provide directly or purchase subject to available appropriations for persons who have been determined to be eligible for such services and supports and as specified in the eligible person's individualized plan.

"Caretaker" is as defined at Section 25.5-10-202 (1.6)(a)-(c), C.R.S.

"Caretaker Neglect" is as defined at Section 25.5-10-202 (1.8)(a)-(c), C.R.S.

"Case Management Agency" (CMA) means a public or private not-for-profit or for-profit agency that meets all applicable state and federal requirements and is certified by the Department to provide case management services for Home and Community Based Services waivers pursuant to Section 25.5-10-209.5, C.R.S. and pursuant to a provider participation agreement with the state department.

"Challenging Behavior" means behavior that puts the person at risk of exclusion from typical community settings, community services and supports, or presents a risk to the health and safety of the person or others or a significant risk to property.

"Client" means an individual who has met Long-Term Services and Supports (LTSS) eligibility requirements and has been offered and agreed to receive Home and Community Based Services (HCBS) in the Children's Extensive Supports (HCBS-CES) waiver, the HCBS waiver for Children's Habilitation Residential Program (CHRP), the HCBS waiver for Persons with Developmental Disabilities (HCBS-DD), Family Support Services Program (FSSP),or the Supported Living Services (HCBS-SLS) waiver.

"Community Centered Board" means a private corporation, for-profit or not-for-profit that is designated pursuant to Section 25.5-10-209, C.R.S., responsible for, but not limited to conducting Developmental Disability determinations, waiting list management Level of Care Evaluations for Home and Community Based Service waivers specific to individuals with intellectual and developmental disabilities, and management of State Funded programs for individuals with intellectual and developmental disabilities.

"Comprehensive Review of the Person's Life Situation" means a thorough review of all aspects of the person's current life situation by the program approved service agency in conjunction with other members of the interdisciplinary team.

"Comprehensive Services" means habilitation services and supports that provide a full day (24 hours) of services and supports to ensure the health, safety and welfare of the individual, and to provide training and habilitation services or a combination of training and supports in the areas of personal, physical, mental and social development and to promote interdependence, self-sufficiency and community inclusion. Services include residential habilitation services and supports, day habilitation services and supports and transportation.

"Consent" means an informed assent, which is expressed in writing and is freely given. Consent shall always be preceded by the following:

A. A fair explanation of the procedures to be followed, including an identification of those which are experimental;

B. A description of the attendant discomforts and risks;

C. A description of the benefits to be expected;

D. A disclosure of appropriate alternative procedures together with an explanation of the respective benefits, discomforts and risks;

E. An offer to answer any inquiries regarding the procedure;

F. An instruction that the person giving consent is free to withdraw such consent and discontinue participation in the project or activity at any time; and,

G. A statement that withholding or withdrawal of consent shall not prejudice future provision of appropriate services and supports to individuals.

"Developmental Delay" means that a child meets one or more of the following:

A. A child who is less than five (5) years of age at risk of having a developmental disability because of the presence of one or more of the following:

1. Chromosomal conditions associated with delays in development,

2. Congenital syndromes and conditions associated with delays in development,

3. Sensory impairments associated with delays in development,

4. Metabolic disorders associated with delays in development,

5. Prenatal and perinatal infections and significant medical problems associated with delays in development,

6. Low birth weight infants weighing less than 1200 grams, or

7. Postnatal acquired problems resulting in delays in development.

B. A child less than five (5) years of age who is significantly delayed in development in one or more of the following areas:

1. Communication,

2. Adaptive behavior,

3. Social-emotional,

4. Motor,

5. Sensory, or

6. Cognition.

C. A child less than three (3) years of age who lives with one or both parents who have a developmental disability.

"Critical Incident" means an actual or alleged event that creates the risk of serious harm to the health or welfare of an individual receiving services; and it may endanger or negatively impact the mental and/or physical well-being of an individual. Critical Incidents include, but are not limited to: Injury/illness; abuse/neglect/exploitation; damage/theft of property; medication mismanagement; lost or missing person; criminal activity; unsafe housing/displacement; or death

"Developmental Disabilities Professional" means a person who has at least a Bachelor's Degree and a minimum of two (2) years' experience in the field of developmental disabilities or a person with at least five (5) years of experience in the field of developmental disabilities with competency in the following areas:

A. Understanding of civil, legal and human rights;

B. Understanding of the theory and practice of positive and non-aversive behavioral intervention strategies;

C. Understanding of the theory and practice of non-violent crisis and behavioral intervention strategies.

"Developmental Disability" means a disability that:

A. Is manifested before the person reaches twenty-two (22) years of age;

B. Constitutes a substantial disability to the affected individual, as demonstrated by the criteria below at C, 1 and/or C, 2; and,

C. Is attributable to an intellectual and developmental disability or related conditions which include Prader-Willi syndrome, cerebral palsy, epilepsy, autism or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with an intellectual and developmental disability. Unless otherwise specifically stated, the federal definition of "developmental disability" found 42 U.S.C. § 15002, et seq., shall not apply.

1. "Impairment of general intellectual functioning" means that the person has been determined to have a full scale intellectual quotient equivalent which is two or more standard deviations below the mean (70 or less assuming a scale with a mean of 100 and a standard deviation of 15).

a. A secondary score comparable to the General Abilities Index for a Wechsler Intelligence Scale that is two or more standard deviations below the mean may be used only if a full scale score cannot be appropriately derived.

b. Score shall be determined using a norm-referenced, standardized test of general intellectual functioning comparable to a comprehensively administered Wechsler Intelligence Scale or Stanford-Binet Intelligence Scales, as revised or current to the date of administration. The test shall be administered by a licensed psychologist or a school psychologist.

c. When determining the intellectual quotient equivalent score, a maximum confidence level of ninety percent (90%) shall be applied to the full scale score to determine if the interval includes a score of 70 or less and shall be interpreted to the benefit of the Applicant being determined to have a developmental disability.

2. "Adaptive behavior similar to that of a person with intellectual disability " means that the person has an overall adaptive behavior composite or equivalent score that is two or more standard deviations below the mean.

a. Measurements shall be determined using a norm-referenced, standardized assessment of adaptive behaviors that is appropriate to the person's living environment and comparable to a comprehensively administered Vineland Scale of Adaptive Behavior, as revised or current to the date of administration. The assessment shall be administered and determined by a professional qualified to administer the assessment used.

b. When determining the overall adaptive behavior score, a maximum confidence level of ninety percent (90%) shall be applied to the overall adaptive behavior score to determine if the interval includes a score of 70 or less and shall be interpreted to the benefit of the Applicant being determined to have a developmental disability.

D. A person shall not be determined to have a developmental disability if it can be demonstrated such conditions are attributable to only a physical or sensory impairment or a mental illness.

"Emergency", as used in Section 8.608.3 regarding restraint, means a serious, probable, imminent threat of bodily harm to self or others where there is the present ability to affect such bodily harm.

"Emergency Control Procedure" means an unanticipated use of a restrictive procedure or restraint in order to keep the person receiving services and others safe.

"Executive Director" means the Executive Director of the Colorado Department of Health Care Policy and Financing unless otherwise indicated.

"Exploitation" is as defined in Section 25.5-10-202 (15.5)(a)-(d) and 26-3.1-101 C.R.S.

"Extreme Safety Risk to Self" means a factor in addition to specific Supports Intensity Scale (SIS) scores that is considered in the calculation of a Client's support level. This factor shall be identified when a Client:

A. Displays self-destructiveness related to self-injury, suicide attempts or other similar behaviors that seriously threaten the Client's safety; and,

B. Has a rights suspension in accordance with Section 8.604.3 or has a court order that imposes line of sight supervision unless the Client is in a controlled environment that limits the ability of the Client to harm himself or herself.

"Family", as used in rules pertaining to support services and the Family Support Services Program means a group of interdependent persons residing in the same household that consists of a family member with a developmental disability or a child under the age of five (5) years with a developmental delay, and one or more of the following:

A. A mother, father, brother(s), sister(s) or any combination; or,

B. Extended blood relatives such as grandparent(s), aunt(s) or uncle(s); or,

C. An adoptive parent(s); or,

D. One or more persons to whom legal custody of a person with a developmental disability has been given by a court; or,

E. A spouse and/or his/her children.

"Family Support Council" means the local group of persons within the Community Centered Board's designated service area who have the responsibility for providing guidance and direction to the Community Centered Board for the implementation of the Family Support Services Program.

"Family Support Plan (FSP)" means a plan which is written for the delivery of family support services as specified in Section 8.613.

"Functional Analysis" means a comprehensive analysis of the medical, social, environmental, and personal factors that may influence current behavior. This analysis shall also investigate the person's ability to communicate, analyze whether the current behavior is a means to communicate, and identify historical factors which may contribute to the understanding of the current behavior.

"Guardian" means a person who has qualified as a guardian of a minor or incapacitated person by testamentary or count appointment but excludes a Guardian Ad Litem.

"Harmful Act" is as defined at Section 25.5-10-202 (18.5) and 26.3.1-101 C.R.S.

"Home and Community-Based Services Waivers (HCBS)" means HCBS waiver programs, including the Home and Community Based Waiver for the Developmentally Disabled (HCBS-DD), Supported Living Services (SLS) and Children's Extensive Support (CES). "Host Home Provider" is an individual(s)who provides residential supports in his/her home to persons receiving comprehensive services who are not family members as defined in Section 25.5-10-202(16), C.R.S. A host home provider is not a developmental disabilities service agency pursuant to Section 8.602 of these rules.

"Human Rights Committee" means a third-party mechanism to adequately safeguard the legal rights of persons receiving services by participating in the granting of informed consent, monitoring the suspension of rights of persons receiving services, monitoring behavioral development programs in which persons with intellectual and developmental disabilities are involved, monitoring the use of psychotropic medication by persons with intellectual and developmental disabilities, and reviewing investigations of allegations of mistreatment of persons with intellectual and developmental disabilities who are receiving services or supports.

"Individual Service and Support Plan (ISSP)" means a plan of intervention or instruction which directly addresses the needs identified in the person's Individualized Plan and which provides specific direction and methodology to employees and contractors providing direct service to a person.

"Interdisciplinary Team (IDT)" means a group of people convened by a Community Centered Board which shall include the person receiving services, the parent or guardian of a minor, a guardian or an authorized representative, as appropriate, the person who coordinates the provision of services and supports, and others as determined by such person's needs and preferences, who are assembled in a cooperative manner to develop or review the individualized plan.

"Mechanical Restraint" means the use of devices intended to restrict the movement or normal functioning of a portion of an individual's body. Mechanical restraint does not include the use of protective devices used for the purpose of providing physical support or prevention of accidental injury.

"Minimum Effective Dose" means the smallest medication dosage necessary to produce the intended effect.

"Mistreated" or "Mistreatment" is as defined at Sections 25.5-10-202 (29.5)(a)-(d) and 26-3.1-101 C.R.S.:

"Notice" means written notification hand delivered to or sent by first class mail that contains at least all of the following:

A. The proposed action;

B. The reason or reasons for that action;

C. The effective date of that action;

D. The specific law, regulation, or policy supporting the action;

E. The responsible agency with whom a protest of the action may be filed including the name and address of the director.

F. The dispute resolution procedure, including deadlines, in conformity with Section 8.605 and procedures on accessing agency records:

1. For disputes involving individuals as defined in Section 8.605.2, information on availability of advocacy assistance, including referral to publicly funded legal services, corporation, and other publicly or privately funded advocacy organizations, including the protection and advocacy system required under 42 U.S.C. 15001, the Developmental Disabilities Assistance and Bill of Rights Act; and,

2. For disputes involving individuals as defined in Section 8.605.2 an explanation of how the agency will provide services to a currently enrolled person during the dispute resolution period, including a statement that services will not be terminated during the appeal. Such explanation will include a description of services currently received.

"Parent" means the biological or adoptive parent.

"Person-Centered Support Plan" means as defined in Section 8.390.1 DEFINITIONS.

"Physical Restraint" means the use of manual methods to restrict the movement or normal functioning of a portion of an individual's body through direct physical contact by others except for the purpose of providing assistance/prompts. Assistance/prompts is the use of manual methods to guide or assist with the initiation or completion of and/or support the voluntary movement or functioning of an individual's body through the use of physical contact by others except for the purpose of providing physical restraint.

"PRN" (Pro Re Nata) means giving drugs on an "as needed" basis through a standing prescription or standing order.

"Program Approved Service Agency" means a developmental disabilities service agency or typical community service agency as defined in Section 8.602, which has received program approval by the Department pursuant to Section 8.603 of these rules.

"Program Services" means an organized program of therapeutic, habilitative, specialized support or remedial services provided on a scheduled basis to individuals with developmental disabilities.

"Prospective New Service Agency" means an individual or any publicly or privately operated program, organization or business that has completed and submitted an application with a Community Centered Board for selection and approval as a service agency to provide comprehensive services.

"Public Safety Risk-Convicted" means a factor in addition to specific SIS scores that is considered in the calculation of a Client's support level. This factor shall be identified when a Client has:

A. Been found guilty through the criminal justice system for a criminal action involving harm to another person or arson and who continues to pose a current risk of repeating a similar serious action; and,

B. A rights suspension in accordance with Section 8.604.3 or through parole or probation, or a court order that imposes line of sight supervision unless the Client is in a controlled environment that limits his or her ability to engage in the behaviors that pose a risk or to leave the controlled environment unsupervised.

"Public Safety Risk-Not Convicted" means a factor in addition to specific SIS scores that is considered in the calculation of a Client's support level. This factor shall be identified when a Client has:

A. Not been found guilty through the criminal justice system, but who does pose a current and serious risk of committing actions involving harm to another person or arson; and,

"Rate" means the amount of money, determined by a standardized rate setting methodology, reimbursed for each unit of a defined waiver service provided to a Client by a qualified provider.

"Referral" means any notice or information (written, verbal, or otherwise) presented to a Community Centered Board which indicates that a person may be appropriate for services or supports provided through the developmental disabilities system and for which the Community Centered Board determines that some type of follow-up activity for eligibility is warranted.

"Request for Provider (RFP)" means a formal process for case managers to notify Program Approved Provider Agencies when a Client is seeking authorized services including, but not limited to, a non-identifying description of the client's support and supervision needs.

"Regional Center" means a facility or program operated directly by the Department of Human Services, which provides services and supports to persons with developmental disabilities.

"Respondent" means a person participating in the SIS assessment who has known the Client for at least three months and has knowledge of the Client's skills and abilities. The respondent must have recently observed the Client directly in one or more places such as home, work, or in the community.

"Restrictive Procedure" means any of the following when the intent or plan is to bring an individual's behavior into compliance:

A. Limitations of an individual's movement or activity against his or her wishes; or,

B. Interference with an individual's ability to acquire and/or retain rewarding items or engage in valued experiences.

"Request for Developmental Disability Determination" means written formal documentation, either handwritten or a signed standardized form, which is submitted to a Community Centered Board requesting that a determination of developmental disability be completed.

"Safety Control Procedure" means a restrictive procedure or restraint that is used to control a previously exhibited behavior which is anticipated to occur again and for which the planned method of intervention is developed in order to keep the person and others safe.

"Screening for Early Intervention Services" means a preliminary review of how a child is developing and learning in comparison to other similarly situated children. "Seclusion" means the placement of a Client alone in a closed room for the purpose of punishment. Seclusion for any purpose is prohibited.

"Service Agency" means an individual or any publicly or privately operated program, organization or business providing services or supports for persons with developmental disabilities.

"SIS Interviewer" means an individual formally trained in the administration and implementation of the Supports Intensity Scale by a Department approved trainer using the Department approved curriculum. SIS Interviewers must maintain a standard for conducting SIS assessments as measured through periodic interviewer reliability reviews.

"Statewide Database" means the state web-based system that contains consumer-related demographic and program data.

"Support Coordinating Agency" means a Community Centered Board which has been designated as the agency responsible for the coordination of support services (supported living services for adults and the children's extensive support program) within its service area.

"Supports Intensity Scale" (SIS) means the standardized assessment tool that gathers information from a semi-structured interview of respondents who know the Client well. It is designed to identify and measure the practical support requirements of adults with developmental disabilities.

"Support Level" means a numeric value determined using an algorithm that places Clients into groups with other Clients who have similar overall support needs.

"Undue Influence" means use of influence to take advantage of a person with an intellectual or developmental disability's vulnerable state of mind, neediness, pain, or emotional distress.

"Waiver Services" means those optional Medicaid services defined in the current federally approved HCBS waiver document and do not include Medicaid State Plan services.

8.600.5OTHER PROVISIONS

A. All regional centers, community centered boards, and program approved service agencies shall maintain copies of statutes and rules and regulations relevant to the provision of authorized services, and shall ensure that appropriate employees and contractors have access to such copies and are oriented to the content of the statutes and rules.

B. All regional centers, community centered boards, and program approved service agencies shall have written policies and procedures concerning the exercise and protection of individual rights pursuant to Title 25.5, Article 10, C.R.S.

C. All regional centers, community centered boards, and program approved service agencies shall have written procedures for the protest of agency decisions or actions of the agency's employees or contractors by the person receiving services or parent of a minor or guardian of such person, or authorized representative if within the scope of his/her duties, which procedures shall meet requirements of Section 8.605 of these rules. Interpretation in native languages other than English and through such modes of communication as may be necessary shall be made available upon request.

D. Community centered boards shall serve as the single point of entry into authorized services funded by the State of Colorado, Department of Health Care Policy and Financing, both in community settings and regional centers.

E. Persons with developmental disabilities will be considered for referral, enrollment or discharge from authorized services, funded in whole or in part by the State of Colorado, without discrimination on the basis of race, religious or political affiliation, gender, national origin, age or disability.

F. All regional centers, community centered boards, and service agencies shall provide information and reports as required by the Department including, but not limited to, data necessary for the Department's data system, COPAR, billing records, and legislative reports

G. A waiver of the specific requirements of these rules and regulations may be granted for a specifically stated duration by the Department in accordance with this section:

1. A waiver of these rules and regulations may be granted only upon a finding that the waiver would not adversely affect the health, safety, welfare or rights and privileges of persons with developmental disabilities and upon further finding that a valid programmatic reason exists or a demonstrated financial hardship on the community centered board or service agency seeking the waiver such that the provision of necessary services and supports to persons served would be endangered.

2. The Department shall not waive any requirement of these rules and regulations that would in any way jeopardize the receipt of federal financial participation or other funding necessary for the provision of services and supports to persons with developmental disabilities, nor shall the Department approve waivers of rules and regulations that would in any way materially affect the rights and privileges of individuals with developmental disabilities as provided by the Colorado Revised Statutes and other applicable state and federal laws and regulations.

3. No waiver granted by the Department shall in any way constitute a waiver of the obligations of the community centered board or service agency under rules and regulations of other departments and agencies of the State of Colorado or the federal government.

4. The community centered board, service agency or regional center seeking a waiver of any of the rules and regulations contained herein bears the burden of proof in demonstrating that the waiver sought is in conformity with these provisions.

H. The community centered board, service agency, and regional center shall allow access by authorized personnel of the Department, or designee, for the purpose of reviewing services and supports which are funded by the Department and shall cooperate with the Department in the evaluation of such services and supports.

8.600.7INCORPORATION BY REFERENCE

Any material that has been incorporated by reference in these rules does not include any later amendments or editions to the incorporated material after the referenced date provided. Pursuant to section 24-4-103 (12.5), C.R.S., the Department maintains copies of the incorporated material in its entirety, available for public inspection during regular business hours at: Colorado Department of Health Care Policy and Financing, 1570 Grant Street, Denver, Colorado 80203. Certified copies of incorporated materials are provided at cost upon request.

10 CCR 2505-10-8.600

46 CR 13, July 10, 2023, effective 7/30/2023

47 CR 16, August 25, 2024, effective 9/14/2024