Tenn. Comp. R. & Regs. 1200-13-01-.32

Current through June 26, 2024

Section 1200-13-01-.32 - TENNCARE KATIE BECKETT PROGRAM

(1) Definitions. See Rule .02.

(2) Program components. The TennCare Katie Beckett Program offers services and supports to children under age 18 with disabilities and/or complex medical needs who are not Medicaid eligible because of their parents' income or assets. The program has two primary components:

(a) Katie Beckett Group Part A is a "traditional" Katie Beckett model, providing full Medicaid eligibility by waiving the deeming of the parents' income and assets to the child, as well as wraparound HCBS to children with the most significant disabilities or complex medical needs who meet institutional level of care, and for whom the estimated amount that would be expended by the Medicaid program for care outside an institution is not greater than the estimated amount that would otherwise be expended by the Medicaid program to provide the child's care within an appropriate institution. The program is designed to supplement a child's primary insurance coverage in order to help fill gaps between the child's needs and what private insurance will cover, including essential wraparound services not typically covered by insurers, including Medicaid. Children in Katie Beckett Group Part A are enrolled in a special component of TennCare Select called Select Community, developed specifically for people with I/DD. TennCare Select is responsible for coordinating all medically necessary, covered physical and behavioral health services, including EPSDT benefits, and wraparound HCBS for children who qualify for and are enrolled in Katie Beckett Group Part A.

(b) Medicaid Diversion Group Part B is a Medicaid diversion program, offering a capped package of essential wraparound services and supports, as well as premium assistance on a sliding fee scale to a broader group of children with disabilities, including those "at risk" of institutionalization. These children do not qualify for Medicaid state plan benefits and are not assigned to a TennCare MCO. DIDD is responsible for coordinating all covered wraparound services and supports for children who qualify for and are enrolled in Medicaid Diversion Group Part B.

(c) In addition to the two primary components of the Katie Beckett program, a demonstration population category, called the Continued Eligibility Group Part C, provides continuity of coverage, benefits, and providers, by allowing a child to continue receiving TennCare state plan services upon being determined to no longer qualify for Medicaid in any other eligibility category if the child meets the Katie Beckett Group Part A group eligibility criteria, but a slot is not available for the child at the time Medicaid financial eligibility would otherwise end. The child may only remain in this Group until a slot is available in Katie Beckett Group Part A. For a child who qualifies for and is enrolled in the Continued Eligibility group Part C, the child's MCO is responsible for coordinating all covered physical and behavioral health services, including EPSDT benefits.

(3) Eligibility for Katie Beckett. There are three (3) groups in the Katie Beckett Program:

(a) Katie Beckett Group Part A, a "traditional" Katie Beckett program. To be eligible for Katie Beckett Group Part A, an Applicant must meet all of the following criteria:

1. Must be under age 18;

2. Have medical needs that are likely to last at least 12 months or result in death and which result in severe functional limitations;

3. Qualify for the level of care provided in a medical institution according to criteria established by TennCare for children, as described in Rule .11;

4. A licensed physician must agree and certify that in-home care will meet the child's needs;

5. Would qualify for SSI on the basis of the child's disability, except for the parents' income and/or assets;

6. Is not otherwise Medicaid eligible or receiving LTSS in another Medicaid program;

7. Qualify financially in the Katie Beckett Group Part A demonstration population category;

8. The estimated amount that would be expended by the Medicaid program for the child's care outside an institution is not greater than the estimated amount that would otherwise be expended by the Medicaid program for the child's care within an appropriate institution, as described in Paragraph (4)(d);

9. Purchase and maintain minimum essential coverage private or employer-sponsored insurance; however, TennCare may choose to offer Assistance with Premium Payments for such coverage if the child requests and qualifies for a hardship exception;

10. Pay premiums as described in Rule Chapter 1200-13-20, if family income is above 150% FPL; and

11. Have the most significant disabilities and/or complex medical needs and be prioritized for enrollment into an available slot in Katie Beckett Group Part A in accordance with prioritization criteria described in Paragraph (4)(c).

(b) Medicaid Diversion Group Part B, a Medicaid Diversion program. To be eligible for enrollment in Medicaid Diversion Group Part B, Applicants must meet the following criteria:

1. Must be under age 18;

2. Have medical needs that are likely to last at least 12 months or result in death and which result in severe, functional limitations;

3. Qualify for the level of care provided in a medical institution or be at risk of institutionalization, according to criteria established by TennCare for children, as described in Rule .11;

4. Not otherwise Medicaid eligible or receiving LTSS in another Medicaid program;

5. Qualify financially in the Medicaid Diversion Group Part B demonstration population category;

6. Not eligible for Katie Beckett Group Part A or not enrolled in Katie Beckett Group Part A due to program enrollment targets; and

7. Next in line for enrollment into an available slot in Medicaid Diversion Group Part B based on date of referral or once a Medicaid Diversion Group Part B waiting list is established, the date of placement on the Medicaid Diversion Group Part B waiting list.

(c) Continued Eligibility Group Part C. To be eligible for enrollment in the Continued Eligibility Group Part C, Applicants must meet the following criteria:

1. All of the criteria specified in (3)(a)1.-8. above;

2. Enrolled in Medicaid, but determined by TennCare to no longer qualify in any other Medicaid category; and

3. Cannot be enrolled into Katie Beckett Group Part A, because there is not a Katie Beckett Group Part A program slot available based on program funding or the state's prioritization criteria. Once a Katie Beckett Group Part A slot is available for which the child is prioritized for enrollment, the child must transition to Katie Beckett Group Part A or be disenrolled from Medicaid unless eligible in another open Medicaid category, and shall no longer qualify in the Continued Eligibility Group Part C.

(d) Level of Care (LOC). All Enrollees in Katie Beckett must meet the applicable LOC criteria, as determined by Rule .11.

(4) Enrollment in Katie Beckett. Enrollment into the Katie Beckett Program shall be processed by TennCare as follows:

(a) Enrollment Targets. There shall be separate Enrollment Targets for Katie Beckett Group Part A and Medicaid Diversion Group Part B. The Enrollment Target for each Part shall function as a cap on the total number of children who can be enrolled into that Part at any given time.

1. TennCare shall set the Enrollment Target for each Part (Katie Beckett Group Part A and Medicaid Diversion Group Part B) based on the funding appropriated for the Katie Beckett program. The Enrollment Target for each Part shall be limited as necessary to ensure that program spending does not exceed the funding appropriated for the program.

2. TennCare shall post the Enrollment Target for each Part publicly on the TennCare website. DIDD shall also post the Enrollment Target for each Part publicly on the DIDD website.

3. There shall be no Enrollment Target for the Continued Eligibility Group Part C.

4. In order to enroll in Katie Beckett Group Part A or Medicaid Diversion Group Part B, there must be capacity within the established Enrollment Target to enroll the Applicant in accordance with this Rule which may include satisfaction of criteria for Reserve Capacity.

5. Once the Enrollment Target, including Reserve Capacity as described in this Rule, is reached for a particular Katie Beckett Part, Applicants shall not be enrolled into that Part or qualify in the Katie Beckett Group Part A demonstration population or the Medicaid Diversion Group Part B demonstration population, until such time that capacity within the Enrollment Target is available, and the person is prioritized for enrollment into an available slot, as described in Subparagraph (c).

(i) There are no exceptions to this Rule.

(ii) If an Applicant is not permitted to proceed with enrollment into Katie Beckett Group Part A or Medicaid Diversion Group Part B because the applicable Enrollment Target has been reached, the Applicant shall remain on the Waiting List for the applicable Katie Beckett Part(s).

(b) Reserve Capacity.

1. At program implementation, TennCare shall reserve all available slots within the Katie Beckett Group Part A Enrollment Target. These slots will be available only to children who have a level of care prioritization criteria of one (1) through four (4), as described below in Subparagraph (c). The purpose of these reserve capacity slots shall be to ensure that children with the most significant medical needs and disabilities are enrolled into Katie Beckett Group Part A.

2. Only Applicants who meet specified reserve capacity criteria may be enrolled into reserve capacity slots.

3. Once all reserve capacity slots set aside have been filled, persons who meet such criteria shall not proceed with the enrollment process, but shall remain on the Waiting List for Katie Beckett Group Part A.

4. If an Applicant determined to meet medical eligibility for Katie Beckett Group Part A does not meet criteria for a Reserve Capacity slot, the Applicant shall not proceed with the enrollment process, but shall remain on the Waiting List for Katie Beckett Group Part A.

(c) Prioritization.

1. Katie Beckett Group Part A

(i) Each child who meets any institutional level of care for enrollment into Katie Beckett Group Part A shall be prioritized for an available slot.

(ii) Each child shall have two (2) prioritization scores.

(I) Level of Care Prioritization.

I. The first prioritization score shall be based solely on the child's level of care eligibility, as follows:

A. A LOC prioritization score of one (1) shall be assigned to any child who meets Tier 1 - Medical Institutional LOC and requires ventilator care or non-invasive positive pressure ventilation for at least eight (8) hours per day as a life-sustaining measure for chronic respiratory failure.

B. A LOC prioritization score of two (2) shall be assigned to a child who meets Tier 1 - Medical Institutional LOC based on other complex skilled medical interventions.

C. A LOC prioritization score of three (3) shall be assigned to a child who meets Tier 1 - Behavioral Institutional LOC based on both self-injurious behaviors and physically aggressive behavior toward others.

D. A LOC prioritization score of four (4) shall be assigned to a child who meets Tier 1 - Behavioral Institutional LOC based on either self-injurious behaviors or physically aggressive behavior toward others.

E. A LOC prioritization score of five (5) shall be assigned to a child who meets Tier 2 Institutional LOC - Standard 1: Medical.

F. A LOC prioritization score of six (6) shall be assigned to a child who meets Tier 2 Institutional LOC - Standard 2: Behavioral.

G. A LOC prioritization score of seven (7) shall be assigned to a child who meets Tier 2 Institutional LOC - Standard 3: Functional.

II. Children will be enrolled into an available Katie Beckett Group Part A program slot in numerical order in accordance with their LOC prioritization score. (For example, a child with a LOC prioritization score of 1 would be enrolled first; then a child with a LOC prioritization score of 2, then 3, etc.)

(II) Other Prioritization Criteria.

I. The second prioritization score shall be based solely on other prioritization criteria, as follows:

A. Prognosis of the child's medical condition;

B. Intensive interventions;

C. Transportation and primary/specialty care needs;

D. Non-febrile seizures;

E. Nutrition/feeding;

F. Medications;

G. Caregiving; and

H. Additional caregiver burden.

II. Items considered within each domain, the value of the items, and the maximum scores and weightings of each domain shall be determined with input from a Technical Advisory Group comprised of clinical experts in treating children with complex medical needs and disabilities, parents of children with complex medical needs and disabilities; and advocacy representatives.

III. Each child determined eligible for Katie Beckett Group Part A shall have an other prioritization score between 0 and 100.

IV. The other prioritization score shall be taken into account only when two or more children have the same LOC prioritization score, it is the highest LOC prioritization score for an available program slot, and there are insufficient slots available to enroll all children with that LOC prioritization score. In that case, enrollment shall be based on the other prioritization criteria score for each child. The child with the highest other prioritization score would be enrolled first.

(III) In the event that two or more children have the same LOC prioritization scores, it is the highest LOC prioritization score for an available program slot, there are insufficient slots available to enroll all children with that LOC prioritization score, and two or more of the children also have the same other prioritization score, enrollment shall proceed in order based on the date each child was placed on the Katie Beckett Group Part A Waiting List.

2. Prioritization for Medicaid Diversion Group Part B shall be on a first come, first serve basis.

3. An Applicant or the Applicant's legal representative may request an administrative review of the Katie Beckett Group Part A prioritization score(s) at any time. This request shall be submitted to TennCare in writing.

4. An Applicant may submit additional information that may affect the Katie Beckett Group Part A prioritization score(s) to DIDD at any time.

5. An Applicant shall not be granted a fair hearing regarding his or her prioritization score(s).

6. An Applicant shall be entitled to a determination regarding his or her eligibility to enroll in the Katie Beckett program. If the application is denied, the Applicant is entitled to due process, including notice and the right to request a fair hearing, only when the Applicant is determined to meet prioritization criteria for an available program slot and will be enrolled into the program if all applicable eligibility and enrollment criteria are met.

(d) Comparable Cost of Institutional Care.

1. To qualify for enrollment in Katie Beckett Group Part A or in the Continued Eligibility Group Part C, the estimated amount that would be expended by the Medicaid program for the child's care outside an institution cannot be greater than the estimated amount that would otherwise be expended by the Medicaid program for the child's care within an appropriate institution. This shall be called the "Comparable Cost of Institutional Care Requirement."

2. The appropriate institution depends on the institutional level of care the child would otherwise qualify to receive, as determined by LOC eligibility criteria in Rule .11. For a child who meets either Tier 1 - Medical Institutional LOC or Tier 1 - Behavioral Institutional LOC, the appropriate institution shall be based on the level of care the child is at imminent risk of needing if medical assistance is not provided in the child's home.

(i) For a child determined to meet Tier 1 - Medical Institutional LOC, the comparable cost of institutional care shall be based on the average cost of pediatric inpatient medical hospitalization as determined by TennCare. The basis of such cost shall be for non-critical care (i.e., outside the intensive care unit).

(ii) For a child determined to meet Tier 1 - Behavioral Institutional LOC, the comparable cost of institutional care shall be based on the average cost of pediatric inpatient psychiatric hospitalization as determined by TennCare.

(iii) For a child determined to meet Tier 2 - Institutional LOC, the comparable cost of institutional care shall be based on the average cost of services in a private Intermediate Care Facility for Individuals with Intellectual Disabilities, as determined by TennCare.

(iv) The comparable cost of institutional care for each applicable type of medical institution specified above may be adjusted annually as determined by TennCare.

3. Application of the Comparable Cost of Institutional Care Requirement.

(i) As part of the LOC eligibility determination process, TennCare or its third party contractor shall gather information regarding the Medicaid services expected to be needed upon enrollment in Katie Beckett. This may include but is not limited to review of medical records, recommendations of the child's treating physician, or information provided by the child's parent or legal guardian.

(ii) For children enrolled in Medicaid but determined to no longer qualify in any other open Medicaid category that are seeking enrollment in Katie Beckett Group Part A or the Continued Eligibility Group Part C, actual Medicaid utilization and expenditures shall be considered in estimating the cost of providing care in the home and community.

(iii) In order to qualify for enrollment in Katie Beckett Group Part A or the Continued Eligibility Group Part C, the child's parent or legal guardian must sign a form confirming understanding of the Comparable Cost of Institutional Care Requirement and acknowledging that the child's eligibility for initial and continued enrollment in Katie Beckett Group Part A or the Continued Eligibility Group Part C is dependent on the child meeting and continuing to meet the Comparable Cost of Institutional Care Requirement as described in this rule.

(iv) If the actual cost of a child's Medicaid services exceeds the comparable cost of institutional care (prior to or during enrollment in the Katie Beckett Program), TennCare may reasonably expect that the estimated cost of services Medicaid would provide is greater than the comparable cost of institutional care, unless the child's needs have changed significantly such that the same level of services will no longer be required going forward.

(v) The estimated cost of Medicaid services outside an institution shall include at least the following:

(I) The estimated cost of pediatric home health or private duty nursing services that would be provided by TennCare;

(II) The estimated cost of physical, occupational, speech, language and hearing services that would be provided by TennCare;

(III) The estimated cost of community-based behavioral health services that would be provided by TennCare (i.e., all non-hospital services, including community-based residential treatment, when applicable);

(IV) The estimated cost of durable medical equipment;

(V) For children who will be enrolled in Katie Beckett Group Part A only, the estimated cost of any wraparound HCBS the child will receive.

(vi) Services for a child enrolled in Katie Beckett Group Part A or the Continued Eligibility Group Part C shall not be denied on the basis that the comparable cost of institutional care would be exceeded.

(vii) TennCare shall take action as appropriate to deny enrollment or to disenroll a child who no longer qualifies for enrollment in Katie Beckett Group Part A or the Continued Eligibility Group Part C because the Comparable Cost of Institutional Care Requirement is not met.

(viii) The Comparable Cost of Institutional Care Requirement shall be applied on a calendar year basis. For children enrolled in Katie Beckett Group Part A and the Continued Eligibility Group Part C, TennCare and the child's MCO shall estimate and track actual cost of services as provided in subpart (v) across each calendar year.

(ix) The Comparable Cost of Institutional Care Requirement shall also be applied prospectively on a twelve (12) month basis. This is to ensure that a child's PCSP does not establish a threshold level of supports that cannot be sustained over the course of time. This means that, for purposes of person and family-centered support planning, the child's MCO will always estimate the actual cost of services forward for twelve (12) months in order to determine whether the Comparable Cost of Institutional Care Requirement will continue to be met based on the most current PCSP that has been developed. The cost of one-time services such as short-term services or short-term increases in services must be counted as part of the total cost of services for a full twelve (12) month period following the date of service delivery.

(x) If it can be reasonably anticipated, based on the services actually received or determined to be needed that the cost of Medicaid services in the community will exceed the comparable cost of Medicaid services in the appropriate institution, the child does not qualify to enroll in or to remain enrolled in Katie Beckett Group Part A or the Continued Eligibility Group Part C.

(xi) As the setting of a child's Comparable Cost of Institutional Care does not, in and of itself, result in any increase or decrease in a child's services, it is not considered an adverse action or give rise to appeal rights unless it will result in an adverse enrollment action.

(xii) Denial of enrollment and/or involuntary disenrollment because a child's comparable cost of institutional care will be exceeded shall constitute an eligibility/enrollment action, and shall give rise to notice of action and due process rights to request a fair hearing in accordance with this rule.

(5) Disenrollment from Katie Beckett. A Member may be disenrolled from Katie Beckett voluntarily or involuntarily.

(a) Voluntary disenrollment from Katie Beckett means the child's parent or legal guardian has chosen to disenroll the child from the program, including all applicable benefits the child is receiving (see Paragraph (6)). Voluntary disenrollment from Katie Beckett Group Part A or the Continued Eligibility Group Part C includes voluntary disenrollment from Medicaid. No notice of action shall be issued regarding a parent or legal guardian's decision to voluntarily disenroll the child from Katie Beckett. Voluntary disenrollment shall proceed only upon one of the following:

1. Receipt of a statement signed by the child's parent or legal guardian voluntarily requesting disenrollment;

2. The child's admission to a medical institution for a period of at least thirty (30) days unless the child is reasonably expected to discharge home soon, and upon determination of Medicaid eligibility in another category; or

3. Election by the parent or legal guardian to enroll a child in Katie Beckett Group Part A in an MCO that does not administer Part A of the Katie Beckett program (i.e., any MCO other than TennCare Select.

(b) A child may be involuntarily disenrolled from Katie Beckett only by TennCare, although such process may be initiated by DIDD or TennCare's Contracted MCO. Reasons for involuntary disenrollment include but are not limited to:

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

2. The child is deceased.

3. The child is no longer a resident of Tennessee.

(6) Benefits in the Katie Beckett Program.

(a) Katie Beckett Group Part A

1. Children enrolled in Katie Beckett Group Part A are eligible to receive all medically necessary covered benefits available for children enrolled in TennCare Medicaid, as specified in Rule 1200-13-13-.04, including EPSDT, and medically necessary covered wraparound HCBS as specified below.

2. All Katie Beckett Group Part A HCBS must be specified in an approved PersonCentered Support Plan and authorized by the MCO prior to delivery of the service in order for MCO payment to be made for the service.

3. Katie Beckett Group Part A HCBS shall be limited to a maximum of $15,000 per child per calendar year. There are no exceptions to this limit.

(b) Medicaid Diversion Group Part B

1. Children enrolled in Medicaid Diversion Group Part B are not eligible to receive Medicaid State Plan services or EPSDT.

2. Children enrolled in Medicaid Diversion Group Part B are eligible to receive a capped package of HCBS only, as specified below.

3. Medicaid Diversion Group Part B HCBS shall be limited to a maximum of $10,000 per child per calendar year. There are no exceptions to this limit.

4. All Medicaid Diversion Group Part B HCBS must be specified in an approved ISP and authorized by DIDD prior to delivery of the service in order for payment to be made for the service.

(c) Continued Eligibility Group Part C

1. Children enrolled in the Continued Eligibility Group Part C are eligible to receive all medically necessary covered benefits available for children enrolled in TennCare Medicaid, as specified in Rule 1200-13-13-.04, including EPSDT.

2. Children enrolled in the Continued Eligibility Group Part C are not eligible to receive any wraparound HCBS.

(d) Katie Beckett Group Part A ("Part A") wraparound HCBS and Medicaid Diversion Group Part B ("Part B") HCBS covered under the Katie Beckett Program and applicable individual benefit limits are specified below. The benefit limits are applied across all services received by the child regardless of whether the services are received through CD and/or a traditional provider agency. Corresponding limitations regarding the scope of each service are defined in Rule .02. Limitations on the total of all HCBS that can be received in a calendar year are specified in (a) and (b) above.

Katie Beckett HCBS Benefits	Katie Beckett Coverage	Available through Consumer Direction? ("Eligible Katie Beckett HCBS")
Respite	Covered as medically necessary in Part A and Part B with limitations as follows: Up to thirty (30) days of service per person per calendar year or up to two hundred sixteen (216) hours per person per calendar year, depending on needs and preferences as reflected in the PCSP, or in the DIDD-approved ISP for Part B members. The two (2) limits cannot be combined in a calendar year.	Yes, hourly only. Daily respite is not available in Consumer Direction.
Supportive Home Care	Covered as medically necessary in Part A and Part B.	Yes
Assistive Technology, Adaptive Equipment and Supplies	Covered as medically necessary in Part A and Part B with a limit of five thousand dollars ($5,000) per child per calendar year. Not covered under Katie Beckett if available under Section 110 of the Rehabilitation Act of 1973, or the IDEA ( 20 U.S.C. §§ 1401 et seq.).	No
Minor Home Modifications	Covered as medically necessary in Part A and Part B in accordance with limitations specified in Rule .02 and with limits of $6,000 per project, $10,000 per calendar year, and $20,000 per lifetime.	No
Vehicle Modifications	Covered as medically necessary in Part A and Part B in accordance with limitations specified in Rule .02 and with limits of $10,000 per calendar year and $20,000 per lifetime.	No
Community Integration Support Services	Covered as medically necessary in Part A and Part B in accordance with limitations specified in Rule .02. Payment for attendance and materials and supplies at classes and conferences and club/association dues can be covered, but cannot exceed five hundred dollars ($500) per year.	No
Community Transportation	Covered as medically necessary in Part A and Part B for transportation to support participation in community activities when family, public or other community-based transportation services are not available or when assistance is needed in order to access such benefits. Shall not supplant NEMT available for medical appointments. Limited to $225 per month for a child whose parent or legal guardian elects to receive this benefit through Consumer Direction.	Yes
Family Caregiver Education and Training	Covered as medically necessary in Part A and Part B only when approved in advance by the child's MCO. Limited to five hundred dollars ($500) per calendar year.	No
Decision Making Supports	Covered as medically necessary in Part A and Part B. Limited to five hundred dollars ($500) in one-time assistance per child. Legal fees may be reimbursed only upon completion of counseling services to protect and preserve the child's rights and freedoms upon attaining age 18.	No
Family-to-Family Support	Covered as medically necessary in Part A and Part B.	No
Community Support Development, Organization and Navigation	Covered as medically necessary in Part A and Part B.	No
Health Insurance Counseling/Forms Assistance	Covered as medically necessary in Part A and Part B. Limited to fifteen (15) hours per child per calendar year.	No
Assistance with Premium Payments	Covered as medically necessary in Part B. Limited to the amount determined to be the child's portion of third party liability (TPL) coverage premiums, when other family members are also covered by the same premium. Assistance with Premium Payments may be offered to a child upon enrollment in Part A only if the child does not have TPL at the time of enrollment and a hardship exception to the requirement to obtain/maintain TPL is requested and would otherwise be approved. In such cases, the Assistance with Premium Payments shall be limited to the lesser of the amount by which the child's portion of the family's monthly TPL premium exceeds the child's Katie Beckett Group Part A premiums, or the lowest cost silver level child only plan in the highest rating region in Tennessee offered through the Federally Facilitated Marketplace, and shall not count against the $15,000 per calendar year expenditure cap for Part A wraparound HCBS. Assistance with Premium Payments shall not be covered for a child who already has private insurance upon enrollment into Katie Beckett Group Part A, even if such coverage is later lost and new coverage must be obtained.	No
Automated health care and related expenses reimbursement	Covered as medically necessary in Part B only. Limited to medical and dental expenses determined by the IRS to be qualified for reimbursement under a Healthcare Reimbursement Account or that would qualify for the medical and dental expenses income tax deduction, except that health insurance premiums shall be covered only as described above as part of the Health Insurance Premium Assistance benefit (and not as part of this benefit). Acceptable documentation must be provided to the contracted entity administering the benefit in order for the benefit to be covered and reimbursement approved. The child's parent or legal guardian shall comply with all applicable requirements of the administering entity in order to receive this benefit.	No
Individualized therapeutic support reimbursement	Covered in Part B only for items determined to be medically necessary for the child but not eligible for reimbursement as part of the automated health care and related expenses reimbursement benefit above (i.e., does not meet IRS guidelines).	No

(7) Medical Necessity for Covered Katie Beckett Services.

(a) State Plan and EPSDT benefits. Medical necessity for all covered State Plan and EPSDT benefits, including physical and behavioral health, pharmacy, and dental services, for children enrolled in Katie Beckett shall be determined in accordance with Rule Chapter 1200-13-16. This includes all benefits for children eligible for Medicaid in the Continued Eligibility Group Part C.

(b) Katie Beckett Group Part A wraparound HCBS and Medicaid Diversion Group Part B Benefits. For Katie Beckett Group Part A wraparound HCBS and all Medicaid Diversion Group Part B Benefits, pursuant to Rule 1200-13-16-.05(8), the following guidelines shall apply:

(c) In order to be medically necessary and therefore reimbursable as a covered Katie Beckett HCBS benefit, all of the following criteria must be met.

1. The service, including the type, amount, frequency and duration, must be specified in an approved PCSP, or for Medicaid Diversion Group Part B members, in the ISP approved by DIDD.

2. The service must be authorized by the appropriate entity, which shall be as follows:

(i) For Katie Beckett Group Part A wraparound HCBS, the person's MCO;

(ii) For Medicaid Diversion Group Part B benefits, the Department of Intellectual and Developmental Disabilities;

3. The service, including the type, amount, frequency and duration, must meet one or more of the following:

(i) Be of direct therapeutic or ameliorative benefit to the child's medical needs or disabilities;

(ii) Support the child's full integration and participation in the community;

(iii) Help to prepare the child for transition to employment and community living, with as much independence as possible; or

(iv) Support and sustain the family's ability to meet the child's medical, physical, behavioral, functional and other support needs and reduce or prevent the risk of out-of-home placement.

4. The service must be the most cost-effective way of safely and effectively meeting the child's needs in the home or community setting. If a less costly service or support or mix of services and supports that is available would safely meet the child's needs in the community, the more expensive service requested is therefore not medically necessary and will not be provided.

5. The service must not supplant assistance that family members, friends, or others are able and willing to provide or that is available through other paid or unpaid supports. This includes services available under the Rehabilitation Act of 1973 or Individuals with Disabilities Education Act, regardless of whether the family chooses to receive such services.

(d) TennCare or the entity responsible for authorizing HCBS may develop and implement guidelines which can be used to further clarify how these decisions are made with respect to a particular benefit.

(e) Notwithstanding (c)1.-5. above, any medical or related item or service purchased for a child enrolled in Medicaid Diversion Group Part B and determined by the IRS to be eligible as an itemized deduction on Schedule A (Form 1040 or 1040-SR), or eligible for payment or reimbursement through a Health Reimbursement Account, Health Savings Account or Flexible Spending Account shall meet medical necessity requirements.

(8) Each child enrolling or enrolled in Katie Beckett Group Part A or Medicaid Diversion Group Part B shall be subject to an Expenditure Cap on the HCBS benefit package the child is eligible to receive. Each benefit package has a distinct Expenditure Cap, outlined below:

(a) For a child enrolled in Katie Beckett Group Part A, the expenditure cap shall be fifteen thousand dollars ($15,000) per calendar year. The Expenditure Cap shall apply to Katie Beckett wraparound HCBS only (not other Medicaid services). All Katie Beckett Group Part A wraparound HCBS shall be counted against the Expenditure Cap, including the cost of minor home modifications.

(b) For a child enrolled in Medicaid Diversion Group Part B, the Expenditure Cap shall be ten thousand dollars ($10,000) per calendar year. The Expenditure Cap shall apply to Medicaid Diversion Group Part B HCBS only (these are the only benefits the child is eligible to receive). All Medicaid Diversion Group Part B HCBS shall be counted against the Expenditure Cap, including the cost of minor home modifications.

1. The Expenditure Cap shall be used to determine the total cost of Katie Beckett HCBS a child can receive while enrolled in Katie Beckett Group Part A or Medicaid Diversion Group Part B. The Expenditure Cap functions as a limit on the total cost of Katie Beckett Group Part A or Medicaid Diversion Group Part B HCBS that can be provided by the MCO or DIDD to the child in the home or community setting. Katie Beckett HCBS in excess of a child's Expenditure Cap are non-covered benefits.

2. For a child in Katie Beckett Group Part A, the total cost of Katie Beckett wraparound HCBS shall also be counted in applying the Comparable Cost of Institutional Care Requirement.

3. A child shall not be entitled to receive services up to the amount of the Expenditure Cap. A child shall receive only those services that are medically necessary, as described in this Rule. Determination of the services that are medically necessary shall be based on a comprehensive assessment of the child's needs and the availability of Natural Supports and other (non-TennCare reimbursed) services to meet identified needs, which shall be conducted by the child's Nurse Care Manager or DIDD Case Manager and subject to any applicable utilization management review and approval processes.

4. Application of the Expenditure Cap.

(i) For a child enrolled in Katie Beckett Group Part A, TennCare State Plan services shall not be counted against the child's Expenditure Cap for Katie Beckett Group Part A wraparound HCBS.

(ii) The annual HCBS Expenditure Cap shall be applied on a calendar year basis. TennCare and the child's MCO or DIDD will track utilization of HCBS across each calendar year.

(iii) The HCBS Expenditure Cap shall also be applied prospectively on a twelve (12) month basis. This is to ensure that a child's PCSP/ISP does not establish a threshold level of supports that cannot be sustained over the course of time. This means that, for purposes of person and familycentered support planning, the child's MCO or DIDD will always estimate the actual cost of services forward for twelve (12) months in order to determine whether the Expenditure Cap will continue be met based on the most current PCSP/ISP that has been developed. The cost of one-time services such as short-term services or short-term increases in services must be counted as part of the total cost of services for a full twelve (12) month period following the date of service delivery.

(iv) Denial of or reductions of Katie Beckett HCBS based on a child's Expenditure Cap shall constitute an adverse action, as defined in Rule 1200-13-13-.01 and shall give rise to notice of action and due process rights to request a fair hearing in accordance with Rule 1200-13-13-.11.

(9) Consumer Direction (CD).

(a) CD is a model of service delivery that affords the parent or legal guardian of a child enrolled in Katie Beckett Group Part A or Medicaid Diversion Group Part B the opportunity to have more choice and control with respect to Eligible Katie Beckett HCBS that are needed by the child, in accordance with this Rule. CD is not a service or set of services.

(b) Katie Beckett HCBS eligible for CD (Eligible Katie Beckett HCBS).

1. CD shall be limited to the following HCBS:

(i) Supportive Home Care.

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

(iii) Community Transportation.

2. Katie Beckett Group Part A or Medicaid Diversion Group Part B Members determined to need Eligible Katie Beckett HCBS may elect to receive one or more of the Eligible Katie Beckett HCBS through a Contract Provider, or they may participate in CD.

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

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

5. Each Eligible Katie Beckett HCBS identified in the child's PCSP/ISP, that the child's parent or legal guardian elects to receive through CD shall have an individual monthly or annual budget, as specified below.

6. The amount of the budget authorized for each Eligible Katie Beckett HCBS the child's parent or legal guardian elects to receive through CD shall be based on a comprehensive needs assessment performed by the MCO Nurse Care Manager or DIDD Case Manager that identifies the child's needs, the availability of family and other unpaid caregivers to meet those needs, and the gaps in care for which paid Katie Beckett HCBS may be authorized.

(i) Each Eligible Katie Beckett HCBS received through CD shall have a separate budget.

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

(iii) Once the budget for each Eligible Katie Beckett HCBS is determined and authorized, the child's parent or legal guardian shall have flexibility to determine the rate of reimbursement for that service (subject to any limitations established by TennCare), and to purchase additional units of the service so long as the budget for that service is not exceeded.

(iv) The budget for each Eligible Katie Beckett HCBS shall be separately maintained. A child's parent or legal guardian shall not direct money from the budget for one Eligible Katie Beckett HCBS to purchase a different Eligible Katie Beckett HCBS, provided however, that a child's PCSP/ISP (and consequently, the budget for any affected Eligible Katie Beckett HCBS) may be amended based on the child's needs, as appropriate.

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

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

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

(i) Supportive Home Care shall have a monthly budget if provided through Consumer Direction.

(I) A child's parent or legal guardian shall only direct CD Workers to provide Supportive Home Care up to the amount of the authorized monthly budget for that service.

(II) A child's parent or legal guardian shall not ask or allow a CD Worker to provide services in excess of the authorized monthly budget for that service.

(III) If a child's parent or legal guardian exhausts the child's authorized monthly budget for a service before the month has ended, additional services shall not be authorized for the remainder of the month.

(IV) If a child's parent or legal guardian is not able to manage services within the approved budget for the service, the child may not be able to remain in CD.

(ii) Community Transportation for children enrolled in Katie Beckett Group Part A or Medicaid Diversion Group Part B shall have a monthly budget if provided through CD.

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

(II) The child's parent or legal guardian may receive the first month's budget allotment in advance. The advance monthly budget allotment shall be used to purchase only Community Transportation services as defined in this Rule Chapter.

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

(IV) A child's parent or legal guardian shall not reimburse any person who resides with the child for Community Transportation.

(V) The child's parent or legal guardian is obligated to maintain a Community Transportation log and receipts for Community Transportation expenditures as required by TennCare and to submit such information on a monthly basis to his MCO.

(VI) A child's parent or legal guardian shall only purchase Community Transportation up to the amount of the authorized monthly budget for that service.

(VII) The child's parent or legal guardian shall be reimbursed only for documented purchases of Community Transportation services submitted to the MCO.

(VIII) A child's parent or legal guardian shall not be reimbursed for Community Transportation services in excess of the authorized monthly budget for that service.

(IX) If a child's parent or legal guardian exhausts the child's authorized monthly budget for Community Transportation services before the month has ended, additional services shall not be authorized for the remainder of the month.

(X) If a child's parent or legal guardian is not able to manage services within the approved budget for the service, the child may not be able to remain in CD.

(iii) Respite services for children enrolled in Katie Beckett Group Part A or Medicaid Diversion Group Part B shall have an annual budget if provided through Consumer Direction.

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

(II) A child's parent or legal guardian who elects to receive the child's Respite through CD shall receive up to 216 hours per year of Respite services. (Daily Respite shall not be available through CD.)

(III) A child's parent or legal guardian shall only direct CD Workers to provide Respite services up to the amount of the authorized annual budget for that service.

(IV) A child's parent or legal guardian shall not ask or allow a CD Worker to provide services in excess of the authorized annual budget for that service.

(V) If a child's parent or legal guardian exhausts the child's authorized annual budget for Respite services before the calendar year has ended, additional services shall not be authorized for the remainder of the year.

(VI) If a child's parent or legal guardian is not able to manage services within the child's approved budget for the service, the child may not be able to remain in CD.

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

(c) Eligibility for CD. To be eligible for CD, a child must meet all of the following criteria:

1. Be a Member of Katie Beckett Group Part A or Medicaid Diversion Group Part B.

2. Be determined by an MCO Nurse Care Manager or DIDD Case Manager, based on a comprehensive needs assessment, to need one or more Eligible Katie Beckett HCBS.

3. The child's parent or legal guardian must be willing and able to serve as the Employer of Record for the child's Consumer-Directed Workers and to fulfill all of the required responsibilities for CD. In limited exceptional circumstances, TennCare may permit the child's parent or legal guardian to designate a qualified Representative who is willing and able to serve as the Employer of Record and to fulfill all of the required responsibilities for CD. Assistance shall be provided to the child's parent or legal guardian or in limited exceptional circumstances, the Representative for CD by the FEA.

4. The child's parent or legal guardian or in limited exceptional circumstances, the Representative for CD and any Workers employed to provide services through CD must agree to use the services of TennCare's contracted FEA to perform required Financial Administration and Supports Brokerage functions.

(d) Enrollment in CD.

1. The parent or legal guardian of a child enrolled in Katie Beckett Group Part A or Medicaid Diversion Group Part B assessed to need one or more Eligible Katie Beckett HCBS may elect to participate in CD at any time.

2. Only the child's parent or legal guardian may make the decision whether the child will participate in CD. The child's parent or legal guardian must sign a CD participation form reflecting the decision.

3. Representative. In limited exceptional circumstances, TennCare may permit the child's parent or legal guardian to designate a Representative for CD.

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

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

(II) Have a personal relationship with the child and understand the child's support needs;

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

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

(ii) If a child's MCO Nurse Care Manager or DIDD Case Manager believes that the person selected as the Representative for CD does not meet the specified requirements (e.g., the Representative is not physically present in the child's residence at a frequency necessary to adequately supervise Workers), the MCO Nurse Care Manager or DIDD Case Manager may request that the child's parent or legal guardian select a different Representative who meets the specified requirements. If the child's parent or legal guardian does not select another Representative who meets the specified requirements, the MCO or DIDD may, in order to help ensure the child's health and safety, submit to TennCare, for review and approval, a request to deny the child's participation in CD.

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

(iv) Representative Agreement. A Representative Agreement must be signed by the child's parent or legal guardian and the Representative in the presence of the MCO Nurse Care Manager or DIDD Case Manager. By completing a Representative agreement, the Representative confirms that he agrees to serve as the Representative for CD and that he accepts the responsibilities and will perform the duties associated with being a Representative for CD.

(v) A child's parent or legal guardian may change the Representative at any time by notifying the child's MCO Nurse Care Manager or DIDD Case Manager and the child's Supports Broker that he intends to change Representative. The child's MCO Nurse Care Manager or DIDD Case Manager shall verify that the new Representative meets the qualifications as described above. A new Representative Agreement must be completed and signed, in the presence of the child's MCO Nurse Care Manager or DIDD Case Manager, prior to the new Representative assuming his respective responsibilities.

(e) Employer of Record.

1. If a child's parent or legal guardian elects to participate in CD, he must serve as the Employer of Record. In limited exceptional circumstances where TennCare permits the parent or legal guardian to designate a Representative for CD, the Representative must serve as the Employer of Record.

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

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

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

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

(iv) Scheduling Workers;

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

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

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

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

(ix) Ensuring that no Worker provides more than 40 hours of support each week unless the parent or legal guardian of a child enrolled in Katie Beckett Group Part A or the Representative for CD has decided to pay overtime out of the child's approved budget (a Worker delivering services to a child enrolled in Medicaid Diversion Group Part B shall not be permitted to provide more than 40 hours of support each week);

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

(xi) Supervising Workers;

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

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

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

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

(f) Denial of Enrollment in CD.

1. Enrollment into CD may be denied by TennCare when:

(i) The child is not enrolled in TennCare or in Katie Beckett Group Part A or Medicaid Diversion Group Part B.

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

(iii) The child's parent or legal guardian is not willing or able to serve as the Employer of Record for the child's Consumer-Directed Workers and to fulfill all of the required responsibilities for CD, and does not meet limited exceptional circumstances as determined by TennCare or have a qualified Representative who is willing and able to serve as the Employer of Record and to fulfill all of the required responsibilities for CD.

(iv) The child does not have an adequate Back-up Plan for CD.

(v) The child's parent or legal guardian or in limited exceptional circumstances, the Representative for CD, or the Consumer-Directed Workers he wants to employ, are unwilling to use the services of TennCare's contracted FEA to perform required Financial Administration and Supports Brokerage functions.

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

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

(g) Fiscal Employer Agent (FEA).

1. The FEA shall perform the following functions on behalf of all Katie Beckett Group Part A or Medicaid Diversion Group Part B enrollees participating in CD:

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

(ii) Supports Brokerage functions to assist the child's parent or legal guardian (or the Representative for CD) with other non-payroll related tasks such as the completion of CD enrollment paperwork and assistance with employer functions as requested.

2. The FEA shall:

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

(ii) Provide initial and ongoing training to the child's parent or legal guardian (or the Representative for CD) on CD and other relevant issues.

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

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

(v) Assist the child's parent or legal guardian (or the Representative for CD) in developing and updating Service Agreements.

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

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

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

1. The parent or legal guardian of each child participating in CD is responsible for the development and implementation of a Back-up Plan that identifies how the parent or legal guardian or the Representative for CD will address situations when a scheduled Worker is not available or fails to show up as scheduled.

2. The child's parent or legal guardian may not elect, as part of the Back-up Plan, to allow the child to go without services.

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

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

5. The child's Back-up Plan for Consumer-Directed Workers shall be integrated into the child's Back-up Plan for services provided by Contract Providers and the child's PCSP/ISP.

6. The MCO Nurse Care Manager or DIDD Case Manager shall review the Back-up Plan developed by the child's parent or legal guardian or his Representative for CD to determine its adequacy to address the child's needs. If an adequate Backup Plan cannot be provided to CD, enrollment into CD may be denied, as set forth in this Rule.

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

8. A child's parent or legal guardian may use Contract Providers to serve as backup to Consumer Directed Workers only upon prior arrangement by the child's parent or legal guardian or Representative for CD with the Contract Provider, inclusion in the child's back-up plan, verification by the MCO Nurse Care Manager or DIDD Case Manager, prior approval by the MCO or DIDD, and subject to the child's Expenditure Cap as described in Paragraph (8). If the higher cost of services delivered by a Contract Provider would result in a child's Expenditure Cap being exceeded, the child's parent or legal guardian shall not be permitted to use Contract Providers to provide back-up workers. A child's MCO or DIDD shall not be required to maintain Contract Providers on "stand-by" to provide back-up for services delivered through Consumer Direction.

(i) Consumer-Directed Workers (Workers).

1. Hiring Consumer-Directed Workers.

(i) A child's parent or legal guardian shall have the flexibility to hire individuals with whom they have a close personal relationship to serve as Workers, such as neighbors or friends.

(ii) A child's parent or legal guardian may hire family members, excluding spouses, to serve as Workers. However, a family member shall not be reimbursed for a service that he would have otherwise provided without pay. A child's parent or legal guardian shall not be permitted to employ any person who resides with the child enrolled in Katie Beckett to deliver Supportive Home Care or hourly Respite services. A child's parent or legal guardian shall not reimburse any person who resides with the child for Community Transportation.

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

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

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

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

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

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

(v) Licensure verification, as applicable;

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

(vii) Complete all required training;

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

(ix) Sign an abbreviated Medicaid agreement;

(x) Be assigned a Medicaid provider ID number;

(xi) Sign a Service Agreement; and

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

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

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

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

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

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

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

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

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

(ii) After considering the above factors and any other evidence submitted by the potential Worker, the child's parent or legal guardian or Representative for CD must decide whether to hire the potential Worker.

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

5. Service Agreement.

(i) The child's parent or legal guardian or Representative for CD shall develop a Service Agreement with each Worker which includes, at a minimum:

(I) The roles and responsibilities of the Worker and the Employer of Record;

(II) The Worker's typical schedule, as developed by the parent or legal guardian or Representative for CD, including hours and days;

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

(IV) The service rate; and

(V) The requested start date for services.

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

6. Payments to Consumer-Directed Workers.

(i) Rates. The parent or legal guardian of children participating in CD have the flexibility to set wages for the child's Workers from a range of reimbursement levels established by TennCare.

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

(I) Deliver services in accordance with the services specified in the child's PCSP or DIDD-approved ISP, the monthly or annual budget as approved in the MCO's or DIDD's service authorization, and in accordance with the schedule set by the child's parent or legal guardian or the Representative for CD and Worker assignments determined by the parent or legal guardian or the Representative for CD.

(II) Use the FEA time keeping system to record in and out times for each visit in a manner compliant with the 21st Century Cures Act.

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

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

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

(I) The Employer of Record may terminate a Worker's employment at any time.

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

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

1. General.

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

(ii) Voluntary or involuntary withdrawal of a child from CD of Eligible Katie Beckett HCBS shall not affect the child's eligibility for Katie Beckett HCBS or enrollment in Katie Beckett Group Part A or Medicaid Diversion Group Part B, provided the child continues to meet all requirements for enrollment in Katie Beckett as defined in this Chapter.

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

2. Involuntary Withdrawal.

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

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

(II) The child is no longer enrolled in Katie Beckett Group Part A or Medicaid Diversion Group Part B.

(III) The child no longer needs any of the Eligible Katie Beckett HCBS, as specified in the PCSP or DIDD-approved ISP.

(IV) The child's parent or legal guardian is no longer willing or able to serve as the Employer of Record for the child's Consumer-Directed Workers and to fulfill all of the required responsibilities for CD, and does not meet limited exceptional circumstances or have a qualified Representative who is willing and able to serve as the Employer of Record and to fulfill all of the required responsibilities for CD.

(V) The child's parent or legal guardian is unwilling to work with the MCO Nurse Care Manager or DIDD Case Manager to identify and address any additional risks associated with the decision to participate in CD, or the risks associated with the decision to participate in CD pose too great a threat to the child's health, safety and welfare.

(VI) The health, safety and welfare of the child may be in jeopardy if the child's parent or legal guardian or the Representative for CD continues to employ a Worker but the child's parent or legal guardian or the Representative for CD does not want to terminate the Worker.

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

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

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

(X) The child's parent or legal guardian or the Representative for CD is unwilling to abide by the requirements of the Katie Beckett CD program.

(XI) If the Representative for CD fails to perform in accordance with the terms of the Representative Agreement and the health, safety and welfare of the child is at risk, and the child's parent or legal guardian wants to continue to use the Representative.

(XII) A Support Coordinator has determined that the health, safety and welfare of the child may be in jeopardy if the child's parent or legal guardian or the Representative for CD continues to employ a Worker but the Employer of Record does not want to terminate the Worker.

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

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

(iii) The child and parent or legal guardian shall have the right to appeal involuntary withdrawal from CD.

(iv) If a child is no longer enrolled in TennCare or in Katie Beckett Group Part A or Medicaid Diversion Group Part B, participation in CD shall be terminated.

(10) Appeals.

(a) Appeals related to determinations of financial eligibility for TennCare Medicaid (including financial eligibility via the Katie Beckett program) are processed by TennCare, in accordance with Chapter 1200-13-19.

(b) Appeals related to the denial, reduction, suspension, or termination of a covered service are processed by TennCare in accordance with Rule 1200-13-13-.11 provided however that medical necessity for Katie Beckett Group Part A and Medicaid Diversion Group Part B HCBS shall be determined as provided in Paragraph (7). A child's parent or legal guardian may request a fair hearing regarding any covered benefit not approved in the PCSP or DIDD-approved ISP that he believes the child needs.

(c) Appeals related to determinations of medical (or level of care) eligibility are processed by TennCare's Division of Long-Term Services and Supports in accordance with Rule .11.

(d) Appeals related to a child's enrollment or disenrollment of an individual in Katie Beckett or to denial or involuntary withdrawal from participation in CD are processed by the TennCare Division of Long-Term Services and Supports in accordance with the following procedures:

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

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

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

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

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

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

Tenn. Comp. R. & Regs. 1200-13-01-.32

Emergency rules filed November 20, 2020; effective through May 19, 2021. Amendments filed February 17, 2021; effective 5/18/2021.

Authority: T.C.A. §§ 4-5-208, 71-5-105, 71-5-106, 71-5-109, 71-5-110, 71-5-111, 71-5-112, and 71-5164 and TennCare II/III Section 1115(a) Medicaid Demonstration Waiver Extension.