No. 27627 (New Rule): R539-3. Rights and Protections

DAR File No.: 27627
Filed: 12/30/2004, 10:46
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

This new rule is submitted after a comprehensive revision of the division's administrative rules. The rule clarifies the rights of persons receiving Home and Community-Based services from the division. A repeal of the current rule will be filed at a later date.

 

Summary of the rule or change:

This rule clarifies the rights of persons relating to personal funds management services, access to personal property, privacy, and hospice care. Rights to administrative hearings for persons receiving non-waiver and waiver services are also clarified. The rule also outlines the responsibilities of the Provider Human Rights Committees and Division Human Rights Council.

 

State statutory or constitutional authorization for this rule:

Sections 62A-5-102 and 62A-5-103

 

Anticipated cost or savings to:

the state budget:

There will be no anticipated cost. The new rule does not reflect any change in methodology within the Division. These procedures are already in practice and will not require any additional funding.

 

local governments:

No local government funding is used. Therefore, there is no cost to local government.

 

other persons:

Providers are currently required to have Human Rights Committees and these activities are considered part of the rate paid to providers. There is no additional cost to other persons in obtaining access to these committees, in requesting administrative hearings, etc. other than their time in participating in these processes.

 

Compliance costs for affected persons:

This rule clarifies the rights and protections for persons receiving services in a Home and Community-Based setting. A person may lose rights due to the professional judgment of service providers and effective treatment as a condition to continuing services.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule does not reflect a change in methodology within the division and the division's expectations of service providers. No fiscal impacts are identified.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Services for People with Disabilities
120 N 200 W
SALT LAKE CITY UT 84103-1500

 

Direct questions regarding this rule to:

Suzie Totten at the above address, by phone at 801-538-4197, by FAX at 801-538-4279, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/14/2005

 

This rule may become effective on:

02/15/2005

 

Authorized by:

Robin Arnold-Williams, Executive Director

 

 

RULE TEXT

R539. Human Services, Services for People with Disabilities.

R539-3. Rights and Protections.

R539-3-1. Purpose.

(1) The purpose of this rule is to support Persons in exercising their rights as Persons receiving funding from the Division. The procedures of this rule constitute the minimum rights for Persons receiving Division funded services and supports.

 

R539-3-2. Authority.

(1) This rule establishes procedures and standards for the protection of Persons' constitutional liberty interests as required by Subsection 62A-5-103(4)(b).

 

R539-3-3. Definitions.

(1) Terms used in this rule are defined in Section 62A-5-101 and R539-1-3.

 

R539-3-4. Human Rights Committee.

(1) This rule applies to the Division, Persons funded by the Division, Providers, Providers' Human Rights Committees, and the Division Human Rights Council.

(2) All Persons shall have access to a Provider Human Rights Committee with the exception of the following:

(a) Persons receiving physical disabilities services.

(b) Families using the Self-Administered Model.

(c) Persons receiving only family supports or respite.

(3) The Provider Human Rights Committee approves the services agencies provide relating to rights issues, such as rights restrictions and the use of intrusive behavior supports. In addition, the Committee provides recommendations relating to abuse and neglect prevention, rights training, and supporting people in exercising their rights.

(4) Any interested party may request that the rights of a Person be reviewed by a Provider Human Rights Committee by contacting the Person's Provider agency verbally or in writing.

(5) Any interested party may request an appeal of the Provider Human Rights Committee decision by sending a request to the Division, 120 North 200 West #411, SLC UT 84103. The Division shall make a decision whether there will be a review and shall notify the Person, Provider, and Support Coordinator concerning the decision within eight business days. The notification shall contain a statement of the issue to be reviewed and the process and timeline for completing the review.

 

R539-3-5. Representative Payee Services.

(1) Unless a Person voluntarily signs the Division Voluntary Financial Support Agreement Form 1-3 or a Provider Human Rights Committee has approved restriction on the use and access to personal funds, the Person shall have access to and control over such funds.

(2) The Representative Payee shall follow all Social Security Administration requirements outlined in 20CFR416.601-665.

(3) The Division shall review Provider records for a sample of Representative Payee files on an annual basis.

(4) If the Department does not have guardianship or conservatorship and the Division has not been named as Representative Payee by the Social Security Administration, the Person may sign a Voluntary Financial Support Agreement, Division Form 1-3, allowing the Department to act as Representative Payee.

(5) If the Division is acting as the Representative Payee for a Person, the Division may initiate termination of a Representative Payee relationship through written notification to the Person and the funding agency.

(a) The Division shall initiate termination of a Representative Payee arrangement when:

(i) a Person with a voluntary arrangement requests termination of Representative Payee status;

(ii) a funding agency requests termination of Representative Payee status;

(iii) Person with a Representative Payee becomes ineligible for funding; or

(iv) a Person moves out of the service area.

 

R539-3-6. Personal Property.

(1) Restrictions to property that are implemented by the Division or Provider shall be part of a written plan or as an Emergency Behavior Intervention in accordance with Division Administrative Rule. Restrictions shall be approved by the Team and Provider Human Rights Committee.

 

R539-3-7. Privacy.

(1) Persons shall have privacy, including private communications (i.e. mail, telephone calls and private conversations), personal space, personal information, and self-care practices (i.e. dressing, bathing, and toileting).

(2) Restrictions to privacy that are implemented by the Division or Provider shall be part of a written plan and approved by the Team and Provider Human Rights Committee. Circumstances that require assistance in self-care due to functional limitations do not require a written plan.

 

R539-3-8. Notice of Agency Action and Administrative Hearings.

(1) Persons have the right to receive adequate written Notice of Agency Action and to present grievances about agency action by requesting a formal or informal administrative hearing in accordance with R497-100 for Persons receiving non-Waiver services, and R410-14 for Persons receiving Waiver services.

(2) Pursuant to Utah Code Annotated, Title 63, Chapter 46b, the Division shall notify a Person in writing before taking any agency action, such as changes in funding, eligibility, or services.

(3) At least 30 calendar days before the Division or the Region terminates or reduces a Person's services or benefits, the Division or Region shall send the Person a written Notice of Agency Action.

(4) The Notice of Agency Action shall comply with Subsection 63-46b-3(2)(a) and R497-100-4(2)(a).

(5) To assist a Person in requesting an administrative hearing, the Division or Region shall send the Person a Hearing Request Form 490S when the Division or Region sends the Notice of Agency Action Form 522.

(6) To request an informal hearing with the Department of Human Services for non-waiver services, the Person must file a Hearing Request Form 490S with the Division within 30 calendar days of the mailing date shown on the Notice of Agency Action Form 522.

(7) To request a formal hearing with the Department of Health for Waiver services, the Person must file the Medicaid Standard Hearing Request Form with the Division and Department of Health, Division of Health Care Finance within 30 calendar days of the mailing date shown on the Notice of Agency Action Form 522.

(8) This 30-day deadline for formal and informal hearings applies regardless of whether the Person also wishes to participate in the Division's conflict resolution process.

(a) If the Person files the Hearing Request within ten calendar days of the mailing date of the Notice of Agency Action, the Person's services shall continue unchanged during the formal or informal hearing process.

(b) If the Person files the Hearing Request Form between 11 and 30 calendar days after the mailing date of the Notice of Agency Action, the Person is entitled to an administrative hearing, but the Person's services and benefits shall be discontinued or reduced according to the Notice of Agency Action during the formal or informal hearing process.

(9) A Person may file a Request for Hearing Form for a formal or informal hearing and choose to still participate in the Division's conflict resolution process prior to the formal or informal hearing.

(10) If the Person requests an informal hearing and also chooses the conflict resolution process, the conflict resolution process must be completed before the informal hearing can begin, unless the Person submits a written request to the Division to end the conflict resolution process prematurely.

 

R539-3-9. Participation in Hospice Services.

(1) Persons expected by their physicians to live fewer than six months have the right to pursue hospice services as their choice of end-of-life care. A Person who is expected by two physicians to live fewer than six months and who receives Division funding for services and supports may request to continue to receive their Division-funded services and supports while participating in hospice services.

(2) If a Person has not executed a Durable Power of Attorney for Health Care and is incapable of making an informed decision about hospice services or signing a Hospice Agreement, choices related to end-of-life care shall be made on behalf of the Person by the Team upon approval of the Provider Human Rights Committee unless a guardian has been appointed by the Court with the legal authority to make end-of-life decisions for the Person.

(3) If a Person receives Waiver services through the Division and elects the Medicaid hospice benefit and meets the program eligibility requirements in accordance with R414-14A-3, hospice shall become the primary service delivery program, including the primary case management program, for the care of the Person. All other Medicaid programs serving the Person at the time of hospice election, including Waivers, shall coordinate with the hospice case management team to determine the full scope of services that shall be provided from that point forward.

(a) Pursuant to R414-14A-7(A), a Person can continue to receive Division services through the Waiver program that are necessary to prevent institutionalization, are not duplicative of services covered by the hospice benefit, and do not conflict with the hospice plan of treatment.

(b) The Medicaid hospice benefit shall determine the actual number of times a Person can revoke and re-elect hospice services, which hospice Providers and services are available, and which Waiver services may continue concurrently with hospice services.

(c) If the Division wishes to initiate disenrollment of a Medicaid-funded Person from the Waiver based on the Person's election of hospice services, it shall be considered an involuntary disenrollment and will be subject to review and approval by the Department of Health, Division of Health Care Finance.

 

KEY: people with disabilities, rights

2005

62A-5-102

62A-5-103