OAR 411-031-0040
Consumer-Employed Provider Program
(1)
EMPLOYMENT RELATIONSHIP. The relationship between a provider and a consumer is that of employee and employer. A homecare worker shall never be a representative (see OAR 411-031-0020 (Definitions)), or make service plan related decisions for a consumer-employer for whom the homecare worker currently provides paid services.(2)
HOMECARE WORKER JOB DESCRIPTIONS. A consumer-employer or consumer-employer’s representative is responsible for creating and maintaining a job description for a potential provider in coordination with the services authorized by the consumer’s case manager. Only services and tasks authorized by the Department shall be paid.(3)
HOMECARE WORKER LIABILITIES. The only benefits available to homecare workers are those negotiated in the Collective Bargaining Agreement and as provided in Oregon Revised Statute. This Agreement does not include participation in the Public Employees Retirement System or the Oregon Public Service Retirement Plan. Homecare workers are not state employees.(4)
CONSUMER-EMPLOYER ABSENCES. Services from a homecare worker are not authorized for payment when a consumer-employer is hospitalized or in a facility receiving medical, mental health or substance abuse treatment services. Services from a homecare worker are not authorized for payment when a consumer-employer is traveling without the homecare worker present.(5)
SELECTION OF HOMECARE WORKER. A consumer-employer or consumer-employer’s representative carries primary responsibility for locating, interviewing, screening, and hiring his or her own employees. The consumer-employer or consumer-employer’s representative has the right to employ any person who successfully meets the provider enrollment standards described in section (8) of this rule. The Department or AAA office determines whether a potential homecare worker meets the enrollment standards needed to provide services authorized and paid for by the Department.(6)
EMPLOYMENT AGREEMENT. A consumer-employer or consumer-employer’s representative retains the full right to establish an employer-employee relationship with a person at any time after the person’s Bureau of Citizenship and Immigration Services papers have been completed and identification photocopied. Payment for services will not be allowed until after the Department has verified that a person meets the provider enrollment standards described in section (8) of this rule and notified both the employer and homecare worker in writing that payment by the Department is authorized.(7)
TERMS OF EMPLOYMENT. A consumer-employer or consumer-employer’s representative must establish terms of an employment relationship with an employee at the time of hire. The terms of employment may include dismissal or resignation notice, work scheduling, absence reporting, and the specific tasks authorized on the task list duties for hourly employees. Termination of the employment relationship and the grounds for termination of employment are determined by a consumer-employer or consumer-employer’s representative. A consumer-employer or consumer-employer’s representative has the right to terminate an employment relationship with a homecare worker at any time and for any reason.(8)
PROVIDER ENROLLMENT.(a)
ENROLLMENT STANDARDS. A homecare worker must meet all of the following standards to be enrolled with the Department’s Consumer-Employed Provider Program and may not work, or claim payment for service unless they meet the following criteria:(A)
Maintain a drug-free work place.(B)
Complete the background check process described in OAR 407-007-0200 (Purpose and Scope) to 407-007-0370 (Variances) with an outcome of approved or approved with restrictions. The Department or AAA may allow a homecare worker to work on a preliminary basis in accordance with OAR 407-007-0315 (Hired on a Preliminary Basis) if the homecare worker meets the other provider enrollment standards described in this section of the rule.(C)
Demonstrate the skills, knowledge, and ability to perform, or to learn to perform, the required work.(D)
Possess current U.S. employment authorization that has been verified by the Department or AAA.(E)
Be 18 years of age or older.(F)
Complete an orientation as described in section (8)(e) of this rule.(G)
Have a social security number that matches the homecare worker’s legal name, as verified by the Internal Revenue Service or Social Security Administration.(H)
Agree to participate in continuing education training requirements as established by the Oregon Home Care Commission.(b)
DENIAL OF PROVIDER ENROLLMENT. The Department or AAA may deny an application for provider enrollment in the Consumer-Employed Provider Program when the applicant --(A)
Has violated the requirement to maintain a drug-free workplace;(B)
Has an unacceptable background check;(C)
Demonstrates a lack of the skills, knowledge and ability to adequately or safely perform the required work;(D)
Violates the protective service and abuse rules in OAR chapter 411, division 020 and OAR chapter 407, division 045;(E)
Commits fiscal improprieties;(F)
Fails to provide services as required;(G)
Lacks the ability or willingness to maintain consumer-employer confidentiality;(H)
Introduces an unwelcome nuisance to the workplace;(I)
Fails to adhere to an established work schedule;(J)
Has been sanctioned or convicted of a criminal offense related to a public assistance program;(K)
Fails to perform the duties of a mandatory reporter;(L)
Has been excluded by the Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other Federal Health Care Programs;(M)
Fails to provide a tax identification number or social security number that matches the homecare worker’s legal name, as verified by the Internal Revenue Service or Social Security Administration; or(N)
Exerts undue influence over a consumer-employer.(c)
BACKGROUND CHECKS.(A)
When a homecare worker is approved without restrictions following a background check fitness determination, the approval must meet the homecare worker provider enrollment requirement statewide whether the qualified entity is a state-operated Department office or an AAA operated by a county, council of governments, or a non-profit organization.(B)
Background check approval is effective for two years unless:(i)
Based on possible criminal activity or other allegations against a homecare worker, a new fitness determination is conducted resulting in a change in approval status; or(ii)
Approval has ended because the Department has inactivated or terminated a homecare worker’s provider enrollment for one or more reasons described in this rule or OAR 411-031-0050 (Termination, Administrative Review, and Hearing Rights).(C)
Prior background check approval for another Department provider type is inadequate to meet background check requirements for homecare worker enrollment.(D)
Background rechecks are conducted at least every other year from the date a homecare worker is enrolled. The Department or AAA may conduct a recheck more frequently based on additional information discovered about a homecare worker, such as possible criminal activity or other allegations.(E)
Homecare workers must inform the Department and their consumer-employer within 14 days of being arrested, cited for, or convicted of any potentially disqualifying crimes under OAR 125-007-0270 (Crimes Considered) and potentially disqualifying conditions under 407-007-0290 (Potentially Disqualifying Conditions).(d)
RESTRICTED PROVIDER ENROLLMENT.(A)
The Department or AAA may enroll an applicant as a restricted homecare worker. A restricted homecare worker may only provide services to one specific consumer.(i)
Unless disqualified under OAR 407-007-0275 (Convictions Under ORS 443.004 Resulting in Ineligibility for Aging and People with Disabilities Program and Developmental Disabilities Program SIs), the Department or AAA may approve a homecare worker with a prior criminal record under a restricted enrollment to provide services to a specific consumer who is a family member, neighbor, or friend after conducting a weighing test as described in OAR 407-007-0200 (Purpose and Scope) to 407-007-0370 (Variances).(ii)
Based on an applicant’s lack of skills, knowledge, or abilities, the Department or AAA may approve the applicant as a restricted homecare worker to provide services to a specific consumer who is a family member, neighbor, or friend.(B)
To remove restricted homecare worker status and be designated as a career homecare worker, the restricted homecare worker must complete a new application and background check and be approved by the Department or AAA.(e)
HOMECARE WORKER ORIENTATION. Homecare workers must participate in an orientation arranged through a Department or AAA office. The homecare worker must schedule their orientation within 30 days of provider enrollment in the Consumer-Employed Provider Program. The homecare worker must complete the orientation within 90 days of provider enrollment or the homecare worker’s provider number is inactivated and any authorization for payment of services is discontinued.(f)
INACTIVATED PROVIDER ENROLLMENT. A homecare worker’s provider enrollment may be inactivated when --(A)
The homecare worker has not provided any paid services to any consumer in the last 12 months;(B)
The homecare worker’s background check results in a closed case pursuant to OAR 407-007-0320 (Final Fitness Determinations)(2)(d)(C);(C)
The homecare worker informs the Department or AAA the homecare worker is no longer providing services in Oregon;(D)
The homecare worker fails to participate in an orientation arranged through a Department or AAA office within 90 days of provider enrollment;(E)
The homecare worker, who at the time is not providing any paid services to consumers, is being investigated by Adult Protective Services for suspected abuse that poses imminent danger to current or future consumers; or(F)
The homecare worker’s provider payments, all or in part, have been suspended based on a credible allegation of fraud pursuant to federal law under 42 CFR 455.23.(g)
ENHANCED HOMECARE WORKER ENROLLMENT. A homecare worker who is certified by the Oregon Home Care Commission to meet the enhanced homecare worker criteria in OAR 411-031-0020 (Definitions)(18) may receive payment at the enhanced hourly rate for providing ADL and IADL services as set forth in the Collective Bargaining Agreement when:(A)
The homecare worker is employed by a consumer whose service plan indicates the need for medically-driven services and supports;(B)
The consumer’s service plan specifically authorizes the homecare worker to provide the medically driven services and supports;(C)
The homecare worker provides the medically driven services and supports as set forth in the service plan; and(D)
The homecare worker has successfully completed training requirements for enhanced homecare worker certification as outlined in the Collective Bargaining Agreement.(h)
EFFECTIVE DATE OF ENHANCED HOMECARE WORKER RATE PAYMENT. A homecare worker may receive the enhanced rate effective the first day of the month following the month in which the homecare worker:(A)
Meets the enhanced homecare worker certification criteria identified in section (8)(g)(A) through (D) of this rule, and(B)
Works for a consumer-employer who requires medically-driven services and supports.(9)
TIME OFF.(a)
A homecare worker requesting time off must make a request to the consumer-employer or consumer-employer’s representative.(b)
The decision to approve or deny a homecare worker’s request to schedule time off is made by the homecare worker’s consumer-employer or the consumer-employer’s representative.(c)
A homecare worker who has been approved to take time off by the consumer-employer or consumer-employer’s representative must notify the consumer-employer’s APD or AAA case manager before taking time off.(d)
When a homecare worker schedules time off, the APD or AAA office will make reductions to the homecare worker’s authorized hours commensurate with the number of hours the homecare worker plans to take as scheduled time off.(e)
Under no circumstances will a homecare worker be required to secure a relief homecare worker or ensure that services are provided to a consumer-employer during the homecare worker’s scheduled time off.(f)
When a homecare worker plans to provide services as a relief homecare worker, the relief homecare worker must contact the consumer-employer’s APD or AAA case manager for authorization prior to providing relief services for the scheduled relief care hours.(10)
DEPARTMENT FISCAL AND ACCOUNTABILITY RESPONSIBILITY.(a)
DIRECT SERVICE PAYMENTS. The Department makes payment to a homecare worker on behalf of a consumer for all in-home services. The payment is considered full payment for the home and community-based services rendered. A homecare worker must not demand or receive additional payment for home and community-based services from a consumer or any other source. Additional payment to homecare workers for the same home and community-based services covered by the Department is prohibited.(b)
TIMELY SUBMISSION OF CLAIMS. In accordance with the Collective Bargaining Agreement, and federal Medicaid regulations, all claims for services must be submitted within 365 days from the first date of service listed on the claim.(c)
ANCILLARY CONTRIBUTIONS.(A)
FEDERAL INSURANCE CONTRIBUTIONS ACT (FICA). Acting on behalf of a consumer-employer, the Department applies applicable FICA regulations and --(i)
Withholds a homecare worker-employee contribution from payments; and(ii)
Submits the consumer-employer contribution and the amounts withheld from the homecare worker-employee to the Social Security Administration.(B)
BENEFIT FUND ASSESSMENT. The Workers’ Benefit Fund pays for programs that provide direct benefits to injured workers and the workers’ beneficiaries and assist employers in helping injured workers return to work. The Department of Consumer and Business Services sets the Workers’ Benefit Fund assessment rate for each calendar year. The Department calculates the hours rounded up to the nearest whole hour and deducts an amount rounded up to the nearest cent. Acting on behalf of the consumer-employer, the Department --(i)
Deducts a homecare worker-employees’ share of the Benefit Fund assessment rate for each hour or partial hour worked by each paid homecare worker;(ii)
Collects the consumer-employer’s share of the Benefit Fund assessment for each hour or partial hour of paid services received; and(iii)
Submits the consumer-employer’s and homecare worker-employee’s contributions to the Workers’ Benefit Fund.(C)
The Department pays the consumer-employer’s share of the unemployment tax.(d)
ANCILLARY WITHHOLDINGS. For the purpose of this subsection of the rule, “labor organization” means any organization that represents employees in employment relations.(A)
The Department deducts a specified amount from the homecare worker-employee’s monthly salary or wages for payment to a labor organization.(B)
In order to receive payment, a labor organization must enter into a written agreement with the Department to pay the actual administrative costs of the deductions.(C)
The Department pays the deducted amount to the designated labor organization monthly.(e)
STATE AND FEDERAL INCOME TAX WITHHOLDING.(A)
The Department withholds state and federal income taxes on all payments to homecare workers, as indicated in the Collective Bargaining Agreement.(B)
A homecare worker must complete and return a current Internal Revenue Service W-4 form to the Department or AAA’s local office. The Department applies standard income tax withholding practices in accordance with 26 CFR 31.(11)
REIMBURSEMENT FOR COMMUNITY TRANSPORTATION.(a)
A homecare worker is reimbursed at the mileage reimbursement rate established in the Collective Bargaining Agreement when the homecare worker uses his or her own personal motor vehicle for transportation that is prior-authorized in a consumer-employer’s service plan. If unscheduled transportation needs arise during non-office hours, the homecare worker must explain the need for the transportation to the consumer-employer’s case manager, and the transportation must be approved by the consumer-employer’s case manager before reimbursement. The homecare worker must possess a valid license to drive and current, valid motor vehicle insurance.(b)
Medical transportation through the Oregon Health Authority (OHA), volunteer transportation, and other transportation services included in a consumer’s service plan is considered a prior resource.(c)
The Department is not responsible for vehicle damage or personal injury sustained when a homecare worker uses his or her own personal motor vehicle for OHA or community transportation, except as may be covered by workers’ compensation.(d)
Except as set forth in (a) of this section, homecare workers shall not receive any mileage reimbursement.(12)
PAYMENT FOR TRAVEL TIME.(a)
A homecare worker who travels directly between the home or care setting of one consumer-employer and the home or care setting of another consumer-employer will be paid at the base pay rate for the time spent traveling directly between the homes or care settings. For the purposes of this rule, “Travel Directly” means a homecare worker’s travel from one consumer-employer’s home or care setting to another consumer-employer’s home or care setting is not interrupted other than to:(A)
Eat a meal;(B)
Purchase fuel for the vehicle being used for the travel;(C)
Use a restroom; or(D)
Change buses, trains or other modes of public transit.(b)
The total time spent traveling directly between all of a homecare worker’s consumer-employers may not exceed 10 percent of the total work time the homecare worker claims during a pay period. Unless otherwise specified in statute or rule, the amount of time a homecare worker may take to travel directly from one consumer-employer’s home or care setting to another consumer-employer’s home or care setting may not exceed one hour unless an exception has been granted by the Department.(c)
When a homecare worker uses the homecare worker’s own vehicle to travel directly between two consumer-employers the Department shall determine the time needed for a homecare worker to travel directly based on a time estimate published in a common, publicly-available, web-based mapping program. The homecare worker must possess and provide proof of a valid license to drive and current, valid motor vehicle insurance.(d)
When a homecare worker uses public transportation to travel directly, payment for travel time shall be based on the public transportation providers’ scheduled pick-up and drop-off times for the stops nearest the consumer-employers’ homes or care settings.(e)
When a homecare worker uses non-motorized transportation to travel directly, payment for travel time shall be based on a time estimate published in a common, publicly-available, web-based mapping program.(f)
Claims for travel time exceeding the Department’s time estimates may require a written explanation from the homecare worker before the Department pays the claim. Time claimed in excess of the Department’s time estimate may not be paid.(g)
A homecare worker shall not be paid for time spent in transit to or from the homecare worker’s own residence.(h)
The Department is not responsible for vehicle damage or personal injury sustained when a homecare worker uses his or her own personal motor vehicle to travel between the homes or care settings of consumer-employers, except as may be covered by workers’ compensation.(i)
Homecare workers shall not receive any mileage reimbursement for traveling between the homes or care settings of consumer-employers.(13)
BENEFITS. Workers’ compensation and unemployment are available to eligible homecare workers as described in the Collective Bargaining Agreement. In order to receive homecare worker workers’ compensation, a consumer-employer must consent and provide written authorization to the Department for the provision of workers’ compensation insurance for the consumer-employer’s employee.(14)
OVERPAYMENTS. An overpayment is any payment made to a homecare worker by the Department that is more than the homecare worker is authorized to receive.(a)
Overpayments are categorized as follows:(A)
ADMINISTRATIVE ERROR OVERPAYMENT. The Department failed to authorize, compute, or process the correct amount of in-home service hours or wage rate.(B)
PROVIDER ERROR OVERPAYMENT. The Department overpays the homecare worker due to a misunderstanding or unintentional error.(C)
FRAUD OVERPAYMENT. “Fraud” means taking actions that may result in receiving a benefit in excess of the correct amount, whether by intentional deception, misrepresentation, or failure to account for payments or money received. “Fraud” also means spending payments or money the homecare worker was not entitled to and any act that constitutes fraud under applicable federal or state law (including 42 CFR 455.2). The Department determines, based on a preponderance of the evidence, when fraud has resulted in an overpayment. The Department of Justice, Medicaid Fraud Control Unit determines when to pursue a Medicaid fraud allegation for prosecution.(b)
Overpayments are recovered as follows:(A)
Overpayments are collected prior to garnishments, such as child support, Internal Revenue Service back taxes, or educational loans.(B)
Administrative or provider error overpayments are collected at no more than 5 percent of the homecare worker’s gross wages.(C)
The Department determines when a fraud overpayment has occurred and the manner and amount to be recovered.(D)
When a person is no longer employed as a homecare worker, any remaining overpayment is deducted from the person’s final check. The person is responsible for repaying an overpayment in full when the person’s final check is insufficient to cover the remaining overpayment.
Source:
Rule 411-031-0040 — Consumer-Employed Provider Program, https://secure.sos.state.or.us/oard/view.action?ruleNumber=411-031-0040.