STATEMENT OF BASIS AND PURPOSE

Summary of the basis and purpose for the rule or rule change.  (State what the rule says or does, explain why the rule or rule change is necessary and what the program hopes to accomplish through this rule.)  

The request for rule change is to add the Support Level algorithm to Section 16.653, C (2 CCR 503-1).  Support Level means a numeric value determined using an algorithm that places clients into groups with other clients who have similar overall support needs.  The Support Level determines the amount of funds available to purchase services.  The algorithm is a formula used to assign clients into one of six support levels in the Home and Community Based Services (HCBS) for Persons with Developmental Disabilities (HCBS-DD) and the Home and Community Based Services – Supported Living Services (HCBS-SLS). 

After the initial Supports Intensity Scale Assessment and Support Levels rules were adopted, the Department received a request from stakeholders that the algorithm be included in rule to provide full transparency in its structure. Further request was made to the Governor’s Office to include the algorithm in rule. The Department and the Department of Health Care Policy and Financing agreed to the request. Publishing the algorithm informs the public of the Department’s method to determine a client’s Support Level.

An emergency rule-making (which waives the initial Administrative Procedure Act noticing requirements) is necessary:
	to comply with state/federal law and/or 	
	to preserve public health, safety and welfare	

Explain:  
Authority for Rule: 
State Board Authority:  26-1-107, C.R.S. (2012) - State Board to promulgate rules;  26-1-109, C.R.S. (2012) - State Board rules to coordinate with federal programs;  26-1-111, C.R.S. (2012) - State Board to promulgate rules for public assistance and welfare activities. 

(continued)

Initial Review		   09/07/2012	Final Adoption		  
	  11/09/2012 	
Proposed Effective Date	01/01/20133	EMERGENCY Adoption	N/A	

DOCUMENT 1 

_______________
[Note: “Strikethrough” indicates deletion from existing rules, “all caps” indicates addition of new rules, 
and brackets denote changes since Initial Review.] 

STATEMENT OF BASIS AND PURPOSE  (continued) 

Program Authority:  
27-10.5-103(2), C.R.S. (2012) – authorizes the promulgation of rules necessary to carry out the provisions and purpose of the article. 
27-10.5-104.5(3), C.R.S. (2012) authorizes the promulgation of rule necessary to implement the purchase of services and supports.
25.5-6-404(5), C.R.S. (2012) – Duties of the Department of Health Care Policy and Financing and the Department of Human Services – authorizes the State Board of Human Services to promulgate necessary rules to implement Medicaid Home and Community Based Services for persons with developmental disabilities.

	Yes	X	No	
	Yes	X	No	
Does the rule incorporate material by reference?  
Does this rule repeat language found in statute?  
If yes, please explain. 

The program has sent this proposed rule-making package to which stakeholders?

This rule-making package was posted on the Division for Developmental Disabilities (DDD) website and DDD sent a Communication Brief to advocates, Community Centered Boards and Program Approved Service Agencies via e-mail.  The Division for Developmental Disabilities held three (3) public meetings to obtain stakeholder input.  Public comment was gathered concurrent to rule moving forward   for Initial Review by the State Board.  Public comment was summarized at Initial Review.

Attachments: 
Regulatory Analysis
Overview of Proposed Rule
Stakeholder Comment Summary

REGULATORY ANALYSIS
(complete each question; answers may take more than the space provided)

1.  List of groups impacted by this rule:  
Which groups of persons will benefit, bear the burdens or be adversely impacted by this rule?

The incorporation of the Support Level algorithm into rules fully informs waiver participants and the public of the Department’s method to determine a client’s Support Level.

2.  Describe the qualitative and quantitative impact:  
How will this rule-making impact those groups listed above?  How many people will be impacted?  What are the short-term and long-term consequences of this rule?

The addition of the algorithm provides specific information regarding the means used to determine a client’s Support Level.  Publishing the algorithm fully informs the public of the Department’s method to determine a client’s Support Level.

3.  Fiscal Impact:  
For each of the categories listed below explain the distribution of dollars; please identify the costs, revenues, matches or any changes in the distribution of funds even if such change has a total zero effect for any entity that falls within the category.  If this rule-making requires one of the categories listed below to devote resources without receiving additional funding, please explain why the rule-making is required and what consultation has occurred with those who will need to devote resources.

State Fiscal Impact (Identify all state agencies with a fiscal impact, including any Colorado Benefits Management System (CBMS) change request costs required to implement this rule change)

There is no anticipated fiscal impact for state agencies.

		County Fiscal Impact  

There is no anticipated fiscal impact for counties.

		Federal Fiscal Impact 

There is no anticipated federal fiscal impact.

		Other Fiscal Impact (such as providers, local governments, etc.)

There is no other fiscal impact anticipated.

REGULATORY ANALYSIS (continued)

4.  Data Description:  
List and explain any data, such as studies, federal announcements, or questionnaires, which were relied upon when developing this rule?

NA

5.  Alternatives to this Rule-making:  
Describe any alternatives that were seriously considered.  Are there any less costly or less intrusive ways to accomplish the purpose(s) of this rule?  Explain why the program chose this rule-making rather than taking no action or using another alternative.

The algorithm is incorporated into the rule in response to stakeholder feedback after the initial Supports Intensity Scale Assessment and Support Level rules were adopted. Publishing the algorithm fully informs the public of the Department’s method to determine a client’s Support Level.

OVERVIEW OF PROPOSED RULE

Compare and/or contrast the content of the current regulation and the proposed change.

Section Numbers	Current Regulation	Proposed Change	Stakeholder Comment	
16.653, C	Support Levels	Insert the algorithm	_X_	Yes	__	No	

							

STAKEHOLDER COMMENT SUMMARY

DEVELOPMENT

The following individuals and/or entities were included in the development of these proposed rules (such as other Program Areas, Legislative Liaison, and Sub-PAC):  

NA

THIS RULE-MAKING PACKAGE

The following individuals and/or entities were contacted and informed that this rule-making was proposed for consideration by the State Board of Human Services:  

This rule-making package was posted on the Division for Developmental Disabilities (DDD) website and DDD sent a Communication Brief to advocates, Community Centered Boards and Program Approved Service Agencies via e-mail.  DDD held three (3) public meetings to obtain stakeholder input.  Public comment was gathered concurrent to rule moving forward   for Initial Review by the State Board.  Public comment was summarized at Initial Review.

Are other State Agencies (such as Colorado Department of Health Care Policy and Financing) impacted by these rules?  If so, have they been contacted and provided input on the proposed rules? 

X	Yes		No	

The Department and the Department of Health Care Policy and Financing jointly determined in meetings with the Governor’s Office and stakeholders to include the algorithm in rule. 

Have these rules been reviewed by the appropriate Sub-PAC Committee? 

	Yes	X	No	

Date presented __________________.  Were there any issues raised?  ____ Yes  ____ No

If not, why.  These rules do not have an impact on counties.

Comments were received from stakeholders on the proposed rules:  

X	Yes		No

Public comment was gathered concurrent to rule moving forward to Initial Review and is summarized as follows. 

The Department received both written and verbal comments.  The Department scheduled three (3) public meetings in Denver, Pueblo, and Grand Junction to present the first draft of rules and to solicit public comment.  Below is a summary of comments and the Department’s response: 

1)	Comment: Clarify the algorithm through examples or family-friendly language. 

	Response: The Department agrees with this recommendation and will work with stakeholders to develop methods to provide information about the algorithm in terms that can be easily understood.  In addition, the Department further amended rule to provide greater clarification. 

2)	Comment: Withhold the algorithm from rule until the task group completes the work to identify additional factors for consideration in Support Level determination. 

	Response: The Department is publishing the algorithm in rule to provide full transparency of the method for Support Level determination.  The SIS assessment and the Support Level were adopted to respond to federal requirements for a consistent process for determining an individual’s level of service.  This tool is used in other states and should not be completely withdrawn without a vetted replacement.  The Department will continue to work with stakeholders and amend rules as changes are needed. 

2 CCR 503-1 DEVELOPMENTAL DISABILITIES SERVICES
16.653  Support Levels [Eff. 2/1/12] 
A.  A client is assigned into one of six Support Levels according to his or her overall support needs and based upon the standardized algorithm for the HCBS-DD or HCBS-SLS waivers.
B.  The structure of the algorithm includes the following: 
1.  Algorithm factors: 
a.  Standard scores from Section 1: Parts A, B, and E  (ABE)  from the SIS assessment;
b.  Scores from Section 3A: Exceptional medial support needs score from the SIS assessment;
c.  Scores from Section 3B: exceptional behavioral support needs score from the SIS assessment; and,
d.  Whether the client presents as a safety risk, as follows:
1) In the HCBS-SLS waiver, Public Safety Risk-Convicted.
2) In the HCBS-DD waiver, Public Safety Risk-Convicted/Not Convicted or Extreme Safety Risk to Self. 
2.  The subgroups under each support level reflect variations of the intensity of the client’s basic support, medical support and behavioral support needs. 
3.	Following an assessment of the factors defined above, scores for each factor are applied to the algorithm.
The Support Level is Determined when the scores for each factor meet all of the criteria of a support level subgroup  
C.  The formula for the algorithm is: 

Support Level 1	
Subgroup 1A: A+B+E < 25; AND 3a < 1; AND 3b < 2	
Subgroup 1B: A+B+E < 25; AND 3a < 2; AND 3b < 5	
Subgroup 1C: A+B+E < 25; AND 3a < 4; AND 3b < 5	
	
Support Level 2	
Subgroup 2A: A+B+E = 26-30; AND 3a < 1; AND 3b < 2	
Subgroup 2B: A+B+E = 26-30; AND 3a < 2; AND 3b < 5	
Subgroup 2C: A+B+E = 26-30; AND 3a < 4; AND 3b < 5	
Subgroup 1D: A+B+E < 25; AND 3a < 6 	
Subgroup 1G: A+B+E < 25; AND 3b < 9	
Subgroup 2D: A+B+E = 26-30; AND 3a < 6 	
Subgroup 2G: A+B+E = 26-30; AND 3b < 9	
Subgroup 3A: A+B+E = 31-33; AND 3a < 1; AND 3b < 2	
Subgroup 3B: A+B+E = 31-33; AND 3a < 2; AND 3b < 5	
	
Support Level 3	
Subgroup 1H: A+B+E < 25; AND 3b < 13	
Subgroup 2H: A+B+E = 26-30; AND 3b < 13	
Subgroup 3C: A+B+E = 31-33; AND 3a < 4; AND 3b < 5	
Subgroup 3D: A+B+E = 31-33; AND 3a < 6	
Subgroup 3G: A+B+E = 31-33; AND 3b < 9	
Subgroup 4A: A+B+E > 34; AND 3a < 1; AND 3b < 2	
Subgroup 4B: A+B+E > 34; AND 3a < 2; AND 3b < 5	
	
Support Level 4	
Subgroup 1E: A+B+E < 25; AND 3a < 8 	
Subgroup 1F: A+B+E < 25; AND 3a > 9 	
Subgroup 1I: A+B+E < 25; AND 3b < 15	
Subgroup 1J: A+B+E < 25; AND 3b > 16	
Subgroup 2E: A+B+E 26-30; AND 3a < 8 	
Subgroup 2I: A+B+E 26-30; AND 3b < 15	
Subgroup 2J: A+B+E 26-30; AND 3b > 16	
Subgroup 3E: A+B+E 31-33; AND 3a < 8 	
Subgroup 3H: A+B+E 31-33; AND 3b < 13	
Subgroup 4C: A+B+E > 34; AND 3a < 4; AND 3b < 5	
Subgroup 4G: A+B+E > 34; AND 3b < 9	
 	
Support Level 5	
Subgroup 2F: A+B+E = 26-30; AND 3a > 9 	
Subgroup 3I: A+B+E = 31-33; AND 3b < 15	
Subgroup 3J: A+B+E = 31-33; AND 3b > 16	
Subgroup 4D: A+B+E > 34; AND 3a < 6 	
Subgroup 4E: A+B+E > 34; AND 3a < 8 	
Subgroup 4H: A+B+E > 34; AND 3b < 13	
Subgroup 4I: A+B+E > 34; AND 3b < 15	
Group 5A: Public Safety Risk; AND 3b < 11	
 	
Support Level 6	
Subgroup 4J: A+B+E > 34; 3b > 16	
Group 6A: Public Safety Risk; AND 3b >12	
Subgroup 3F: A+B+E 31-33; AND 3a > 9 	
Subgroup 4F: A+B+E > 34; AND 3a > 9 	
	
Extreme Safety Risk to Self - This factor acts to increase the Level otherwise determined by the above criteria. Level 1 increases to Level 3, LEVEl 2 increases to Level 4, Level 3 increases to Level 4, Level 4 increases to Level 5.  No change to Level 5 or Level 6.	

D.  The CMA shall make a determination whether a client meets the definition of Public Safety Risk or Extreme Safety Risk to Self through the following process:
1. The decision shall be made by a case management supervisor meeting the qualifications of a Developmental Disabilities Professional as defined in Section 16.120. He or she shall:
a.  Document the rationale to support the decision which shall be kept in the client’s record;
b.  Document that the client meets the definition in the Department required data system; and,
c.  Review the client at least annually or when significant changes occur to assure that the client continues to meet the definition.
2.  At the point when a client no longer meets the definition, his or her status must be changed in the Department-required data system and his or her Support Level must be re-calculated.
E.  The CMA shall inform each client, his or her legal guardian, authorized representative, or family member, as appropriate, of his or her Support Level at the time of the Service Plan development or when the Support Level changes for any reason.
F.  Notification of a Support Level change shall occur within ten (10) business days of the date after the Service Plan development or Support Level change.
G.  Each Support Level corresponds with the standardized reimbursement rates for individual waiver services and the Service Plan Authorization Limits (SPAL) in HCBS-SLS.
H.  In HCBS-DD, the Department may assign a reimbursement rate for day habilitation services and residential habilitation services provided to a client with exceptional overall needs in accordance with the Support Level Review Process.

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