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 Special Populations Home Care Allowance (SP-HCA) program was created by House Bill 12-1177 in March 2012 and was implemented in less than a month after signature of the Governor.  Due to the extremely quick implementation, there was confusion by the clients’ representatives related to the rules of the program, particularly regarding the rules related to permanent discontinuation from the program.  Because of this confusion, the Department believes that a grace period must be implemented to allow for reapplication to the SP-HCA program up until June 30, 2013.  This time frame will allow the Department to provide some additional education to client representatives, advocacy groups, and Community Centered Board staff related to the SP-HCA rules.  Beginning July 1, 2013, the current rule of permanent discontinuation will apply. 

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

Explain:  Continued eligibility for the Special Populations Home Care Allowance program has been confusing for some clients.  A provision must be added to the rule to provide a grace period of eligibility to ensure that clients are not harmed as a result of the eligibility criteria.  The Department has identified clients that have been discontinued from the program, for whom the removal of SP-HCA benefits has caused undue hardship.  The emergency rule will allow the Department to reinstate benefits quickly for these clients to prevent continued hardship and potential harm. 

Initial Review		   11/09/2012	Final Adoption		  01/04/2013	
Proposed Effective Date	11/09/2012 	EMERGENCY Adoption	11/09/2012	

DOCUMENT 3 

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[Note: “Strikethrough” indicates deletion from existing rules and “all caps” indicates addition of new rules.] 

STATEMENT OF BASIS AND PURPOSE  (continued) 

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. 

Program Authority: (give federal and/or state citations and a summary of the language authorizing the rule-making)
26-2-122.4(1)(e), 26-2-122.4(2)(a), C.R.S. (2012)- provides authority for the Department to establish eligibility requirements in rule. 

	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?
Adult Financial Supervisors, Colorado Counties Inc. (CCI), County Human Services Directors Association (CHSDA), county directors, Single Entry Points, the Colorado Department of Health Care Policy and Financing (HCPF), Community Centered Boards (CCBs), The Legal Center, Colorado Legal Services, CDHS Division for Developmental Disabilities, and Economic Security Sub-PAC 

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?

Single Entry Points (SEPs) – the proposed rule clarifies that the agency must notify the State Department to any changes in the client’s situation that might affect eligibility, rather than providing notice of adverse action to the clients.

Community Centered Boards (CCBs) – the proposed rule adds a requirement for the CCB to notify the State Department to any changes in the client’s situation that might affect eligibility.

Clients – the proposed rule change will ensure that clients are provided a grace period up to June 30, 2013 to reapply for SP-HCA benefits should they be discontinued at some time prior to June 30, 2013.

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?

SEPs – the SEPs have had a requirement to notify the State Department of changes.  The proposed rule will eliminate the requirement for the SEPs to provide notice of adverse action to clients. 

CCBs – the proposed rule will add a new requirement to the CCBs to notify the State Department of changes in situations for SP-HCA clients.

Clients – the proposed rule change will provide a grace period to apply for a reinstatement of SP-HCA benefits.

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)

Currently, there are ten clients that would be eligible for reinstatement at a total cost of $38,556 if they remained eligible through Fiscal Year 2013.  If they continued to remain eligible into FY 2014, that cost will increase.

REGULATORY ANALYSIS (continued)

There are an additional fourteen clients who have been discontinued to date who may become eligible again if their personal situation changes between now and June 30, 2013.  The cost for those could be as high as $62,969.  However, projections on future expenditures are not possible as there are too many unknowns, such as if they would become re-eligible, if they would re-apply, when they would be re-enrolled in benefits, etc.

Additionally, there are approximately two hundred (200) more clients in this program, any of whom may become ineligible and discontinued at some point between now and June 30, 2013; and then subsequently become eligible again.  Projecting costs for these clients is simply not possible. 

		County Fiscal Impact  

None 

		Federal Fiscal Impact

None

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

None

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

A review of the SP-HCA clientele, particularly those that have been discontinued from SP-HCA during 2012, was used in the development of the fiscal analysis for these rules.

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.

None.  A change to rule must be done to implement a grace period until June 30, 2013, to ensure the welfare and safety of a very vulnerable population. 

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	
3.746, C	Provides for permanent discontinuation from SP-HCA benefits.	Adds a grace period component that allows for reapplication for benefits on or before June 30, 2013.	X	Yes	__	No	
3.746, D	Requires Single Entry Points to notice clients.	Changes the requirement so that SEPs and Community Centered Boards notify the State Department of changes and the State Department provides the notice of adverse action to the client.  Updates the reasons for discontinuation to include reasons from 3.746, E, that were not previously in 3.746, D.  The change will assist clients in determining reasons for discontinuation as they will all be located in one section of rule.	__	Yes	X	No	
3.746, E	Requires the State Department to notify clients of adverse action.	This requirement was combined with 3.746, D, and so 3.746, E, is struck.  The change will assist clients in determining reasons for discontinuation as they will all be located in one section of rule.	__	Yes	X	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):  

Division for Developmental Disabilities

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:  

Adult Financial Supervisors, Colorado Counties Inc. (CCI), County Human Services Directors Association (CHSDA), county directors, Single Entry Points, the Colorado Department of Health Care Policy and Financing (HCPF), Community Centered Boards (CCBs), The Legal Center, Colorado Legal Services, CDHS Division for Developmental Disabilities, and Economic Security Sub-PAC. 

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? 

	Yes	X	No	

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

	Yes	X	No	

Date presented __Will be presented via email no later than October 26, 2012___. 
Were there any issues raised?  ____ Yes  _X_ No

If not, why.

Comments were received from stakeholders on the proposed rules:  

X	Yes		No	

Two Single Entry Point agencies requested a change to the six-month assessment requirement from a face-to-face assessment to either a face-to-face or telephone contact.  This would bring the six-month assessment requirement in line with the regular HCA program and Home and Community Based Services (CCBS) requirements.  The request was reasonable and was made at Section 3.744.F.

(9 CCR 2503-7)

3.740  Special Populations-Home Care Allowance (SP-HCA) Program
3.744  Functional Assessment, Care Plan, and Provider Agreement [Rev. eff. 7/1/12] 
===
F.  The SEP shall monitor the provision of services by the care provider to ensure THAT the care plan is implemented, the care provider is providing services as agreed, the client’s services are appropriate, and to identify any changes in functional need. 
1.  A review of the client’s current assessment shall be conducted every six (6) months in conjunction with the HCBS required visit.  The review shall be conducted by telephone or home visit.
2.  A review via telephone or home visit earlier than six (6) months shall be conducted when the SEP, in its professional opinion, believes the client’s needs may have changed, and/or the client is not receiving or paying for appropriate care as established in the care plan agreement, and/or the client reports concerns regarding the provision of services. 
3.  A client or authorized representative’s refusal to allow a home visit is grounds for discontinuation from the SP-HCA grant program, as outlined in Section 3.746, D.
G.  The SEP shall perform all other duties for the SP-HCA program as is required for the HCA program, outlined in Section 3.720.
===
3.746  Denials and Discontinuations [Rev. eff. 7/1/12] 
A.  A client shall meet all eligibility requirements outlined in Section 3.743, D, 1-4, each month to continue to be eligible for the SP-HCA program. 
B.  Clients shall be denied or discontinued from the SP-HCA program if he/she is determined ineligible. The client shall be informed of the adverse action and appeal rights in accordance with rules under Section 3.745. 
C.  Clients that are denied and/or are discontinued from the SP-HCA program are permanently disqualified from the program and shall not be eligible to apply for or be approved for benefits in subsequent months or years. 
1.  To ease the eligibility process for the SP-HCA program, the following provisions shall apply: 
a.  Clients originally approved for the SP-HCA program and then subsequently discontinued from SP-HCA on or before June 30, 2013, pursuant to Section 3.746, D, may reapply for reinstatement of benefits.
b.  Application must be received no later than July 12, 2013 for reinstatement of benefits.
c.  The application shall be reviewed to determine if between January 1, 2012 and June 30, 2013 the client again met SP-HCA eligibility criteria following the most recent discontinuation.

d.  If the client is determined to meet SP-HCA eligibility criteria again following the most recent discontinuation but still on or before June 30, 2013, benefits shall be retroactive to the new eligibility date.
2.  Clients originally approved for the SP-HCA program and then subsequently discontinued from SP-HCA pursuant to section 3.746, D, on or after July 1, 2013, will be permanently discontinued from receiving SP-HCA benefits.
D.  The SEP and/or CCB shall notify the state department when the agency has knowledge that any of the following occurs. The State Department shall notify the client of discontinuation from SP-HCA when it has information from the SEP, CCB, program data systems, or any other source that any of the following has occurred: 
1.  The client no longer receives services under the HCBS-SLS or HCBS-CES waiver. 
2.  The client’s needs change and his/her level of service need is no longer within $1,000 of the SPAL or Spending Limitation for HCBS-SLS or HCBS-CES. 
3.  The client no longer meets financial eligibility criteria, as outlined in Section 3.743, D, 2.
4.  The client no longer meets the functional capacity and need for paid care scores necessary to be approved for SP-HCA. 
5.  The client has not received services for thirty (30) or more consecutive days. 
6.  The client or authorized representative has refused to schedule an appointment with the SEP, CCB, or State Department or refuses to allow for a home visit, an initial assessment, six-month review, reassessment, or other review. 
7.  The client or authorized representative has failed to keep two (2) scheduled appointments. 
8.  The client or authorized representative refuses to sign the application, the care plan, or other documents and forms required to receive services or in any other way refuses to cooperate with the requirements of the SP-HCA program. 
9.  The client or authorized representative refuses to use the SP-HCA grant to pay for services, uses the grant for services not identified in the care plan and provider agreement, or uses the grant to purchase household expenses, including but not limited to, shelter costs, utilities, food, toiletries, clothing, home furnishings or other items not authorized by the SP-HCA care plan. 
10.  The client is a resident of a nursing facility, hospital, alternative care facility, group home, licensed or unlicensed long-term care facility, or other institution. 
11.  The client enters a hospital or other long-term care facility for treatment or rehabilitation that continues for thirty (30) or more consecutive days. 
a.  SP-HCA benefits shall be temporarily discontinued while the client remains in the hospital or long-term care facility for treatment or rehabilitation. 
b.  SP-HCA benefits shall be permanently discontinued if the client remains in the hospital or long-term care facility for treatment or rehabilitation for one hundred eighty (180) or more consecutive days. 
12.  The client cannot be safely served given the type and/or amount of services available. To support a denial or discontinuation for safety reasons related to service limitations, the SEP shall document the limitations and evidence of safety concerns, when available, including, but not limited to: 
a.  The results of an adult protective services assessment; 
b.  A statement from the client's physician attesting to diminished mental capacity or increased medical or physical care needs; 
c.  Lack of available services and/or providers; 
d.  An assessment score indicating a level of need for services in excess of those available under the SP-HCA program; and/or, 
e.  Other available information or evidence that will support the determination that the client’s safety is at risk. 
13.  The level of service need is not cost effective under the SP-HCA program. To support a denial or discontinuation due to cost effectiveness the SEP shall document the level of service need and more cost effective alternatives. 
14.  The client has moved out of the state or country or has or been out of the state or country for more than thirty (30) consecutive days. Discontinuation shall be effective the day after the date of the move or on day thirty-one (31) of the absence from the state or country. 
15.  The client or authorized representative requests withdrawal from the program. 
16.  The client or authorized representative has failed to report a change in circumstances that potentially affects eligibility for SP-HCA, as outlined in Section 3.743, G. 
17.  The client has died. Discontinuation shall be effective the day after the client’s death. No notice of discontinuation shall be sent. 
E.  The notice of adverse action shall include the reason for denial or discontinuation, the appropriate rule cite, and appeal rights. 
F.  In the event of denial or discontinuation, the SEP shall: 
1.  Provide appropriate referrals to other community resources, as needed, within one (1) working day of discontinuation. 
2.  Notify all providers on the care plan within one (1) working day of discontinuation. 
3.  Notify the State Department within one (1) working day of discontinuation. 
4.  Attend the appeal hearing to defend the denial or discontinuation. 

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