908 KAR 4:030. Traumatic brain injury trust fund operations.

908 KAR 4:030. Traumatic brain injury trust fund operations.

RELATES TO: KRS Chapter 13B, 45A.075, 45A.080, 211.470-211.478, EO 2004-726

STATUTORY AUTHORITY: KRS 211.474(1), EO 2004-726

NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health and Family Services and placed the Department for Mental Health and Mental Retardation under the Cabinet for Health and Family Services. KRS 211.474(1) requires the Traumatic Brain Injury Trust Fund Board of Directors to promulgate administrative regulations necessary to carry out the provisions of KRS 211.470 through 211.478. This administrative regulation establishes the operating procedures of the Traumatic Brain Injury Trust Fund Board of Directors, procedures for the selection of a benefit management program, the duties of the benefit management program, the procedure for obtaining Traumatic Brain Injury Trust Fund services, and the procedure for appealing a denial of an application for benefits.

Section 1. Definitions. (1) "Applicant" means a person who applies for a benefit, participates in the development of and agrees to a service plan for the use of the benefit, and for whom a completed service plan is submitted to the benefit management program.

(2) "Behavior programming" means an individually-designed strategy intended to increase a recipient's adaptive social behavior.

(3) "Benefit" means financial assistance provided to a recipient to cover the cost of services approved by the service plan review committee.

(4) "Benefit management program" or "program" means an entity incorporated to do business in the Commonwealth of Kentucky that contracts with the Cabinet for Health and Family Services, Department for Mental Health and Mental Retardation Services, at the recommendation of the board, to operate the Traumatic Brain Injury Trust Fund Program.

(5) "Board" is defined in KRS 211.470(1).

(6) "Cabinet" means the Cabinet for Health and Family Services.

(7) "Case management" means:

(a) Assistance to develop a service plan;

(b) Resource coordination;

(d) Education of an applicant, recipient, or family member; and

(e) Monitoring of the services received by a recipient as part of an approved service plan.

(8) "Case manager" means a person who provides case management services to applicants and recipients.

(9) "Community residential services" means retraining and rehabilitation of a recipient in a nonemergency situation to perform home care and home management tasks.

(10) "Companion services" means nonmedical supervision and socialization services designed to prevent institutionalization and to assist a recipient in maintaining community placement.

(11) "Department" means the Department for Mental Health and Mental Retardation Services or its designee.

(12) "Environmental modification" means a physical adaptation to a recipient's home to help a recipient function with greater independence in the recipient's own home or which is necessary to accommodate medical equipment and supplies required for the recipient's welfare.

(13) "Fund" or "trust fund" is defined by KRS 211.470(4).

(14) "Good cause" means a circumstance beyond the control of a recipient that affects the recipient's ability to access an approved benefit, including:

(a) Illness or hospitalization of the individual that is expected to last sixty (60) days or less;

(b) Death or incapacitation of the primary caregiver; or

(15) "Occupational therapy" means the therapeutic use of self-care, work, and leisure activities to enhance independent functioning or skill development.

(16) "Prevocational service" means a service designed to develop a prerequisite skill necessary to prepare a recipient for paid or unpaid employment.

(17) "Psychological and mental health services" means services designed to help a recipient to resolve personal issues or interpersonal problems resulting from a traumatic brain injury, or services provided to a recipient's direct caregiver to preserve the stability of a recipient's community living situation, as part of an approved service plan.

(18) "Recipient" means an applicant with an approved service plan who receives a benefit.

(19) "Respite care" means a service provided to a recipient on a short-term basis if there is an absence or need for relief of a recipient's caregiver.

(20) "Service plan" means a document that itemizes the goals, services, equipment, or items which have been approved for payment by the service plan review committee.

(21) "Service plan review committee" means a committee composed of persons with traumatic brain injuries or their family members and professionals in the field of brain injury that has the responsibility to review each applicant's proposed service plan for the purpose of approving or denying approval of the requested benefits.

(22) "Specialized medical equipment and supplies" means items which are of direct medical or remedial benefit to a recipient and which help a recipient to maintain community placement.

(23) "Speech and language therapy" means an intervention designed to maximize a recipient's language, pragmatic, and cognitive skills.

(24) "Structured day program services" means a service performed in a nonresidential setting which is designed to develop and improve a recipient's community living skills.

(25) "Supported employment services" means supervision and training of a recipient in a work site at which persons without disabilities are employed, for a recipient who is unlikely to obtain competitive employment at or above minimum wage and who needs ongoing support to perform competitive employment.

(26) "Traumatic brain injury" is defined in KRS 211.470(3).

(27) "Wrap-around service" means a service, equipment, or item, not excluded by KRS 211.474(2)(e), which will enhance a recipient's ability to live in the community, consistent with the recipient's overall service goals.

Section 2. Board Operating Procedures. (1) A board member shall adhere to:

(a) The bylaws of the board; and

(b) The confidentiality requirements as specified in KRS 211.474(3).

(2) If a member fails to act in accordance with the bylaws, the chair of the board shall recommend to the governor the dismissal of that member.

(3) A board member shall not:

(a) Influence, discuss, deliberate, or vote on a decision if the member has a conflict of interest that is:

1. Personal;

2. Professional; or

3. Financial;

(b) Be present during a meeting at which time an applicant's request is discussed or voted on, if the member has a conflict of interest identified in paragraph (a) of this subsection; or

(c) Assist another individual, regardless of where the person resides, to complete an application for benefits from the fund, except a board member may so assist for himself, if eligible, or for an eligible family member.

Section 3. Procedures for Selection of the Program. (1) The board shall issue a request for proposal in accordance with KRS 45A.080.

(2) The board shall review each proposal properly submitted in accordance with the request for proposal issued and shall recommend to the department an entity to operate the program under contract with the department.

(3) The board shall recommend an entity based upon consideration of:

(a) The experience of the entity in the provision of services to individuals with traumatic brain injury;

(b) The priority of services to individuals with traumatic brain injury within the entity's overall operation;

(d) The experience in the provision of case management services;

(e) The capacity of the entity to provide case management services to individuals with traumatic brain injury throughout the state;

(f) The experience in and the capacity of the entity to develop community resources for individuals with traumatic brain injury throughout the state;

(g) The capacity of the entity to distribute benefits from the fund to recipients;

(h) The capacity to manage applicant, recipient, benefit, and program evaluation data;

(i) The fiscal policies and practices and the financial stability of the entity;

(j) The accessibility of the entity to individuals with traumatic brain injury throughout the state;

(k) The entity's proposed cost to operate the program; and

(l) The entity's proposed procedures for evaluating the program.

(4) The department shall contract with the entity recommended by the board contingent on the availability of funds, unless the department determines that:

(a) The board failed to adhere to the requirements of subsection (3) of this section; or

(b) That a board member has violated a requirement of Section 2(3) of this administrative regulation.

(5) The contract between the department and the entity recommended by the board shall be in accordance with KRS 45A.075.

Section 4. Duties of the Program. (1) The program shall:

(a) Establish a toll free telephone number for the purpose of enabling individuals with traumatic brain injury to apply for benefits from the fund;

(b) Engage in public information activities for the purpose of informing individuals with traumatic brain injury about the availability of case management services and benefits from the fund and other sources;

(c) Provide case management services to applicants and recipients statewide, including the provision of assistance in accessing a needed support or service, regardless of funding source;

(d) Accept applications for benefits from the fund and distribute benefits to recipients based upon an approved service plan;

(e) Establish a service plan review committee for the purpose of reviewing proposed service plans for approval;

(f) Approve the rates of reimbursement for the services of a provider for the delivery of services to a recipient as a part of an approved service plan; and

(g) Assist in the development of local resources for individuals with traumatic brain injury.

(2) The provider of a service shall accept the rate approved in accordance with subsection (1)(f) of this section as payment in full, and shall not require additional payment from a recipient.

(3) The provider of an approved service shall submit an invoice for payment to the Benefit Management Program within twelve (12) months of the date of service delivery. A request for payment submitted after twelve (12) months of the date of service delivery shall not be reimbursed by the Benefit Management Program and shall not be the financial responsibility of the board or the recipient.

Section 5. Service Plan Review Committee Requirements. (1) The program shall establish a benefit review committee which shall include a minimum of:

(a) One (1) person with a brain injury or the guardian or advocate of a person with a brain injury; and

(b) One (1) professional with expertise in the field of traumatic brain injury.

(2) Membership on the service plan review committee shall be limited to twelve (12) consecutive months.

(3) A person who has served the term specified in subsection (2) of this section may be reappointed to the service plan review committee six (6) months after the date of the expiration of the person’s most recent term of service on the committee.

Section 6. Eligibility. (1) An applicant shall be eligible for a benefit from the fund in accordance with:

(a) KRS 211.470(3); and

(b) KRS 211.474(2)(a) and (c).

(2) A resident of an institution or hospital shall not be eligible for benefits from the fund.

(3) An applicant shall provide medical documentation of the applicant's traumatic brain injury, including:

(a) A signed document from the applicant's physician stating that the applicant has a brain injury; or

(b) A copy of a medical report which documents that the applicant has a traumatic brain injury.

(4) An applicant shall document that the applicant has no funding source, other than the trust fund, which covers the type of service the applicant is requesting.

Section 7. Benefits Available from the Fund. (1) Except as provided in subsection (2), (3), or (4) of this section, an applicant may apply for one (1) or more benefits from the fund, as follows:

(a) Behavior programming;

(b) Case management;

1. Dressing;

2. Oral hygiene;

3. Hair care;

4. Grooming;

5. Bathing;

6. Housekeeping;

7. Laundry;

8. Meal preparation;

9. Shopping;

10. The cost of room and board; or

11. Twenty-four (24) hour supervision of a recipient;

(d) Companion services;

(e) Environmental modification;

(f) Occupational therapy;

(g) Prevocational service, which may include:

1. Assisting a recipient to understand the meaning, value, and demands of work;

2. Assisting a recipient to learn or reestablish skills, attitudes, and behaviors necessary for employment; or

3. Assisting the individual to improve functional capacities;

(h) Psychological and mental health services, which may include:

1. Training to improve interpersonal skills;

2. Social skills;

3. Problem-solving skills;

4. Training to remediate a cognitive problem resulting from the brain injury;

5. Treatment for a substance abuse problem related to the brain injury;

6. Psychological assessment; and

7. Neuropsychological evaluation;

(i) Respite care, which may be provided in:

1. The recipient's own home;

2. A residence; or

3. Another setting, if approved by the program;

(j) Specialized medical equipment and supplies;

(k) Speech and language therapy, which may include:

1. Articulation therapy;

2. The design of and instruction in the use of augmentative communication strategies or devices; or

3. Cognitive retraining strategies;

(l) Structured day program services, which may include:

1. Supervision;

2. Specific training to allow a recipient to improve functioning and to reintegrate into the community;

3. Social skills training;

4. Sensory skill development;

5. Motor skill development;

6. Teaching of concepts and skills necessary for the increased independence of the recipient; and

7. Other services to increase:

a. Adaptive behavioral responses; and

b. Community reintegration;

(m) Supported employment services; or

(n) Wrap-around service, which may include one (1) expenditure of funds for:

1. The repair, maintenance, or purchase of a vehicle, not to exceed $3,000 if the recipient:

(a) Has a valid Kentucky driver's license;

(b) Has the financial ability to obtain and maintain insurance on the vehicle according to Kentucky law; and

(c) Has no other available public or private transportation to substantially meet a reasonable need for which the vehicle is requested;

2. The payment of a recipient's rent, mortgage, or utility expenses, for a period not to exceed three (3) months;

3. The payment of the recipient's health insurance expenses, for a period not to exceed three (3) months; and

4. The purchase of a computer and related equipment and software for use by the recipient not to exceed $1,500, if an evaluation results in a finding that the recipient has the functional ability to operate the computer, related equipment, and software;

(2) The cost of an evaluation to determine a recipient’s ability to operate a motor vehicle or a computer, related equipment, or software shall be included in the recipient's benefit.

(3) A recipient who receives a benefit specified in subsection (1)(n) of this section shall not be eligible to apply for an additional expenditure of funds for the same purpose.

(4) Wrap around funds shall not be expended for payment of:

(a) Attorney fees;

(b)1. Court costs;

2. Fines assessed as a result of a conviction for a criminal offense;

(d) The cost of incarceration; or

(e) Other court ordered monetary judgments.

Section 8. Procedures for Obtaining a Benefit from the Fund. (1) A referral for assistance from the fund may be made by, or on behalf of, an eligible person by contacting the program by:

(a) Telephone;

(b) In person; or

(2) Upon receipt of a referral, the program shall assign a case manager to assist the applicant. The case manager shall:

(a) Assess the applicant's eligibility for a benefit;

(b) Identify the applicant's needs for service and supports;

(d) Assist the applicant in obtaining needed services and supports regardless of funding source;

(e) Determine that the fund is the payor of last resort; and

(f) Complete a proposed service plan which shall specify:

1. The name, address, and telephone number of the applicant;

2. The Social Security number of the applicant;

3. Medical documentation of the applicant's traumatic brain injury;

4. Documentation of the applicant's lack of a payor source for the requested service;

5. The requested benefit from the fund;

6. The relationship of receipt of the benefit to the applicant's ability to live in the community, consistent with the recipient's overall service goals;

7. The applicant's own identification of needed services and supports;

8. The mechanism for distribution of benefits from the fund; and

9. The signature of the applicant, or the applicant's conservator or guardian, indicating agreement with the terms of the service plan.

(3) The case manager shall submit the proposed service plan to the service plan review committee for approval.

(4) The service plan review committee shall review the proposed service plan to determine if:

(a) The applicant is eligible for benefits from the fund in accordance with KRS 211.470(3) and 211.474(2) and with Section 6 of this administrative regulation;

(b) The benefit requested from the fund meets the requirements of KRS 211.474(2)(d); and

(5) The service plan review committee may:

(a) Approve the proposed service plan, for a period not to exceed twelve (12) months; or

(b) Amend the proposed service plan; and

(c) Make recommendations to the applicant and the applicant's assigned case manager about other available resources or means to meet the applicant's need for services and supports.

(6) If the applicant disagrees with an amendment by the service plan review committee, the applicant may appeal the decision in accordance with Section 12 of this administrative regulation.

(7) The service plan review committee shall not approve the distribution of a benefit to a recipient in excess of $15,000 within any twelve (12) month period and $60,000 per lifetime, except in accordance with Section 9(9) and 9(10) of this administrative regulation.

(8) The service plan review committee shall not approve the distribution of benefits to an applicant:

(a) Who does not meet the eligibility requirements established in Section 6(1) and (2) of this administrative regulation;

(b) If the requested benefits are intended for a person other than the applicant;

(d) If other resources are available to the applicant to substantially meet a reasonable need for which the benefit is requested; or

(e) If the benefit requested is for the purpose of reimbursing the recipient for expenses incurred prior to approval of a service plan by the service plan review committee, unless the request meets the criteria established in Section 9(4) of this administrative regulation.

(9) A service plan shall be signed by the director of the program or the director's designee, and the applicant or the applicant's conservator or guardian.

(10) The service plan review committee shall consider a service plan in the order in which it is received.

(11) A recipient shall receive a copy of the approved service plan from the case manager.

(12) The service plan review committee shall submit a list of approved service plans to the board.

(13) A recipient with an approved service plan may change a service provider within an approved service category if there is no increased cost of the service.

(14) A recipient may make a permitted change by informing the case manager by telephone or in writing.

(15) The case manager may approve a change in service plan made in accordance with subsections (13) and (14) of this section without review by the service plan review committee.

(16) Involuntary termination and loss of approved benefits shall be initiated if an individual fails to access the approved benefits as outlined in the service plan within ninety (90) days of notification of approval of the service plan without good cause shown.

(a) The recipient or his legal representative shall have the burden of providing documentation of good cause as to the reason services cannot be accessed within the ninety (90) days, including:

1. A statement signed by the recipient or legal representative;

2. A copy of letters to providers;

3. A copy of letters from providers; and

4. A copy of documentation from physicians or other health care professionals.

(b) Upon receipt of documentation of good cause, the program shall grant one (1) sixty (60) day extension in writing.

Section 9. Procedures for Obtaining a Benefit in Exceptional Circumstances. (1) A request for emergency assistance from the fund may be made by or on behalf of an eligible applicant by contacting the program by telephone or in writing.

(2) A written service plan shall not be required when a request for emergency assistance is made.

(3) The program shall convene a meeting of the service plan review committee to consider a request for emergency assistance within two (2) working days from receipt of the request.

(4) The service plan review committee may approve a request for emergency assistance under the following circumstances:

(a) The loss of the eligible applicant's or recipient's caregiver;

(b) The imminent loss of the eligible applicant's or recipient's home or community placement;

(c) The loss of the eligible applicant's or recipient's service provider, if that loss results in an immediate threat to the health, welfare, or safety of the eligible applicant or recipient; or

(d) An immediate threat to the health, welfare, or safety of the eligible applicant or recipient.

(5) An immediate family member may be paid from the fund to provide care to a recipient in an emergency for a period not to exceed sixty (60) days in any twelve (12) month period. Payment to the immediate family member in this circumstance shall not exceed:

(a) $1,000 in a thirty (30) day period; or

(b) $2,000 for a sixty (60) day period.

(6) In an emergency, the service plan review committee may approve the distribution of benefits from the fund not to exceed $2,000.

(7) If benefits are distributed from the fund in an emergency, the program shall assign a case manager to:

(a) Develop a written service plan which meets the requirements of Section (8)(2)(f) of this administrative regulation; and

(b) Submit a written service plan to the service plan review committee no later than three (3) working days after the decision of the service plan review committee to approve an emergency request.

(8) The service plan review committee shall review the emergency service plan no later than two (2) working days after receipt.

(9) The board may waive the limits on expenditures required by Section 8(7) of this administrative regulation in an emergency, subject to the availability of funds, if it determines that:

(a) The benefit from the fund is essential to ensure the immediate health, welfare, and safety of a recipient;

(b) The fund request is included in a service plan approved by the service plan review committee; and

(10) A recipient shall be eligible for only one (1) lifetime exception to the benefit limit, not to exceed $7,500, and shall not be eligible to apply for an additional waiver after one (1) has been approved.

(11) The service plan review committee shall not approve the distribution of benefits in violation of KRS 211.474(2)(e).

Section 10. Procedures for Distribution of Benefits from the Fund. (1) Distribution from the fund may be made to:

(a) A recipient, to enable the recipient to purchase a service;

(b) The guardian or conservator of a recipient, to purchase a service;

(d) To a combination of the individuals specified in paragraphs (a), (b) and (c) of this subsection.

(2) The payment mechanism shall be specified in the service plan.

(3) A recipient shall be liable to the service provider for the payment of a service or other benefit delivered to the recipient under an approved service plan unless funds are distributed to a service provider in accordance with subsection (1)(c) of this section. An unapproved expenditure or cost remaining unpaid shall be the responsibility of the recipient and shall not be paid by the program or the board.

(4) The service provider or recipient shall provide to the program, on a monthly basis, documentation of the delivery of a service or benefit to a recipient.

(5) A service shall be reimbursed or paid if it is delivered in accordance with a recipient's approved service plan.

(6) A service shall not be reimbursed in the absence of an approved service plan, except in accordance with Section 9 (6) and (7) of this administrative regulation.

(7) An expenditure not included in an approved service plan shall not be paid by the program, the board, the department, or the cabinet.

(8) The cost of providing case management services to an applicant or recipient shall be exempt from the benefit limits established in Section 8(7) of this administrative regulation.

Section 11. Procedures for Placement on a Waiting List. The board may establish a waiting list for benefits from the fund if it determines that no further funding is available during the fiscal year. The waiting list shall be implemented in accordance with this section:

(1) The benefit management program shall implement and maintain the waiting list at the request of the board.

(2) An applicant or recipient shall be placed on the waiting list upon receipt of a referral for assistance from the fund.

(3) The order of placement on the waiting list shall be determined chronologically by date of the referral for assistance from the fund unless the applicant or recipient meets the criteria established in Section 9(4) of this administrative regulation.

(4) Emergency referrals for assistance from the fund shall be considered chronologically by date of the emergency referral.

(5) Emergency referrals for assistance shall be considered prior to consideration of all other referrals for assistance from the fund.

(a) If multiple referrals for assistance from the fund are received on the same arrival date, each referral shall be placed chronologically on the waiting list according to the time of receipt; and

(b) A written notification of the date and placement on the waiting list shall be mailed to the individual or his legal representative.

(6) The criteria for removal from the waiting list shall be:

(a) After a documented attempt, the benefit management program is unable to locate the individual or his legal representative;

(b) The individual refuses a benefit in an approved service plan, unless the individual has made a permitted change in accordance with Section 8(13) through (15) of this administrative regulation; or

(7) The removal from the waiting list shall not prevent the submission of a new application at a later date for the applicant or recipient.

(8) If the applicant or recipient is removed from the waiting list, the benefit management program shall notify the applicant or recipient, or his legal representative in writing.

Section 12. Procedures for Appealing the Denial of an Application for Benefits from the Fund. (1) The program shall notify the applicant in writing if the service plan review committee does not approve a requested benefit. Notification shall be made within five (5) working days of the committee's decision.

(2) If an applicant is determined to be ineligible for benefits from the fund because medical records do not provide documentation of a traumatic brain injury, the applicant may submit additional medical data, medical records, or medical documentation to support the diagnosis of the injury, or additional medical opinions about the disability.

(3) The program may obtain an independent medical opinion at its own expense.

(4) The board may obtain an independent medical opinion at its own expense.

(5) The program or the board shall not be liable for the cost of a second opinion obtained by an applicant, except in accordance with subsections (3) and (4) of this section.

(6) An applicant who wishes to appeal the denial of benefits shall notify the program, in writing, within thirty (30) days of notification of the denial.

(7) Upon receipt of a written appeal, the program shall encumber funds in the amount requested until final resolution of the appeal.

(8) The program shall acknowledge receipt of a written appeal, in writing, within three (3) working days of receipt and shall perform a review of the denial within ten (10) working days of receipt.

(9) The program shall assure that the staff members who review the denial have not been involved in the original decision regarding an applicant's eligibility or request for benefits.

(10) The program shall provide an opportunity for an applicant or his representative to appear before a representative of the program to present facts or concerns about the denial of benefits.

(11) The program shall inform an applicant, in writing, of the decision resulting from the review of the denial within ten (10) working days of the decision.

(12) An applicant dissatisfied with the result of the appeal to the program may appeal to the board. An appeal to the board shall be:

(a) In writing;

(b) Made within thirty (30) days of receipt of the decision by the program; and

(13) The Brain Injury Services Branch shall acknowledge receipt of a written appeal, in writing, and shall notify the chair of the board, in writing, of the appeal within five (5) working days after receipt of the appeal.

(14) The board shall direct the Brain Injury Services Branch to request the Division of Administrative Hearings of the Office of Legislative and Public Affairs to conduct a hearing pursuant to KRS Chapter 13B.

(15) The case manager and other representatives of the program shall be available to testify and shall be subject to cross-examination concerning the basis of the decision on an appeal.

(16) The parties may submit exceptions to the recommended order of the hearing officer to the Brain Injury Services Branch.

(17) The board shall review the recommended order and any exceptions filed and shall render a final decision in accordance with KRS 13B.120. The final order shall make clear reference to the availability of judicial review pursuant to KRS 13B.140 and 13B.150. (27 Ky.R. 2017; Am. 2829; eff. 4-9-2001; 29 Ky.R. 1145; 1659; eff. 12-18-02; 2779; 30 Ky.R. 47; eff. 7-16-03; 31 Ky.R. 1450; 1675; eff. 4-22-05.)