§ 441.464 State assurances. A State must assure that the following requirements are met: ( a ) *Necessary safeguards.* Necessary safeguards have been taken to protect the health and welfare of individuals furnished services under the program and to assure the financial accountability for funds expended for self-directed services. ( 1 ) Safeguards must prevent the premature depletion of the participant directed budget as well as identify potential service delivery problems that might be associated with budget underutilization.
( 2 ) These safeguards may include the following: ( i ) Requiring a case manager, support broker or other person to monitor the participant's expenditures.
( ii ) Requiring the financial management entity to flag significant budget variances (over and under expenditures) and bring them to the attention of the participant, the participant's representative, if applicable, case manager, or support broker.
( iii ) Allocating the budget on a monthly or quarterly basis.
( iv ) Other appropriate safeguards as determined by the State.
( 3 ) Safeguards must be designed so that budget problems are identified on a timely basis so that corrective action may be taken, if necessary.
( b ) *Evaluation of need.* The State must perform an evaluation of the need for personal care under the State Plan or services under a section 1915(c) waiver program for individuals who meet the following requirements: ( 1 ) Are entitled to medical assistance for personal care services under the State plan or receiving home and community based services under a section 1915(c) waiver program.
( 2 ) May require self-directed PAS.
( 3 ) May be eligible for self-directed PAS.
( c ) *Notification of feasible alternatives.* Individuals who are likely to require personal care under the State plan, or home and community-based services under a section 1915(c) waiver program are informed of the feasible alternatives, if available, under the State's self-directed PAS State plan option, at the choice of these individuals, to the provision of personal care services under the State plan, or PAS under a section 1915(c) home and community-based services waiver program. Information on feasible alternatives must be communicated to the individual in a manner and language understandable by the individual. Such information includes, but is not limited to, the following: ( 1 ) Information about self-direction opportunities that is sufficient to inform decision-making about the election of self-direction and provided on a timely basis to an individual or the representative which minimally includes the following: ( i ) Elements of self-direction compared to non-self-directed PAS.
( ii ) Individual responsibilities and potential liabilities under the self-direction service delivery model.
( iii ) The choice to receive PAS through a waiver program administered under section 1915(c) of the Act, regardless of delivery system, if applicable.
( iv ) The option, if available, to receive and manage the cash amount of their individual budget allocation.
( 2 ) When and how this information is provided.
( d ) *Support system.* States must provide, or arrange for the provision of, a support system that meets the following conditions: ( 1 ) Appropriately assesses and counsels an individual, or the individual's representative, if applicable, before enrollment, including information about disenrollment.
( 2 ) Provides appropriate information, counseling, training, and assistance to ensure that a participant is able to manage the services and budgets. Such information must be communicated to the participant in a manner and language understandable by the participant. The support activities must include at least the following: ( i ) Person-centered planning and how it is applied.
( ii ) Information about the services available for self-direction.
( iii ) Range and scope of individual choices and options.
( iv ) Process for changing the service plan and service budget.
( v ) Grievance process.
( vi ) Risks and responsibilities of self-direction.
( vii ) The ability to freely choose from available PAS providers.
( viii ) Individual rights.
( ix ) Reassessment and review schedules.
( x ) Defining goals, needs, and preferences.
( xi ) Identifying and accessing services, supports, and resources.
( xii ) Development of risk management agreements.
( xiii ) Development of an individualized backup plan.
( xiv ) Recognizing and reporting critical events.
( xv ) Information about an advocate or advocacy systems available in the State and how a participant, or a participant's representative, if applicable, can access the advocate or advocacy systems.
( 3 ) Offers additional information, counseling, training, or assistance, including financial management services under either of the following conditions: ( i ) At the request of the participant, or participant's representative, if applicable, for any reason.
( ii ) When the State has determined the participant, or participant's representative, if applicable, is not effectively managing the services identified in the service plan or budget.
( 4 ) The State may mandate the use of additional assistance, including the use of a financial management entity, or may initiate an involuntary disenrollment in accordance with § 441.458, if, after additional information, counseling, training or assistance is provided to a participant (or participant's representative, if applicable), the participant (or participant's representative, if applicable) has continued to demonstrate an inability to effectively manage the services and budget.
( 5 ) Implement and maintain a grievance process in accordance with § 441.301(c)(7), except that the references to section 1915(c) of the Act are instead references to section 1915(j) of the Act.
( e ) *Incident management system.* The State operates and maintains an incident management system that identifies, reports, triages, investigates, resolves, tracks, and trends critical incidents and adheres to requirements of § 441.302(a)(6), except that the references to section 1915(c) of the Act are instead references to section 1915(j) of the Act.
( f ) *Payment rates. Payment rates* are adequate to ensure a sufficient direct care workforce to meet the needs of beneficiaries and provide access to services in the amount, duration, and scope specified in beneficiaries' person-centered service plans, in accordance with § 441.302(k), except that the references to section 1915(c) of the Act are instead references to section 1915(j) of the Act.
( g ) *Annual report.* The State must provide to CMS an annual report on the number of individuals served and the total expenditures on their behalf in the aggregate.
( h ) *Three-year evaluation.* The State must provide to CMS an evaluation of the overall impact of the self-directed PAS option on the health and welfare of participating individuals compared to non-participants every 3 years.
[73 FR 57881, Oct. 3, 2008, as amended at 89 FR 40870, May 10, 2024]