411-004-0010 Definitions Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 4: (1) "CMS" means the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services. (2) "Competitive Integrated Employment" means work that is performed on a full-time or part-time basis (including self-employment): (a) For which an individual: (A) Is compensated at a rate that: (i) Is not less than the higher of the rate specified in federal, state, or local minimum wage law, and also is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities, and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; or (ii) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities, and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills. (B) Is eligible for the level of benefits provided to other employees. (b) That is at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons. (c) That, as appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions. (3) "Designated Representative" means: (a) Any adult, such as a parent, family member, guardian, advocate, or other person, who is: (A) Chosen by the individual or, as applicable, the legal representative of the individual; (B) Not a paid provider for the individual; and (C) Authorized by the individual or, as applicable, the legal representative of the individual to serve as the representative of the individual or, as applicable, the legal representative in connection with the provision of funded supports. (D) The power to act as a designated representative is valid until the individual modifies the authorization or notifies the agency that the designated representative is no longer authorized to act on his or her behalf. (b) An individual or the legal representative of the individual is not required to appoint a designated representative. (4) "DHS" means the Department of Human Services. (5) "HCB" means "Home and Community-Based." (6) "HCBS" means "Home and Community-Based Services." HCBS are services provided in the home or community of an individual. (a) HCBS are authorized under the following Medicaid authorities: (A) 1915(c) — HCBS Waivers; (B) 1915(i) — State Plan HCBS; or (C) 1915(k) — Community First Choice (K State Plan Option). (b) HCBS are delivered through the following program areas: (A) DHS, Aging and People with Disabilities; (B) DHS, Office of Developmental Disabilities Services; and (C) OHA. (c) DHS or OHA may designate other services, delivered under (6)(b) above, as HCBS. (7) "HCB Setting" means a physical location meeting the qualities of OAR 411-004-0020 where an individual receives HCBS. (8) "Heightened Scrutiny" means the process set out in OAR 411-004-0020(7)(e) that DHS or OHA uses when determining if a setting meets the criteria to be considered a HCB setting. (9) "Individual" means a person enrolled in or utilizing HCBS. (10) "Individually-Based Limitation" means any limitation to the qualities outlined in OAR 411-004-0020(1)(d) and (2)(d) to (2)(j), due to health and safety risks. An individually-based limitation is based on specific assessed need and only implemented with the informed consent of the individual or, as applicable, the legal representative of the individual, as described in OAR 411-004-0040. (11) "Informed Consent" means: (a) Options, risks, and benefits have been explained to an individual and, as applicable, the legal representative of the individual, in a manner that the individual and, as applicable, the legal representative, comprehends; and (b) The individual and, as applicable, the legal representative of the individual, consents to a person-centered service plan of action, including any individually-based limitations to the rules, prior to implementation of the initial or updated person-centered service plan or any individually-based limitation. (12) "Legal Representative" means a person who has the legal authority to act for an individual. The legal representative only has authority to act within the scope and limits of his or her authority as designated by the court or other agreement. Legal representatives acting outside of his or her authority or scope must meet the definition of designated representative. (a) For an individual under the age of 18, the parent, unless a court appoints another person or agency to act as the guardian. (b) For an individual 18 years of age or older, a guardian appointed by a court order or an agent legally designated as the health care representative, where the court order or the written designation provide authority for the appointed or designated person to make the decisions indicated where the term “legal representative” is used in this rule. (13) "OHA" means the Oregon Health Authority. (14) "Person-Centered Service Plan" means, for Medicaid eligible individuals, the written details of the supports, desired outcomes, activities, and resources required for an individual to achieve and maintain personal goals, health, and safety as described in OAR 411-004-0030 as documented by the person-centered service plan coordinator. (15) "Person-Centered Service Plan Coordinator" means case managers, service coordinators, personal agents, and other people designated by DHS or OHA to provide case management services or person-centered service planning for and with individuals. (16) "Provider" means any person or entity providing HCBS. (17) "Provider Owned, Controlled, or Operated Residential Setting" means: (a) The residential provider is responsible for delivering HCBS to individuals in the setting and the provider: (A) Owns the setting; (B) Leases or co-leases the residential setting; or (C) If the provider has a direct or indirect financial relationship with the property owner, the setting is presumed to be provider controlled or operated. (b) A setting is not provider-owned, controlled, or operated if the individual leases directly from a third party that has no direct or indirect financial relationship with the provider. (c) When an individual receives services in the home of a family member, the home is not considered provider-owned, controlled, or operated. (18) "Residency Agreement" means the written, legally enforceable agreement between a residential provider and an individual or the legal or designated representative of the individual, when the individual is receiving HCBS in a provider owned, controlled, or operated residential setting. The Residency Agreement identifies the rights and responsibilities of the individual and the residential provider. The Residency Agreement provides the individual protection from eviction substantially equivalent to landlord-tenant laws. (19) "Restraint" means: (a) Physical restraints are any manual method or physical or mechanical device, material, or equipment attached to or adjacent to the individual’s body that the individual cannot remove easily, which restricts freedom of movement or normal access of the individual to the individual’s body. Any manual method includes physically restraining someone by manually holding someone in place. (b) Chemical restraints are any substance or drug used for the purpose of discipline or convenience that has the effect of restricting the individual’s freedom of movement or behavior and is not used to treat the individual’s medical or psychiatric condition. (20) "Room and Board" means compensation for the provision of meals and a place to sleep. (21) "These Rules" mean the rules in OAR chapter 411, division 4. (22) "Unit" means the personal space and bedroom of an individual receiving HCBS in a provider owned, controlled, or operated residential setting, as agreed to in the Residency Agreement. Statutory/Other Authority: ORS 409.050, 413.042, 413.085 & 443.738 Statutes/Other Implemented: ORS 409.050, 413.042, 413.085 & 443.738 History: APD 15-2017, f. 6-26-17, cert. ef. 7-1-17 APD 23-2015, f. 12-15-15, cert. ef. 1-1-16