411-030-0072 Exceptions to the Homecare Worker Cap (1) An individual receiving in-home service hours may be eligible for an exception to the hourly cap on homecare worker weekly hours as defined in OAR 411-030-0070(5)(b) and (c), if: (a) There are specific service needs that are not able to be met by other resources, homecare workers or providers; and (b) The individual or their representative is appropriately managing their Consumer Employer Responsibilities as described in OAR 411-030-040(4)(a-f). (2) An individual, their representative, or Case Manager may request an exception to the homecare worker cap orally or in writing if the individual believes their situation meets the criteria in (1) and (5). (3) Exception to Homecare Worker Cap Application Process. (a) Before processing an exception application for the homecare worker cap, the case manager must follow OAR 411-030-0050(2)(a)(B) and discuss with the individual or their representative alternative ways, if any, to meet the individual’s needs. This includes discussing: (A) The individual’s responsibility to assist in developing less costly service alternatives described in OAR 411-030-0050(2)(a)(A); and (B) Management of the Consumer Employer Responsibilities described in OAR 411-030-0040(4)(a-f). (b) After the discussion in (a) of this section occurs and is documented by the case manager, an individual may apply for an exception to the homecare worker cap by completing an Exception Application Form, available from the case manager, and by providing any documentation required by the Department that supports the requested need for the weekly cap exception. (c) The Exception Application Form for the homecare worker cap must: (A) Be signed by the individual, or their representative. (B) Clearly describe the reason the homecare worker cap is not appropriate to meet the individual’s service needs. (C) Include an attestation that all the information is accurate and truthful. (4) Exceptions to the homecare worker cap must be prior approved by DHS Central Office before payment will be made except when circumstances meet criteria in OAR 411-030-0070(7). (5) DHS Central Office may grant an exception to the homecare worker cap if the individual or their representative continues to demonstrate the ability to engage in and manage their consumer employer responsibilities related to recruiting, hiring, and training workers, and at least one of the following are met: (a) In the individual’s geographic area there is an insufficient number of homecare workers to meet the individual’s service plan, and, despite efforts to find or identify providers, no other resources are available, including in-home agencies, to meet the need; (b) A homecare worker has quit or has been terminated. The exception is valid for the specified time period in the notice of cap exception approval, or until a replacement homecare worker can be hired, whichever comes first; (c) The individual is traveling out of town and needs just one of the homecare workers to accompany them; (d) A homecare worker does not show up when scheduled due to weather, illness, or any reason and needs are time-sensitive and would risk harm to the individual if a delay in services occurs. The circumstance meets criteria in OAR 411-030-0070(7). (e) There is an emergent or urgent need of the individual such that postponing care until another worker could arrive or going without care would more likely than not result in the need for medical intervention; or (f) The individual has specific ADL or IADL needs requiring care from a trained existing provider until additional providers are found and trained. (6) The Department may approve exceptions up to 90 calendar days at a time. (7) The Department shall notify the individual about the outcome of the request for an exception to homecare worker cap within 30 calendar days of the request. (8) Notification shall include: (a) For approval: (A) The name of the particular homecare worker(s) approved; (B) The approval begin and end dates; and (C) The number of hours the specific HCW may exceed the cap. (b) For a denial: (A) The reason the request was denied or partially denied; and (B) Information on hearing rights and how to request a hearing. (9) An approved exception to the homecare worker cap is valid for the period defined in the notice, not to exceed 90 calendar days. (10) When the conditions for initial approval of a homecare worker cap are likely to continue beyond the approval period, in order to get re-approved without an interruption, a new request must be submitted on the SDS 514i form by the individual 15 calendar days prior to the approval period end date and include documentation describing actions taken and any progress made in reducing the need to exceed the homecare worker weekly hours cap. (11) An exception to the homecare worker cap that has been granted is valid for only the specific consumer-employer and the homecare worker identified in the approval notice. (12) The Department may deny or partially deny a request to exceed the Homecare Worker Cap if: (a) The request does not meet the criteria in section (1) and one or more criteria in (5)(a)-(f) of this rule; (b) The homecare worker in question is working for more than one individual; (c) The individual or their representative fails to manage the Consumer-Employer Responsibilities described in OAR 411-030-0040(4)(a)-(f), as determined by the department; (d) There is a conflict of interest created by the homecare worker also acting as a representative for an individual (OAR 411-031-0040(1)); (e) There exists another way to safely meet the individual’s needs; (f) The request is based solely on consumer preference; (g) Exceeding the cap is recurring to the extent that the need for additional workers becomes predictable as determined by the department; or (h) When there are additional qualified providers available to select and the consumer has chosen not to select them. (13) No exceptions to homecare worker’s cap may exceed an average of 16 hours a day per pay period. This limit applies per homecare worker. (14) The individual is responsible for reducing or minimizing the need to exceed the cap by using other resources. Statutory/Other Authority: ORS 409.050 & ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: APD 32-2020, amend filed 07/23/2020, effective 08/01/2020 APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020 APD 40-2018, adopt filed 11/15/2018, effective 11/18/2018 APD 11-2018, temporary adopt filed 05/23/2018, effective 05/23/2018 through 11/18/2018