10112 INVOLUNTARY TERMINATION OF PROGRAM PARTICIPATION

10112.1 Participant/representative-employers shall be required to comply with all program rules and terms of the Participant/Representative-Employer Agreement and the Participant/Representative-Employer Consent Form executed at the time of enrollment in the Services My Way program.

10112.2 Non-compliance with program rules or the terms of the Participant/Representative-Employer Agreement or Participant/Representative-Employer Consent Form shall result in referral of the participant to the Remediation, Training and Termination Protocol established by DHCF.

10112.3 Non-compliance with the terms of the Participant/Representative-Employer Agreement may be identified by the VF/EA FMS-Support Broker entity, the participant's support broker, the participant's EPD Waiver case manager, or DHCF staff.

10112.4 Except in the case of a credible allegation of fraud, theft, or any other criminal behavior, as described in § 10112.11, participant/representative-employers shall be afforded two (2) episodes of non-compliance in each area of employer-related responsibility delineated in the Participant/Representative Employer Agreement during the first twelve (12) months of enrollment in the Services My Way program, in order to allow new program participants to become familiar with all employer-related responsibilities. The third episode of non-compliance in a single area of employer-related responsibility during the first twelve (12) months of program enrollment shall result in the participant's termination from the Services My Way program and a transition to agency-based personal care aide services.

10112.5 After the first twelve (12) months of program enrollment, participant/representative-employers shall be afforded a total of two (2) further episodes of non-compliance, in any area of employer-related responsibility delineated in the Participant/Representative Employer Agreement, for the duration of their enrollment in the Services My Way program. The third episode of non-compliance in any area of employer-related responsibility after the first twelve (12) months of program enrollment shall result in the participant's termination from the Services My Way program and a transition to agency-based personal care aide services.

10112.6 When a participant/representative-employer is found to be out of compliance with the Participant/Representative-Employer Agreement for the first time, the following steps shall occur:

(a) The Services My Way Program Coordinator shall issue a notice of non-compliance to the participant/representative-employer, the support broker,

and the EPD Waiver case manager, which shall:

1. (1) Identify the issue of non-compliance and request that the issue be corrected, if possible, and not repeated;
2. (2) Detail requirements of the Corrective Action Plan (CAP) the participant shall create to address the issue;
3. (3) Offer training and/or technical assistance;
4. (4) Encourage the participant/representative-employer to direct questions to the support broker regarding the issue of non-compliance, including requesting training, obtaining assistance in preparing the CAP, and designating an authorized representative;
5. (5) Identify consequences of further non-compliance with the Participant/Representative-Employer Agreement; and
6. (6) Provide information on the participant's appeal rights for termination from the program should three (3) episodes of non-compliance occur.- (b) Within five (5) business days of issuing the notice of non-compliance, the support broker shall contact the participant/representative-employer to discuss the episode of non-compliance;
7. (c) Within five (5) business days of the contact described in (b) above, the participant shall, with the assistance of the authorized representative and/or the support broker, if needed, draft and sign a written CAP regarding the issue of non-compliance; and
8. (d) The support broker shall provide copies of the participant's signed CAP to the participant's EPD Waiver case manager and the VF/EA FMS-Support Broker entity.10112.7 The participant's support broker shall be responsible for monitoring the participant's adherence to the CAP.10112.8 If the participant or authorized representative, as applicable, fails to implement all or a portion of the CAP, this failure shall be considered an episode of non-compliance with the terms of the Participant/Representative-Employer Agreement and shall be reported to the Services My Way Program Coordinator.10112.9 If a participant/representative-employer is found to be out of compliance with the

Participant/Representative-Employer Agreement a second time, the following steps shall occur:

(a) The Services My Way Program Coordinator shall issue a second notice of non-compliance to the participant/representative-employer, the support broker, and the EPD Waiver case manager, which shall meet all requirements described in § 10112.6(a);

(b) Within five (5) business days of issuing the notice of non-compliance, the support broker shall contact the participant/representative-employer to discuss the episode of non-compliance;

(c) Within five (5) business days of the contact described in (b) above, the participant shall, with the assistance of the authorized representative and/or the support broker, if needed, draft and sign a written CAP regarding the issue of non-compliance; and

(d) The support broker shall provide copies of the participant's signed CAP to the participant's EPD Waiver case manager and the VF/EA FMS-Support Broker entity.

10112.10 If a participant/representative-employer is found to be out of compliance with the Participant/Representative-Employer Agreement a third time, the following steps shall occur:

(a) The Services My Way Program Coordinator shall issue a third notice of non-compliance to the participant, the support broker, and the EPD Waiver case manager, which shall:

(1) Identify the three (3) episodes of non-compliance;

(2) Clearly state that DHCF is terminating the participant's enrollment in the Services My Way program, per notice provided in the first and second notifications of non-compliance;

(3) Inform the participant that he/she will be transitioned to agency-based personal care aide services, per notice provided in the first and second notifications of non-compliance; and

(4) Provide information regarding the participant's right to appeal the Services My Way program termination decision by filing a notice of appeal with the Office of Administrative Hearings;

(b) The support broker shall provide copies of the termination notice to the

participant's EPD Waiver case manager and the VF/EA FMS-Support Broker entity;

(c) Within five (5) business days of issuing the termination notice, the support broker shall contact the participant/ representative-employer and address the following topics:

(1) Reference to the first and second notices of non-compliance and the termination notice;

(2) Review of the consequences of three (3) episodes of non-compliance within a twelve (12) month period;

(3) Explanation of the process to transition the participant to agency-based personal care aide services; and

(4) Explanation of the participant's right to appeal the Services My Way program termination decision and the appeal process; and

(d) Within five (5) business days of the contact described in (c) above, the support broker shall complete all required participant termination forms and submit them to the Services My Way Program Coordinator.

10112.11 In the case of a credible allegation of fraud, theft, or any other criminal behavior committed by a Services My Way participant, the participant shall not be referred to the remediation, training and termination protocol, and shall not be afforded three (3) episodes of non-compliance. The participant may be terminated from the program immediately upon completion of an investigation by the DHCF Division of Program Integrity substantiating the credible allegation of criminal behavior.

10112.12 If the DHCF Division of Program Integrity receives a credible allegation of fraud, theft, or any other criminal behavior by a Services My Way participant, the Division shall complete an investigation of the allegation and issue a report detailing its findings.

10112.13 A credible allegation of fraud, theft or other criminal behavior is an allegation that has been reviewed and verified by DHCF from a source including, but not limited to, the following:

(a) The VF/EA FMS-Support Broker entity;

(b) The participant's support broker;

(c) The participant's EPD Waiver case manager;

(d) The participant's other EPD Waiver service providers;

(e) The participant's PDW; or

(f) DHCF staff.

10112.14 If the report issued in accordance with § 10112.12 finds the allegation to be substantiated, DHCF shall convene an interdisciplinary termination committee to review the report and determine whether to terminate the participant based on the findings documented in the report.

10112.15 If a Services My Way participant is terminated from the program based on the determination of the committee described in § 10112.14, the Services My Way Program Coordinator shall issue a termination notice to the participant/representative-employer, the support broker, and the waiver case manager, which shall:

1. (a) Clearly state that DHCF is terminating the participant's enrollment in the Services My Way program due to a substantiated allegation of fraud, theft or other criminal behavior;
2. (b) Explain the allegation, the investigation process, and the findings of the investigation, and include a copy of the investigation report;
3. (c) Explain the process to transition the participant to agency-based personal care aide services, if appropriate;
4. (d) Provide information regarding the participant's right to appeal the Services My Way program termination decision by filing a notice of appeal with the Office of Administrative Hearings; and
5. (e) Provide information regarding the circumstances under which the participant's current Services My Way program services will be continued if a hearing is requested, as described in § 10211.16.

10112.16 If a participant files a notice of appeal with the Office of Administrative Hearings within thirty (30) days of the date on the Services My Way program termination notice, the participant shall remain enrolled in the Services My Way program and continue to receive PDCS services and individual-directed goods and services included in the participant's approved PDS budget while the participant's appeal is pending.

10112.17 EPD Waiver case managers shall be responsible for transitioning participants to agency-based personal care aide services. EPD Waiver case managers shall ensure that there is no break in service provision during the transition period and shall coordinate the approval by DHCF or its designee of the request to initiate agency-based personal care aide services.

10112.18 Nothing in this section shall be construed to limit the District's authority to

investigate and prosecute a Services My Way program participant for criminal acts including but not limited to theft and fraud.

SOURCE: Final Rulemaking published at 64 DCR 9567 (September 29, 2017).