I have concerns about the proposed State Plan Amendments related to HB909 and SB488 that DMAS has put up for public comment.

First, the planned start date of 1/1/25 creates a situation where many will not be able to access all their care hours from 3/1/24 (when the covid flexibility sunsetted) to when these new SPA flexibilities are scheduled to begin because care hours that can be worked by an LRI will have been intentionally limited to 40 hours per family during that period, rather than 40 hours per member. This creates a huge loss of access to service hours for families with more than one waiver recipient, and it runs in contrast to the most recent CMS technical manual advising states that they will need to reconsider the arbitrary hour limits on LRIs if they create a situation where members are not accessing all of their care hours. (While forcing consumers to choose non-family supports would obviously violate the federal standards related to consumer choice.)

The SPA, as it is proposed, intentionally creates a situation where an LRI has already worked the authorized hours without reimbursement, and now there is no route to correct this planned lapse in service. That also seems in contrast to the spirit of the legislation, which acknowledged both the importance of family care givers and that the care crisis is an emergency situation. I am concerned that this will leave Virginia vulnerable to class action lawsuits and continued DOJ oversight. It is also contrary to all the other previously approved SPAs that requested a start date that was backdated by several months from the date they were submitted. The requested start date should be immediately following the sunsetting of the previous covid flexibility, 3/1/2024, to avoid purposefully creating a gap in services.

The second concern I have is that some of the proposed language of SPA excludes single parents from acting as a paid PCA with consumer directed services by mandating that a parent or guardian take on the position of EOR (which obviously cannot also be a paid PCA). Last year DMAS published proposed "guard rails" that said if an LRI would be a paid PCA then another LRI could not also be the EOR, to guard against the inherent conflicts of interest DMAS leadership sees in the reimbursement of family care providers. Parents and guardians of waiver recipients were encouraged to come into compliance asap, and many people took great risks to put unpaid, unlicensed, unbonded and uninsured strangers into that role in an attempt to comply with a standard that was clearly not thought through. Now those LRIs will need to change all that back by 1/1/25 in order to comply with these new rules. I agree that the ideal EOR would be someone who is a direct, live-in care provider if the consumer themselves can't fill that role, but the consequences of mandating the ideal are too much. We must make "families first considered" the standard by making paid LRIs as accessible as possible if we want to begin to equitably address the care crisis that your bill was meant to address.

On page 62, Application for 1915(c) HCBS Waiver: Draft VA.004.05.03 - Jan 01, 2025

"...If the individual is unable to independently manage his/her own CD services, or if the individual is under 18 years of age, a spouse, guardian, adult child or parent of a minor child must serve as the employer on behalf of the individual..."

Which contradicts page 138 of the same document:

"If the individual is interested in self- direction but is unable to independently manage his/her own CD services, or if the individual is under 18 years of age, a parent of a minor child or responsible adult must serve as the employer on behalf of the individual. A person serving as the employer of record (EOR) shall not be a paid caregiver, attendant, or one's own SF."

Third, I am very concerned about the SPA that Mom's in Motion advocated so hard for, which was to remove education requirements from the service facilitor job. Care Coordinators working for MCOs are highly educated, well paid, and very savvy. They have a lot of resources at their disposal to help them advocate for the interests of the MCO while the consumer only has neutral ombudsmen, service facilitation or agencies, and on very rare occasions- pro bono disability advocacy attorneys. 

Moms in Motion and other service facilitation agencies will frequently tell exhausted and frustrated consumers "they're cutting everybody right now" to explain why they are not getting appropriate support for appeals. I am concerned that lower educational standards will only further hurt consumers if that change doesn't also come with much more ongoing training and oversight. We should also make sure that Virginia is meeting this demand by ensuring that the job is competitively compensated, and that remote/virtual visits are the rule rather than the exception. It is unreal how much time these folks are expected to commute in 2024 when virtual/remote visits would be so much safer for these medically fragile consumers and so much more efficient for service facilitators.