While we understand the desire of the Agency to “streamline” the regulations, we want to point out the following reasons why the MR and Day Support Waiver regulations should remain entirely separate beginning with 12 VAC 30-120-211 through 12 VAC 30-120-249 and 12 VAC 30-120- 1500 through 12 VAC 30-120-1550:

·        The HCBS Waivers which are currently approved for Virginia fall into two categories – those which are primarily designed to prevent or postpone admissions to or allow discharge from nursing facilities and those which prevent or postpone admission to or allow discharge from ICFs-MR.  The only similarity between the two is that they are Long Term Care facilities; otherwise you are comparing the proverbial apples and oranges.

·        The philosophical basis for and the approach to services provided under these two Waivers is significantly different from that of the others.  For example, “care” is provided in the EDCD Waiver, “services” or “supports” are provided in the MR and Day Support Waiver. 

·        The MR Case Management system and role, the assessment process and instruments used, the preauthorization process and authority, the criteria used in the development and the management of the waiting list(s), and the process for offering the right to appeal are among the unique features of these two Waivers.

·        These Waivers are also unique in their oversight; the Department of Mental Health, Mental Retardation and Substance Abuse Services is the agency designated as responsible for the daily policy development and management of these Waivers.  This partnership of DMAS and DMHMRSAS is a unique relationship that blends the policy and operational expertise in mental retardation of DMHMRSAS and the Medicaid program experience of DMAS.

·        Among other functions outlined within the DMAS-DMHMRSAS Interagency Agreement, the Agreement specifies that DMHMRSAS is responsible for the development of policy and regulations; the integration of the regulations into an Omnibus Regulation would result in virtually all sections of the regulations being opened each time either agency needed to suggest changes and would, therefore, add to the burden of participants, advocates, and providers (not to mention Agency staff) in being involved in a nearly continuous regulatory process.  Under the current configuration, changes which need to occur in one Waiver can be reflected in the regulations more readily without opening all sections of 12 VAC 30-120.

·        There are certainly changes which should be made to the regulations for both the MR and the Day Support Waivers, however, the creation of an Omnibus Regulation which eliminates “inconsistencies” in definitions and program requirements will inevitably eliminate the unique characteristics of the two Waivers mentioned above.  Virginia public policy leaders have affirmed many times their desire to preserve these unique characteristics

·        For the most part recipients, providers and stakeholders are concerned with only one of the waivers; having the regulations (for example, 12 VAC 30-120-211 through 249) speak to that Waiver alone is far easier for that constituency to read, understand and use as a reference.  It would seem that an Omnibus Regulation would only satisfy the needs of Agency staff.