PUBLIC COMMENTS – Shirley Lyons

DD Waiver Final Regulations – April 2019

General Comments

• Benefits Planning, Community Guide, Non-medical Transportation/Employment & Community Transportation Services, Peer Support Services are not included in the proposed regulations but are current available waiver services. A Medicaid Memo was published September 4, 2018 for Community Guide, including Community Housing Guide, Peer Mentor Supports and Benefits Planning Services. Sufficient time has elapsed to include these services in the final DD Waiver regulations for consistency in waiver implementation.  We recognize that including them at this stage is a substantive change.  However, to continue on without regulatory authority is unacceptable.  All waiver services should be included for the purposes of public review and comment.
• DMAS and DBHDS should create the option for a single agency to have one Plan for Supports per individual regardless of the number of services provided to an individual in order to streamline documentation and reduce the number of quarterly reports required.  This was a unanimous recommendation of the DBHDS’s own Provider Issues Resolution Workgroup (PIRW) in its report published August 2018.
• Support the allowance of employment services organizations (ESOs) to be providers of Peer Mentor Supports, Employment & Community Transportation Services and Community Guide services.
• Support the consistent use of “progress notes” as defined in the DD Waiver regulations versus
• the use of “daily note” references.  We support the definition of “progress notes” as defined in 12VAC30-122-20 “Definitions” for consistency.  “Progress notes” means individual-specific written documentation that (i) contains unique differences specific to the individual’s circumstances and the supports provided, and the individual’s responses to such supports; (ii) is signed and dated by the person who rendered the supports; and (iii) is written and signed and dated as soon as is practicable but no longer than one week after the referenced service.”
• Support changing the 10-day requirement to a 15-day requirement for service providers to submit quarterly reports.
• Semi-Annual Supervisory Notes for DSPs including “individual’s satisfaction with service provision”. Requirement should be eliminated or changed per comments below:

• Community Coaching (122-310.E.2), Community Engagement (122-320.E.2), Group Day (122-380.D.5.), Group Residential (122-390.D.5), Crisis Support Services (122-350.E.2) and Center-Based Crisis Support Services (122-300.E.2) all have additional burdensome requirements under Service Documentation or Provider requirements that state that there must be written supervision notes for each DSP, signed by the supervisor and included semi-annual documentation of individual’s satisfaction by the supervisor. (Center-based Crisis Supports does not include the semi-annual requirement.) Semi-Annual supervisory documentation of an individual’s “Satisfaction with service provision” or “observation of satisfaction” is also required.
  • This is duplicative of the initial and annual thereafter required documentation of proficiency of staff competencies included under 122-180.  Not to mention, much more stringent.
  • Why some services and not others?
  • Consistency between the services does not exist.  Group Day requires documentation of “observation of satisfaction”.
  • The requirement of semi-annual notes in the DSP supervision note regarding “satisfaction of the individual” or “observation of satisfaction of the individual” is not consistent with the already required individualized documentation.
  • If any one should be documenting an “individual’s satisfaction with service provision” or “observation of satisfaction” – it should be the support coordinator/case manager during their regular visits.  Someone other than the provider should be evaluating whether an individual is satisfied with the service they are receiving from the provider.  It’s like the proverbial “rooster guarding the hen house”.  The support coordinator/case manager is the more appropriate person and, if required, it should be required for all waiver services and not just some services.
  • The requirement of proscribed supervisory notes on a regular semi-annual basis is another added administrative burden layered on top of the annual DSP staff competency requirement which was added after the waiver rates were set.  Both cumbersome documentation requirements are not included in any rate.

• Virginia should develop and implement a central provider audit tool to decrease multiple requests of providers for the same information across reviewers.  This tool should bring together the various monitoring entities and result in collaboration and consistency in interpretation across agencies and reviewers eliminating redundancy in documentation requests.  This includes reviews by DBHDS subcontractors, human rights, licensing and Medicaid regulations and interpretations by contractors, specialists, quality management and provider integrity.
• Provide for the opportunity for deemed provider status for providers that hold a national accreditation (CARF) or specific certification to reduce the frequency of reviews.  This would reduce both state government and provider time and money.

12VAC30-50-490. Support Coordination/case management for individuals with developmental disabilities, including autism.

• Eliminate the term “autism” in the section header.  Autism/Autism Spectrum Disorders (ASD) are included in the term developmental disability.
• A. Eliminate the limitation of case management to individuals who are six years of age and older and who are on the waiting list or receiving services. Since we have moved to a DD Waiver system that does not differentiate based on diagnosis, there should not be an age restriction to the receipt of case management services. This is a remnant from the old IFDDS waiver where children under six were all served through the ID waiver. If individuals under the age of six are not in the target group, then it is unclear how they would gain a slot on the DD Waiver wait list or receive a DD waiver.

12VAC30-122-20. Definitions.

General:

• Definitions for benefits planning, community guide, non-medical transportation/employment and community transportation services should be added to section.
• Assistive Technology- add following environment “, actively participate in other waiver services which are part of their plan.”; delete “in which they live”.  The current definition does not account for all of the new and possible future expansive use of technology in all available waiver services. Expanding the definition will enable waiver services to adapt to the fast pace of changing technology in all walks of life.
• Community Coaching – add following participating “or to support an individual when there is an ongoing barrier to participation . . .”    [This is an issue of access to the Community Engagement service; individuals with chronic medical, sensory or mobility issues, challenging behavioral issues or a condition which is progressively more debilitating will be barred from Community Engagement as 1:1 staff exceeds the parameters of the service.]
• Community engagement – delete “one staff person to” or change the last sentence to “Community Engagement Services shall be provided in groups no larger than 3 individuals with a minimum of one staff”. Basically, delete the reference to “staff” in the definition.  The goal is to limit the size of the group.
• Positive Behavior Supports – use the definition of the American Association for Positive Behavior Supports and delete the language provided. This will bring the service in line with the national standard.
• Progress Note – We support this definition as written and object to the variations contained in the Provider Requirement sections of the several service descriptions.  See our “General Comments” above.
• QDDP – add a reference to all sections in this regulation which permit “QDDP” for the purposes of developing service plans and/or the supervision of staff to be defined in accordance with 12VAC35-105; while it is not necessary for the purposes of the definition, it will add clarity to the regulations.
• Service Authorizations- Strike the word “medically”. DD waiver services are all Medicaid-funded services.  However, not all services authorized or funded under the waiver are medical in nature. (e.g. supported employment, community engagement, etc). While we understand the Medicaid standard of “medical necessity” for payment, it implies that services must have a physician’s order and not be developed by the Person-Centered planning process.

12VAC30-122-60. Financial eligibility standards for individuals.

• B.3.a.(1) and B.3.b.(1) Delete following employed “at least 8 hours but”. Individuals who work fewer than eight hours per week are unnecessarily disadvantaged by the limitation. Many individuals may work less than 8 hours per week because of medical or other reasons.  Without this disregard, there is no incentive for them to work because their income would go to patient pay.
• Recommend Spend-down for all Long-Term Care waiver categories.  This language is already in the CCC+ waiver.  This language should be moved to all categories.
• B.3. Recommend that Patient Pay be considered an Income Related Work Expense (IRWE). IRWEs are already considered when countable earned income is considered.  Reasoning - without waiver services, an individual would not be earning at the level they are earning. But, earning at a higher level is forcing them to incur a Patient Pay. This is a disincentive to earn wages at a higher level.
• Recommend Special Group Category Consideration – SSI/SSDI waiver recipients increasingly have retired, disabled or deceased parents and the waiver recipient’s income increases because their parent’s FICA account is opened and a portion of this account is received by the waiver recipient.   This amount (now SSDI) often puts the waiver recipient over the 300% gross income limit.  The first thing the individual does is quit work if working. These individuals should be put in a “protected category” which will disregard the amount of the new income (SSDI) that will cause them to become ineligible for waiver services. This protection is considered when looking at continued Medicaid eligibility.  (https://secure.ssa.gov/poms.nsf/Inx/0501715015)
• Recommend Subsidies and Special Conditions as deduction for wages earned (per SSA definitions). If the individual is not fully earning his or her wages because the work is performed under special conditions (e.g. close and continuous supervision, on the job coaching, etc), then we should deduct that part of his or her wages that are not “earned” by the individual from his/her average gross wages.  This is true whether or not the employer or someone else provides the special on-the-job conditions. Most work supports that an individual receives in order to earn income is provided under LTC (i.e. transportation, personal attendant services, job coaching, etc).  However, under current Medicaid LTC regulations, if they earn over 300% of federal benefit rate (FBR), they are penalized.  Many individuals do not have the out-of-pocket expenses that are needed to bring down countable earned income due to the LTC supports that they are receiving at no cost to them.  However, they would not be earning at the level that they are earning without the waiver provided supports.  Subsidies and Special Conditions would give value to the supports that are provided to the individual that enables them to work and earn income.  https://www.ssa.gov/disabilityresearch/wi/subsidies.htm

12VAC30-122-120. Provider requirements.

• A.4.- Change “30 calendar days” to “90 calendar days” (See comment above in Section 80)
• A.5.- Strike “medically necessary services and supplies” and add “services and supports”
• A.6.- Strike “supplies” and add “supports”
• A.10.d- Strike “Such documentation shall be written on the date of service delivery.” This is not in keeping with the definition of Progress Note in 122-20 and as referenced earlier in comments.
• A.10.d- Strike “medical” in the first sentence
• A.10.f- Add “if applicable” within the parenthetical phrase “including specific timeframe”
• A.13- Change 37.2-600 to 37.2-607
• A.14- Strike “-s of Licensing and”. Abuse and neglect are reported to the Office of Human Rights not the Office of Licensing.
• D- Strike “may” add “shall” in last sentence.  If the purpose is to improve or remove poor providers - then this should not be an option.

12VAC30-122-180. Orientation testing; professional competency requirements; advanced competency requirements.

• D.1- The reference should to the “personnel file” not the “provider record”
• D.2- Change sentence to “Completed documentation from the online certificate shall be maintained in the Personnel File.”
• E.7- Add “only” before specific to the needs; and following specific to the needs strike “and level”
• E.8- add “only” before “specific to the needs”; strike “and service levels” [These changes clarify the intent have the advanced competencies applicable as the needs of the individual requires.]

12VAC30-122-190. Individual support plan; plans for supports; reevaluation of service need.

• A.8- Add “by the support coordinator” before with a copy of the. This clarifies that the support coordinator is responsible for providing a copy of the ISP to the individual family.

12VAC30-122-200. Supports Intensity Scale® requirements; Virginia Supplemental Questions; levels of support; supports packages.

• A.1- Delete “to 72” and add “or older” after “years of age.”  If the SIS is only validated to age 72 then language should be added to automatically assign all individuals age 72 or older to Level 5, Tier 4. Level 5 is the highest level denoting significant need in general but not specifying it to medical or behavioral.  Tier 4 is mid-range denoting significant need, which is appropriate for an aging population.  However, there should be a statement that these individuals shall not be excluded from consideration of an individualize rate because of medical or behavioral needs.
• A.2.a - Change “three” to “four” to stay consistent with the CL application
• A.4.- DELETE. The specific scoring protocol should be in a Medicaid Memo, not in the regulations.
• D – DELETE entre section/paragraph. This is a reserved section intended to explain the establishment of supports packages as a profile of the mix and extent of services anticipated to be needed by individuals with similar levels, needs and abilities.  Due to 2019 General Assembly budget language which prohibits the implementation of supports packages unless specifically authorized by the General Assembly, this section is not necessary.
• Add a new D – “Requires that the results of the SIS be provided within 10 days of scoring in an understandable format and that the service coordinated be required to explain the results and implications of the SIS score and avenues of appeal.”
• Add a new E.- “An automatic, independent review of the SIS administration process and results when an individual’s SIS Score changes despite a lack of change in their health or other circumstances, upon request.”

12VAC30-122-210. Payment for covered services (tiers).

• A.4.e. – Modify the language to “The DMAS designee shall review each individual’s needs on at least…..”  An individual’s needs are being reviewed not an individual themselves.
• C.1. Recommend an increase to the $5,000 annual limit on assistive technology deemed appropriate to the cost and utility of today’s technology. The current limit is years old and has not kept up with changes in technology and/or the emphasis on expanding the use of technology to replace more cost intensive staffing services. If raising the overall limit is not feasible at this time, we recommend adopting a multi-year limit, such as $10,000 over the course of two years, etc. This would allow greater flexibility for individuals to accommodate upfront costs of purchasing new assistive technology without raising the overall multi-year dollar limits. The limit is also included in 12VAC30-122-270 Assistive technology service.
• C 1: Recommend an increase to the $5,000 annual limit for environmental modifications from the current maximum annual cap of $5,000 to a level deemed appropriate to the cost of such modifications. This limit is years old and it is increasingly difficult for families and individuals to secure modifications that will allow them to remain in their homes over their lifespan for this small amount of funding. If raising the overall limit is not feasible at this time, we recommend adopting a multi-year limit, such as $10,000 over the course of two years. This would allow greater flexibility for individuals to accommodate upfront costs of purchasing new environmental modifications without raising the overall multi-year dollar limits.