PUBLIC COMMENTS – vaACCSES
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.

• Recommend that DMAS and DBHDS actively work with CMS to develop and seek approval of a checklist to substitute for “progress notes” (narrative daily notes) - the demands of which detract from providers’ resources to effectively support individuals.
• 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.
• Independent Living – Add a definition.  The term is used throughout the proposed regulations with no definition. Proposed 12VAC30-122-90 defines the eligibility criteria for the Priority One waiting list to include young adults who are no longer eligible for IDEA services and who are transitioning to “independent living.” The regulations describe the individuals whom the Building Independence Waiver is designed to support as “individuals who reside in an integrated, independent living arrangement....” (proposed 12VAC30-122-240). Additionally, the Independent living support service described in proposed 12VAC30-122-420 is available to adults 18 years of age and older to provide the skill building and supports “necessary to secure and reside in an independent living situation.” Nowhere in the regulations, however, is the phrase “independent living” as used in these sections defined.
• 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.
• Face-to-face visit- add following support coordinator “or shared living administrative provider” [Face-to-face is the term used for the periodic meetings required in that service]
• Independent Living – Add a definition
• 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.
• Supported living residential- delete following a service “taking place in an apartment setting”; add following operated by a DBHDS-licensed provider. Change to “taking place in an individual’s own home”. There is no operational reason to limit the choice of the type of living arrangement.

12VAC30-122-40. Waiver services; when not authorized.

• B. Clarify that transition services can be provided to individuals who are inpatients at the listed facilities when they are preparing for discharge. The subsection states that waiver services shall not be furnished to individuals who are inpatients of a hospital, nursing facilities, ICF/IID, or inpatient rehabilitation facility. It goes on to state that waiver services shall not be provided until the individual has exited the institution and has been enrolled in the waiver. However, some of the costs covered by transition services would have to be incurred prior to the individual exiting the institution, in order for the individual to have an alternative place to live. Such expenses include security deposits, set-up fees, or deposits for utilities, etc.

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
• Recommend the addition of the following language - “The support coordinator is responsible for determining which Waiver provider will receive the greater Medicaid reimbursement, and will therefore be responsible for collecting the Medicaid co-payment from the individual.  The support coordinator will notify all Waiver providers which provider will collect the monthly co-payment and in what amount.  Notification will be in writing from the support coordinator to the individual and to all Waiver providers.” 

12VAC30-122-80. Waiver approval process; authorizing and accessing services.

• C.3.- add at the end “and other service plans as applicable.”
• C.4.- Following initiated within change “30 days” to “90 days,” Taking into account the existing workforce recruitment timeframes, training requirements, etc., services may not realistically be initiated in only 30 days.  If there are other requirements to notify DSS within that timeframe then the 30-day requirement in line 4 will have to remain. Ensure that references to days (days vs. calendar days) are consistent. There are a variety of reasons that can create a delay of service initiation beyond 30 days. The individual should not be penalized by having to undergo another financial eligibility determination because the provider does not initiate services in a timely manner. It is unlikely that there would be a significant change in financial circumstances within a 30-day period. Furthermore, since the individual/family have up to 30 days to contact the provider, should this contact be made on day 29, services clearly could not be initiated by day 30.
• C.6.c.- Following approve change “suspend” to “pend” whh is the terminology currently utilized when seeking more information.