Appendix C: Participant Services, C-2: General Service Specifications (3 of 3), d. Provision of Personal Care or Similar Services by Legally Responsible Individuals, pages 175-176

Per The budget passed by the Virginia General Assembly in 2022 requires that DMAS must allow parents of minor-aged children and spouses (legally responsible individuals) to be paid caregivers of their minor-aged children or spouse. The draft Application recognizes this stipulation.

DMAS proposes to require that legally responsible individuals (LRIs) work for a personal care agency. DMAS proposes to not allow the consumer-directed model for personal assistance services provided by LRIs. This is likely due to related CMS requirements to ensure proper safeguards against abuse of the service are in place and enforceable.

RECOMMENDATION:  DMAS should continue to allow LRIs to be employed through the consumer-directed model and personal care agencies. The individual or the EOR should be the entity that decides whether to use agency-directed, consumer-directed and/or a combination of consumer-directed and agency directed personal assistance services. Specifically state that these rules/ safeguards used for LRIs should not also be applied to any household or family member of an adult individual who is their own guardian.

To address issues raised by CMS regarding LRIs providing paid support, the following provisions could be part of the Application:

1. The employer of record should not be someone who lives with the individual.
2. Require services facilitation.
3. The case manager would develop documentation for review by the services facilitator. Both the case manager and the services facilitator must agree that the documentation is accurate and current. Documentation would include the following:
   1. Description of the extraordinary care, as defined by CMS, to be provided by the LRI;
   2. List of support tasks to be provided by the LRI;
   3. Copies of job ads placed for a minimum of two weeks in at least two posting sites; summary of any interviews conducted by the EOR of any applicants including comments indicating why the applicant was not appropriate;
   4. Detailed narrative description of why no one else is able to perform the tasks required. A check list would not be adequate for this purpose;
   5. If the LRI is going to continue to be the consumer-directed assistant after the individual’s 18th birthday, an objective written documentation component describing how the individual will be involved with integrated community activities, including school and/or employment;
   6. Description of why it is in the best interest of the individual that the LRI provide personal assistance services.
4. The LRI could provide up to 40 hours a week of personal assistance services, if the LRI lives with the individual. Should the individual require more than 40 hours a week of personal assistance services, the additional hours could be provided by another consumer-directed assistant or an agency-directed assistant.
5. The individual receiving services or someone acting on their behalf, other than the person who would be the LRI, should make the choice of the LRI being an employee of a personal care agency and/or as a consumer-directed employee.
6. Services facilitation must be provided in-person.

The Virginia Informed Choice form is adequate for this purpose. A separate form should be developed by DMAS to be completed by the case manager/support coordinator when an LRI provides agency-directed or consumer-directed personal assistance services.

Case manager/support coordinators and services facilitators must receive a DMAS-developed training about consumer-directed services, including the provision of LRIs providing personal assistance services.

A case manager/support who refuses to submit or delays beyond 14 days to submit documentation to allow an LRI to provide personal assistance services must provide appeal rights to the individual and the EOR.