A soft cap of personal care hours to mirror the CCC+ waiver as well as the required exception criteria defeats the purpose of and ignores the needs which are intended to be addressed by varied waiver types.

Per 12VAC30-122-50 developmental disability is defined in the Code of Virginia 37.2-100 as requiring substantial limitations in three or more major life activities which includes capacity of independent living and does not explicitly require medical related needs. CL/FIS Waivers are intended for recipients with intellectual/developmental disabilities, which may or may not impact Activities of Daily Living (ADL). 

Waiver Personal Care Assistance

As defined within 12VAC30-122-460 personal assistance is defined to include the following:

1. Personal assistance service means direct support or supervision with (i) ADLs, (ii) IADLs, (iii) access to the community, (iv) monitoring the self-administration of medication or other medical needs, (v) monitoring health status and physical condition, or (vi) work or postsecondary school-related personal assistance. Personal assistance service substitutes for the absence, loss, diminution, or impairment of a physical, behavioral, or cognitive function.

2. When specified in the plan for supports, personal assistance service may include assistance with IADLs. Assistance with IADLs shall be documented in the plan for supports as essential to the health and welfare of the individual, rather than for the individual's family/caregiver's comfort or convenience, or both. In order to be approved for IADL support, the individual shall also require ADL supports.

Source: https://law.lis.virginia.gov/admincode/title12/agency30/chapter122/section460/

CCC+ Waiver 

The Commonwealth Coordinated Care (CCC) Plus Waiver [1915 (c)]  which serves to: provides care in the home and community rather than in a nursing facility (NF) or other specialized medical facility

The purpose being to allow waiver recepients to whom have skilled medical nursing needs to have options for service delivery outside of a nursing facility, which also often includes personal care assitance.

Exception Criteria for Personal Care Assistance Hours

The CCC+ personal care exception requires among other factors a recipient to have dependency in ALL ADLs. Applying this requirement to an individual on a CL or FIS receipient would by its very nature make the individual eligible for the CCC+ waiver and defeats the intended purpose of the CL and FIS waivers.

Rather than applying universal caps across the waivers DMAS should apply 12VAC30-122-460 as outlined and assess each case on the current needs of the individual recipient during the re-authorization period rather than creating a need for review during re-authorization AND an exemption request. 

Section 6 Additional Services

Part D Access to Services

According to the text in 1915, the state does not limit or restrict participant access to waiver servies except as provided in Appendix C.

Appendix C as outlined on Page 83 of 341 states the following:

...the Department shall provide for individual exceptions to this limit using criteria based on dependency in activities of daily living, level of care and taking into account the risk of institutionalization if additional hours are not provided. 

• What specifically is the criteria to be used?
• How is the supervision portion of the personal care assistance in the FIS Waiver measured as it relates to the risk of institutionalization?
  • Is institutionalization risk also considerate of the penal institution as it relates to risk to the recipient being able to comply and apply to the knowledge of the law to their behavior?

The blank and automatic reduction of personal care assistance hours, even if they already have an authorization for 57 hours or more as outlined on Page 14 of 341, is inherently discriminatory against CL/FIS recipients and create unfair burdens and risks for waiver those who require unskilled support, but support nonetheless, in order to remain safe in the community and at home.  For some individuals 56 hours per week will suffice, while for others it will not which is not directly correlated to needs requiring assistance with ALL ADLs.

Limiting legally defined developmentally disabled individuals’ ability to receive support based on skilled medical needs is counterproductive to the purpose of the BI, FIS, and CL waiver structure.

Items and Risks for Consideration

Requiring all waiver receipients with a requirement for more than 56 hours of personal care assistance to submit for an exception should undertake the following considerations:

1. What is the current number of CL/FIS Waiver Recipients receiving more than 56 hours of PCA hours?
   1. What efforts have been made to conduct targeted assessments of those individuals to determine if hours can be met through other category types based on that data?
   2. If this data is available, where is the analysis that was conducted against said data?
2. How will the waiver exception effort impact the current workload of CSB personnel who will simultaneously be managing re-authorizations?
   1. This increased workload will be shared by current service facilitators who have their roles being eliminated at the same time. How will that attrition impact the exception submission process?
3. How will the risks to the health, safety and wellbeing of recipients during the exemption and/or appeal process be mitigated?
4. Phase 4 includes language stating the following: "...individuals will not lose their current CD attendant, no new F/EA enrollment paperwork will need to be completed and that the individuals current service authorization as developed by the Service Facilitator with an additional 90 days added to ensure time for support broker to perform a face-to-face visit.”  
   1. This in direct conflict with the implementation plan outlined in Phase 3