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.
• 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

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.

12VAC30-122-90. Waiting list; criteria; slot assignment; emergency access; reserve slots.

• C.1.a. – Following care for the individual   add “a primary care giver who is 70 years of age or greater”. While we recognize that the age criterion was removed during the “redesign,” we feel that the impact has been significant on older families. It also limits the family’s ability to assist their adult children to make life decisions before it is an emergency.

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.

• A.2. refers to the standardized test as “DMAS approved” while the 2016 version of the regulations refers to the test as “DBHDS” approved.  Please clarify which agency must approve the test, describe the process of approval, and include a list of approved standardized tests and resources for providers. 
• C5. The orientation is a knowledge-based assessment, while the competencies are both knowledge and action based. On many of the competencies, you are required to assess action and knowledge. Where I have found the deficiencies to be is in the action part of the competencies. Therefore, retaking the orientation test is not a valid way of training for action. Having statewide readily available online training tools for the competencies from department would be helpful. 
• 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.

12VAC30-122-200. 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.
• Recommend the addition of  “Individuals who are older  than 72 years of age shall be assessed using either the SIS or an alternative instrument (alternative instrument or instruments to be named in the regulations).” 
• 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.

12VAC30-122-310 - Community coaching service.

• A- After barriers add “or to support an individual’s participation when there is an ongoing barrier to participation” See definition.
• C.3- Strike “This service shall not be provided within a group setting.”  This sentence is not necessary and has the potential the individual from learning how to interact and communicate with others in a community engagement setting – the entire purpose of the service.  Requiring the service to be one-on-one is sufficient.

12VAC30-122-320 - Community Guide Service. (reserved);

• This service is now available (Medicaid Memo Sept. 4, 2018).  It should be included in the final DD Waiver regulations out for public comment.

12VAC30-122-380 - Group Day Service.

• B.1. Support the addition of the following that are included in the new CL waiver renewal application but are not currently included in the proposed final regulations:
  • Participation in community volunteer opportunities or education programs;
  • Staff coverage for transportation of the individual between service activity sites. Transportation is included as part of the service.  The provider may be reimbursed for the time spent transporting the individual to community locations as part of the waiver billing
  • Personal types of activities (i.e. assistance with ADLs). These allowable activities are critical for individuals that need them but are not necessarily “skill building”.
  • Allowable activity of “providing safety supports in a variety of community settings”:   This allowable activity is not included in the CL Waiver renewal application.  Further, the CL renewal application includes “personal care types of activities (i.e. assistance with ADLs)” yet this allowable activity is not listed in either these proposed regulations nor in the “2016” version of regulations.  These refer to activities rather than the requirement for skill-building; this phrase offers more flexibility for providers who are spending significant time in personal care than in skill-building.  Consistent language should be included in these proposed regulations.
• C. Add 6.  Recommend annual allocation for Group Day and Community Engagement hours to allow increased flexibility.  Currently, Group Day hours and Community Engagement hours are authorized on a monthly basis with additional estimated “flex hours”.  We recommend that there period of authorization be lengthened to allow more flexibility and consumer choice.  For example, individuals choose whether they want to go out in the community or stay in a center on any given day.  Because of weather or other personal circumstances of the individual, the individual may want to stay in the center more often in the winter and in the community more often in the Spring/Summer/Fall.  Hours could then be drawn from a quarterly, semi-annual or annual “pool” of hours based on their person-centered plan.
• D.5.  Supervision - There is NO reference to Licensing regulations to define “supervisor.” Licensing does not define a “supervisor” but does define a QDDP. The 2016 version of the Waiver regulations included the phrase “or a provider who has documented equivalent experience” to allow providers to substitute experience for a college degree, but this phrase is not included in either the new (2018) Licensing regulations or within the definition of QDDP in these Waiver regulations.  Providers request consistency and clarity within and between regulations when defining QDDP since there are numerous QDDP responsibilities within these regulations.

12VAC30-122-400 - Group and Individual Supported Employment Service.

• Add Employment Services Organizations (ESOs) as qualified providers of Employment & Community Transportation Services.
• Add Employment Services Organizations (ESOs) as qualified providers of Peer Mentor Support Services.
• Add Employment Services Organizations (ESOs) as qualified providers of Community Guide Services.
• A.3.a. – Strike “limited” after but reimbursement shall not. (2nd sentence, 4th line)
• B.1. – Add “and enrolled in school” after for individuals younger than 22 years of age.  Strike “for the individual enrolled in the waiver”.    
• C.3. – Strike “and individual”. Individual SE must be able to be provided in an individual’s home for purposes of self-employment or other individuals that work from home for other employers (telecommuting, etc.)
• C.4. – Strike “service” after employment. Strike “in combination with other day service or residential service” and Change to “concurrently with other waiver services for purposes of job discovery”.  Should read as follows:  “For time limited and service authorized periods (not to exceed 24 hours) individual supported employment service may be provided in combination with  concurrently with other waiver services for purposes of job discovery.”  This revision helps with clarity.
• D.4. – Second paragraph under this Provider Requirements section is duplicative to 400.A.3.b (Service Description) and is not related to Provider Requirements.
• E.1.c. – Sentence needs to be reworked.  “Documentation confirming the individual’s time in service” is for Group Supported Employment (GSE) only.  “Daily note” is only applicable to GSE as well. Strike “daily note” and insert “progress note” to be consistent with other sections and definition of “progress note” in Section 122-20.
• E.1.f. - Sentence needs to be reworked.  Should read “Documentation that indicates the date, type of service rendered, and the number of hours provided, including specific timeframe.  An attendance log or similar document shall be maintained for Group Supported Employment”.  An attendance log or similar document is not required for ISE since the individual is competitively employed.
• E.1.i. – After group, Insert “for Group Supported Employment”.

12VAC30-122-460 - Personal assistance service.

• A.3. – Add “Personal Assistance can be provided simultaneously with supported employment services and can be billed concurrently”.  The provision currently states that an additional component of personal assistance services is to aid and supports to individuals in the work place, with the final sentence stating, “Work related personal assistance service shall not duplicate supported employment service.” The addition of the suggested sentence at the end of this section clarifies that both can be provided at the same time and that they are distinctly different services.
• A.4- Change to “in all DD waivers”.  As previously stated, it is unclear why this service is not available in the BI waiver.  Individuals in the BI waiver are more likely individuals with physical developmental disabilities who may require personal assistance services in order to live independently in their homes.  PA services can be critical to this population.
• C.7.a & b.- Strike “Companion” Add “Personal Assistance”.  This is a typographical error.

12VAC30-122-570 - Workplace Assistance Service (12VAC30-122-570).

• B.4. – Add (e) at the end of the lettered list which adds “Phone, media and in-person contacts with a Job Coach” as an allowable/billable activity. There may be times when a workplace assistant may need to consult with the individual’s job coach in order to meet the needs of the individual and to ensure consistency of strategies to support the individual to be successful in the workplace.
• D.3. – Providers of Workplace Assistance that are CARF accredited employment vendors of DARS satisfy staff competency requirements for Workplace Assistance Services. 
• Recommend that Workplace Assistance Services be added to the BI Waiver as individuals on this Waiver may have health and/or safety monitoring needs in a place of employment.