12VAC30-122-390 includes  language which appears to be a substantive addition and revision since the publication of this section in the “proposed stage.”  The language restricts the number of licensed beds in a setting reimbursed for group home residential to 6 (six) or fewer.  We do not support large congregate settings, however, we are mindful that the level of support needed by individuals in any size home is dependent on many factors out of the immediate control of the provider.  Those factors include;

• the reimbursement rates paid by Medicaid which are directly controlled by the General Assembly

• wage or benefit mandates imposed by law or regulation that drive costs higher

• other inflationary factors including housing costs, insurance costs or utility costs

Providers have experienced years of rate stagnation while trying to accommodate the rising costs – the only remedy  has been to increase the number of operating beds in the home  to gain some economy of scale – the only  alternative is to close the home and remove an option for community living.  Since 1990, the Code of Virginia at §15.2-2291 has supported Group Homes of 8 beds of fewer by classifying them as “single family residences.”  To impose a regulatory limit that is more restrictive is both short-sighted and unnecessary. 

The rate structure, which makes smaller homes financially more practical,  has brought down the number of people living in a home  as it was intended to do, without imposing a top limit. 

Therefore, based on the fact that imposing a restriction which limits a provider’s ability to conduct business in “final” regulations and limiting the opportunity for comment by affected parties:

• will pose a potential threat to the entities which are the subject of the regulation

• in a substantive change from the previous version of the regulation, and

• is likely not necessary to achieve the goal of reducing the size of Group Home Residential settings in the long term

We object to the inclusion of this provision as a substantive change not previously reviewed as part of public comment, however, recognize that requesting further opportunity for comment is unlikely to change the outcome.  We will strongly request modifications of the language in the Manual to mitigate the most damaging impact.

12VAC30-122-390 includes language that restricts the number of licensed beds in group home residential to six (6) or fewer.  CRi does not support large congregate settings. We have made a concerted effort over the past few years to reduce the number of individuals who reside in homes operated and supported by CRi.  However, we are mindful that the level of support needed by individuals who reside in these homes is dependent on many factors one which impacted by reimbursement rates paid by Medicaid which are controlled by the General Assembly.  Reimbursement rates have been stagnant for many years and the only remedy for providers has been to increase the number of operating beds in the home to gain some type of economy of scale.  The current Code of Virginia classifies group homes of eight (8) beds or fewer as single family residences. 

CRi does not support the inclusion of this provision.  We strongly urge modification of the language in the Manual. 

Region 2 Developmental Services (DS) Directors appreciate the opportunity to comment on the Waiver regulations and recognize the tremendous amount of work DMAS has invested in the updates.  We are requesting reconsideration of two timeline components for slot assignment notification and acceptance defined in 12VAC-30-122-80.  The two components are listed below: 

1. The support coordinator shall notify the individual and family/caregiver of slot availability and available services within the offered waiver within 7 calendar days of the waiver slot assignment date.
2. The individual/caregiver will confirm acceptance or declination of the slot within 15 calendar days of notification of slot availability.

Some of the challenges of implementation of the regulations as stated for each of these components are outlined below.

A.  The support coordinator shall notify the individual and family/caregiver of slot availability and available services within the offered waiver within 7 calendar days of the waiver slot assignment date.

The proposed timeline of 7 calendar days does not provide CSBs adequate time for the administrative activities that must occur for individual/caregiver notification.  Once slots are assigned CSBs, must go in and review the information and manually fix errors.  Additionally, the slots are often assigned in large groups, with between 40-150 slots at one time.  After the CSB is notified the slot has been assigned and reviewed the list for errors, a support coordinator is assigned to initially begin working with the individual/caregiver.  Then a packet of information is developed to share with the individual/caregiver to ensure appropriate information is provided.  This process takes time and 7 days does not sufficiently give time for the CSBs to complete the tasks.  We would recommend (1) at least 15 business days are allotted for individual/caregiver notification after the waiver slot is assigned.   (2) A process by which CSBs can request more time for notification if needed. 

B.  The individual/caregiver will confirm acceptance or declination of the slot within 15 calendar days of notification of slot availability.

In our experience, individuals/caregivers often require more than 15 days to accept/deny.  Individuals/caregivers have questions and concerns they want addressed as they make the decision.  The Priority 1 criteria states that individuals/caregivers agree to accept the waiver services within 30 days.  We recommend individual/caregiver be provided 30 calendar days to confirm acceptance or declination of the slot once notified of availability. 

Additionally, we request information on how the Support Coordinator/CSB are to proceed if the individual/caregiver has not made a decision within the specified time period.  What are the responsibilities of the CSB/Support Coordinator and what appeal information needs to be provided to individual/caregiver?

Thank you for your consideration of our recommendations and requests outlined above.  We are happy to provide additional information and can be reached by contacting, Lisa Snider, our Region 2 DS council chair, at lisa.snider@loudoun.gov.

on C 5b. Initital requests can only be authorized for 180 days: 

There are times when it takes up to a month for ISARs to be approved. This can be even longer if the ISAR is pended (we can't start a service until final approval, so being able to bill retroactively does not help). In addition, if the staff or family has not been fully cooperative and we do not get data forms or they miss appointments, this causes another delay. Please keep authorizations at one year (or the duration of the ISP year).

On C. 5c, plans will be submitted with baseline data and quarterly data: There are many times we do not receive any data and other times we receive only partial data. At times, progress is anecdotal or evidenced by lack of emergency or crisis. For example, we may not received data but the person receiving the service has not been referred to emergency services or REACH centers. Please consider changing this to data or reports by staff and family. 

1. Request to bill in 15 minute increments for accuracy
2. Provide examples of “in-kind” paperwork. We have always treated contact notes, quarterlies, and disposition summaries as “in-kind” paperwork. However, now that graphs are required in the quarterly, would this make it a billable activity? I include graphs in quarterly reports, but never previously billed.
3. Is DMAS saying behavior support plans are required within 6 months opening the service? If so, what exceptions are made for extensive hospitalizations, change in providers, illness, delay from parent or group home provider in setting up meetings?
4. If I begin services on 4/1 and the ISP ends on 4/30 (due to SC ISP ending), then do I request services end on 4/30 and then request the additional 5 months OR can I request 6 months on 4/1? If it is the latter, then will PA’s know if this change?

Fairfax- Falls Church CSB agrees and supports all other comments to the date additionally to the below:

1. 12VAC-30-122-80

1. The support coordinator shall notify the individual and family/caregiver of slot availability and available services within the offered waiver within 7 calendar days of the waiver slot assignment date.

The proposed timeline of 7 calendar days as defined in A does not provide CSBs adequate time for the administrative activities that must occur for individual/caregiver notification.  Once slots are assigned CSBs, must go in and review the information and manually fix errors.  Additionally, the slots are often assigned in large groups, with between 40-150 slots at one time.  After the CSB is notified the slot has been assigned and reviewed the list for errors, a support coordinator is assigned to initially begin working with the individual/caregiver.  Then a packet of information is developed to share with the individual/caregiver to ensure appropriate information is provided.  This process takes time and 7 days does not sufficiently give time for the CSBs to complete the tasks. 

Recommend :

? requesting reconsideration of the timeline components for slot assignment notification:  

? at least 15 business days are allotted for individual/caregiver notification after the waiver slot is assigned.  

 ?A process by which CSBs can request more time for notification if needed. 

2. The individual/caregiver will confirm acceptance or declination of the slot within 15 calendar days of notification of slot availability.

Individuals/caregivers often require more than 15 days to accept/deny.  Individuals/caregivers have questions and concerns they want addressed as they make the decision.  The Priority 1 criteria states that individuals/caregivers agree to accept the waiver services within 30 days.

Recommend:

?  reconsideration of the timeline components for slot acceptance.

?individual/caregiver be provided 30 calendar days to confirm acceptance or declination of the slot once notified of availability. 

 ?requesting to add  information on how the Support Coordinator/CSB are to proceed if the individual/caregiver has not made a decision within the specified time period.  What are the responsibilities of the CSB/Support Coordinator and what appeal information needs to be provided to individual/caregiver?

2. 12VAC30-122-20 Definitions

“Progress notes” iii is signed and dated on the day described supports were provided.

The adjusted regulatory language requires that the provider complete all documentation on the same day of service which places an additional administrative burden on the staff, potentially limiting the number of services provided each day, reducing flexibility with services to adjust to the individual need. Recommend:

?Allow at least 24 hours to input the documentation of the service provision.

3. 12VAC-122-390 Group Home Residential Services in section D. Provider qualifications and requirements – number 1 states that “Provider shall meet the following requirements and references reg 12VAC30-122-110 through 140”.   In section D. number 4. Provider shall ensure that staff providing the group home residential services meet provider training and competency requirements specified in 12VAC30-122-180.

Recommend:  

?Include links that will direct to the mentioned regulations.

4. 12VAC30-50-440; 12VAC30-122-190  and thru the content of the Manual

Recommend:

?   Define  90 days i.e., calendar or business days.

5. 12VAC30-122-30

The content is referring to the Elderly or Disabled with Consumer Direction and the Technology Assisted waiver

Recommend:

?  Update language- both Waivers are not currently available.

6. 12VAC30-122-190 C 1

Recommend:

? Define “quarterly” and include 30 days grace period for its completion by the Support Coordinator.

7. 12VAC30-122-190 C 2 a

Recommend:

? clarify “Risk Assessment” and change the wording to the Risk Awareness Tool as currently the Risk Assessment is only completed with SIS completion and not during the annual person- center plan review. 

The Board offers the following recommendations to improve and clarify the DD Waiver regulations, organized by regulatory citation.  The comments focus on 1) Instances in which the Town Hall Regulatory Background Document: Appendix A states that the change/edit was made but the regulations don't reflect the change, 2) Identified errors in the regulations, and 3) Comments on the service Peer Mentor Supports.

12VAC30-122-20. Definitions

1. Service Authorization. The Board recommends deleting the word “medically.” While DD waiver services are all Medicaid-funded services, not all services authorized or funded under the waiver are medical in nature, e.g., ordered by a physician (e.g., employment, community engagement, etc.). Services are developed in accordance with the person-centered plan.

Comment: Response indicates change was made, but the regulations do not reflect the change.

12VAC30-122-120 Provider Requirements

2. Subdivision A 5: The Board recommends removing the term “medically necessary” since the key to the plan is to provide person-centered services. The provision would begin as follows: “Provide medically necessary services and supplies for individuals in accordance with the ISP….”

Comment: Response indicates change was made, but the regulations do not reflect the change.

12VAC30-122-150. Requirements for consumer-directed model of service delivery

3. Subdivision A 2a: The Board recommends modifying the second sentence of this subdivision to state, “If an individual is unable or unwilling to direct his own care or is younger than 18 years of age, he may designate another person older than 18 years of age to serve as the employer of record (EOR) on his behalf.” Individuals who are capable of, but unwilling to, direct their own care should also be allowed to designate an EOR if desired.

Comment: Response indicates change was made, but the regulations do not reflect the change.

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

4. Subsection D: The Board recommends striking this subsection, which 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. In light of 2019 General Assembly budget language which prohibits the implementation of supports package unless specifically authorized by the General Assembly, this section is not necessary.

Comment: Response indicates change was made, but the regulations do not reflect the change.

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

5. Subdivision C 4: The Board recommends striking the word “service” after employment, and striking “in combination with other day service or residential service” and revising to “concurrently with other waiver services for purposes of job discovery.” The sentence would 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 day service or residential services for purposes of job discovery.” This revision helps with clarity.

Comment: Response indicates Edits were made, but change is not reflected in regulations.

12VAC 122-500 Service facilitation service

6. Subdivisions B 3, B 4, and B 8: The Board recommends changes that would ensure that these subdivisions, which address face-to-face meetings between the individual and the service facilitator, be consistent with one another. Subdivision B 3 states that face-to-face meetings shall occur between the service facilitator and the individual at least every six months. However, Subdivisions B 4 and B 8 refer to quarterly routine visits. The Board recommends every six months per Subdivision B 3, unless the individual requires or requests more frequent contact.

Comment: Response indicates Edits were made, but change is not reflected in regulations.

12VAC30-122-90 Waiting List 

7. 12VAC30-122-90 Waiting list; criteria; slot assignment; emergency access; reserve slots. E.3. 3. ] The individual who has the highest need as designated by the committee shall be recommended for the available waiver slot. DBHDS shall make the final determination for slot assignment [and to the most appropriate waiver to address the assessed needs of the individual. FIS slots will be offered unless the individual demonstrates an immediate need for sponsored residential, group home residential, or support living which are only offered in the CL waiver ]. 

Comment: Supported living is available in the FIS waiver.

12VAC30-122-120 Provider Requirements

8. 12VAC30-122-120 Provider requirements [ 8. 10. ] Submit reimbursement claims to DMAS for the provision of covered services and supplies for individuals in amounts not to exceed the provider's usual and customary charges to the general public and accept as payment in full the amount established by the DMAS payment methodology from the individual's authorization date for that waiver service. 

Comment: Should read services and supports.

12VAC30-122-450 Peer support service

9. Subdivision D 2: During the comment period for the proposed regulations, this section was reserved, for this reason, comment has been taken on this service. 

The Board recommends allowing this service to be provided virtually. Requiring this service be “provided face-to-face” is unnecessarily limiting. During the past year, we've learned a lot about the benefits of virtual and tele-health options that people with disabilities have experienced. Allowing a virtual option would also mitigate barriers such as transportation and better support statewide availability.

The Board recommends broadening the qualifications for a peer mentor to include competitive integrated employment, or demonstrated leadership abilities and activities. A peer mentor could be a person who chooses to live with their family, is competitively employed and actively involved in the community with a robust social life.  Requiring a peer mentor to have "Lived independently in the community for one year" is overly restrictive.  The Board recommends modifying as follows: “Peer mentor supports shall be provided by an individual with a developmental disability who has lived independently in the community for at least one year, or has been competively employed for at least one year, or has been in a leadership role in a community or other organization demonstrating self-advocacy and leadership skills and is or has been a recipient of services, including to publicly-funded housing, Medicaid waiver services, work incentives, and supported employment.”

On behalf of SpringHealth Behavioral Health and Integrated Care, I write to recommend allowing associate level clinicians to provider services under 12VAC30-122-550 Therapeutic Consultation.

At SpringHealth we specialize in providing professional behavioral and intervention services for youth and adults diagnosed with Intellectual and Developmental Disabilities (IDD), Autism Spectrum Disorder (ASD), and mental illness. One of our greatest challenges to ensuring those that require services and supports receive them is recruiting licensed clinicians to provide services to adults with IDD, even more so in rural parts of the state.  One way to address our workforce challenge and to ensure access for clients in rural areas of Virginia would be to allow associate level clinicians to provider services under Therapeutic Consultation.   

Allowing associate level clinicians such as LMHP-RP, LMHP-S, LMHP-R, as well those seeking their BCBA / BCaBA, to provide services under Therapeutic Consultation would also be consistent with Community Mental Health Services under the Medicaid State Plan such as behavior therapy, mental health skill building, and intensive in-home supports, to name a few.  This would assist with addressing workforce challenges and shortages and afford level clinicians the opportunity to gain experience working with adults. 

Additionally, I would concur with the other comments submitted regarding billing in 15-minute units for Therapeutic Consultation, as this change would standardize billing for providers who offer and bill for multiple services. 

I appreciate your consideration of my comments. 

Sincerely,

Michelle L. Willingham MS MHA BCBA LBA - V

State Director Virginia

For reference, below are the associated administrative codes: 

18VAC115-60-10

18VAC115-20-10

18VAC125-20-10

18VAC140-20-10

Comment:  There is no guidance for appealing the SIS score. 

Comment – Community Engagement would also benefit from customized rates for people who need 1:1 staffing. 

16 Hours of work & 8 Hours of equal work Should NOT pay the SAME

Regulatory reliance on “a day” as the sole reimbursement unit in group home and sponsored placement residential settings establishes this standard and will be significantly harmful to the fundamental principle of equity, individuals served in those settings and small businesses.

1. The proposed regulations establish “a day” as the unit of service for reimbursement for group homes in 12 VAC 30 – 122 – 390 – C1 and for sponsored residential placements in 12 VAC 30 – 122 – 530 – C1, while creating a 24 hour a day service obligation for each service. This provision treats all days across individuals in the services as equal.
2. All residential service days across individuals are not equal. Significant variance will occur based on individual choices and preferences as regards employment and other day support options.

1. Many individuals will choose to avail themselves of day support opportunities which can result in some of them being absent from the home for 7 to 8 hours per day 5 days per week with others choosing programs that entail fewer hours and/or days per week. The Burns and Associates analysis in the Public Comments and Response document dated 4/23/15 – # 44, provided their official guesstimate of 26.1 hours per week in day/work programs for individuals who chose this option (this underestimates the actual time the person is outside the residential setting with these programs as it typically excludes the travel and transition time involved). Even assuming this number is accurate an individual who avails themselves of day support/work will be absent from the home (during prime support hours when they would be awake and active) for 56.55 full 24 hour days per year which represents 169.65 (8 hour shifts) where residential provider does not have to provide staffing nor supports.
2. Some individuals most of whom have prior experience with a range of day/work support options will choose not to avail themselves of day/work support opportunities and will receive plan services in the home on a continuous 24 hour basis. While there are a variety of reasons why an individual may not choose to be out of their home in a structured program during the day (retired, homebody by nature), many of these individuals choose not to avail themselves of outside day/work support opportunities because they have a strong individual preference for the staff and supports they receive in the home. Again, it is important to note that the additional hours they remain in the home are prime support hours where the individual is awake and active and any good residential provider is providing community integration, recreational/leisure, social and other plan supports consistently during these hours to individuals who remain in the home with no difference from the supports they could receive in a day support program. By choosing to allow the residential provider to meet their support needs during the day the individual is able to avoid the regimentation (set travel hours, set lunch times, set activities/schedules etc.) that is necessary and typical in structured day support programs and has much more flexibility in collaboratively achieving the community integration and other support activities they prefer to engage in if they remain in the home.

Clearly, from a residential provider perspective “a day” of support and services for an individual who chooses to be in a day/work support program and an individual who chooses not to is not equal; as the need for staffing, travel and support provision is significantly different.

3. The regulatory requirement that the “day” of these 2 individuals be treated equally for residential reimbursement is significantly harmful to the fundamental principle of equity the regulations seek to establish, individuals who receive residential waiver services and uniquely to small businesses.

1. Gross violations to the principle of equity do occur now at 2 levels:

1. Individuals served in residential programs – the SIS users manual on page 94 clearly establishes that a fundamental principle of equity to be served is that individuals with the same level of need receive the same level of funding; this is reiterated as a purpose for the regulatory changes in the introduction to the changes in the Virginia Register of Regulations 2/4/19 which claims “the same level of spending for individuals with the same level of needs” to provide for “more equitable resource distribution”. Treating the day of individuals who decline structured day/work support programs outside the home as equal to a day for those individuals who do avail themselves of these daytime opportunities creates a clear violation of the intended goal as the individual who avails themselves of daytime opportunities outside the home will receive additional funding for that day when they engage, while the individual who stays home will not receive that additional funding even though they have the exact same level of support needs. Thus, individuals with the exact same level of support needs will receive significantly different daily funding from the state; representing a gross substantial disparity each plan year; merely because they chose to exercise their right to receive their services when, where and from the provider they preferred.
2. Residential providers – treating the day of the 2 different individuals in this circumstance as equal can result in reimbursing 16 hours of awake and active supports and 8 hours of awake and active supports equally when they clearly are not – 16 hours of work should pay more than 8 hours of work; on an annual basis even using the States low guestimate this represents almost 2 months of 24 hour days on inequitably compensated work-an outrage.

2. Individuals receiving residential services are devalued and their rights are being denied at this moment due to the emergency implementation of these changes. The state devalues individuals by telling them that their day (and hence they) are not worth as much if they choose to stay home; literal as well as figurative devaluing. Ironically, the introductory defense of the regulations in the Virginia Registry of Regulations 2/4/19 makes the claim that these changes “provides compliance with the CMS final rule” when in fact they create a perverse direct financial incentive to promote direct violation of their HCBS – CMS final rule rights in areas that range from their free choice of providers/ services and most importantly to their right to have control over their daily schedules. A significant number of providers (based on statements made by them at various multi provider trainings and individual served statements of their experience) directly tell individuals served in their residential programs that they cannot call out or simply choose to stay home from their day/work program, others are less open about the restriction but engage in significant “persuasion” to assure that the individuals do sign up for out of the home programs and go, some may also make acceptance into a program conditional on engaging in a day program outside; I doubt that I am aware of all the ways that some residential providers are restricting an individual’s choice as to their daily routine as regards outside of the home day program but these abuses are occurring now on a daily and routine basis. Several of the examples I am aware of directly used these regulations as the reason they could not/would not have staffing available. The financial incentive to providers to restrict individual choices is magnified when the residential provider is also the provider of the day/work support program as the current structure allows them to “double dip” into the state coffers receiving full reimbursement for the day of residential supports and additional funds for the day of work/day supports; creating an even larger financial incentive. Whether these practices are recognized/deemed important or not by the state – no one can deny given the analysis above that residential providers have a clear and perverse financial incentive to ensure individuals receiving residential services sign up for and leave the home to attend day/work programs. Since the State relies on financial incentives to achieve its other purposes how can they possibly deny that this financial incentive will create this perverse purpose.
3. Very small businesses which focus on providing exceptional residential supports are particularly disadvantaged by equal treatment of unequal days. Large bureaucratic organizations have the economies of scale, physical infrastructure and administrative hierarchy that allows him to engage in “double dipping” and as such are unlikely to protest this provision. However, very small businesses focused exclusively on residential supports have been precluded from “double dipping” by onerous licensing requirements for separate offices, staff and other barriers unless they want to become larger and more bureaucratic organizations; resulting in them shouldering the burden of unequal days with no opportunity to recoup losses. Even if these very small businesses could more easily engage in “double dipping” this would merely mean a proliferation of inbred work/day support programs that would reduce the range of providers and experiences an individual is likely to encounter; thus, reducing the advantage of separate residential and work/day programs promoted by residential only providers.

4. Preemptively, because the State does not provide any opportunity for direct rejoinder to whatever their response is to this criticism, it is important to note the same criticisms were made in 2014 in response to the Burns and Associates rate proposals. As is typical of bureaucratic/ political responses the specific equity, perverse incentives and small business criticisms provided here were not directly addressed in their response, rather they combine these comments with a number of others about per diem’s and set up a specious “straw man” argument they can easily address on reimbursement adequacy by pointing out that the rate structure did provide for 24 hour coverage for everyone in these residential settings and then offering support documentation and staffing flexibility as advantages of their per diem approach. Even if true this response has absolutely nothing to do with criticisms provided here the same inequity is created, the same rights are violated and very small businesses focused solely on exceptional residential supports remain uniquely disadvantaged; as The only way to meet the cost is to lower overall payroll compensation which then makes the small firm less competitive with other providers and employer types.  More importantly the response is now empirically disproven as many double dippers claimed the rate was to low for full coverage in the Richmond times dispatch, when they lost double dipping to corona virus closures.

Recommendation – the unit of service for residential programs should be bifurcated into 2 units of service each a per diem but with one representing individuals who choose to participate in a work/day support program outside the home and the other representing individuals who choose not to participate in a work/day program outside the home. Individuals who choose not to participate in a program outside the home should receive a higher reimbursement rate that would bring their reimbursement rate in line with the total daily funding of the other individuals who demonstrate the exact same level of need but do participate in outside work/day programs. This approach would retain all of the benefits claimed for the per diem by Burns and Associates while mitigating the harmful impacts. While logistics of working out an exact amount may be difficult due to the variables involved, the State seems to trust Burns and Associates and they are clearly capable given their past work of calculating the averages and variables and arriving at some defensible figure which even if it were not a direct one for one equalization in every individual case would at least mitigate the gross inequities, violation of individual rights and disadvantaging very small businesses that are occurring right now under this current structure.

The QDDP definition does not address the inadequacy of prior definitions and the requirement in 122-390-D5 only includes by regulatory reference the language “Experience may be substituted for the educational requirement.” This final sentence adds an entire class of individuals to the regulations without providing any clarity whatsoever as to their title, roles, rights and privileges. The guidance document for determining functional equivalency provided some standards but was wholly inadequate by itself for the effective identification, verification and use of this class of individuals – functional equivalents. Overreliance, on this single sentence in the regulations has had a negative impact on utilization of this class of individuals.

1) Devalues an entire class of individuals who have demonstrated exemplary professional performance in serving this role. The current regulation permits the existence of functionally equivalent individuals without any direct recognition (title) or inclusion in the regulatory rights/privileges implied for QDDP’s (holding a license, independently operating a home, training/supervision at upper levels etc.). Individuals in this class, who have clearly met the standard and are performing the function well, are reminded daily when they sign off on paperwork and are unable to know what letters to include after their name to meet the requirement/current vogue for establishing their bona fides on each document. These individuals also find themselves in a regulatory limbo as to what duties they can legitimately perform, as the areas required in the guidance document for establishing functional equivalency appear far broader than the regulatory inclusion (or maybe not, really no way to know). This regulatory limbo is destructive to the morale of individuals who fulfill this function, excessively limits their career advancement opportunities and represents a basic unfairness to the individual who is dedicated a lifetime of work to serving individuals in the population.
2) Disincentivizes the development and utilization of functional equivalents. The current regulation permits the existence of functional equivalent individuals but provides no verification process that would formalize the acceptability of and Individual in that role. Licensing agents will not review the material that establishes equivalency and/or provide written verification that an individual has been determined to meet the standard and neither they nor the department can point you to anyone who will verify that an individual meets the standard. As a result, the Individual and the provider can never be sure if the individuals work product will actually be acceptable to the state, since there are no objective standards nor verification process, any one individual can retroactively be declared unqualified by the state and all of the work/billing they’ve been responsible for disallowed. This regulatory limbo provides a clear barrier to providers investing in the development of functional equivalents. Additionally, this factor coupled with the regulatory limbo for acceptable roles for the functional equivalent incentivizes underutilization of individuals who have developed the knowledge, skills and abilities on their own through decades of experience, limiting the utility of a potentially significant staff resource.

Both individually and collectively these factors significantly hinder the interest in and development of this potentially valuable staff resource and makes the use of functional equivalents much less prevalent in the current service environment.

Reduced utilization of functional equivalents has negative impacts on the employee class, service quality and business operations that fall disproportionately on small businesses.

1) Individuals in the functional equivalency class of employees are treated unfairly. Remember here that we are talking about individuals who through decades of service, training and experience have empirically verified their ability to demonstrate and implement all of the knowledge, skills and abilities required of a QDDP in the provision of their services. However, the system devalues their contribution, creates barriers to professional growth and prohibits them from obtaining the recognition they duly deserve; seemingly dismissing all the hard work they endured to achieve the status and making it an apparent dead-end.
2) Exacerbates the staffing crisis reducing overall service quality. Service quality is impacted in 2 ways 1st – the quality of the overall labor pool is reduced; by dis-incentivizing the use of functional equivalents these individuals are excluded from inclusion in the available supervisory labor pool up front and over the long-term quality employees will leave our services in search of employment that recognizes and rewards their empirical knowledge, skills and abilities (they have lots of options for this). Underutilization of functional equivalents also inflates the wages that have to be dedicated to supervisory staff, as a result of college graduates seeking/feeling entitled to a more significant wage, which directly draws from the overall allocation to wages in the organizational budget and results in lower wages for all DSPs making the direct service positions less attractive to quality individuals. 2nd – overreliance on college graduates reduces service quality –individuals with college degrees who we can hire at the currently low pay rates are seldom if ever superior to the individual with decades of experience and given the wages that we can pay these positions are frequently filled by new graduates or existing graduates who exhibit frequent job hopping, both of which introduce significant turnover in these vital roles undermining the familiarity, stability and continuity of services for individuals served. The use of new graduates is particularly problematic when they are put in charge of DSPs with years of experience, generating resentment among seasoned DSPs who believe that you can’t lead the charge unless you’ve been in the trenches; resulting in decreased morale, supervisory dismissiveness and tensions, all of which impact negatively on service quality. Even more problematic is when the season DSP has to perform roles/functions for the individual with the new or existing college degree, because they simply lack the understanding that can only be gained from years of experience with the population and in providing the services and all of these concerns become significantly exacerbated; decreasing service quality.
3) Business operations, particularly that of small businesses are significantly hampered by a labor shortage/crisis. At the simplest level, forcing reliance on college graduates significantly increases the labor cost for that position, which is a cost that will fall disproportionately on small businesses because they lack the economies of scale, double dipping and multiple career paths that are enjoyed by large bureaucratic businesses. Additionally, the inability to identify and hire qualified college graduates particularly in rural areas has become a significant constraint on our ability to maintain much less expand service provision in the Commonwealth. Reduction in the regulatory disincentives to the development of functional equivalent individuals to fill these vital roles would significantly increase the availability of qualified supervisory personnel who could help fill a significant labor shortage in our field. The refusal of the state to include cost-of-living adjustments and/or regularly scheduled rate refurbishments in the regulations, ensure that the labor crisis in our services will only get worse as inflation and more competitive wages elsewhere draw individuals away from our agencies and the state disincentivizing the development of this potential labor pool makes the crisis more acute; ignoring a potentially significant source of relief.

Recommendation: recognize these individuals formally in the regulation by providing them a title (suggest QDDP functional equivalent), provide a regulatory mechanism which permits verification of their status by DBHDS and recognize regulatory rights for the individual who has achieved that status (i.e. qualifies to hold a license, preform all QDDP functions explicit or implicit for that service and establishes equivalency by regulation).

550.B.2.i - Telehealth and phone options for visits to be permanent.

COMMENT:  YAY!! Thank you for this!  Telehealth has allowed us to be able to connect with those we are supporting much more frequently and effectively! Love this change.

550.C.5.a,b,and c - Initial SARs will be approved for only 180 days after which point a new SAR will need to be submitted with accompanying documentation including baseline Data.  Annual renewals will need to have an annual summary of quarterly data.

COMMENT:  Though we understand that the purpose is to assure that plans are meeting the expectation of content, resubmission of a plan for support at 180 will cause delays in continuation of services.  In multiple areas of Virginia, we are unable to receive approval for a Plan for Support for a plan renewal in less than 60 days.  If it is pended, it will be delayed longer.  In addition, initial PFSs will often take 60 to 90 days for authorization.  In these cases, we cannot start services until they are approved which is 3 months into the requested plan time and we will have only 3 months of data or information to submit.  Followed by further delays in Plan renewal authorization at the 180 day end-date.   

We request the removal of the 180 day resubmission requirement and request that the accompanying documentation be required for annual renewal.  

550.E.e.(1)and(2) - quarterlies must include graphs and charts 

COMMENT:  We request that this be modified to  read that quarterlies must include summary of progress which may include charts and graphs.

PBSFs rely on team participation for data collection. Surveys within the PBSF community rate data collection as the #1 barrier to plan completion and site that data is often not completed at all or is completed incorrectly. PBSFs often have to resort to record reviews of alternative documentation that the residential provider uses internally, direct observation during visits/telehealth, and anecdotal reports to measure progress and response to interventions.  Broadening the scope of this requirement to include a summary of progress will allow for presentation of data as it is available and will afford the PBSF opportunity to document on the quarterly the barriers with obtaining proper data so the team can measure progress with team participation.  In addition, it will avoid delay of services to the individual due to pending of authorization by PA when the charts and graphs do not look a particular way.

Peaceable Life Therapeutic Services, Inc. would like to advocate that LPCs and LCSWs who are endorsed to provide Positive Behavioral Supports are able to bill at the highest rate along with “Therapist and BCBAs” as follows: 

97139 Therapeutic Consultation, Therapists/Behavior Analysts/Rehab. Engineers

LPCs and LCSWs who provide Therapeutic Consultation for behavior supports are restricted to billing under 97530 as "other professionals" because we are not considered as qualified to provide Therapeutic Behavioral Consultation as a BA. 

Licensed Professional Counselors are masters level licensed professionals, completing 4000 supervised clinical hours with 200 direct supervision hours under an LPC.  Likewise, LCSWs are masters level licensed professionals, completing 3000 supervised clinical hours with 100 direct supervision hours under an LCSW. In addition to clinical experience, LPC or LCSW with endorsement as a PBSF holds specialized training in evidenced based behavioral support.

Our state struggles to provide quality mental health support to individuals with Developmental Disabilities that also have comorbid conditions related to mental health. In addition to being able to provide interventions for behavioral needs and address behavioral emergencies, PBSFs who are LPCs and LCSWs are uniquely able to integrate resources and strategies related to diagnosed mental health disorders which are contributing to the behavioral needs of the individual as well as evidence based behavioral strategies for behavioral support. 

LPCs and LCSWs holding endorsement as a PBSF offer a specialized level of professional qualification to meet highly complex behavioral and mental health comorbid needs and should be able to bill accordingly.

Mcos reduce much needed attendant supports under the false flag not medically neccessary ,the ycollect on diagnosis and complexity and than cut services, My 8 year old boy with mestastic ewings sarcoma in leg and lungs whom had limb salvage surgery, chemo, radiation and still in a cast from his hip to his toes due to complications .Has a gtube  continous feedings and medi port in chest , lots of meds non wieght bearing , Incontinent of B?B ,wheelchair bound due to complications is developmentally delayed Global , ID and autism had attendant care hours reduced in the middle of covid,19  Skilled care nursing via epdst could not be found and it was also reduced, Anthem healthkeepers is at it again, Take mcos out of equation and let medicaid dmas decide needs and hours ,  Enough is enough i pay tax I vote and im done with lip service.

Regarding quarterlies must include data collection -  graphs and charts data - in this reference to data - Person Centered Thinking tools also include data as well. Also direct instructional strategies collect  baseline/intervention data and could also include progress through prompt levels or other measures for replacement skills. Permanent products are another source of data that can illustrate the progress of objectives that could be related to bx challenges being supported by positive behavior support facilitation.

1. Very pleased to see that telehealth / telephonic services will continue! This is a great change and much needed.
2. Please consider changing the unit of service to 15 minute increments for improved accuracy. At a minimum, please provide specific guidance on how to bill in 1 hour units when services are often less than or more than 1 hour.
3. Consider changing the 180 day limit on initial SAs to annual.
4. Clarify quarterly report due dates. Do the dates align with the ISP or when TC services were approved and started?
5. Clarify "in-kind paperwork" please. The addition of specific requirements for quarterly reports to include graphed data, etc. (which I support), it should be billable.
6. Will the SIS be made available via WaMS if it is a requirement that TC providers have a copy of this? If not, would the TC provider's assessment, which should be "age-appropriate" suffice?

Staff Requirements:

• Concerned that DD Support Coordinator and Supervisor are positions of critical importance and it is difficult to recruit and retain qualified staff.  Standards must be high but not prohibitive.
  • Under section 12VAC30-50-490  Support coordination/case management for individuals with developmental disabilities, recommend
    
    • Modify the supervisor requirement from two years of experience to one year of experience to allow for a broader qualified applicant pool

DD Support Coordination:

• Concerned that definition of DD Support Coordination is too narrow to allow for providers to serve everyone in need of this support.
  • Definition of services currently states that services will be provided for Medicaid-eligible individuals with developmental disability or related conditions who are on the DD waivers waiting list or enrolled in one of the HCBS services. 
    • Recommend allowing services to be provided for Medicaid-eligible individuals with DD or related conditions even if they are not currently on the wait list or enrolled in services.  Often these individuals need and can benefit from support coordination and struggle to enroll in services without assistance.

Target Group Definition:

• Concerned that the definition of the Target Group is not clear.
  • It would be very helpful to have a definition of ID and DD regarding eligibility for services.
  • Request clarification regarding what documents are acceptable for a DD diagnosis as approved by DMAS.  For example, is an encounter note from a physician that lists a diagnosis sufficient?

VIDES requirement

• Concerned that the regulations suggest a VIDES is required annually for those on the waitlist; this would be labor intensive and time consuming for these hundreds of individuals.
  • Under section 12VAC30-122-50 Criteria for all individuals seeking Developmental Disability Waivers services, the following is stated:  Individuals qualifying for the DD Waivers services shall meet the level-of-care provided in an ICF/IID  [ as set forth in the VIDES ] and shall demonstrate this need at least annually consistent with 42 CFR 441.302.  [ This is demonstrated by having significant functional limitations in major life activities, as documented on their Virginia Individual Developmental Disabilities Eligibility Survey (VIDES) forms

• • • Recommend the VIDES is not be required to be completed annually for those on the waitlist.
    • If VIDES are required annually, funding will be need to allow for the significant increase in work and staffing to accomplish the task, suggest utilizing a shorter assessment.

• Waiver Population – recommend to update terminology
  • EDCD waiver is now CCC+ Waiver

12VAC30-122-390 - Group home – 6 bed max on group homes. 

COMMENT:  Family Sharing, Inc.  recognizes that residential settings of 6 or fewer beds are the preference for community based services, however, we support comments posted by VNPP which acknowledges  "Providers have experienced years of rate stagnation while trying to accommodate the rising costs – the only remedy  has been to increase the number of operating beds in the home  to gain some economy of scale – the only  alternative is to close the home and remove an option for community living.  Since 1990, the Code of Virginia at §15.2-2291 has supported Group Homes of 8 beds of fewer by classifying them as “single family residences.”  To impose a regulatory limit that is more restrictive is both short-sighted and unnecessary.”

12VAC30-122-200 Support Intensity Scale

200.2.a. 4 years between SIS assessments for ages 22 and over.

COMMENT:  Family Sharing, Inc. feels that this distance of time between assessments is detrimental to assuring proper care of the person receiving supports.  Currently, requests for re-evaluation are limited and difficult to obtain approval, even when there have been changes to medical or behavioral needs. 

Family Sharing requests that the time frame remain 3 years.  Should the 4 year span remain, Family Sharing requests that reassessments due to changes be made easier and allowances be made for appeal of results when the team does not feel the level reflects need.

200.B.2. Notations of exceptional medical/behavioral needs will be investigated and may or may not lead to obtaining the exceptional level of services.

COMMENT:  Family Sharing expresses concern about the lack of transparency in the scoring of SIS assessments and how the levels are determined.  In all other assessments and evaluations, scores are shared with the person being assessed along with a determination summary.  Since adopting SIS scoring for rate setting, scoring and interpretation has changed multiple times without transparency. 

Family Sharing requests the following:
- scoring and determination criteria be posted,

- justification of any reduction in level or tier be sent to the individual,

- and an avenue for appeal be provided to the individual who wishes to appeal the determination, as is the right of all service recipients related to their diagnosis and treatment assessing and planning. 

370.7. Environmental Modification

COMMENT:  Environmental Modification Services be allowed for sponsored residential services and group homes in cases in which a person has been living in the home for a lengthy period of time without the need for such modifications and has had a significant change in medical status or mobility/accessibility.  It would be a hardship for the individual to be moved to another home that has the needed access, leaving their in place support structure.  For many people who have lived in a location for years, they view that as their home, and rightly so.  They should not be forced to move because the  state refuses to support the person in their home.

390.D.1.e. For the annual review and every time supporting documentation is updated, the supporting documentation shall be reviewed with the individual or family/caregiver, as appropriate, and such review shall be documented. 

COMMENT:  Family Sharing requests clarification -how must “review” of documentation be documented.  What supporting documentation must be reviewed?

460.C.3. Personal Assistance clarification –  Individuals may receive a combination of personal assistance service, respite service, [ companion, ] and in-home support service as documented in their ISPs but shall not simultaneously receive in-home supports service, personal assistance service, or respite service.

COMMENT:  Family Sharing would like clarification – as it is written, it seems that PA can be provided simultaneously with companion

530.C.1. Residential service limit to 344 days per ISP

COMMENT:  Family Sharing requests a re-evaluation of the number of allowable days of billing per year, as 21 days is an excessive number of non-service days for the great majority of people in sponsored residential services who do not have family members to visit or have other avenues of support for this amount of time.   Care providers must continue to provide 24-hour services during this time as well as pay for additional DSPs. 

Therapeutic Consultation 12VAC30-122-550

550.B.2.i - Telehealth and phone options for visits to be permanent.

COMMENT:  Thank you for this!  Telehealth has allowed us to be able to connect with those we are supporting much more frequently and effectively! Love this change.

550.C.5.a,b,and c - Initial SARs will be approved for only 180 days after which point a new SAR will need to be submitted with accompanying documentation including baseline Data.  Annual renewals will need to have an annual summary of quarterly data.

COMMENT:  Though we understand that the purpose is to assure that plans are meeting the expectation of content, resubmission of a plan for support at 180 will cause delays in continuation of services.  In multiple areas of Virginia, we are unable to receive approval for a Plan for Support for a plan renewal in less than 60 days.  If it is pended, it will be delayed longer.  In addition, initial PFSs will often take 60 to 90 days for authorization.  In these cases, we cannot start services until they are approved which is 3 months into the requested plan time and we will have only 3 months of data or information to submit.  Followed by further delays in Plan renewal authorization at the 180 day end-date.   

We request the removal of the 180 day resubmission requirement and request that the accompanying documentation be required for annual renewal.  

550.E.e.(1)and(2) - quarterlies must include graphs and charts 

COMMENT:  We request that this be modified to  read that quarterlies must include summary of progress which may include charts and graphs.

PBSFs rely on team participation for data collection. Surveys within the PBSF community rate data collection as the #1 barrier to plan completion and site that data is often not completed at all or is completed incorrectly. PBSFs often have to resort to record reviews of alternative documentation that the residential provider uses internally, direct observation during visits/telehealth, and anecdotal reports to measure progress and response to interventions.  Broadening the scope of this requirement to include a summary of progress will allow for presentation of data as it is available and will afford the PBSF opportunity to document on the quarterly the barriers with obtaining proper data so the team can measure progress with team participation.  In addition, it will avoid delay of services to the individual due to pending of authorization by PA when the charts and graphs do not look a particular way.

In addition, Family Sharing would like to advocate that LPCs and LCSWs who are endorsed to provide Positive Behavioral Supports are able to bill at the highest rate along with “Therapist and BCBAs” as follows: 

97139 Therapeutic Consultation, Therapists/Behavior Analysts/Rehab. Engineers

LPCs and LCSWs who provide Therapeutic Consultation for behavior supports are restricted to billing under 97530 as "other professionals" because we are not considered as qualified to provide Therapeutic Behavioral Consultation as a BA. 

Licensed Professional Counselors are masters level licensed professionals, completing 4000 supervised clinical hours with 200 direct supervision hours under an LPC.  Likewise, LCSWs are masters level licensed professionals, completing 3000 supervised clinical hours with 100 direct supervision hours under an LCSW. In addition to clinical experience, LPC or LCSW with endorsement as a PBSF holds specialized training in evidenced based behavioral support.

Our state struggles to provide quality mental health support to individuals with Developmental Disabilities that also have co-morbid conditions related to mental health. In addition to being able to provide interventions for behavioral needs and address behavioral emergencies, PBSFs who are LPCs and LCSWs are uniquely able to integrate resources and strategies related to diagnosed mental health disorders which are contributing to the behavioral needs of the individual as well as evidence based behavioral strategies for behavioral support. 

LPCs and LCSWs holding endorsement as a PBSF offer a specialized level of professional qualification to meet highly complex behavioral and mental health co-morbid needs and should be able to bill accordingly.

There are many people working as QIDPs with or without degrees that have years and a wealth of experience that is needed to enhance the quality of lives of people with disabilites.  Cumalative years of experience are invaluable and if these regulations are passed it will greatly limit the industry and those it serves. 

The SIS assessments often need updating sooner than the current 3yr requirement, and seeking approval for a re-assessment is challenging and rarely successful. Switching to every 4 yrs will only had more hardships. Many times those we serve have significant health and/or behavioral changes more frequently than that.

Reconsideration is requested for this, as 344 max is rarely reasonable for most we serve.

Providers are providing, often intense, care for all 365 days a year in many cases. Limiting the billable days to 344 is detrimental to the ability to find and retain well qualified and experienced providers.

The Virginia Sponsored Residential Provider Group (VaSRPG) is a collaboration of 30 agencies throughout Virginia who provide Sponsored Residential Services with an active membership of 75 participants.  VaSRGP is grateful for the opportunity to respond as a group to recent guidance documents for Direct Support Professional and Direct Support Professional Supervisor competencies and appreciates the consideration of our feedback.  For any questions related to this document, you may contact either of the following members: 

Meneika Chandler, Family Sharing, Inc., familysharingmlc@gmail.com, 540-414-4561

John Weatherspoon, Wall Residences, JWeatherspoon@wallresidences.com, 540-250-8928

VaSRPG would like to put forth the following comments on guidance documents related to Proposed Changes for Waiver Regulations for DD services

12VAC30-122-390 - Group home – 6 bed max on group homes. 

COMMENT:  VaSRPG recognizes that residential settings of 6 or fewer beds are the preference for community based services, however, we support comments posted by VNPP which acknowledges ”Providers have experienced years of rate stagnation while trying to accommodate the rising costs – the only remedy  has been to increase the number of operating beds in the home  to gain some economy of scale – the only  alternative is to close the home and remove an option for community living.  Since 1990, the Code of Virginia at §15.2-2291 has supported Group Homes of 8 beds of fewer by classifying them as ‘single family residences.’  To impose a regulatory limit that is more restrictive is both short-sighted and unnecessary.”

12VAC30-122-200 Support Intensity Scale

200.2.a. 4 years between SIS assessments for ages 22 and over.

COMMENT:  VaSRPG feels that this distance of time between assessments is detrimental to assuring proper care of individual.  Currently, requests for re-evaluation are limited and difficult to obtain approval, even when there have been changes to medical or behavioral needs. 

VaSRPG requests that the time frame remain 3 years.  Should the 4 year span remain, VaSRPG request that requesting reassessment due to changes be made easier and allowances be make for appeal of results when the team does not feel the level reflects need.

200.B.2. Notations of exceptional medical/behavioral needs will be investigated and may or may not lead to obtaining the exceptional level of services.

COMMENT:  VaSRPG expresses concern about the lack of transparency in the scoring of SIS assessments and how the levels are determined.  In all other assessments and evaluations, scores are shared with the person being assessed along with determination summary.  Since adopting SIS scoring for rate setting, scoring and interpretation has changed multiple times without transparency. 

VaSRPG requests the following:
- scoring and determination criteria be posted,

- justification of any reduction in level or tier be sent to the individual,

- and an avenue for appeal be provided to the individual who wishes to appeal the determination, as is the right of all service recipients related to their diagnosis and treatment assessing and planning. 

370.7. Environmental Modification

COMMENT:  VaSRPG requests that Environmental Modification Services be allowed for sponsored residential services and group homes in cases in which a person has been living in the home for a lengthy period of time without the need for such modifications and has had a significant change in medical status or mobility/accessibility and it would be a hardship for the individual to be moved to another home that has the needed accommodations available.

390.D.1.e. For the annual review and every time supporting documentation is updated, the supporting documentation shall be reviewed with the individual or family/caregiver, as appropriate, and such review shall be documented. 

COMMENT:  VaSRPG requests clarification -how must “review” of documentation be documented

460.C.3. Personal Assistance clarification –  Individuals may receive a combination of personal assistance service, respite service, [ companion, ] and in-home support service as documented in their ISPs but shall not simultaneously receive in-home supports service, personal assistance service, or respite service.

COMMENT:  VaSRPG would like clarification – as it is written, it seems that PA can be provided simultaneously with companion

530.C.1. Residential service limit to 344 days per ISP

COMMENT:  VaSRPG requests a re-evaluation of the number of allowable days of billing per year, as 21 days is an excessive number of non-service days for the great majority of people in Residential services who do not have family members who are able to take them home for visits.  Care providers must continue to provide services during this time as well as pay for additional DSPs and relief staff, though they are unable to receive reimbursement for those non-billable days.  Additionally, assurances that a full year of funds are encapsulated in the 344 days of approved services fails to reflect the additional costs to providers brought on by many of the other regulatory changes such as loss of environmental modifications, risk management and quality improvement requirements, and competency requirements. 

550.B.2.i - Therapeutic Consultation - Telehealth and phone options for visits to be permanent.

COMMENT:  Thank you for this!  Telehealth has allowed us to be able to connect with those we are supporting much more frequently and effectively! Love this change.

550.C.5.a,b,and c - Initial SARs will be approved for only 180 days after which point a new SAR will need to be submitted with accompanying documentation including baseline Data.  Annual renewals will need to have an annual summary of quarterly data.

COMMENT:  Though we understand that the purpose is to assure that plans are meeting the expectation of content, resubmission of a plan for support at 180 will cause delays in continuation of services.  In multiple areas of Virginia, we are unable to receive approval for a Plan for Support on a plan renewal in less than 60 days.  If it is pended, it will be delayed longer.  In addition, initial PFSs will often take 60 to 90 days for authorization.  In these cases, we cannot start services until they are approved which is 3 months into the requested plan time and we will have only 3 months of data or information to submit.  Followed by further delays in Plan renewal authorization at the 180 day end-date.   

We request the removal of the 180 day resubmission requirement and request that the accompanying documentation be required for annual renewal.  

550.E.e.(1)and(2) - quarterlies must include graphs and charts 

COMMENT:  We request that this be modified to read that quarterlies must include summary of progress which may include charts and graphs.

PBSFs rely on team participation for data collection. Surveys within the PBSF community rate data collection as the #1 barrier to plan completion and cite that data is often not completed at all or is completed incorrectly. PBSFs often have to resort to record reviews of alternative documentation that the residential provider uses internally, direct observation during visits/telehealth, and anecdotal reports to measure progress and response to interventions.  Broadening the scope of this requirement to include a summary of progress will allow for presentation of data as it is available and will afford the PBSF opportunity to document on the quarterly the barriers with obtaining proper data so the team can measure progress with team participation.  In addition, it will avoid delay of services to the individual due to pending of authorization by PA when the charts and graphs do not look a particular way.

In addition, VaSRPG would like to advocate that LPCs and LCSWs who are endorsed to provide Positive Behavioral Supports are able to bill at the highest rate along with “Therapist and BCBAs” as follows: 

97139 Therapeutic Consultation, Therapists/Behavior Analysts/Rehab. Engineers

LPCs and LCSWs who provide Therapeutic Consultation for behavior supports are restricted to billing under 97530 as "other professionals" because we are not considered as qualified to provide Therapeutic Behavioral Consultation as a BA. 

Licensed Professional Counselors are Master’s level licensed professionals, completing 4000 supervised clinical hours with 200 direct supervision hours under an LPC.  Likewise, LCSWs are Master’s level licensed professionals, completing 3000 supervised clinical hours with 100 direct supervision hours under an LCSW. In addition to clinical experience, LPC or LCSW with endorsement as a PBSF holds specialized training in evidenced based behavioral support.

Our state struggles to provide quality mental health support to individuals with Developmental Disabilities that also have comorbid conditions related to mental health. In addition to being able to provide interventions for behavioral needs and address behavioral emergencies, PBSFs who are LPCs and LCSWs are uniquely able to integrate resources and strategies related to diagnosed mental health disorders which are contributing to the behavioral needs of the individual as well as evidence based behavioral strategies for behavioral support. 

LPCs and LCSWs holding endorsement as a PBSF offer a specialized level of professional qualification to meet highly complex behavioral and mental health comorbid needs and should be able to bill accordingly.

It is widely known that the support needs of the individuals served in our waivered programs can change quickly.  The current span of three years between SIS assessments is often not adequately meeting the need for timely re-evaluation of support needs, so moving this to four years feels like we are moving in the wrong direction.  Requests for re-evaluation in accordance with the approved criteria are difficult to obtain, even when the changes to medical/behavioral supports are significant and long-term.  Appeals are currently only allowable to the process itself and are not accepted when the team does not feel that the results of the assessment accurately reflect the needs of the individual.  

We would advocate against increasing the time span between SIS assessments to four years.  Additionally, the process for requesting re-evaluation as support needs change and the appeal process should revamped to ensure that the individuals served are able to receive proper supports, in accordance with the accurate level and tier.  

It is widely known that the support needs of the individuals served in our waivered programs can change quickly.  The current span of three years between SIS assessments is often not adequately meeting the need for timely re-evaluation of support needs, so moving this to four years feels like we are moving in the wrong direction.  Requests for re-evaluation in accordance with the approved criteria are difficult to obtain, even when the changes to medical/behavioral supports are significant and long-term.  Appeals are currently only allowable to the process itself and are not accepted when the team does not feel that the results of the assessment accurately reflect the needs of the individual.  

We would advocate against increasing the time span between SIS assessments to four years.  Additionally, the process for requesting re-evaluation as support needs change and the appeal process should revamped to ensure that the individuals served are able to receive proper supports, in accordance with the accurate level and tier.

Comments Specific to 12VAC30-122-550 Therapeutic consultation 

The unit of service shall be one hour.

Comment: change to 15 minute units for accuracy and quality assurance.

Therapeutic consultation shall not be billed solely for purposes of monitoring the individual.

Comment: Please define “monitoring.”  We were recently pended and engaged in an extensive back-and-forth discussion with Lead PA Consultant due to different interpretations of “monitoring.”  Behavior Analysis requires extensive data collection throughout the development and implementation of the Behavior Support Plan.  Once a BSP is developed, it should be considered fluid, as changes are continually made based on direct data analysis. Data collected after the development of the plan should not be considered monitoring, until the individual has reached discharge criteria.  

Travel time [ , and ] written preparation [ , and telephone communication ] shall be considered as in-kind expenses within therapeutic consultation service and shall not be reimbursed as separate items.

Comment: Please define written preparation as an in-kind expense. What documentation does this include and not include?

The need for this service shall be based on the individual's ISP and shall be provided to an individual for whom specialized consultation is clinically necessary. Therapeutic consultation service may be provided in individuals' homes and in appropriate community settings, such as licensed or approved homes or day support programs, as long as they are intended to facilitate implementation of individuals' desired outcomes as identified in their ISP.

Comment: We have encountered situations where individuals require crisis stabilization and/or hospitalization after Therapeutic Consultation services have been authorized.  In these situations, it is necessary for us to provide therapeutic consultation services in conjunction with these crisis stabilization services in order to support the individual in successfully transitioning back into residential services.  Please include that Therapeutic Consultation may be provided in conjunction with crisis stabilization (either in hospital or crisis stabilization unit). 

Initial SARs will be approved for only 180 days after which point a new SAR will need to be submitted with accompanying documentation including baseline Data.  Annual renewals will need to have an annual summary of quarterly data.

Re-submission of authorization requests after 180 days can and will cause delays in services. 

Telehealth

Comment: Please continue to allow telehealth and phone sessions, as this has allowed us to provide services to many individuals and their teams that would not otherwise have been able to receive services (either due to health concerns or location).

The unit of service shall be one hour.

Comment: change to 15 minute units for accuracy and quality assurance.

Therapeutic consultation shall not be billed solely for purposes of monitoring the individual.

Comment: Please define “monitoring.”  We were recently pended and engaged in an extensive back-and-forth discussion with Lead PA Consultant due to different interpretations of “monitoring.”  Behavior Analysis requires extensive data collection throughout the development and implementation of the Behavior Support Plan.  Once a BSP is developed, it should be considered fluid, as changes are continually made based on direct data analysis. Data collected after the development of the plan should not be considered monitoring, until the individual has reached discharge criteria.  

Travel time [ , and ] written preparation [ , and telephone communication ] shall be considered as in-kind expenses within therapeutic consultation service and shall not be reimbursed as separate items.

Comment: Please define written preparation as an in-kind expense. What documentation does this include and not include?

The need for this service shall be based on the individual's ISP and shall be provided to an individual for whom specialized consultation is clinically necessary. Therapeutic consultation service may be provided in individuals' homes and in appropriate community settings, such as licensed or approved homes or day support programs, as long as they are intended to facilitate implementation of individuals' desired outcomes as identified in their ISP.

Comment: We have encountered situations where individuals require crisis stabilization and/or hospitalization after Therapeutic Consultation services have been authorized.  In these situations, it is necessary for us to provide therapeutic consultation services in conjunction with these crisis stabilization services in order to support the individual in successfully transitioning back into residential services.  Please include that Therapeutic Consultation may be provided in conjunction with crisis stabilization (either in hospital or crisis stabilization unit). 

Initial SARs will be approved for only 180 days after which point a new SAR will need to be submitted with accompanying documentation including baseline Data.  Annual renewals will need to have an annual summary of quarterly data.

Re-submission of authorization requests after 180 days can and will cause delays in services. 

Telehealth

Comment: Please continue to allow telehealth and phone sessions, as this has allowed us to provide services to many individuals and their teams that would not otherwise have been able to receive services (either due to health concerns or location).

Why is information about Tiers and Levels being removed?  It is unclear if the supplemental questions will be the determining factor for an individuals tier and level, and if so, what standards are being applied.  Additionally, the fall risk would not be a valid indicator of the intensity of supports a person requires, because it does not capture preventative supports for falling; it is only scored if an individual has actually fallen which may have occurred for a number of reasons. 

Limiting payment for services rendered to 344 days per year instead of 365 is not an accurate reflection of the service needs of people in sponsored residential and group home services.  Most in my agency do not go on regular or extended home visits (if any), and many hospital stays do not last 21 days.  The assumption that people in services have somewhere else to go, and are out of services three weeks in a year, needs to be re-evaluated based on current data.

Please add language to allow a Nurse Practitioner, in addition to a physician, to order Skilled Nursing services under Waiver for a person in services.  Many people in services rely on rural health clinics or residencies that employ a limited number of physicians and are primarily staffed by nurse practitioners.  Most residents with complex medical needs in my agency have nurse practitioners assigned as their primary medical care providers, and the NPs are most familiar and attentive to their situations, diagnoses, and health care requirements.  Having to wait for physician signatures on skilled nursing service orders (as requested by PA consultants at times) has created delays in obtaining these documents, as MDs in rural clinics often work part time or contractually.  This may create problems obtaining community-based nursing care for vulnerable individuals who need it.

Please assure to remove language in #6 about room and board for sponsored residential services not being a component of the service, which is not consistent with group home standards.  Alternately, clarification could be made that room and board is not billed to Medicaid for sponsored residential services.

Section 12 VAC 30 – 122 – 200 requires the use of the SIS and provides some specific requirements for use of the scores generated by that instrument; unfortunately, it does not provide specific regulatory requirements for the implementation of the SIS and overly limits the areas to be considered when applying the results of the instrument.

1. Positive Role of the SIS users manual – All of the accolades showered on the SIS by those promoting this regulation (“proven valid and reliable”, “norm referenced”, “nationally tested”, “multidimensional”, “scientifically proven”, “replicated in peer-reviewed journals”… Etc.) are only true for the SIS approach outlined in the Supports Intensity Scale User Manual published by aaidd. The key role of the users manual in generating these accolades was identified as a strength of the SIS by Y. Viriyangkura, in his 2013 work Understanding the support needs of people with intellectual disability and related developmental disability through cluster analysis and factor analysis of statewide data (page 66); “the SIS users manual provides detailed instructions and case studies on how to administer the measurement. When assessors understand how to conduct the SIS the quality of the information from the scale is likely to increase.” The Department of Health and Human Services guidelines for Responsible Conduct in Data Management; “prevention (i.e., forestalling problems with data collection)… is best demonstrated by the standardization of protocol developed in a comprehensive and detailed procedures manual for data collection. Poorly written manuals increase the risk of failing to identify problems and errors….” These same guidelines indicate that “regardless of the discipline, comprehensive documentation of the collection process before during and after the activity is essential to preserving data integrity.” Clearly, adherence to the users manual, specifically for the SIS and which was used in all the claimed replications is an essential aspect of all of the positive accolades being repetitively showered on the SIS.
2. Implementation of the SIS in Virginia is not consistent with the user manual – since introduction to Virginia, the scoring sheet and instructions which are provided to respondents to be used during the administration of the SIS have deviated significantly from the scoring instructions in the user manual. Stark evidence of this fact is clearly printed as a disclaimer at the bottom of each scoring sheet “the material contained herein does not constitute a change in SIS scoring metric and is not part of the system users manual”. This statement is correct in that the scoring metric is not part of the user manual; however, the statement that it does not constitute a change in the scoring metric needs more clarity. While the change statement may be true if only referencing changes made since the instrument was introduced to Virginia, it definitely is not true if that statement is meant to declare that the SIS scoring metric identified in the user manual has not been changed. In fact, the SIS scoring metric identified in the users manual and the use of SIS scores to establish levels of support need have been significantly changed by the implementation practices being used in Virginia (see below). These significant changes render suspect the extension of all the accolades showered on the SIS to the Virginia system because the lack of a standard approach to measurement instruments guarantees the proven results of one are not transferable to the other: B. Rammstedt in the Journal Measurement Instruments for the Social Sciences 2019 (page 2) states that “measurement instruments are the central tools to acquire sound scientifically based knowledge… Requiring at least a standardized approach to collecting information and integrating survey responses or other participant data, before making inferences at the construct level and quantifying individual differences.

The amount of skepticism that should be directed towards the Virginia system for implementation of the SIS based on this analysis is significant; as there are clear inconsistencies between the Virginia system and the tested system in the users manual. Interestingly, all have the impact of lowering an individual score:

1. The Virginia system implements a “dominant activity” approach to scoring type of support when multiple support types are used in any one activity. However, the user manual is very clear in providing instruction that the highest type of support not the dominant type should be used in in the appropriate scoring metric – page 76 “the highest rating of the different types of support needed should be recorded in the case where multiple supports are needed” it states elsewhere page 25 “each activity should be rated according to what dimensions of support are needed to promote participation of the person in successfully completing all aspects of the activity” and finally it provides a direct instruction in the area where the dominant activity approach is abused page 75 “when another person is needed to complete a function or task in place of the individual this should be rated full physical assistance.” Thus, individual scores generated by the dominant activity approach will frequently be lower than scores generated by following the tested user manual.
2. The Virginia system violates their own dominant activity standard to further lower individual scores. While the threshold for a higher rating for type of support in the users manual is clear (any inclusion of a support type to successfully complete a function results in the higher rating); the Virginia system provides a 180° reversal from this standard to impose a similar threshold to consistently lower the scores of individuals. Specifically, when full physical assistance is clearly the dominant activity for the successful completion of a function, the State system utilizes any contribution no matter how minuscule in the completion of the function by the individual as a reason not to record the dominant activity but the next lower score. Examples abound from actual SIS assessments in areas such as: library use where every aspect of successfully finding a book in the library required full physical assistance, but the assessor lowered the score to partial if the individual could indicate a subject area (i.e. animals); banking again dominated by full physical assistance in accounting/check writing, but the assessor lowered the score to partial if the Individual could physically hand the check over to the teller or doctor’s appointments where full physical was required for scheduling, reporting and follow thru, but the assessor lowered the score to partial if the Individual could say “sick” to start the process… The examples go on but you get the point – the requirement to score successful completion of all aspects of the activity in the user manual is not being adhered to and the State system has completely reversed the direction of threshold analysis from that in the user manual. As a result, individual scores generated will consistently be significantly lower than scores generated by following the tested user manual.
3. The Virginia system has implemented response restrictions that preclude entering the appropriate score for an individual. Even when the Individual, all respondents and the assessor unanimously agree on a particular score for an item, the computer frequently refuses to accept the entry because of blanket non individualized restrictions placed on the higher scores. No such restriction is identified anywhere in the users manual; creating a clear inconsistency that lowers an individual score in the Virginia system. While the number of restrictions is unclear more of them in more areas continue to appear with each of our new SIS assessments both in the scoring of the domain areas and the Virginia supplemental questions. Since the State has a strict prohibition on the respondents having a pencil and paper to document these restrictions, no one but the State knows the actual number/areas that are negatively impacted. These restrictions generate excessive standardization and can destroy data integrity as reported in The National Academy of science, engineers and medicine workshop summary 2011 (page 10) “standardization can entail the loss of information and too much standardization may make extensive evidence uninformative and misleading.” Since these restrictions have always required the recording of a lower score and never a higher score, individual scores generated will consistently be significantly lower than scores generated by following the tested user manual.
4. The Virginia system for applying the scores to establish levels of support need generated by the SIS assessment required by regulation (12 VAC 30 – 122 – 200 – A4), restrict Virginia to consideration of only 2 of the 3 sections of SIS scores and only allows consideration of half of the elements in the Support Needs Scale section. This approach is clearly not consistent with the user manual which instructs the full use of all sections for establishing an individual’s level of support need. According to E. Drost from California State University in Education Research and Perspectives January 2011 (page 113 – 114), this restriction in the number of items considered can significantly reduce the reliability claimed by an instrument to below acceptable confidence levels. The validity of the SIS instrument is also dependent upon the inclusion of the excluded areas: M. Wehmeyer (et.al.) in the American Journal of Intellectual and Developmental Disabilities January 2009 makes this clear on page 3 and 13 “moreover, scores from different sections of the SIS made unique contributions to explaining variants associated with a variety of support need proxies.… Finally, it is clear that models including both SIS SNI scores and the section 3 medical and behavioral raw scores were stronger predictors than any one section alone and any potential use should involve all of these indicators.” An example of the impact of these restrictions is  the exclusion of lifelong learning – given the regulatory mandate to provide training and outcome progress as the dominant type of support required in services, the necessity of assessing an individual’s ability to learn to determine how much support will be needed in providing this training would appear particularly pertinent to establishing the individuals level of support need in these services, M. Wehmeyer (et.al.) Journal of Special Education Technology April 2012 reports that “across most groups, lifelong learning was the domain in which the highest intensity of support needs was reported”; thus, this exclusion is completely inappropriate for the needs being evaluated and significantly lowers overall individual scores. Similar but different problems exist due to the other exclusions again resulting in mis-evaluation and lower overall scores. The Virginia system of applying the scores generated by the SIS assessment to establish levels of support need increases the systemic risk of having support needs mis-/under evaluated because the individual scores will consistently be significantly lower than the results generated by adherence to the user manual.

The Virginia system for implementing the SIS creates significant, distinct and meaningful differences between the scores and level assignments generated by the Virginia system and those that would be generated using the procedures in the tested users manual. These different results as proven above cannot lay claim to the same degree of accuracy, reliability or validity as the SIS which uses the user manual. In fact, when contacted and directly ask about the dominant activity approach an aaidd representative could not identify any study where the dominant activity approach to scoring had been employed much less one where it was proven accurate, reliable and valid and when pressed stated “perhaps some of the international studies”; likewise the representative was unable to identify any information in the public domain or peer-reviewed articles about the dominant activity approach. Regardless of what the international studies show, B. Rammstedt (citation above page 5) indicates these results are not readily transferable to the Virginia population.

1. The Virginia system for implementing the SIS is an untested, unproven and highly dubious system of data collection and use which the Department of Health and Human Services in their guidelines for Responsible Conduct in Data Management clearly warns against “while the degree of impact from faulty data collection may vary by discipline and the nature of investigation, there is the potential to cause disproportionate harm when these research results are used to support public policy recommendations.”
2. The risk is magnified when you consider that acceptance of the regulation as written would establish a precedent that allows for manipulation of the SIS scoring and use for level assignments that is completely unchecked leading to more egregious abuses in the future. The State (which has a sordid history in this area spending most of the 21^st century as the 49^th worst state for resource availability and requiring federal lawsuits to even care) has openly declared that this system is being used to stretch available resources to cover more individuals; clandestine, denied and unchecked ability to make changes to lower the scores of individuals would provide a mechanism to illegitimately achieve this objective at the expense of the justice and equity for individuals.

Preemptively, because the state provides no opportunity for rejoinder, occasionally state representatives indicated that the instrument is “robust” in response to criticisms; which would be a valid response were it true. However, robustness can be tested comparatively, statistically and empirically but there is absolutely no direct evidence that these verifications for robustness have ever been attempted/completed for the changes implemented by the Virginia system. Additionally, given both the direction and the magnitude of changes from the users manual indicated above, the claim of robustness would fail to even meet the minimal non-statistical requirement for robustness which is provided by T. Plumper and E. Neumayer in their work Robustness Test and Statistical Inference; “most applied scholars even today define robustness through an extreme bounds analysis: a baseline model estimate is robust to plausible alternative model specifications [i.e. Scoring changes] if and only if all estimates have the same direction and are statistically significant.” As the analysis above made painstakingly clear the Virginia system changes the direction in the specifications and any direct statistical comparison between results generated by use of the user manual and the Virginia system would find statistically significant lower scores from the Virginia system; proving that claims of robustness are not applicable to the criticisms in this analysis. Finally, it is important to consider the source aaidd is making millions off of the system by keeping the State customer happy and providing the State the smokescreen of a robustness response without any empirical testing or delineated rationale to support the claim should be greeted with more than a grain of salt.

Recommendations –1^st the State could demonstrate felicity to the model they continually use as a justification for this regulation and implement the SIS with strict adherence to the user manual – 2^nd the State should recognize the existence of changes from the tested/proven user manual and provide a justification, rationale and empirical evidence for the appropriateness of these changes; making adjustments in level assignments as warranted from the information discovered in this analysis and verification of their use of the instrument – 3^rd regulatory protections for individuals subjected to the SIS for determining their level of support needs and hence resources, should be provided directly in the regulation to prohibit any changes in the scoring system that are not verified as appropriate and prevent the implementation of future changes without being subjected to an appropriate system of empirical evaluation and meaningful checks and balances – 4^th the prohibition against the individual and respondents having even a blank paper and pencil should be rescinded to promote the preservation of data integrity which is essential as indicated by the Department of Health and Human Services guidelines for Responsible Conduct in Data Management “regardless of the discipline, comprehensive documentation of the collection process before, during and after the activity is essential to preserving data integrity”; without this change an independent check to preserve data integrity will not be possible.

The State has gone to great lengths to sell the SIS and these regulatory changes by dressing them up in the language of scientific certainty and the cloak of reliability and validity---BUT WHAT WE WERE PROMISED IS NOT WHAT WE GOT.

In 12 VAC 30 – 122 – 200 the regulations set forth the standards for assigning levels to Individuals but in this version have removed the point indicators for objectively assigning the lower levels making the entire process completely nontransparent and preventing any realistic/meaningful double check on the States assignment  compounding the problems with the secret “verification” process for level 6 or 7 (extraordinary medical/behavioral needs) to an individual; however, as written the regulations create confusion about the initial assignment, do not address changes in actual practices for assignment post transition to the SIS – A and fails to provide the transparency that is essential to a basic system of checks and balances that provides protection for individuals who should be assigned to these higher levels of support need. While use of the word “or” (instead of and) in the level assignment criteria table for level 6 and 7 would appear to indicate there are 2 ways to be assigned that level – 1^st having a score on the pertinent questions that is higher than the threshold score and 2^nd submitting relevant category information for a review that establishes the basis for an assignment. However, this interpretation of the plain text would be wrong as the State has adopted nontransparent practices, that are being implemented now, that make the score on the pertinent questions irrelevant to the actual assignment and changes assignment levels regardless of the score based on a nontransparent review.

1. The initial assignment to level 6 and 7 is completely nontransparent. When first introduced there was a clear and transparent standard for the initial assignment of individuals to these levels – simply, if your score on the pertinent questions exceeded the threshold level this is where you were initially assigned. With the transition to the SIS – A, this transparent standard was abandoned and now the initial assessment is based on a “complex algorithm”/ “sophisticated algorithm” according to a representative from DBHDS in a phone conversation. The same representative stated “there is no way a provider could determine a higher level assignment based on the data you are provided”. I would point out that this is also true for the individual, guardians, authorized representatives, support coordinators, case managers and any other individual who would advocate for the individual being evaluated to protect their individual rights. As a result, the algorithm process is completely and totally nontransparent. When asked, there was no information on the assumptions that went into the algorithm, the weighting of factors in the algorithm or even what factors are considered in the algorithm (are they limited to factors in the supplemental questions?) Which indicates a lack of transparency even about the basics of the current approach. Despite the State’s defense of the algorithm as “complex/sophisticated” this is not the same as transparency and the algorithm should not be accepted until it is vetted as Cathy O’Neil Technology writer for Salon states; “there are a lot of different ways that an algorithm can go wrong and what we have now is a system in which we assume because it’s shiny new technology with a mathematical aura that it is perfect and doesn’t require futher vetting. Of course, we never have that assumption with other kinds of technology”. The absence of transparency in the initial assignment precludes the necessary further vetting and creates unknown risk of miss assignment with no recourse.
2. The review verification process for level 6 and 7 assignment lacks transparency. Importantly, note that changes in the review verification practices have changed this review from an option for inclusion in a higher level, to a device for exclusion from higher levels; making transparency essential. Insufficiencies in the transparency of the review process appear before, during and after the actual review. The review process is initiated by a short request for information to verify the score that provides a few examples of possible inclusions; however, there are no criteria for a verification which would indicate areas to be addressed in a verification, there are no standards that would indicate when information is sufficient to provide a verification and no indication of what questions should be addressed in the verification materials…etc. Thus, even before the actual review begins there is no transparency nor objective standards for what the review will entail. I (like other providers I have spoken with) sent in documentation to establish the need for the service, the frequency and type of support need and that the estimated time recorded in the SIS supplemental questions was a significant underestimate of the actual support time spent---only to receive back a statement that said, without explanation, “not verified”. Since the actual review is done in Richmond without other respondents there is no transparency during the review and as the example above indicates there is no transparency for the rationale behind the results of the review after it is completed. Transparency requires disclosure of the rationale behind a “not verified” determination – was there just one piece of paper missing, in what area did the documentation fail to meet the standards, what would meet the standard etc.? The absence of transparency in the review process precludes the necessary further vetting/compliance of the review process and creates known risk of mis-assignment based on technical lapses outside the control of the individual who has no recourse.

The absence of transparency permitted in assigning level 6 and 7 to individuals by these regulations, creates an unequal process that provides power and rights to the government with no equivalent power or rights for the individual to protect them from the government; resulting in unequal treatment, an unfair reduction of resources and the threat of more significant future harm:

1. The nontransparent assignment processes unfairly exploits a procedural imbalance that favors the State over the individual. At the simplest level, the State has given itself the right to appeal a SIS score on the supplemental questions but continues to deny an individual the right to appeal a SIS score on any questions/domains. The State may counter that it’s not an appeal it’s a “verification review” which is a distinction without a difference and provides no rationale for not allowing an individual to initiate a meaningful “verification review” of the scores they find suspect. This process also creates a data evaluation double standard, if the expertise of the trained SIS assessor is good enough for scores the individual can’t appeal why is it not good enough for scores the State wants to appeal; a clear inequity. As indicated in the analysis above, the negative impact of this blatant procedural/data imbalances is magnified by the lack of transparency in the procedures designed to exploit the imbalance.
2. The nontransparent assignment process is being used to deny individuals equitable funding based on their level of support need without any checks, balances or recourse. There is at least one individual in the very small group of individuals I work with who met the old initial criteria of crossing the numerical threshold, had documented every aspect of the claims on the SIS score sheet being reviewed, but was denied this higher-level placement by the nontransparent process. While the exact number of persons who are being denied a higher-level placement under the nontransparent process is unknown, the germane Frequently Asked Questions section of the website had to respond directly to the concerns that individuals were not receiving proper level assignment based on their score under the old transparent system; indicating at the very least this has been a “frequent” occurrence since the change to the nontransparent process. Thus, this nontransparent, unchecked and unbalanced process is being used to reduce the overall budget and the distribution of resources to specific individuals who will be harmed if the change does not represent their true support needs. This should be unacceptable and the presumption should be that the secrecy of the nontransparent process should be viewed highly skeptically as President Woodrow Wilson stated; “we believe it a fair presumption that secrecy means impropriety”.
3. Regulatory acceptance of a nontransparent process for assigning extraordinary levels creates a precedent that all but assures future and more significant abuses. The State has been very open about their desire to use these mechanisms to reduce the amount of funding provided to currently served Individuals to provide funds within the budget to expand the number of individuals served. As proven above, the nontransparent process for assigning extraordinary levels has clearly been employed to accomplish this objective by excluding individuals from the higher levels who met the criteria under the transparent process. The algorithm provides a clear mechanism for pursuing this objective without any responsibility for the results as Cathy O’Neil (previously cited) makes clear; “the major problem with our blind trust in algorithms is that we can propagate discriminatory patterns without acknowledging any kind of intent.” The exact same flaw is created with blind trust in the nontransparent review process. Thus, the lack of transparency in assigning higher levels can be used to accomplish budget objectives regardless of the negative impact on the individual without any checks, balances or recourse. The risk of unfair, inequitable and harmful level assignment will only increase if this lack of transparency is not addressed as Edward Teller states “secrecy once accepted, becomes an addiction”; given the state’s tendency to prioritize budget considerations over the individual this is an addiction the individual can ill afford.

Preemptively, because the State does not provide any opportunity for rejoinder and often sets up “straw man” interpretations of criticisms with simple responses:

1. The burden of proof for the appropriateness of these processes should be on the State not the individual. The State has provided absolutely no rationale whatsoever for the change from the original transparent standard for inclusion, adoption of the algorithm or the nontransparent functioning of the review process. The data provided in the report to the Gen. assembly 10/1/17 indicated that only 13.8% of individuals in the population qualified for the higher levels under the transparent system; given the copious amounts of literature which indicates that the population exhibits a much higher occurrence and degree of extraordinary need in these areas there is no reason to believe that this figure is inflated inappropriately; in fact in that document they declared it as proof the system is working. There is also no clear rationale for the algorithm offered anywhere it just slides in and it’s use creates a grossly unfair data double standard; the appropriate statistical responses to the supplemental questions can be established much more objectively by the assessor generating supplemental question scores than they can be for the much more subjective generation of domain element scores so they should demonstrate more trust in their trained assessors in this area than in the areas where no score appeals are permitted. In fact, there is no rationale for, vetting nor empirical support for use of the algorithm at all. Finally, the State should be required to prove beyond a shadow of a doubt that the level of non-transparency/secrecy they have adopted with these practices is justified and consistent with the principles of good governance.
2. The algorithm is “proprietary”. It may well be, but if so, this would be an argument in favor of not permitting use of the algorithm because it will never be made transparent and as this analysis clearly indicates nontransparent interactions between individuals and their government should not be tolerated, without extreme justification. The use of a nontransparent algorithm eliminates the potential for checks and balances that are essential to the fair and just operation of the government function. Transparency is particularly crucial in this government function where the government reaches into and significantly impacts the daily life of the individual.
3. The number of changes in level assignments has been insignificant. Initially, it is important to remember the analysis above which indicate that the number of changes which resulted in a lower level assignment since adoption of the nontransparent process has been “frequent”. Only the State has access to the actual data again a lack of transparency. The state may attempt to defend their position by pointing to the analysis by C. Stierer and K. Hawkins with DBHDS in their Analysis of Virginia’s Levels System Utilization with the SIS (3/22/18) which indicates the absence of significant changes in levels for individuals with 3.25 or more years between their SIS evaluations, which would presumably include some people assigned to level 6 or 7 under the old transparent system who were reevaluated under the nontransparent system. This defense is inadequate for a variety of reasons – 1^st it does not break out where the level changes occurred and there is no way to separate level 6 or 7 changes from those in other areas which would be necessary to draw the conclusion the state desires; 2^nd the change in the levels between these 2 time frames is negative and identified as statistically significant in figure 1 of the study; 3^rd figure 2of the study probability density, clearly indicates that over 600 people had their level reduced in the comparison of the 2 time frames; this figure would represent over 40% of the individuals who were originally assigned to level 6 or 7 if this is where the dominant change occurred (which is likley); providing evidence of significant progress in pursuing the budgetary objective and significant denials for previously justified higher level assignments; 4^th even if the total number of individuals harmed by the nontransparent process is relatively low this response is inadequate to address the unfair, inequitable and unchecked abuse for even a few individuals receiving services in Virginia.

Recommendations: 1^st – revert to the transparent system with clear score indicators for level assignment and that used the score generated on the supplemental questions to assign individuals to level 6 or 7 whenever that score exceeded the published threshold; this would remove the algorithm, reduce the data double standard and protect the individual from review (except where fraud or deception are suspected) and create balance verses the process that unfairly benefits the government budget concerns at the expense of the individual – if the trained assessors scores have to be trusted unquestionably in all other areas why not in this area that is significantly more easily, accurately and objectively evaluated? 2^nd – correct the structural/systematic imbalance created by giving the State the right to appeal/verify a SIS score on the supplemental questions with a corresponding right for individuals to appeal/verify a SIS score – why is it that what’s good for the goose is not for the gander? 3^rd – require transparency in the assignment of level 6 and 7, this transparency should be required for evaluation of the algorithm and for the review process with identified criteria, standards and written justifications to promote transparency before and after verification reviews. Transparency for these processes would provide important checks on the government and provide records that can be used to stem abuse; as Supreme Court Justice Sandra Day O’Connor stated; “public records are one portal through which the people observe their government ensuring its accountability, integrity and equity while minimizing sovereign mischief and malfeasance”. While these records cannot be made public, transparent provision of records to the individual, guardians, authorized representatives, providers and support coordinators/case managers whom the individual has listed on their Consent to share confidential information form, could be given to these essential advocates and protectors of the individual who would be able to perform the critical function indicated by Justice O’Connor; why should these individuals be denied the tools necessary to perform their function to protect and serve the individuals involved? 4^th – include protections and rights for individuals to assure transparency and provide checks and balances for any future changes in the process for making assignments to level 6 or 7. This will be the only way to correct the abuses that are occurring now and prevent even more egregious abuses from occurring in the future, without these protections in the regulations individuals will never be secure in their ability to assure a proper level assignment and hence their just and equitable share of resources as demonstrated by this quotation from a truly great Virginian Patrick Henry “the liberties of a people never were, nor ever will be, secure when the transactions of their rulers can be concealed from them”. Why not regulatorily require transparency in the level assignment process to secure the individuals rights?

In 12 VAC 30 – 122 – 200, the regulations establish the SIS as the key component for establishing individual support needs and funding levels. The State has placed excessive confidence in the SIS which coupled with a meaningless appeals process places a significant number of individuals receiving waiver services at risk for mis-evaluation of their support needs and hence an unfair reduction in their support resources without any meaningful recourse under the existing system.

1. The SIS score is not settled scientific certainty. For years now state employees with the task of selling the SIS have attempted to give the instrument an air of scientific certainty by reflexively repeating the mantra of “proven reliable and valid” and occasionally throwing in academic reinforcers (“multidimensional”, “comprehensively”, “norm-referenced”, “nationally tested” etc.), whenever a SIS question or concern is raised and used this “certainty” to close any additional discussion. This level of deference to the instrument is sorely misplaced as Notre Dame Professor G. Gutting explains in the 5/17/12 issue of The Stone: “social sciences may be surrounded by the paraphernalia of the natural sciences, such as technical terminology, mathematical equations, empirical data and even carefully designed experiments… [however] most social science research falls far short of the natural sciences standard of controlled experiments… Above all we need to develop a much better sense of the severely limited reliability of social scientific research.” Empirical verification for how skeptically these instruments should be viewed is reported in the 9/24/16 issue of The Economist (pg. 75 – 76), which provides a history and meta-analysis review that finds social science research (especially that which allows the publisher to prosper) has an extremely low rate of statistical power and that replication is “incapable of correcting the situation”. This criticism is directly applicable to the SIS as an instrument as the replication results touted for the SIS are typically apples to oranges comparisons that are insufficient to validate the SIS; Michael Wehmeyer et. Al. Made this clear in The American Journal of Developmental Disability January 2009 (page 12); “First, until there are other widely available indicators of support need, it is difficult to determine the validity of the tool such as the SIS, other than looking at the assessments relationship with and difference from measures of adaptive behavior and tools such as the DDP.” Clearly, as a social science instrument the SIS claim of scientific certainty should be viewed with a great deal of skepticism; however, the state has confidently claimed that the program has been completely successful based on scant evidence that is extremely overly optimistically interpreted. This claim to success can be found in the Virginia Register of Regulations 2/4/19 “an analysis of data and SIS administration procedures highlight that the distribution of support needs levels, while not identical are consistent with the model predictions from 2014… Thus, the waiver redesigned appears to be successful in identifying individual support needs”. This claim should be viewed with serious skepticism; 1^st if the SIS is to be believed then the original HSRI guesstimate was clearly skewed to the downside overestimating the number of individuals in the lowest 2 levels and significantly underestimated the number of individuals in the highest 3 levels making it a flawed basis of comparison; 2^nd the statement “while not identical are consistent” simply strains credulity when compared to the October 1, 2017 report to the Virginia Gen. assembly on the impact of implementing the SIS, which stated that in the area of residential supports the actual distributions matched in only 3 of 7 categories for group homes, 4 of 7 in sponsored residential services and 2 of 7 in supported living services--- how is a match in only 9 of 21 opportunities “consistent”; the results were even worse for day support with only 1 of 7-- making the grand total 10 consistencies in 28 tries – they claim is exposed as farcical. Thus, it should be clear that the use of the SIS should proceed cautiously, with a great deal of skepticism and adequate safeguards to protect the individual during the use of this instrument by the State.
2. Errors in identifying the actual support needs of a specific individual are guaranteed to occur in Virginia. The instrument itself testifies that some percentage of errors will occur and only claims a 95% probability of accuracy at best, openly admitting that some individuals will be mis-evaluated. The way the system is being administered in Virginia serves to increase the number of individuals who will be mis-evaluated in 2 ways: 1^st the SIS is being used for individuals over 72 where the SIS doesn’t even make a claim to reliability or validity and 2^nd the state procedures do not capture the entire 95% accuracy claimed because the 95% accuracy refers to a range of numbers and the State uses the middle number not the highest number in the range thus sacrificing any claim to the full 95% accuracy rate. It is important to note, that these guaranteed errors will occur even when all of the SIS procedures have been strictly adhered to and thus these errors are not subject to the current appeals process. Additionally, the State has adopted procedures/practices that all but assure additional errors will be present in the Commonwealth’s implementation of the SIS; one example, is the prohibition against respondents having any materials with them during the assessment which includes even a blank piece of paper and a pencil to record the agreed-upon rating that is determined during the assessment. This practice assures additional error will creep into the system for 2 reasons: 1^st data entry errors are statistically guaranteed given the large number of entries per person times the number of persons evaluated; however, the restriction prohibits the recording of the numbers to provide a double check once they are reported so the system has 0 controls for the data entry errors which are sure to occur; 2^nd the absence of relevant notes and the pressure for timely completion of the lengthy instrument all but assure lapses in memory and premature moving forward that will result in the respondent not providing all the relevant information in a particular area again resulting in unchecked error. Based on this analysis and the total number of individuals the SIS is being administered to well over 1000 Virginians with developmental disability have been or are at risk of being mis-evaluated and assigned SIS scores in error.
3. The regulations establish a system that is overly reliant on the SIS score for assigning resource levels to individuals. There is a clear consensus in the relevant literature that the SIS score is an insufficient justification for assigning a particular level of resources to an individual. Prof. Michael Wehmeyer et. al. (Citation above) states “one should not expect that the SIS, or any other singular supports assessment instrument, will explain 100% of the variance in funding required to provide these supports.”; an extensive review of the SIS by, Yuwadee Viriyangkura in the Illinois State University theses and dissertations 8/27/13 states that “a funding formula should not be based on a single assessment” and even the authors of the SIS (who are making millions off of it) are very clear in the user manual (page 89) that due to “the complexity of cause-and-effect relationships among support needs, funding levels and outcomes… SIS data will provide only one piece of the puzzle.” While Virginia has included other elements in their funding formula, their limited application and lack of relevance to the individual has created an over/total reliance on the SIS score that all relevant authors agree is extremely poor public policy and will result in mis-identification of needs with unfair denial of resources to individuals. SIS proponents will surely point to the “Virginia supplemental questions” on medical and behavioral needs as a response to this criticism; however, this response should be rejected for several reasons: 1^st – the original SIS which they point to as reliable and valid did include supplemental medical and behavioral sections and even with these all of the authors cited above found it inadequate; again it strains credulity that the simple rewording or addition of items in the Virginia version would be sufficient to address the criticism; 2^nd – the Virginia supplemental questions only figure into the funding formula for an individual if they are found to have “exceptional needs” and are therefore only applicable to individuals in levels 3, 6 and 7 which represents only 18.3% of the total according to the 10/1/2017 report to the Virginia Gen. assembly (cited above) – the result is that 81.7% of all individuals subject to this regulation will have their SIS score be the sole determinant of their assigned level and thus funding tier; there are simply no other inputs at all into the assignment under current practices. It’s possible, some may argue that group home size, type of program and both residential/day reimbursement are also considered in the funding formula; however, these factors are irrelevant to this discussion because it is the level and tier that results from the sole SIS score that dictates the allocation of resources for the individual across all of these other funding elements. Thus, despite warning after warning that sole reliance on the SIS score is poor public policy and will result in the mis-evaluation of the needs and unfair denial of resources to individuals the State has made this a reality for 81.7% of all developmentally disabled Virginians in their programs. One clear example of this concern that has manifest is the one point tier jumpers that move back and forth between a score of 30 and 31 and thus back and forth between tier 2 and tier 3 which has significantly different resource allocation levels, even though there has been no change in the support needs or circumstance of the individual and is likely to change back during the next SIS evaluation; meaning that one of the evaluations is in error, anecdotal evidence would indicate there’s a lot of these but no data could be found one way or the other.
4. The appeals process identified in the regulations is inherently flawed and provides no meaningful recourse to individuals who have been mis-evaluated and/or unfairly denied resources due to their SIS score. The current process only allows appeals based on procedural/process errors and does not permit an appeal of the specific score. As the analysis above clearly indicates even when all of the procedures/processes are strictly adhered to (thus there is no basis for appeal) error, mis-evaluation and wrong scores will be generated and specific individuals will be unfairly denied an equitable allocation of resources with absolutely no recourse whatsoever. Additionally, the practice of prohibiting individuals/respondents from having even a pencil and paper during the assessment precludes them from evaluating whether or not the procedures were followed (without a checklist can you really remember if all of the questions were asked during the two+-hour ordeal) and prohibits them from taking notes to document the procedural error as required by the State to even initiate the appeal; severely restricting the likelihood of successful appeals even when they are warranted. Remember this even precludes the possibility of catching and appealing a direct data entry error which is statistically guaranteed to occur with no recourse for the individual unfairly impacted.
5. Recommendations: 1^st – I concur with other commentators that individuals over 72 years of age (where use of the SIS score is admittedly invalid) should be assigned tier 4; 2^nd – the highest score in the range of scores which have a 95% probability of accuracy should be used in calculating an individual’s SIS score to capture as much of the accuracy of the instrument as possible; 3^rd – a range of additional factors should be used in the calculation of an individual’s level and thus tier, especially for the 81.7% of individuals who do not exhibit extraordinary medical and behavioral needs and thus have their resource level now determined solely by their SIS score; Y. Viriyangkura (citation above) identified a number of States who are using the SIS instrument but have adopted a wide array of additional factors in calculating and assigning resource levels to individuals that address the consensus concern with overreliance on the SIS score, if these states get improved accuracy and error reduction with these procedures why can’t we; 4^th – the State should permit by regulation individuals/respondents to have notes and the ability to document during the actual assessment to provide a check on data entry errors and provide the information necessary to pursue an appeal; 5^th – additional social science instruments should be used in cooperation with the SIS, Julia Harries of the University of Adelaide reported in Supports Needs Assessment of Individuals with Developmental Disability 9/2008 that dual approaches have been shown to improve the capacity of the SIS and indicates they may have utility “when the level of funding derived using a supports needs measure is disputed or results in the individual falling on the cusp of a funding band level”; such an approach may be able to mitigate the indicated concerns without the need for formal appeals; 6^th- provide a meaningful appeals process where an individual is able to directly appeal the SIS score, for logistical purposes this appeal right may need to be limited to individuals where there is only a one point difference that results in tier jumping back and forth but at least this would provide some protection and provide an avenue for redress for individuals in close call situations where error is more likely to have a significant impact.

As is this regulatory set constitutes the State sticking its head in the sand and pretending that there are no SIS errors and based on this willful blindness foreclosing any meaningful avenue of redress for those individuals who are guaranteed to be mis-evaluated and unfairly denied equitable resources based on the States overreliance on the SIS score – this should not be allowed given the significant numbers of individuals who will be impacted this way and the fact that if even just one person is denied justice it harms them and reflects negatively on all of us.

Concur with other comments on new substantive restrictions on group home size inappropriate, need to cover all days in the year at the existing pay rates, SIS inadequacy and competency requirements—all needs to be fixed.

12VAC-30-122-230---Creates the impression that the plan moving forward will be to have all reviews done remotely in B which establishes the requirement to “forward” rather than make available materials needed for the review. While the COVID period may have made remote reviews necessary, they should not be the sole standard moving forward.

The remote review process has been extremely difficult for small providers where the administrative function is typically preformed by 1 individual, who also has a host of other roles. The addition of 75-100 work hours demanded by these reviews often in very limited time frames is an onerous burden that crowds out other duties and undermines quality services. The onsite reviews consistently accomplished the same function in 6-7 work hours and hence lowered the burden to a manageable level, the were also more through and provided a more in depth review of the overall operation making the better on every front.  Continued use of remote review after the pandemic should not be allowed or the regulations should be changed to give special considerations to small businesses in the process as required by VA Law when there is an onerous burden on small companies due to a regulatory change.

12VAC30-50-490

Please provide clarification regarding Section E, subsection 3.

Can a support coordinator have family receiving services at the agency where the SC works, assuming that the support coordinator is not providing support coordination to their own family member or does having a family member served at that agency prevent the agency from hiring that family member as a support coordinator?

12VAC30-122-70

Please provided clarification in Section H. as to whom is responsible for the documentation of annual contact with the individuals on the DD waiver waiting list?  Does DBHDS contact to obtain the choice of home and community based services meet this requirement?

12VAC30-122-80

Section A, B, and C

These time lines are not reasonable to meet, considering the number of waivers that are distributed at one time.    There is no allowance for the number of staff who are working with caseloads at or above capacity that will now have 30 days to contact individuals to inform them of their waiver slot, meet with them that month and start their plan and begin the search for services.   There needs to be allowances for boards who don’t have staff to do this.  Perhaps splitting how many slots are provided at one time to the boards, not all in one allotment would assist.   The lower rate or reimbursement for DD case management, makes it difficult to hire staff prior to distribution of slots to allow for time for the SC to be trained and ready to provide services –before the slots are distributed.

12VAC30-122-90

Please provided clarification regarding Section C. as to how will criteria for assigning slots be met (notification, meeting etc.) be met if the individual is out of the state for three months and receive a slot?

Please provided clarification regarding Section G, subsection 5  when a slot is vacated in one of the DD Waiver due to the death, the slot shall be assigned to the next individual in that CSB’s chronological Queue.      Does this mean that anytime an individual passes away their slot goes to the reserve slot waiting list for that CSB or is it just those that received their current waiver through the reserve slot process? 

12VAC30-122-150

Section 2, subsection e

If the EOR is acting as the service facilitator – who monitors to ensure that they meet all the requirements of a CD service facilitator?

Who writes the service plans?

Who inputs the plans and service authorizations into WAMS if the EOR is the service facilitator?

12VAC30-122-160

Section 2

For involuntary disenrollment of consumer directed services – how would the support coordinator have the information about timesheets that would indicate a serious discrepancy?  What is considered a serious discrepancy? 

Section 3 subsection a

What is the essential training that needs to be provided to the EOR to improve the problem condition?

12VAC30-122-200

Section 2, subsection c and e

Who is responsible for completing “another developmental appropriate standardized living skills assessment approved by DBHDS” for those who did not receive a SIS assessment?

How are these assessments funded?