Overall, there is an impression that some of the information in the proposed regulations is inconsistent.  There is also confusion since emergency regulations, which have already expired, are being replaced so there is a lack of clarity as to dates that changes are effective.  Since some of these changes were recently legislated by the General Assembly, there is even greater confusion when date ranges span fiscal years, calendar years and the previous practice of individualized service plan years (PCP years).  Since these proposals are being reviewed in December, there is a significant amount of confusion and anxiety expressed by recipients and families as to what will be effective in a few weeks, on January 1, 2012.

There is confusion regarding Assistive Technology/Environmental Modification (ATEM) and Respite regulations due to the recent legislative action by the VA General Assembly.  This is further complicated by emergency regulations, which have already expired.  In any case, the question being raised is whether the legislative action taken by the General Assembly to reduce ATEM and Respite Services is accurately described in the proposed regulations.

At the same time that the General Assembly (GA) voted to reduce the maximum annual allotments for ATEM and Respite, there was also a change in the definition of a year from the “PCP year” (the cycle based on the date of the annual consumer plan) to a calendar year for ATEM.  It is our understanding that effective 1/1/2012, DMAS will continue a calendar year measurement.  This causes confusion for service recipients and families as to how much service they may request.  The GA reduced the annual amount of ATEM from $5,000 to $3,000.  Since this time period spanned two fiscal years, a service recipient may have had $5,000 authorized for a six-month period and an additional $5,000 for a second six-month period.  Recipients and families are now asking whether their authorization effective January 1^st will be $3,000 or $5,000 for the calendar year.

Similarly, the wording for the new Respite limits proposes a limit of 240 hours in each of two six month increments which is different than 480 total hours for a year (respite running per fiscal year).  Having multiple authorizations, expired emergency regulations and recent legislative action have cumulatively caused this confusion.  In some cases, families may have used an amount greater than 240 hours of respite in a six-month period based on their family schedule. Similarly a family may have requested and spent more than $3,000 in a designated time frame for ATEM due to the actual cost of the item and the timing. 

We request that simple examples be developed in conjunction with CSB staff and DBHDS staff to illustrate various authorization scenarios spanning these effected time periods.  These examples or alternative interpretive language are critically needed ASAP since service planning for the time period beginning January 1, 2012 is now occurring.

On Page 105, there is new language regarding service initiation.

9. If services are not initiated by the provider within 30 days of receipt of enrollment confirmation from DBHDS, the case manager shall notify the local department of social services so that a re-evaluation of eligibility as a noninstitutionalized individual can be made.

This replaces the current time frame of 60 days and the current total time frame of 6 months to 5 months to get the ID Wavier initiated.  If this is the correct understanding of this regulation, it is our contention that a loss of 30 days is too short for many recipients and families and may therefore restrict and inhibit their choice.  They may not have sufficient time in 5 months to evaluate the options and details of service options and therefore cannot decide within that time frame since some have struggled within 6 months.  The timeframe to initiate Waiver slots is in need of clarification.

On Page 103, there is new language on eligibility specific to diagnosis.

a. Individuals qualifying for MR/ID Waiver services shall have a demonstrated need for the service due to significant functional limitations in major life activities. The need for these waiver services shall arise from either (i) an individual having a diagnosed condition of MR/ID or (ii) a child younger than six years of age being at developmental risk of significant functional limitations in major life activities;

This language does not specify that the diagnosis of MR/ID must be made prior to age 18.  Is there a reference anywhere that limits the diagnosis of MR/ID to individuals aged 18 or younger (with the clause for those under age 6)?  The issue is that many families seek Waiver services for adults who may not have the requisite diagnostic documentation dated prior to the individual’s 18^th birthday.  Without clarity in the regulations, these families may infer that they may present their family member for Waiver eligibility regardless of the date of the MR/ID diagnosis.

On Page 67, the requirement for a SIS is introduced in the Summary section.

The proposed amendments (i) require the use of a statewide Supports Intensity Scale form, an assessment instrument, to comprehensively assess individuals' needs for supports and services received through the waiver every three years;

There is clarity needed as to whether the 3-year frequency mentioned also applies to children.  There had been verbal comments made previously, which suggested that the frequency for administering a SIS for children should be every 2 years instead of 3.  Additionally, the language describing the need for more frequent administration of the SIS is very vague and could be open to interpretation by audits and reviewers who could challenge why a SIS was not administered each time a person moves, for example, even though the move was very routine and  did not have significant clinical impact on the recipient.  Finally, since these are Waiver regulations, there is no discussion about the administration of the SIS for residents of Training Centers.  This mention may be worthwhile, however, due to the emphasis on transitioning residents of Training Centers to community based and Waiver funded services.  The issue is for planning by community providers so they understand the frequency of SIS administration of Training Center residents.

While Support Coordinators are paid a monthly fee and this would include the time involved with the SIS, other service providers are paid for time increments and therefore it is recommended that service providers who participate in the assessment process resulting in a SIS score are compensated through Waiver reimbursement.

There is a concern that VA will base future reimbursement rates or levels based on SIS “scores” or results.  If this is in fact the intent of the State then this fact should be disclosed now so providers and recipients can prepare or offer testimony.

There would be a cost incurred by both CSBs and service providers to fulfill the requirements for electronic information exchange among DMAS and local Departments of Social Services.  There is a history of unfunded mandates imposed by DMAS and DBHDS for which no reimbursement is available.

While the leveraging of EPSDT funding for children who are Waiver recipients is  cost effective and logical proposal, the details of the process are confusing.  It had previously been the practice for DBHDS staff to extract those authorizations for children eligible for EPDST funding and then divert those authorizations directly to EPSDT.  That process only required the Support Coordinator to submit one authorization and allow DBHDS to direct or divert as needed.  The new proposal places the responsibility on the Support Coordinator to initially decide to whom the authorization should be submitted.  Text on Page 129, which discusses Skilled Nursing is the best example of how this language is presented while page 107 describes the submission process.  The issue is whether the Support Coordinator is advised if an authorization is denied for EPSDT in a timely manner so he/she can resubmit to DBHDS through the Waiver process.

Is it possible to  include the language on the use of EPSDT funds but retain that decision process within DBHDS and not assign it to CSBs?

On Page 65, the Opt Out of service facilitation process is described.  It is our contention that the prevalence estimates presented are inaccurate.  While the prevalence estimate of those opting out is presented as a few, the reality is that just within Fairfax-Falls Church, there is evidence if a larger number.