The flexibilities granted by CMS under Appendix K that are due to expire with the ending of the PHE. The service parameters previously in place will be, once again, effective for most May 11, 2023, and for the remainder, such as the exception to allow legally responsible individuals (parents of children under
age 18 and spouses) to provide personal care/personal assistance services for reimbursement, on 10 November, 2023 to allow adequate time for transition.   

The long-standing requirements imposed by CMS which place restrictions on their willingness/ability to approve payment for personal care or similar services provided by a legally responsible individual who has a duty under state law to care for another person and typically includes the parent (biological or adoptive) or guardian who must provide care of a minor child will be reinstated.

• There are a number of comments which express the concerns of families who have found this flexibility a way to provide the services which they feel are needed by their child(ren) and earn some reimbursement which may replace some or all of what would be lost wages.  However, regardless of the submission of the renewal applications, the flexibility will end in November; the public comment opportunity simply brought that reality to everyone’s attention.

We are, however, concerned about several issues:

• My understanding and long history with CMS suggests to me that CMS will not approve a continuation of the flexibility contained in Appendix K and would deny the renewal of the FIS Waiver if it contained such language. 
• We are also, realistically, concerned that there are not sufficient agencies to manage, or choose to manage, the employment of the parents who wish to avail themselves of the option presented in the application; an alternative would be to expand the opportunity by creating a sponsored residential option for children up to the age of 18 and add it to the FIS Waiver.  It would, of course, be more costly that the alternative offered, but it would expand the possible pool of agencies which could provide the oversight. 
• In considering either of those options from the agency/provider perspective, we are equally concerned that supervision by any agency staff will be extraordinarily difficult; in virtually any service, but particularly in a home-based service, the determination of adequacy, competency or quality of “staff” is heavily weighted to the assessment of the primary caregiver.  The conflict here is obvious. 
• Lastly, the liability for the agency is significant.  Any suggestion that documentation does not reflect the services billed could easily become a serious point of contention and if eventually approved by the supervising agency a potential for a claim of fraud.