Comment 44

Appendix C: Participant Services, C-2: General Service Specifications (3 of 3), d. Provision of Personal Care or Similar Services by Legally Responsible Individuals, e. Other State Policies Concerning Payment for Waiver Services Furnished by Relatives/Legal Guardians, pages 175-176

The Virginia General Assembly has required that DMAS allow parents of minor-aged children and spouses (legally responsible individuals) to be paid caregivers of their minor-aged children or spouse. The draft Application recognizes this stipulation and the draft Application prepared by DMAS incorporates this requirement of the General Assembly.

To implement this required provision of allowing legally responsible individuals (LRIs) to be paid providers, DMAS has incorporated into the draft Application guidance established by CMS for these situations.

During the federal public health emergency (PHE) due to COVID-19, DMAS elected to make several exceptions to state regulations and the CMS previously approved Applications for Virginia Medicaid home and community-based waiver services. One these exceptions was to allow parents of minor-aged children and spouses to be paid for providing personal assistance to their minor-aged children or spouse.

While the CMS Technical Guide describes factors that states must take into consideration when LRIs are paid providers, DMAS chose during the PHE to allow LRIs to be paid without documentation and requirements that are required or recommended by CMS outside of the PHE period.

Accordingly, in order for CMS to approve the proposed 5-year renewal FIS Waiver Application, some documentation and other requirements for waiver services will now have to apply in some fashion to the provision allowing LRIs to be paid caregivers.

DMAS proposes the following conditions in which LRIs can be paid providers, outside of the PHE period:

1. LRIs must be employed by a personal care agency.
2. LRIs cannot be employed through the consumer-directed model of personal care.
3. LRIs would not be paid for more than 40 hours of service per week. A CMS recommendation.
4. LRIs would only be paid to provide extraordinary care. A CMS requirement.
5. DMAS must establish criteria to distinguish between ordinary care and extraordinary care. A CMS requirement.
6. Documentation would be required to establish that the LRI providing the paid service is in the best interest of the participant. A CMS requirement.

There may be tax implications for LRIs that do not apply if the LRI is employed by a personal care agency.

Working for a personal care agency would likely result in the LRI being required to complete a 40-hour training.

DMAS proposed that the individual being served by an LRI would not be eligible for respite (see comment 25 above.)

It is important to note that draft Application does not change the existing consumer-directed process or relationship when an adult receives paid services from a parent or other relative, other than a spouse.

Recognizing that DMAS must make some changes to the current conditions that were allowed during the PHE, where it has been beneficial to the individual and that benefit remains after the PHE, the following recommendation are offered for the permanent provisions of LRIs being paid assistants to their minor-aged child or spouse.

RECOMMENDATION:  Allow LRIs to be employed through the consumer-directed model and agency-directed models. The individual should be the person to decide whether to use agency-directed, consumer-directed and/or a combination of consumer-directed and agency directed personal assistance services.

To address issues raised by CMS regarding LRIs providing paid support and to allow LRIs to be hired through consumer-direction, the following items should be part of the Application:

1. The employer of record should not be someone who lives with the individual, if the LRI also lives with the individual.
2. Require services facilitation that is provided in person unless the individual or someone else living in their home is ill, in which case an in-person visit would be required as soon as the individual has recuperated from their illness. If the visit is not conducted in-person due to illness, services facilitation should be provided by telehealth following the required timeline for visits.
3. The case manager/support coordinator should develop documentation in collaboration with the individual for review by the services facilitator. The individual, case manager/support coordinator and services facilitator must agree that the documentation is accurate and current. DMAS should include detailed guidance and definitions for extraordinary care, reasons why no one else is available or appropriate to provide the assistance, and reasons why paying the LRI is in the best interest of the individual.  Documentation would include the following:
1. Description of the extraordinary care to be provided by the LRI;
2. List of support tasks to be provided by the LRI;
3. Copies of job ads placed for a minimum of two weeks in at least two posting sites; summary of any interviews conducted by the EOR of any applicants including comments indicating why the applicant was not appropriate;
4. Detailed narrative description of why no one else is able to perform the tasks required. A check list would not be adequate for this purpose;
5. Description of the LRI’s unique abilities to meet the needs of the individual;
6. If the LRI is going to continue to be the consumer-directed assistant after the individual’s 18th birthday, an objective written documentation component describing how the individual will be involved with integrated community activities, including school and/or employment; and
7. Description of why it is in the best interest of the individual that the LRI provide personal assistance services.
4. If the LRI lives with the individual, the LRI could be paid to provide up to 70 hours a week of personal assistance services. Should the individual require more than 70 hours a week of personal assistance services, the additional hours could be provided by another consumer-directed assistant, an agency-directed assistant, or in coordination with other FIS Waiver services.
5. If the LRI does not live with the individual, the LRO could be paid to provide up to 56 hours a week of personal assistance service. Should the individual require more than 56 hours a week of personal assistance services, the additional hours could be provided by another consumer-directed assistant, an agency-directed assistant, or in coordination with other FIS Waiver services.
6. The individual receiving services or someone acting on their behalf, other than the person who would be the LRI, should make the choice of the LRI being an employee of a personal care agency and/or as a consumer-directed employee.

The Virginia Informed Choice form is not adequate to document this information above. A separate form should be developed by DMAS to be completed by the case manager/support coordinator with the individual when an LRI provides agency-directed or consumer-directed personal assistance services.

Case manager/support coordinators and services facilitators must receive a DMAS-developed training about consumer-directed services, including the provision of LRIs providing personal assistance services.

DMAS should develop an on-line training regarding consumer-direction of LRIs. LRIs and employers of record should be required to complete the training within 15 days of the LRI being hired to provide consumer-directed assistance.

A case manager/support coordinator who refuses to submit or delays beyond 14 days to submit documentation to allow an LRI to provide personal assistance services must provide appeal rights to the individual.