Stephanie Bakely, Strengthening Our System Inc
SUBSTANTIVE CHANGE - not authorized by Virginia Statute Supported Employment - Required Staff competency Training & Monitoring - DBHDS and DMAS have no authority to require Supported Employment providers to adhere to proposed staff competency requirements if SE providers are DARS vendors of SE services and are CARF accredited. This is protected by statute originally adopted by the General Assembly and signed by the Governor under Chapter 854, Acts of the Assembly 2019. We have included language deletion in Section 122-180 (Orientation Testing, Professional Competency et.al) and language amendment inserting this exception in Section 122-400 - Group and Individual Supported Employment.
One Plan of Supports per Individual to Streamline Quarterly Reviews: DMAS and DBHDS should create the option for a single organization to have one Plan for Supports per individual regardless of the number of individual services are provided to an individuals in order to streamline documentation and to reduce the number of quarterly reviews per individual required. This was a unanimous recommendation of the DBHDS’s own Provider Issues Resolution Workgroup (PIRW) in its report published August 2018. This recommendation has also been proposed and documented in many workgroup recommendations and previous Town Hall public comment opportunities.
Documentation Requirements: Throughout the regulations, Section (E) for most services, describes documentation and states “For the annual review and every time supporting documentation is updated, the supporting documentation shall be reviewed with the individual and/or family/caregiver, as appropriate, and such review shall be documented.” Under 122-20 - Definitions, “Supporting Documentation” includes, as examples, a number of relevant documents as well as many other examples including progress notes, attendance logs, contact logs, etc. Some of these documents are changed daily and should not have to be reviewed, documented and reviewed by individual/family with each change. This is administratively burdensome and does not add value to the provision of services. RECOMMEND amendment to current language included in each service Section (E) as “For the Annual Review, and any time the plan for supports is changed or updated, the supporting documentation shall be reviewed with the individual and/or family/caregiver and such review shall be documented.”
12VAC30-122-20 - Definitions
“Progress Notes” - DELETE language indicating that progress notes are signed and dated on the day the supports were provided and REINSTATE previously utilized language that indicates “progress notes are signed and dated as soon as is practicable but no longer than one week after the referenced services”. It is unrealistic and impracticable to expect that documentation shall be entered, dated and signed on the date that supports are delivered for most services.
“Service Authorization” - DELETE “medically”. Although funded by Medicaid, not all services are medical in nature.
12VAC30-122-60 - Financial Eligibility Standards for Individuals
Recommend Spend-down for all Long-term Care waiver categories. This language is already in the CCC+ waiver. This language should be moved to all categories.
Recommend the Patient Pay be considered an Income Related Work Expense (IRWE). IRWEs are already considered when countable earned income is considered. Reasoning - without waiver services, an individual would not be earning at the level they are earning. But earning at a higher level is forcing them to incur a Patient Pay. This is a disincentive to earn wages at a higher level.
Recommend Special Group Category Consideration - SSI/SSDI waiver recipients increasingly have retired, disabled or deceased parents and the waiver recipient’s income increases because their parent’s FICA account is opened and a portion of this account is received by the waiver recipient. This amount (SSDI) often puts the waiver recipient over the 300% of SSI gross income limit. The first thing the individual does is quit work if working. These individuals should be put in a “protected category” which will disregard the amount of the new income (SSDI) that will cause them to become ineligible for waiver services. This protection is considered when looking at continued Medicaid eligibility.
Recommend Subsidies and Special Conditions as deduction for wages earned (oer SSA definitions). If the individual is not fully earning his or her wages because the work is performed under special conditions (e.g. close and continuous supervision, on the job coaching, etc,) then we should deduct that part of his or her wages that are not “earned” by the individual from his/her average gross wages. This is true whether or not the employer or some else provides the special on-the-job conditions. However, under current Medicaid LTC regulations, if they earn over 300% of federal benefit rate (FBR), they are penalized. Many individuals do not have the out-of-pocket expenses that are needed to bring down countable earned income due to the LTC supports that they are receiving at no cost to them. However, they would not be earning at the level that they are earning without the waiver provided supports. Subsidies and Special Conditions would give value to the supports that are provided to the individual that enables them to work and earn income.
C. AMEND - 30 calendar days to no later than 90 calendar days for individuals assigned slots to meet with their Support Coordinators This will allow individuals to avoid Medicaid redetermination.
12VAC30-122-120 - Provider Requirements
Provider Requirements - Quarterly Reviews: This will make the DD Waiver Regulations consistent with the current licensing Regulations 12VAC35-105-675 - Reassessments and ISP Reviews ADD - “Documentation of the quarterly review shall be added to the individual’s record no later than 15 calendar days from the date the review was due to be completed with the exception of case management activities. Case Management quarterly reviews shall be added to the individual’s record no later than 30 calendar days from the date the review was due.”
A.5. - ADD “as appropriate”. Training on Crisis Education and Prevention Plans is not applicable to all waiver services. Also, clarity is needed as to whether this is for licensed providers only “as appropriate” or for all providers “as appropriate.”
A.12.c (4) e. - DELETE language that requires “such documentation shall be written, signed and dated on the day the described supports were provided”. INCLUDE language, consistent with the previous language under 122-20 “Progress Note” definition, that “progress nots are signed and dated as soon as is practicable but no longer than one week after the referenced service”.
A.12.c. (4) e. - ADD “electronic signature as acceptable for providers using Electronic Health Records (EHR) programs”.
A.12.c. (4) f. (4) - Clarification regarding the term “individual’s unique options”. We assume that this means opinions about their individual supports options”. However, clarity is needed.
A. 19. - MODIFY this semi-annual supervision note requirement for DSP and supervisor of DSPs as “required after the first six months of employment and regularly thereafter.”
12VAC30-122-180 - Orientation Testing; Professional Competency Requirements; Advanced Competency Requirements
SUBSTANTIVE CHANGE not Supported or Authorized by Current Statute DELETE Individual and Group Supported Employment from list of services. Unless the law is changed, DBHDS/DMAS does not have the authority to require Supported Employment providers to adhere to these requirements if they are DARS vendors of SE services and are CARF accredited. This language is statutory and was originally adopted by the General Assembly, signed by the Governor and chaptered in April 2019. Also see comments in Section 12VAC300122-400 (Group and Individual SE) to add the following language as a Staff Competency exception.
As originally adopted in Chapter 854, Acts of the Assembly 2019, the Department of Medical Assistance Services and the Department of Behavioral Health and Developmental Services shall recognize the Certified Employment Support Professional (CESP) and Association of Community Rehabilitation Educators (ACRE) certifications in lieu of competency requirements for supported employment staff in the Medicaid Community Living, Family and Individual Support and Building Independence Waiver programs and shall allow providers that are Department for the Aging and Rehabilitative Services vendors that hold a national three-year accreditation from the Commission on Accreditation of Rehabilitation Facilities (CARF) to be deemed qualified to meet employment staff competency requirements, provided the provider submits the results from their CARF surveys including recommendations received to the Department of Behavioral Health and Developmental Services so that the agency can verify that there are no recommendations for the standards that address staff competency.
In addition, Supported Employment staff do not meet the definition of a Direct Support Professional (DSP) as included in 12VAC30-122-20 - Definitions. “Direct support professional,” “direct care staff,” or “DSP” means staff members identified by the provider as having the primary role of assisting an individual on a day-to-day basis with routine personal care needs, social support, and physical assistance in a wide range of daily living activities so that the individual can lead a self-directed life in his own community. This term shall exclude consumer-directed staff and services facilitation providers.
12VAC30-122-200 - Supports Intensity Scale Requirements, Virginia Supplemental Questions; Levels of Support; Supports packages
4.D. DELETE this subsection. Chapter 854, Acts of the 2019 Assembly prohibits the implementation of support packages unless specifically authorized by the General Assembly.
ADD - Appeal process for SIS score. Because SIS assessments are only made every 2, 3 or 4 years depending upon the age of the individual, individuals and their families must be able to appeal the results and present additional or alternative evidence. SIS scores and results are subjective according to the administering agency selected by DBHDS. There must also be flexibility to request a new SIS assessment any time between 2,3, or 4 year requirements when circumstances warrant because of changes in an individual’s needs - especially behavioral or medical support needs.
12VAC30-122-280 - Benefits Planning Service
ADD language in this section to reflect the ability to complete this service virtually and/or telephonically - “Benefits Planning Services may be provided in person, over the phone, or virtually via video as is appropriate for each individual serviced. Written resource materials are to be provided to the individual regardless of the modality of service provision.”
B. DELETE “calendar year” and INSERT “ISP year” to better meet the individualized needs of individuals served and to ensure consistency across services.
B. ADD - expressly state that “collateral contacts” made during service provision are allowable activities for reimbursement.
C. Service Units & Limitations: 1. INSERT “ISP” between “annual” and “year” for clarification. This should be an ISP year vs. calendar year, 2. DELETE the “Hourly Limits Per Activity”. Hours per activity vary drastically from one individual’s situation to another. RECOMMEND allowing the overall service to be limited to maximum of $3,000 per ISP year without “Hourly Limits Per Activity”. This will allow maximum individualized and person-center services to be provided but still retain the cap of $3,000.
12VAC30-122-320 - Community Engagement
B. 2. c. Routine and Safety Supports must not be limited to transportation only. These supports may be necessary for and apply to other allowable activities.
12VAC30 - 122-360 Electronic Home-Based Support Service
B.3. Criteria and allowable activities.AMEND 3. Electronic home based supports may be billed solely for purposes of monitoring the individual or training the individual, family members, caregivers, and relevant others in the use of the electronic home based supports electronic home based supports service shall support training in the use of these goods and services, ongoing maintenance, and monitoring to address an identified need in the individual’s ISP, including improving and maintaining the individual’s opportunities for full participation in the community.
C. Service units and limit.
ADD 5. The service unit for electronic home-based supports equipment shall be one for the total cost of all electronic home-based supports equipment being requested for a specific timeframe. The unit of service for electronic home-based supports services that include ongoing training and monitoring shall be one hour.
REASON: Allowable services under electronic home-based supports include both one-time equipment that is delivered and billed once and ongoing monitoring and training services that are provided incrementally throughout the duration of the ISP year. One-time delivery of items may be billed one time with one unit, but services provided over time shall be subsequently billed as they are delivered, and therefore need authorized as more than only one unit. Without allowing multiple units of service, all training and monitoring for the duration of the ISP year can only be billed one time, either before it is all provided or after it is all provided. Neither is sustainable for any provider nor compliant with multiple billing regulations.
E. Service documentation and requirements. 1.c. AMEND - Documentation of the recommendation for the item [item(s) and/or service(s)] by an independent professional consultant, [the dates one-time items and ongoing services will be provided, and the desired outcomes ongoing training or monitoring will support];
REASON: electronic home based supports is not a stand-alone service and when it includes ongoing services, like training or monitoring, including a proposed plan of support or desired outcomes as part of the request for service authorization and/or the ISP will facilitate collaboration and planning with other service providers.
1.d. AMEND - Documentation of the date [one-time equipment or items are delivered] and dates and amount of ongoing training and monitoring electronic home-based supports] service is [are] rendered and the amount of service that is needed;
REASON: Documentation of completion of delivery is appropriate for equipment or items that are delivered one-time, but ongoing training or monitoring services should provide commensurate service-based documentation, such as dates and amounts of service provided.
12VAC30-122-400 Group and Individual Supported Employment Service
B. Criteria and Allowable Activities
4. ADD language that expressly indicates that individual supported employment may be completed virtually and/or telephonically as is appropriate for each individual served. ADD “Individual Supported Employment may be provided in person, over the phone or virtually via video in order to support individuals to obtain and maintain competitive, integrated employment.”
4.a. - ADD - “and Customized Employment” to the end of “Vocational or job-related discovery or assessment
C.4. DELETE “may be provided in combination with” (in regards to day and residential services) and ADD language that expressly states that “services can be provided simultaneously with supported employment services and can be billed concurrently” to be consistent with other services and regulations”. “Simultaneously with” is preferred and provides additional clarity vs “in combination with”. “Billed concurrently” also adds additional clarity.
C.6. DELETE language - “can be provided simultaneously with the workplace assistance service”. ADD language - “can be provided simultaneously and can be billed concurrently with the workplace assistance service” to be consistent with other services and regulations.
D. Provider Requirements
ADD D.5. Staff Competency Exception
As originally adopted in Chapter 854, Acts of the Assembly 2019, the Department of Medical Assistance Services and the Department of Behavioral Health and Developmental Services shall recognize the Certified Employment Support Professional (CESP) and Association of Community Rehabilitation Educators (ACRE) certifications in lieu of competency requirements for supported employment staff in the Medicaid Community Living, Family and Individual Support and Building Independence Waiver programs and shall allow providers that are Department for the Aging and Rehabilitative Services vendors that hold a national three-year accreditation from the Commission on Accreditation of Rehabilitation Facilities (CARF) to be deemed qualified to meet employment staff competency requirements, provided the provider submits the results from their CARF surveys including recommendations received to the Department of Behavioral Health and Developmental Services so that the agency can verify that there are no recommendations for the standards that address staff competency
12VAC30-122-410 In-Home Support Services
B.4. - REVERSE and REINSTATE Stricken Language
EXPLANATION: In-Home Support Services needs the flexibility of episodic supports for all the reasons stated in the stricken language. Without the inclusion and flexibility of episodic supports, the individual will have no support if these events occur. Example - If school is cancelled on Thursday, but In-Home Supports are authorized for 3 hours on Thursday evening - those hours can be adjusted but can not exceed what is authorized despite the need increasing due to events beyond the control of the individual, family or provider. Examples may also include when Day Support and/or job site or employer is closed.)
12VAC30-122-430 Individual and Family/Caregiver Training Services
RECOMMEND - Add this service to the Community Living and Building Independence Waiver. Individuals included in these waivers would also benefit to participate in these training opportunities to better understand their disability and increase self-determination and self-advocacy skills.
B.2. ADD exception to this service’s definition of “family” to allow individuals who are compensated, provided they are not concurrently billing during service facilitation. This would include family members who otherwise meet the definition of “Family” and are instrumental in the delivery of this services are excluded due to providing personal assistance or companion services to their enrolled family member. Due to this exclusion, individuals who require assistance or support to participate in the training are also therefore excluded and have decreased opportunities.
12VAC30-122-440 - Nonmedical Employment and Community Transportation Services
Although a critical and needed service, the service as written is operationally a nightmare for any provider to provide. This includes documentation requirements, supporting documentation such as “Google Maps/MapQuest print-outs to support trip mileage”, driver requirements, no administering agency overhead reimbursement for the administrative provider, and the exclusion of flexible modes of transportation available in the community including para-transit, Lyft, Uber, cab, etc. There are also cost reimbursement issues that do not reflect current rates via public transportation, etc. Additional comment will be provided in response to DMAS Medicaid Memo FAQ and Guidance Document public comment opportunity.
12VAC30-122-460 - Personal Assistance Service
E. Agency-Directed Service Documentation and Requirements Assessment of “emotional condition” - clarification needed - Is this outside of basic training for a DSP?
D.2. INCLUDE previous option for providers of other residential services to provide respite services. This service is vastly under-supported by providers because of the low reimbursement rate.By allowing residential providers to provide respite services when staff or availability allows, this much needed support would be able to be provided to more individuals throughout the state that are request respite services.