Virginia Regulatory Town Hall View Comments

Department of Medical Assistance Services

Board of Medical Assistance Services

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11/4/21 11:04 pm

Commenter: Barbara Tate

COMMENTS ON ASSISTIVE TECHNOLOGY (AT) IN THE DD WAIVER MANUAL CHAPTER IV

COMMENTS ON ASSISTIVE TECHNOLOGY (AT) IN THE DD WAIVER MANUAL CHAPTER IV

General Comment: Assistive Technology (AT) is an HCBS waiver benefit that all recipients of DD waivers and CCC+ waivers are equally entitled to access in accordance with regulations at 12VAC30-122-270. Although there is only one regulation for AT, guidance for administration of it is inconsistent. AT requests for people with a DD waiver are approved by DBHDS according to the DD Waiver Manual Chapter IV and AT requests for people with the CCC+ waiver are approved by the MCO or KePRO according to the Durable Medical Equipment (DME) and Supplies Manual Chapter IV. Review of both manuals find extensive differences and variations, and both manuals are more restrictive than the AT regulations they are purported to clarify.

These contradictions and inconsistencies represent the root causes of many of the barriers individuals, providers, and DMAS are experiencing as reported by the HB2197 working group that DMAS was charged with hosting to identify barriers to accessing AT and related services as well as options for removing them. Making the administrative manual changes recommended below will remove many of these barriers that impact over 30,000 people with disabilities. Only the DD Waiver Manual is open for public comment; the DME Manual was closed in June 2021 after receiving zero comments. We strongly urge DMAS to revise both Manuals to appropriately reflect the AT regulations at 12VAC30-122-270 in order to remove many systemic barriers to assistive technology access. Suggested revisions for both manuals are provided below.

DD Waivers Manual, IV, Assistive Technology

Regulations 12VAC30-122-270

• Pg. 49, “Assistive technology devices are portable and authorized per calendar year” is inconsistent with the regulations, which do not require AT devices to be portable.

o Recommend deleting “are portable and” to retain the calendar year portion of the sentence, which is consistent with the regulations.

• Pg. 50 lists allowable equipment and activities that may include a limited list that does not fully reflect the allowable scope of AT in the regs because it lists both types of AT and purposes of AT. Specifically, the allowable list in the manual does not reference AT that enables an individual to actively participate in other waiver services. This purpose of AT is referenced in both the regulationsand in the manual on the previous page that lists what AT is supposed to enable. Furthermore, CMS guidance permits lists of allowable items to be used for administrative purposes only, but not to deny items that are not on an allowable list (reference DeSario letters).

o Recommend replacing the allowable equipment and services list on page 50 about the types of allowable AT to, “Allowable equipment and activities may include specialized medical equipment and ancillary equipment; durable or nondurable medical equipment and supplies; adaptive devices, appliances, and controls; and other equipment, devices, items, and software that meets the service definition.”

• Pg. 51 is a stand-alone exclusion that is neither supported by the regs nor referenced in the allowable items section of the regs or the manual, “Items such as furniture shall not be approved if they are of general utility and are not of direct medical benefit.” The regulations require an independent professional consultation that should determine on its own merit if the AT is needed to, “enable an individual to be independent in areas of personal care and ADLs, to communicate more effectively, or to participate in other waiver services. (12VAC30-122-270),” in order for the AT to be approved, making this additional stipulation unnecessary.

o Recommend deletion of the entire sentence.

• Pg. 51 about software compatibility is more restrictive than regulations, “AT providers must ensure that requests for software are compatible with the individual’s current computer.” This assumes all individuals have a computer at all, let alone one that is compatible with every type of software that might be evaluated as necessary AT by an independent professional’s recommendation. The regulations are clear that the independent professional shall determine the most appropriate item(s) for the individual’s needs, which may be compatible with a device that they already own or may require upgrades, enhancements, or a separate device.

o Recommend deletion of the entire sentence.

• Pg. 51 under Service Units and Service Limitations, first bullet, “for a specific timeframe” does not clarify the implementation of the regulation. The only timeframe specified in the regulations at (12VAC30-122-270) is the budget limit for a calendar year, and many prior authorization systems only accept a 1 month service period for the AT code used for service authorization requests.

o Recommend either deleting “for a specific timeframe” or revising to, “for the timeframe specified by the service authorization system.”

• Pg. 52 under Service Units and Service Limitations bullet about AT under EPSDT for children is vague, confusing, and is more restrictive than the regulation. The regulation at (12VAC30-122-270) C.4. Service units and limitations says, “Requests for AT service via a DD Waiver shall be denied if the AT service is available under EPSDT.” Nowhere in any of the regulations are children under 21 limited to only AT available under EPSDT. Instead of instructions and guidance about how to coordinate the AT benefits that children are eligible to receive under both EPSDT and HCBS in order to comply with the regulation if the requested AT is not available to the child under EPSDT, the proposed manual language only says, “AT for individuals younger than 21 years of age must be accessed through the EPSDT benefit,” indicating children may only access AT under the EPSDT benefit.

o Recommend revision: “AT for individuals younger than 21 years of age may be requested via a DD Waiver if the AT is not available to the child under EPSDT.”

• Pg. 52 Service Exclusions first bullet assumes all of the items listed will only ever be for the purposes of convenience, restraint, or recreational or leisure purposes. This administrative declaration circumvents and undermines the fundamental requirement for an independent, professional consultation/evaluation, and could restrict individuals from accessing the least expensive, most cost-effective manner of meeting the regulatory purpose of AT, “to enable individuals to increase abilities to perform ADLs; to perceive control, or communicate with their environment; to actively participate in other waiver services; or are necessary for the proper functioning (12VAC30-122-270)” of other equipment. As drafted, the manual permits service authorization staff to overrule the independent professional if any item related to those excluded, regardless of compliance with the regulations. Blanket exclusions are unnecessary and contradictory to the several pages of criteria, guidance, exclusions, and instructions in the manual that safeguard the AT fund for appropriate and compliant utilization.

o Recommend deletion of the entire first bullet.

• Pg. 53 last bullet under Service Exclusions was just copied from the regulations into the draft manual without any additional explanation or guidance. It is about duplication of payment for services that are reasonable accommodation requirements of the ADA and other Acts. What constitutes a duplication of payment? If an AT service is otherwise paid by whom? The HCBS AT budget? The Waiver? A Waiver provider? The State Plan? Another State entity? If the individual already has the AT that provides reasonable accommodation, then the independent professional would not recommend it as a needed item. Please describe a real-world example of a duplicate waiver payment for AT that supports this restriction.

o Recommend revision with example that provides a better understanding of the regulation.

• Pg. 54 bullet under Provider Documentation Requirements says, “Documentation in the Support Coordination record of notification by the individual or individual’s representative family/caregiver of satisfactory completion or receipt of the service or item.” This is supported in the regulations but is not a requirement that the AT provider can fulfill.

o Recommend removing this bullet from the Provider Documentation Requirements and consider adding a separate Support Coordinator Requirements list and/or adding it to the Support Coordination Manual also currently open for public comment.

• Pg. 54 last bullet under Provider Documentation Requirements is for the “Support Coordinator to perform and document a face-to-face visit to assure that the individual can use the AT safely and appropriately.” This is not a requirement for provider documentation and is not supported in the regulations at (12VAC30-122-270). The other documentation requirements listed in the manual are copied from the regulations without additional detail or guidance, but this particular bullet does not reflect any requirement in the regulations for a face-to-face visit or assurance of safe and appropriate use. Only a professional trained in the AT item could make an assurance that the individual can use the AT safely and appropriately, which is part of the required independent professional consultation/evaluation.

o Recommend deletion of the entire sentence.

Durable Medical Equipment and Supplies Manual, IV

Regulations 12VAC30-122-270

• Pg. 27, “All assistive-technology equipment must be medically necessary and essential for the treatment of illness or injury,”which contradicts the regulatory definition of AT that differentiates AT from DME where DME treats illness or injury and AT enables personal functioning, “enable an individual to be independent in areas of personal care and ADLs, to communicate more effectively, or to participate in other waiver services. (12VAC30-122-270)”AT regulations don’t require items to be medically necessary or essential, and do not require treatment of illness or injury, “to increase his ability to control his environment, support ISP outcomes as identified, and live safely and independently in the least restrictive community setting. (12VAC30-122-270)”

o Suggested deletion and revision, “Assistive-technology equipment includes, but is not limited to, adaptive utensils, wall-mounted insulin delivery devices, and automatic feeder systems, and other technologies needed in any setting toincrease the individual’s ability to control his environment, support ISP outcomes as identified, and live safely and independently in the least restrictive community setting. All assistive-technology equipment must be medically necessary and essential for the treatment of illness or injury.”

• Pg. 27, “Assistive technology equipment does not include… items that are not for the diagnosis and treatment of illness or injury or to improve the functioning of a malformed body part…” This directly contradicts the regulatory differences between DME and AT where DME treats illness or injury, and AT enables personal functioning,“enable an individual to be independent in areas of personal care and ADLs, to communicate more effectively, or to participate in other waiver services. (12VAC30-122-270)” AT doesn’t have to diagnose or treat a condition or malformed body parts.

o Suggested deletion of the phrase, “items that are not for the diagnosis and treatment of illness or injury or to improve the functioning of a malformed body part;.”

• Pg. 27 includes a reference, “(12 VAC 30-50- 165)” that is irrelevant to AT. It refers to a requirement for DME to be suitable for use in the home, which directly contradicts the AT regulations that permit the use of AT in any setting, “in the individual's primary home, primary vehicle, community activity setting, or day program,” and “in the least restrictive community setting(12VAC30-122-270).”

o Suggest deleting “(12 VAC 30-50- 165)”.

• Pg. 27 states that AT must be approved under individual based outcomes or supportive activities to accomplish outcomes, “The following conditions must be met for DMAS to approve reimbursement of assistive technology equipment. Approval may occur under one of the following categories,” where at least one of two criteria must be met for individual-based outcomes, or all criteria must be met for supportive activities to accomplish outcomes. These stipulations are more prescriptive than and contradictory to regulations. Including these conditions in the administrative manual will permit MCOs to deny literally all AT requests. Furthermore, CMS guidance permits lists of allowable items to be used for administrative purposes only, but not to deny items that are not on an allowable list (reference DeSario letters).

o Suggest deletion of, “Approval may occur under one of the following categories:” and making revisions to the “categories” as suggested below to remain compliant with the regulations at 12VAC30-122-270.

• Pg. 27, “An identified, realistic goal exists that makes necessary the use of the assistive technology equipment for the treatment of the medical condition,” or “anticipated stabilization of the medical condition or progress toward goal achievement is clearly related to the use of the equipment.” Pg. 28 details the second category that AT may be approved under, “Supportive Activities to Accomplish Outcomes (all of the following must be met).” AT regulation doesn’t require the item to meet any individual outcome, treat or stabilize a medical condition, or require the individual to have a goal that is related to the use of the AT. This guidance misrepresents the regulation entirely, which already includes detailed criteria and allowable activities; service requirements;service units and limitations; provider qualifications and requirements; and service documentation and requirements. None of those detailed regulations mention medical treatment or outcomes/goals. Instead, the regulations include, the AT item will, “support ISP outcomes as identified… enable an individual to be independent in areas of personal care and ADLs, to communicate more effectively, to participate in other waiver services.(12VAC30-122-270)”

• Pg. 28 criteria require that, “Goal(s) must be a part of an active, rehabilitative, therapeutic plan of care in place at the initiation of the use of the equipment. The goal(s) must be realistic in that it is consistent with the individual’s cognitive, environmental, and physical status,” but regulations do not limit items to therapeutic use or require a therapy plan. Only supporting needs identified in the support plan is referenced, “shall entail specialized equipment…, including those specified in the individual support plan.” AT requests require an independent consultation, “an independent professional consultation to determine the level of need that is not performed by the AT service provider shall be obtained from staff knowledgeable of that item for each AT service,(12VAC30-122-270),” not a plan of care.

• Pg. 28 criteria require that, “the individual or caregiver demonstrates the ability cognitively, motivationally, and physically to effectively utilize the equipment toward goal achievement. Someone is available to regularly assist the individual as necessary in the use of the equipment to facilitate progress toward the goal.”None of this is supported by the regulations and none of it is enforceable. How should an AT provider demonstrate that someone has the ability to motivationally effectively use the item; what happens if a caregiver doesn’t regularly assist the individual; and who determines if progress toward a goal is made, how, and when? More importantly, why is the AT provider who delivers equipment held accountable for the performance of other services and why is a single piece of equipment solely responsible for achieving progress?

• Pg. 28 criteria require, “within the plan of care, documentation exists that other equipment and/or health care alternatives have been considered and rejected as not appropriate for the treatment of the medical condition.” AT regulations do not require other equipment or alternatives to have failed to treat a medical condition before the AT request will be considered. Other equipment is only noted if a rehabilitation engineer is requested, “if an existing device must be modified or a specialized device must be designed and fabricated, a rehabilitation engineer or certified rehabilitation specialist may be utilized. (12VAC30-122-270)”

• Pg. 28 criteria exclude an individual’s eligibility for AT if they have a low energy condition, “the individual does not have a deficient level of “energy” or other systemic condition (e.g., CHF, COPD).”Anyone who has these or other chronic diagnoses that cause low energy levels could be denied for all AT requests. Regulations require an independent consultation to ensure the individual is capable of using the item. An additional administrative criteria is unnecessary and potentially discriminatory.

• Pg. 28 requires, “the equipment must reduce the need for other reimbursed health care (such as personal care, private duty nursing, rehabilitation services, and/or home health services).” This is entirely contradictory to the regulation and not supported anywhere.

Suggested Revisions for the section that begins with, “The following conditions,” through the end of the AT section on p28 to comply withAT regulations (12VAC30-122-270):

“The following conditions must be met for DMAS to approve reimbursement of assistive technology equipment. These conditions are applicable whether the equipment is for initial use or replacement. Individual use of the requested AT will enable increased abilities to:(at least one)

1. Perform activities of daily living (ADLs);

2. Perceive, control, or communicate with their environment;

3. Actively participate in other waiver services that are part of their plan for supports;

4. Be independent in areas of personal care;

5. Communicate more effectively;

6. Support of individual service plan outcomes as identified; or

7. Properly use items necessary for life support, including the ancillary supplies and equipment.

For each assistive technology request for approval, the AT provider or the independent professional shall provide documentation of:

• Recommendation for the requested AT based on a consultation not performed by the AT service provider, but rather an independent professional knowledgeable of both the requested AT and the individual’s needs that it will address.

• Applicable standards of manufacture, design, and installation, and the provider will provide all warranties or guarantees from the AT manufacturer to the individual and family/caregiver, as appropriate.

• If the AT will be initiated in combination with environmental modifications involving systems that are not compatible, or an existing device must be modified or a specialized device must be designed and fabricated, a rehabilitation engineer or certified rehabilitation specialist may be utilized.

• Not solely for purposes of convenience of the caregiver, restraint of the individual, or recreation or leisure activities.

• Not otherwise available through the State Plan for Medical Assistance.

• Used in the least restrictive community setting, which includes the individual's home, vehicle, community activity setting, or day program.

In order for an AT claim to be reimbursed, all of the following must be documented:

• Prior authorization received before delivery

• AT was received or installed and in working order

• Warranties and procedures for technical support were provided

• Individual is capable of using AT”

CommentID: 116678