PERSONAL CARE

 

Appendix C: Participant Services, C-2: General Service Specifications (3 of 3), d. Provision of Personal Care or Similar Services by Legally Responsible Individuals, pages 175-176

Per The budget passed by the Virginia General Assembly in 2022 requires that DMAS must 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.

DMAS proposes to require that legally responsible individuals (LRIs) work for a personal care agency. DMAS proposes to not allow the consumer-directed model for personal assistance services provided by LRIs. This is likely due to related CMS requirements to ensure proper safeguards against abuse of the service are in place and enforceable.

 

RECOMMENDATION:  DMAS should continue to allow LRIs to be employed through the consumer-directed model and personal care agencies. The individual or the EOR should be the entity that decides whether to use agency-directed, consumer-directed and/or a combination of consumer-directed and agency directed personal assistance services. Specifically state that these rules/ safeguards used for LRIs should not also be applied to any household or family member of an adult individual who is their own guardian.

To address issues raised by CMS regarding LRIs providing paid support, the following provisions could be part of the Application:

1. The employer of record should not be someone who lives with the individual.
2. Require services facilitation.
3. The case manager would develop documentation for review by the services facilitator. Both the case manager and the services facilitator must agree that the documentation is accurate and current. Documentation would include the following:
   1. Description of the extraordinary care, as defined by CMS, 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. 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;
   6. Description of why it is in the best interest of the individual that the LRI provide personal assistance services.
4. The LRI could provide up to 40 hours a week of personal assistance services, if the LRI lives with the individual. Should the individual require more than 40 hours a week of personal assistance services, the additional hours could be provided by another consumer-directed assistant or an agency-directed assistant.
5. 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.
6. Services facilitation must be provided in-person.

 

The Virginia Informed Choice form is adequate for this purpose. A separate form should be developed by DMAS to be completed by the case manager/support coordinator 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.

 

A case manager/support 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 and the EOR.

 

Appendix C: Participant Services, Quality Improvement: Qualified Providers, Methods for Discovery: Qualified Providers; 1. Sub-Assurances, Performance Measures, page 177

Concerns about the appropriateness of LRIs continuing to provide consumer-directed assistance services have been raised. There are also concerns about other models of service delivery. To address these concerns, DMAS uses Performance Measures to identify problems. Rather than prohibit LRIs from being paid caregivers, a similar process of assuring quality services that is used for all other providers could be used so that the concern can be addressed without tens of thousands of families believing they are being discriminated against.

RECOMMENDATION:  Add a Performance Measure Due that would identify the number of LRIs for which objective written documentation and descriptions of concerns raised by DMAS about the appropriateness of the LRI in this role and the extraordinary care that is provided by the paid LRI.

 

Appendix C: Participant Services, Quality Improvement: Qualified Providers, Methods for Remediation/Fixing Individual Problems, page 178

The sub-assurance addressing the provision of consumer-directed personal assistance services may identify problems with the development of objective written documentation and description of the extraordinary care to be provided by the LRI as a paid provider.

RECOMMENDATION:  If DMAS identifies problems with this sub-assurance, the case manager/support coordinator and services facilitator will be required to develop and implement a corrective action plan.

 

Appendix C: Participant Services, C-1/C-3: Provider Specifications for Service, Services Facilitation Provider, Other Standard, 4^th paragraph, page 88

Service facilitation provided by a case manager, if this is the choice of the individual, avoids multiple visits to an individual’s home by different providers. This practice has been allowed since 2000 and is preferred by the majority of individuals, where the option is still available. Since the 2016 changes to how individuals access and receive private case management, the availability of private case management has decreased dramatically. Hence, the choice of individuals to receive services facilitation from their private case management provider is an issue for a very small number of individuals who are afforded the choice of private case management. Nonetheless, it remains a valuable option for the small number of individuals who have choice of case management providers.

RECOMMENDATION:  Maintain the current practice of allowing individuals to choose to receive their services facilitation from their DD case manager.

 

Appendix C: Participant Services, C-1/C-3: Provider Specifications for Service, Personal Assistance Services, Service Definition, page 76

State Code allows personal assistance services to include some skilled nursing tasks through nurse delegation (54.1-3000).

RECOMMENDATION:  Include language for nurse delegation, when appropriate, that follows the provisions in State Regulation 18VAC 90-19-240.

 

Appendix C: Participant Services, C-1/C-3: Service Specification, Personal Assistance Services, Service Definition, page 76

The draft Application states that individuals who elect to use consumer-directed services may choose a services facilitator to provide training and guidance. When individual elects to use consumer-directed services, but does not choose a services facilitator for training and guidance, services facilitation is not required.

RECOMMENDATION:  Include in the Application, the process for the individual to initiate and continue consumer-directed services in the absence of services facilitation. This process should include a description of the role of the employer of record and role of the support coordinator or case manager.

 

Appendix C: Participant Services, C-1/C-3: Provider Specifications for Service, Consumer-Directed Attendant Care, Other Standard, 1^st paragraph, 2^nd sentence, page 79

The employer of record may be anyone qualified and chosen by the individual, or other if the individual has a guardian.

RECOMMENDATION:  Clarify that family members and caregivers are not the only persons who can be the employer of record for the individual. A friend, neighbor or other may service as the employer of record.

 

Appendix C: Participant Services, C-1/C-3: Provider Specifications for Service, Consumer-Directed Attendant Care, Other Standard, 5^th paragraph, page 79

Appendix C: Participant Services, C-1/C-3: Service Specifications for Service, Respite, Individual, Consumer-Directed Respite Care Assistant, Other Standard, page 83

The draft Application states that the consumer-directed assistant will not be compensated after receipt of a records check or Child Protective Services (CPS) Central Registry that resulted in a barrier crime. The cessation of wages/compensation should occur only after appropriate notice has been provided to the employer of record. The employer of record will not be notified by the reporting agency; rather the employer of record must depend on the fiscal agent to inform them of any barrier crimes or CSP findings. DMAS should provide the employer of record the opportunity to know about any prohibition of employment resulting from these record checks before ending compensation to the assistant. Adequate notice to the employer of record would provide the employer time to take any immediate, necessary action to protect the individual receiving services from negative action from an assistant whose wages/compensation has been ended by the fiscal agent. The working relationship between the individual, employer of record and the assistant can involve access to the individual’s home and personal belongings. It may be prudent that the employer of record be provided an opportunity to be aware that wages/compensation are ending so that they do not unknowingly continue to allow access to the individual’s home or schedule work hour for the assistant.

RECOMMENDATION:  When employment of an assistant must occur, it should be done so in a manner that protects the safety of the individual. The notice from the fiscal agent to the employer of record should be made confidentially, in a timely manner to allow time for the employer of record to take any prudent action, and in a manner that assures the fiscal agent’s notice has reached the employer of record before the fiscal agent takes action to end wages/compensation.

 

Appendix C: Participant Services, C-1/C-3: Service Specification, Respite, Service Definition, 4^th paragraph, page 81

The draft Application states that individuals who elect to use consumer-directed services may choose a services facilitator to provide training and guidance. When individual elects to use consumer-directed services, but does not choose a services facilitator for training and guidance, services facilitation is not required.

RECOMMENDATION:  Include in the Application, the process for the individual to initiate and continue consumer-directed services in the absence of services facilitation. This process should include a description of the role of the employer of record and role of the support coordinator or case manager.

 

Appendix C: Participant Services, C-1/C-3: Service Specification, Respite, Specify applicable (if any) limits on the amount, frequency, or duration of this service, 4^th paragraph, page 81

DMAS proposes that a legally responsible individual would not be eligible for respite. We agree.

RECOMMENDATION:  Add language to clarify that if the individual has an unpaid primary caregiver such as a second parent, friend or other family member, the individual may qualify for respite services based on the support they receive from an unpaid caregiver.

 

Appendix C: Participant Services, C-1/C-3: Service Specification, Respite, Specify whether the services may be provided by, page 82

People with DD may have a legal guardian who is not the individual’s unpaid primary caregiver.

RECOMMENDATION:  DMAS should allow legal guardians to be the respite staff, if the legal guardian is not the unpaid primary caregiver.

 

Appendix C, Participant Services, C-1/C-3: Provider Specifications for Service, Provider Category, page 82

Provider categories can be “Individual” or “Agency”. These categories are not listed in a consistent format/order throughout the draft Application.

RECOMMENDATION:  For those services that are offered through both the individual and agency categories, the Application should consistently list individual or agency first in each service section under this “Provider Category” item.

 

Appendix C: Participant Services, C-1/C-3: Service Specification, Services Facilitation, Specify applicable (if any) limits on the amount, frequency, or duration of this service, page 87

Depending on the service and specific program requirements, the frequency of services facilitation visits should be determined based on the needs of the individual through a discussion with the services facilitation organization.

RECOMMENDATION:  Clarify requirements for the frequency of visits.

 

Consumer Choice & Direction of Family Personal Care Attendants

 

Pg. 176 of 333, “Family members living under the same roof as the individual being served may not provide services unless there is objective written documentation completed by the case manager/support coordinator as to why there are no other providers available to provide services.

The individual’s case manager/support coordinator is instrumental in ensuring that services are appropriate for individuals. If the case manager/support coordinator does not feel that it is in the best interest of the individual for a certain family member or legal guardian to be a paid service provider, it is his/her responsibility to address this. The case manager/support coordinator must verify that situations or serious extenuating circumstance exists that necessitates a family member as provider. The case manager/support coordinator must ensure that there was previously no barrier to the family member being a provider (i.e., slot assignment information included references to the family’s inability to care for the individual). The case manager/support coordinator must monitor the situation to ensure that the individual’s growth toward independence is not hindered by having a family member as a paid support person and that the family member remains aware that there is a different relationship once he/she is paid to support the individual.

Payment may only be made for services furnished by other family members who are living under the same roof as the individual receiving services if there is objective, written documentation as to why there are no other providers available to provide the care. This documentation must demonstrate that there are no other persons available to provide supports to the individual other than the unpaid family/caregiver who lives in the home with the individual. Examples of such documentation may be: (i) copies of advertisements and/or interview notes showing unsuccessful efforts to hire a consumer-directed assistant; (ii) documentation indicating high turnover in consumer-directed assistants or other paid staff; (iii) documentation supporting the individual’s special medical or behavioral needs which can only be safely met by a family member; (iv) documentation of the repeated inability to obtain service providers due to the family’s remote location; (v) documentation of the failure of multiple providers to adequately provide supports to the individual or; (vi) documentation indicating that language is a factor in service delivery. Such family members, if approved to provide services for the purpose of receiving Medicaid reimbursement, shall meet the same provider requirements as all other licensed providers.”

 

There is no ethical or business case for prohibiting family or household members from providing paid care to individuals who are eligible to hire and direct their own attendants and comply with every regulation. No evidence anywhere demonstrates that non-household members are more cost-effective than family members, but there are plenty of studies that show they are. The rationale that this is an existing regulation that just wasn’t enforced until after the pandemic began winding down is not sufficient to violate individual choice rights and force individuals to accept very personal and private care from any “other available person.” This language represents several concerning rights violations, especially given the decade-long U.S. DOJ Settlement Agreement:

 

• This language assumes that “family members living under the same roof as the individual being served” is only appropriate in “serious extenuating circumstances” and should therefore be a last resort. This is contrary to the entire purpose of CMS’ HCBS program and directly violates the individual’s rights to individual choice and consumer-directedness that the Commonwealth is committed to protecting.
• The case manager/ support coordinator (CM/SC) is a mandated reporter, and if s/he “feels it is not in the best interest of the individual for a family member to be a paid service provider”, then it’s also not in their best interest to be an unpaid caregiver or be living under the same roof. This language describes reportable concerns that should explore removal from the home, not making the CM/SC “responsible for addressing this” by demanding “objective written documentation” about why it is acceptable.
• The title and intent of this service is consumer-directed, and in every other service consumer choice and self-determination is a key element for which many safeguards are designed. There are also safeguards in place for individuals who make choices that harm themselves or others, including incompetency hearing for the individual or the guardian, such as if they choose to hire and direct anyone, family member or otherwise, who the CM/SC is concerned about the best interest of the individual.
• Family members who are acceptable as paid consumer-directed attendants under this policy are required to “meet the same provider requirements as all other licensed providers.” Personal attendants are not interchangeable based on only their availability. Many studies show that family caregivers are the most effective, affordable, and acceptable providers for people with disabilities. Even managed care organizations and insurance companies, as well as CMS recognize that the costs of licensed providers far exceed non-licensed, consumer-directed providers. What is the intention of this rights-violating policy? It isn’t to save costs because the only way this policy will save costs is if no one at all is authorized to be a paid provider.

 

Change this language to reflect the values of our community. In the Commonwealth, individuals choose and direct their own personal care attendants, period.

 

Parents/ Spouses as Paid Attendants

 

Pg. 174-176 of 333 regarding parents of minors/ spouses as paid caregivers.

• Families deserve the opportunity for provider choice to include Consumer-Direction as an option.
• What about the families that do not have access to Agencies in their areas?  It is prohibitive towards individuals that live in rural areas that already have difficulties obtaining services for lack of providers.
• 40 hour cap on parents/spouse as PCAs - some families have plans of care above and beyond 40hrs because plans of care are based on level of care need.
• Losing respite - just because 1 parent is a paid PCA does not mean that the unpaid PCG DOES NOT need relief.
• Application is unclear since the application is only for FIS/BI.  The language found within the application impacts CCC+ and CL.  When will those be updated and providers/members advised of those changes?