Comment on the CCC Plus, CL and FIS Waiver Amended Applications Regarding Legally Responsible Individuals as Paid Attendants
The Virginia Association of Centers for Independent Living (VACIL) is a private, non-profit, consumer-directed, statewide association of the 17 Virginia Centers for Independent Living (CILS). VACIL advocates for the integration and inclusion of people with disabilities into all aspects of society.
Consumer-Direction without Services Facilitation
Current Applications state that individuals who elect to use consumer-directed services may choose to use services facilitation. The Applications should include the process for the individual to initiate and continue consumer-directed services in the absence of services facilitation.
DMAS-95B
The Applications should require use of the DMAS-95B or a similar form to document the appropriateness of the employer of record, if the individual (spouse) is not going to be their own employer of record. This could also be useful in documenting the appropriateness or need for additional training by an EOR for a minor-aged child.
Documentation of Supports Provided
It is understood that based on a previous federal audit of DMAS consumer-directed service, there must be a new requirement for all attendants to record the supports provided daily. The Applications should clarify that this new requirement will be met with the use of a daily record, and not an hourly record.
Electronic Visitation Verification (EVV)
If the LRI is a live-in paid staff, do not require the use of EVV.
Employer of Record
If the individual (spouse) or parent of a minor-aged child is unable or opts not to be the employer of record, they should not be limited to only their family members or caregivers as the employer of record. A friend, neighbor or other could serve as the employer of record, regardless of physical distance of the individual and the EOR, so long as the EOR performs the required duties.
Hours Worked by Each Legally Responsible Individual
Permit LRIs regardless of living status, to provide up to 56 hours a week of personal care. This would be in line with what is allowed for attendants who are not live-in staff. Clarify that this limitation is not a restriction on the number of hours that may be authorized for the individual.
Medication Administration
DMAS has appropriately added language regarding the role of the services facilitator, if the facilitator is not a registered nurse. However, the language still states for consumer-directed services, “Consumer-directed personal assistance or respite employees may assist with the administration of medication that would typically be self-administered, but because of a disability, they are unable to do so. The individual must be able to supervise and direct the attendant in how to administer the medication.“ With the amendments to allow parents of minor-aged children to be paid attendants, this language needs further clarification since the child would not supervise and direct their parent in the administration of medication.
Nurse Delegation of Skilled Tasks
It is important that the amendments reflect the allowance for nurse delegation if the legally responsible individual will provide skilled tasks as a Medicaid-funded provider. Individuals may use consumer-direction for a skilled service through nurse delegation (54.1-3000). In addition, individuals may use consumer-direction for a skilled service as described in 54.1-3001 A.12.
Planning for Young Adults
In situations in which the LRI is a parent of a minor-aged child, at the age of 18, require objective written documentation describing how the individual will be involved with integrated community activities, including school and/or employment and additional description of why it is in the best interest of the individual that their parent provide personal assistance services.
Respite
DMAS proposes that “Individuals who receive personal care from a legally responsible individual (spouse or parent of the minor waiver individual) shall not be authorized for the respite service, since the legally responsible individual, as primary caregiver, is paid.” This is inappropriate. If there is another LRI or other person who is the individual’s unpaid caregiver, respite should be allowed for this unpaid caregiver.
Timely Submission
Require that a case manager/support coordinator/care 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.
Restraints and Seclusion Prohibition
The Applications state that mechanical and physical restraints can be used “when the behavior places him or others at imminent risk”. Nonetheless, the narrative includes details about the provider’s duties that call for the removal of the restraint when the “criteria for removal are met”. The criteria is unclear. It appears, the restraint may continue beyond its purpose of preventing imminent risk. The restraint should end immediately when the individual or others are no longer at imminent risk of serious bodily injury. The narrative includes a timeline for limiting the restraint to a certain number of hours depending on the age of the individual. There is minimal notice required about the use restraint. There does not appear to be any restrictions, guidance or notice requirements regarding the prohibition of restraints and seclusion. The Applications should clarify that restraints can only be used when the individual’s behavior places him or other at imminent risk of serious bodily injury and that the restraint must be removed immediately upon cessation of imminent risk.
Timesheet Review
The draft Application would require the services facilitator to “review timesheets during the face-to-face visits” to ensure the approved hours are not exceeded. This is a provision that existed prior to the use of electronic time records. This services facilitation task is no longer practical or needed. The fiscal agent software prevents payment of services above the approved hours.