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:
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:
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.