Virginia Regulatory Town Hall
Department of Medical Assistance Services
Board of Medical Assistance Services
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3/15/23  7:59 pm
Commenter: Anonymous

Public Comment

This comment is in reference to the proposed changes to "Application for 1915(c) HCBS Waiver: Draft VA.006.05.00 - Jul 01, 2023", specifically Major Change #3 - Allowing for the provision of legally responsible individuals to provide the personal assistance service (pages 174-176).

While this wording makes the change sound innocuous, the proposed changes are anything but.
1. The underlying premise of home and community based waiver services is: "to provide support in the community for individuals with intellectual and developmental disabilities in lieu of an Intermediate Care Facility for Individuals with Intellectual Disabilities.  The goal of the Family and Individual Supports Waiver is to enable those community residents in need of supports, particularly those living with family members, to retain their community resident status through receiving those supports. (pg 4)"
- The stated goal of the FIS waiver is to keep the disabled member in the family home. It should be obvious that family are the first and most appropriate caregivers. Oftentimes, a family member leaves a career in order to provide that care but then that places an enormous financial strain on the family. Being able to be hired by the consumer to provide that care helps fill in the financial burden. 
The State should be encouraging and incentivizing family members to care for their own instead of making it harder to provide the care. Without these family caregivers (who are willing to do it for $12.70 an hour) the disabled individual would be at risk to be placed in a Care Facility that would cost the State nearly four times as much.
2. "Legally responsible individuals (parents of minors and spouses) may provide the personal assistance service. In order to qualify as the paid aide for the service, the parent/spouse must demonstrate that the care they would be compensated to provide is above and beyond what the legally responsible individual is obligated to provide. There must be objective written documentation presented at the time of service authorization that demonstrates that there are no other alternatives to the legally responsible individual providing the care and that there are no other viable service/provider alternatives." (pg 175)
"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."(pg 176)
- These requirements to provide "objective written documentation" place an undue burden upon the family members. This documentation could be hiring ads, proof of high turnover, no one willing to work for $12.70 an hour, etc. Basically the State is requiring the family to prove that they can not hire someone else to provide the care that they are ready and willing to provide.
Why does it matter to the State if it's a parent, a sibling or an individual hired off of the street that provides the care, as long as they are legally able to do so?
3. "Limits are placed on the legally responsible individual's provision of paid care. The legally responsible individual must be employed by a personal care agency, and thus meet all of the same requirements as other personal care aides. Legally responsible individual aides shall also be limited to provide 40 hours of compensated care per week." (pg 175)
- Oftentimes the consumer has been approved for care of 45, 56, 80 hours a week of care. The 40 hour limit is not based on the individual needs of the waiver recipient, does not follow the service authorization process, and is not based on fair labor laws or other VA Code.  Live-in attendants currently have no limits on hours worked but no ability to claim overtime, and non live-in attendants are limited by fair labor laws to 40 hours plus 16 hours of overtime. 
Placing these limits further impedes the consumers' care if a second attendant can't be found in order to work the remaining time on their service authorization.
This places a financial burden upon the family who is already in the home and able to provide the care.
4. "Legally responsible individuals as aides must be employed by a licensed DMAS-enrolled provider agency or DBHDS-licensed provider that is responsible for the oversight of and payment for the services. On-site monitoring of the services will be performed by the agency RN or a licensed DBHDS provider agency's supervisor at a minimum of every 90 days." (pg 175)
"The Family and Individual Support waiver offers qualifying individuals the opportunity to obtain either agency-directed services or consumer-directed services, or both." (pg 4)
-This proposed change takes away the consumers right to self directed care and forces an already overworked and understaffed agency to take on hundreds of new family-member employees to their system.
If the State knows that there are over 14,000 people on the DD waitlist and over 1300 in Priority One status and they had to hold off 600 slots for year 2022 because there was not provider capacity and that has not improved in 2023, then why are they trying to put undue hardship upon families who are ready and willing to care for their family members who have a disability. 
The State should be incentivizing and helping these families care for their own, not penalizing them with unnecessary regulations. 
Virginia has an unfortunate track record in caring for its most vulnerable population. The US Department of Justice's Investigation of the Commonwealth of Virginia's Compliance with the Americans with Disabilities Act from 2011 resulted in a Settlement Agreement, that 10 years later, the Commonwealth has still not fulfilled all of the requirements of that agreement. (
Most recently the US Department of Education put VDOE on notice for its failure to comply with requirements under the Individuals with Disabilities Act. (
Family members of people with disabilities have to advocate and fight with insurance companies, medical supply companies, doctors offices, school districts, etc to get the basic needs of their loved ones met.
I know that this great Commonwealth can do better. I ask that DMAS, DBHDS and the Commonwealth of Virginia's governing bodies not make regulations that harm the most vulnerable population and allow their family members to care for them without adding additional burdens.
Application for 1915(c) HCBS Waiver: Draft VA.006.05.00 - Jul 01, 2023:
With Respect, 
Erika R
CommentID: 211999