3/24/23

Department of Medicaid Assistance Services 

ATTN:  Jason Perkins, Program Manager/Waiver Operations 

Suite 1300 

600 East Broad Street 

Richmond, VA 23219 

RE: Comment on DRAFT FIS Waiver Renewal Application

The disAbility Law Center of Virginia (dLCV) appreciates this opportunity to comment on the DRAFT Family and Individual Supports (FIS) Waiver Renewal Application. As the Protection and Advocacy system for the Commonwealth of Virginia, dLCV frequently represents DD Waiver members whose Medicaid services have been denied or reduced. Some of the individuals that dLCV has represented in recent years have benefited from the pandemic-era rules allowing legally responsible persons to provide personal care services to their children. dLCV appreciates the need to ensure that appropriate guardrails exist to prevent fraud in the Medicaid program and to ensure that Medicaid Waiver-funded services are in the best interests of the Waiver members who receive them. We have concerns, however, that some of the guardrails included in the FIS renewal application may be unduly restrictive, impractical in the immediate term, and result in delays and arbitrary decision-making in the service authorization process. We also encourage DMAS to ensure that the due process rights of Medicaid Members are respected in the DD Waiver service authorization process by reiterating and strengthening the rights of Waiver individuals to receive adequate written notice at least ten (10) days before the effective date of any decision that reduces, suspends, or terminates the individual’s previously approved Medicaid services.

1. Appendix C-2: General Service Specifications 

Recommendations re. Objective, Written Documentation Requirements:

To prevent unnecessary delays and inconsistent and arbitrary service authorization decisions, DMAS should:

1. Clearly describe the types of documentation that will be required to satisfy the heightened documentation requirements for service authorization of personal care services when a legally responsible person provides the service; and
2. Ensure that prior to implementation of any heightened documentation requirements, service authorization consultants, support coordinators, and Wavier individuals and their families receive training and clear guidance on how these requirements should be implemented.

Explanation:

Under existing rules, a family member who lives under the same roof as a Waiver individual (live-in family members) may not be compensated as a personal care attendant unless there is “objective written documentation” that shows why there are no other providers available to provide the service.[1] Examples of such documentation are enumerated in the applicable DMAS regulation:

Examples of such documentation may be (i) copies of advertisements showing efforts to hire; (ii) copies of interview notes; (iii) documentation indicating high turnover in consumer-directed assistants who provide, via the consumer-directed model of services, personal assistance services, companion services, respite services, or any combination of these three services; (iv) documentation supporting special medical or behavioral needs; or (v) documentation indicating that language is a factor in service delivery.[2] 

Despite the enumeration of specific examples of documentation that is sufficient to satisfy the enhanced documentation requirements for live-in family members, feedback that we have received from some Waiver individuals and service facilitators suggests that this existing standard is not consistently applied. Instead, the documentation requested may differ from service authorization consultant to service authorization consultant, and from year to year for the same individual.

The DRAFT FIS Waiver Renewal Application includes additional documentation requirements when legally responsible persons provide personal assistance services, including documentation that establishes that:

1. The care the legally responsible person provides is “above and beyond what the legally responsible individual is obligated to provide;”
2. There are “no other alternatives to the legally responsible individual providing the care and that there are no other viable service/provider alternatives;” and
3. The provision of personal care by the legally responsible individual is in the “best interest” of the Waiver individual.

There is no clear guidance in the Waiver application itself as to what specific documentation will satisfy these new documentation requirements. It appears that “no other alternatives… and no other viable service/provider alternatives” is more restrictive standard than the “no other providers available” standard that applies to other live-in family members; but without more specific guidance on what these standards mean, one can only speculate as to just how much more restrictive these standards will be in practice.

We are also concerned that a lack of clarity in these new standards and resulting inconsistencies in their application will result in service authorization decisions that are inconsistent and arbitrary. To avoid these results, it is imperative that DMAS clearly articulate the documentation that will satisfy these heightened requirements and provide clear guidance, training, and quality oversight to those who will be tasked with enforcing and complying with them.

Recommendations Re. the Proposed Elimination of Consumer-Directed Option:

1. Continue to allow legally responsible persons to provide personal care services through the consumer-directed model with enhanced service facilitation; and
2. Require Waiver individuals who employ legally responsible persons through a consumer-directed model to use service facilitation with enhanced oversight, supervision, and training standards.

Explanation:

The Home and Community Based Services workforce crisis predates the Covid-19 Pandemic, and it was substantially exacerbated by it.[3] The Appendix K flexibility allowing legally responsible persons to provide personal care services to their children or spouses offered a lifeline to families who struggled before the pandemic to find reliable, trustworthy personal care services for their loved ones. Each of dLCV’s clients who have used this option did so through the Consumer Directed model. Many informed us that they had previously attempted to use the agency-directed model, but were unable to find an agency at all that would serve individuals with their children’s needs in their area of the state, or were unable to find one that offered reliable supports. Based on the input that we have received from these families, dLCV is not confident that the current stock of personal care agencies are prepared to hire, train, and provide the enhanced supervision for legally responsible persons that the DRAFT FIS Waiver Application describes in every region of the Commonwealth. We are concerned that the forced transition of every legally responsible personal care attendant from the consumer-directed to the agency-directed model will not be accomplished without at least some individuals suffering service interruptions and unnecessary hardship. These service disruptions could place some Waiver individuals at heightened risk of institutionalization if they hinder their family’s ability to support them in their homes, which would conflict with Virginia’s ongoing efforts to comply with its obligations under the DOJ Settlement Agreement.

               One of DMAS’s stated reasons for eliminating the consumer-directed option for Waiver individuals who choose to employ a legally responsible person is that this model “Provides support from a licensed provider and quarterly in-home visits by a RN or DBHDS licensed provider agency’s supervisor which ensures the plan of care/plan for supports is adequately monitored and the participant’s needs are met.” This same level of oversight and support, however, could be accomplished through the existing service facilitator framework without forcing Waiver individuals to shift to an agency-directed model. DMAS could require all individuals who wish to employ a legally responsible person to use service facilitation, and could impose heightened training, oversight, and supervision responsibilities to service facilitation providers in this scenario.

2. Appendix F-1: Opportunity to Request a Fair Hearing

Recommendations re. Waiver Individual Due Process Protections:

To ensure that the due process rights of Medicaid individuals are protected during the service authorization process, DMAS should amend Appendix F-1 to:

1. Explicitly state that previously approved services may not be reduced, suspended, or terminated during the ISP reauthorization process until the Waiver individual has received advance written notice at least ten (10) days prior to the effective date of the decision to reduce, suspend, or terminate such services;
2. Automatically continue previously approved services until at least ten (10) days after a final decision is issued any time a timely submitted service reauthorization request is “pended” such that a final decision will not be issued until after the start date of a new Individualized Support Plan (ISP) year;
3. Ensure that all DD Waiver members receive written notice that meets the requirements of 42 CFR §§ 210 – 211, and is afforded an opportunity to appeal any time the individual’s services are reduced below what was determined appropriate at the annual ISP meeting and initially submitted to the Department for Service Authorization. This should include instances when service authorization consultants nominally “pend” a service authorization request to instruct support coordinators to submit revised service authorization documents reflecting fewer services, or fewer hours of services than were agreed to at the annual ISP meeting.

Explanation:

Appendix F-1 of the FIS Waiver Application explains the procedures that must be followed when a DD Waiver service is denied, reduced, or revoked. Current DD Waiver service authorization practices, in at least some circumstances, are inconsistent with both the procedures described in Appendix F-1, and with the provisions of 42 CFR §§ 210 – 211. According to the procedures described in Appendix F-1, DD Waiver individuals must be notified in writing of any decision to deny, reduce, or revoke a Waiver service. This notice must be “issued at least 10 days prior to the date of action” unless an exception applies; and it must include specific information, including what action the agency intends to take, the reason(s) for the intended action, and an explanation of the individual’s appeal rights. These requirements mirror the provisions of 42 CFR §§ 210 – 211.

Contrary to the advance written notice procedures described in Appendix F-1, some DD Waiver individuals experience service reductions and other adverse actions without any written notice at all; and sometimes Waiver individuals are not informed of a reduction in their previously approved services until after the effective date of the decision to reduce those services. Sometimes the effective date of these retroactive reductions is weeks or months before the final decision was even made.

Pursuant to the DD Waiver provider manual, Appendix D, service authorizations may be “pended” when “additional information is needed from the provider.”[4] If a request is “pended” twice, and the provider still fails to submit sufficient information, then the request may be “rejected,” after which a new service authorization request must be submitted.[5] Neither “pends” nor “rejections” are considered adverse actions, so there is no right to written notice or to appeal a “pended” or “rejected” service authorization.[6]

According to feedback that dLCV has received from Waiver individuals, families, service facilitators, and service authorization consultants, it is not uncommon for service authorization requests for personal care services to be “pended” multiple times and for a final decision to be made weeks or months after the requested start date for the service. This often occurs during the annual reauthorization of previously approved personal care services, and there is apparently no mechanism for continuing the previously approved services at their previously approved rate during the pendency of the reauthorization request. This leaves the DD Waiver individual in limbo for weeks or months, having to either go without services that were previously approved, or risking having those services delivered but not compensated in full if the final decision consists of a retroactive reduction in the amount of services approved.

dLCV has also been made aware of instances when service authorization consultants have “pended” a service authorization request, not only to request additional information, as is described in the DD Waiver provider manual, but also to instruct the support coordinator and provider to resubmit the request for fewer service hours. When this occurs and the provider and support coordinator acquiesce, the Department treats the final approval of these services as a favorable decision, even if the result is a reduction in the Waiver individual’s previously approved services. Because these decisions are treated as favorable, the individual receives no written notice explaining why the service was reduced, and no notice of the individual’s right to appeal this reduction in services. These processes effectively deny Waiver individuals their due process rights by retroactively reducing, suspending, or terminating their previously approved services without written notice and without an opportunity to appeal. We are concerned that the heightened scrutiny that DMAS intends to apply to service authorization requests for personal care services when a legally responsible person is the provider of those services will exacerbate these due process violations unless the Department takes immediate steps to protect the due process rights of DD Wavier individuals.

Thank you for opportunity to comment on this document. If you have further questions regarding our concerns, please direct them to Robert Gray, dLCV Director of Compliance and Quality Assurance, at 804-225-2042 or Robert.gray@dlcv.org. 

Sincerely,

Colleen Miller

Executive Director