Andrew Greer, Senior Policy Analyst

Office of Community Living

Virginia Department of Medical Assistance Services

600 East Broad Street

Suite 1300

Richmond, VA 23219

Re: Proposed Changes to Medicaid Waivers                                  

Dear Mr. Greer:

The disAbility Law Center of Virginia (dLCV) is Virginia’s designated protection and advocacy organization. We advance the rights of Virginians with disabilities under several federally funded programs, including the Protection and Advocacy for Individuals with Developmental Disabilities (PADD) program.

Thank you for this opportunity to comment on proposed changes to the Family and Individual Supports (FIS), Community Living (CL), and Commonwealth Coordinated Care Plus (CCC+) Medicaid Waivers. dLCV provides the following comments for consideration.

1. dLCV opposes adding a 56-hour “soft cap” for personal assistance with the same exception criteria that is currently in the CCC+ Waiver for more hours. (CL, FIS)

dLCV understands DMAS’s interest in adding a “soft cap” on personal assistance care for the CL and FIS Waivers to align with the suggested limits in the CCC+ waiver. However, we are concerned the artificial cap will serve as a barrier to accessing necessary care for individuals on these Waivers. As it stands, the 56-hour “soft cap” on personal assistance under the CCC+ Waiver is often implemented as a hard limit, regardless of what documentation an individual or their family provides to show the supports they need.

Further, the process of establishing an Individual Support Plan is person-centered, “based on the individual's assessed needs, preferences, and the individual's family/caregiver preferences, as appropriate.”[1] Imposing an artificial “soft cap” on services would bias the planning process against the person who is to receive services, as they would need to jump through additional hoops to justify the care they require on a day-to-day basis. This will be made worse by DMAS’s current proposal that “any existing active authorization for personal assistance” that exceeds 57 hours per week of personal assistance “shall be automatically adjusted to 56 hours” after the proposed changes are implemented.[2] If a FIS or CL Waiver recipient would like to keep their current level of care, they would need to seek additional documentation of their needs—which have already been established and periodically reviewed during their person-centered planning process—submit updated service authorizations, and potentially appeal a reduction in hours from DMAS. Because the support planning process is already meant to be individualized and person-centered, adding this barrier is unnecessary.

2. dLCV supports correcting requirements for when a Legally Responsible Individual is the paid aide/attendant for personal care/assistance to match current practices. (CL, FIS)
3. dLCV agrees that DMAS should align the requirements for care by a Legally Responsible Individual with current practices and recent DMAS guidance.[3] Clarifying these requirements is necessary to ensure Waiver recipients and their families can understand what to expect when they request personal care services under the CL and FIS Waivers, rather than leaving individuals to try to reconcile differences between policy and practice on their own.

3. dLCV opposes removing the requirement that a higher level review by a DMAS nurse is performed following a Level of Care Review (LOCERI) that finds the individual no longer meets criteria. (CCC+ only)

This amendment would remove a crucial quality control mechanism by which DMAS can verify Managed Care Organizations and other DMAS contractors are correctly reviewing an individual’s Level of Care for CCC+ Waiver eligibility. Rather than DMAS double-checking the work of third parties, it would shift the burden to Waiver recipients and their families to appeal any erroneous Level of Care determinations in the first instance. DMAS has not provided any justification for removing this important quality control measure.

Sincerely,

Colleen Miller