Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Board of Behavioral Health and Developmental Services intends to consider amending 12VAC35-230, Operation of the Individual and Family Support Program. The purpose of the proposed action is to facilitate compliance with the U.S. Department of Justice Settlement Agreement with Virginia (United States of America v. Commonwealth of Virginia, Civil Action No. 3:12cv059-JAG) for the development of a comprehensive and coordinated set of strategies that are designed to ensure that families who are assisting family members with developmental disabilities (DD) or individuals with DD who live independently have access to person-centered and family-centered resources, supports, services, and other assistance. The Individual and Family Support Program (IFSP) is intended to support the continued residence of any individual with DD on the waiting list for a Medicaid Home and Community-Based Services (HCBS) DD Waiver in the individual's own home or the family home, which includes the home of the principal caregiver.

Item 313 NN of Chapter 2 of the 2022 Acts of Assembly, Special Session I (the 2022 Appropriation Act) requires the Department of Behavior Health and Developmental Service to "... promulgate emergency regulations for the Individual and Family Supports Program (IFSP) to ensure an annual public input process that shall include a survey of needs and satisfaction in order to establish plans for the disbursement of IFSP funding in consultation with the IFSP State Council. Based on the Council's recommendation and information gathered during the public input period, the department will draft program guidelines to establish annual funding priorities. The department will establish program criteria for each of the required program categories and publish them as part of the Annual Funding Program Guidelines. Additionally, program guidelines shall establish eligibility criteria, the award process, appeals processes, and any other protocols necessary for ensuring the effective use of state funds. All criteria will be published prior to opening the funding opportunity. The Individual and Family Support Program (IFSP) is intended to support the continued residence of any individual with DD on the waiting list for a Medicaid Home and Community-Based Services (HCBS) DD Waiver in his own or the family home, which includes the home of the principal caregiver."

Pursuant to Item 313 NN of Chapter 2 of the 2022 Acts of Assembly, Special Session I, the proposed action would change the current distribution of annual IFSP funds from a first-come, first-served basis to one based on program categories and set criteria developed through annual public input process that includes a survey of needs and satisfaction in order to establish plans for the disbursement of IFSP funding in consultation with the IFSP State Council. The proposed action would establish (i) eligibility criteria, (ii) the award process, (iii) the appeals processes, and (iv) other protocols necessary for ensuring the effective use of state funds.

In addition, pursuant to the Office of Regulatory Management procedures and § 2.2-4007.1 of the Code of Virginia, the agency is conducting a periodic review and small business impact review of this regulation to determine whether this regulation should be terminated, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare; (ii) minimizes the economic impact on small businesses consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

The agency does not intend to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 37.2-203 of the Code of Virginia.

Public Comment Deadline: March 1, 2023.

Agency Contact: Ruth Anne Walker, Director of Regulatory Affairs, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 4th Floor, Richmond, VA 23219, telephone (804) 225-2252, FAX (804) 371-4609, TDD (804) 371-8977, or email ruthanne.walker@dbhds.virginia.gov.