TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Proposed Regulation

Title of Regulation: 12VAC35-230. Operation of the Individual and Family Support Program (amending 12VAC35-230-10, 12VAC35-230-20, 12VAC35-230-90, 12VAC35-230-100, 12VAC35-230-110; adding 12VAC35-230-31, 12VAC35-230-35, 12VAC35-230-45, 12VAC35-230-55, 12VAC35-230-65, 12VAC35-230-75, 12VAC35-230-85; repealing 12VAC35-230-30, 12VAC35-230-40, 12VAC35-230-50, 12VAC35-230-60, 12VAC35-230-70, 12VAC35-230-80).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 26, 2024.

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.

Basis: Section 37.2-203 of the Code of Virginia authorizes the State Board of Behavioral Health and Developmental Services to adopt regulations that may be necessary to carry out the provisions of Title 37.2 of the Code of Virginia and other laws of the Commonwealth administered by the Department of Behavioral Health and Developmental Services (DBHDS) and the Commissioner of DBHDS.

Purpose: These amendments are essential to protect the health, safety, and welfare of individuals with developmental disability (DD) who are on the waiting list for a Medicaid Home and Community-Based Services Developmental Disability Waiver and who reside in their own or their family homes, which include the home of the principal caregiver. The change from the current distribution of annual funds from a first-come, first-served basis will be to one based on program categories and set criteria that will be more needs-based and that has significant stakeholder input. The department, based on information gathered through public input and in consultation with the Individual and Family Support Program (IFSP) State Council, shall annually establish eligibility criteria, the award process, the appeals process, and any other protocols necessary for ensuring the effective use of state funds.

Substance: Amendments to 12VAC35-230 make clear the procedures for funding awards that (i) detail the criteria for annual awards that must be reviewed annually; (ii) set out that the IFSP State Council will work in consultation with DBHDS to establish eligibility criteria, the award process, the appeals process, and any other protocols necessary for ensuring the effective use of state funds; (iii) require additional stakeholder comment be sought; and (iv) clarify the following expectations for DBHDS in regard to community coordination: (a) engage with the public and stakeholders to establish programming that encourages the continued residence of individuals with DD in community settings; (b) establish the IFSP State Council; (c) coordinate the development of strategic plans and activities that are consistent with the IFSP goals through the work of the council; and (d) provide technical assistance to individuals or family members for the purpose of facilitating the purchase services that are intended to enhance or improve an individual's or family's quality of life and promote the independence and continued residence of an individual with DD in each individual's own home or the family home, which include the home of a principal caregiver. Additionally, amendments make clear the department's responsibility regarding the establishment of procedures for eligibility determination, the award process, appeals process, and any other protocols necessary for ensuring the effective use of state funds. All procedures shall be published in draft form for public comment and in final form prior to opening the funding opportunity.

Issues: The primary advantage to the public is that people most in need of assistance will be considered based on defined categories of need. Also, the public will have the opportunity to comment annually on draft revisions of funding award procedures. The primary disadvantage to the public of implementing the amendments is that individuals on the waiting list for the Medicaid Home and Community-Based Services DD Waivers and their families will have to learn the new procedures for application for funding. Those who previously benefited from the first-come, first-served basis potentially may be categorized differently with the new structure. Additionally, a redesigned application portal will be available to the public that is intended to be more user-friendly. The primary advantage to DBHDS and the Commonwealth is confidence that the funds are distributed in a targeted manner. There are no disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. This regulatory action would make permanent an emergency regulation that has been in effect since January 19, 2023 and² that changed the distribution of Individual and Family Support Program (IFSP) funds from a first-come, first-served basis to one based on program categories and established criteria. This change results from Item 313.NN. of the 2022 Appropriation Act (Chapter 2, 2022 Special Session 1 Acts of Assembly).³

Background. IFSP assists individuals and their families who are on the waiting list for Virginia's Medicaid Home and Community-Based Services Developmental Disability Waivers with accessing short term, person-centered and family-centered resources, supports, and services. The purpose of the program is to support individuals with developmental disabilities living in the community, in either their own home or the home of a family member (which includes the home of the principal caregiver), until they start receiving services and supports from the Medicaid waivers. Unlike Medicaid waivers, which include federal funding, IFSP is fully funded from state general fund resources. The total annual amount of state funding has been $2.9 million since state fiscal year (FY) 2020, although funds available each year varied due to carry-overs of funding from previous fiscal years. In addition, prior to the emergency regulation up to $1,000 was available per person per year.

The impetus behind this action extends back to 1999, when the U.S. Supreme Court ruled in Olmstead v. L.C.⁴ that the Americans with Disabilities Act requires public services and supports to be furnished in the most integrated settings appropriate to each person's needs in order to prevent their exclusion from the rights of citizenship. In 2009, the U.S. Department of Justice (DOJ) Civil Rights Division launched an aggressive effort to enforce Olmstead v. L.C. The division was involved in more than 40 matters in 25 states including Virginia.⁵ In 2012, the Commonwealth of Virginia and DOJ signed a settlement agreement as a result of DOJ's investigation of services provided to individuals with intellectual disabilities in Virginia's training centers, as well as services in the community for individuals with intellectual and other developmental disabilities.⁶

In a 2021 report,⁷ the court appointed independent reviewer stated that while the Commonwealth continues to make progress, it is not fully meeting the requirements related to individual and family supports. This report prompted the General Assembly to pass Item 313.NN. of the 2022 Appropriation Act, which mandated the Department of Behavioral Health and Developmental Services (DBHDS) promulgate emergency regulations to change the current distribution of annual IFSP funds from a first-come, first-served basis to one based on program categories and established criteria. Specifically, DBHDS was mandated to create an annual public input process that includes a survey of needs and satisfaction in order to establish plans for disbursing IFSP funding in consultation with the IFSP State Council (an advisory group that pre-dates the emergency regulation).

DBHDS is currently using three main tools to meet the directives of the General Assembly: the State Plan, which sets goals and expectations; the program guidelines, which set the funding allocation and the items and services that will be covered based on priority levels; and the scoring instructions to Community Service Boards (CSB) on how to determine the priority levels as individuals on the waitlist are assessed by community services boards for assignment into a particular waitlist priority category.

The goals in the current state IFSP plan⁸ are as follows:

Goal 1: Ensure that at least 3,000 individuals with developmental disabilities and their families have access to funding that prioritizes those with the greatest needs and most at risk of institutionalization every year.

Goal 2: Establish an active individual and family council structure that is made up of one statewide council and a regional council in each of the five DBHDS regions for the purpose of assessing needs and distributing information to individuals on the waiting list.

Goal 3: Develop a comprehensive communication plan that provides information to individuals and families as well as stakeholders who support them at least semi-annually.

Goal 4: Ensure the IFSP Program will connect individuals to appropriate supports and services while waiting on the waiting list through My Life My Community, Family to Family, Peer Supports and/or the Regional Council Structure.

In order to achieve these goals, current funding guidelines⁹ establish the following distribution of funding based on the waiver waitlist priority categorizations of 1, 2, and 3, as follows:

Priority 1: 50% of funds ($1,250,000). A maximum of $1000 per approved recipient. Application period will be open until funding is exhausted. Funding approval will be given to individuals in Priority 1 who are most at-risk of institutionalization indicated by a Critical Needs Summary score, as well as the date and time of the application is received.

Priorities 2 and 3 (combined): 50% of funds ($1,250,000). A maximum of $500 per approved recipient. Application period will be open for a month and then closed. No applications will be reviewed or funds distributed before the application period is closed. Funding approval will be given randomly to applicants within Priorities 2 and 3 based on the number of applications received and funds requested not to exceed predetermined funding amounts. IFSP will award funds to a randomized sample until all applicants in Priority 2 and 3 have had opportunity to access funding before repeating funding for previous awardees.

This guideline also establishes a detailed list of items and services that eligible for funding under three categories: safe living, community integration, and improved health outcomes. The priority levels in turn are assigned by the Community Service Boards based on a separate guideline.¹⁰

The process of establishing goals, priority levels, and scoring are all subject to change over time based on the Council's recommendation and information gathered during the public input period. More specifically, DBHDS will draft annual funding priorities and program criteria for each of the required program categories. These priorities and criteria will then be published in draft form for public comment and then in final form, prior to opening the funding opportunity, as part of the annual IFSP review process. Additionally, DBHDS, based on information gathered through public input and in consultation with the IFSP State Council, must annually establish eligibility criteria, the award process, the appeals process, and any other protocols necessary for ensuring the effective use of state funds.

The legislative mandate has already been implemented through an emergency regulation that became effective on January 19, 2023, and is currently set to expire on July 18, 2024. This proposed action would make the emergency regulation permanent.

Estimated Benefits and Costs. Prior to the emergency regulation, the total annual funding made available for IFSP in the budget was distributed based on a first-come, first-served approach. The legislative mandate directed DBHDS to adopt a distribution methodology based on assessment of needs, and to review and revise the needs assessment annually. Consequently, the proposed permanent action mainly sets out that IFSP funding awards will be based on annual funding priorities and program criteria developed by the DBHDS, in consultation with the IFSP State Council.

According to DBHDS, it would be impractical to establish specific criteria in the regulation because the regulatory timelines and review process specified by the Administrative Process Act are too inflexible to accommodate changes to criteria that would be subject to annual review and revisions within the annual state funding cycle. Thus, rather than setting specific criteria in regulation, the proposal sets out a process to determine criteria according to which an individual's needs would be assessed for funding purposes. Since the specific criteria would be fluid based on annual reviews and feedback, the distribution of funds among eligible persons and the types of services would be subject to change over time depending on future reviews and criteria.

As part of the needs approach, DBHDS has established in program guidelines that Priority 1 awards would be limited to no more than $1,000 per applicant and comprise 50% of the funding, and Priority 2 and 3 awards would be limited to no more than $500 and combined they would comprise the remaining 50% of the funding. Priority 2 and 3 applications are pooled together for consideration of awards. In the past, any applicant could be awarded up to $1,000 if their application was submitted before other applications. DBHDS states that the goal of the IFSP is to minimize the risk of being institutionalized by considering both the individual circumstances of the applicant and their family, which is not consistent with a first-come, first-served approach. Thus, the request for use of funds must fall under a type of support (based on a published list of allowable expenditures) within three categories: safe living, community integration, and improved health outcomes. By utilizing the priority levels as the criteria for funding awards, state resources would be more appropriately distributed.

It is worth noting that the IFSP resources are limited by the amount of funds allocated by the General Assembly. Hence, nothing in this regulatory action would affect the total amount of funding. Instead, the main effect that would result from the proposed regulation is the distribution of funding among individuals and the types of services and supports they receive, as driven by the specific criteria adopted and updated by DBHDS on an ongoing basis.

The following table compares the funding distribution resulting from the different methodologies: fiscal year FY 2020 (which was based on first-come, first-served approach) and FY 2023 (which is based on a needs assessment).^{11, 12}

Funding, Applications and Awards	FY2020	FY2023
Total Funding	$2,500,226	$2,499,618
Applications Received	3,646	4,914
Applications Funded	2,531	3,770
Average Award Amount	$988	$663
Distribution of Requests by Type	FY $s and %	FY $s and %
Safe Living (Respite/Home repairs/Safety and Security Systems)	$646,170 (26%)	$923,133 (37%)
Improved Health Outcomes (Medical Care/Therapies/ Communication Devices)	$764,791 (31%)	$797,585 (32%)
Community Integration (Day Support/Transportation/ Summer Camps)	$647,996 (26%)	$778,900 (31%)
Emergency Supports (Rent or Mortgage/Utility Assistance)	$441,269 (18%)	$0 (0%)
Distribution of Funding by Priority Type	FY $s and %	FY $s and %
Priority 1 (up to a $1,000 award)	NA	$1,249,985 (50%)
Priority 2 (up to a $500 award)	NA	$703,179 (28%)
Priority 3 (up to a $500 award)	NA	$546,457 (22%)

Note that the decrease in the average award amount is driven in part by the increase in the number of applications received. Based on this comparison, the most significant result of the change in methodology appears to be in the distribution of funds by type of service. For example, emergency supports (which includes help with rent, mortgage, and utility assistance) has been eliminated and funds from this category have been redirected mostly to safe living (i.e., an 11% increase) and community integration (i.e., a 5.0% increase). According to DBHDS, the elimination of the emergency supports category occurred because IFSP funding is intended to meet one-time needs, not ongoing support needs such as rent, mortgage, and utility costs. In contrast, the funding amount allotted to improved health outcomes has seen only a modest increase (i.e., 1.0%).

Additionally, it appears that categorization of priorities would make some funding available at all priority levels. That is 50%, 28%, and 22% have been allotted to Priority categories 1, 2, and 3 respectively under the new distribution methodology. Awards in categories 2 and 3 would be given randomly, such that the percentage allotted would vary each year.

In theory, allocation of scarce resources based on needs rather than on a first-come, first-served basis should improve the efficiency of the distribution of funds and lead to better health, safety, and welfare outcomes in the aggregate. However, the expected improvement in outcomes results from the legislative mandate, not the regulatory change, because the regulation itself does not set the specific criteria. Instead, the regulation establishes a process wherein funding parameters (i.e., goals, priority levels, and scoring) will be revised on an ongoing basis outside the regulatory process. Moreover, this regulatory change does not result from a discretionary board action but rather the board's implementation of the legislative mandate.

Another effect of the legislative mandate, rather than the regulatory change, is an expected increase in administrative costs to continuously collect and evaluate data and revise the funding parameters on an annual basis. For example, the development of a new application process could potentially result in one-time costs for DBHDS staff to develop the new system. However, DBHDS reports ongoing efforts have contributed to greater technological functionality of the waiver system and IFSP system in recent years. The IFSP portal and the WaMS¹³ system have been connected in order to facilitate automation across the entire system that, overall, has contributed to a reduction in the manual work performed by staff during the application process. As such, additional staff time required to develop and establish criteria is offset by the reduction in needed staff time associated with the improved automation. Additionally, DBHDS is not aware of any increase in the number of appeals. Also, the functionality of the IFSP system is expected to improve as a result of this change. For instance, under the first-come, first-served system, individuals would rush to submit their application as soon as the system opened, which lead to two major crashes of the IFSP Web portal. As there is no longer an individual benefit to applying first, DBHDS expects to see reduction in transient pressures on their computer system. Similarly, DBHDS expects that the IFSP State Council as well as CSBs will be able to handle the increased role in their consultation responsibilities by using existing resources. Finally, eligible individuals and their families would have to learn the new procedures involved with the application for funding if they have not already done so.

In summary, while the change in the IFSP funding distribution method would affect the distribution of funds among the eligible individuals and introduce some administrative compliance costs, those effects are the direct result of the legislative mandate and not the regulation itself. Instead, the main impact of the proposed regulation is to facilitate compliance with the legislative mandate by establishing a process to determine specific distribution criteria, evaluating those criteria, and revising them annually as directed.

Businesses and Other Entities Affected. The proposed changes mainly apply to individuals on the waiting list for Medicaid waivers. In FY 2020 and FY 2023, there were 3,646 and 4,914 applications received, respectively.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the proposal would repeal regulatory text that has no application currently or in the future. Thus, no adverse impact is indicated.

Small Businesses¹⁵ Affected.¹⁶ The proposed amendments do not adversely affect small businesses.

Localities¹⁷ Affected.¹⁸ The proposed action by itself does not introduce costs nor particularly affect any locality more than others.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. No effects on the use and value of private property or real estate development costs are expected.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²https://townhall.virginia.gov/l/ViewStage.cfm?stageid=9690

³https://budget.lis.virginia.gov/item/2022/2/HB30/Chapter/1/313/

⁴Olmstead v. L.C., 527 U.S. 581 (1999).

⁵https://rga.lis.virginia.gov/Published/2015/RD385/PDF

⁶See United States of America v. Commonwealth of Virginia, Civil Action No. 3:12cv059-JAG, https://dbhds.virginia.gov/doj-settlement-agreement/

⁷https://dbhds.virginia.gov/assets/doc/settlement/indreview/ir-report-18th-review-period-as-filed-061421revised.pdf, page 55

⁸https://dbhds.virginia.gov/assets/MyLifeMyCommunity/IFSP-Councils/IFSP State% 20Plan.pdf

⁹https://dbhds.virginia.gov/assets/MyLifeMyCommunity/IFSP-Funding/IFSP-Funding Program Guidelines and FAQs.pdf

¹⁰https://dbhds.virginia.gov/library/developmental services/critical needs summary guidance 8 22 16.pdf

¹¹Comparable data could not be constructed for FY2021 and FY2022 due to the data breach of the funding portal.

¹²Source: DBHDS

¹³Virginia Waiver Management System (WaMS) is the data management system that manages the DD waivers; houses a record of the Individualized Service Plan (ISP); is the entry point to request Service Authorization for DD waiver services; and, acts as a conduit for communication between providers, support coordinators, and DBHDS.

¹⁴Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹⁵Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

¹⁶If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁸Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The State Board of Behavioral Health and Developmental Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Item 313 NN of Chapter 2 of the 2022 Acts of Assembly, Special Session I, the proposed amendments change the current distribution of annual Individual and Family Support Program (IFSP) funds from a first-come, first-served basis to one based on program categories and set criteria developed through an 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 amendments 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.

12VAC35-230-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Commissioner" means the Commissioner of the Department of Behavioral Health and Developmental Services.

"Custodial family member" means a family member who has primary authority to make all major decisions affecting the individual and with whom the individual primarily resides.

"Department" means the Department of Behavioral Health and Developmental Services.

"Developmental disability" or "DD" means a severe, chronic disability of an individual that:

1. Is attributable to a mental or physical impairment or combination of mental and physical impairments, other than a sole diagnosis of mental illness;

2. Is manifested before the individual attains age reaches 22 years of age;

3. Is likely to continue indefinitely;

4. Results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) receptive and expressive language; (iii) learning; (iv) mobility; (v) self-direction; (vi) capacity for independent living; and or (vii) economic self-sufficiency; and

5. Reflects the individual's need for a combination and sequence of special, interdisciplinary or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. (42 USC § 15002)

An individual from birth to age nine years, inclusive, who has a substantial developmental delay or specific congenital or acquired condition may be considered to have a developmental disability without meeting three or more of the criteria described in subdivisions 1 through 5 of this definition if the individual, without services and supports, has a high probability of meeting those criteria later in life.

"Family member" means an immediate family member of an individual receiving services or the principal caregiver of that individual. A principal caregiver is a person who acts in the place of an immediate family member, including other relatives and foster care providers, but does not have a proprietary interest in the care of the individual receiving services. (§ 37.2-100 of the Code of Virginia)

"Individual and Family Support" means an array of individualized items and services that are intended to support the continued residence of an individual with intellectual or developmental disabilities (ID/DD) in his own or the family home.

"Intellectual disability" or "ID" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning, administered in conformity with accepted professional practice, that is at least two standard deviations below the mean; and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. (§ 37.2-100 of the Code of Virginia)

"Individual and Family Support Program" or "IFSP" means an array of individualized person-centered and family-centered resources, supports, items, services, and other assistance approved by the department that are intended to support the continued residence of individuals with developmental disabilities who are on the waiting list for a Medicaid Home and Community-Based Services Developmental Disability Waiver in each individual's own home or the family home, which includes the home of the principal caregiver.

"Individual and Family Support Program State Council" or "IFSP State Council" means an advisory group of stakeholders selected by the department that shall provide consultation to the department on creating a family support program intended to increase the resources and supports for individuals and families and promote community engagement and coordination. The IFSP State Council shall include individuals with DD and family members of individuals with DD.

"Medicaid HCBS DD Waiver" means a Medicaid Home and Community-Based Services Developmental Disability Waiver.

12VAC35-230-20. Program description.

A. The Individual and Family Support Program assists individuals with intellectual disability or developmental disabilities and their family members to access needed person-centered and family-centered resources, supports, services, and other assistance as approved by the department. As such, Individual and Family Support Program funds shall be distributed directly to the requesting individual or family member or a third party designated by the individual or family member. B. The overall objective of the Individual and Family Support Program is to support the continued residence of an individual individuals with intellectual or developmental disabilities in his each individual's own home or the family home, which include includes the home of a principal caregiver.

B. The department shall administer the IFSP funding awards directly or through a third party designated by the department to administer all or part of the IFSP, based on annual funding priorities and program criteria developed by the department in consultation with the department's IFSP State Council.

C. Individual and Family Support Program IFSP funds shall be distributed directly to the requesting individual or custodial family member or a third party designated by the individual or custodial family member. IFSP funds shall not supplant or in any way limit the availability of services provided through a Medicaid Home and Community-Based Waiver; Early and Periodic Screening, Diagnosis, and Treatment; or similar programs.

12VAC35-230-30. Program eligibility requirements. (Repealed.)

Eligibility for Individual and Family Support Program funds shall be limited to individuals who are living in their own or a family home and are on the statewide waiting list for the Intellectual Disability (ID) Medicaid Waiver or the Individual and Family Developmental Disabilities Support (IFDDS) Medicaid Waiver and family members who are assisting those individuals.

12VAC35-230-31. Community coordination.

The department shall:

1. Ensure an annual public input process that encourages the continued residence of individuals on the waiting list for a Medicaid HCBS DD Waiver in community settings and includes a survey of needs and satisfaction.

2. Establish the IFSP State Council.

3. Develop, in coordination with the IFSP State Council, a strategic plan that is consistent with this chapter and the purpose of the IFSP and that is updated as necessary as determined by the department.

4. Provide technical assistance to individuals or family members to facilitate an individual's or a family member's access to covered services and supports listed in 12VAC35-230-55 that are intended to enhance or improve the individual's or family member's quality of life and promote the independence and continued residence of an individual with DD in the individual's own home or the family home, which includes the home of a principal caregiver.

12VAC35-230-35. Program eligibility requirements and policies.

A. Eligibility for IFSP funds shall be limited to individuals who are living in their own home or a family home and are on the statewide waiting list for a Medicaid HCBS DD Waiver and their custodial family members who are assisting those individuals.

B. The department, based on information gathered through public input and in consultation with the IFSP State Council, shall annually establish eligibility criteria, the award process, the appeals process, and any other protocols necessary for ensuring the effective use of state funds. All procedures used by the department for determining funding awards shall be published annually in draft form for public comment and in final form prior to opening the funding opportunity using the Virginia Regulatory Town Hall and the Virginia Register of Regulations.

C. For each funding period, the department shall base funding awards on the following published information:

1. Criteria for prioritized funding categories;

2. A summary of allowable expenditures;

3. Application deadlines; and

4. Award notification schedules.

D. All procedures used by the department for funding awards shall be reviewed annually.

12VAC35-230-40. Program implementation. (Repealed.)

A. Individual and Family Support Program funds shall be limited by the amount of funds allocated to the program by the General Assembly. Department approval of funding requests shall not exceed the funding available for the fiscal year.

B. Based on funding availability, the department shall establish an annual individual financial support limit, which is the maximum annual amount of funding that can be provided to support an eligible individual during the applicable fiscal year.

C. Individual and Family Support Program funds may be provided to individuals or family members in varying amounts, as requested and approved by the department, up to the established annual individual financial support limit.

D. On an annual basis, the department shall announce Individual and Family Support Program total funding availability and the annual individual financial support limit for the applicable fiscal year. This announcement shall include a summary of covered services, the application, and the application review criteria.

E. Individuals and family members may submit applications for Individual and Family Support Program funding as needs arise throughout the year. Applications shall be considered by the department on a first-come, first-served basis until the annual allocation appropriated to the program by the General Assembly for the applicable fiscal year has been expended.

F. Individuals and their family members may apply for Individual and Family Support Program funding each year and may submit more than one application in a single year; however, the total amount approved during the year shall not exceed the annual individual financial support limit.

12VAC35-230-45. Program implementation.

A. IFSP funds shall be limited by the amount of funds allocated to the IFSP by the General Assembly. The department approval of funding requests shall not exceed the funding available for the fiscal year. Based on information gathered through relevant data and public input, and in collaboration with the IFSP State Council, the department shall establish annual funding categories.

B. IFSP funds may be provided to individuals or custodial family members in varying amounts, as determined by the department's annually prioritized funding categories.

12VAC35-230-50. Covered services and supports. (Repealed.)

Services and items funded through the Individual and Family Support Program are intended to support the continued residence of an individual in his own or the family home and may include:

1. Professionally provided services and supports, such as respite, transportation services, behavioral consultation, and behavior management;

2. Assistive technology and home modifications, goods, or products that directly support the individual;

3. Temporary rental assistance or deposits;

4. Fees for summer camp and other recreation services;

5. Temporary assistance with utilities or deposits;

6. Dental or medical expenses of the individual;

7. Family education, information, and training;

8. Peer mentoring and family-to-family supports;

9. Emergency assistance and crisis support; or

10. Other direct support services as approved by the department.

12VAC35-230-55. Covered services and supports.

Services and items funded through the IFSP, as published annually, using the Virginia Regulatory Town Hall and the Virginia Register of Regulations, in accordance with this chapter, are intended to support the continued residence of an individual in that individual's own home or the family home and may be approved in the following three main categories: (i) safe community living, (ii) improved health outcomes, and (iii) community integration. No services or items shall be funded by the IFSP if not listed in the department's procedures or if covered by another entity.

12VAC35-230-60. Application for funding. (Repealed.)

A. Eligible individuals or family members who choose to apply for Individual and Family Support Program funds shall submit a completed application to the department.

B. Completed applications shall include the following information:

1. A detailed description of the services or items for which funding is requested;

2. Documentation that the requested services or items are needed to support the continued residence of the individual with ID/DD in his own or the family home and no other public funding sources are available;

3. The requested funding amount and frequency of payment; and

4. A statement in which the individual or family member:

a. Agrees to provide the department with documentation to establish that the requested funds were used to purchase only approved services or items; and

b. Acknowledges that failure to provide documentation that the requested funds were used to purchase only approved services or items may result in recovery of such funds and denial of subsequent funding requests.

C. The application shall be signed by the individual or family member requesting the funding.

12VAC35-230-65. Application for funding.

A. Eligible individuals or custodial family members who choose to apply for IFSP funds shall submit a completed application to the department.

B. Completed applications shall include the following information:

1. A description of the services or items for which funding is requested;

2. Acknowledgment that the requested services or items are needed to support the continued residence of the individual with DD in that individual's own home or the family home and no other public funding sources are available;

3. The requested funding amount; and

4. A statement in which the individual or custodial family member:

a. Agrees to provide to the department, if requested, documentation that the requested funds were used to purchase only services or items described in the application and approved by the department; and

b. Acknowledges that failure to provide documentation, when requested, that the funds applied for were used to purchase only services or items described in the application and approved by the department may result in recovery of such funds and denial of subsequent funding requests.

C. The application shall be signed by the individual or custodial family member requesting the funding.

12VAC35-230-70. Application review criteria. (Repealed.)

Upon receipt of a completed application, the department shall:

1. Verify that the individual is on the statewide ID or IFDDS Medicaid Waiver waiting list;

2. Confirm that the services or items for which funding is requested are eligible for funding in accordance with 12VAC35-230-50;

3. Determine that the services or items for which funding is requested are needed to support the continued residence of the individual with ID/DD in his own or the family home;

4. Determine that other public funding sources have been fully explored and utilized and are not available to purchase or provide the requested services or items;

5. Evaluate the cost of the requested services or items; and

6. Consider past performance of the individual and family members regarding compliance with this chapter.

12VAC35-230-75. Reporting.

A. For each funding period, the department shall develop and publish a summary, using the Virginia Regulatory Town Hall and the Virginia Register of Regulations, that details the total dollar amount of funded awards, a summary of expenditure requests, the number of applications received, and the number of applications and individuals approved for receipt of IFSP funds.

B. The department, with input from the IFSP State Council, shall develop an annual summary of accomplishments toward meeting the goals of the Virginia State Plan to Increase Individual and Family Supports.

12VAC35-230-80. Funding decision-making process. (Repealed.)

A. Applications may be approved at a reduced amount when the amount requested exceeds a reasonable amount as determined by department staff as being necessary to purchase the services or items.

B. Applications shall be denied if the department determines that:

1. The service or item for which funding is requested is not eligible for funding in accordance with 12VAC35-230-50;

2. The request exceeds the maximum annual individual financial support limit for the applicable fiscal year;

3. Other viable public funding sources have not been fully explored or utilized;

4. The requesting individual or family member has not used previously received Individual and Family Support Program funds in accordance with the department's written notice approving the request or has failed to comply with these regulations; or

5. The total annual Individual and Family Support Program funding appropriated by the General Assembly has been expended for the applicable fiscal year.

C. The department shall provide a written notice to the individual or family member who submitted the application indicating the funding decision.

1. Approval notices shall include:

a. The services, supports, or other items for which funding is approved;

b. The amount and time frame of the financial allocation;

c. The expected date that the funds should be released; and

d. Financial expenditure documentation requirements, and the date or dates by which this documentation shall be provided to the department.

2. For applications where funding is denied or approved at a reduced amount, the department's notice shall state the reason or reasons why the requested services, supports, or other items were denied or were approved at a reduced amount and the process for requesting the department to reconsider its funding decision.

12VAC35-230-85. Funding decision-making process.

A. Applications shall be denied if the department determines that the service or item for which funding is requested is not eligible for funding in accordance with 12VAC35-230-55, other public funding sources are available, or the total annual IFSP funding appropriated by the General Assembly has been expended for the applicable fiscal year.

B. Additionally, applications for IFSP funds may be denied if the requesting individual or custodial family member has not used previously received IFSP funds in accordance with the department's written notice approving the request or has failed to comply with this chapter.

C. The department shall provide a written notice to the individual or custodial family member who submitted the application indicating the funding decision, including the reason for denial of funding, if applicable.

12VAC35-230-90. Requests for reconsideration.

A. Individuals or custodial family members who disagree with the determination of the department may submit a written request for reconsideration to the commissioner, or his the commissioner's designee, within 30 days of the date of the written notice of denial or approval at a reduced amount.

B. The commissioner, or his the commissioner's designee, shall provide an opportunity for the person requesting reconsideration to submit for review any additional information or reasons why the funding should be approved as originally requested.

C. The commissioner, or his the commissioner's designee, after reviewing all submitted materials shall render a written decision on the request for reconsideration within 30 calendar days of the receipt of the request and shall notify all involved parties in writing. The commissioner's decision shall be binding.

D. Applicants may obtain further review of the decision in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

12VAC35-230-100. Post-funding review.

A. Utilization review of documentation or verification of funds expended may be undertaken by department staff. Reviews may include home visits to view items purchased or services delivered.

B. Individuals and family members receiving Individual and Family Support Program IFSP funds shall permit the department representatives to conduct utilization reviews, including home visits.

C. Individuals and family members receiving Individual and Family Support Program IFSP funds shall fully cooperate with such reviews and provide all information requested by the department.

D. Failure to use funds in accordance with the department's written notice procedures for funding awards or provide documentation, if requested, that the funds were used to purchase only approved services or items as described in the application and approved by the department may result in recovery of such by the department.

12VAC35-230-110. Termination of funding for services, supports, or other assistance.

Funding through the Individual and Family Support Program IFSP shall be terminated when the individual is enrolled in the ID or IFDDS a Medicaid HCBS DD Waiver if the individual is found to be no longer eligible to be on a waiting list for a Medicaid HCBS DD Waiver in accordance with 12VAC30-122-90 and any appeal has been exhausted, or if approved funds are used for purposes not approved by the department in its written notice. Any In such circumstance, any funds approved, but not yet released, will be forfeited in such circumstances shall not be disbursed.

FORMS (12VAC35-230)

Individual and Family Support Program Funding Application online application available at the Virginia Waiver Management System (WaMS) Portal at https://www.dbhds.virginia.gov/waitlistforms