Vol. 25 Iss. 19 - May 25, 2009

Chapter 120
Final Regulation

REGISTRAR'S NOTICE: The Department of Medical Assistance Services is claiming an exclusion from the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that are necessary to conform to changes in Virginia statutory law where no agency discretion is involved. The Department of Medical Assistance Services will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 12VAC30-120. Waivered Services (amending 12VAC30-120-910).

Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of Virginia.

Effective Date: July 1, 2009.

Agency Contact: William Butler, Project Manager, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-8886, FAX (804) 786-1680, or email


Virginia Medicaid covers many individuals whose level of medical need requires them to be placed in institutions such as nursing facilities or Intermediate Care Facilities for the Mentally Retarded. DMAS offers a number of home and community based waiver programs that permit individuals whose level of medical care requires institutionalization to remain in the home and receive all medically necessary services to address their needs. The Elderly or Disabled with Consumer Direction Waiver (EDCD) is one of the home care programs offered by DMAS. One of the unique aspects of the EDCD program is the availability of personal care services in the home through this waiver. Currently, individuals enrolled in EDCD who also receive hospice services may access personal care waiver services on a weekly basis, but only after the hospice care provider has provided 21 hours of personal care services through hospice.

Medicare, the federal health care program for the elderly, had a similar requirement for hospice services, however in 2008 the federal Centers for Medicare and Medicaid Services (CMS) removed this Medicare requirement for hospice provided personal care services. While Medicare requirements are not necessarily prescriptive for the Medicaid program, Virginia Medicaid follows the Medicare hospice rules much more closely than the Medicare rules regarding other health care services. The General Assembly has now required DMAS to remove this requirement for individuals in the EDCD waiver who receive hospice services.


The amendment removes the 21-hour personal care requirement for individuals in the EDCD waiver who also receive hospice services. This change is needed to comply with Item 306 RRR of Chapter 781 of the 2009 Acts of Assembly.

12VAC30-120-910. General coverage and requirements for Elderly or Disabled with Consumer Direction Waiver services.

A. EDCD Waiver services populations. Home and community-based waiver services shall be available through a § 1915(c) of the Social Security Act waiver for the following Medicaid-eligible individuals who have been determined to be eligible for waiver services and to require the level of care provided in a nursing facility:

1. Individuals who are elderly as defined by § 1614 of the Social Security Act; or

2. Individuals who are disabled as defined by § 1614 of the Social Security Act.

B. Covered services.

1. Covered services shall include: adult day health care, personal care (both consumer- and agency-directed), respite services (both consumer-directed, agency-directed, and facility-based), and PERS.

2. These services shall be medically appropriate and medically necessary to maintain the individual in the community and prevent institutionalization.

3. A recipient of EDCD Waiver services may receive personal care (agency- and consumer-directed), respite care (agency- and consumer-directed), adult day health care, and PERS services in conjunction with hospice services, regardless of whether the hospice provider receives reimbursement from Medicare or Medicaid for the services covered under the hospice benefit. Services under this waiver will not be available to hospice recipients unless the hospice can document the provision of at least 21 hours per week of homemaker/home health aide services and that the recipient needs personal care-type services that exceed this amount.

4. Under this § 1915(c) waiver, DMAS waives §§ 1902(a)(10)(B) and (C) of the Social Security Act related to comparability of services.

VA.R. Doc. No. R09-1902; Filed May 4, 2009, 3:24 p.m.