Title of Regulation: 12VAC35-230. Operation of the Individual and Family Support Program (adding 12VAC35-230-10 through 12VAC35-230-110).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 1, 2014.

Effective Date: January 16, 2014.

Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 12th Floor, Richmond, VA 23219, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.

Basis: The State Board of Behavioral Health and Developmental Services has the authority under § 37.2-203 of the Code of Virginia "to adopt regulations that may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by the Commissioner or the Department."

Purpose: The purpose of the regulations is to establish a support program (i) for individuals who are living in their own homes or a family home and are on the statewide waiting list for Intellectual Disability (ID) Medicaid Waiver or the Individual and Family Developmental Disabilities Support (IFDDS) Medicaid Waiver and (ii) for the family members who are supporting these individuals. This program promotes and protects the public welfare.

Rationale for Using Fast-Track Process: The Governor released emergency regulations governing the operations of the Individual and Family Support Program (IFSP) in January 2013. In March, the Department of Behavioral Health and Developmental Services (DBHDS) mailed letters to all the individuals on the ID or IFDDS statewide waiting lists and posted a notice on the DBHDS website that the program was operational. In addition to these two communication strategies, program guidelines, along with applications for support, were distributed to community services boards (CSBs), providers, and advocates. By the end of fiscal year (FY) 2013, DBHDS had received more than 1,700 applications, with 825 individuals and families receiving financial support through the program.

The emergency regulations authorizing this program will expire in January 2014. The FY 2014 funding round is scheduled to begin September 3, 2013, and should conclude before the expiration of these emergency regulations. In the settlement agreement with the Department of Justice, the Commonwealth agreed to provide financial support through the program until at least 2021, which will require that the proposed permanent regulations be in place by July 1, 2014. There are no changes from the emergency regulations establishing the IFSP to what is being proposed in the permanent IFSP regulations, which is one of the reasons that fast-track rulemaking process is being sought.

The extraordinary demand for IFSP resources initially overwhelmed DBHDS resources. In two months, the entire fiscal year allocation was distributed to individuals on either the ID or developmental disability (DD) waiver wait list with little controversy. It is important that permanent regulations are in place by July 1, 2014, so that DBHDS can continue to provide supports to this vulnerable population in subsequent state fiscal years.

Substance: The section number and intent and likely impact of proposed requirements are as follows:

12VAC35-230-10. Definitions: Assures that the terms used in the regulation are understood.

12VAC35-230-20. Program description: Describes the objectives and service population of the program being established.

12VAC35-230-30. Program eligibility requirements: Identifies who is eligible to receive program support.

12VAC35-230-40. Program implementation: Explains how the program will be implemented.

12VAC35-230-50. Covered services and supports: Details the specific activities and supports that will be covered.

12VAC35-230-60. Application for funding: Provides details on how to request program support.

12VAC35-230-70. Application review criteria: Explains how DBHDS will evaluate funding requests.

12VAC35-230-80. Funding decision-making process: Establishes the conditions for DBHDS to deny or reduce the amount of an individual funding request and requires that the department provide applicants with a written notice regarding funding decisions.

12VAC35-230-90. Requests for reconsideration: Provides applicants with an opportunity to provide additional information prior to initiating the formal APA review process.

12VAC35-230-100. Post-funding review: Explains for successful applicants what their responsibilities are with respect to any utilization review.

12VAC35-230-110. Termination of funding for services, supports, or other assistance: Ensures applicants understand how and when funding will be terminated.

The IFSP is designed to support individuals with ID or DD and their family members and help such individuals access needed person-centered and family-centered resources, supports, services, and other assistance. Individual and Family Support Program funds will be distributed directly to the requesting individual or family member or a third party designated by the individual or family member. Program funds can be used to provide services such as (i) professionally provided services and supports, such as respite, transportation services, behavioral consultation, and behavior management; (ii) assistive technology and home modifications, goods, or products that directly support the individual; (iii) temporary rental assistance or deposits; (iv) fees for summer camp and other recreation services; (v) temporary assistance with utilities or deposits; (vi) dental or medical expenses of the individual; (vii) family education, information, and training; (viii) peer mentoring and family-to-family supports; (ix) emergency assistance and crisis support; or (x) other direct support services as approved by the department.

Issues: The IFSP provides short term support that will enable individuals who are living in their own homes or a family home and are on the statewide waiting list for ID Medicaid Waiver or the IFDDS Medicaid Waiver and the family members who are supporting these individuals to continue to remain in their own homes or a family home. The resources provided through the IFSP will benefit individual private citizens and the businesses from which they purchase goods and services. The IFSP benefits local CSBs, DBHDS, and the public by assuring that individuals most at risk of institutionalization continue to maintain their community residence.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed regulations establish the Individual and Family Support Program to provide financial support to individuals with intellectual disability or developmental disabilities and their family members.

Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs. Detailed analysis of the benefits and costs can be found in the next section.

Estimated Economic Impact. In a settlement agreement with the Department of Justice (DOJ), the Commonwealth agreed to provide financial support to individuals with intellectual disability or developmental disabilities and their family members until at least 2021. The proposed regulations establish Individual and Family Support Program (IFSP) to accomplish this goal. IFSP has become operational in March 2013 under emergency regulations. The proposed regulations will permanently replace the emergency regulations currently in place.

IFSP provides short term support that enables individuals who are living in their own homes or a family home and are on the statewide waiting list for Intellectual Disability Medicaid Waiver or Developmental Disabilities Medicaid Waiver and their family members who are supporting these individuals to continue to remain in their own homes or a family home. The support services and items provided may include respite care, transportation services, behavioral consultation and management services; assistive technology, home modifications, goods and products that directly support the individual; temporary assistance with rent, utilities and deposits; fees for summer camp and other recreation services; dental or medical expenses of the individual; family education, information, and training; peer mentoring and family-to-family supports, emergency assistance and crisis support.

IFSP will provide limited relief to a minimum of 1,000 individuals and their families each year over the next nine years in accordance with DOJ settlement agreement requirements. The funds available to the program are limited by the budget appropriation. In fiscal year (FY) 2014, $3.2 million is appropriated for this program. Since the demand for these services are much greater than the available funds, individuals are served on a first-come-first-serve basis. In FY 2013, there were 1,654 applications and the entire funding was distributed in just two months. As of September 5, 2013, 350 applications were received for FY 2014 funding. The average support amount is estimated to be about $2,000 with a range from $50 to $3,000.

The main benefit of IFSP is providing services and goods to individuals and their families in need so that they can stay in their communities. These individuals would not be able to receive these services without this program or they would have to pay for them from their own resources. In addition, supporting these individuals to keep them in their communities helps avoid institutionalization. According to the Department of Behavioral Health and Developmental Services (DBHDS), caring for an individual in an institutional setting may cost up to $120,000 per year. Furthermore, failure to permanently implement this program may constitute a breach of the settlement agreement with DOJ and expose the Commonwealth to litigation risks.

On the other hand, IFSP expenditures are paid 100% by state funds. Since the Commonwealth is required to maintain a balanced budget, the funding for this program has to reduce funding elsewhere. Thus, while IFSP recipients and businesses that cater to IFSP recipients enjoy positive economic effects, a corresponding economic effect in the opposite direction would likely take place elsewhere. In addition, there will be additional costs associated with administration of this program. DBHDS estimates that slightly fewer than three full time personnel would be sufficient to operate the program. Also, there would be other costs associated with office supplies, debit card fees, postage, etc in order to administer this program.

Businesses and Entities Affected. IFSP will provide limited relief to a minimum of 1,000 individuals and their families each year over the next nine years in accordance with DOJ settlement agreement requirements.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

Projected Impact on Employment. The proposed regulations will increase state spending and have positive impact in labor demand in certain sectors that provide support services and goods to keep individuals with intellectual or developmental disabilities in their communities. However, due to balanced budget requirement, state spending will have be reduced somewhere else, having a negative effect on labor demand in different sectors. The net impact of these opposing effects is not known.

Effects on the Use and Value of Private Property. Similarly, while businesses in certain sectors may see a positive impact on their asset values due to increased state spending, businesses in other sectors may see a corresponding decrease in their asset values due to reduced revenues.

Small Businesses: Costs and Other Effects. As discussed above reduced state spending elsewhere to finance IFSP would have negative impact on businesses in those areas. At least some of those businesses may be expected to be small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no known alternative to minimize adverse impact on small businesses that accomplish the same goal.

Real Estate Development Costs. No direct impact on real estate development costs is expected.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Chapter 3, Item 315 V 3 of the 2012 Acts of Assembly, Special Session I, requires the Department of Behavioral Health and Developmental Services to promulgate regulations to establish an Individual and Family Support Program (IFSP). The regulations establish an IFSP for individuals with intellectual disability (ID) or developmental disability (DD) who are on the waiting list for either an ID or a DD waiver. This program is required by a settlement agreement with the U.S. Department of Justice, which also stipulates that this program will be operational before the end of fiscal year 2013.

This regulation establishes a support program for (i) individuals who are living in their own homes or a family home and are on the statewide waiting list for ID Medicaid Waiver or the Individual and Family Developmental Disabilities Support Medicaid Waiver and (ii) for the family members who are supporting these individuals. The regulation provides (i) who is eligible for the program, (iii) how the program is implemented, (iii) what services and supports are covered by the program, (iv) application process, (v) how applications are evaluated and funds approved, (vi) how to appeal the denial of funds, and (vii) when the program terminates.

CHAPTER 230
OPERATION OF THE INDIVIDUAL AND FAMILY SUPPORT PROGRAM

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.

"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;

2. Is manifested before the individual attains age 22;

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 (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)

"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)

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 with intellectual or developmental disabilities in his own home or the family home, which include the home of a principal caregiver.

C. Individual and Family Support Program 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.

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.

12VAC35-230-40. Program implementation.

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.

12VAC35-230-50. Covered services and supports.

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.

12VAC35-230-60. Application for funding.

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.

12VAC35-230-70. Application review criteria.

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.

12VAC35-230-80. Funding decision-making process.

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.

12VAC35-230-90. Requests for reconsideration.

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

B. The commissioner, or his 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 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 funds shall permit the department representatives to conduct utilization reviews, including home visits.

C. Individuals and family members receiving Individual and Family Support Program 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 or provide documentation that the funds were used to purchase only approved services or items 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 shall be terminated when the individual is enrolled in the ID or IFDDS Medicaid Waiver or if approved funds are used for purposes not approved by the department in its written notice. Any funds approved, but not released, will be forfeited in such circumstances.