Title of Regulation: 12VAC30-120. Waivered Services (adding 12VAC30-120-927).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 19, 2015.

Agency Contact: Melissa Fritzman, Project Manager, Division of Long-Term Care Services, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 225-4206, FAX (804) 612-0040, or email melissa.fritzman@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the Plan for Medical Assistance. Sections 32.1-324 and 32.1-325 of the Code of Virginia authorize the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the Plan for Medical Assistance according to the board's requirements. The Medicaid authority as established by § 1902 (a) of the Social Security Act (42 U.S.C. 1396a) provides governing authority for payments for services.

Chapter 890, Item 297 CCCCC of the 2011 Acts of Assembly mandated the imposition of a limit on the number of hours of personal care services at 56 hours per week that will be covered for Medicaid individuals who participate in the Elderly or Disabled with Consumer Direction (EDCD) Waiver. This same mandate also directed DMAS to develop criteria to provide for individual exceptions to this limit using criteria based on dependency in activities of daily living and level of care and taking into account the risk of institutionalization if additional hours are not provided. This proposed action intends to promulgate the criteria that DMAS adopted via an emergency regulation, which was published in the Volume 29, Issue 2 of the Virginia Register of Regulations as 12VAC30-120-990.

Purpose: The purpose of this action is to promulgate permanent regulations that establish criteria by which EDCD Waiver individuals may establish the medical necessity for personal care services in excess of the maximum allowed 56 hours per week. The criteria are needed for two reasons: (i) so that DMAS will uniformly apply standards for all applicable waiver individuals and (ii) so DMAS will be supported in appeals that Medicaid individuals may file when they have been denied personal care hours in excess of 56 per week. This regulatory action responds to a statutory mandate and is necessary to interpret the law. The provision is clearly written and is understandable to the regulated communities. These regulations are not expected to affect the health, safety, or welfare of citizens of the Commonwealth.

Even though the Children's Mental Health Waiver and Alzheimer's Assisted Living Waiver are referenced in the legislative mandate in Chapter 890, these waivers are not included in this regulatory action because those waivers do not cover personal care services.

The HIV/AIDS Waiver also was included in the mandate in Chapter 890, but is not included here. Due to an action in Item 307 JJJ of Chapter 3 of the 2012 Acts of Assembly, DMAS is pursuing another regulatory action to repeal all of the HIV/AIDS Waiver regulations. (see Virginia Regulatory Townhall Action ID 3716/Stage ID 6217) The persons who have been participating in the HIV/AIDS Waiver are now receiving all of their required services via the EDCD Waiver.

Substance: The chapter affected by this action is the Elderly or Disabled with Consumer Direction Waiver (12VAC30-120-900 et seq.).

Other than the current emergency regulation, there are no criteria for any exceptions to the limit on the coverage of personal care services in the affected Elderly or Disabled with Consumer Direction Waiver. DMAS adopted the limit of 56 hours on this service effective September 4, 2012, in response to Chapter 890 of the 2011 Acts of Assembly. This mandate directed DMAS to take into consideration the following elements: (i) dependency in activities of daily living, such as bathing, dressing, eating, toileting, ambulating; (ii) required level of care; and (iii) risk of institutionalization if additional hours are not provided.

DMAS has complied with this mandate in formulating its proposal and is recommending the same standards as recommended in the previous emergency regulations. Given the legislatively mandated elements that DMAS was directed to consider, its latitude in crafting these suggested criteria was focused by the legislation. DMAS has conformed to the legislative directive in its proposed regulations.

Issues: There are no advantages or disadvantages to the citizens of the Commonwealth. The advantage to Medicaid individuals who use this affected waiver is that those individuals who require more than the maximum covered personal care hours (56 hours) have a way to demonstrate their needs and be approved for the additional hours. Furthermore, small businesses that render personal care services will now have a way to secure agency approvals of additional hours for those clients that they serve. The advantage to the Commonwealth is that this new limit will save a modest expenditure for the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 890, Item 297 CCCCC of the 2011 Acts of Assembly, the proposed regulation establishes criteria for cases where the number of hours per week of personal care services may exceed the limit of 56 hours.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Pursuant to Chapter 890, Item 297 CCCCC of the 2011 Acts of Assembly, the proposed regulation establishes criteria for cases where the number of hours per week of personal care services may exceed the limit of 56 hours. Currently, there are no criteria for any exceptions to the limit on the coverage of personal care services.

In this same act, the General Assembly imposed a limit of 56 hours of personal care services per week for Medicaid recipients who participate in the Elderly or Disabled with Consumer Direction waiver. The act also required the Department of Medical Assistance Services (DMAS) to provide for individual exceptions to this limit using criteria based on the dependency in activities of living, the level of care, and the risk of institutionalization. Consequently, DMAS adopted an emergency regulation to establish the service limit and exceptions which became effective on July 1, 2011. The service limit has already been made permanent through an exempt regulatory action since DMAS did not have any discretion in implementing it. This action makes permanent the exemption criteria that have been in effect under the emergency regulation.

According to DMAS, 37.5% of the requests for personal care hours beyond 56 hours per week were approved (804 out of 2,139) in fiscal year 2012. The 68 percent of these approvals were for agency-directed personal care which costs $13.20 per hour and 32 percent were for consumer-directed personal care which costs $10.24 per hour. The average number of hours provided for the exception was 70.6 hours. Thus, the total fiscal cost of this exemption is estimated to be $695,498 per year. One half of this cost is borne by the state while the rest is funded by the federal government.

The main benefit of the proposed exemption is allowing access to personal care services for those individuals who require more than the maximum limit of 56 hours of per week imposed by the same act. In addition, the providers will continue to benefit from this exemption as they will avoid a potentially larger reduction in their revenues. Moreover, DMAS will have a uniform procedure to apply to all exemption requests and will be supported in appeals that Medicaid individuals may file when they have been denied personal care hours in excess of 56 per week. Finally, avoiding a larger reduction in federal funds coming in to the Commonwealth's economy should have a positive overall economic impact.

Businesses and Entities Affected. There are 423 home health and personal care agencies providing personal care services to Medicaid recipients. In fiscal year 2012, there were 2,139 requests for additional personal care hours of which 804 were approved.

Localities Particularly Affected. The proposed regulation applies throughout the Commonwealth.

Projected Impact on Employment. The proposed exemption will allow providers to provide additional hours of personal care services beyond what would otherwise be possible. Thus, a positive impact on demand for labor providing personal care services is expected due to this change.

Effects on the Use and Value of Private Property. The proposed exemption should have a positive impact on the asset value of personal care provider businesses by avoiding a potentially larger reduction in their revenues.

Small Businesses: Costs and Other Effects. Most of the home health and personal care agencies providing personal care services are believed to be small businesses. The proposed exemption does not impose costs on small businesses. Other effects on small businesses are the same as discussed above.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed exemption is not anticipated to have an adverse impact on small businesses.

Real Estate Development Costs. No effect 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 analysis.

Summary:

The proposed regulation establishes criteria for approval of personal care service hours that exceed the maximum allowed limit of 56 hours per week. This action is required by Item 297 CCCCC of Chapter 890 of the 2011 Acts of Assembly and only affects the Elderly or Disabled with Consumer Direction Waiver.

12VAC30-120-927. Exception criteria for personal care services.

DMAS shall apply the following criteria to individuals who request approval of more personal care hours than the maximum allowed 56 hours per week. The waiver individual shall:

1. Presently have a minimum level of care of B (the waiver individual has a composite activities of daily living (ADL) score between seven and 12 and has a medical nursing need) or C (the waiver individual has a composite ADL score of nine or higher and has a skilled medical nursing need).

2. In addition to meeting the requirements set out in subdivision 1 of this subsection, the individual shall have one or more of the following:

a. Documentation of dependencies in all of the following activities of daily living: bathing, dressing, transferring, toileting, and eating/feeding, as defined by the current preadmission screening criteria (submitted to the service authorization contractor via DMAS-99);

b. Documentation of dependencies in both behavior and orientation as defined by the current preadmission screening criteria (submitted to the service authorization contractor via DMAS-99); or

c. Documentation from the local department of social services that the individual has an open case (as described in subdivisions c (1) and c (2) of this subdivision) with either Adult Protective Services (APS) or Child Protective Services (CPS) and is in need of additional services beyond the maximum allowed 56 hours per week. Documentation can be in the form of a phone log contact or any other documentation supplied (submitted to the service authorization contractor via attestation).

(1) For APS an open case is defined as a substantiated APS case with a disposition of needs protective services and the adult accepts the needed services.

(2) For CPS an open case is defined as being open to CPS investigation if it is both founded by the investigation and the completed family assessment documents the case with moderate or high risk.