Title of Regulation: 12VAC30-120. Waivered Services (amending 12VAC30-120-1600 through 12VAC30-120-1660; adding 12VAC30-120-1605, 12VAC30-120-1670, 12VAC30-120-1680).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 7, 2011.

Agency Contact: Steve Ankiel, Long Term Care Division, Department of Medical Assistance Services, 600 East Broad Street, Richmond, VA 23219, telephone (804) 317-8894, FAX (804) 371-4986, or email steve.ankiel@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. Section 32.1-324 of the Code of Virginia authorizes the Director of the Department of Medical Assistance Service (DMAS) to administer and amend the plan for medical assistance according to the board's requirements.

Purpose: The growth within the Medicaid Alzheimer's Assisted Living (AAL) waiver has been gradual and many families who would otherwise qualify are not able to access services due to a limited provider pool. This limit has resulted from programmatic design differences between the DSS licensing regulations and these DMAS waiver regulations. The proposed changes will provide opportunities for the provider pool to increase moderately, which in turn will improve accessibility to the waiver while assuring the health and safety of all participants.

Substance: Current AAL regulations (12VAC30-120-1600 et seq.) contain requirements that exceed current Virginia Department of Social Services (DSS) licensing requirements. Due to these requirements, the provider community has chosen to not participate in this waiver program as initially anticipated. The areas of key concern are:

1. Staffing, as follows: (i) employing a full time registered nurse when a program reaches 16 participants, (ii) requiring only activity staff to provide activities, (iii) requiring only nurses to distribute medications on two work shifts when recent professional licensing regulatory changes created registered medication aides, and (iv) limiting the credentials of direct care staff to certified nurse aides while the DSS license requirements for these providers permit a wider choice of types of credentials.

2. AAL waiver activity hours currently exceed DSS licensing requirements by three hours a week (from 19 to 16).

The proposed changes were developed with and agreed upon by the provider community. With these agreed upon revisions to the regulations, it is expected that the numbers of providers will increase and consequently, improvement in access to care will be experienced by the families who need these services.

Issues: The primary advantage of the proposed changes is the increased availability of these services to families and individuals who otherwise qualify for this program due to an increase in the providers rendering the needed service. This increased service availability is a benefit to all parties: families, providers, and localities. It will benefit the Commonwealth because the individuals who need this type of program will be cared for in a less expensive manner. A second advantage is the streamlining of regulations between multiple state agencies, thereby creating cost and service delivery efficiencies for providers. A third advantage is the removal from DMAS regulations of requirements that are more like licensing standards. Since DMAS is not a licensing agency, it is not advantageous for its regulations to contain such requirements.

The disadvantage to all parties would be if the proposed changes are not implemented because individuals in need of these services would have to be served in more expensive nursing facilities. Inconsistency of regulations between sister state agencies would continue to be a burden to providers in the absence of cost efficiencies. Nursing home providers are not expected to agree with changes that will enable the expansion of community providers as this represents business competition for them. However, since the nursing facilities in the Commonwealth typically have an occupancy rate of 90% or higher (for calendar year 2007 the rate was 91.16%), it is not anticipated that this community program will have a significant negative business impact for nursing facilities.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medical Assistance Services (Board) proposes to revise the regulations that govern the Alzheimers Assisted Living Waiver program so that they conform to Department of Social Services (DSS) regulations for assisted living facilities. The specific substantive changes that the Board proposes will:

• Allow any Licensed Health Care Professional (LHCP) to meet on-site staffing requirements so long as that LHCP is compliant with all other laws and regulations that govern scope of practice,

• Allow any LHCP that are legally allowed to dispense medicine to do so in assisted living facilities,

• Reduce, from 19 to 16, the number of required combined group and individual activity hours per week and

• Allow volunteers to run activities counted toward the required group activity hours.

The Board is making these changes to the waiver regulations so that more assisted living facilities will participate in the program. Currently only seven facilities accept these waivers.

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

Estimated Economic Impact. Currently, waiver program regulations require that a registered nurse (RN), or a licensed practical nurse (LPN) working under the supervision of an RN, be awake, on duty and on premises for eight hours a day, five days a week. These regulations also currently require that medication be dispensed by an RN or LPN except between 11 p.m. and 7 a.m. During these hours, medication aides may dispense medication. Currently LHCP at facilities that participate in the waiver program must supervise at least 19 hours of planned activities, including one hour of individualized activity, for patients each week.

These proposed regulations will allow any LHCP to be awake, on duty and on premises for at least eight hours a day five days a week so long as they are working within their legal scope of practice and are in compliance with licensure regulations. The proposed regulations will also allow registered medication aides to dispense medication on all work shifts and will allow volunteers, as well as LHCP, to supervise group and individualized activities. These proposed regulations reduce the number of required activity hours to 16, one of which must be offered to patients for one-on-one activities; this is the number of hours required by DSS facility licensure regulations.

These changes will allow more assisted living facilities to participate in this waiver program without incurring greater expense because of waiver program requirements that are more stringent than those in state law and DSS assisted living facility licensing regulations. Patients that are eligible for these waivers will also likely benefit from having more assisted living facilities participate in the waiver program as this will increase their housing choices. Because these regulatory changes represent current practice in the vast majority of assisted living facilities, no entity is likely to be harmed by them.

Businesses and Entities Affected. The Department of Medical Assistance Services (DMAS) reports that DSS currently licenses 114 assisted living facilities that can enroll in this waiver program (seven of these are currently enrolled). All of these facilities, as well as the patients that live in them, are potentially affected by these proposed regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no aggregate impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

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 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, 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 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 the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget regarding the regulations concerning Alzheimer's Assisted Living Waiver Update.

Summary:

This proposed regulatory action updates the Alzheimer's Assisted Living Waiver to accommodate changes in the industry and clarify the regulations. These changes will bring current Virginia Department of Social Services' licensing standards and Department of Medical Assistance Services' waiver expectations more in sync with each other while reducing provider confusion and duplication of effort.

The proposed changes clarify clinical staff requirements, the number of activity hours, and who is permitted to provide supervision. Initiation of these changes is expected to increase the available provider pool and enhance participation in the waiver by eligible recipients.

12VAC30-120-1600. Definitions.

The following words or terms when used in this regulation shall have the following meanings unless the content clearly indicates otherwise.

"Activities of daily living" or "ADLs" means bathing, dressing, toileting, transferring, and eating/feeding. An individual's degree of independence in performing these activities is a part of determining appropriate level of care and service needs.

"Administrator" means the person who oversees the day-to-day operation of the facility, including compliance with all regulations for licensed assisted living facilities.

"Admissions summary" means the Virginia Uniform Assessment Instrument and other relevant social, psychological, and medical information gathered by the assisted living facility staff for use in the development and updates of the plan of care.

"Alzheimer's" means a diagnosis of Alzheimer's as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV-TR), published by the American Psychiatric Association.

"Alzheimer's and Related Dementias Assisted Living Waiver" or "AAL Waiver" means the CMS-approved waiver that covers a range of community support services offered to individuals who have a diagnosis of Alzheimer's or a related dementia who meet nursing facility level of care.

"Americans with Disabilities Act" or "ADA" means the United States Code pursuant to 42 USC § 12101 et seq., as amended.

"Appeal" means the process used to challenge adverse actions regarding services, benefits, and reimbursement provided by Medicaid pursuant to 12VAC30-110 and 12VAC30-20-500 through 12VAC30-20-560.

"Assisted living facility" means a congregate residential setting as defined in § 63.2-100 of the Code of Virginia.

"Auxiliary Grant Program" means a state and locally funded assistance program to supplement the income of a Supplemental Security Income (SSI) recipient or an adult who would be eligible for SSI except for excess income and who resides in a licensed assisted living facility with an approved rate.

"Barrier crime" means those crimes as defined in § 32.1-162.9:1 of the Code of Virginia.

"Comprehensive assessment" means the Virginia Uniform Assessment Instrument and other relevant social, psychological and medical information gathered by the assisted living facility staff for use in the development and updates of the plan of care.

"CMS" means the Centers for Medicare and Medicaid Services, which is the unit of the U.S. Department of Health and Human Services that administers the Medicare and Medicaid programs.

"Direct marketing" means either (i) conducting directly or indirectly door-to-door, telephonic or other "cold call" marketing of services at residences and provider sites; (ii) mailing directly; (iii) paying "finders' fees"; (iv) offering financial incentives, rewards, gifts or special opportunities to eligible individuals or family/caregivers as inducements to use the providers' services; (v) continuous, periodic marketing activities to the same prospective individual or family/caregiver for example, monthly, quarterly, or annual giveaways as inducements to use the providers' services; or (vi) engaging in marketing activities that offer potential customers rebates or discounts in conjunction with the use of the providers' services or other benefits as a means of influencing the individual's or family/caregiver's use of the providers' services.

"DMAS" means the Department of Medical Assistance Services.

"DMAS staff" means persons employed by the Department of Medical Assistance Services.

"DSS" means the Virginia Department of Social Services.

"Enrolled provider" means an entity that is either licensed or certified by the appropriate state agency that also meets the standards and requirements set forth by DMAS, and has a current, signed provider participation agreement with DMAS.

"Designated preauthorization contractor" means DMAS or the entity that has been contracted by DMAS to perform preauthorization of services.

"Home and community-based waiver services" or "waiver services" means the range of community support services approved by the CMS pursuant to § 1915(c) of the Social Security Act to be offered to persons who are elderly or disabled who would otherwise require the level of care provided in a nursing facility. DMAS or the designated preauthorization contractor shall only give preauthorization for medically necessary Medicaid-reimbursed home and community care.

"Individual" means the person receiving the services established in these regulations and who (i) meets the eligibility criteria for residing in a safe, secure environment as described in 22VAC40-72-10; (ii) meets the eligibility criteria for the AAL Waiver; and (iii) resides in a safe, secure environment of an assisted living facility.

"Licensed health care professional" or "LHCP" means any health care professional currently licensed by the relevant health regulatory board of the Department of Health Professions of the Commonwealth who is practicing within the scope of his license.

"Participating provider" means an entity that meets the standards and requirements set forth by DMAS, and has a current, signed provider participation agreement with DMAS.

"Plan of care" means the written plan developed by the provider related solely to the specific services required by the individual to ensure optimal health and safety while remaining in the assisted living facility.

"Preadmission screening" means the process to: (i) evaluate the functional, nursing, and social supports of individuals referred for preadmission screening; (ii) assist individuals in determining what specific services the individuals need; (iii) evaluate whether a service or a combination of existing community services are available to meet the individuals' needs; and (iv) refer individuals to the appropriate provider for Medicaid-funded nursing facility or home and community-based care for those individuals who meet nursing facility level of care.

"Preadmission screening team" means the entity contracted with DMAS that is responsible for performing preadmission screening pursuant to § 32.1-330 of the Code of Virginia.

"Related dementia" means a diagnosis of Dementia of the Alzheimer's Type as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV-TR), published by the American Psychiatric Association.

"Resident" means any individual who (i) meets the eligibility criteria for residing in a safe, secure environment as described in 22VAC40-71-700 C 1; (ii) meets eligibility criteria for the AAL Waiver; and (iii) resides in a safe, secure environment of an assisted living facility.

"Safe, secure environment" means a self-contained special care unit as defined in 22VAC40-71-10 22VAC40-72-10.

"State Plan for Medical Assistance" or "Plan" means the regulations identifying the covered groups, covered services and their limitations, and provider reimbursement methodologies as provided for under Title XIX of the Social Security Act.

"Virginia Uniform Assessment Instrument" or "UAI" means the standardized multidimensional questionnaire that is completed by the preadmission screening team, which assesses an individual's physical health, mental health, social, and functional abilities to determine if the individual meets the level of care for certain publicly funded long-term care programs such as nursing facility services.

12VAC30-120-1605. Waiver description and legal authority.

This Alzheimer's waiver operates under the authority of § 1915 (c) of the Social Security Act and 42 CFR 430.25(c)(2), which permit the waiver of certain State Plan requirements. These federal statutory and regulatory provisions permit the establishment of Medicaid waivers to afford the states with greater flexibility to devise different approaches to the provision of long-term care services. This particular waiver provides Medicaid recipients who have a diagnosis of Alzheimer's or related dementias with supportive services to enable such individuals to remain in their communities.

12VAC30-120-1610. Individual eligibility requirements.

A. Waiver service population. The AAL Waiver shall be available through a § 1915(c) of the Social Security Act waiver to eligible aged and disabled auxiliary grant recipients who reside in licensed assisted living facilities.

B. Eligibility criteria. To qualify for AAL Waiver services, individuals must meet all of the following criteria:

1. The waiver individual must be either:

a. Elderly as defined by § 1614 of the Social Security Act; or

b. Disabled as defined by § 1614 of the Social Security Act.

2. The waiver individual must meet the criteria for admission to a nursing facility as determined by a preadmission screening team using the full UAI.

3. The waiver individual must have a diagnosis of Alzheimer's or a related dementia as diagnosed by a licensed clinical psychologist or a licensed physician. The individual may not have a diagnosis of mental retardation as defined by the American Association on Mental Retardation in Mental Retardation Intellectual and Developmental Disabilities, User's Guide - Mental Retardation: Definition, Classifications Classification and Systems of Supports, 10th Edition, or a serious mental illness as defined in 42 CFR 483.102(b).

4. The waiver individual must be receiving an auxiliary grant, and residing in or seeking admission to a safe, secure unit of a DMAS-approved DMAS-enrolled assisted living facility.

C. Assessment. Medicaid will not pay for any AAL Waiver services delivered prior to the date of the preadmission screening by the preadmission screening team and the physician signature on the Medicaid-Funded Long-Term Care Services Authorization Form (DMAS-96). Medicaid will not pay for any AAL Waiver services delivered prior to the individual's establishment effective date of Medicaid eligibility.

D. Enrollment. After an initial 60-day application period and a random selection process to determine the order in which eligible individuals will be served by this waiver For the enrollment of all CMS-approved waiver slots, individuals will be served handled on a first-come, first-served basis in accordance with available waiver funding. If there is not a waiver slot available for an individual, the individual shall be placed on the waiting list. Individuals must meet all waiver eligibility criteria in order to be placed on the waiting list.

E. Preauthorization. Before a provider can bill DMAS for AAL Waiver services, preauthorization must be obtained from DMAS. Providers must submit all required information to the designated preauthorization contractor within 10 business days of initiating care. If the provider submits all required information to the designated preauthorization contractor within 10 business days of initiating care, services may be authorized beginning from the date the provider initiated services but not preceding the date of the physician's signature on the Medicaid-Funded Long-Term Care Services Authorization Form (DMAS-96). If the provider does not submit all required information to either the designated preauthorization contractor or DMAS within 10 business days of initiating care, the services may be authorized beginning with the date all required information was received by the designated preauthorization contractor, but in no event preceding the date of the preadmission screening team physician's signature on the DMAS-96.

F. Review of the waiver individual's level of care. DMAS conducts this review based on the documentation submitted by the provider. The level of care assessments are performed to ensure that individuals receiving services in the waiver continue to meet the criteria for the waiver.

G. Termination of services. In the case of termination of AAL Waiver services by DMAS, waiver individuals shall be notified of their appeal rights pursuant to 12VAC30-110, Eligibility and Appeals. DMAS may terminate AAL Waiver care services for any of the following reasons:

1. The AAL Waiver is no longer required to prevent or delay institutional placement;

2. The waiver individual is no longer eligible for Medicaid;

3. The waiver individual is no longer eligible to receive an auxiliary grant;

4. The waiver individual no longer meets AAL Waiver criteria;

5. The waiver individual has been absent from, or has not received services from, the assisted living facility for more than 30 consecutive days;

6. The waiver individual's environment does not provide for his health, safety, and welfare; or

7. The assisted living facility no longer meets safe and secure licensing standards set by VDSS DSS or standards set by DMAS for service providers.

12VAC30-120-1620. Covered services.

A. Assisted living services include personal care and services, homemaker, chore, attendant care, and companion services. This service includes 24-hour on-site response staff to meet scheduled or unpredictable needs in a way that promotes maximum dignity and independence, and to provide supervision, safety and security.

B. For purposes of these regulations, assisted living services shall also include:

1. Medication administration. Medications shall be administered only by an individual a provider employee who is currently licensed to administer medications (physician, physician assistant, pharmacist, nurse practitioner, RN, or LPN), licensed health care professional (LHCP), or registered medication aide, except on the 11 p.m. to 7 a.m. shift when medications may be administered by a medication aide that who meets the regulatory requirements as set forth by the Department of Social Services DSS and the Board of Nursing appropriate licensing board of the Department of Health Professions in the Commonwealth;

2. Nursing evaluations. Individual summaries. The RN LHCP must complete a comprehensive assessment an admissions summary of each resident individual upon admission to the facility and when a significant change in health status or behavior occurs in one of the following areas: weight loss, elopements, behavioral symptoms, or adverse reactions to prescribed medication. A RN LHCP shall identify resident individual care problem areas and formulate interventions to address those problems and to evaluate if the planned interventions were successful;

3. Skilled nursing services. LHCP services. Skilled nursing LHCP services are nursing services that are used to complete resident assessments individual summaries and administer medications, and provide training, consultation, and oversight of direct care staff. Skilled nursing LHCP services must be provided by a RN or by a LPN under the supervision of a RN LHCP who is licensed to practice in the state and provided in accordance and within the scope of practice specified by state law; and

4. Therapeutic social and recreational programming. An activity program must be designed to meet the individual specific needs of each resident waiver individual and to provide daily activities appropriate to residents with Alzheimer's or related dementia.

a. This program shall be individualized and properly implemented, followed, and reviewed as changes are needed.

b. Residents Waiver individuals who have wandering behaviors shall have an activity program to address these behaviors.

c. There shall be a minimum of 19 16 hours of planned group programming each week, not to include activities of daily living. d. Each resident must receive As part of these 16 hours, there shall be at least one hour of one-on-one activity per week, not to include activities of daily living. This activity must be provided exclusively by activities staff. Such one-on-one activities may be rendered by such licensed or volunteer staff as determined appropriate by the provider.

e. d. Group activities must be provided by staff assigned responsibility for the activities.

12VAC30-120-1630. General requirements for participating providers.

A. Requests for participation will be screened by DMAS to determine whether the provider applicant meets the requirements for participation. Requests for participation must be accompanied by verification of the facility's current licensure from VDSS DSS.

B. For DMAS to approve provider agreements with AAL Waiver providers, providers must meet staffing, financial solvency, and disclosure of ownership requirements.

1. Approved Enrolled providers must assure freedom of choice to individuals, or their authorized representative, in seeking services from any institution, pharmacy, practitioner, or other provider qualified to perform the service or services required and participating in the Medicaid Program at the time the service or services are performed;

2. Approved Enrolled providers must assure the individual's freedom to refuse medical care, treatment, and services;

3. Approved Enrolled providers must accept referrals for services only when staff is available to initiate and perform such services on an ongoing basis;

4. Approved Enrolled providers must provide services and supplies to individuals in full compliance with Title VI of the Civil Rights Act of 1964, as amended (42 USC § 2000 et seq.), which prohibits discrimination on the grounds of race, color, religion, or national origin; the Virginians with Disabilities Act (§ 51.5-1 et seq. of the Code of Virginia); § 504 of the Rehabilitation Act of 1973 (29 USC § 794), which prohibits discrimination on the basis of a disability; and the Americans with Disabilities Act of 1990 (42 USC § 12101 et seq.), which provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications;

5. Approved Enrolled providers must provide services and supplies to individuals of the same quality as are provided to the general public;

6. Approved Enrolled providers must submit charges to DMAS for the provision of services and supplies to individuals in amounts not to exceed the provider's usual and customary charges to the general public and accept as payment in full the amount established by DMAS beginning with the individual's authorization date for the waiver services;

7. Approved Enrolled providers must use only DMAS-designated forms for service documentation. The provider must not alter the DMAS forms in any manner unless approval from DMAS is obtained prior to using the altered forms. If there is no designated DMAS form for service documentation, the provider must include all elements required by DMAS in the provider's service documentation;

8. Approved Enrolled providers must use DMAS-designated billing forms for submission of charges;

9. Approved Enrolled providers must perform no direct marketing activities to Medicaid individuals;

10. Approved Enrolled providers must maintain and retain business and professional records sufficient to document fully and accurately the nature, scope, and details of the services provided;

a. In general, such records shall be retained for at least six years from the last date of service or as provided by applicable state laws, whichever period is longer. However, if an audit is initiated within the required retention period, the records shall be retained until the audit is completed and every exception resolved.

b. Policies regarding retention of records shall apply even if the provider discontinues operation. DMAS shall be notified in writing of the storage location and procedures for obtaining records for review should the need arise. The storage location, as well as the agent or trustee, shall be within the Commonwealth;

11. Approved Enrolled providers must furnish information on request and in the form requested, to DMAS, the Office of the Attorney General of Virginia or his authorized representatives, federal personnel, and the state Medicaid Fraud Control Unit. The Commonwealth's right of access to provider agencies and records shall survive any termination of the provider agreement;

12. Approved Enrolled providers must disclose, as requested by DMAS, all financial, beneficial, ownership, equity, surety, or other interests in any and all firms, corporations, partnerships, associations, business enterprises, joint ventures, agencies, institutions, or other legal entities providing any form of health care services to recipients of Medicaid;

13. Pursuant to 42 CFR § 431.300 et seq., 12VAC30-20-90, and any other applicable federal or state law, all providers shall hold confidential and use for authorized DMAS purposes only all medical assistance information regarding individuals served. A provider shall disclose information in his possession only when the information is used in conjunction with a claim for health benefits, or the data is necessary for the functioning of DMAS in conjunction with the cited laws;

14. Approved Enrolled providers must notify DMAS in writing as at least 15 days before ownership or management of the facility changes;

15. Pursuant to § 63.2-1606 of the Code of Virginia, if a participating enrolled provider knows or suspects that an AAL Waiver services individual is being abused, neglected, or exploited, the party having knowledge or suspicion of the abuse, neglect, or exploitation must report this immediately from first knowledge to the local DSS or adult protective services hotline as applicable;

16. In addition to compliance with the general conditions and requirements, all providers enrolled by DMAS shall adhere to the conditions of participation outlined in the individual provider participation agreements and in the applicable DMAS provider manual. DMAS shall conduct ongoing monitoring of compliance with provider participation standards and DMAS policies. A provider's noncompliance with DMAS policies and procedures may result in a retraction of Medicaid payment or termination of the provider agreement, or both;

17. Enrolled providers are responsible for complying with § 63.2-1720 of the Code of Virginia regarding criminal record checks. All employees must have a satisfactory work record, as evidenced by references from prior job experience, including no evidence of abuse, neglect, or exploitation of incapacitated or older adults and or children. The criminal record check shall be available for review by DMAS staff who are authorized by the agency to review these files. DMAS will not reimburse the provider for any services provided by an employee who has committed a barrier crime as defined herein. Providers are responsible for complying with § 63.2-1720 of the Code of Virginia regarding criminal record checks; and

18. Approved Enrolled providers must immediately notify DMAS, in writing, of any change in the information that the provider previously submitted to DMAS.

C. A provider shall have the right to appeal adverse actions taken by DMAS. Provider appeals shall be considered pursuant to 12VAC30-10-1000 and 12VAC30-20-500 through 12VAC30-20-560.

D. C. The Medicaid provider agreement shall terminate pursuant to § 32.1-325 of the Code of Virginia upon conviction of the provider of a felony pursuant to § 32.1-325 of the Code of Virginia. A provider convicted of a felony in Virginia or in any other of the 50 states, the District of Columbia, or the U.S. territories, must, within 30 days of the conviction, notify the Virginia Medicaid Program and relinquish the provider agreement.

E. D. Provider's Responsibility responsibility for the Patient Information Form (DMAS-122). Medicaid LTC Communication Form (DMAS-225). It shall be the responsibility of the service provider to notify VDSS DSS and DMAS, in writing, when any of the following circumstances occur:

1. AAL Waiver services are implemented;

2. An individual dies;

3. An individual is discharged from the provider; or

4. Any other circumstances (including hospitalization) that cause AAL Waiver services to cease or be interrupted for more than 30 days.

F. E. Termination of waiver services.

1. In a nonemergency situation, i.e., when the health and safety of the individual or provider personnel is not endangered, the participating provider shall give the individual or family/caregiver, or both, at least 30 days' written notification plus three days for mailing of the intent to discontinue services. The notification letter shall provide the reasons for and the effective date the provider is discontinuing services.

2. In an emergency situation when the health and safety of the individual or provider personnel is endangered, the participating provider must notify DMAS immediately prior to discontinuing services. The written notification period shall not be required. If appropriate, local DSS Adult Protective Services must also be notified immediately.

12VAC30-120-1640. Participation standards for provision of services.

A. Facilities must have a signed provider agreement approved by DMAS to provide AAL Waiver services.

B. The facility must provide a safe, secure environment for waiver recipients. There may be one or more self-contained special care units in a facility or the whole facility may be a special care unit. Personalized care must be furnished to individuals who reside in their own living units, with semi-private rooms limited to two people and a maximum of two individuals sharing a bathroom.

C. Care in a facility must be furnished in a way that fosters the independence of each individual to facilitate aging in place. Routines of care provision and service delivery must be consumer-driven individual-driven to the maximum extent possible and treat each person individual must be treated with dignity and respect.

D. The medical care of residents individuals must be under the direction and supervision of a licensed physician. This can be the individual's private physician. The facility must ensure that residents have appointments with their physicians at least annually, and additionally as needed as determined by the physician.

E. Administrators.

1. Administrators of participating assisted living facilities must meet the regulatory requirements as set forth by the Virginia Department of Social Services (22VAC40-71-60 et seq.) (22VAC40-72-191) and the Board of Long-Term Care Administrators (18VAC95-20-10 through 18VAC95-20-471) (18VAC95-20).

2. The administrator shall demonstrate knowledge, skills and abilities in the administration and management of an assisted living facility program including:

a. Knowledge and understanding of impaired elderly or persons with disabilities;

b. Supervisory and interpersonal skills;

c. Ability to plan and implement the program; and

d. Knowledge of financial management sufficient to ensure program development and continuity.

3. The administrator shall demonstrate knowledge of supervisory and motivational techniques sufficient to:

a. Accomplish day-to-day work;

b. Train, support and develop staff; and

c. Plan responsibilities for staff to ensure that services are provided to participants.

4. The administrator shall complete 20 hours of continuing education annually to maintain and develop skills. This training shall be in addition to first aid, and CPR, or and orientation training to be received upon commencement of employment.

F. Nursing staff Licensed health care professional (LHCP) requirements.

1. Each facility shall have at least one registered nurse (RN) or licensed practical nurse (LPN) under the supervision of an RN, LHCP awake, on duty, and on-site in the facility for at least eight hours a day, five days each week and on call 24 hours a day. The person on call must be able to arrive at the facility within one hour. In addition, the facility shall provide for emergency call coverage at all hours of the day and night.

2. The RN LHCP is responsible for staff training, resident assessment individual summaries, plans of care, and medication oversight.

3. Assessments Individuals' summaries.

a. Comprehensive assessment. Admissions summary. An RN LHCP must complete a comprehensive assessment an admissions summary of each resident individual upon admission. The comprehensive assessment admissions summary includes the UAI and other relevant social, psychological, and medical information. The comprehensive assessment admissions summary must also include the physician's assessment information as contained in 22VAC40-71-150 L 22VAC40-72-40 and 22VAC40-72-440. The comprehensive assessment admissions summary must be updated yearly and when a significant change in health status or behavior occurs. The information gathered during the comprehensive assessment preparation of the admissions summary is used to create the resident's individual's plan of care as contained in 22VAC40-71-170 C and D 22VAC40-72-40 and 22VAC40-72-440.

b. Plan of care. Based on the individual resident assessment specific individual's admission summary and the UAI, the RN LHCP, in coordination with other caregivers including the resident's individual's authorized representative shall:

(1) Develop the resident's individual's plan of care and formulate interventions to address the specific problems identified;

(2) Evaluate both the facility's implementation and the resident's individual's response to the plan of care; and

(3) Review and update the plan of care at least quarterly and more often when necessary to meet the needs of the resident individual.

c. Monthly assessments summary. The RN or an LPN, under the supervision of the RN, LHCP must complete a monthly assessment summary. Significant changes documented on the monthly assessment summary must be addressed in an updated plan of care. The comprehensive assessment admissions summary information shall also be updated as needed. At a minimum, the monthly assessment contains summary must contain information about the following elements:

(1) Weight loss;

(2) Falls;

(3) Elopements;

(4) Behavioral symptoms;

(5) Adverse reactions to prescribed medications;

(6) Dehydration;

(7) Pressure ulcers;

(8) Fecal impaction;

(9) Cognitive changes;

(10) Change in diagnoses; and

(11) Change in levels of dependence in ADLs.

4. In a facility with fewer than 16 waiver recipients, the facility may employ an RN as part time or as a contracted employee.

4. The facility's RN LHCP may also serve as the administrator. In all instances where the facility's RN LHCP is assigned duties as an administrator, the facility shall assure that the RN LHCP devotes sufficient time and effort to all clinical duties to secure health, safety, and welfare of recipients individuals.

Any facility having more than 16 waiver recipients must employ full time an RN to be responsible for the clinical needs of the recipients.

G.Unit coordinator.

1. Facilities must have a unit coordinator, awake and on-site in the unit, who will manage the daily routine operation of the specialty unit.

2. The unit coordinator must be available to the facility 24 hours a day.

3. At a minimum, the unit coordinator must be a certified nurse aide (CNA) with at least one year experience in a DMAS-approved assisted living facility or nursing home or other setting that involves working with vulnerable adults.

4. The unit coordinator may be an RN or an LPN who is serving as the assisted living facility's daily nurse, the administrator, or the activities director.

5. In the event the unit coordinator is not available, an alternate qualified staff member may serve in this capacity. Each assisted living facility must establish its own written protocol and assure that only qualified staff fulfill this requirement.

6. In all instances where the facility's RN is assigned other duties as an administrator, unit coordinator, or both, the facility must assure that the RN devotes sufficient time and effort to all clinical duties.

H. G. Structured activities program. There shall be a designated employee responsible for managing or coordinating the structured activities program. This employee shall be on site in the special care unit at least 20 hours a week, shall maintain personal interaction with the residents and familiarity with their needs and interests, and shall meet at least one of the following qualifications:

1. Be a qualified therapeutic recreation specialist or activities professional;

2. Be eligible for certification as a therapeutic recreation specialist or an activities professional by a recognized accrediting body;

3. Have at least one year full-time work experience within the last five years in an activities program in an adult care setting;

4. Be a qualified occupational therapist or an occupational therapy assistant; or

5. Prior to or within six months of employment, have successfully completed 40 hours of VDSS-approved training.

I. Certified nurse aides H. Direct care staff. In order to provide services in this waiver, the assisted living facility must use certified nurse aides (CNA) in the specialty unit at all times staff who comply with 22VAC40-72-250, 22VAC40-72-1110, and 22VAC40-72-1120 in staffing the specialty care unit.

J. I. The assisted living facility must have sufficient qualified and trained staff to meet the needs of the residents at all times.

K. J. There must be at least two one awake direct care staff in the special care unit at all times and more if dictated by the needs of the residents.

L. K. Training requirements for all staff.

1. All staff who have contact with residents, including the administrator, shall have completed 12 hours of Alzheimer's or related dementia-specific training within 30 days of employment. The training must be conducted by a health care educator, adult education professional, or a licensed professional, with expertise in Alzheimer's or related dementia. The health care educator, adult education professional, or licensed professional must be acting within the scope of the requirements of his profession, and have had at least 12 hours of training in the care of individuals with cognitive impairments due to Alzheimer's or related dementia prior to performing the training, and have had a minimum of three years experience in the health care or dementia fields. In addition to health care educators and adult education professionals, licensed professionals eligible to conduct this training may include: physicians, psychologists, registered nurses, licensed practical nurses, occupational therapists, physical therapists, speech-language therapists, licensed clinical social workers, or licensed professional counselors.

2. All direct care staff must receive annual training in accordance with 22VAC40-71-630 22VAC40-72-250 and 22VAC40-72-260, with at least eight hours of training in the care of residents with dementia and medical nursing needs. This training may be incorporated into the existing training program and must address the medical nursing needs specific to each resident in the special care unit. This training must also incorporate problem areas that may include weight loss, falls, elopements, behavioral symptoms, and adverse reactions to prescribed medications. A health care educator, adult education professional or licensed professional with expertise in dementia must conduct this training. The health care educator, adult education professional or licensed professional must be acting within the scope of his profession and have had at least 12 hours of training in the care of individuals with cognitive impairments due to dementia prior to performing the training.

3. The individual conducting the training must have at least three years of experience in the health care or dementia care field. In addition to health care educators and adult education professionals, licensed professionals eligible to conduct the training include: physicians, psychologists, registered nurses, occupational therapists, physical therapists, speech/language pathologists, licensed clinical social workers, and licensed professional counselors.

M. L. Documentation. The assisted living facility shall maintain the following documentation for review by DMAS staff for each assisted living resident:

1. All UAIs, authorization forms, plans of care and assessments summaries and individuals' admissions completed for the resident maintained for a period not less than six years from the recipient's start of care in that facility;

2. All written communication related to the provision of care between the facility and the assessor, licensed health care professional, DMAS, VDSS, the recipient, or other related parties; and

3. A log that documents each day that the recipient is present in the facility.

12VAC30-120-1650. Payment for services.

A. DMAS shall pay the facility a per diem fee for each AAL Waiver recipient authorized to receive assisted living services. Except for 14 days of leave each calendar year as described in subsection C of this section, payment of the per diem fee is limited to the days in which the recipient is physically present in the facility.

B. The services that are provided as a part of the auxiliary grant rate pursuant to 22VAC40-25 22VAC40-25-40 will not be included for payment from the waiver.

C. Periods of absence from the assisted living facility.

1. An assisted living facility AAL Waiver bed may be held for leave when the resident's individual's plan of care provides for such leave. Leave includes visits with relatives and friends or admission to a rehabilitation center for up to seven consecutive days for an evaluation. Leave does shall not include periods of absence due to an admission to a hospital or nursing facility.

2. Leave is shall be limited to 14 cumulative days in any 12-month period. Leave is resident individual specific and is counted from the first occurrence of overnight leave that a resident an individual takes. From that date, a resident has 14 days of leave available during the next 365 days.

3. After the 14 days of leave have been exhausted and during periods of absence due to a hospital or nursing facility admission, the assisted living facility may choose to hold the bed for the resident individual, but DMAS will shall not pay for the service. The resident individual or the resident's individual's authorized representative may choose to pay to hold the bed by paying the assisted living facility directly using other funds. The rate shall be negotiated between the resident's individual's authorized representative and the assisted living facility, but shall not exceed the auxiliary grant rate in effect at the time of the resident's individual's absence.

4. During periods of absence for any reason, DMAS shall hold the waiver slot for the resident individual for a total of 30 consecutive days. If the resident's individual's absence exceeds 30 days, DMAS shall terminate AAL Waiver services and assign the slot to the next person on the waiting list.

12VAC30-120-1660. Utilization review.

A. DMAS shall conduct audits utilization reviews of the services billed to DMAS and interview recipients to ensure that services are being provided and billed in accordance with DMAS policies and procedures.

B. DMAS will review all facilities providing conduct quality management reviews of the services provided and interview recipients for all facilities providing services in this waiver on a regular basis to ensure the health and safety in this waiver. All quality management and level of care reviews will be performed at least annually and will be performed on site.

12VAC30-120-1670. Waiver waiting list.

DMAS shall maintain a waiting list for the purpose of individuals' access to this waiver program once all of the currently approved waiver slots have been filled. Individuals must meet all waiver eligibility criteria in order to be placed on the waiting list. Individuals may be removed from the waiting list because: (i) they request that their names be removed; (ii) they expire; or (iii) they are placed in an active slot and begin to receive services.

12VAC30-120-1680. Appeals.

A. Providers shall have the right to appeal actions taken by DMAS. Provider appeals shall be considered pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and DMAS regulations at 12VAC30-10-1000 and 12VAC30-20-500 through 12VAC30-20-560.

B. Medicaid recipients shall have the right to appeal actions taken by DMAS. Recipient appeals shall be considered pursuant to 12VAC30-110.

DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-120)

User's Guide: Mental Retardation: Definition, Classification, and Systems of Supports, 10th Edition, 2002, American Association on Mental Retardation Intellectual and Developmental Disabilities.

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DMS-IV-TR), 2000, American Psychiatric Association.

Underwriter's Laboratories Safety Standard 1635, Standard for Digital Alarm Communicator System Units, Third Edition, January 31, 1996, with revisions through August 15, 2005.

Underwriter's Laboratories Safety Standard 1637, Standard for Home Health Care Signaling Equipment, Fourth Edition, December 29, 2006.