Virginia Law

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

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

2. Individuals who have a disability as defined by § 1614 of the Social Security Act.

B. The Commonwealth has elected to cover low-income families with children as described in § 1931 of the Social Security Act; aged, blind, or disabled individuals who are eligible under 42 CFR 435.121; optional categorically needy individuals who are aged and disabled who have incomes at 80% of the federal poverty level; the special home and community-based waiver group under 42 CFR 435.217; and the medically needy groups specified in 42 CFR 435.320, 435.322, 435.324, and 435.330.

1. Under this waiver, the coverage groups authorized under § 1902(a)(10)(A)(ii)(VI) of the Social Security Act shall be considered as if the individual were institutionalized in an NF, specialized care NF, or long-stay hospital for the purpose of applying institutional deeming rules. All individuals in the waiver must meet the financial and nonfinancial Medicaid eligibility criteria and meet the institutional level of care (LOC) criteria. The deeming rules are applied to waiver eligible individuals as if the individual were residing in an institution or would require that level of care.

2. Virginia shall reduce its payment for home and community-based services provided to an individual who is eligible for Medicaid services under 42 CFR 435.217 by the amount of the waiver individual's total income (including amounts disregarded in determining financial eligibility) that remains after allowable deductions for personal maintenance needs, deductions for other dependents, and medical needs have been made, according to the guidelines in 42 CFR 435.735 and § 1915(c)(3) of the Social Security Act as amended by the Consolidated Omnibus Budget Reconciliation Act of 1986. DMAS shall reduce its payment for home and community-based waiver services by the amount that remains after the following deductions:

a. For waiver individuals to whom § 1924(d) applies (Virginia waives the requirement for comparability pursuant to § 1902(a)(10)(B)), deduct the following in the respective order:

(1) An amount for the maintenance needs of the waiver individual that is equal to 165% of the SSI income limit for one individual. Working individuals have a greater need due to expenses of employment; therefore, an additional amount of income shall be deducted. Earned income shall be deducted within the following limits: (i) for waiver individuals employed 20 hours or more per week, earned income shall be disregarded up to a maximum of both earned and unearned income up to 300% of SSI and (ii) for waiver individuals employed at least four but less than 20 hours per week, earned income shall be disregarded up to a maximum of both earned and unearned income up to 200% of SSI. However, in no case shall the total amount of income (both earned and unearned) that is disregarded for maintenance exceed 300% of SSI. If the waiver individual requires a guardian or conservator who charges a fee, the fee, not to exceed an amount greater than 5.0% of the waiver individual's total monthly income, is added to the maintenance needs allowance. However, in no case shall the total amount of the maintenance needs allowance (basic allowance plus earned income allowance plus guardianship fees) for the individual exceed 300% of SSI;

(2) For a waiver individual with only a spouse at home, the community spousal income allowance is determined in accordance with § 1924(d) of the Social Security Act;

(3) For an individual with a family at home, an additional amount for the maintenance needs of the family is determined in accordance with § 1924(d) of the Social Security Act; and

(4) Amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party, including Medicare and other health insurance premiums, deductibles, or coinsurance charges and necessary medical or remedial care recognized under the state law but not covered under the State Plan.

b. For waiver individuals to whom § 1924(d) of the Social Security Act does not apply, deduct the following in the respective order:

(1) An amount for the maintenance needs of the waiver individual that is equal to 165% of the SSI income limit for one individual. Working individuals have a greater need due to expenses of employment; therefore, an additional amount of income shall be deducted. Earned income shall be deducted within the following limits: (i) for waiver individuals employed 20 hours or more, earned income shall be disregarded up to a maximum of 300% of SSI and (ii) for waiver individuals employed at least four but less than 20 hours, earned income shall be disregarded up to a maximum of 200% of SSI. However, in no case shall the total amount of income (both earned and unearned) that is disregarded for maintenance exceed 300% of SSI. If the individual requires a guardian or conservator who charges a fee, the fee, not to exceed an amount greater than 5.0% of the individual's total monthly income, is added to the maintenance needs allowance. However, in no case shall the total amount of the maintenance needs allowance (basic allowance plus earned income allowance plus guardianship fees) for the individual exceed 300% of SSI;

(2) For an individual with a family at home, an additional amount for the maintenance needs of the family that shall be equal to the medically needy income standard for a family of the same size; and

(3) Amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party including Medicare and other health insurance premiums, deductibles, or coinsurance charges and necessary medical or remedial care recognized under state law but not covered under the State Plan.

C. Assessment and authorization of home and community-based waiver services.

1. To ensure that Virginia's home and community-based waiver programs serve only Medicaid eligible individuals who would otherwise be supported in an NF, specialized care NF, or long-stay hospital, home and community-based waiver services shall be considered only for individuals who are eligible for admission within 30 calendar days to one of these institutions. Home and community-based waiver services shall be the critical service to enable the individual to remain at home and in the community rather than being placed in an institution.

2. The individual's eligibility for home and community-based waiver services shall be determined by the LTSS screening team after completion of a thorough assessment of the individual's needs and available support. If the individual is determined eligible based on the procedures outlined in 12VAC30-60-303, the LTSS screening team shall provide the individual and family or caregiver with the choice of CCC Plus Waiver services, other appropriate services, institutional placement, or Program of All Inclusive Care for the Elderly (PACE) enrollment for people 55 years of age or older.

3. The LTSS screening team shall explore alternative settings or services to provide the care needed by the individual. If Medicaid-funded home and community-based waiver services are selected by the individual, the LTSS screening team shall initiate referrals for such services.

4. Medicaid shall not pay for any home and community-based waiver services delivered prior to the date the individual establishes Medicaid financial eligibility and the date of the LTSS screening with the physician's signature on the Medicaid Funded Long-Term Care Services Authorization Form (DMAS-96).

5. Before Medicaid shall assume payment responsibility of home and community-based services, service authorization must be obtained from DMAS or the DMAS-designated service authorization contractor for all services requiring service authorization. Providers shall submit all required information to DMAS or the designated service authorization contractor within 10 business days of initiating care or within 10 business days of receiving verification of Medicaid financial eligibility from the local department of social services. If the provider submits all required information to DMAS or the designated service authorization 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 DMAS-96 form. If the provider does not submit all required information to DMAS or the designated service authorization contractor within 10 business days of initiating care, the services may be authorized beginning with the date all required information was received by DMAS or the designated service authorization contractor, but in no event preceding the date of the physician's signature on the DMAS-96 form.

6. Once waiver eligibility has been determined by the LTSS screening team and referrals have been initiated, the provider or MCO shall submit a Medicaid LTSS Communication Form (DMAS-225) to the local department of social services to determine financial eligibility for the waiver program and any patient pay responsibilities. If the waiver individual has a patient pay amount, a provider shall use the electronic patient pay process for the required monthly monitoring of relevant changes. Local departments of social services shall enter data regarding a waiver individual's patient pay amount obligation into the DMAS system of record at the time action is taken on behalf of the individual either as a result of an application for LTSS, redetermination of financial eligibility, or reported change or changes in a waiver individual's situation. Procedures for the verification of a waiver individual's patient pay obligation are available in the appropriate Medicaid provider manual.

7. After the provider or MCO has received notification via the DMAS-225 process by the local department of social services and enrollment confirmation from DMAS or the designated service authorization contractor, the provider shall inform the individual, family, or caregiver so that services may be initiated.

8. The provider or MCO shall be responsible for notifying the local department of social services via the DMAS-225 when there is an interruption of services for 30 consecutive calendar days or upon discharge or transfer from the provider's services.

9. Certain home and community-based services shall not be available to individuals residing in an assisted living facility licensed by VDSS that serves four or fewer individuals. These services are: respite, PERS, ADHC, environmental modifications, and transition services. Personal care services shall be covered for individuals living in these facilities but shall not exceed five hours per day. Personal care services shall be authorized based on the waiver individual's documented need for care over and above that which is provided by the assisted living facility.

10. Individuals who are receiving Auxiliary Grants shall not be eligible for CCC Plus Waiver enrollment or services.

11. All individuals shall have a backup plan prior to initiating services and ongoing in cases of emergency or should the provider be unable to render services as needed. This backup plan shall be shared with the provider at the onset of services and updated with the provider as necessary.

12. Individuals who are receiving PDN waiver services shall have a trained primary caregiver who accepts responsibility for the individual's health, safety, and welfare. This primary caregiver shall be responsible for all hours not provided by an RN or an LPN. The name of the trained primary caregiver shall be documented in the provider's records.

D. Waiver individual responsibilities under the consumer-directed (CD) model.

1. The individual shall be authorized for CD services and the employer of record (EOR) shall successfully complete consumer employee management training performed by the services facilitator before the waiver individual or EOR shall be permitted to hire a personal care attendant for Medicaid reimbursement. Any services rendered by an attendant prior to dates authorized by Medicaid shall not be eligible for reimbursement. Individuals who are eligible for CD services shall have the capability to hire and train their own personal care attendants and supervise the attendants' performance including creating and maintaining complete and accurate work shift entries. The EOR may be the individual or a family member, caregiver, or another person designated by the individual to serve on the individual's behalf.

2. The person who serves as the EOR shall not be permitted to be (i) the paid attendant for respite services or personal care services or (ii) the services facilitator.

3. Individuals shall not knowingly continue to accept CD personal care services when the service is no longer appropriate or necessary for their care needs and shall inform the services facilitator. If CD services continue after services have been terminated by DMAS or the designated service authorization contractor, the waiver individual shall be held liable for attendant compensation.

4. The individual or EOR, as appropriate, shall notify the services facilitator of all hospitalizations and admission to any rehabilitation hospital unit, NF, specialized care NF, or long-stay hospital as soon as possible. Failure to do so may result in the waiver individual being liable for employee compensation.

E. Waiver individuals' rights and responsibilities. DMAS shall ensure that:

1. Each waiver individual shall receive, and the provider shall provide, the necessary care and services, to the extent of provider availability, to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the person-centered planning of the individual's comprehensive assessment and plan of care (POC).

2. Waiver individuals shall have the right to participate in the development of the plan of care and to receive services from the provider with reasonable accommodation of the individual's needs and preferences except when DMAS makes a determination that the health, safety, or welfare of the waiver individual or other individuals would be endangered.

3. All waiver individuals shall have the right to:

a. Voice grievances to the provider or provider staff without discrimination or reprisal. Such grievances include those with respect to treatment that has or has not been furnished;

b. Prompt efforts by the provider or staff, as appropriate, to resolve any grievances the waiver individual may have;

c. Be free from verbal, sexual, physical, and mental abuse, neglect, exploitation, and misappropriation of property;

d. Be treated with respect and with due consideration for the individual's dignity and privacy;

e. Be free from any physical or chemical restraints or seclusion of any form that may be used as a means of coercion, discipline, convenience, or retaliation and that are not required to treat the individual's medical symptoms;

f. The privacy and confidentiality of the individual's medical and clinical records; and

g. Receive information, such as a handbook or provider directory, in a manner and format that may be easily understood (i.e., in prevalent non-English languages and using translation services) and that is readily accessible in accordance with the standards specified in 42 CFR 438.10.

4. The waiver individual if legally competent, the waiver individual's legal guardian, or the parent of the minor child shall have the right to:

a. Choose whether the individual wishes to receive home and community-based care waiver services instead of institutionalization in accordance with the assessed needs of the individual. The LTSS screening team or MCO shall inform the individual of all available waiver service providers in the community in which the waiver individual resides. The waiver individual shall have the option of selecting the provider and services of the individual's choice. Individuals enrolled in the CCC Plus Program shall have the option of selecting a provider in the MCO's contracted network and services of the individual's choice. This choice must be documented in the individual's medical record;

b. Choose a primary care physician in the community in which the individual resides;

c. Be fully informed in advance about the waiver POC and treatment needs as well as any changes in that care or treatment that may affect the individual's well-being;

d. Participate in the care planning process, choice, and scheduling of providers and services; and

e. Be provided care with privacy, dignity, and respect at all times.