Virginia Law

A. Service description. Personal assistance service may be provided either through an agency-directed or a consumer-directed model.

1. Personal assistance service means direct support or supervision with (i) ADLs, (ii) IADLs, (iii) access to the community, (iv) monitoring the self-administration of medication or other medical needs, (v) monitoring health status and physical condition, or (vi) work or postsecondary school-related personal assistance. Personal assistance service substitutes for the absence, loss, diminution, or impairment of a physical, behavioral, or cognitive function.

2. When specified in the plan for supports, personal assistance service may include assistance with IADLs. Assistance with IADLs shall be documented in the plan for supports as essential to the health and welfare of the individual, rather than for the individual's family/caregiver's comfort or convenience, or both. In order to be approved for IADL support, the individual shall also require ADL supports.

3. An additional component to personal assistance service is work personal assistance or postsecondary school-related personal assistance that allows the personal assistance service provider to provide assistance and supports to individuals in the workplace and postsecondary educational institutions. Work-related personal assistance service shall not duplicate supported employment service. Personal assistance can be provided simultaneously with supported employment services and can be billed concurrently.

4. Personal assistance service shall be covered in the FIS and CL waivers.

B. Criteria and allowable activities.

1. To qualify for personal assistance service, the individual shall demonstrate a need for assistance with ADLs, support with taking medication or other medical needs, or monitoring health status or physical condition.

2. Individuals may receive both agency-directed and consumer-directed personal assistance as long as the two service models do not overlap the same days and times.

3. Individuals choosing the consumer-directed option for personal assistance service may receive support from a services facilitator and shall meet requirements for consumer direction as described in 12VAC30-122-150.

4. For personal assistance service, allowable activities shall include:

a. Support with ADLs;

b. Support with monitoring of health status or physical condition;

c. Support with prescribed use of medication and other medical needs;

d. Support with preparation and eating of meals;

e. Support with housekeeping activities, such as bed-making, cleaning, or the individual's laundry;

f. Support with participation in social, recreational, and community activities;

g. Assistance with bowel/bladder care needs, range of motion activities, routine wound care that does not include the sterile technique, and external catheter care when trained and supervised by an RN;

h. Accompanying the individual to appointments or meetings; and

i. Safety supports. For a child younger than 18 years of age the Request for Supervision Hours in Personal Assistance form, DMAS P-257, shall be submitted for service authorization purposes when supervision hours are requested to address safety support needs.

C. Service units and limits.

1. The unit of service for personal assistance service shall be one hour. The hours to be authorized shall be based on the individual's assessed and documented need as reflected in the plan for supports.

2. Any combination of respite service, personal assistance service, and companion service in the consumer-directed service model shall be limited to 40 hours per week for an employer of record (EOR) by the same assistant. Assistants who live with the individual, either full time or for substantial amounts of time, shall not be restricted to only 40 hours per week for the EOR. CD services employees shall work no more than 16 hours per day.

3. Individuals may receive a combination of personal assistance service, respite service, companion, and in-home support service as documented in their ISPs but shall not simultaneously receive in-home supports service, personal assistance service, or respite service.

4. Individuals shall require assistance with ADLs in order to receive IADL care through personal care service.

5. An individual shall be permitted to share personal assistance service hours with one other individual who is also receiving waiver-covered personal assistance service and who also lives in the same home, however, the number of hours billed shall not exceed the number of hours the assistant worked.

6. Personal assistance service shall not include skilled nursing (neither practical nor professional nursing) service with the exception of skilled nursing tasks that are delegated in accordance with 18VAC90-19-240 through 18VAC90-19-280. Skilled nursing services can be performed as allowed by § 54.1-2901 A 31 of the Code of Virginia.

7. Persons rendering personal assistance service for reimbursement by DMAS shall not be the individual's spouse. If the individual is a minor child, service shall not be reimbursed if the service is provided by his parent or guardian.

a. Family members who are approved to be reimbursed by DMAS to provide personal assistance service shall meet all of the assistance qualifications.

b. Personal assistance service shall not be provided by adult foster care providers or any other paid caregivers for an individual residing in that foster care home.

8. Work personal assistance or postsecondary school-related personal assistance shall not be provided if they should be provided by DARS or under IDEA, or if they are an employer's responsibility under the Americans with Disabilities Act (42 USC § 12101 et seq.), the Virginians with Disabilities Act (Title 51.5 (§ 51.5-1 et seq.) of the Code of Virginia), or § 504 of the Rehabilitation Act (42 USC § 701 et seq.).

9. Personal assistance shall not be reimbursed by DMAS for individuals who receive group home residential service, sponsored residential service, or supported living residential service; who live in assisted living facilities; or who receive comparable services from another program, service, or payment source, except as noted in subdivision A 3 of this section.

D. Provider requirements.

1. Providers shall meet all of the requirements of 12VAC30-122-110 through 12VAC30-122-140.

2. For agency-directed personal assistance service, the provider shall be licensed by DBHDS as either a group home provider, residential provider, or supportive in-home residential provider or shall meet the VDH licensing requirements or have accreditation from a CMS-recognized organization to be a personal care or respite care provider.

3. Providers of personal assistance service shall have a current, signed participation agreement with DMAS. Providers as designated on this agreement shall render this service directly and shall bill DMAS directly for Medicaid reimbursement.

4. Supervision requirements for agency-directed personal assistance service.

a. A supervisor shall provide ongoing supervision of all personal assistants.

b. For personal assistance service providers that are licensed by DBHDS, a supervisor meeting the requirements of 12VAC35-105-590 shall provide supervision of direct support professional staff.

c. For personal assistance service providers that are licensed by the Virginia Department of Health (VDH), the provider shall employ or subcontract with and directly supervise an RN or an LPN who shall provide ongoing supervision of all assistants. The supervising RN or LPN shall have at least one year of related clinical nursing experience that may include work in an acute care hospital, public health clinic, home health agency, ICF/IID, or nursing facility.

d. The supervisor shall make a home visit to conduct an initial assessment prior to the start of service for all individuals enrolled in the waiver requesting and who have been approved to receive personal assistance. The supervisor shall also perform any subsequent reassessments or changes to the plan for supports. All changes that are indicated for an individual's plan for supports shall be reviewed with and agreed to by the individual and, if appropriate, the individual's family/caregiver.

e. The supervisor shall make supervisory home visits as often as needed to ensure both quality and appropriateness of the service. The minimum frequency of these visits shall be every 30 to 90 days under the agency-directed model, depending on the individual's needs.

f. Based on continuing evaluations of the assistant's performance and the individual's needs, the supervisor shall identify any gaps in the assistant's ability to function competently and shall provide training as indicated.

5. Service facilitation requirements for the personal assistance service shall be the same as those set forth in 12VAC30-122-150.

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

7. Requirements for agency-directed assistants.

a. Providers shall ensure that staff providing the personal assistance service meet provider training and competency requirements as specified in 12VAC30-122-180.

b. Assistants employed by personal assistance agencies licensed by VDH shall have completed an educational curriculum of at least 40 hours of study related to the needs of individuals who have disabilities, including intellectual and developmental disabilities. The provider shall ensure, prior to assigning assistants to support an individual, that the assistants have the required skills and training to perform the service as specified in the individual's plan for supports and related supporting documentation. Assistants' required training shall be met in one of the following ways:

(1) Registration with the Board of Nursing as a certified nurse aide;

(2) Graduation from an approved educational curriculum as listed by the Board of Nursing; or

(3) Completion of the provider's educational curriculum, as conducted by a licensed RN who shall have at least one year of related clinical nursing experience that may include work in an acute care hospital, public health clinic, home health agency, ICF/IID, or nursing facility.

c. Assistants shall have a satisfactory work record, as evidenced by two references from prior job experiences, if applicable, including no evidence of possible abuse, neglect, or exploitation of elderly persons, children, or adults with disabilities.

d. Provider inability to render the service and substitution of assistants. When assistants are absent or otherwise unable to render scheduled supports to individuals enrolled in the waiver, the provider shall be responsible for ensuring that the service continues to be provided to the affected individuals.

(1) The provider may either obtain a substitute assistant from another provider if the lapse in coverage is to be less than two weeks in duration or transfer the individual's services to another personal assistance service provider.

(2) If no other provider is available who can supply a substitute assistant, the provider shall notify the individual and the individual's family/caregiver, as appropriate, and the support coordinator so that the support coordinator may find another available provider of the individual's choice.

(3) During temporary, short-term lapses in coverage that are not expected to exceed approximately two weeks in duration, the following procedures shall apply:

(a) The service-authorized provider shall provide the supervision for the substitute assistant;

(b) The provider of the substitute assistant shall send a copy of the assistant's daily documentation signed by the assistant, the individual, and the individual's family/caregiver, as appropriate, to the provider having the service authorization; and

(c) The service authorized provider shall bill DMAS for service rendered by the substitute assistant.

e. If a provider secures a substitute assistant, the provider agency shall be responsible for ensuring that all DMAS requirements continue to be met including documentation of service rendered by the substitute assistant and documentation that the substitute assistant's qualifications meet DMAS requirements. The two providers involved shall be responsible for negotiating the financial arrangements of paying the substitute assistant.

8. Persons functioning as assistants shall meet the following requirements:

a. Be at least 18 years of age;

b. Be able to read and write English to the degree required to function in this capacity and create and maintain the required documentation to support billing and possess basic math skills;

c. Be capable of following a plan for supports with minimal supervision and physically able to perform the required work;

d. Possess a valid Social Security Number that has been issued by the Social Security Administration to the person who is to function as the assistant;

e. Be capable of aiding in IADLs;

f. Receive a tuberculosis screening according to the requirements of the Virginia Department of Health; and

g. For consumer directed assistants, be willing to attend training at the individual's or family/caregiver's request.

E. Agency-directed service documentation and requirements.

1. The record for agency-directed providers shall at a minimum contain all of the following:

a. The most recently updated plan for supports and supporting documentation, and all provider documentation .

b. A copy of the most recently updated age-appropriate assessment form as set out in 12VAC30-122-200, the inital assessment by the DBHDS-licensed agency supervisor or RN supervisory nurse completed prior to or on the date the service is initiated, subsequent reassessments, and changes to the supporting documentation by the RN supervisory nurse .

c. Supervisor's summarizing notes recorded and dated during any contacts with the personal assistant during supervisory visits to the individual's home .

d. The specific service delivered to the individual enrolled in the waiver by the personal assistant dated the day of service delivery, and the individual's unique, specific responses .

e. The personal assistant's arrival and departure times.

f. The personal assistant's weekly comments or observations about the individual enrolled in the waiver to include individual-specific observations of the individual's physical and emotional condition, daily activities, and responses to the service.

g. The personal assistant's, individual's and the individual's family/caregiver's, as appropriate, weekly signatures recorded on the last day of service delivery for any given week to verify that the personal assistance service during that week has been rendered.

h. A written review supported by documentation in the individuals' record that is submitted to the support coordinator at least quarterly with the plan for supports, if modified. For the annual review and every time supporting documentation is updated, the supporting documentation shall be reviewed with the individual or family/caregiver, as appropriate, and such review shall be documented.

i. All correspondence to the individual and the individual's family/caregiver, as appropriate, the support coordinator, DMAS, and DBHDS and.

j. Written documentation of all contacts with the individual's family/caregiver, physicians, providers, and all professionals regarding the individual.

2. Personal assistant service records shall be separated from those of other nonwaiver services, such as home health service.

3. Provider progress notes shall meet the standards contained in 12VAC30-122-120 A.

4. Provider documentation shall support all claims submitted for DMAS reimbursement. Claims for payment that are not supported by supporting documentation shall be subject to recovery by DMAS or its designee as a result of utilization reviews or audits.

F. Consumer-directed documentation requirements are set forth in 12VAC30-122-500 E.