Section 905. Waiver description and legal authority

A. The Elderly or Disabled with Consumer Direction (EDCD) Waiver operates under the authority of § 1915 (c) of the Social Security Act and 42 CFR 430.25(b), 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 (LTC) services. Under this § 1915(c) waiver, DMAS waives § 1902(a)(10)(B) and (C) of the Social Security Act related to comparability of services.

B. This waiver provides Medicaid individuals who are elderly or who have a disability with supportive services to enable such individuals to remain in their communities thereby avoiding institutionalization.

C. Federal waiver requirements provide that the current aggregate average cost of care fiscal year expenditures under this waiver shall not exceed the average per capita expenditures in the aggregate for the level of care (LOC) provided in a nursing facility (NF) under the State Plan that would have been provided had the waiver not been granted.

D. DMAS shall be the single state agency authority pursuant to 42 CFR 431.10 responsible for the processing and payment of claims for the services covered in this waiver and for obtaining federal financial participation from CMS.

E. Payments for EDCD Waiver services shall not be provided to any financial institution or entity located outside of the United States pursuant to § 1902(a)(80) of the Social Security Act. Payments for EDCD Waiver services furnished in another state shall be (i) provided for an individual who meets the requirements of 42 CFR 431.52 and (ii) limited to the same service limitations that exist when services are rendered within the Commonwealth's political boundaries. Waiver services shall not be furnished to individuals who are inpatients of a hospital, nursing facility (NF), intermediate care facility for individuals with intellectual disabilities (ICF/IID), inpatient rehabilitation facility, assisted living facility licensed by VDSS that serves five or more individuals, or a group home licensed by DBHDS.

F. An individual shall not be simultaneously enrolled in more than one waiver program but may be listed on the waiting list for another waiver program as long as criteria are met for both waiver programs.

G. DMAS shall be responsible for assuring appropriate placement of the individual in home and community-based waiver services and shall have the authority to terminate such services for the individual for the reasons set out below.

1. Waiver services shall not be reimbursed until the provider is enrolled and the individual eligibility process is complete.

2. DMAS payment for services under this waiver shall be considered payment in full and no balance billing by the provider to the waiver individual, family/caregiver, employer of record (EOR), or any other family member of the waiver individual shall be permitted.

3. Additional voluntary payments or gifts from family members shall not be accepted by providers of services.

4. DMAS shall not duplicate services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973 (29 USC § 794). EDCD services shall not be authorized if another entity is required to provide the services, (e.g., schools, insurance) because these waiver services shall not duplicate payment for services available through other programs or funding streams.

H. In the case of termination of home and community-based waiver services by DMAS, individuals shall be notified of their appeal rights pursuant to 12VAC30-110. DMAS, or the designated Srv Auth contractor, shall have the responsibility and the authority to terminate the receipt of home and community-based care services by the waiver individual for any of the following reasons:

1. The home and community-based care services are no longer the critical alternative to prevent or delay institutional placement within 30 days;

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

3. The waiver individual no longer meets the NF criteria;

4. The waiver individual's environment in the community does not provide for his health, safety, or welfare;

5. The waiver individual does not have a backup plan for services in the event the provider is unable to provide services; or

6. Any other circumstances (including hospitalization) that cause services to cease or be interrupted for more than 30 consecutive calendar days. In such cases, such individuals shall be referred back to the local department of social services for redetermination of their Medicaid eligibility.

Historical Notes

Derived from Volume 31, Issue 10, eff. February 12, 2015.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.