12VAC30-135 Demonstration Waiver Services

REGULATIONS

Vol. 27 Iss. 19 - May 23, 2011

TITLE 12. HEALTH

DEPARTMENT OF MEDICAL ASSISTANCE SERVICES

Chapter 135

Final Regulation

REGISTRAR'S NOTICE: The Department of Medical Assistance Services is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that are necessary to conform to changes in Virginia statutory law where no agency discretion is involved. The Department of Medical Assistance Services will receive, consider, and respond to petitions from any interested person at any time with respect to reconsideration or revision.

Titles of Regulations: 12VAC30-120. Waivered Services (amending 12VAC30-120-165, 12VAC30-120-180, 12VAC30-120-190, 12VAC30-120-225, 12VAC30-120-233, 12VAC30-120-766, 12VAC30-120-950, 12VAC30-120-960, 12VAC30-120-980).

12VAC30-135. Demonstration Waiver Services (amending 12VAC30-135-200, 12VAC30-135-220).

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

Effective Date: July 1, 2011.

Agency Contact: Brian McCormick, Regulatory Supervisor, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone [phone], FAX [phone], or email [e-mail].

Summary:

The amendments conform 12VAC30-120, Waivered Services (for home and community based programs), and 12VAC30-135, Demonstration Waiver Services, (for the children's mental health waiver) to Item 297 WW and CCCCC of the 2011 Appropriation Act, which imposed new limits for respite services and personal care services. Respite services are limited to 480 hours covered annually and personal care services are limited to 56 hours per waiver individual per week, up to 52 weeks per year. Individual exceptions to the personal care services limitation may be granted based on criteria established by the Department of Medical Assistance Services.

12VAC30-120-165. Consumer-directed services: personal assistance and respite care services.

A. Service definition.

1. Consumer-directed personal assistance services are care of either a supportive or health-related nature and may include, but are not limited to, assistance with activities of daily living, access to the community, monitoring of self-administration of medication or other medical needs, monitoring health status and physical condition, and work-related personal assistance. When specified on the plan of care, such supportive services may include assistance with instrumental activities of daily living (IADLs). Personal assistance does not include either practical or professional nursing services or those practices regulated in Chapters 30 (§ 54.1-3000 et seq.) and 34 (§ 54.1-3400 et seq.) of Subtitle III of Title 54.1 of the Code of Virginia, as appropriate.

2. Consumer-directed respite care services are specifically designed to provide temporary, periodic, or routine relief to the unpaid primary caregiver of an individual. Respite services include, but are not limited to, assistance with personal hygiene, nutritional support, and environmental support. This service may be provided in the individual's home or other community settings.

3. DMAS shall either provide for fiscal agent services or contract for the services of a fiscal agent for consumer-directed personal assistance services and consumer-directed respite care services. The fiscal agent will be reimbursed by DMAS (if the service is contracted) to perform certain tasks as an agent for the individual/employer who is receiving consumer-directed services. The fiscal agent will handle responsibilities for the individual for employment taxes. The fiscal agent will seek and obtain all necessary authorizations and approvals of the Internal Revenue Service in order to fulfill all of these duties.

4. Individuals choosing consumer-directed services must receive support from a CD services facilitator. This is not a separate waiver service, but is required in conjunction with consumer-directed personal assistance services or consumer-directed respite care services. The CD service facilitator is responsible for assessing the individual's particular needs for a requested CD service, assisting in the development of the plan of care, providing training to the individual and family/caregiver on his responsibilities as an employer, and providing ongoing support of the consumer-directed services.

B. Criteria.

1. In order to qualify for consumer-directed personal assistance services, the individual must demonstrate a need for personal assistance in activities of daily living, community access, self-administration of medication or other medical needs, or monitoring health status or physical condition.

2. Consumer-directed respite care services may only be offered to individuals who have an unpaid primary caregiver living in the home who requires temporary relief to avoid institutionalization of the individual. Respite services are designed to focus on the need of the unpaid caregiver for temporary relief and to help prevent the breakdown of the unpaid caregiver due to the physical burden and emotional stress of providing continuous support and care to the individual.

3. Individuals who are eligible for consumer-directed services must have the capability to hire and train their own personal assistants and supervise the assistant's performance or, if an individual is unable to direct his own care or is under 18 years of age, a family/caregiver may serve as the employer on behalf of the individual.

4. The individual, or if the individual is unable, then a family/caregiver, shall be the employer of consumer-directed services, and therefore shall be responsible for hiring, training, supervising, and firing assistants. Specific employer duties include checking of references of personal assistants, determining that personal assistants meet basic qualifications, training assistants, supervising the assistant's performance, and submitting timesheets to the fiscal agent on a consistent and timely basis. The individual or family/caregiver must have a back-up plan for the provision of services in case the assistant does not show up for work as expected or terminates employment without prior notice.

5. Assistants may not be the parents of individuals who are minors or the individuals' spouses. Payment may not be made for services furnished by other family/caregivers living under the same roof as the individual being served unless there is objective written documentation as to why there are no other providers available to provide the care.

C. Service units and service limitations.

1. The unit of service for consumer-directed respite services is one hour. Effective July 1, 2011, Consumer-directed consumer-directed respite services are limited to a maximum of 720 480 hours per calendar year. Individuals who receive either consumer-directed respite care or agency-directed respite care services, or both, may not receive more than 720 480 hours combined in a calendar year.

2. No more than two unrelated individuals who live in the same home are permitted to share the authorized work hours of the personal assistant.

3. The unit of service for consumer-directed personal assistance services is one hour. Effective July 1, 2011, consumer-directed personal assistance services shall be limited to 56 hours of medically necessary services per week for 52 weeks per year. Individual exceptions may be granted based on criteria established by DMAS.

D. Provider qualifications. In addition to meeting the general conditions and requirements for home and community-based services, participating providers as specified in 12VAC30-120-150 and 12VAC30-120-160, the CD services facilitator must meet the following qualifications:

1. To be enrolled as a Medicaid CD services facilitator and maintain provider status, the CD services facilitator must have sufficient resources to perform the required activities. In addition, the CD services facilitator must have the ability to maintain and retain business and professional records sufficient to document fully and accurately the nature, scope, and details of the services provided.

2. It is preferred that the CD services facilitator possess a minimum of an undergraduate degree in a human services field or be a registered nurse currently licensed to practice in the Commonwealth of Virginia. The CD services facilitator must possess a combination of work experience and relevant education that indicates possession of the following knowledge, skills, and abilities. Such knowledge, skills, and abilities must be documented on the provider's application form, found in supporting documentation, or be observed during the job interview. Observations of knowledge, skills, and abilities demonstrated during the interview must be documented. The knowledge, skills, and abilities include:

a. Knowledge of:

(1) Types of functional limitations and health problems that may occur in persons with HIV/AIDS, as well as strategies to reduce limitations and health problems;

(2) Physical assistance that may be required by persons with HIV/AIDS, such as transferring, bathing techniques, bowel and bladder care, and the approximate time those activities normally take;

(3) Equipment and environmental modifications that may be required by persons with HIV/AIDS that reduce the need for human help and improve safety;

(4) Various long-term care program requirements, including nursing facility and assisted living facility placement criteria; Medicaid waiver services; and other federal, state and local resources that provide personal assistance and respite care services;

(5) DMAS HIV/AIDS waiver requirements, as well as the administrative duties for which the recipient will be responsible;

(6) Conducting assessments (including environmental, psychosocial, health, and functional factors) and their uses in care planning;

(7) Interviewing techniques;

(8) The individual's right to make decisions about, direct the provisions of, and control his CD personal assistance and respite services, including hiring, training, managing, approving time sheets, and firing an assistant;

(9) The principles of human behavior and interpersonal relationships; and

(10) General principles of record documentation.

b. Skills in:

(1) Negotiating with individuals and service providers;

(2) Assessing, supporting, observing, recording, and reporting behaviors;

(3) Identifying, developing, or providing services to individuals with HIV/AIDS; and

(4) Identifying services within the established services system to meet the individual's needs.

c. Abilities to:

(1) Report findings of the assessment or onsite visit, either in writing or an alternative format for individuals who have visual impairments;

(2) Demonstrate a positive regard for individuals and their families;

(3) Be persistent and remain objective;

(4) Work independently, performing position duties under general supervision;

(5) Communicate effectively, verbally and in writing; and

(6) Develop a rapport and communicate with different types of individuals from diverse cultural backgrounds.

3. If the CD services facilitator is not a registered nurse, the service facilitator must inform the primary health care provider that CD services are being provided and to request consultation as needed.

E. Service facilitator responsibilities.

1. The CD service facilitator shall maintain a personal assistant registry. The registry shall contain names of persons who have experience with providing personal assistance services or who are interested in providing personal assistance services. The registry shall be maintained as a supportive source for the individual who may use the registry to obtain the names of potential personal assistants. The CD service facilitator shall note on the plan of care what constitutes the individual's back-up plan in case the personal assistant does not report for work as expected or terminates employment without prior notice.

2. Upon the individual's request, the CD service facilitator shall provide the individual with a list of persons on the personal assistant registry who can provide temporary assistance until the assistant returns or the individual is able to select and hire a new personal assistant. If an individual is consistently unable to hire and retain the employment of an assistant to provide personal assistance services, the CD service facilitator must make arrangements with the case manager to have the services transferred to an agency-directed services provider or to discuss with the individual or family/caregiver other service options.

3. For consumer-directed services, the CD services facilitator must make an initial comprehensive home visit to collaborate with the individual and family/caregiver to identify the needs, assist in the development of the plan of care with the individual or family/caregiver, and provide employee management training. Individuals or family/caregivers who cannot receive management training at the time of the initial visit must receive management training within seven days of the initial visit. The initial comprehensive home visit is done only once upon the individual's entry into the service. If a waiver individual changes CD services facilitators, the new CD services facilitator must complete a reassessment visit in lieu of a comprehensive visit.

4. After the initial visit, two routine onsite visits must occur in the individual's home within 60 days of the initiation of care or the initial visit to monitor the plan of care. The first onsite visit shall occur within 30 days and the second onsite visit shall occur no later than 30 days after the first onsite visit. The CD service facilitator will continue to monitor the plan of care on an as needed basis, not to exceed a maximum of one routine onsite visit every 30 days but no less than the minimum of one routine onsite visit every 90 days per individual. If additional onsite visits are required, the provider must have documentation to show the necessity for these extra visits. After the first two routine onsite visits, the CD services facilitator and individual can decide on the frequency of the routine onsite visits.

5. After the initial visit, the CD services facilitator will continue to monitor the assistant's plan of care quarterly and on an as-needed basis. The CD services facilitator will review the utilization of consumer-directed respite services, either every six months or upon the use of 300 respite services hours, whichever comes first.

6. A face-to-face meeting with the individual must be conducted at least every 90 days to ensure appropriateness of any CD services received by the individual.

7. During visits with the individual, the CD services facilitator must observe, evaluate, and consult with the individual or family/caregiver, and document the adequacy and appropriateness of consumer-directed services with regard to the individual's current functioning and cognitive status, medical, and social needs. The CD services facilitator's written summary of the visit must include, but is not necessarily limited to:

a. Discussion with the individual or family/caregiver whether the service is adequate to meet the individual's needs;

b. Any suspected abuse, neglect, or exploitation and who it was reported to;

c. Any special tasks performed by the assistant and the assistant's qualifications to perform these tasks;

d. Individual's or family/caregiver's satisfaction with the service;

e. Any hospitalization or change in medical condition, functioning, or cognitive status;

f. The presence or absence of the assistant in the home during the CD services facilitator's visit; and

g. Other services received and the amount.

8. The CD services facilitator must be available to the individual by telephone.

9. Prior to a personal assistant providing services, the CD services facilitator must submit a criminal record check pertaining to the assistant on behalf of the individual and report findings of the criminal record check to the individual or the family/caregiver and the fiscal agent. If the individual is a minor, the assistant must also be screened through the DSS Child Protective Services Central Registry. Personal assistants will not be reimbursed for services provided to the individual on or after the date that the criminal record check confirms an assistant has been found to have been convicted of a crime as described in § 32.1-162.9:1 of the Code of Virginia or if the personal assistant has a confirmed record on the DSS Child Protective Services Registry. DMAS will reimburse for up to six criminal record checks per individual within a six-month period.

10. The CD services facilitator, during routine visits, shall verify bi-weekly timesheets signed by the individual or the family/caregiver and the personal assistant to ensure that the number of plan of care approved hours are not exceeded. If discrepancies are identified, the CD services facilitator must contact the individual to resolve the discrepancies and must notify the fiscal agent. If an individual is consistently being identified as having discrepancies in his timesheets, the CD services facilitator must contact the case manager to resolve the situation. The CD services facilitator shall not verify timesheets for personal assistants whose criminal record checks have confirmed that they have been convicted of a crime described in § 32.1-162.9:1 of the Code of Virginia or in the case of a minor recipient have a confirmed case with the DSS Child Protective Services Registry and must notify the fiscal agent.

11. The CD services facilitator must maintain records of each individual. At a minimum these records must contain:

a. All copies of the completed Uniform Assessment Instrument (UAI), all documentation of previous inpatient hospital admissions, the Long-Term Care Preadmission Screening Authorization (DMAS-96), the Screening Team Service Plan (DMAS-97), the Consent to Exchange Information (DMAS-20), all Consumer-Directed Personal Assistance Plans of Care (DMAS-97B), all Patient Information Forms (DMAS-122), the Outline and Checklist for Consumer-Directed Recipient Comprehensive Training, and the Service Agreement Between the Consumer and the Service Facilitator;

b. Reassessments made during the provision of services;

c. All individual progress reports;

d. Results of the initial comprehensive home visit completed prior to or on the date services are initiated and subsequent reassessments and changes to the supporting documentation;

e. The plan of care goals and activities must be reviewed at least annually by the CD services facilitator, the individual and family/caregiver receiving the services, and the case manager. In addition, the plan of care must be reviewed by the CD services facilitator quarterly, modified as appropriate, and submitted to the case manager;

f. CD service facilitator's dated notes documenting any contacts with the individual, family/caregiver, and visits to the individual's home;

g. All correspondence to the individual, case manager, the designated preauthorization contractor, and DMAS;

h. Records of contacts made with family/caregiver, physicians, formal and informal service providers, and all professionals concerning the individual;

i. All training provided to the assistants on behalf of the individual or family/caregiver;

j. All employee management training provided to the individual or family/caregiver, including the individual's or family/caregiver's receipt of training on their responsibility for the accuracy of the assistant's timesheets;

k. All documents signed by the individual or the individual's family/caregiver that acknowledge the responsibilities as the employer; and

l. Documentation that indicates the efforts taken by the CD service facilitator to obtain the most recently completed DMAS-122 from the case manager.

12. The CD service facilitator is required to submit to DMAS biannually, for every individual, an individual progress report, an updated UAI, documentation of any inpatient hospital admissions, and any monthly visit/progress reports. This information is used to assess the individual's ongoing need for Medicaid-funded long-term care and appropriateness and adequacy of services rendered.

13. For consumer-directed personal assistance and consumer-directed respite services, individuals or family/caregivers will hire their own personal assistants and manage and supervise their performance. Assistant qualifications include, but shall not necessarily be limited to, the following requirements. The assistant must:

a. Be 18 years of age or older;

b. Have the required skills to perform consumer-directed services as specified in the individual's plan of care;

c. Possess basic math, reading, and writing skills;

d. Possess a valid Social Security number;

e. Submit to a criminal records check and, if the individual is a minor, consent to a search of the DSS Child Protective Services Central Registry. The assistant will not be compensated for services provided to the individual if either of these records checks verifies the assistant has been convicted of crimes described in § 32.1-162.9:1 of the Code of Virginia or if the assistant has a founded complaint confirmed by the DSS Child Protective Services Central Registry;

f. Be willing to attend training at the individual's or family/ caregiver's request;

g. Understand and agree to comply with the DMAS AIDS waiver requirements;

h. Be willing to register in a personal assistant registry, which will be maintained by the provider agency chosen by the individual; and

i. Receive yearly tuberculosis (TB) screening, cardiopulmonary resuscitation (CPR) training and an annual flu shot (unless these procedures are medically contraindicated).

14. Family members who are reimbursed to provide consumer-directed services must meet the assistant qualifications.

F. Individual responsibilities.

1. The individual must be authorized for consumer-directed services and successfully complete management training performed by the service facilitator before the individual can hire a personal assistant for Medicaid reimbursement. Individuals who are eligible for consumer-directed services must have the capability to hire and train their own personal assistants and supervise assistants' performance. Individuals with cognitive impairments will not be able to manage their own care. If an individual is unable to direct his own care, a family caregiver may serve as the employer on behalf of the individual. Individuals are permitted to share hours for no more than two individuals living in the same home.

2. The individual or family/caregiver is the employer and is responsible for hiring, training, supervising, and firing personal assistants. Specific duties include checking references of personal assistants, determining that personal assistants meet basic qualifications, training personal assistants, supervising the personal assistant's performance, and submitting timesheets to the fiscal agent on a consistent and timely basis. The individual must have an emergency back-up plan in case the personal assistant does not show up for work as expected or terminates employment without prior notice.

3. The individual shall cooperate with the development of the plan of care with the service facilitator, who monitors the plan of care and provides supportive services to the individual. The individual shall also cooperate with the fiscal agent that handles fiscal responsibilities on behalf of the individual. Individuals who do not cooperate with the service facilitator or fiscal agent may be disenrolled from consumer-directed services and may be considered for enrollment in agency-directed services.

4. Individuals will acknowledge that they will not knowingly continue to accept consumer-directed personal assistance services when the services are no longer appropriate or necessary for their care needs and will inform the service facilitator. If consumer-directed services continue after services have been terminated by DMAS or the designated preauthorization contractor, the individual will be held liable for employee compensation.

5. The individual's right to make decisions about, direct the provisions of, and control his consumer-directed personal assistance care and consumer-directed respite care services, including hiring, training, managing, approving time sheets, and firing an assistant, shall be preserved.

G. Fiscal agent responsibilities.

1. DMAS may contract for the services of a fiscal agent for consumer-directed services. The fiscal agent will be reimbursed by DMAS to perform certain tasks as an agent for the recipient/employer who is receiving consumer-directed services. The fiscal agent will handle certain responsibilities for the individual, including but not limited to, employment taxes. The fiscal agent will seek and obtain all necessary authorizations and approvals of the Internal Revenue Service in order to fulfill all of these duties.

2. A fiscal agent may be a state agency or other organization, and will sign a contract with DMAS that defines the roles and tasks expected of the fiscal agent and DMAS and enroll as a provider of consumer-directed services. Roles and tasks that will be deemed for the fiscal agent in the contract will consist of, but not necessarily be limited to, the following:

a. The fiscal agent will file for and obtain employer agent status with the federal and state tax authorities;

b. Once the individual has been authorized to receive consumer-directed services, the fiscal agent will register the individual as an employer and provide assistance to the individual in completing forms required to obtain employer identification numbers from federal agencies, state agencies, and unemployment insurance agencies;

c. The fiscal agent will prepare and maintain original and file copies of all forms needed to comply with federal, state, and local tax payment of unemployment compensation insurance premiums, and all other reporting requirements of employers;

d. Upon receipt of the required completed forms from the individual, the fiscal agent will remit the required forms to the appropriate agency and maintain copies of the forms in the individual's file. The fiscal agent will return copies of all forms to the individual for the individual's permanent personnel records;

e. The fiscal agent will prepare all unemployment tax filings on behalf of the individual as an employer, and make all deposits of unemployment taxes withheld according to the appropriate schedule;

f. The fiscal agent will receive and verify that the assistant's biweekly timesheets do not exceed the maximum hours approved for the individual and will process the timesheets;

g. The fiscal agent will prepare and process the payroll for the individual's assistants, and make all appropriate deposits of income tax, FICA, and other withholdings according to federal and state regulations. Withholdings include, but are not limited to, all judgments, garnishments, tax levies, or any related holds on the funds of the personal assistants as may be required by local, state, or federal law;

h. The fiscal agent will prepare payrolls for the individual's personal assistant according to approved time sheets and after making appropriate deductions and withholding deposits;

i. The fiscal agent will make payments on behalf of the individual for FICA (employer and employee shares), unemployment compensation taxes, and other payments and taxes required by applicable federal or state laws or regulations;

j. The fiscal agent will distribute biweekly payroll checks to the individual's personal assistants on behalf of the individuals;

k. The fiscal agent will maintain accurate payroll records by preparing and submitting to DMAS, at the time the fiscal agent bills DMAS for personal assistance services, an accurate accounting of all payments on personal assistants to whom payments for services were made, including a report of FICA payments for each covered assistant;

l. The fiscal agent will maintain such other records and information as DMAS may require, in the form and manner prescribed by DMAS;

m. The fiscal agent will generate W-2 forms for all personal assistants who meet statutory threshold amounts during the tax year;

n. The fiscal agent will establish a customer service mechanism in order to respond to calls from individuals and personal assistants regarding lost or late checks, or other questions regarding payments that are not related to the authorization amounts generated from DMAS;

o. The fiscal agent will keep abreast of all applicable state and federal laws and regulations relevant to the responsibilities it has undertaken with regard to these filings;

p. The fiscal agent will use program-designated billing forms or electronic billing to bill DMAS, if this service is contracted; and

q. The fiscal agent will be capable of requesting electronic transfer of funds from DMAS.

3. The fiscal agent and all subcontracting bookkeeping firms, as appropriate, will maintain the confidentiality of Medicaid information in accordance with the following:

a. The fiscal agent agrees to comply with HIPAA requirements. The fiscal agent shall take measures to prudently safeguard and protect unauthorized disclosure of the Medicaid information in its possession. The fiscal agent shall establish internal policies to ensure compliance with federal and state laws and regulations regarding confidentiality. In no event shall the fiscal agent provide, grant, allow, or otherwise give access to Medicaid information to anyone without the express written permission of either the individual or the DMAS Director. The fiscal agent shall assume all liabilities under both state and federal law in the event that the information is disclosed in any manner.

b. Upon the fiscal agent receiving any written requests for Medicaid information from any individual, entity, corporation, partnership, or otherwise, the fiscal agent must notify DMAS of such requests within 24 hours of receipt of such requests. The fiscal agent shall ensure that there will be no disclosure of the data except by and through DMAS. DMAS will treat such requests in accordance with DMAS policies.

c. In cases where the information requested by outside sources can be released under the Freedom of Information Act (FOIA), as determined by DMAS, the fiscal agent shall provide support for copying and invoicing such documents.

4. A contract between the fiscal agent and the individual will be used to set forth those aspects of the employment relationship that are to be handled by the fiscal agent, and which are to be handled by the individual. The contract will reflect that the fiscal agent is performing these tasks on behalf of the individual who is the actual employer of the assistant. Before the individual begins receiving services, the fiscal agent must have a signed contract with the individual prior to the reimbursement of personal assistance services.

12VAC30-120-180. Agency-directed personal care services.

A. General. Agency-directed personal care services may be offered to waiver individuals. Personal care may be offered either as the sole home and community-based care service that avoids institutionalization or in conjunction with the other AIDS waiver services. Individuals may continue to work or attend post-secondary school, or both, while they receive services under this waiver. The personal care assistant who assists the individual may accompany the individual to work or school or both and may assist the individual with personal needs while the individual is at work or school or both. DMAS will also pay for any personal care services that the assistant gives to the individual to assist him in getting ready for work or school or both or when he returns home. DMAS or the designated preauthorization contractor will review the individual's needs and the complexity of the disability when determining the services that will be provided to the individual in the workplace or school or both.

1. Effective July 1, 2011, agency-directed personal care services shall be limited to 56 hours of medically necessary services per week for 52 weeks per year.

2. Individual exceptions may be granted based on criteria established by DMAS.

B. DMAS will not duplicate services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (ADA) (42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973. For example, if the individual's only need is for assistance during lunch, DMAS would not pay for the assistant to be with the individual for any hours extending beyond lunch. For an individual whose speech is such that he cannot be understood without an interpreter (not translation of a foreign language), or the individual is physically unable to speak or make himself understood even with a communication device, the assistant's services may be necessary for the length of time the individual is at work or school or both. Workplace or school supports through the HIV/AIDS waiver are not provided if the services are an employer's responsibility under the Americans with Disabilities Act or § 504 of the Rehabilitation Act.

C. The provider agency must develop an individualized plan of care that addresses the individual's needs at home, at work or school and in the community. DMAS will not pay for the assistant to assist the enrolled individual with any functions related to the individual completing his job or school functions or for supervision time during work, school, or both.

D. Special provider participation conditions. The personal care provider shall:

1. Operate from a business office.

2. Employ (or subcontract with) and directly supervise a registered nurse who will provide ongoing supervision of all personal care aides.

a. The registered nurse shall be currently licensed to practice in the Commonwealth of Virginia and have at least two years of related clinical nursing experience (which may include work in an acute care hospital, public health clinic, home health agency, rehabilitation hospital, nursing facility, or as a licensed practical nurse (LPN)).

b. The registered nurse shall 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 children. Providers are responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. The criminal record check documentation shall be available for review by DMAS staff who are authorized by the agency to review these files, as a part of the utilization review process.

c. The registered nurse supervisor shall make an initial home assessment on or before the start of care for all new individuals admitted to personal care, when individuals are readmitted after being discharged from services, or are transferred from another personal care provider.

d. The registered nurse supervisor shall make supervisory visits as often as needed, but no fewer visits than provided as follows, to ensure both quality and appropriateness of services.

(1) A minimum frequency of these visits is every 30 days for individuals with a cognitive impairment, as defined herein, and every 90 days for individuals who do not have a cognitive impairment.

(2) The initial home assessment visit by the registered nurse shall be conducted to create the plan of care and assess individuals' needs. The registered nurse shall return for a follow-up visit within 30 days after the initial visit to assess the individual's needs and make a final determination that there is no cognitive impairment. This determination must be documented in the individual's record by the registered nurse. Individuals who are determined to have a cognitive impairment will continue to have supervisory visits every 30 days.

(3) If there is no cognitive impairment, the registered nurse may give the individual or caregiver or both the option of having the supervisory visit every 90 days or any increment in between, not to exceed 90 days. The registered nurse must document this conversation in the individual's record and the option that was chosen.

(4) The provider has the responsibility of determining if 30-day registered nurse supervisory visits are appropriate for the individual. The provider may offer the extended registered nurse supervisory visits, or the agency may choose to continue the 30-day supervisory visits based on the needs of the individual. The decision must be documented in the individual's record.

(5) If an individual's personal care assistant is supervised by the provider's registered nurse less often than every 30 days and DMAS or the designated preauthorization contractor determines that the individual's health, safety, or welfare is in jeopardy, DMAS or the designated preauthorization contractor may require the provider's registered nurse to supervise the personal care aide every 30 days or more frequently than what has been determined by the registered nurse. This will be documented and entered in the individual's record.

e. During visits to the individual's home, the registered nurse shall observe, evaluate, and document the adequacy and appropriateness of personal care services with regard to the individual's current functioning status, medical, and social needs. The personal care aide's record shall be reviewed and the recipient's (or family's) satisfaction with the type and amount of service discussed. The registered nurse summary shall note:

(1) Whether personal care services continue to be appropriate.

(2) Whether the plan is adequate to meet the individual's needs or if changes need to be made in the plan of care.

(3) Any special tasks performed by the aide and the aide's qualifications to perform these tasks.

(4) Individual's satisfaction with the service.

(5) Hospitalization or change in the medical condition or functioning status of the individual.

(6) Other services received by the individual and the amount; and

(7) The presence or absence of the aide in the home during the registered nurse's visit.

f. A registered nurse shall be available to the personal care aide for conference pertaining to individuals being served by the aide and shall be available to aides by telephone at all times that the aide is providing services to personal care individuals.

g. The registered nurse supervisor shall evaluate the aides' performance and the individual's needs to identify any insufficiencies in the aide's abilities to function competently and shall provide training as indicated. This shall be documented in the individual's record.

h. If there is a delay in the registered nurses' supervisory visits, because the individual was unavailable, the reason for the delay must be documented in the individual's record.

3. Employ and directly supervise personal care aides who provide direct care to personal care individuals. Each aide hired by the provider agency shall be evaluated by the provider agency to ensure compliance with qualifications required by DMAS. Each aide shall:

a. Be able to read and write.

b. Complete a minimum of 40 hours of training consistent with DMAS standards. Prior to assigning an aide to an individual, the provider agency shall ensure that the aide has satisfactorily completed a training program consistent with DMAS standards.

c. Be physically able to do the work.

d. 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 children. Providers are responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. The criminal record check shall be available for review by DMAS staff who are authorized by the agency to review these files; and

e. Not be (i) the parents of minor children who are receiving waiver services or (ii) spouses of individuals who are receiving waiver services.

Payment may be made for services furnished by other family members when there is objective written documentation as to why there are no other providers available to provide the care. These family members must meet the same requirements as aides who are not family members.

C. E. Required documentation for individuals' records. The provider agency shall maintain all records of each personal care recipient. These records shall be separate from those of nonhome and community-based care services, such as companion or home health services. These records shall be reviewed periodically by the DMAS staff who are authorized by DMAS to review these files during utilization review. At a minimum these records shall contain:

1. The most recently updated Long Term Care Uniform Assessment Instrument (UAI), documentation of any inpatient hospital admissions, the Medicaid-Funded Long-Term Care Service Authorization form (DMAS-96), the Screening Team Service Plan for Medicaid-Funded Long-Term Care (DMAS-97), the Consent to Exchange Information (DMAS-20), all Provider Agency Plans of Care (DMAS—97A), all Community-Based Care Recipient Assessment Reports (DMAS-99), all Patient Information Forms (DMAS-122), and the Service Agreement Between the Consumer and the Service Facilitator.

2. The initial assessment by a registered nurse completed prior to or on the date that services are initiated.

3. Registered nurses' notes recorded and dated during any significant contacts with the personal care aide and during supervisory visits to the individual's home.

4. All correspondence to the individual, DMAS, the designated preauthorization contractor.

5. Reassessments made during the provision of services.

6. Significant contacts made with family, physicians, DMAS, the designated preauthorization contractor, formal and informal service providers and all professionals related to the individual's Medicaid services or medical care.

7. All Provider Aide/LPN Records (DMAS-90). The Provider Aide/LPN Record shall contain:

a. The specific services delivered to the individual by the aide and the individual's response to this service;

b. The aide's daily arrival and departure times;

c. The aide's weekly comments or observations about the individual, including observations of the individual's physical and emotional condition, daily activities, and responses to services rendered; and

d. The aide's and individual's, or responsible caregiver's, weekly signatures, including the date, to verify that personal care services have been rendered during that week as documented in the record. An employee of the provider cannot sign for the individual unless he is a family member or legal guardian of the individual.

Signatures, times and dates shall not be placed on the aide record prior to the last date of the week that the services are delivered.

8. All individual progress reports.

12VAC30-120-190. Agency-directed respite care services.

A. General. Agency-directed respite care services may be offered to individuals as an alternative to institutional care. Respite care may be offered to individuals in their homes or places of residence, in a Medicaid-certified nursing facility, or in a licensed respite care facility. Respite care is distinguished from other services in the continuum of long-term care because it is specifically designed to focus on the need of the unpaid primary caregiver for temporary relief. Respite care may only be offered to individuals who have an unpaid primary caregiver living in the home who requires temporary relief to avoid institutionalization of the individual. The Effective July 1, 2011, the authorization of respite care is limited to 720 480 hours per calendar year per individual. An individual who transfers to a different provider or is discharged and readmitted into the HIV/AIDS waiver program within the same calendar year will not receive an additional 720 480 hours of respite care. Reimbursement shall be made on an hourly basis not to exceed a total of 720 480 hours per calendar year. If an individual is receiving both agency directed and consumer directed respite care, the total number of respite care hours cannot exceed a total of 720 480 hours combined per calendar year.

B. Special provider participation conditions. To be approved for respite care contracts with DMAS, the respite care provider shall:

1. Operate from a business office.

2. Employ (or subcontract) with and directly supervise a registered nurse who will provide ongoing supervision of all respite care aides.

a. The registered nurse shall be currently licensed to practice in the Commonwealth and have at least two years of related clinical nursing experience which may include work in an acute care hospital, public health clinic, home health agency, rehabilitation hospital, nursing facility or as an LPN.

b. The registered nurse shall 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 children. Providers are responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. The criminal record check shall be available for review by DMAS staff who are authorized by the agency to review these files.

c. Based on continuing evaluations of the aides' performance and the individuals' needs, a registered nurse supervisor shall identify any insufficiencies in the aides' abilities to function competently and shall provide training as indicated.

d. A registered nurse supervisor shall make an initial home assessment visit on or before the start of care for any individual admitted to respite care.

e. A registered nurse supervisor shall make supervisory visits as often as needed to ensure both quality and appropriateness of services.

(1) When respite care services are received on a routine basis, the minimum acceptable frequency of these visits shall be every 30 days.

(2) When respite care services are not received on a routine basis, but are episodic in nature, a registered nurse shall not be required to conduct a supervisory visit every 30 days. Instead, a registered nurse shall conduct the initial home visit with the respite care aide on or before the start of care and make a second home visit during the second respite care visit.

(3) When respite care services are routine in nature and offered in conjunction with personal care, the supervisory visit conducted for personal care services may serve as the registered nurse supervisory visit for respite care. However, the registered nurse supervisor shall document supervision of respite care separately from the personal care documentation. For this purpose, the same individual record can be used with a separate section for respite care documentation.

f. During visits to the individual's home, the registered nurse shall observe, evaluate, and document the adequacy and appropriateness of respite care services with regard to the individual's current functioning status, medical, and social needs. The respite care aide's record shall be reviewed and the recipient's or family's satisfaction with the type and amount of service discussed. The registered nurse shall document in a summary note:

(1) Whether respite care services continue to be appropriate;

(2) Whether the plan of care is adequate to meet the individual's needs or if changes need to be made in the plan of care;

(3) The individual's satisfaction with the service;

(4) Any hospitalization or change in the medical condition or functioning status of the individual;

(5) Other services received by the individual and the amount of services received; and

(6) The presence or absence of the aide in the home during the registered nurse's visit.

g. A registered nurse shall be available to the respite care aide for conference pertaining to individuals being served by the aide and shall be available to the aides by telephone at all times that aides are providing services to respite care individuals.

h. If there is a delay in the registered nurse's supervisory visits because the individual is unavailable, the reason for the delay must be documented in the individual's record.

3. Employ and directly supervise respite care aides who provide direct care to respite care individuals. Each aide hired by the provider agency shall be evaluated by the provider agency to ensure compliance with qualifications as required by DMAS. Each aide must:

a. Be able to read and write in English to the degree necessary to perform the tasks expected.

b. Have completed a minimum 40 hours of training consistent with DMAS standards. Prior to assigning an aide to an individual, the provider agency shall ensure that the aide has satisfactorily completed a training program consistent with DMAS standards.

c. Be evaluated in his job performance by the registered nurse supervisor.

d. Be physically able to do the work.

e. 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 children. Providers are responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. The criminal record check documentation shall be available for review by DMAS staff who are authorized by the agency to review these files.

f. Not be (i) the parents of minor children who are receiving waiver services or (ii) the spouses of individuals who are receiving waiver services.

Payment may be made for services furnished by other family members when there is objective written documentation as to why there are no other providers available to provide the care. These family members must meet the same requirements as aides who are not family members.

4. The respite care agency may employ a licensed practical nurse (LPN) to perform skilled respite care services which shall be reimbursed by DMAS under the following circumstances:

a. The LPN shall be currently licensed to practice in the Commonwealth. The LPN 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 children. Providers shall be responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. The criminal record check documentation shall be available for review by DMAS staff who are authorized by the agency to review these files.

b. The individual has a need for routine skilled care that cannot be provided by unlicensed personnel. This individual would typically require a skilled level of care if in a nursing facility (i.e., individuals on a ventilator, individuals requiring nasogastric or gastrostomy feedings, etc.).

c. No other person in the individual's support system is able to supply the skilled component of the individual's care during the caregiver's absence.

d. The individual is unable to receive skilled nursing visits from any other source which could provide the skilled care usually given by the caregiver.

e. The agency must document in the individual's record the circumstances which require the provision of services by an LPN.

f. A physician's order for the skilled respite service, on the Home Health Certification and Plan of Care (CMS-485) is obtained prior to the initiation of service and is updated every six months. This order must specifically identify the skilled tasks to be performed.

The registered nurse shall review the medications and treatments rendered by the LPN every 60 days and verify the physician's orders.

C. Required documentation for individuals' records. The provider agency shall maintain all records of each respite care individual. These records shall be separate from those of nonhome and community-based care services, such as companion or home health services. These records shall be reviewed periodically by the DMAS staff who are authorized by the agency to review these files during utilization review. At a minimum these records shall contain:

1. The most recently updated Long Term Care Uniform Assessment Instrument (UAI), documentation of any inpatient hospital admissions, the Medicaid-Funded Long-Term Care Service Authorization form (DMAS-96), the Screening Team Service Plan for Medicaid-Funded Long-Term Care (DMAS-97), all Community-Based Care Assessment Reports (DMAS-99), all Provider Agency Plans of Care (DMAS-97A and CMS-485), and all Patient Information Forms (DMAS-122); .

2. The initial assessment by a registered nurse completed prior to or on the date services are initiated.

3. Registered nurse's notes recorded and dated during significant contacts with the respite care aide or LPN and during supervisory visits to the individual's home.

4. All correspondence to the individual, DMAS, and the designated preauthorization contractor.

5. Reassessments made during the provision of services.

6. Significant contacts made with family, physicians, DMAS, the designated preauthorization contractor, formal and informal service providers, and all professionals related to the individual's Medicaid services or medical care.

7. All Provider Aide/LPN Records (DMAS-90). The provider aide/LPN record shall contain:

a. The specific services delivered to the individual by the respite care aide, or LPN, and the individual's response to this service.

b. The daily arrival and departure times of the aide or LPN for respite care services.

c. Comments or observations recorded weekly about the individual. Aide or LPN comments shall include but not be limited to observation of the individual's physical and emotional condition, daily activities, and the individual's response to services rendered.

d. The signatures of the aide, or LPN, and the individual once each week to verify that respite care services have been rendered.

Signatures, times, and dates shall not be placed on the aide record prior to the last date of the week that the services are delivered. If the individual is unable to sign the aide record, it must be documented in the individual's record how or who will sign in his place. An employee of the provider shall not sign for the individual unless he is a family member or legal guardian of the individual and has direct knowledge of the care received by the individual.

8. All recipient progress reports.

12VAC30-120-225. Consumer-directed model of service delivery.

A. Criteria.

1. The MR Waiver has three services, companion, personal assistance, and respite, that may be provided through a consumer-directed model. Effective July 1, 2011, respite services shall be limited to 480 hours per year.

2. Individuals who choose the consumer-directed model must have the capability to hire, train, and fire their own personal assistant or companion and supervise the assistant's or companion's performance. If an individual is unable to direct his own care or is under 18 years of age, a family/caregiver may serve as the employer on behalf of the individual.

3. The individual, or if the individual is unable, then family/caregiver, shall be the employer in this service, and therefore shall be responsible for hiring, training, supervising, and firing assistants and companions. Specific employer duties include checking of references of personal assistants/companions, determining that personal assistants/companions meet basic qualifications, training assistants/companions, supervising the assistant's/companion's performance, and submitting timesheets to the fiscal agent on a consistent and timely basis. The individual and the individual's family/caregiver, as appropriate, must have a back-up plan in case the assistant/companion does not show up for work as expected or terminates employment without prior notice.

4. Individuals choosing consumer-directed models of service delivery must receive support from a CD services facilitator. This is not a separate waiver service, but is required in conjunction with consumer-directed personal assistance, respite, or companion services. The CD services facilitator will be responsible for assessing the individual's particular needs for a requested CD service, assisting in the development of the ISP, providing training to the individual and the individual's family/caregiver, as appropriate, on his responsibilities as an employer, and providing ongoing support of the consumer-directed models of services. The CD services facilitator cannot be the individual, the individual's case manager, direct service provider, spouse, or parent of the individual who is a minor child, or a family/caregiver employing the assistant/companion. If an individual enrolled in consumer-directed services has a lapse in services facilitator for more than 90 consecutive days, the case manager must notify DMHMRSAS and the consumer-directed services will be discontinued.

5. DMAS shall provide for fiscal agent services for consumer-directed personal assistance services, consumer-directed companion services, and consumer-directed respite services. The fiscal agent will be reimbursed by DMAS to perform certain tasks as an agent for the individual/employer who is receiving consumer-directed services. The fiscal agent will handle the responsibilities of employment taxes for the individual. The fiscal agent will seek and obtain all necessary authorizations and approvals of the Internal Revenue Services in order to fulfill all of these duties.

B. Provider qualifications. In addition to meeting the general conditions and requirements for home and community-based services participating providers as specified in 12VAC30-120-217 and 12VAC30-120-219, the CD services facilitator must meet the following qualifications:

1. To be enrolled as a Medicaid CD services facilitator and maintain provider status, the CD services facilitator shall have sufficient resources to perform the required activities. In addition, the CD services facilitator must have the ability to maintain and retain business and professional records sufficient to document fully and accurately the nature, scope, and details of the services provided.

2. It is preferred that the CD services facilitator possess a minimum of an undergraduate degree in a human services field or be a registered nurse currently licensed to practice in the Commonwealth. In addition, it is preferable that the CD services facilitator have two years of satisfactory experience in a human service field working with persons with mental retardation. The facilitator must possess a combination of work experience and relevant education that indicates possession of the following knowledge, skills, and abilities. Such knowledge, skills, and abilities must be documented on the provider's application form, found in supporting documentation, or be observed during a job interview. Observations during the interview must be documented. The knowledge, skills, and abilities include:

a. Knowledge of:

(1) Types of functional limitations and health problems that may occur in persons with mental retardation, or persons with other disabilities, as well as strategies to reduce limitations and health problems;

(2) Physical assistance that may be required by people with mental retardation, such as transferring, bathing techniques, bowel and bladder care, and the approximate time those activities normally take;

(3) Equipment and environmental modifications that may be required by people with mental retardation that reduce the need for human help and improve safety;

(4) Various long-term care program requirements, including nursing home and ICF/MR placement criteria, Medicaid waiver services, and other federal, state, and local resources that provide personal assistance, respite, and companion services;

(5) MR waiver requirements, as well as the administrative duties for which the services facilitator will be responsible;

(6) Conducting assessments (including environmental, psychosocial, health, and functional factors) and their uses in service planning;

(7) Interviewing techniques;

(8) The individual's right to make decisions about, direct the provisions of, and control his consumer-directed personal assistance, companion and respite services, including hiring, training, managing, approving time sheets, and firing an assistant/companion;

(9) The principles of human behavior and interpersonal relationships; and

(10) General principles of record documentation.

b. Skills in:

(1) Negotiating with individuals and the individual's family/caregivers, as appropriate, and service providers;

(2) Assessing, supporting, observing, recording, and reporting behaviors;

(3) Identifying, developing, or providing services to individuals with mental retardation; and

(4) Identifying services within the established services system to meet the individual's needs.

c. Abilities to:

(1) Report findings of the assessment or onsite visit, either in writing or an alternative format for individuals who have visual impairments;

(2) Demonstrate a positive regard for individuals and their families;

(3) Be persistent and remain objective;

(4) Work independently, performing position duties under general supervision;

(5) Communicate effectively, orally and in writing; and

(6) Develop a rapport and communicate with persons of diverse cultural backgrounds.

3. If the CD services facilitator is not a RN, the CD services facilitator must inform the primary health care provider that services are being provided and request skilled nursing or other consultation as needed.

4. Initiation of services and service monitoring.

a. For consumer-directed services, the CD services facilitator must make an initial comprehensive home visit to collaborate with the individual and the individual's family/caregiver, as appropriate, to identify the needs, assist in the development of the ISP with the individual and the individual's family/caregiver, as appropriate, and provide employee management training. The initial comprehensive home visit is done only once upon the individual's entry into the consumer-directed model of service regardless of the number or type of consumer-directed services that an individual chooses to receive. If an individual changes CD services facilitators, the new CD services facilitator must complete a reassessment visit in lieu of a comprehensive visit.

b. After the initial visit, the CD services facilitator will continue to monitor the companion, or personal assistant ISP quarterly and on an as-needed basis. The CD services facilitator will review the utilization of consumer-directed respite services, either every six months or upon the use of 300 240 respite services hours, whichever comes first.

c. A face-to-face meeting with the individual must be conducted at least every six months to reassess the individual's needs and to ensure appropriateness of any CD services received by the individual.

5. During visits with the individual, the CD services facilitator must observe, evaluate, and consult with the individual and the individual's family/caregiver, as appropriate, and document the adequacy and appropriateness of consumer-directed services with regard to the individual's current functioning and cognitive status, medical needs, and social needs.

6. The CD services facilitator must be available to the individual by telephone.

7. The CD services facilitator must submit a criminal record check pertaining to the assistant/companion on behalf of the individual and report findings of the criminal record check to the individual and the individual's family/caregiver, as appropriate, and the program's fiscal agent. If the individual is a minor, the assistant/companion must also be screened through the DSS Child Protective Services Central Registry. Assistants/companions will not be reimbursed for services provided to the individual effective the date that the criminal record check confirms an assistant/companion has been found to have been convicted of a crime as described in § 37.2-416 of the Code of Virginia or if the assistant/companion has a confirmed record on the DSS Child Protective Services Central Registry. The criminal record check and DSS Child Protective Services Central Registry finding must be requested by the CD services facilitator within 15 calendar days of employment. The services facilitator must maintain evidence that a criminal record check was obtained and must make such evidence available for DMAS review.

8. The CD services facilitator shall review timesheets during the face-to-face visits or more often as needed to ensure that the number of ISP-approved hours is not exceeded. If discrepancies are identified, the CD services facilitator must discuss these with the individual to resolve discrepancies and must notify the fiscal agent.

9. The CD services facilitator must maintain a list of persons who are available to provide consumer-directed personal assistance, consumer-directed companion, or consumer-directed respite services.

10. The CD services facilitator must maintain records of each individual as described in 12VAC30-120-217, 12VAC30-120-223, and 12VAC30-120-233.

11. Upon the individual's request, the CD services facilitator shall provide the individual and the individual's family/caregiver, as appropriate, with a list of persons who can provide temporary assistance until the assistant/companion returns or the individual is able to select and hire a new personal assistant/companion. If an individual is consistently unable to hire and retain the employment of an assistant/companion to provide consumer-directed personal assistance, companion, or respite services, the CD services facilitator will make arrangements with the case manager to have the services transferred to an agency-directed services provider or to discuss with the individual and the individual's family/caregiver, as appropriate, other service options.

12VAC30-120-233. Personal assistance and respite services.

A. Service description. Services may be provided either through an agency-directed or consumer-directed model.

1. Personal assistance services are provided to individuals in the areas of activities of daily living, instrumental activities of daily living, access to the community, monitoring of self-administered medications or other medical needs, monitoring of health status and physical condition, and work-related personal assistance. They may be provided in home and community settings to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. When specified, such supportive services may include assistance with instrumental activities of daily living (IADLs). Personal assistance does not include either practical or professional nursing services or those practices regulated in Chapters 30 (§ 54.1-3000 et seq.) and 34 (§ 54.1-3400 et seq.) of Title 54.1 of the Code of Virginia, as appropriate. This service does not include skilled nursing services with the exception of skilled nursing tasks that may be delegated pursuant to 18VAC90-20-420 through 18VAC90-20-460.

2. Respite services are supports for that which is normally provided by the family or other unpaid primary caregiver of an individual. These services are furnished on a short-term basis because of the absence or need for relief of those unpaid caregivers normally providing the care for the individuals.

B. Criteria.

1. In order to qualify for personal assistance services, the individual must demonstrate a need for assistance with activities of daily living, community access, self-administration of medications or other medical needs, or monitoring of health status or physical condition.

2. Respite services may only be offered to individuals who have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the individual.

C. Service units and service limitations.

1. The unit of service is one hour.

2. Each individual must have a back-up plan in case the personal assistant does not show up for work as expected or terminates employment without prior notice.

3. Personal assistance is not available to individuals: (i) who receive congregate residential services or live in assisted living facilities; (ii) who would benefit from personal assistance training and skill development; or (iii) who receive comparable services provided through another program or service.

4. Respite services shall not be provided to relieve group home or assisted living facility staff where residential care is provided in shifts. Respite services shall not be provided by adult foster care providers for an individual residing in that home. Training of the individual is not provided with respite services.

5. Respite Effective July 1, 2011, respite services shall be limited to a maximum of 720 480 hours per calendar year. Individuals who are receiving services through both the agency-directed and consumer-directed model cannot exceed 720 480 hours per calendar year combined.

6. The Within the limits established herein, the hours authorized are based on individual need. No more than two unrelated individuals who live in the same home are permitted to share the authorized work hours of the assistant.

D. Provider requirements. In addition to meeting the general conditions and requirements for home and community-based participating providers as specified in 12VAC30-120-217 and 12VAC30-120-219, personal assistance and respite providers must meet additional provider requirements:

1. Services shall be provided by:

a. For the agency-directed model, an enrolled DMAS personal care/respite care provider or by a DMHMRSAS-licensed residential services provider. In addition, respite services may be provided by a DMHMRSAS-licensed respite services provider or a DSS-approved foster care home for children or adult foster home provider. All personal assistants must pass an objective standardized test of skills, knowledge, and abilities approved by DMHMRSAS and administered according to DMHMRSAS' defined procedures.

b. For consumer-directed model, a services facilitator meeting the requirements found in 12VAC30-120-225.

2. For DMHMRSAS-licensed residential or respite services providers, a residential or respite supervisor will provide ongoing supervision of all assistants.

3. For DMAS-enrolled personal care/respite care providers, the provider must employ or subcontract with and directly supervise a RN or a LPN who will provide ongoing supervision of all assistants. The supervising RN or LPN must be currently licensed to practice nursing in the Commonwealth and have at least two years of related clinical nursing experience that may include work in an acute care hospital, public health clinic, home health agency, ICF/MR or nursing facility.

4. The supervisor or services facilitator must make a home visit to conduct an initial assessment prior to the start of services for all individuals requesting personal assistance or respite services. The supervisor or services facilitator must also perform any subsequent reassessments or changes to the supporting documentation.

5. The supervisor or services facilitator must make supervisory home visits as often as needed to ensure both quality and appropriateness of services. The minimum frequency of these visits is every 30 to 90 days under the agency-directed model and semi-annually (every six months) under the consumer-directed model depending on the individual's needs.

a. When respite services are not received on a routine basis, but are episodic in nature, the supervisor or services facilitator is not required to conduct a supervisory visit every 30 to 90 days. Instead, the supervisor or services facilitator must conduct the initial home visit with the respite assistant immediately preceding the start of services and make a second home visit within the respite period.

b. When respite services are routine in nature and offered in conjunction with personal assistance, the supervisory visit conducted for personal assistance may serve as the supervisory visit for respite services. However, the supervisor or services facilitator must document supervision of respite services separately. For this purpose, the same individual record can be used with a separate section for respite services documentation.

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

7. Qualification of assistants.

a. The assistant must:

(1) Be 18 years of age or older and possess a valid social security number;

(2) Be able to read and write English to the degree necessary to perform the tasks expected and possess basic math skills; and

(3) Have the required skills to perform services as specified in the individual's ISP.

b. Additional requirements for DMAS-enrolled personal care/respite care providers.

(1) Assistants must complete a training curriculum consistent with DMAS requirements. Prior to assigning an assistant to an individual, the provider must obtain documentation that the assistant has satisfactorily completed a training program consistent with DMAS requirements. DMAS requirements may be met in one of three ways:

(a) Registration as a certified nurse aide;

(b) Graduation from an approved educational curriculum that offers certificates qualifying the student as a nursing assistant, geriatric assistance, or home health aide;

(c) Completion of provider-offered training, which is consistent with the basic course outline approved by DMAS; and

(2) Assistants must have a satisfactory work record, as evidenced by two references from prior job experiences, including no evidence of possible abuse, neglect, or exploitation of aged or incapacitated adults or children.

c. Additional requirements for the consumer-directed option. The assistant must:

(1) Submit to a criminal records check and, if the individual is a minor, consent to a search of the DSS Child Protective Services Central Registry. The assistant will not be compensated for services provided to the individual if either of these records checks verifies the assistant has been convicted of crimes described in § 37.2-416 of the Code of Virginia or if the assistant has a founded complaint confirmed by the DSS Child Protective Services Central Registry;

(2) Be willing to attend training at the individual and the individual's family/caregiver, as appropriate, request;

(3) Understand and agree to comply with the DMAS MR Waiver requirements; and

(4) Receive an annual tuberculosis (TB) screening.

8. Assistants may not be the parents of individuals who are minors, or the individuals' spouses. Payment may not be made for services furnished by other family members living under the same roof as the individual receiving services unless there is objective written documentation as to why there are no other providers available to provide the service. Family members who are approved to be reimbursed for providing this service must meet the assistant qualifications.

9. Provider inability to render services and substitution of assistants (agency-directed model).

a. When an assistant is absent, the provider is responsible for ensuring that services continue to be provided to individuals. The provider may either provide another assistant, 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 provider. The provider that has the authorization to provide services to the individual must contact the case manager to determine if additional preauthorization is necessary.

b. 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 case manager so that the case manager may find another available provider of the individual's choice.

c. During temporary, short-term lapses in coverage not to exceed two weeks in duration, the following procedures must apply:

(1) The preauthorized provider must provide the supervision for the substitute assistant;

(2) The provider of the substitute assistant must send a copy of the assistant's daily documentation signed by the individual and the individual's family/caregiver, as appropriate, on his behalf and the assistant to the provider having the authorization; and

(3) The preauthorized provider must bill DMAS for services rendered by the substitute assistant.

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

10. Required documentation in the individual's record. The provider must maintain records regarding each individual receiving services. At a minimum these records must contain:

a. An initial assessment completed by the supervisor or services facilitator prior to or on the date services are initiated;

b. An ISP, that contains, at a minimum, the following elements:

(1) The individual's strengths, desired outcomes, required or desired supports;

(2) The individual's goals and objectives to meet the above identified outcomes;

(3) Services to be rendered and the frequency of services to accomplish the above goals and objectives; and

(4) For the agency-directed model, the provider staff responsible for the overall coordination and integration of the services specified in the ISP.

c. The ISP goals, objectives, and activities must be reviewed by the supervisor or services facilitator quarterly for personal assistance only, annually, and more often as needed modified as appropriate and results of these reviews submitted to the case manager. For the annual review and in cases where the ISP is modified, the ISP must be reviewed with the individual.

d. Dated notes of any contacts with the assistant, individual and the individual's family/caregiver, as appropriate, during supervisory or services facilitator visits to the individual's home. The written summary of the supervision or services facilitation visits must include:

(1) Whether services continue to be appropriate and whether the ISP is adequate to meet the need or if changes are indicated in the ISP;

(2) Any suspected abuse, neglect, or exploitation and to whom it was reported;

(3) Any special tasks performed by the assistant and the assistant's qualifications to perform these tasks;

(4) The individual's satisfaction with the service;

(5) Any hospitalization or change in medical condition or functioning status;

(6) Other services received and their amount; and

(7) The presence or absence of the assistant in the home during the supervisor's visit.

e. All correspondence to the individual and the individual's family/caregiver, as appropriate, case manager, DMAS, and DMHMRSAS;

f. Reassessments and any changes to supporting documentation made during the provision of services;

g. Contacts made with the individual, family/caregivers, physicians, formal and informal service providers, and all professionals concerning the individual;

h. Copy of the most recently completed DMAS-122 form. The provider or services facilitator must clearly document efforts to obtain the completed DMAS-122 form from the case manager.

i. For the agency-directed model, the assistant record must contain:

(1) The specific services delivered to the individual by the assistant, dated the day of service delivery, and the individual's responses;

(2) The assistant's arrival and departure times;

(3) The assistant's weekly comments or observations about the individual to include observations of the individual's physical and emotional condition, daily activities, and responses to services rendered; and

(4) The assistant's and 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 services during that week have been rendered.

j. For individuals receiving personal assistance and respite services in a congregate residential setting, because services that are training in nature are currently or no longer appropriate or desired, the record must contain:

(1) The specific services delivered to the individual, dated the day services were provided, the number of hours as outlined in the ISP, the individual's responses, and observations of the individual's physical and emotional condition; and

(2) At a minimum, monthly verification by the residential supervisor of the services and hours and quarterly verification as outlined in 12VAC30-120-241.

k. For the consumer-directed model, the assistant record must contain:

(1) Documentation of all training provided to the assistants on behalf of the individual and the individual's family/caregiver, as appropriate;

(2) Documentation of all employee management training provided to the individual and the individual's family/caregiver, as appropriate, including the individual and the individual's family/caregiver, as appropriate, receipt of training on their responsibility for the accuracy of the assistant's timesheets;

(3) All documents signed by the individual and the individual's family/caregiver, as appropriate, that acknowledge the responsibilities as the employer.

12VAC30-120-766. Personal care and respite care services.

A. Service description. Services may be provided either through an agency-directed or consumer-directed model.

1. Personal care services means services offered to individuals in their homes and communities to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. Personal care services substitute for the absence, loss, diminution, or impairment of a physical, behavioral, or cognitive function. This service shall provide care to individuals with activities of daily living (eating, drinking, personal hygiene, toileting, transferring and bowel/bladder control), instrumental activities of daily living (IADL), access to the community, monitoring of self-medication or other medical needs, and the monitoring of health status or physical condition. In order to receive personal care services, the individual must require assistance with their ADLs. When specified in the plan of care, personal care services may include assistance with IADL. Assistance with IADL must be essential to the health and welfare of the individual, rather than the individual's family/caregiver. An additional component to personal care is work or school-related personal care. This allows the personal care provider to provide assistance and supports for individuals in the workplace and for those individuals attending postsecondary educational institutions. Workplace or school supports through the IFDDS Waiver are not provided if they are services that should be provided by the Department of Rehabilitative Services, under IDEA, or if they are an employer's responsibility under the Americans with Disabilities Act, the Virginians with Disabilities Act, or § 504 of the Rehabilitation Act. Work-related personal care services cannot duplicate services provided under supported employment.

2. Respite care means services provided for unpaid caregivers of eligible individuals who are unable to care for themselves that are provided on an episodic or routine basis because of the absence of or need for relief of those unpaid persons who routinely provide the care.

B. Criteria.

1. In order to qualify for personal care services, the individual must demonstrate a need in activities of daily living, reminders to take medication, or other medical needs, or monitoring health status or physical condition.

2. In order to qualify for respite care, individuals must have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the individual.

3. Individuals choosing the consumer-directed option must receive support from a CD services facilitator and meet requirements for consumer direction as described in 12VAC30-120-770.

C. Service units and service limitations.

1. The unit of service is one hour.

2. Respite Effective July 1, 2011, respite care services are limited to a maximum of 720 480 hours per year. Individuals who are receiving services through both the agency-directed and consumer-directed models cannot exceed 720 480 hours per calendar year combined.

3. Individuals may have personal care, respite care, and in-home residential support services in their plan of care but cannot receive in-home residential supports and personal care or respite care services at the same time.

4. Each individual receiving personal care services must have a back-up plan in case the personal care aide or consumer-directed (CD) employee does not show up for work as expected or terminates employment without prior notice.

5. Individuals must need assistance with ADLs in order to receive IADL care through personal care services.

6. Individuals shall be permitted to share personal care service hours with one other individual (receiving waiver services) who lives in the same home.

7. This service does not include skilled nursing services with the exception of skilled nursing tasks that may be delegated in accordance with 18VAC90-20-420 through 18VAC90-20-460.

D. Provider requirements. In addition to meeting the general conditions and requirements for home and community-based care participating providers as specified in 12VAC30-120-730 and 12VAC30-120-740, personal and respite care providers must meet the following provider requirements:

1. Services shall be provided by:

a. For the agency-directed model, a DMAS enrolled personal care/respite care provider or by a DMHMRSAS-licensed residential supportive in-home provider. All personal care aides must pass an objective standardized test of knowledge, skills, and abilities approved by DMHMRSAS and administered according to DMHMRSAS' defined procedures.

Providers must demonstrate a prior successful health care delivery business and operate from a business office.

b. For the consumer-directed model, a service facilitation provider meeting the requirements found in 12VAC30-120-770.

2. For DMHMRSAS-licensed providers, a residential supervisor shall provide ongoing supervision for all personal care aides. For DMAS-enrolled personal care/respite care providers, the provider must employ or subcontract with and directly supervise an RN who will provide ongoing supervision of all aides. The supervising RN must be currently licensed to practice in the Commonwealth and have at least two years of related clinical nursing experience that may include work in an acute care hospital, public health clinic, home health agency, ICF/MR or nursing facility.

3. The RN supervisor or case manager/services facilitator must make a home visit to conduct an initial assessment prior to the start of care for all individuals requesting services. The RN supervisor or case manager/service facilitator must also perform any subsequent reassessments or changes to the supporting documentation. Under the consumer-directed model, the initial comprehensive visit is done only once upon the individual's entry into the service. If an individual served under the waiver changes CD services facilitation agencies, the new CD services facilitation provider must bill for a reassessment in lieu of a comprehensive visit.

4. The RN supervisor or case manager/services facilitator must make supervisory visits as often as needed to ensure both quality and appropriateness of services.

a. For personal care the minimum frequency of these visits is every 30 to 90 calendar days depending on individual needs. For respite care offered on a routine basis, the minimum frequency of these visits is every 30 to 90 calendar days under the agency-directed model and every six months or upon the use of 300 240 respite care hours (whichever comes first) under the consumer-directed model.

b. Under the agency-directed model, when respite care services are not received on a routine basis, but are episodic in nature, the RN is not required to conduct a supervisory visit every 30 to 90 calendar days. Instead, the RN supervisor must conduct the initial home visit with the respite care aide immediately preceding the start of care and make a second home visit within the respite care period.

c. When respite care services are routine in nature and offered in conjunction with personal care, the 30- to 90-day supervisory visit conducted for personal care may serve as the RN supervisor or case manager/service facilitator visit for respite care. However, the RN supervisor or case manager/services facilitator must document supervision of respite care separately. For this purpose, the same record can be used with a separate section for respite care documentation.

5. Under the agency-directed model, the supervisor shall identify any gaps in the aide's ability to provide services as identified in the individual's plan of care and provide training as indicated based on continuing evaluations of the aide's performance and the individual's needs.

6. The supervising RN or case manager/services facilitator must maintain current documentation. This may be done as a summary and must note:

a. Whether personal and respite care services continue to be appropriate;

b. Whether the supporting documentation is adequate to meet the individual's needs or if changes are indicated in the supporting documentation;

c. Any special tasks performed by the aide/CD employee and the aide's/CD employee's qualifications to perform these tasks;

d. Individual's satisfaction with the service;

e. Any hospitalization or change in the individual's medical condition or functioning status;

f. Other services received and their amount; and

g. The presence or absence of the aide in the home during the RN's visit.

7. Qualification of aides/CD employees. Each aide/CD employee must:

a. Be 18 years of age or older and possess a valid social security number;

b. For the agency-directed model, be able to read and write English to the degree necessary to perform the tasks required. For the consumer-directed model, possess basic math, reading and writing skills;

c. Have the required skills to perform services as specified in the individual's plan of care;

d. Not be the parents of individuals who are minors, or the individual's spouse. Payment will not be made for services furnished by other family members living under the same roof as the individual receiving services unless there is objective written documentation as to why there are no other providers available to provide the care. Family members who are approved to be reimbursed for providing this service must meet the qualifications. In addition, under the consumer-directed model, family/caregivers acting as the employer on behalf of the individual may not also be the CD employee;

e. Additional aide requirements under the agency-directed model:

(1) Complete an appropriate aide training curriculum consistent with DMAS standards. Prior to assigning an aide to an individual, the provider must ensure that the aide has satisfactorily completed a training program consistent with DMAS standards. DMAS requirements may be met in any of the following ways:

(a) Registration as a certified nurse aide (DMAS-enrolled personal care/respite care providers);

(b) Graduation from an approved educational curriculum that offers certificates qualifying the student as a nursing assistant, geriatric assistant or home health aide (DMAS-enrolled personal care/respite care providers);

(c) Completion of provider-offered training that is consistent with the basic course outline approved by DMAS (DMAS-enrolled personal care/respite care providers);

(d) Completion and passing of the DMHMRSAS standardized test (DMHMRSAS licensed providers);

(2) Have a satisfactory work record as evidenced by two references from prior job experiences, including no evidence of possible abuse, neglect, or exploitation of aged or incapacitated adults or children; and

(3) Be evaluated in his job performance by the supervisor.

f. Additional CD employee requirements under the consumer-directed model:

(1) Submit to a criminal records check and, if the individual is a minor, the child protective services registry. The employee will not be compensated for services provided to the individual if the records check verifies the employee has been convicted of crimes described in § 37.2-314 of the Code of Virginia or if the employee has a complaint confirmed by the DSS child protective services registry;

(2) Be willing to attend training at the request of the individual or his family/caregiver, as appropriate;

(3) Understand and agree to comply with the DMAS consumer-directed services requirements; and

(4) Receive an annual TB screening.

8. Provider inability to render services and substitution of aides (agency-directed model). When an aide is absent, the provider may either obtain another aide, obtain a substitute aide 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 provider.

9. Retention, hiring, and substitution of employees (consumer-directed model). Upon the individual's request, the CD services facilitator shall provide the individual or his family/caregiver, as appropriate, with a list of consumer-directed employees on the consumer-directed employee registry that may provide temporary assistance until the employee returns or the individual or his family/caregiver, as appropriate, is able to select and hire a new employee. If an individual or his family/caregiver, as appropriate, is consistently unable to hire and retain an employee to provide consumer-directed services, the services facilitator must contact the case manager and DMAS to transfer the individual, at the choice of the individual or his family/caregiver, as appropriate, to a provider that provides Medicaid-funded agency-directed personal care or respite care services. The CD services facilitator will make arrangements with the case manager to have the individual transferred.

10. Required documentation in individuals' records. The provider must maintain all records of each individual receiving services. Under the agency-directed model, these records must be separated from those of other nonwaiver services, such as home health services. At a minimum these records must contain:

a. The most recently updated plan of care and supporting documentation, all provider documentation, and all DMAS-122 forms;

b. Initial assessment by the RN supervisory nurse or case manager/services facilitator completed prior to or on the date services are initiated, subsequent reassessments, and changes to the supporting documentation by the RN supervisory nurse or case manager/services facilitator;

c. Nurses' or case manager/services facilitator summarizing notes recorded and dated during any contacts with the aide or CD employee and during supervisory visits to the individual's home;

d. All correspondence to the individual and to DMAS;

e. Contacts made with family, physicians, DMAS, formal and informal service providers, and all professionals concerning the individual;

f. Under the agency-directed model, all aide records. The aide record must contain:

(1) The specific services delivered to the individual by the aide and the individual's responses;

(2) The aide's arrival and departure times;

(3) The aide's weekly comments or observations about the individual to include observations of the individual's physical and emotional condition, daily activities, and responses to services rendered; and

(4) The aide's and individual's weekly signatures to verify that services during that week have been rendered.

(5) Signatures, times, and dates; these signatures, times, and dates shall not be placed on the aide record prior to the last date of the week that the services are delivered.

(6) Copies of all aide records; these records shall be subject to review by state and federal Medicaid representatives.

g. Additional documentation requirements under the consumer-directed model:

(1) All management training provided to the individuals or their family caregivers, as appropriate, including responsibility for the accuracy of the timesheets.

(2) All documents signed by the individual or his family/caregivers, as appropriate, that acknowledge the responsibilities of the services.

12VAC30-120-950. Agency-directed personal care services.

A. This section contains requirements governing the provision of agency-directed personal care services.

B. Service description. Personal care services are comprised of hands-on care of either a supportive or health-based nature and may include, but are not limited to, assistance with activities of daily living, access to the community, monitoring of self-administered medications or other medical needs, and the monitoring of health status and physical condition. Where the individual requires assistance with activities of daily living, and where specified in the plan of care, such supportive services may include assistance with instrumental activities of daily living. This service does not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to 18VAC90-20-420 through 18VAC90-20-460. It may be provided in a home and community setting to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. Personal care may be offered either as the sole home and community-based care service or in conjunction with adult day health care, respite care (agency-or consumer-directed), or PERS.

1. Effective July 1, 2011, agency-directed personal care services shall be limited to 56 hours of services per week for 52 weeks per year.

2. Individual exceptions may be granted based on criteria established by DMAS.

C. Criteria. In order to qualify for these services, the individual must demonstrate a need for care with activities of daily living.

1. DMAS will also pay, consistent with the approved plan of care, for personal care that the personal care aide provides to the enrolled individual to assist him at work or postsecondary school. DMAS will not duplicate services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (ADA) (42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973.

2. DMAS or the designated preauthorization contractor will review the individual's needs and the complexity of the disability, as applicable, when determining the services that will be provided to him in the workplace or postsecondary school or both.

3. DMAS will not pay for the personal care aide to assist the enrolled individual with any functions related to the individual completing his job or postsecondary school functions or for supervision time during work or school or both.

4. There shall be a limit of eight hours per 24-hour day for supervision services.

5. The provider must develop an individualized plan of care that addresses the individual's needs at home and work and in the community.

D. Special provider participation conditions. The personal care provider shall:

1. Operate from a business office.

2. Employ persons who 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 children. Providers are responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. The criminal record check shall be available for review by DMAS staff who are authorized by DMAS to review these files.

3. Hire employees (or contract with) and directly supervise a registered nurse who will provide ongoing supervision of all personal care aides.

a. The registered nurse shall be currently licensed to practice in the Commonwealth as an RN and have at least two years of related clinical nursing experience, which may include work in an acute care hospital, public health clinic, home health agency, rehabilitation hospital, nursing facility, or as a licensed practical nurse (LPN).

b. The registered nurse supervisor shall make an initial home assessment visit on or before the start of care for all individuals admitted to personal care, when an individual is readmitted after being discharged from services, or if he is transferred from another provider, ADHC, or from a consumer-directed services program.

c. The registered nurse supervisor shall make supervisory visits as often as needed, but no fewer visits than provided as follows, to ensure both quality and appropriateness of services:

(1) A minimum frequency of these visits is every 30 days for individuals with a cognitive impairment and every 90 days for individuals who do not have a cognitive impairment, as defined herein. The provider agency shall have the responsibility of determining if 30-day registered nurse supervisory visits are appropriate for the individual.

(2) The initial home assessment visit by the registered nurse shall be conducted to create the plan of care and assess the individual's needs. The registered nurse shall return for a follow-up visit within 30 days after the initial visit to assess the individual's needs and make a final determination that there is no cognitive impairment. This determination must be documented in the individual's record by the registered nurse. Individuals who are determined to have a cognitive impairment will continue to have supervisory visits every 30 days.

(3) If there is no cognitive impairment, the registered nurse may give the individual or family/caregiver the option of having the supervisory visit every 90 days or any increment in between, not to exceed 90 days, or the provider may choose to continue the 30-day supervisory visits based on the needs of the individual. The registered nurse supervisor must document in the individual's record this conversation and the option that was chosen. The individual or the family/caregiver must sign and date this document.

(4) If an individual's personal care aide is supervised by the provider's registered nurse supervisor less frequently than every 30 days and DMAS, or the designated preauthorization contractor, determines that the individual's health, safety, or welfare is in jeopardy, DMAS, or the designated preauthorization contractor, may require the provider's registered nurse supervisor to supervise the personal care aide every 30 days or more frequently than has been determined by the registered nurse supervisor. This will be documented by the provider and entered in the individual's record.

d. During visits to the individual's home, a registered nurse supervisor shall observe, evaluate, and document the adequacy and appropriateness of personal care services with regard to the individual's current functioning status, and medical and social needs. The personal care aide's record shall be reviewed and the individual's or family's/caregiver's satisfaction with the type and amount of services discussed. The registered nurse supervisor's summary shall note:

(1) Whether personal care services continue to be appropriate;

(2) Whether the plan of care is adequate to meet the individual's needs or if changes are indicated in the plan;

(3) Any special tasks performed by the personal care aide and the personal care aide's qualifications to perform these tasks;

(4) The individual's satisfaction with the services;

(5) Whether the individual has been hospitalized or there has been a change in the medical condition or functional status of the individual;

(6) Other services received by the individual and the amount; and

(7) The presence or absence of the personal care aide in the home during the registered nurse supervisor's visit.

e. A registered nurse supervisor shall be available to the personal care aide for conferences pertaining to individuals being served by the aide and shall be available to the aide by telephone at all times that the aide is providing services to individuals.

f. The registered nurse supervisor shall evaluate the personal care aide's performance and the individual's needs to identify any insufficiencies in the personal care aide's abilities to function competently and shall provide training as indicated. This shall be documented in the individual's record.

g. If there is a delay in the registered nurses' supervisory visits because the individual was unavailable, the reason for the delay must be documented in the individual's record.

4. Employ and directly supervise personal care aides who provide direct care to individuals. Each aide hired for personal care shall be evaluated by the provider agency to ensure compliance with qualifications required by DMAS. Each personal care aide shall:

a. Be at least 18 years of age or older;

b. Be able to read and write in English to the degree necessary to perform the expected tasks;

c. Complete a minimum of 40 hours of training consistent with DMAS standards. Prior to assigning an aide to an individual, the provider agency shall ensure that the personal care aide has satisfactorily completed a DMAS-approved training program consistent with DMAS standards;

d. Be physically able to do the work; and

e. Not be (i) the parents of minor children who are receiving waiver services or (ii) spouses of individuals who are receiving waiver services.

Payment may be made for services furnished by other family members when there is objective written documentation as to why there are no other providers or aides available to provide the care. These family members must meet the same requirements as personal care aides who are not family members.

E. Required documentation for individuals' records. The provider shall maintain all records for each individual receiving personal care services. These records shall be separate from those of nonhome and community-based care services, such as companion or home health services. These records shall be reviewed periodically by DMAS. At a minimum, the record shall contain:

1. The most recently updated Long-Term Care Uniform Assessment Instrument, the Medicaid Funded Long-Term Care Service Authorization Form (DMAS-96), the Screening Team Plan of Care for Medicaid-Funded Long-Term Care (DMAS-97), all Provider Agency Plans of Care (DMAS-97A), all Patient Information Forms (DMAS-122), and all DMAS-101A and 101B forms (if applicable);

2. The initial assessment by a registered nurse or a RN supervisor completed prior to or on the date that services are initiated;

3. Registered nurse supervisor's notes recorded and dated during significant contacts with the personal care aide and during supervisory visits to the individual's home;

4. All correspondence to the individual, DMAS, and the designated preauthorization contractor;

5. Reassessments made during the provision of services;

6. Significant contacts made with family/caregivers, physicians, DMAS, the designated preauthorization contractor, formal, informal services providers and all professionals related to the individual's Medicaid services or medical care;

7. All personal care aides' records (DMAS-90). The personal care aide record shall contain:

a. The specific services delivered to the individual by the aide and his responses to this service;

b. The personal care aide's daily arrival and departure times;

c. The aide's weekly comments or observations about the individual, including observations of the individual's physical and emotional condition, daily activities, and responses to services rendered; and

d. The personal care aide's and individual's or responsible caregiver's weekly signatures, including the date, to verify that personal care services have been rendered during that week as documented in the record. An employee of the provider cannot sign for the individual unless he is a family/caregiver of the individual. This family member cannot be the same family member who is providing the service. Signatures, times and dates shall not be placed on the personal care aide record prior to the last date that the services are actually delivered; and

8. All of the individual's progress reports.

12VAC30-120-960. Agency-directed respite care services.

A. This section contains requirements governing the provision of agency-directed respite care services.

B. Agency-directed respite care services are comprised of hands-on care of either a supportive or health-related nature and may include, but are not limited to, assistance with activities of daily living, access to the community, monitoring of self-administration of medications or other medical needs, monitoring health status and physical condition, and personal care services provided in a work environment. Where the individual requires assistance with activities of daily living, and where specified in the plan of care, such supportive services may include assistance with instrumental activities of daily living. This service does not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to 18VAC90-20-420 through 18VAC90-20-460.

C. General. Respite care may only be offered to individuals who have a primary caregiver who requires temporary relief to avoid institutionalization of the individual. Respite care services may be provided in the individual's home or place of residence, or a facility licensed as a nursing facility and enrolled in Medicaid. The authorization of respite care (agency-directed and consumer-directed) is limited to a total of 720 480 hours per calendar year per individual effective July 1, 2011. Reimbursement shall be made on an hourly basis.

D. Special provider participation conditions. To be approved as a respite care provider with DMAS, the respite care provider shall:

1. Operate from a business office.

2. Have employees who have satisfactory work records, as evidenced by references from prior job experience, including no evidence of abuse, neglect, or exploitation of incapacitated or older adults and children. Providers are responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. 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.

3. Employ (or contract with) and directly supervise a registered nurse who will provide ongoing supervision of all respite care aides/LPNs.

a. The registered nurse supervisor shall be currently licensed to practice in the Commonwealth as an RN and have at least two years of related clinical nursing experience, which may include work in an acute care hospital, public health clinic, home health agency, rehabilitation hospital, nursing facility, or as an LPN.

b. Based on continuing evaluations of the aide's/LPN's performance and the individual's needs, the registered nurse supervisor shall identify any insufficiencies in the aide's/LPN's abilities to function competently and shall provide training as indicated.

c. The registered nurse supervisor shall make an initial home assessment visit on or before the start of care for any individual admitted to respite care.

d. A registered nurse supervisor shall make supervisory visits as often as needed to ensure both quality and appropriateness of services.

(1) When respite care services are received on a routine basis, the minimum acceptable frequency of these supervisory visits shall be every 30 to 90 days dependent on the cognitive status of the individual. If an individual is also receiving personal care services, the respite care RN supervisory visit may coincide with the personal care RN supervisory visits.

(2) When respite care services are not received on a routine basis, but are episodic in nature, a registered nurse supervisor shall not be required to conduct a supervisory visit every 30 to 90 days. Instead, a registered nurse supervisor shall conduct the initial home assessment visit with the aide/LPN on or before the start of care and make a second home visit during the second respite care visit. If an individual is also receiving personal care services, the respite care RN supervisory visit may coincide with the personal care RN supervisory visit.

(3) When respite care services are routine in nature and offered in conjunction with personal care, the RN supervisory visit conducted for personal care services may serve as the registered nurse supervisory visit for respite care. However, the registered nurse supervisor shall document supervision of respite care separately from the personal care documentation. For this purpose, the same individual record can be used with a separate section for respite care documentation.

e. During visits to the individual's home, the registered nurse supervisor shall observe, evaluate, and document the adequacy and appropriateness of respite care services with regard to the individual's current functioning status and medical and social needs. The aide's/LPN's record shall be reviewed along with the individual's or family's satisfaction with the type and amount of services discussed. The registered nurse supervisor shall document in a summary note:

(1) Whether respite care services continue to be appropriate;

(2) Whether the plan of care is adequate to meet the individual's needs or if changes need to be made to the plan of care;

(3) The individual's satisfaction with the services;

(4) Any hospitalization or change in the medical condition or functioning status of the individual;

(5) Other services received by the individual and the amount of the services received; and

(6) The presence or absence of the aide/LPN in the home during the RN supervisory visit.

f. An RN supervisor shall be available to the aide/LPN for conference pertaining to individuals being served by the aide/LPN and shall be available to the aide/LPN by telephone at all times that the aide/LPN is providing services to respite care individuals.

g. If there is a delay in the registered nurse's supervisory visits because the individual is unavailable, the reason for the delay must be documented in the individual's record.

4. Employ and directly supervise aides/LPNs who provide direct care to respite care individuals. Each aide/LPN hired by the provider shall be evaluated by the provider to ensure compliance with qualifications as required by DMAS. Each aide must:

a. Be at least 18 years of age or older;

b. Be physically able to do the work;

c. Be able to read and write in English to the degree necessary to perform the tasks expected;

d. Have completed a minimum of 40 hours of DMAS-approved training consistent with DMAS standards. Prior to assigning an aide to an individual, the provider shall ensure that the aide has satisfactorily completed a training program consistent with DMAS standards; and

e. Be evaluated in his job performance by the registered nurse supervisor.

Respite care aides may not be the parents of minor children who are receiving waiver services or spouses of individuals who are receiving waiver services. Payment may not be made for services furnished by other family members living under the same roof as the individual receiving services unless there is objective written documentation as to why there are no other providers or aides available to provide the care. Family members who are approved to provide paid respite services must meet the qualifications for respite care aides.

5. Employ a licensed practical nurse (LPN) to perform skilled respite care services. Such services shall be reimbursed by DMAS under the following circumstances:

a. The individual has a need for routine skilled care that cannot be provided by unlicensed personnel. These individuals would typically require a skilled level of care if in a nursing facility (e.g., individuals on a ventilator, individuals requiring nasogastric or gastrostomy feedings, etc.);

b. No other individual in the individual's support system is willing and able to supply the skilled component of the individual's care during the caregiver's absence; and

c. The individual is unable to receive skilled nursing visits from any other source that could provide the skilled care usually given by the caregiver.

The provider must document in the individual's record the circumstances that require the provision of services by an LPN. When an LPN is required, the LPN must also provide any of the services normally provided by an aide.

E. Required documentation for individuals' records. The provider shall maintain all records of each individual receiving respite services. These records shall be separated from those of nonhome and community-based care services, such as companion or home health services. These records shall be reviewed periodically by the DMAS staff who are authorized by DMAS to review these files. At a minimum these records shall contain:

1. The most recently updated Long-Term Care Uniform Assessment Instrument, the Medicaid Funded Long-Term Care Service Authorization Form (DMAS-96), the Screening Team Plan of Care for Medicaid-Funded Long-Term Care (DMAS-97), all respite care assessments and plans of care, all aide records (DMAS-90), all LPN skilled respite records (DMAS-90A), all Patient Information Forms (DMAS-122), and all DMAS-101A and DMAS-101B forms, as applicable;

2. The physician's order for services, obtained prior to the service begin date and updated every six months;

3. The initial assessment by a registered nurse completed prior to or on the date services are initiated;

4. Registered nurse supervisor's notes recorded and dated during significant contacts with the care aide and during supervisory visits to the individual's home;

5. All correspondence to the recipient, DMAS, and the designated preauthorization contractor;

6. Reassessments made during the provision of services;

7. Significant contacts made with family, physicians, DMAS, the designated preauthorization contractor, formal and informal services providers, and all professionals related to the individual's Medicaid services or medical care; and

8. All respite care records. The respite care record shall contain:

a. The specific services delivered to the individual by the aide or LPN and his response to this service;

b. The daily arrival and departure times of the aide or LPN for respite care services;

c. Comments or observations recorded weekly about the individual. Aide or LPN comments shall include but not be limited to observation of the individual's physical and emotional condition, daily activities, and the individual's response to services rendered;

d. The signatures of the aide or LPN, and the individual, once each week to verify that respite care services have been rendered. Signature, times, and dates shall not be placed on the aide's record prior to the last date of the week that the services are delivered. If the individual is unable to sign the aide record, it must be documented in his record how or who will sign in his place. An employee of the provider shall not sign for the individual unless he is a family member or legal guardian of the recipient; and

e. All individual progress reports.

Documentation signed by the LPN must be reviewed and signed by the supervising RN.

12VAC30-120-980. Consumer-directed services: personal care and respite services.

A. Service description.

1. Consumer-directed personal care services and respite care services are comprised of hands-on care of either a supportive or health-related nature and may include, but are not limited to, assistance with activities of daily living, access to the community, monitoring of self-administration of medications or other medical needs, monitoring health status and physical condition, and personal care services provided in a work environment. Where the individual requires assistance with activities of daily living, and where specified in the plan of care, such supportive services may include assistance with instrumental activities of daily living. This service does not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to 18VAC90-20-420 through 18VAC90-20-460.

2. Consumer-directed respite services are specifically designed to provide temporary, periodic, or routine relief to the unpaid primary caregiver of an individual. This service may be provided in the individual's home or other community settings.

3. DMAS shall either provide for fiscal agent services or contract for the services of a fiscal agent for consumer-directed services. The fiscal agent will be reimbursed by DMAS (if the service is contracted) to perform certain tasks as an agent for the individual/employer who is receiving consumer-directed services. The fiscal agent will handle responsibilities for the individual for employment taxes. The fiscal agent will seek and obtain all necessary authorizations and approvals of the Internal Revenue Services in order to fulfill all of these duties.

4. Individuals choosing consumer-directed services must receive support from a CD services facilitator. This is not a separate waiver service, but is required in conjunction with consumer-directed services. The CD services facilitator is responsible for assessing the individual's particular needs for a requested CD service, assisting in the development of the plan of care, providing training to the individual and family/caregiver on his responsibilities as an employer, and providing ongoing support of the consumer-directed services. The CD services facilitator cannot be the individual, direct service provider, spouse, or parent of the individual who is a minor child, or a family/caregiver employing the aide.

B. Criteria.

1. In order to qualify for consumer-directed personal care services, the individual must demonstrate a need for personal care services as defined in 12VAC30-120-900.

2. Consumer-directed respite services may only be offered to individuals who have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the individual. Respite services are designed to focus on the need of the unpaid primary caregiver for temporary relief and to help prevent the breakdown of the unpaid primary caregiver due to the physical burden and emotional stress of providing continuous support and care to the individual.

3. DMAS will also pay, consistent with the approved plan of care, for personal care that the personal care aide provides to the enrolled individual to assist him at work or postsecondary school. DMAS will not duplicate services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (ADA) (42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973.

a. DMAS or the designated preauthorization contractor will review the individual's needs and the complexity of the disability, as applicable, when determining the services that will be provided to him in the workplace or postsecondary school or both.

b. DMAS will not pay for the personal care aide to assist the enrolled individual with any functions related to the individual completing his job or postsecondary school functions or for supervision time during work or school or both.

4. Individuals who are eligible for consumer-directed services must have, or have a family/caregiver who has, the capability to hire and train their own personal care aides and supervise the aide's performance. If an individual is unable to direct his own care or is under 18 years of age, a family/caregiver may serve as the employer on behalf of the individual.

5. The individual, or if the individual is unable, a family/caregiver, shall be the employer of consumer-directed services and, therefore, shall be responsible for hiring, training, supervising, and firing personal care aides. Specific employer duties include checking references of personal care aides, determining that personal care aides meet basic qualifications, and maintaining copies of timesheets to have available for review by the CD services facilitator and the fiscal agent on a consistent and timely basis. The individual or family/caregiver must have a backup plan for the provision of services in case the aide does not show up for work as expected or terminates employment without prior notice.

C. Service units and limitations.

1. The unit of services for consumer-directed respite services is one hour. Consumer-directed Effective July 1, 2011, consumer-directed respite services are limited to a maximum of 720 480 hours per calendar year. Individuals who receive consumer-directed respite services, agency-directed respite services and/or or facility-based respite services, or both, may not receive more than 720 480 hours combined, regardless of service delivery method.

2. The unit of service for consumer-directed personal care services is one hour. Effective July 1, 2011, these personal care services shall be limited to 56 hours per week for 52 weeks per year. Individual exceptions may be granted based on criteria established by DMAS.

D. Provider qualifications. In addition to meeting the general conditions and requirements for home and community-based services participating providers as specified in 12VAC30-120-930, the CD services facilitator must meet the following qualifications:

1. To be enrolled as a Medicaid CD services facilitator and maintain provider status, the CD services facilitator shall have sufficient resources to perform the required activities. In addition, the CD services facilitator must have the ability to maintain and retain business and professional records sufficient to fully and accurately document the nature, scope, and details of the services provided.

2. It is preferred that the CD services facilitator possess, at a minimum, an undergraduate degree in a human services field or be a registered nurse currently licensed to practice in the Commonwealth. In addition, it is preferable that the CD services facilitator have at least two years of satisfactory experience in a human services field working with individuals who are disabled or elderly. The CD services facilitator must possess a combination of work experience and relevant education that indicates possession of the following knowledge, skills, and abilities. Such knowledge, skills and abilities must be documented on the CD services facilitator's application form, found in supporting documentation, or be observed during a job interview. Observations during the interview must be documented. The knowledge, skills, and abilities include:

a. Knowledge of:

(1) Types of functional limitations and health problems that may occur in individuals who are elderly or individuals with disabilities, as well as strategies to reduce limitations and health problems;

(2) Physical care that may be required by individuals who are elderly or individuals with disabilities, such as transferring, bathing techniques, bowel and bladder care, and the approximate time those activities normally take;

(3) Equipment and environmental modifications that may be required by individuals who are elderly or individuals with disabilities that reduce the need for human help and improve safety;

(4) Various long-term care program requirements, including nursing facility and assisted living facility placement criteria, Medicaid waiver services, and other federal, state, and local resources that provide personal care and respite services;

(5) Elderly or Disabled with Consumer-Direction Waiver requirements, as well as the administrative duties for which the services facilitator will be responsible;

(6) How to conduct assessments (including environmental, psychosocial, health, and functional factors) and their uses in services planning;

(7) Interviewing techniques;

(8) The individual's right to make decisions about, direct the provisions of, and control his consumer-directed services, including hiring, training, managing, approving time sheets, and firing an aide;

(9) The principles of human behavior and interpersonal relationships; and

(10) General principles of record documentation.

b. Skills in:

(1) Negotiating with individuals, family/caregivers and service providers;

(2) Assessing, supporting, observing, recording, and reporting behaviors;

(3) Identifying, developing, or providing services to individuals who are elderly or individuals with disabilities; and

(4) Identifying services within the established services system to meet the individual's needs.

c. Abilities to:

(1) Report findings of the assessment or onsite visit, either in writing or an alternative format for individuals who have visual impairments;

(2) Demonstrate a positive regard for individuals and their families;

(3) Be persistent and remain objective;

(4) Work independently, performing position duties under general supervision;

(5) Communicate effectively, orally and in writing; and

(6) Develop a rapport and communicate with individuals from diverse cultural backgrounds.

3. If the CD services facilitator is not a registered nurse, the CD services facilitator must inform the individual's primary health care provider that services are being provided and request consultation as needed.

4. Initiation of services and service monitoring.

a. For consumer-directed services, the CD services facilitator must make an initial comprehensive home visit to collaborate with the individual and family/caregiver to identify the needs, assist in the development of the plan of care with the individual or family/caregiver, and provide employee management training within seven days of the initial visit. The initial comprehensive home visit is done only once per provider upon the individual's entry into CD services. If the individual changes CD services facilitator, the new CD services facilitator must complete a reassessment visit in lieu of a comprehensive visit.

b. After the initial visit, the CD services facilitator will continue to monitor the plan of care on an as-needed basis, but in no event less frequently than quarterly for personal care. The CD services facilitator will review the utilization of consumer-directed respite services, either every six months or upon the use of 300 respite services hours, whichever comes first.

c. A CD services facilitator must conduct face-to-face meetings with the individual or family/caregiver at least every six months for respite services and quarterly for personal care to ensure appropriateness of any consumer-directed services received by the individual.

5. During visits with the individual, the CD services facilitator must observe, evaluate, and consult with the individual or family/caregiver, and document the adequacy and appropriateness of consumer-directed services with regard to the individual's current functioning and cognitive status and medical and social needs. The CD services facilitator's written summary of the visit must include, but is not necessarily limited to:

a. A discussion with the individual or family/caregiver concerning whether the service is adequate to meet the individual's needs;

b. Any suspected abuse, neglect, or exploitation and who it was reported to;

c. Any special tasks performed by the aide and the aide's qualifications to perform these tasks;

d. The individual's or family/caregiver's satisfaction with the service;

e. Any hospitalization or change in medical condition, functioning, or cognitive status; and

f. The presence or absence of the aide in the home during the CD services facilitator's visit.

6. The CD services facilitator must be available to the individual or family/caregiver by telephone.

7. The CD services facilitator must request a criminal record check and a sex offender record check pertaining to the aide on behalf of the individual and report findings of these records checks to the individual or the family/caregiver and the program's fiscal agent. If the individual is a minor, the aide must also be screened through the DSS Child Protective Services Central Registry. The criminal record check and DSS Child Protective Services Registry finding must be requested by the CD services facilitator prior to beginning CD services. Aides will not be reimbursed for services provided to the individual effective on the date that the criminal record check confirms an aide has been found to have been convicted of a crime as described in § 32.1-162.9:1 of the Code of Virginia or if the aide has a confirmed record on the DSS Child Protective Services Central Registry.

8. The CD services facilitator shall review copies of timesheets during the face-to-face visits to ensure that the number of plan of care-approved hours are being provided and are not exceeded. If discrepancies are identified, the CD services facilitator must discuss these with the individual or family/caregiver to resolve discrepancies and must notify the fiscal agent.

9. The CD services facilitator must maintain records of each individual. At a minimum these records must contain:

a. Results of the initial comprehensive home visit completed prior to or on the date services are initiated and subsequent reassessments and changes to the supporting documentation;

b. The personal care plan of care goals, objectives, and activities must be reviewed by the provider quarterly, annually, and more often as needed, and modified as appropriate. Respite plan of care goals, objectives, and activities must be reviewed by the provider annually and every six months or when 300 240 service hours have been used. For the annual review and in cases where the plan of care is modified, the plan of care must be reviewed with the individual;

c. CD services facilitator's dated notes documenting any contacts with the individual or family/caregiver and visits to the individual's home;

d. All correspondence to and from the individual, the designated preauthorization contractor, and DMAS;

e. Records of contacts made with the individual, family/caregiver, physicians, formal and informal service providers, and all professionals concerning the individual;

f. All training provided to the aides on behalf of the individual or family/caregiver;

g. All employee management training provided to the individual or family/caregiver, including the individual's or family/caregiver's receipt of training on their responsibility for the accuracy of the aide's timesheets;

h. All documents signed by the individual or the individual's family/caregiver that acknowledge the responsibilities as the employer; and

i. All copies of the completed Uniform Assessment Instrument (UAI), the Medicaid Funded Long-Term Care Service Authorization Form (DMAS-96), the Screening Team Plan of Care form (DMAS-97), all Consumer-Directed Personal Assistance Plans of Care forms (DMAS-97B), all Patient Information Forms (DMAS-122), the DMAS-95 Addendum, the Outline and Checklist for Consumer-Directed Recipient Comprehensive Training, and the Services Agreement Between the Consumer and the Services Facilitator.

10. For consumer-directed personal care and consumer-directed respite services, individuals or family/caregivers will hire their own personal care aides and manage and supervise their performance. The aide must meet the following requirements:

a. Be 18 years of age or older;

b. Have the required skills to perform consumer-directed services as specified in the individual's supporting documentation;

c. Be able to read and write in English to the degree necessary to perform the tasks expected;

d. Possess basic math, reading, and writing skills;

e. Possess a valid Social Security number;

f. Submit to a criminal records check and, if the individual is a minor, consent to a search of the DSS Child Protective Services Central Registry. The aide will not be compensated for services provided to the individual if either of these records checks verifies the aide has been convicted of crimes described in § 32.1-162.9:1 of the Code of Virginia or if the aide has a founded complaint confirmed by the DSS Child Protective Services Central Registry;

g. Be willing to attend training at the individual's or family/caregiver's request;

h. Understand and agree to comply with the DMAS Elderly or Disabled with Consumer Direction Waiver requirements; and

i. Receive periodic tuberculosis (TB) screening.

11. Aides may not be the parents of minor children who are receiving waiver services or the spouse of the indiviudals who are receiving waiver services or the family/caregivers that are directing the individual's care. Payment may not be made for services furnished by other family/caregivers living under the same roof as the individual being served unless there is objective written documentation as to why there are no other providers available to provide the care.

12. Family/caregivers who are reimbursed to provide consumer-directed services must meet the aide qualifications.

13. If the individual is consistently unable to hire and retain the employment of a personal care aide to provide consumer-directed personal care or respite services, the CD services facilitator will make arrangements to have the services transferred to an agency-directed services provider of the individual's choice or to discuss with the individual or family/caregiver other service options.

14. The CD services facilitator is required to submit to DMAS biannually, for every individual, an individual progress report, the most recently updated UAI, and any monthly visit/progress reports. This information is used to assess the individual's ongoing need for Medicaid-funded long-term care and appropriateness and adequacy of services rendered.

D. Individual responsibilities.

1. The individual must be authorized for consumer-directed services and successfully complete management training performed by the CD services facilitator before the individual can hire a personal care aide for Medicaid reimbursement. Individuals who are eligible for consumer-directed services must have the capability to hire and train their own personal care aides and supervise aides' performance. Individuals with cognitive impairments who are unable to manage their own care may have a family/caregiver serve as the employer on behalf of the individual.

2. Individuals will acknowledge that they will not knowingly continue to accept consumer-directed personal care services when the service is no longer appropriate or necessary for their care needs and will inform the services facilitator. If consumer-directed services continue after services have been terminated by DMAS or the designated preauthorization contractor, the individual will be held liable for employee compensation.

12VAC30-135-200. Agency-directed respite services.

A. Service description.

1. Respite services means services specifically designed to provide a temporary but periodic or routine relief to the primary unpaid caregiver of a client who is in need of specialized supervision due to a SED. Respite services include assistance with or monitoring of personal hygiene, nutritional support, safety, and environmental maintenance authorized as either episodic, temporary relief, or as a routine periodic relief of the caregiver.

2. Respite services do not include either practical or professional nursing services or those practices regulated in Chapters 30 (§ 54.1-3000 et seq.) and 34 (§ 54.1-3400 et seq.) of Title 54.1 of the Code of Virginia, as appropriate. This service does not include skilled nursing services with the exception of skilled nursing tasks that may be delegated pursuant to 18VAC90-20-420 through 18VAC90-20-460.

B. Criteria.

1. Respite services may only be offered to clients who have an unpaid primary caregiver living in the home who requires temporary relief to avoid institutionalization of the client. Respite services are designed to focus on the need of the caregiver for temporary relief.

2. Respite services are supports for the family or other unpaid primary caregiver of a client. These services are furnished on a short-term basis because of the absence or need for relief of those unpaid caregivers normally providing the care for the clients.

C. Service units and service limitations.

1. Respite Effective July 1, 2011, respite services shall be limited to a maximum of 720 480 hours per calendar year. Clients who are receiving services through both the agency-directed and CD models shall not exceed 720 480 hours per calendar year combined.

2. The unit of service is one hour.

D. Provider requirements. In addition to meeting the general conditions and requirements for home and community-based participating providers as specified in 12VAC30-135-120 and 12VAC30-135-160, respite services providers must meet additional provider requirements:

1. Services shall be provided by:

a. A DMAS respite services provider; a DMHMRSAS-licensed residential services provider; or by a DMHMRSAS-licensed respite services provider or a DSS-approved foster care home-for-children provider.

b. For DMAS-enrolled respite services providers, the provider must employ or subcontract with a QMHP or LMHP to supervise all assistants. The supervisor must meet DMAS qualifications.

2. The QMHP/LMHP supervisor must make a home visit to conduct an initial assessment prior to the start of services for all clients requesting respite services. The supervisor must also perform any subsequent reassessments or changes to the ISP.

3. The QMHP/LMHP supervisor must make supervisory home visits as often as needed to ensure both quality and appropriateness of services. The minimum frequency of these visits is every 30 to 90 days.

a. When respite services are received on a routine basis, the minimum acceptable frequency of these supervisory visits shall be every 30 to 90 days, depending on the needs of the client.

b. When respite services are not received on a routine basis, but are episodic in nature, the supervisor is not required to conduct a supervisory visit every 30 to 90 days. Instead, the QMHP/LMHP supervisor must conduct the initial home visit with the respite care assistant immediately preceding the start of services and make a second home visit within the respite services period.

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

5 The QMHP/LMHP supervisor must document in a summary note:

a. Whether respite services continue to be appropriate;

b. Whether the ISP is adequate to meet the client's needs or if changes need to be made;

c. The client's and family/caregiver's satisfaction with the service;

d. Any hospitalization or change in medical condition or functioning status;

e. Other services received and the amount; and

f. The presence or absence of the assistant in the home during the visit.

6. Qualification of assistants. The assistant must complete a training curriculum consistent with DMAS requirements. Prior to assigning an assistant to a client, the provider must obtain documentation that the assistant has satisfactorily completed a training program consistent with DMAS' requirements. DMAS requirements may be met in one of two ways:

a. Registration as a certified nurse aide; or

b. Graduation from an approved educational curriculum that offers certificates qualifying the student as a nursing assistant, home health aide, or meeting the paraprofessional criteria as established by 12VAC30-50-226.

E. Required documentation for the client's records. The provider must maintain all records of each client receiving services. These records must be separated from those of other nonwaiver services, such as home health services. These records will be reviewed periodically by DMAS staff. At a minimum these records must contain:

1. An initial assessment completed by the QMHP/LMHP supervisor prior to or on the date services are initiated; .

2. Reassessments and any changes to the ISP made during the provision of services by the supervisor.

3. The most recent ISP and supporting documentaion that contains, at a minimum, the following elements:

a. The client's strengths, desired outcomes, and required or desired supports;

b. The client's and family's/caregiver's goals and objectives to meet the identified outcomes;

c. Services to be rendered and the frequency of services to accomplish the goals and objectives; and

d. The provider staff responsible for the overall coordination and integration of the services specified in the ISP.

4. The ISP goals, objectives, and activities must be reviewed by the supervisor quarterly, annually, and more often as needed and modified as appropriate. The results of these reviews must be submitted to the case manager. For the annual review and in cases where the ISP is modified, the ISP must be reviewed with the client and family/caregiver.

5. The QMHP/LMHP supervisor's notes recorded and dated during significant contacts with the respite services assistant and during supervisory visits to the client's home. The written summary of the supervision visits must include:

a. Whether services continue to be appropriate and whether the ISP is adequate to meet the needs or if changes are indicated in the ISP;

b. Any suspected abuse, neglect, or exploitation and to whom it was reported;

c. Any special tasks performed by the assistant and the assistant's qualifications to perform these tasks;

d. The client's and family/caregiver's satisfaction with the service;

e. Any hospitalization or change in medical condition or functioning status;

f. Other services received and their amount; and

g. The presence or absence of the assistant in the home during the supervisor's visit.

6. All correspondence to the client, family/caregiver, case manager, DMAS, DMHMRSAS, and CSA;

7. Significant contacts made with the client, family/caregivers, physicians, DMAS and others involved in the care of the client;

8. The assistant record must contain:

a. The specific services delivered to the client by the assistant, dated the day of service delivery, and the client's responses;

b. The assistant's arrival and departure times;

c. The assistant's weekly comments or observations about the client to include observations of the client's physical and emotional condition, daily activities, and responses to services rendered; and

d. The assistant's, client's and family/caregiver's weekly signatures with dates recorded on the last day of service delivery for any given week to verify that services during that week have been rendered.

e. Signatures, times, and dates shall not be placed on the assistant record prior to the last date of the week that the services are delivered.

9. All DMAS quality management review forms.

12VAC30-135-220. Consumer-directed companion and respite services.

A. Companion services.

1. Service description. Companion services provide assistance with skill development and with understanding family interaction, behavioral interventions for support and safety, nonmedical care, nonmedical transportation, community integration, and rewarding appropriate behaviors. This service is available through both a consumer-directed (CD) and agency-directed delivery approach and shall not exceed eight hours in one day. These services include, but are not limited to, nonmedical care, socialization, or support to a client as well as supervision or monitoring to those clients who require the physical presence of an aide to ensure their safety during times when no other supportive individuals are available. This service is provided in accordance with a therapeutic goal in the ISP and is not purely diversional in nature.

2. Criteria.

a. The inclusion of companion services in the ISP is appropriate only when the client cannot be left alone at any time due to the SED. The provision of companion services does not entail hands-on care.

b. Companion services shall not be covered if required only because the client does not have a telephone in the home or because the client does not speak English.

c. There must be a clear and present danger to the client as a result of being left unsupervised. Companion services cannot be authorized for clients whose only need for companion services is for assistance exiting the home in the event of an emergency.

3. Service units and service limitations.

a. The amount of companion service time included in the ISP must be no more than eight hours per day, either separately or in any combination of CD or agency-directed companion services.

b. The hours authorized are based on individual need. No more than three unrelated individuals who are receiving waiver services and live in the same home are permitted to share the authorized work hours of the same companion.

c. Companion services may be authorized for family/caregivers to sleep either during the day or during the night when the client cannot be left alone at any time due to the client's condition. Companion aide services must be necessary to ensure the client's safety if the client cannot be left unsupervised due to health and safety concerns.

d. Companion services can be authorized when no one else is in the home who is competent to monitor the client for safety.

4. Provider requirements. In addition to meeting the general conditions and requirements for home and community-based participating providers as specified in 12VAC30-135-120 and 12VAC30-135-160, companion service providers must meet the following qualifications:

a. General companion qualifications. Companions must meet the following requirements:

(1) Be at least 18 years of age;

(2) Have the required skills to perform CD services as specified in the client's ISP;

(3) Possess basic reading, writing, and math skills;

(4) Be capable of following a care plan with minimal supervision;

(5) Submit to a criminal history record check within 15 days from the date of employment and, if the client is a minor, the Child Protective Services Central Registry. The companion will not be compensated for services provided to the client if the records check verifies the companion has been convicted of crimes described in § 32.1-162.9:1 or 37.2-416 of the Code of Virginia; or if the companion has a complaint confirmed by the DSS Child Protective Services Central Registry;

(6) Possess a valid social security number;

(7) Be willing to attend training at the client's and family/caregiver's request;

(8) Receive an annual tuberculosis (TB) screening; and

(9) Understand and agree to comply with the DMAS CMH waiver requirements as described in DMAS guidance documents.

b. Companions shall not be spouses, parents or caregivers. Payment will not be made for services furnished by other family members unless there is objective written documentation as to why there are no other providers available to provide the care. Medicaid-reimbursed companion services shall not be provided by adult foster care providers or any other paid (regardless of the payment source) caregivers for a client residing in that home.

c. Family/caregivers who are reimbursed to provide companion services must meet the companion qualifications stated above.

d. Retention, hiring, and substitution of companions. Upon the client's request, the CD services facilitator shall provide the client or family/caregiver with a list of persons on the assistant registry who can provide temporary assistance until the assistant returns or the client is able to select and hire a new assistant. If a client or family/legal guardian is consistently unable to hire and retain the employment of an assistant to provide CD companion services, the services facilitator must contact the case manager and DMAS to transfer the client, at the client's choice, to a provider that provides Medicaid-funded agency-directed companion services. The CD services facilitator will make arrangements with the case manager to have the client transferred.

B. Respite services.

1. Service description. Respite services include assistance with or monitoring of personal hygiene, nutritional support, safety, and environmental maintenance authorized as either episodic, temporary relief, or as a routine periodic relief of the caregiver. For the purposes of this section, an assistant refers to the individual providing CD respite.

2. Criteria.

a. CD respite services may only be offered to clients who have a primary unpaid caregiver living in the home who requires temporary relief to avoid institutionalization of the client, and it is designed to focus on the need of the caregiver for temporary relief.

b. The inclusion of respite services in the ISP is appropriate only when the client cannot be left unsupervised due to the mental health condition at any time.

3. Service units and service limitations.

a. Effective July 1, 2011, CD respite services are limited to a maximum of 720 480 hours per calendar year. Clients who are receiving services through both the agency-directed and CD models shall not exceed 720 480 hours per calendar year combined.

b. Clients can receive CD respite services and in-home residential support services in their CSPs but cannot receive these services simultaneously.

c. For CD respite services, clients and family/legal guardian, as appropriate, will hire their own assistants and manage and supervise the assistant's performance.

4. Provider requirements.

a. The assistant must meet the following requirements:

(1) Be at least 18 years of age;

(2) Have the required skills to perform CD services as specified in the client's ISP;

(3) Possess basic reading, writing and math skills;

(4) Be capable of following a care plan with minimal supervision;

(5) Submit to a criminal history record check within 15 days from the date of employment, and if the client is a minor, the Child Protective Services Central Registry. The assistant will not be compensated for services provided to the client if the records check verifies the assistant has been convicted of crimes described in § 32.1-162.9:1 or 37.2-416 of the Code of Virginia or if the assistant has a complaint confirmed by the DSS Child Protective Services Central Registry;

(6) Possess a valid social security number;

(7) Be willing to attend training at the client's and family/caregiver's request;

(8) Receive periodic TB screening; and

(9) Understand and agree to comply with the DMAS CMH waiver requirements; .

b. Assistants cannot be spouses, parents of minor children, or legally responsible relatives. Payment will not be made for services furnished by other family members unless there is objective written documentation as to why there are no other providers available to provide the care.

c. Family/caregivers who are reimbursed to provide respite services must meet the assistant qualifications.

d. Retention, hiring, and substitution of assistants. Upon the client's request, the CD services facilitation provider shall provide the client or family/legal guardian with a list of persons on the assistant registry who can provide temporary assistance until the assistant returns or the client is able to select and hire a new assistant. If a client is consistently unable to hire and retain the employment of an assistant to provide CD respite services, the CD services facilitator must contact the case manager and DMAS to transfer the client, at the client's choice, to a provider that provides Medicaid-funded agency-directed respite services. The CD services facilitator will make arrangements with the case manager to have the client transferred.

C. Service facilitation.

1. Clients choosing the CD option must receive support from a CD services facilitator and meet requirements for consumer direction as described in these regulations.

2. DMAS shall contract for the services of a Fiscal Management Service agent for CD companion and respite services. The FMS agent will be reimbursed by DMAS to perform certain tasks as an agent for the client/family/caregiver/employer who is receiving CD services. The FMS agent will handle the responsibilities for the client/family/caregiver/employer for employment taxes. The FMS agent will seek and obtain all necessary authorizations and approvals of the Internal Revenue Services in order to fulfill all of these duties.

3. If a client is unable to direct his own care or is under 18 years of age, a family/legal guardian may serve as the employer on behalf of the client. Specific employer duties include checking of references of assistants/companions, determining that assistants/companions meet basic qualifications, training assistants/companions, supervising the assistant's/companion's performance, and submitting timesheets to the FMS agent on a consistent and timely basis. There must be a back-up plan in case the assistant/companion does not show up for work as expected or terminates employment without prior notice. This is the responsibility of the client or family/legal guardian to establish.

4. Clients or family/legal guardians, as appropriate, choosing the CD model of service delivery must receive support from a CD services facilitator. This is not a separate waiver service, but is required in conjunction with CD respite and companion services. The CD services facilitator is responsible for assessing the client's particular needs for a requested CD service, assisting in the development of the ISP, providing training to the family/legal guardian on his responsibilities as an employer, and providing ongoing support of the CD model of services. The CD services facilitator cannot be the client, the client's case manager, direct service provider, spouse, parent or legally responsible party of the client who is a minor child, or a family/legal guardian employing the assistant/companion. If a client enrolled in CD services has a lapse in services for more than 90 consecutive days, DMAS must be notified and the CD services will be discontinued.

5. Either DMAS or its contractor shall provide the FMS for CD companion and respite services. The FMS agent will be reimbursed by DMAS to perform certain tasks as an agent for the client/employer who is receiving CD services. The FMS agent will handle the responsibilities of employment taxes for the client. The FMS agent will seek and obtain all necessary authorizations and approvals of the Internal Revenue Services in order to fulfill all of these duties.

6. CD services facilitator qualifications. In addition to meeting the general conditions and requirements for home and community-based services participating providers as specified in 12VAC30-135-120 and 12VAC30-135-160, the CD services facilitator must meet the following qualifications:

a. To be enrolled as a Medicaid CD services facilitator and maintain provider status, the CD services facilitator must operate from a physical business office and employ sufficient qualified staff to perform the needed ISP development and monitoring, reassessments, service coordination, and support activities as required. In addition, the CD services facilitator must have the ability to maintain and retain business and professional records sufficient to document fully and accurately the nature, scope, and details of the services provided.

b. It is preferred that employees of the CD services facilitator possess a minimum of an undergraduate degree in a human services field or be a QMHP. In addition, it is preferable that the CD services facilitator have two years of satisfactory experience in the human services field working with persons with SED. The CD services facilitator must possess a combination of work experience and relevant education that indicates possession of the following knowledge, skills, and abilities. Such knowledge, skills and abilities must be documented on the application form, found in supporting documentation, or be observed during the job interview. Observations during the interview must be documented. The knowledge, skills, and abilities include:

(1) Knowledge of:

(a) Types of functional limitations and health problems that may occur in clients with SED, or clients with other disabilities, as well as strategies to reduce limitations and health problems;

(b) Equipment and environmental modifications that may be required by clients with SED that reduce the need for human help and improve safety;

(c) Community-based and other services, including PRTF placement criteria, Medicaid waiver services, and other federal, state, and local resources that provide respite and companion services;

(d) CMH Waiver requirements, as well as the administrative duties for which the services facilitator will be responsible;

(e) CMH Waiver requirements, as well as the administrative duties for which the client and family/caregiver will be responsible;

(f) Conducting assessments (including environmental, psychosocial, health, and functional factors) and their uses in care planning;

(g) Interviewing techniques;

(h) The client's and family/legal guardian's right to make decisions about, direct the provisions of, and control his CD respite and companion services, including hiring, training, managing, approving time sheets, and firing an assistant/companion;

(i) The principles of human behavior and interpersonal relationships; and

(j) General principles of record documentation.

(2) Skills in:

(a) Negotiating with clients, family/caregivers and service providers;

(b) Assessing, supporting, observing, recording, and reporting behaviors;

(c) Identifying, developing, or providing services to clients with SED; and

(d) Identifying services within the established services system to meet the client's needs.

(3) Abilities to:

(a) Report findings of the assessment or onsite visit, either in writing or an alternative format for clients who have visual impairments;

(b) Demonstrate a positive regard for clients and their families;

(c) Be persistent and remain objective;

(d) Work independently, performing position duties under general supervision;

(e) Communicate effectively, orally and in writing; and

(f) Develop a rapport and communicate with persons from diverse cultural backgrounds.

c. If the CD services facilitator is not a QMHP, the CD services facilitator must have QMHP consulting services available, either by a staffing arrangement or through a contracted consulting arrangement. The QMHP consultant is to be available as needed to consult with clients and CD services facilitators on issues related to the needs of the client.

7. Initiation of services and service monitoring.

a. The CD services facilitator must make an initial comprehensive home visit to collaborate with the client and family/caregiver to identify needs, assist in the development of the ISP with the client and provide employee management training. The initial comprehensive home visit is done only once upon the client's entry into the CD model of service regardless of the number or type of CD services that a client chooses to receive. If a client changes CD services facilitators, the new CD services facilitator must complete and bill for a reassessment visit in lieu of an initial comprehensive visit.

b. After the initial visit, the CD services facilitator will periodically review the utilization of companion services at a minimum of every six months or, for respite services, either every six months or upon the use of 300 respite service hours, whichever comes first.

c. A reassessment of the client's level-of-care will occur six months after initial entry into the program, and subsequent reevaluations will occur at a minimum of every six months. During visits to the client's home, the CD services facilitator must observe, evaluate, and consult with the client and family/caregiver and document the adequacy and appropriateness of CD services with regard to the client's current functioning and cognitive status, medical, and social needs. The CD services facilitator's summary must include, but not necessarily be limited to:

(1) Whether CD respite services continue to be appropriate and medically necessary to prevent institutionalization;

(2) Whether the service is adequate to meet the client's needs;

(3) Any special tasks performed by the assistant/companion and the assistant's/companion's qualifications to perform these tasks;

(4) Client's or family/caregiver's satisfaction with the service;

(5) Hospitalization or change in medical condition, functioning, or cognitive status;

(6) Other services received and their amount; and

(7) The presence or absence of the companion/assistant in the home during the CD services facilitator's visit.

d. A face-to-face meeting with the client must be conducted at least every six months to reassess the client's needs and to ensure appropriateness of any CD services received by the client.

e. The CD services facilitator must be available to the client and family/caregiver by telephone.

f. The CD services facilitator must submit a criminal record check pertaining to the assistant/companion on behalf of the client and report findings of the criminal record check to the client and the program's FMS agent. If the client is a minor, the assistant/companion must also be screened through the DSS Child Protective Services Central Registry. Assistants/companions will not be reimbursed for services provided to the client effective the date that the criminal record check confirms an assistant/companion was convicted of a barrier crime or if the assistant/companion has a founded complaint on record in the DSS Child Protective Services Central Registry. The criminal record check and DSS Child Protective Services Central Registry finding must be requested by the CD services facilitator within 15 calendar days of employment. The services facilitator must maintain evidence that a criminal record check was obtained and must make such evidence available for DMAS review.

g. The CD services facilitator shall review and verify bi-weekly timesheets signed by the family/caregiver and the assistant/companion during the face-to-face visits or more often as needed to ensure that the number of ISP-approved hours is not exceeded. If discrepancies are identified, the CD services facilitator must discuss these with the client to resolve discrepancies and must notify the FMS agent. If the client is consistently identified as having discrepancies in his timesheets, the CD services facilitator must contact the case manager to resolve the situation. The CD services facilitator cannot verify timesheets for assistants/companions who have been convicted of a barrier crime or who have a founded complaint on record in the DSS Child Protective Services Registry and must notify the FMS agent.

h. The CD services facilitator must maintain records of each client as described in 12VAC30-135-120 and 12VAC30-135-160.

i. If a client/family/legal guardian is consistently unable to hire and retain the employment of an assistant/companion to provide CD respite or companion services, the CD services facilitator will make arrangements with the case manager to have the services transferred to an agency-directed services provider or to discuss with the client/family/caregiver other service options.

j. The family/legal guardian or client, as appropriate, must hire and train the assistants or companions and supervise the assistant's or companion's performance. The hours authorized are based on individual need.

8. Responsibilities as employer. The client or family/legal guardian, as appropriate, shall be the employer in this service and responsible for hiring, training, supervising, and firing assistants and companions. Specific duties include checking references of assistants/companions, determining that assistants/companions meet basic qualifications, training assistants/companions, supervising the assistant's/companion's performance, and submitting timesheets to the CD services facilitator and FMS agent on a consistent and timely basis. The client must have an emergency back-up plan in case the assistant/companion does not show up for work as expected or terminates employment without prior notice.

9. Required documentation in client's records. The CD services facilitator must maintain all records of each client. At a minimum these records must contain:

a. All copies of the ISP and all supporting documentation.

b. All DMAS quality management review forms.

c. CD services facilitator's notes contemporaneously recorded and dated during any contacts with the client and family/caregiver and during visits to the client's home.

d. All correspondence to the client, family/caregiver and to DMAS.

e. Reassessments made during the provision of services.

f. Records of contacts made with family/caregivers, physicians, DMAS, formal and informal service providers, and others involved in the care of the child.

g. All training provided to the assistant/companion or assistants/companions on behalf of the client.

h. All management training provided to the client or family/caregiver including the client's or family/caregiver's responsibility for the accuracy of the timesheets.

i. All documents signed by the client or family/caregiver that acknowledge the responsibilities of the services.

VA.R. Doc. No. R11-2771; Filed May 3, 2011, 4:46 p.m.