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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJanuary 2016

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Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance (DMMA) initiated proceedings to amend the Delaware Title XIX Medicaid State Plan regarding State Plan Personal Care Services (PCS), specifically, to remove personal care as a service option from the Medicaid State Plan as coverage of PCS will be provided under the Home Health Services benefit. The Department’s proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512.
The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the October 2015 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by October 30, 2015 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
42 CFR 440.167, Personal care services
42 CFR 440.70, Home health services
42 CFR.447.205, Public notice of changes in Statewide methods and standards for setting payment rates
In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to provide input to the coverage, methods and standards governing payment methodology for personal care services. Comments were due by 4:30 p.m. on October 30, 2015.
First, the change may result in a reduction in available providers for non-monetary reasons. Licensing of “personal assistance services agencies” is separate from licensing of “home health agencies”. Compare Title 16 Del.C. §122x and 16 DE Admin Code 4469 (personal assistance licensing) with 16 Del.C. §122(o) and 16 DE Admin. Code 4406 (home health licensing). Agencies currently providing “personal assistance services” will ostensibly have to apply for new licenses as “home health agencies”.
A. Licensed “personal assistance” agencies can perform any acts individuals could normally perform themselves but for functional limitations consistent with Title 24 Del.C. §1921(a)(15) and Title 16 Del.C. §122x.2. CMS has historically adopted the same broad approach for “personal care assistance” as including “a range of human assistance provided to persons with disabilities and chronic conditions of all ages which enables them to accomplish tasks that they could normally do for themselves if they did not have a disability.” See attached CMS, State Medicaid Manual, §4480C. Licensed “home health” agencies lack that authority.
B. Services provided by licensed “personal assistance” agencies are not required to be supervised by a nurse. All services provided by licensed “home health” agencies must be supervised by a registered nurse. See Title 16 Del.C. §122oB(V)2.C.
C. The required qualifications of persons providing “home health services” are much more extensive than the qualifications of persons providing “personal assistance”. Compare 16 DE Admin Code 4406.1.1, definition of “home health aide”, with 16 DE Admin. Code 4469.1.1, definition of “direct care worker”.
Third, when we initially reviewed the proposed regulation, it appeared unclear what effect the change would have on attendant services provided under the DSHP+ program. DMMA notes that “personal care services” are also known by other names “such as personal attendant services, personal assistance services, or attendant care services, etc.”. At 259. The DSHP+ contracts with MCOs require coverage of “attendant care services” independent of coverage of “home health services”. See attached excerpts from 2015 DMMA-MCO contract. One could infer that DMMA’s elimination of “personal care services” from the Medicaid program represents either actual program elimination of “attendant services” or is a precursor to such elimination. However, we communicated with the DMMA Director who stated that “(t)here is no actual or planned elimination of attendant services.” See attached October 12, 2015 email communication.
Agency Response: DMMA is not proposing a change in the delivery and authorization of these services to eligible individuals. These services will continue to be provided as a component of home health services for eligible individuals.
THEREFORE, IT IS ORDERED, that the proposed regulation to amend Delaware Title XIX Medicaid State Plan regarding State Plan Personal Care Services, specifically, to remove personal care as a service option from the Medicaid State Plan as coverage of PCS will be provided under the Home Health Services benefit is adopted and shall be final effective January 10, 2016.
Last Updated: December 31 1969 19:00:00.
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