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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJune 2014

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The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the April 2014 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by April 30, 2014 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
Social Security Act §1915(c), Provisions Respecting Inapplicability and Waiver of Certain Requirements of this Title
42 CFR §441, Subpart G, Home and Community-Based Services Waiver Requirements
42 CFR §447.205, Public Notice of Changes in Statewide Methods and Standards for Setting Payment Rates
Agency Response Note: Thank you for your thoughtful comments on the renewal application for the DDDS HCBS Medicaid Waiver on behalf of DDDC and SCPD (The Council). With regard to your specific comments, please note that each "Agency Response" provided below was developed and prepared by the Division of Developmental Disabilities Services (DDDS).
Agency Response: The public will have additional opportunities to comment before the waiver renewal is finalized. Notice regarding the waiver renewal appeared in the April 1, 2014 issue of the Delaware Register of Regulations and allows for the full thirty (30) day comment period. The completion of the waiver renewal document was delayed and in order to allow sufficient time for the Centers for Medicare and Medicaid Services (CMS) review and for public comment; those processes are running concurrently.
Agency Response: At the present time, DDDS does not have the infrastructure to support participant directed services.
Agency Response: The criteria in the waiver renewal application do not specifically reference individuals with brain injury, but they are nevertheless included in the waiver target group. The waiver application references the DDDS eligibility criteria as one of the criteria for waiver eligibility. The current DDDS eligibility criteria refer to "mental retardation" and "brain injury". DDDS is in the process of revising its division eligibility to replace the term "mental retardation" with "intellectual disability". The proposed terminology in the proposed DDDS eligibility criteria of "intellectual disability" encompasses individuals with brain injury (if it occurred within the developmental period) if they also meet functional limitations as specified in the DDDS criteria. It is our hope that the proposed DDDS eligibility criteria will be in effect before the effective date of the waiver renewal on July 1, 2014 so that the language will be consistent. Because several other groups and individuals raised this same concern, DDDS will ask CMS to add the term "brain injury" to the waiver application to make it clear that this population is included.
Agency Response: As referenced in the waiver application, DDDS has used Medicaid claims data to verify that no one under the age of twelve (12) has ever received a DDDS waiver service. Based on the services included in the waiver benefit package, it is not designed for children. The DDDS eligibility criteria still allow the division to serve individuals age four (4) and above as part of its state mandate if they otherwise meet the DDDS eligibility criteria. The citation from the Delaware Code referenced by the Council only relates to services provided by the Division using state funds and does not govern services provided under a federal Medicaid waiver. So-called "Comprehensive" Medicaid HCBS waivers, such as the DDDS Waiver, are commonly limited by age. The early intervention services referred to by the Council are provided by the Division of Public Health (DPH) and the Birth to Three programs in the Division of Management Services (DMS) and not by DDDS. The department is in the process of requesting an amendment to the statute to correct the operating responsibility for this program.
Agency Response: The response to the waiver section indicating whether the State proposes to place additional limits on waiver services, except as provided in Appendix C, is correct. There are no proposed limits other than those imposed in Appendix C. Supported Living is the only service for which a limit in the number of units a member can receive is specified. Limits on individual services are allowed by CMS. The limit proposed for Supported Living is based on the amount of support currently received by individuals paid for by DDDS with State funds. No individual currently receives more than thirty-five (35) hours per week and the majority of the individuals receive fifteen (15) hours. The number of projected waiver members receiving this service is also based on the individuals currently receiving this service and how many of them are likely to meet waiver eligibility rules.
Agency Response: The Inventory for Client and Agency Planning (ICAP) is an assessment instrument that assists agencies such as DDDS in determining the support needs of individuals with intellectual developmental disabilities. The assessment scores are translated into a recommended number of support hours per day for each client. The number of support hours is then multiplied by the hourly rate that is applicable to each waiver service. For residential habilitation providers, this computation results in a per diem payment arrangement (ICAP hours x hourly rate). The limit of ICAP hours per day is twenty-four (24) if the client is supported in a 1:1 arrangement. The hourly rates for residential habilitation were developed independent of the ICAP assessments. States use different assessment tools to determine the level of direct support needed for each client.
Agency Response: DDDS does not believe that there is a conflict. This language in the waiver application communicates DDDS's expectations for waiver recipients who reside in Neighborhood Group Homes. The Division of Long Term Care Residents Protection (DLTCRP) regulations govern all facilities in Delaware that are licensed as Neighborhood Homes for Persons with Developmental Disabilities. Not all residents of neighborhood homes are enrolled in the DDDS HCBS waiver. The statement in the waiver only applies to waiver members.
Agency Response: By making this change, DDDS is opening the opportunity for family members to become Shared Living Providers for the first time in this waiver. The CMS Technical Guide, states "When payments are to be made to a legal guardian, the waiver should include safeguards for determining that the provision of services by a legal guardian are in the best interest of the waiver participant, especially when the legal guardian exercises decision making authority on behalf of the participant in the selection of waiver providers". DDDS believes that it does not have sufficient infrastructure to guarantee sufficient safeguards for the waiver participant at this time. Once this current change has been approved by CMS, DDDS is willing to work with family members who are guardians and would like to become Share Living Providers to create safeguards to comply with CMS expectations and amend the waiver in the future.
Agency Response: For each waiver service, DDDS must indicate whether the service is "provider managed" or "participant directed". For the Pre-vocational Service, DDDS has indicated that the service will be provider managed. Agencies that provide this service may hire any individual to provide the direct support as long as they meet the hiring qualifications, such as training or education, possession of a valid driver's license and the criminal background check, etc. Agencies are not prohibited from hiring relatives of waiver members if they otherwise meet all applicable qualifications. Under the arrangement described above, the box for "Relatives" should not be checked for Prevocational Service in the waiver application.
Agency Response: The qualifications for the DDDS case managers are the qualifications for the State of Delaware Merit System classification of Senior Social Worker/Case Manager. Qualifications for all State Merit classifications are developed by the Delaware Office of Management and Budget. In addition to the minimum qualifications, case managers must receive a core curriculum of training as specified in DDDS policy after they are hired.
Agency Response: This waiver is designed to meet the needs of individuals with an intellectual developmental disability. Therefore, the institutional standard for which the home and community based services offered under this waiver are provided "in lieu of" is the ICF/IID level of care and not a nursing facility level of care. The thirty-seven (37) individuals listed on the DDDS census report that are indicated as residing in nursing facilities are individuals that have been determined to have an intellectual disability as a result of a pre-admission screen (a PASRR Pre-Admission Screening and Resident Review Level 2 screen) and have been determined to need "specialized services" to address their disability. Per OBRA 1987, DDDS is the designated DD authority and is required to provide the specialized services these individuals need. These individuals are eligible for nursing facility services which are provided by a managed care organization under the 1115 waiver in Delaware. Per the terms and conditions of the 1115 waiver, individuals cannot be simultaneously enrolled in the 1115 waiver (which includes the Diamond State Health Plan Plus Long Term Care benefits) and the DDDS waiver. Furthermore, states are prohibited from providing waiver services to a person who resides in an institution per 42 CFR 441.301(b)(1)(i) (see citation below)
(b) If the agency furnishes home and community-based services, as defined in §440.180 of this subchapter, under a waiver granted under this subpart, the waiver request must-
Agency Response: Per the CMS technical assistance guide, states are required to include the language in question in HCBS waiver applications that include certain statutory services. Language at 42 CFR 440.180 (a)(3)(i) and (ii) contain this prohibition against covering services under a waiver that could otherwise be covered via IDEA or the Rehabilitation Act. The waiver language does not contravene federal law but is instead in compliance with the law as it applies to all HCBS waivers under Section 1915(c). The regulatory language is excerpted below:
Agency Response: Appendix G-2 b. i. of the waiver application indicates that "All contracted providers are required to participate in the Mandt system crisis intervention training or a DDDS approved equivalent." The language referenced by The Council in Appendix G-2 a. i. "Permitted planned personal restraints are limited to the one and two person side body hug and the one and two are supporting technique as described in the Mandt protocol" should have included the additional statement, "or other equivalent procedures and protocols approved by the Division." DDDS will ask CMS for permission to revise this language in the waiver application.
Agency Response: The process described in the waiver renewal application is one that has been under development in the Essential Lifestyle Plan (ELP) Committee for several months and is in the process of being tested. The plan is to implement the new process in July 2014, concurrent with the effective date of the renewal application.
Agency Response: The requirement for states to offer choice between an institutional or community setting for waiver enrollees is still a requirement under CFR 441.302(d)(2). New guidance issued by CMS in July 2013 regarding quality performance measures that must be reported to CMS on the annual "372" report has removed this measure. DDDS will continue to document that this choice is offered to all waiver applicants.
Agency Response: The counts of individuals reported on the DDDS monthly census report as residing in a DDDS community residential placement includes individuals that are not enrolled in the DDDS waiver for which DDDS pays for their care with 100% state general funds. All individuals in the Emergency and High Risk categories on the DDDS Registry who apply for the waiver are screened against the waiver financial eligibility criteria. There is both an income and a resource limit. Some individuals do not meet the waiver income or resource limits, most often because they are receiving Social Security survivor's benefits in excess of the waiver income limit. The Governor and the Legislature have been most generous in appropriating funds each year that enable DDDS to serve these individuals in addition to those individuals who are eligible for the DDDS HCBS waiver. As of January 2014, there were 941 individuals receiving services under the DDDS waiver.
Agency Response: After several years of not participating, DDDS has resumed its participation in the National Core Indicators (NCI) project. The annual surveys have been sent to waiver members and the responses are beginning to be received. It is DDDS's plan to include measures from NCI in the waiver in the future, after benchmarks can be established for the measures.
Agency Response: The new rules become effective March 17, 2014 and apply to new waivers, amendments and renewals which are submitted after that date. The DDDS waiver renewal was submitted to CMS on March 12, 2014 and will not initially be subject to the rule but will be given the opportunity to come into compliance in the future. DDDS will need to undergo a complete assessment of its service system in order to develop a plan to come into compliance with the new rule that will address this in addition to the other requirements.
Agency Response: Delaware has chosen to use the same income standard for all of its long term services and supports to facilitate client movement between settings as their needs change. The current standard is the nursing facility standard of 250% FBR. If the state wishes to raise the income standard, a fiscal note for all HCBS services, including those provided under 1915(c) waivers and also the 1115 waiver that subsumed the former Elderly and Disabled and AIDS waivers, and for all nursing facility services would have to be developed and funded in the state's annual operating budget.
Agency Response: Thank you for your additional comments from April 28th on the renewal application for the DDDS HCBS Medicaid Waiver on behalf of the Governor's Advisory Council for Exceptional Citizens. DMMA offers the following additional information provided by DDDS to address your additional comments.
GACEC Issue #1: Despite DDDS's assurance that no one under age 12 will be denied a needed service just because they will not be served under the DDDS waiver, the Council continues to be concerned about the division's proposal to raise the minimum waiver age from 4 to 12. It cites the DDDS enabling statute, the Age Discrimination Act and subsequent HHS OCR complaint and the MOU with DSCYF as compelling reasons for not making this change to the DDDS Medicaid waiver.
Agency Response: As referenced in the waiver application, DDDS has used Medicaid claims data to verify that no one under the age of 12 has ever received a DDDS waiver service, including shared living, formerly called Adult Foster Care. DDDS continues to contend that based on the services included in the waiver benefit package, it is not designed for children. No one under the age of 12 will be denied a service that is required under the DDDS enabling statute. DDDS will continue to provide services to individuals under age 12 who meet the DDDS eligibility criteria, including the provision of foster care/shared living when necessary. DDDS will also continue to honor the MOU with DSCYF which requires it to participate in "residential placement of DFS children in DDDS homes and respite care." DDDS believes that the rare occasions when specialized foster care may need to be provided to individuals under age 12 is best addressed using state funds under the DDDS state mandate to allow for flexibility that may not be available under the structure of a waiver service.
GACEC Issue #2: The Council continues to recommend that DDDS should add a nursing facility level of care to the waiver application in addition to the current designation of ICF/IID.
Agency Response: Per CMS regulations at 42 CFR 441.301(b)(1)(iii) states must indicate that waiver services will only be provided to recipients who, in the absence of waiver services would require the Medicaid covered level of care in a hospital, nursing facility, or ICF/IID. States may only select a single institutional level of care for the target group for which the cost of waiver services will be compared to the cost of institutional services. Nursing facility costs are significantly less than ICF/IID costs. If DDDS was able to include such a level of care under the DDDS waiver, it would have the effect of lowering the projection of "without waiver" spending that is compared to "with waiver" spending to demonstrate budget neutrality as required under 42 CFR 441.302(e). This waiver is designed to meet the needs of individuals with an intellectual developmental disability. Therefore, the ICF/IID institutional level of care standard is the appropriate standard for this target group.
Agency Response: Thank you for your additional comments from April 30th on the renewal application for the DDDS HCBS Medicaid Waiver on behalf of the State Council for Persons with Disabilities (The Council). DMMA offers the following additional information provided by DDDS to address your additional comments.
SCPD Issue #1: Despite DDDS's assurance that no one under age 12 will be denied a needed service just because they will not be served under the DDDS waiver, the Council continues to be concerned about the division's proposal to raise the minimum waiver age from 4 to 12. It cites the DDDS enabling statute, the Age Discrimination Act and subsequent HHS OCR complaint and the MOU with DSCYF as compelling reasons for not making this change to the DDDS Medicaid waiver.
Agency Response: As referenced in the waiver application, DDDS has used Medicaid claims data to verify that no one under the age of 12 has ever received a DDDS waiver service, including shared living, formerly called Adult Foster Care. DDDS continues to contend that based on the services included in the waiver benefit package, it is not designed for children. No one under the age of 12 will be denied a service that is required under the DDDS enabling statute. DDDS will continue to provide services to individuals under age 12 who meet the DDDS eligibility criteria, including the provision of foster care/shared living when necessary. DDDS will also continue to honor the MOU with DSCYF which requires it to participate in "residential placement of DFS children in DDDS homes and respite care." DDDS believes that the rare occasions when specialized foster care may need to be provided to individuals under age 12 is best addressed using state funds under the DDDS state mandate to allow for flexibility that may not be available under the structure of a waiver service.
SCPD Issue #2: The Council continues to recommend that DDDS should add a nursing facility level of care to the waiver application in addition to the current designation of ICF/IID.
Agency Response: Per CMS regulations at 42 CFR 441.301(b)(1)(iii) states must indicate that waiver services will only be provided to recipients who, in the absence of waiver services would require the Medicaid covered level of care in a hospital, nursing facility, or ICF/IID. States may only select a single institutional level of care for the target group for which the cost of waiver services will be compared to the cost of institutional services. Nursing facility costs are significantly less than ICF/IID costs. If DDDS was able to include such a level of care under the DDDS waiver, it would have the effect of lowering the projection of "without waiver" spending that is compared to "with waiver" spending to demonstrate budget neutrality as required under 42 CFR 441.302(e). This waiver is designed to meet the needs of individuals with an intellectual developmental disability. Therefore, the ICF/IID institutional level of care standard is the appropriate standard for this target group.
Medical Care Advisory Committee
State Council for Persons with Disabilities
Last Updated: December 31 1969 19:00:00.
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