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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMay 2014

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The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the January 1, 2014 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by March 31, 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(i), State Plan Amendment Option to Provide Home and Community-Based Services for Elderly and Disabled Individuals
42 CFR §447.205, Public Notice of Changes in Statewide Methods and Standards for Setting Payment Rates
GACEC and SCPD commented on this initiative originally published in the January 2014 Register of Regulations. A copy of the January 30, 2014 memo is attached for facilitated reference. However, since a concept paper and draft Plan amendment were not included in a DMMA link until January 17th, DMMA is extending the opportunity to comment until March 31, 2014. Since the only document which the Councils lacked when compiling the previous analysis of the regulation in January was the 55-page Plan amendment, Council is providing a supplemental analysis focusing on that document.
Agency Response: With regard to your specific comments, responses are provided below. Your comments provided on March 12, 2014 are included verbatim first, followed by comments (paraphrased) from Mr. Kyle Hodges from January 30, 2014 that were not otherwise addressed.
Agency Response: Career Exploration and Assessment, Small Group supported Employment, Individual supported Employment, and Personal Care are services that Delaware anticipates will be utilized by individuals who have not had or are not eligible for vocational rehabilitation and/or who require ongoing support due to the nature of their disability. For individuals with visual impairments, Career Exploration and Assessment is widely available through the Division for the Visually Impairer’s (DVI) vocational rehabilitation program. Small Group supported Employment, Individual supported Employment, and Personal Care are ongoing supports for individuals who require longer-term support services for successful employment. Based on historical data and information, Delaware does not expect that individuals with a sole diagnosis of visual impairment will present a need for such supports. In the event that such a need is present, Delaware expects that the individual would likely be eligible in one of the remaining, broad-based target groups and therefore would have access to the needed service.
Agency Response: DVI is exploring how the engagement of an existing council in this critical role of monitoring will ensure that individuals receiving services through Pathways are assured independence in both their choice of service providers and services.
Agency Response: Delaware affirms that all applicable Medicaid due process requirements apply for the Pathways program.
Agency Response: Delaware intends to operate the Pathways program in full compliance with all applicable Federal statutes. We would note, however, that not all Medicaid services are treated similarly with regard to IDEA. In fact, regulations at 42 CFR 441.720 specifically note that in applying the requirements of section 1915(i)(1)(F) of the Act, the State must:
Agency Response: Delaware appreciates this comment. While the SPA does not directly address the issue of a resource cap, by checking Box #1 on page 5 of the application, Delaware is indicating that in order to be eligible for the Pathways benefit, a person must be eligible for Medicaid based on the eligibility criteria for one of the categorical groups. The Delaware Medicaid State Plan does not indicate a resource test for any of the categorical groups.
Agency Response: These functions will be conducted by Delaware state staff, and the qualifications articulated there are reflective of state classifications. Delaware is committed to ensure that the individuals performing these tasks are of the highest caliber and are prepared to effectively carry out these responsibilities and support individuals in gaining and maintaining employment. These individuals will be individually trained, initially and ongoing, on the specific requirements of the program, the use of established tools for determining whether individuals continue to meet targeting and needs based criteria, and who will receive tailored disability-specific training.
Agency Response: Delaware is committed to getting people into service at the earliest possible date, and will ensure that all timelines comport with reasonable promptness requirements. Once timeframes have been established, this will become part of the routine performance monitoring.
Agency Response: Delaware will add parenthetical as suggested. The chart on p. 10 is intentionally structured. All clients eligible for Pathways services served by DDDS must have a functional limitation in addition to the diagnostic criteria indicated on page 10 of the application. CMS describes eligibility for HCBS services by defining both target criteria (age, diagnosis or condition) and “needs based” or functional criteria. Target criteria (page 10) and the functional criteria (page 8) are separated into two separate sections in the SPA application. The current DDDS eligibility criteria includes both target and needs based criteria.
Agency Response: Yes. The Pathways program will provide support to individuals in gaining competitive or self-employment.
Agency Response: This limitation is proposed to ensure that providers supporting individuals, even those with complex needs, are incented toward successful employment outcomes and not toward perpetual job search activities, an issue that other states have encountered. We will add in the SPA, however, that exceptions to this limitation may be considered, requiring strong justification and explicit Department approval.
Agency Response: You correctly note that the 12 continuous months limitation is not absolute. Delaware believes that all individuals with the proper support can successfully engage in individualized employment, and have designed the benefit package of Pathways to continue offering such opportunities to individuals.
Agency Response: The Financial Coaching service, modeled after the successful $tand by Me program in Delaware, is aimed at helping individuals identify and achieve financial goals, and to provide key, basic financial education. This service is intended to complement and refer individuals to, rather than duplicate the functions of, the Benefit Counseling service, which requires specific Social Security Administration’s certification and knowledge of programs you indicate.
Agency Response: During the initial period of implementation, we will monitor this service carefully to ascertain the demand for this mode of transportation. As with other Medicaid benefits, we can adjust the parameters for allowable reimbursement within Federal guidelines as deemed appropriate.
Agency Response: Thank you for pointing this out. We will make all necessary corrections.
Agency Response: We will add that a non-legally responsible relative (e.g. parent of an adult child, adult sibling, aunt, uncle, cousin) may render Personal Care services pursuant to the same circumstances when individuals are exercising employer authority. We will monitor the demand for the provision of services by relatives and/or other legally responsible relatives to determine whether further adjustment is needed.
Agency Response: We will review the performance measures that are to be reported to CMS in light of your comments. However, we expect that CMS will require Delaware to meet minimum thresholds around health and welfare. We also note that Delaware will institute a method of continuous quality improvement, so we will continually evaluate elements that will inform our oversight processes.
Agency Note: In addition to our responses above to your comments submitted on March 12, 2014, DMMA offers these additional responses to your organization’s previously submitted comments (paraphrased below) on January 30, 2014 that have not been addressed above.
Agency Response: As noted in number 4 above, 1915(i) regulations require that other Federal programs be leveraged before HCBS services, but we expect that Pathways services can be well coordinated with any such services available to the individual through other funding sources to ensure that the individual obtains support key to successful employment outcomes.
Agency Response: DMMA will monitor the implementation of Pathways to determine whether different services would be warranted to achieve the goals of the program.
Agency Response: DMMA is developing strategies to ensure that the MCOs are covering all services that they are contractually obligated to provide, with close coordination with Pathways Employment Navigators to ensure that Pathways services are only provided over and above that which the MCO must provide.
Agency Response: The 150% Federal Poverty Level (FPL) income limitation is a statutory requirement of 1915(i). That said, Delaware expects that individuals will be able to utilize financial coaching and benefits counseling to help devise individualized strategies to achieve financial independence.
Agency Response: Individuals eligible for Medicaid under the TEFRA authority in the State Plan (called the Delaware Children’s Community Alternative Disability Program or CCADP) already have their parents’ income disregarded in the financial eligibility determination. The Pathways program will serve individuals, including these children, who are otherwise Medicaid eligible, and meet the statutory requirements. Per the regulations at 42 CFR 440.182(b), HCBS can be made available to individuals who are eligible under the SPA and have income, calculated using the otherwise applicable rules, including any less restrictive income disregards used by the State for that group under section 1902(r)(2) of the Act, that does not exceed 150% of the FPL.
Agency Response: Thank you for your recommendation. The Department is not currently contemplating any legislation related to the implementation of this program.
Agency Response: The workgroup referenced refers to the Department workgroup that is charged with operating and overseeing Pathways as a Medicaid program with functions delegated to divisions who will be instrumental in implementation and ongoing operations. As needed, the Department will reach out to other departments and stakeholders, and, as such, will certainly engage the Council as the program progresses.
Agency Response: The service package is designed to meet the support needs of persons with disabilities seeking employment. DMMA will monitor the implementation of Pathways to determine whether different services would be warranted to achieve the goals of the program.
THEREFORE, IT IS ORDERED, that the proposed regulation regarding the 1915(i) Home and Community-Based Services State Plan Option Amendment, is adopted and shall be final effective May 10, 2014.
Last Updated: December 31 1969 19:00:00.
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