Department of Health and Social Services
Division of Medicaid and Medical Assistance
DSSM 20700.5 Acquired Brain Injury Medicaid Waiver Program
Nature of the Proceedings:
Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance initiated proceedings to amend the Division of Social Services Manual (DSSM) regarding the Acquired Brain Injury Medicaid Waiver Program (ABIMWP). 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 December 2007 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by December 31, 2007 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
Summary of Proposal
Summary of Proposal
The Acquired Brain Injury Medicaid Waiver Program (ABIMWP) is a community-based services program funded by the Division of Medicaid and Medical Assistance and operated by the Division of Services for Aging and Adults with Physical Disabilities (DSAAPD). It is targeted to individuals with acquired brain injury who meet Medicaid nursing facility admission criteria.
The proposed revises the rules and regulations governing the administration of the ABIWP, and describes the types of services available under the program. The regulations being amended, also, define the eligibility criteria that must be met by applicants for the services and the scope of services available to eligible applicants.
And, to simplify the policy format, Section 20700.5 is substantially revised, renumbered, and reorganized for greater clarity and ease of reading.
Summary of Comments Received with Agency Response and Explanation of Changes
The State Council for Persons with Disabilities (SCPD) offered the following observations and recommendations summarized below. DMMA has considered each comment and responds as follows.
The regulations basically “track” the waiver document and other regulations adopted this month [11 DE Reg. 786 (December 1, 2007)]. However, SCPD has two (2) observations.
First, the reference to the Division of Long Term Care Residents Protection (DLTCRP) Regulation 5.9 at the end of the regulation is ostensibly an inaccurate citation. The DLTCRP assisted living regulation is codified at 16 DE Admin. Code 3225.
Agency Response: We agree. The regulation’s correct citation is reflected by [Bracketed Bold Type].
Second, DMMA POL-20700.5.1 ABI Program Absences Due To Hospitalization recites that “ABI waiver services will terminate upon the 31st day of hospitalization.” It is unclear if DMMA intends this reference to mean that services are suspended/cease or that the participant is actually terminated from the waiver program. This provision is obtuse and may merit clarification. If the provision is retained, the following could be substituted to conform to the advance notice requirement of 16 DE Admin Code 5301:
1. In the event of an extended hospitalization, DMMA will send advance notice to the participant that all waiver services will terminate upon the 31st day of hospitalization.
This is a more consumer-oriented approach which alerts the participant that he/she may wish to promote discharge from the hospital before the 31st day. Otherwise, the regulation literally contemplates more draconian termination of all services with no advance warning.
If DMMA does intend to terminate waiver eligibility on the 31st day, the consequences to the participant could be severe. The participant would have to reapply for eligibility and be placed at the end of any waiting list [Appendix B:3:3]. The participant may lose the supports necessary for discharge, thus extending the hospital stay even further. It would therefore be preferable to suspend waiver services upon the 31st day of hospitalization rather than terminating the participant’s enrollment in the waiver.
Agency Response: This provision refers to the actual waiver services, not to Medicaid. The Division of Services for Aging and Adults with Physical Disabilities (DSAAPD) will be responsible for notifying the participant that waiver services will be terminated. DMMA will provide adequate notification if Medicaid will be terminated.
Further analysis and review by staff corrects the policy number designation from “DMMA” to DSSM” indicated in the Final Order Regulation by [Bracketed Bold Type].
Findings of Fact:
The Department finds that the proposed changes as set forth in the December 2007 Register of Regulations should be adopted.
THEREFORE, IT IS ORDERED, that the proposed regulation related to the Acquired Brain Injury Medicaid Waiver Program is adopted and shall be final effective February 10, 2008.
Vincent P. Meconi, Secretary, DHSS, January 11, 2008
DMMA FINAL ORDER REGULATION #08-02
20700.5 ACQUIRED BRAIN INJURY MEDICAID WAIVER PROGRAM
The Acquired Brain Injury Medicaid Waiver Program (ABIMWP) is a home and community-based services program funded by the Division of Social Services (DSS), Delaware Medical Assistance Program (DMAP) and operated by the Division of Services for Aging and Adults with Physical Disabilities (DSAAPD). It is targeted to individuals with acquired brain injury who meet Medicaid nursing facility admission criteria.
The earliest implementation date for the ABIMWP is October 10, 2004.
20700.5.1 ELIGIBILITY CRITERIA
To be eligible for the ABIMWP, an individual must:
1. be a Delaware resident
2. be between 18 and 64 years of age (persons who enter the waiver before age 65 may remain in the waiver after age 65)
3. meet the financial and medical criteria for the DSS Long Term Care Medicaid Program and meet nursing facility admission criteria.
Medical eligibility is determined by the Pre-Admission Screening Unit of DSAAPD.
Financial eligibility is determined by DSS.
Program eligibility is determined by DSAAPD. An individual must meet all of the following criteria:
a have an injury to the brain which is not hereditary or congenital (Acquired Brain Injury)
b have a need of one waiver service, in addition to case management, on a monthly basis
c have a physical, cognitive and/or behavioral symptom of an acquired brain injury and currently reside in a nursing facility or is at risk for placement in a nursing facility
d have completed or would no longer benefit from intensive, inpatient, post-trauma or rehabilitation programs
e accept and maintain case management services
20700.5.2 NUMBER OF RECIPIENTS
There is a maximum number of recipients who may be served under the ABIMWP each fiscal year. The total unduplicated number of recipients served under the program cannot exceed the maximum number approved by the Centers for Medicare and Medicaid Services (CMS). DSAAPD will monitor the number of individuals receiving ABIMWP services so the maximum number will not be exceeded.
20700.5.3 COST EFFECTIVE REQUIREMENT
In order for an applicant to be eligible for the ABIMWP, the applicant's cost of care cannot exceed the cost of their care if the same applicant were institutionalized. This determination is made on an aggregate basis which considers all ABIMWP recipients. An average monthly cost for institutionalized individuals is used to determine the amount that may be spent on ABIMWP recipients. A DSAAPD worker determines cost effectiveness.
Upon approval, DSS will send a notice of approval to the applicant or the applicant's representative and the ABIMWP provider. The notice to the provider will include the effective date of Medicaid coverage, the patient pay amount, and the Medicaid identification number.
20700.5.5 POST ELIGIBILITY BUDGETING
See DSSM 20720 and 20995.1 for patient pay calculation.
For recipients residing in Assisted Living facilities, the personal needs allowance is equal to the current Adult Foster Care rate. Collection of the patient pay amount from the recipient or the recipient's representative is the responsibility of the assisted living provider.
For recipients residing in community-based settings, the personal needs allowance is equal to 250% of the Federal SSI Benefit Rate. Collection of the patient pay amount from the recipient or the recipient's representative is the responsibility of the provider who is providing the most costly service.
20700.5.6 DAYS APPROPRIATE FOR BILLING
The waiver provider may not bill for any day that the recipient is absent from the program or facility for the entire day. The waiver provider may bill for services for any day that the recipient is present in the facility or program for any part of the day.
If the recipient resides in an assisted living facility, the waiver provider may not bill Medicaid for room and board.
20700.5.7 HOSPITALIZATION OR ILLNESS
Waiver services will terminate upon hospitalization. There are no Medicaid bed hold days for hospitalization. DSS will redetermine eligibility for continued Medicaid coverage. Waiver services may restart after hospital discharge as determined by DSAAPD staff.
If the recipient is a resident of an assisted living facility, the waiver provider shall not provide services to a recipient in accordance with the Delaware Regulations for Assisted Living Facilities outlined in section 63.409.
20700.5.8 ABIMWP SERVICES
Acquired brain injury waiver services will include the following:
Adult Day Expanded Services
Specialized Medical Equipment and Supplies
Personal Emergency Response Systems (PERS)
Assisted Living Program
Behavioral and/or Cognitive Services
8 DE Reg. 557 (10/01/04) (Section 20700.5 added)
[DMMA DSSM] POL-20700.5 ACQUIRED BRAIN INJURY MEDICAID WAIVER
20700.5.A Acquired Brain Injury (ABI) Medicaid Waiver Defined
20700.5.B ABI Eligibility Criteria
20700.5.C ABI Program Eligibility
20700.5.D ABI Number of Participants
20700.5.E ABI Cost Effectiveness Requirement
20700.5.F ABI Notification of Approval
20700.5.G ABI Post Eligibility Budgeting
20700.5.H ABI Billing of Appropriate Days
20700.5.I ABI Program Absences Due to Hospitalization
20700.5.J ABI Medicaid Waiver Program Services
[DMMA DSSM] POL-20700.5.A ABI Medicaid Waiver Defined
[DMMA DSSM] POL-20700.5.B ABI Eligibility Criteria
[DMMA DSSM] POL-20700.5.C ABI Program Eligibility
[DMMA DSSM] POL-20700.5.D ABI Number of participants
[DMMA DSSM] POL-20700.5.E ABI Cost Effectiveness requirement
[DMMA DSSM] POL-20700.5.F ABI Notification of approval
[DMMA DSSM] POL-20700.5.G ABI Post Eligibility Budgeting
[DMMA DSSM] POL-20700.5.H ABI Billing of appropriate days
[DMMA DSSM] POL-20700.5.I ABI PROGRAM Absences DUE TO HOSPITALIZATION
[DMMA DSSM] POL-20700.5.J ABI MEDICAID WAIVER PROGRAM SERVICES
1. ABI waiver services will include:
Assisted Living and Enhanced Assisted Living
Adult Day Services (Level I - Basic & Level II – Enhanced)
Personal Emergency Response System