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The purpose of this bulletin is to provide an update to the Medicaid Bulletin dated September 29, 2023, regarding the permanent provision of payment to legally responsible individuals for personal care services. The term, legally responsible individual (LRI) applies to parents of children under age 18 and spouses 

DMAS has heard from constituents that more time is required to transition to the permanent rules to pay legally responsible individuals. The Centers for Medicare and Medicaid Services (CMS) has approved amendments to the Commonwealth Coordinated Care Plus (CCC+), Community Living (CL), and Family and Individual Supports (FIS) Waivers to delay implementation of the permanent rules for legally responsible individuals from November 11, 2023, until March 1, 2024. 

All rules and service requirements still apply and must be in place by March 1, 2024, if a legally responsible individual will continue to be reimbursed using Medicaid funds. It is important that services facilitators encourage members and families to continue their efforts to hire an attendant and to document their attempts when submitting requests for an LRI caregiver. Personal care agencies must also complete the process and provide supporting documentation when hiring an LRI as an aide.

Current rules for reimbursing LRIs remain in effect until March 1, 2024. This includes the requirement for objective, written documentation explaining why no other aide or attendant is available to provide personal care.  Providers must ensure that the services provided meet the definition of personal care. Tasks and activities outside the scope of personal care include nursing, complex medical tasks, behavioral health therapies, and skill building. 

Additional CMS Guidance

DMAS has reviewed upcoming guidance from CMS, anticipated to be effective January 2024, regarding the provision of services provided by LRI.  CMS will no longer emphasize that the state demonstrates that the services delivered by an LRI are in the “best interest of the member.” Instead, emphasis will be placed on the current requirement of mitigating self-referral. Self-referral is when a person with decision-making authority over selecting the member’s provider chooses to become the provider. The LRI providing the service should be considered only when no other caregivers are available.  

Services facilitators, care coordinators, and support coordinators should ensure that the LRI providing care meets the requirements and is not the result of self-referral. DMAS has updated the Extraordinary Care Form to remove “best interest” requirements and added information regarding self-referral. The updated Extraordinary Care Form is attached to this bulletin and should be used with any new requests. If the Extraordinary Care Form has already been completed and forwarded to the appropriate entity, a new form will not be required; however, more information may be requested to ensure the self-referral mitigation requirements are met. 

All forms and documents specific to this process are available on the DMAS website for LRI at https://dmas.virginia.gov/for-providers/long-term-care/waivers/legally-responsible-individuals/. Providers should access this webpage periodically as new FAQs and materials are developed to keep up-to-date and to share with members who are currently utilizing or may need to use this option.