Waivers for Developmental Disabilities

This resource was prepared by Attorney Franklin J. Hickman of the Cleveland and Sheffield Village law firm of Hickman & Lowder Co., L.P.A., and is intended to provide broad general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

 
 
1. What is a Waiver?

2. What Waivers are Available to Persons with Developmental Delays (DD)?

3. Who is Eligible for DD Waivers?

4. What services are covered under the SELF Waiver?

5. Are there Waiting Lists for Waivers?

6. What is the Appeal Process?

 
1. What is a Waiver?

When Medicaid was first established in 1965, Congress provided for a range of supports, including long term support for care in nursing homes and Intermediate Care Facilities for Mentally Retarded (ICFs/MR). By the 1990’s, the system encouraged states to develop experimental programs, locally and state-wide, which were designed to support community-based services for people who would otherwise be required to live in an institutional setting in order to receive Medicaid. These innovative programs allowed states to waive certain basic Medicaid requirements, including the requirement for institutional placement and the requirement that parental income be considered in determining financial eligibility of minors.

Medicaid waivers provide significant support to keep people with disabilities in community settings rather than in institutions or nursing homes; these waivers also allow families of any income level to access a broad range of Medicaid benefits. The waivers for those with developmental disabilities (“DD”) and the home care waiver make these benefits available to individuals of any age. With shrinking state budgets, Medicaid has emerged as the most important funding source for residential services in the disability community.
 

2. What Waivers are Available to Persons with Developmental Delays (DD)?

Ohio has established two waivers for persons with DD and has recently received approval for a third effective July 1, 2012.
The Level One waiver is for people with developmental disabilities who require the care given in an ICF/MR, but would prefer to live at home and have a network of family, friends and neighbors who can provide the needed care. There is an annual limit of $5,000 for Level One Services and emergency funding up to $8,000 over a three year period. The Federal Government has approved up to 13,000 Level One waivers for Ohio in 2011.
Level One services include:

• Adult day supports
• Environmental accessibility and adaptations
• Homemaker/personal care
• Personal emergency response system
• Respite (informal and institutional)
• Specialized medical equipment and supplies
• Supported employment (community and enclave) – adaptive equipment
• Transportation (medical and non-medical)
• Vocational habilitation
• Emergency

The Individual Options (IO) waivers allow Medicaid recipients who would normally be required to live in an ICF/MR to stay in their homes and get support. Funding levels are determined by the Ohio Developmental Disabilities Profile (“ODDP”). There are currently 17,500 IO slots approved by the Federal Government for Ohio in 2011. Under certain circumstances, parents may be eligible for reimbursement as providers for IO waiver services.
IO Waiver services include:

• Homemaker/personal care
• Transportation
• Respite
• Adult Foster Care
• Environmental accessibility modifications
• Social work
• Nutrition
• Interpreter
• Home-delivered meals
• Adaptive and assistive equipment
• Adult day support
• Vocational habilitation
• Supported employment (enclave, community, adapted equipment)
• Non-medical transportation
• Remote Monitoring
• Community Respite

Finally, the Self Empowered Life Funding “SELF” Waiver was approved by CMS and became available July 2012. It is designed to promote consumer management of at least some part of the services. Overall cost limits: Children (under 22) – $25,000; Adults – $40,000. Department of Developmental Disabilities is currently predicting to serve up to 500 individuals for the first year, 1000 in year 2, and 2000 by year 3. The SELF Waiver will serve up to 100 children with intensive behavioral needs based on a checklist developed in collaboration with Nisonger.
 

3. What services are covered with a SELF Waiver?

The DD Board Service and Support Administrators will be responsible for Level of Care assessment, developing service plans and providing a single point of accountability. The Waiver allows families/participants to get the services of an independent Support Broker who will act as agent for the participant. Support Brokers may be paid up to $8,000/yr. except that family members cannot be paid for these services. Participants will also have access to state-wide
Financial Management Services to assist in budget and other financial management issues.
To be eligible, the participant or representative must be willing and able to perform the duties associated with participant direction.
Covered services include:

• Support Brokerage
• Functional Behavioral Assessment
• Clinical/Therapeutic Intervention
• Remote Monitoring & Equipment
• Respite: Community & Residential
• Integrated Employment
• Participant/Family Stability Assistance
• Community Inclusion (Personal Assistance, Transportation)
• Participant-Directed Goods and Services
• Adult Day Supports
• Vocational Habilitation
• Supported Employment – Enclave
• Non-Medical Transportation

4. Who is Eligible for DD Waivers?

Waivers available through the DD Boards are open to all ages. In addition, in order to be considered eligible for either the Level One or Individual Options waiver an applicant must meet specific financial criteria and have an ICF/MR level of care. Financial eligibility is determined through the local Department of Job and Family Services (“JFS”). Financial eligibility is complex and should be reviewed by a knowledgeable individual before making any final decisions. The following summary is condensed to show some of the basic concepts which the JFS workers will be considering.

• Parent income is not counted for minor children who qualify for the waivers.
• Assets cannot exceed $1,500.
• The “special income level” is used to compute income for home- and community-based services (HCBS) waiver recipients. The special income level is equal to 300% of the current SSI payment standard for an individual. The SSI payment standard for an individual in 2012 is $698.00. Therefore, in 2012, the special income level is $2,094.00. If income exceeds the Special Income Level, there are certain exemptions and disregards which may apply. Individuals found eligible under spenddown provisions are not eligible for waiver programs.

5. Are there Waiting Lists for Waivers?

County Boards of DD have established waiting lists for IO and Level One Waivers. Individuals are selected from a waiting list based on the following criteria: 1) Emergencies, 2) Priorities, and 3) Regular Waiting list which is based on date of enrollment.
 

6. What is the Appeal Process?

If a waiver is denied or if an applicant believes that the county department of job and family services or the county Board of DD made changes which are not consistent with health, welfare and safety of the individual covered by a waiver, the applicant may request a state hearing with the Bureau of State Hearings (866-635-3748) under R.C. 5101.35.
Applicants may also challenge their placement on a waiver waiting list managed by a DD Board by contacting the Ohio Bureau of State Hearings at the number listed above or by filing an appeal under O.A.C. 5123:2-1-12.
Disputes about funding levels established by the ODDP for IO waivers are subject to two possible types of appeal. If there are questions about whether the ODDP was properly administered, an appeal can be filed under R.C. 5101.35. If the ODDP was done correctly, but the funding range is not sufficient to protect health and safety of the individual, a request for prior authorization of an amount in excess of the funding range can be filed under O.A.C. 5101:3-41-12.

 
 
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