You asked for information about the Acquired Brain Injury (ABI) waiver. Specifically, you want to know (1) whether, under the waiver, Medicaid would pay an injured person's half-sister to be her personal care assistant (PCA) and (2) if there are any other state, local, or private funds available that would help with such a situation.

The Office of Legislative Research is not authorized to give legal opinions and the following should not be considered one.

FAMILY MEMBERS AS PCAS UNDER THE WAIVER

Medicaid will pay the half-sister of an ABI waiver client to be the PCA if she (1) has not previously provided the services for free and (2) is not a family member of the client's conservator. We are not aware of any other funding sources that would pay for family members to act as PCAs for ABI patients.

The Department of Social Services (DSS) ABI Waiver Provider Manual allows a client's family members (other than a spouse or parent if the client is under age 21) to provide personal care assistance and be paid for it. Under the waiver, DSS does not pay the person's conservator or members of the conservator's family. The manual further states that DSS does not pay a provider who performed certain services, including personal care assistance, free of charge before the person became a waiver client. There are no regulations for the program, but draft regulations contain the same prohibitions as in the manual. The PCA Medicaid waiver for the physically disabled and the state PCA pilot program for the elderly have these same state-imposed payment limitations.

Federal regulations stipulate that the personal care assistant cannot be a family member, but define family member as only a "legally responsible relative," which means a spouse or parent of a minor child (42 C. F. R. Sec. 440. 167). Federal regulations do not address members of a conservator's family providing the services. They also do not appear to specifically prohibit payments to family members who have been providing the services free.

The Connecticut legislature appears to have the authority to change the current limitations, with federal approval, as long as it does not allow a legally responsible relative to be paid. Any changes would mean the state must apply for the federal government's approval to amend the current waiver. SB 196, An Act Concerning Personal Care Assistance for Individuals with Acquired Brain Injury, attempts to address these payment limitations. The bill had a public hearing in the Human Services Committee on February 28 and the committee voted to draft it on March 5. The committee's JF deadline is March 19.

BACKGROUND ON THE ABI WAIVER

Under Connecticut's ABI waiver from regular Medicaid rules, the state can provide home and community-based services to people between 18 and 64 years of age with ABI who might otherwise need institutional care. Personal care assistance (help with the activities of daily living such as dressing, bathing, eating, etc. ) is one of the program's services. Currently, the program has 120 active clients and a cap of 253 on the number of clients. The client's income cannot currently be more than $ 1,635 a month. ABI includes brain injuries acquired through interaction of external forces and the body, oxygen deprivation, infection, toxicity, surgery, and vascular disorders not associated with aging. See OLR Report 2000-R-0143 for more information.

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