TITLE 12. HEALTH
Title of Regulation: 12VAC30-120. Waivered Services (amending 12VAC30-120-380).
Statutory Authority: § 32.1-325 of the Code of Virginia;
42 USC § 1396.
Public Hearing Information: No public hearings are
Public Comment Deadline: April 19, 2017.
Effective Date: May 4, 2017.
Agency Contact: Emily McClellan, Regulatory Supervisor,
Policy Division, Department of Medical Assistance Services, 600 East Broad
Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804)
786-1680, or email email@example.com.
Basis: Section 32.1-325 of the Code of Viriginia grants
to the Board of Medical Assistance Services the authority to administer and
amend the Plan for Medical Assistance. Section 32.1-324 of the Code of Virginia
authorizes the Director of the Department of Medical Assistance Services (DMAS)
to administer and amend the Plan for Medical Assistance according to the
board's requirements. The Medicaid authority as established by § 1902(a) of the
Social Security Act (42 USC § 1396a) provides governing authority for payments
Chapter 780 of the 2016 Acts of the Assembly, Item 306 MMMM
directed as follows:
"1. The Department of Medical Assistance Services, in
consultation with the appropriate stakeholders, shall amend the state plan for
medical assistance and/or seek federal authority through an 1115 demonstration
waiver, as soon as feasible, to provide coverage of inpatient detoxification,
inpatient substance abuse treatment, residential detoxification, residential
substance abuse treatment, and peer support services to Medicaid individuals in
the Fee-for-Service and Managed Care Delivery Systems. The department shall
have the authority to implement this change effective upon passage of this Act,
and prior to the completion of any regulatory process undertaken in order to
effect such change.
2. The Department of Medical Assistance Services shall make
programmatic changes in the provision of all Substance Abuse Treatment
Outpatient, Community Based and Residential Treatment services (group homes and
facilities) for individuals with substance abuse disorders in order to ensure
parity between the substance abuse treatment services and the medical and
mental health services covered by the department and to ensure comprehensive treatment
planning and care coordination for individuals receiving behavioral health and
substance use disorder services. The department shall take action to ensure
appropriate utilization and cost efficiency, and adjust reimbursement rates
within the limits of the funding appropriated for this purpose based on current
industry standards. The department shall consider all available options
including, but not limited to, service definitions, prior authorization,
utilization review, provider qualifications, and reimbursement rates for the
following Medicaid services: substance abuse day treatment for pregnant women,
substance abuse residential treatment for pregnant women, substance abuse case
management, opioid treatment, substance abuse day treatment, and substance
abuse intensive outpatient. The department shall have the authority to
implement this change effective upon passage of this Act, and prior to the
completion of any regulatory process undertaken in order to effect such change.
3. The Department of Medical Assistance Services shall amend
the State Plan for Medical Assistance and any waivers thereof to include peer
support services to children and adults with mental health conditions and/or
substance use disorders. The department shall work with its contractors, the
Department of Behavioral Health and Developmental Services, and appropriate
stakeholders to develop service definitions, utilization review criteria and
provider qualifications. The department shall have the authority to implement
this change effective upon passage of this Act, and prior to the completion of
any regulatory process undertaken in order to effect such change.
4. The Department of Medical Assistance Services shall, prior
to the submission of any state plan amendment or waivers to implement
paragraphs MMMM 1, MMMM 2, and MMMM 3, submit a plan detailing the changes in
provider rates, new services added and any other programmatic changes to the
Chairmen of the House Appropriations and Senate Finance Committees."
Purpose: The purpose of this action is to comport the
managed care regulations (12VAC30-120-360 through 12VAC30-120-420) with the
Addiction and Recovery Treatment Services (ARTS) regulatory action, posted on
the Virginia Regulatory Town Hall (TH 4692/7734) and published in the Virginia
Register of Regulations (33:12 VA.R. 1325-1376 February 6, 2017).
This regulatory action is not essential to protect the health, safety, or
welfare of the Commonwealth's citizens or Medicaid individuals.
Rationale for Using Fast-Track Rulemaking Process: This
regulatory action is being promulgated as a fast-track rulemaking action
because public comments received about the general concept and features of the
original ARTS services specified to date have been positive. The comprehensive
ARTS proposal has been such a substantial improvement over the current
fragmented approach to substance use treatment that the affected entities are
actively participating with DMAS in its redesign and transformation efforts.
This action merely comports these managed care regulations with the previously
Current policy: DMAS covers approximately 1.1 million
individuals; 80% of members receive care through contracted managed care
organizations (MCOs) and 20% of members receive care through fee-for-service
(FFS). The majority of members enrolled in Virginia's Medicaid and FAMIS
programs include children, pregnant women, and individuals who meet the
disability category of being aged, blind, or disabled. The 20% of the
individuals receiving care through fee for service do so because they meet one
of 16 categories of exception to MCO participation, for example: (i) inpatients
in state mental hospitals, long-stay hospitals, nursing facilities, or
intermediate care facilities for individuals with intellectual disabilities;
(ii) individuals on spend down; (iii) individuals younger than 21 years of age
who are in residential treatment facility Level C programs; (iv) newly eligible
individuals in their third trimester of pregnancy; (v) individuals who
permanently live outside their area of residence; (vi) individuals receiving
hospice services; (vii) individuals with other comprehensive group or
individual health insurance; (viii) individuals eligible for Individuals with
Disabilities Education Act (IDEA) Part C services; (ix) individuals whose
eligibility period is less than three months or is retroactive; and (x)
individuals enrolled in the Virginia Birth-Related Neurological Injury
Historically, Virginia funded only limited kinds of substance
use treatment services to limited populations of Medicaid eligible individuals,
for example, pregnant women and children. Within the current system,
nontraditional community-based addiction treatment services are "carved
out" (excluded from coverage) of the MCOs and managed by Magellan, the
behavioral health service administrator contractor for DMAS. The original ARTS
regulatory action changed this approach, and this action comports these
remaining regulations to the original action.
Recommendations: To comport these managed care regulations with
the ARTS regulatory action, the amendment replaces a description of community
mental health services with a reference to 12VAC30-50-130 and 12VAC30-50-226.
Issues: The advantage to DMAS is the consistency between
different controlling regulations in support of appeals and legal actions.
There are no disadvantages for DMAS. There are no advantages or disadvantages
to citizens, Medicaid individuals, or providers as the ARTS regulatory action
sets out all of the details and requirements of the new program.
Department of Planning and Budget's Economic Impact
Summary of the Proposed Amendments to Regulation. On behalf of
the Board of Medical Assistance Services (Board), the Director of the
Department of Medical Assistance (DMAS) proposes to amend this regulation on
waivered services to conform it to the Board's fast track addiction recovery
treatment (ARTS) regulation, which has been submitted to the Registrar and will
be published in the Virginia Register of Regulations (Volume 33, Issue 12) on
February 6, 2017.1 Needed changes to this regulation were
inadvertently omitted from that initial regulatory action.
Result of Analysis. Benefits likely outweigh costs for these
Estimated Economic Impact. Chapter 780 (Item 306-MMMM) of the
2016 Acts of the Assembly2 directs DMAS "to provide coverage of
inpatient detoxification, inpatient substance abuse treatment, residential
detoxification, residential substance abuse treatment and peer support services
in the Fee-for-Service and Managed Care Delivery Systems." Chapter 780
also directed DMAS to make programmatic changes so that substance abuse
treatment services are paid the same as medical and mental health services
(within the limits of the funding appropriated for that purpose). Most of these
changes were made in a fast track action that has completed executive branch
review and is now awaiting publication. Changes that were necessary to conform
this regulation (12VAC30-120) to the ARTS regulation were inadvertently left
out of that action. Consequently, the Director now proposes to remove language
and regulatory references that will soon be obsolete and replace them with
references to the regulatory language promulgated with the ARTS regulation. No
entities are likely to incur costs on account of these changes. Interested
parties will benefit from soon to be obsolete language and references being
removed as they may cause confusion.
Businesses and Entities Affected. These proposed regulatory
changes will affect locally run Community Services Boards and Behavioral Health
Authorities (CSBs/BHAs), inpatient hospitals, some physicians and nurse
practitioners, case managers, residential treatment facilities, group homes and
outpatient clinics as well as all Medicaid recipients. DMAS reports that there
are currently 1.1 million Medicaid recipients in the Commonwealth and that
there are 39 CSBs and one BHA run by various localities in the Commonwealth.
Localities Particularly Affected. Locally run CSBs/BHAs and
their staff will likely be disproportionately affected by this proposed
Projected Impact on Employment. These proposed regulatory
changes are unlikely to affect employment in the Commonwealth.
Effects on the Use and Value of Private Property. These
proposed regulatory changes are unlikely to affect the use or value of private
property in the Commonwealth.
Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. These proposed regulatory changes are
unlikely to affect any small business in the Commonwealth.
Alternative Method that Minimizes Adverse Impact. No small
businesses will be adversely affected by these proposed regulatory changes.
Businesses. Businesses in the Commonwealth are unlikely to
experience any adverse impacts on account of this proposed regulation.
Localities. No localities are likely to incur costs on account
of these proposed regulatory changes.
Other Entities. These proposed regulatory changes are unlikely
to affect other entities in the Commonwealth.
2 More information on this mandate can be found at http://townhall.virginia.gov/L/viewmandate.cfm?mandateid=743
Agency's Response to Economic Impact Analysis: The
agency has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and concurs with this analysis.
The amendment replaces a description of community mental
health services with a reference to 12VAC30-50-130 and 12VAC30-50-226 to align
the regulation with the new Addiction and Recovery Treatment Services program.
12VAC30-120-380. MCO responsibilities.
A. The MCO shall provide, at a minimum, all medically
necessary covered services provided under the State Plan for Medical Assistance
and further defined by written DMAS regulations, policies and instructions,
except as otherwise modified or excluded in this part.
1. Nonemergency services provided by hospital emergency
departments shall be covered by MCOs in accordance with rates negotiated
between the MCOs and the hospital emergency departments.
2. Services that shall be provided outside the MCO network
shall include, but are not limited to, those services identified and defined by
the contract between DMAS and the MCO. Services reimbursed by DMAS include
but shall not be limited to, dental and orthodontic services for children
up to age 21; for all others, dental services (as described in 12VAC30-50-190 ,);
school health services ,; community mental health services (rehabilitative,
targeted case management and the following substance abuse treatment services:
emergency services (crisis); intensive outpatient services; day treatment
services; substance abuse case management services; and opioid treatment
services) as defined in 12VAC30-50-228 and 12VAC30-50-491, (12VAC30-50-130
and 12VAC30-50-226); Early Intervention services provided pursuant to Part
C of the Individuals with Disabilities Education Act (IDEA) of 2004 (as defined
in 12VAC30-50-131 and 12VAC30-50-415 ,); and long-term care
services provided under the § 1915(c) home-based and community-based
waivers including related transportation to such authorized waiver services.
3. The MCOs shall pay for emergency services and family
planning services and supplies whether such services are provided inside or
outside the MCO network.
B. EPSDT services shall be covered by the MCO and defined by
the contract between DMAS and the MCO. The MCO shall have the authority to
determine the provider of service for EPSDT screenings.
C. The MCOs shall report data to DMAS under the contract
requirements, which may include data reports, report cards for members, and ad
hoc quality studies performed by the MCO or third parties.
D. Documentation requirements.
1. The MCO shall maintain records as required by federal and
state law and regulation and by DMAS policy. The MCO shall furnish such
required information to DMAS, the Attorney General of Virginia or his
authorized representatives, or the State Medicaid Fraud Control Unit on request
and in the form requested.
2. Each MCO shall have written policies regarding member
rights and shall comply with any applicable federal and state laws that pertain
to member rights and shall ensure that its staff and affiliated providers take
those rights into account when furnishing services to members in accordance
with 42 CFR 438.100.
E. The MCO shall ensure that the health care provided to its
members meets all applicable federal and state mandates, community standards
for quality, and standards developed pursuant to the DMAS managed care quality
F. The MCOs shall promptly provide or arrange for the
provision of all required services as specified in the contract between the
Commonwealth and the MCO. Medical evaluations shall be available within 48
hours for urgent care and within 30 calendar days for routine care. On-call
clinicians shall be available 24 hours per day, seven days per week.
G. The MCOs shall meet standards specified by DMAS for
sufficiency of provider networks as specified in the contract between the
Commonwealth and the MCO.
H. Each MCO and its subcontractors shall have in place, and
follow, written policies and procedures for processing requests for initial and
continuing authorizations of service. Each MCO and its subcontractors shall
ensure that any decision to deny a service authorization request or to
authorize a service in an amount, duration, or scope that is less than
requested, be made by a health care professional who has appropriate clinical
expertise in treating the member's condition or disease. Each MCO and its
subcontractors shall have in effect mechanisms to ensure consistent application
of review criteria for authorization decisions and shall consult with the
requesting provider when appropriate.
I. In accordance with 42 CFR 447.50 through 42 CFR
447.60, MCOs shall not impose any cost sharing obligations on members except as
set forth in 12VAC30-20-150 and 12VAC30-20-160.
J. An MCO may not prohibit, or otherwise restrict, a health
care professional acting within the lawful scope of practice, from advising or
advocating on behalf of a member who is his patient in accordance with 42 CFR
K. An MCO that would otherwise be required to reimburse for
or provide coverage of a counseling or referral service is not required to do
so if the MCO objects to the service on moral or religious grounds and
furnishes information about the service it does not cover in accordance with 42
VA.R. Doc. No. R17-5009; Filed February 23, 2017, 8:47 a.m.