Title of Regulation: 12VAC30-130. Amount, Duration, and Scope of Selected Services (repealing 12VAC30-130-3000 through 12VAC30-130-3030).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 6, 2019.

Effective Date: February 21, 2019.

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 emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the State 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 State 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 for services.

Purpose: This purpose of this action is to repeal the regulations associated with the Virginia Independent Clinical Assessment Program (VICAP), which ended on November 30, 2016. The action supports the public health, safety, and welfare by removing outdated, unnecessary regulations from the Virginia Administrative Code and providing improved access to care for qualified Medicaid members.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action is being promulgated as a fast-track rulemaking action because it is not expected to be controversial. DMAS reduced the number of provider obligations when it ended the VICAP program, and repealing these regulations is a clean-up item.

Substance: VICAP was created in 2011 to better manage access to select Medicaid-funded community mental health rehabilitative (CMHR) services, such as intensive in-home, therapeutic day treatment, and mental health support services, for children and adults up to age 21. The community services boards (CSBs) served as partners with the Commonwealth, conducting VICAP assessments during the time period that the VICAP was required for service authorization of select CMHR services.

Based on a comprehensive review of the behavior health services administrator's (BHSA) administrative functions, which include medical necessity review, level of care assessments, and authorization of services, and a DMAS evaluation of data relative to VICAP assessments, it was determined in August 2016 that the VICAP was no longer needed to ensure appropriate access to services. Providers were notified in a DMAS Memorandum dated August 30, 2016, that the VICAP assessment would do longer be required as of December 1, 2016.

As of today, these functions are performed by the Commonwealth Coordinated Care Plus Medicaid managed care organizations for their enrolled members. The BHSA continues to perform these functions for individuals enrolled in fee-for-service and individuals enrolled in the Medallion 3.0 and Family Access to Medical Insurance Security programs, until those individuals are rolled into the Medallion 4.0 program, beginning on August 1, 2018.

Issues: The primary advantages of this action, to both the public and the agency, are the removal of outdated, unnecessary regulations from the Virginia Administrative Code and improved access to care for qualified Medicaid members.

These changes create no disadvantages to the public, the agency, the Commonwealth, or the regulated community.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medical Assistance Services (Board) proposes to repeal the regulation for the Virginia Independent Clinical Assessment Program (VICAP).

Result of Analysis. The benefits likely exceed the costs for the proposed regulation.

Estimated Economic Impact. The board proposes to repeal the VICAP regulation. The VICAP was designed to better manage access to several Community Mental Health Rehabilitative Services (CMHRS) by requiring providers to obtain an independent clinical assessment to determine that these CMHRS services were clinically appropriate. These services were Intensive In-Home Services, Therapeutic Day Treatment, and Mental Health Skill Building for individuals up to the age of 21.

The VICAP was implemented in 2011 as an interim measure until the Department of Medical Assistance Services (DMAS) could finalize a contract with a behavioral health services administrator (BHSA). The community services boards (CSBs) were partners with the Commonwealth conducting VICAP assessments. In fiscal year 2016, a monthly average of 1,700 unique members were assessed for services at a cost of $5.2 million.

In a memo to providers dated August 30, 2016, DMAS concluded:¹

Based on a comprehensive review of Magellan's [BHSA] current administrative functions and the Department's evaluation of data relative to VICAP assessments, DMAS has determined that the VICAP is no longer needed to ensure appropriate access to services. Given Magellan's functions including medical necessity review, level of care assessment, and authorization of services, the role previously fulfilled by CSBs can now be fulfilled by Magellan within its existing process. Therefore, starting December 1, 2016, VICAP assessments will not be required to access Medicaid community mental health services and DMAS will not reimburse for VICAPs conducted on or after December 1, 2016.

In lieu of a VICAP assessment, CMH providers will document medical necessity for each individual in accordance with specific service definitions as defined in the Magellan agreement and DMAS provider policy manuals.

Since the termination of the VICAP in 2016, as allowed in the budget mandates of Item 301 OO and Item 301 PP of Chapter 665 of the 2015 Acts of Assembly,² DMAS allocated the funds to be used in standardizing the care coordination requirements for individuals needing a residential level of care. This was the implementation of the Independent Assessment and Care Coordination Team (IACCT) on July 1, 2017.

DMAS has also been in the process of transitioning the CMHRS services into contracted Medicaid Managed Care Organizations (MCOs). Responsibility for the management of CMHRS services for individuals enrolled in Commonwealth Coordinated Care (CCC) Plus was transitioned from the BHSA to the CCC Plus MCOs on January 1, 2018. CMHR services were included in the Medicaid Managed Care Program, Medallion 4.0, beginning on August 1, 2018 with regional rollouts. Individuals enrolled in the Medallion 3.0 Managed Care program and the Family Access to Medical Insurance Security (FAMIS) program will transition to Medallion 4.0 statewide by December 31, 2018.

Since the VICAP was effectively terminated in 2016, the repeal of this regulation is not expected to create any economic impact upon promulgation beyond improving the consistency between the regulatory language and the current practice. When the termination was implemented in 2016, however, VICAP expenditures received by CSBs until that time were effectively redirected to the contracted BHSA to help fund the IACCT process for children needing residential treatment. The BHSA, and starting January 1, 2018, the Medicaid MCOs are now fulfilling the functions including medical necessity review, level of care assessment and authorization of services.

Businesses and Entities Affected. The proposed repeal of the regulation is not expected to affect any specific entity upon promulgation but likely to benefit the public and the providers by improving the consistency between practice and regulatory language.

Localities Particularly Affected. The proposed regulation does not disproportionately affect particular localities.

Projected Impact on Employment. No impact on employment is expected upon promulgation.

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected upon promulgation.

Real Estate Development Costs. No impact on real estate development costs is expected upon promulgation.

Small Businesses:

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

The proposed regulation will not have costs and other effects on small businesses upon promulgation.

Alternative Method that Minimizes Adverse Impact. The proposed regulation will not adversely affect small businesses upon promulgation.

Adverse Impacts:

Businesses. The proposed regulation will not adversely affect businesses upon promulgation.

Localities. The proposed regulation will not adversely affect localities upon promulgation.

Other Entities. The proposed regulation will not adversely affect other entities upon promulgation.

__________________________

¹https://www.ecm.virginiamedicaid.dmas.virginia.gov/WorkplaceXT/getContent?impersonate=true&id=%7b78F5CC12-BA98-48C8-9429-084A813E1976%7d&vsId=%7bB114AB78-512B-42F6-ACD9-F87A630D8C54%7d&objectType=document&objectStoreName=VAPRODOS1

²https://budget.lis.virginia.gov/item/2015/1/HB1400/Chapter/1/301/

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.

Summary:

The action repeals the regulations associated with the Virginia Independent Clinical Assessment Program, which ended on November 30, 2016.

Part XVIII
Behavioral Health Services (Repeal)

12VAC30-130-3000. Behavioral health services. (Repealed.)

A. Behavioral health services that shall be covered only for individuals from birth through 21 years of age are set out in 12VAC30-50-130 B 5 and include: (i) intensive in-home services (IIH), (ii) therapeutic day treatment (TDT), (iii) community based services for children and adolescents (Level A), and (iv) therapeutic behavioral services (Level B).

B. Behavioral health services that shall be covered for individuals regardless of age are set out in 12VAC30-50-226 and include: (i) day treatment/partial hospitalization, (ii) psychosocial rehabilitation, (iii) crisis intervention, (iv) case management as set out in 12VAC30-50-420 and 12VAC30-50-430, (v) intensive community treatment (ICT), (vi) crisis stabilization services, and (vii) mental health support services (MHSS).

12VAC30-130-3010. Definitions. (Repealed.)

The following words and terms when used in these regulations shall have the following meanings unless the context clearly indicates otherwise:

"Behavioral health authority" or "BHA" means the local agency that administers services set out in § 37.2-601 of the Code of Virginia.

"Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS.

"Community services board" or "CSB" means the local agency that administers services set out in § 37.2-500 of the Code of Virginia.

"DMAS" means the Department of Medical Assistance Services.

"Independent assessor" means a professional who performs the independent clinical assessment who may be employed by either the behavioral health services administrator, community services boards/behavioral health authorities (CSBs/BHAs) or their subcontractors.

"Independent clinical assessment" or "ICA" means the assessment that is performed under contract with DMAS either by the behavioral health services administrator or the CSB/BHA, or its subcontractor, prior to the initiation of (i) intensive in-home (IIH) services or therapeutic day treatment (TDT) as set out in 12VAC30-50-130 and (ii) mental health support services (MHSS) for children and adolescents (MHSS) as set out in 12VAC30-50-226.

"VICAP" means the form entitled Virginia Independent Clinical Assessment Program that is required to record an individual's independent clinical assessment information.

12VAC30-130-3020. Independent clinical assessment requirements; behavioral health level of care determinations and service eligibility. (Repealed.)

A. The independent clinical assessment (ICA), as set forth in the Virginia Independent Assessment Program (VICAP-001) form, shall contain the Medicaid individual-specific elements of information and data that shall be required for an individual younger than the age of 21 to be approved for intensive in-home (IIH) services, therapeutic day treatment (TDT), or mental health support services (MHSS) or any combination thereof. Eligibility requirements for IIH are in 12VAC30-50-130 B 5 b. Eligibility requirements for TDT are in 12VAC30-50-130 B 5 c. Eligibility requirements for MHSS are in 12VAC30-50-226 B 8.

1. The required elements in the ICA shall be specified in the VICAP form with either the BHSA or CSBs/BHAs and DMAS.

2. Service recommendations set out in the ICA shall not be subject to appeal.

B. Independent clinical assessment requirements.

1. Effective July 18, 2011, an ICA shall be required as a part of the service authorization process for Medicaid and Family Access to Medical Insurance Security (FAMIS) intensive in-home (IIH) services, therapeutic day treatment (TDT), or mental health support services (MHSS) for individuals up to the age of 21. This ICA shall be performed prior to the request for service authorization and initiation of treatment for individuals who are not currently receiving or authorized for services. The ICA shall be completed prior to the service provider conducting an intake or providing treatment.

a. Each individual shall have at least one ICA prior to the initiation of either IIH or TDT, or MHSS for individuals up to the age of 21.

b. For individuals who are already receiving IIH services or TDT, or MHSS, as of July 18, 2011, the requirement for a completed ICA shall be effective for service reauthorizations for dates of services on and after September 1, 2011.

c. Individuals who are being discharged from residential treatment (DMAS service Levels A, B, or C) or inpatient psychiatric hospitalization do not need an ICA prior to receiving community IIH services or TDT, or MHSS. They shall be required, however, to have an ICA as part of the first subsequent service reauthorization for IIH services, TDT, MHSS, or any combination thereof.

2. The ICA shall be completed and submitted to DMAS or its service authorization contractor by the independent assessor prior to the service provider submitting the service authorization or reauthorization request to the DMAS service authorization contractor. Failure to meet these requirements shall result in the provider's service authorization or reauthorization request being returned to the provider.

3. A copy of the ICA shall be retained in the service provider's individual's file.

4. If a service provider receives a request from parents or legal guardians to provide IIH services, TDT, or MHSS for individuals who are younger than 21 years of age, the service provider shall refer the parent or legal guardian to the BHSA or the local CSB/BHA to obtain the ICA prior to providing services.

a. In order to provide services, the service provider shall be required to conduct a service-specific provider intake as defined in 12VAC30-50-130.

b. If the selected service provider concurs that the child meets criteria for the service recommended by the independent assessor, the selected service provider shall submit a service authorization request to DMAS service authorization contractor. The service-specific provider's intake for IIH services, TDT, or MHSS shall not occur prior to the completion of the ICA by the BHSA or CSB/BHA, or its subcontractor.

c. If within 30 days after the ICA a service provider identifies the need for services that were not recommended by the ICA, the service provider shall contact the independent assessor and request a modification. The request for a modification shall be based on a significant change in the individual's life that occurred after the ICA was conducted. Examples of a significant change may include, but shall not be limited to, hospitalization; school suspension or expulsion; death of a significant other; or hospitalization or incarceration of a parent or legal guardian.

d. If the independent assessment is greater than 30 days old, a new ICA must be obtained prior to the initiation of IIH services, TDT, or MHSS for individuals younger than 21 years of age.

e. If the parent or legal guardian disagrees with the ICA recommendation, the parent or legal guardian may appeal the recommendation in accordance with Part I (12VAC30-110-10 et seq.) In the alternative, the parent or legal guardian may request that a service provider perform his own evaluation. If after conducting a service-specific provider intake the service provider identifies additional documentation previously not submitted for the ICA that demonstrates the service is medically necessary and clinically indicated, the service provider may submit the supplemental information with a service authorization request to the DMAS service authorization contractor. The DMAS service authorization contractor will review the service authorization submission and the ICA and make a determination. If the determination results in a service denial, the individual, parent or legal guardian, and service provider will be notified of the decision and their appeal rights pursuant to Part I (12VAC30-110-10 et seq.).

5. If the individual is in immediate need of treatment, the independent clinical assessor shall refer the individual to the appropriate enrolled Medicaid emergency services providers in accordance with 12VAC30-50-226 and shall also alert the individual's managed care organization.

C. Requirements for behavioral health services administrator and community services boards/behavioral health authorities.

1. When the BHSA, CSB, or BHA has been contacted by the parent or legal guardian, the ICA appointment shall be offered within five business days of a request for IIH services and within 10 business days for a request for TDT or MHSS, or both. The appointment may be scheduled beyond the respective time frame at the documented request of the parent or legal guardian.

2. The independent assessor shall conduct the ICA with the individual and the parent or legal guardian using the VICAP-001 form and make a recommendation for the most appropriate medically necessary services, if indicated. Referring or treating providers shall not be present during the assessment but may submit supporting clinical documentation to the assessor.

3. The ICA shall be effective for a 30-day period.

4. The independent assessor shall enter the findings of the ICA into the DMAS service authorization contractor's web portal within one business day of conducting the assessment. The independent clinical assessment form (VICAP-001) shall be completed by the independent assessor within three business days of completing the ICA.

D. The individual or his parent or legal guardian shall have the right to freedom of choice of service providers.

12VAC30-130-3030. Application to services. (Repealed.)

A. Intensive in-home (IIH) services.

1. Prior to the provision of IIH services, an independent clinical assessment shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is either employed by or contracted with a behavioral health services administrator (BHSA), community services board (CSB), behavioral health authority (BHA), or a subcontractor to the BHSA, CSB, or BHA in accordance with DMAS approval.

2. IIH services that are rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

B. Therapeutic day treatment (TDT) services.

1. Prior to the provision of TDT services, an independent clinical assessment shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is employed by or contracted with a BHSA, CSB, BHA, or the subcontractor of the BHSA, CSB, or BHA in accordance with DMAS approval.

2. TDT services that are rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

C. Mental health support services (MHSS).

1. Prior to the provision of MHSS, an independent clinical assessment, as defined in 12VAC30-130-3010, shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is employed by or contracted with a BHSA, CSB or BHA, or a subcontractor of a BHSA, CSB, or BHA in accordance with DMAS approval.

2. MHSS rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

D. Other Medicaid-covered community mental health services. DMAS may apply the independent clinical assessment requirement to any of the other Medicaid-covered community mental health services set out in 12VAC30-50-130 and 12VAC30-50-226 with appropriate and timely notice to providers. In such situations, DMAS shall not deny coverage to providers' claims for these affected services absent at least a 30-day notice of this change.