Title of Regulation: 12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services (amending 12VAC35-105-675).

Statutory Authority: § 37.2-203 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 6, 2019.

Effective Date: March 21, 2019.

Agency Contact: Emily Bowles, Legal Coordinator, Office of Licensing, Department of Behavioral Health and Developmental Services, 1220 Bank Street, P.O. Box 1797, Richmond, VA 23218, telephone (804) 225-3281, FAX (804) 692-0066, TTY (804) 371-8977, or email emily.bowles@dbhds.virginia.gov.

Basis: Sections 37.2-203 and 37.2-304 of the Code of Virginia authorize the State Board of Behavioral Health and Developmental Services to adopt regulations that may be necessary to carry out the provisions of Title 37.2 of the Code of Virginia and other laws of the Commonwealth administered by the commissioner and the Department of Behavioral Health and Developmental Services (DBHDS).

Purpose: DBHDS and the Department of Medical Assistance Services (DMAS) regulations concerning reviews of individual service plans are not aligned, which creates an unnecessary situation in which service providers must adhere to two separate requirements for the same practice. The proposed change will align DBHDS and DMAS regulations as to when a quarterly review or a revised assessment of an individualized services plan (ISP) must be documented. The amendment will allow practitioners to follow the same process rather than two different processes, which will decrease administrative burdens and allow more time to provide services. By decreasing administrative burden through the adjusted timeframe, providers are allowed more time to thoroughly prepare and document the ISP review and changes to the ISP, which will potentially benefit the health and safety of an individual receiving services by ensuring all information is in place to inform a treatment team of an individual's specific needs.

Rationale for Using Fast-Track Rulemaking Process: The amendments are noncontroversial. Input from providers indicates support for this change, and any change that aligns DMAS and DBHDS regulations results in more effective and efficient business and administrative processes.

Substance: Providers licensed by DBHDS are currently required to review the ISP at least every three months from the date of its implementation or whenever there is a revised assessment based upon the individual's changing needs or goals. There is no allowance for additional administrative time to document the review, as is allowed in DMAS regulations. Such administrative "grace periods" are not uncommon.

By amending the current licensing regulations at 12VAC35-105-675, providers will be allowed to provide documentation of each quarterly review or a revised assessment in the individual's record "no later than 15 calendar days from the date the review was due to be completed." The amendments do not change the current quarterly deadline for the review.

Issues: The advantage for the public and the DBHDS system will be that providers can more efficiently use their time because the regulations will no longer conflict. There are no identified disadvantages to the public or the Commonwealth in making this change.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Behavioral Health and Developmental Services (Board) proposes to allow mental health providers a 15-day grace period for documentation of Individualized Services Plans (ISP).

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

Estimated Economic Impact. Currently, mental health providers serving Medicaid patients are allowed under the Medicaid regulations¹ a 15-day grace period to document ISPs. ISPs are updated quarterly or whenever there is a revised assessment based on an individual's changing needs or goals. However, this regulation currently does not provide a grace period for documentation of such reviews, creating a misalignment between Medicaid and Board rules. As a result, Board-licensed providers currently have less time to document the review compared to what is allowed by Medicaid. The Board now proposes to also provide a 15-day grace period so that the providers are subject to the same due dates.

The proposed change is expected to allow more flexibility to the mental health providers licensed through the Board and serving Medicaid population as they will have more time to complete documentation of their reviews. The flexibility provided by this regulation could reduce compliance costs (e.g., possibly reducing the need for overtime pay for staff reviewing ISPs). Also, according to the Department of Behavioral Health and Developmental Services (DBHDS), noncompliance with this documentation requirement has resulted in citations during regular inspections. Therefore, a reduction in citations regarding timeliness of documentation of ISPs is expected.

The proposed amendment would not affect services received by those individuals with an ISP. Given the increased flexibility and reduction in citations for providers, and no adverse elements associated with the 15-day grace period, the proposal would likely produce a net benefit.

Businesses and Entities Affected. According to DBHDS, there are more than 100,000 individuals whose ISPs are reviewed on a regular basis by 3,313 licensed service providers most of which are likely small businesses.

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

Projected Impact on Employment. The proposed amendment should not have any effect on total employment.

Effects on the Use and Value of Private Property. The proposed amendment is unlikely to affect the use and value of private property.

Real Estate Development Costs. The proposed amendment does not affect real estate development costs.

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 amendment is expected to provide more flexibility in documentation of ISPs, and therefore could reduce compliance costs.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not adversely affect businesses.

Localities. The proposed amendment does not adversely affect localities.

Other Entities. The proposed amendment does not adversely affect other entities.

_____________

¹12VAC30-50-226

Agency's Response to Economic Impact Analysis: The agency concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

The amendments create a 15-day grace period within which providers must document a quarterly review of or a revised assessment to an individualized services plan, aligning the regulation with Medicaid timeframe requirements.

12VAC35-105-675. Reassessments and ISP reviews.

A. Reassessments shall be completed at least annually and when there is a need based on the medical, psychiatric, or behavioral status of the individual.

B. The provider shall update the ISP at least annually. The provider shall complete a quarterly review of the ISP at least every three months from the date of the implementation of the ISP or whenever there is a revised assessment based upon the individual's changing needs or goals. These reviews shall evaluate the individual's progress toward meeting the plan's goals and objectives and the continued relevance of the ISP's objectives and strategies. The provider shall update the goals, objectives, and strategies contained in the ISP, if indicated, and implement any updates made. Documentation of each review shall be added to the individual's record no later than 15 calendar days from the date the review was due to be completed.