The Virginia Register OF
REGULATIONS is an official state publication issued every other week
throughout the year. Indexes are published quarterly, and are cumulative for
the year. The Virginia Register has several functions. The new and
amended sections of regulations, both as proposed and as finally adopted, are
required by law to be published in the Virginia Register. In addition,
the Virginia Register is a source of other information about state
government, including petitions for rulemaking, emergency regulations,
executive orders issued by the Governor, and notices of public hearings on
regulations.
ADOPTION,
AMENDMENT, AND REPEAL OF REGULATIONS
An
agency wishing to adopt, amend, or repeal regulations must first publish in the
Virginia Register a notice of intended regulatory action; a basis,
purpose, substance and issues statement; an economic impact analysis prepared
by the Department of Planning and Budget; the agency’s response to the economic
impact analysis; a summary; a notice giving the public an opportunity to
comment on the proposal; and the text of the proposed regulation.
Following
publication of the proposal in the Virginia Register, the promulgating agency
receives public comments for a minimum of 60 days. The Governor reviews the
proposed regulation to determine if it is necessary to protect the public
health, safety and welfare, and if it is clearly written and easily
understandable. If the Governor chooses to comment on the proposed regulation,
his comments must be transmitted to the agency and the Registrar no later than
15 days following the completion of the 60-day public comment period. The
Governor’s comments, if any, will be published in the Virginia Register.
Not less than 15 days following the completion of the 60-day public comment
period, the agency may adopt the proposed regulation.
The
Joint Commission on Administrative Rules (JCAR) or the appropriate standing
committee of each house of the General Assembly may meet during the
promulgation or final adoption process and file an objection with the Registrar
and the promulgating agency. The objection will be published in the Virginia
Register. Within 21 days after receipt by the agency of a legislative
objection, the agency shall file a response with the Registrar, the objecting
legislative body, and the Governor.
When
final action is taken, the agency again publishes the text of the regulation as
adopted, highlighting all changes made to the proposed regulation and
explaining any substantial changes made since publication of the proposal. A
30-day final adoption period begins upon final publication in the Virginia
Register.
The
Governor may review the final regulation during this time and, if he objects,
forward his objection to the Registrar and the agency. In addition to or in
lieu of filing a formal objection, the Governor may suspend the effective date
of a portion or all of a regulation until the end of the next regular General
Assembly session by issuing a directive signed by a majority of the members of
the appropriate legislative body and the Governor. The Governor’s objection or
suspension of the regulation, or both, will be published in the Virginia
Register. If the Governor finds that changes made to the proposed
regulation have substantial impact, he may require the agency to provide an
additional 30-day public comment period on the changes. Notice of the
additional public comment period required by the Governor will be published in
the Virginia Register.
The
agency shall suspend the regulatory process for 30 days when it receives
requests from 25 or more individuals to solicit additional public comment,
unless the agency determines that the changes have minor or inconsequential
impact.
A
regulation becomes effective at the conclusion of the 30-day final adoption
period, or at any other later date specified by the promulgating agency, unless
(i) a legislative objection has been filed, in which event the regulation,
unless withdrawn, becomes effective on the date specified, which shall be after
the expiration of the 21-day objection period; (ii) the Governor exercises his
authority to require the agency to provide for additional public comment, in
which event the regulation, unless withdrawn, becomes effective on the date
specified, which shall be after the expiration of the period for which the
Governor has provided for additional public comment; (iii) the Governor and the
General Assembly exercise their authority to suspend the effective date of a
regulation until the end of the next regular legislative session; or (iv) the
agency suspends the regulatory process, in which event the regulation, unless
withdrawn, becomes effective on the date specified, which shall be after the
expiration of the 30-day public comment period and no earlier than 15 days from
publication of the readopted action.
A
regulatory action may be withdrawn by the promulgating agency at any time
before the regulation becomes final.
FAST-TRACK
RULEMAKING PROCESS
Section
2.2-4012.1 of the Code of Virginia provides an exemption from certain
provisions of the Administrative Process Act for agency regulations deemed by
the Governor to be noncontroversial. To use this process, Governor's
concurrence is required and advance notice must be provided to certain
legislative committees. Fast-track regulations will become effective on the
date noted in the regulatory action if no objections to using the process are
filed in accordance with § 2.2-4012.1.
EMERGENCY
REGULATIONS
Pursuant
to § 2.2-4011 of the Code of Virginia, an agency, upon consultation
with the Attorney General, and at the discretion of the Governor, may adopt
emergency regulations that are necessitated by an emergency situation. An
agency may also adopt an emergency regulation when Virginia statutory law or
the appropriation act or federal law or federal regulation requires that a
regulation be effective in 280 days or less from its enactment. The emergency regulation becomes operative upon its adoption
and filing with the Registrar of Regulations, unless a later date is specified.
Emergency regulations are limited to no more than 18 months in duration;
however, may be extended for six months under certain circumstances as provided
for in § 2.2-4011 D. Emergency regulations are published as soon as
possible in the Register.
During
the time the emergency status is in effect, the agency may proceed with the
adoption of permanent regulations through the usual procedures. To begin
promulgating the replacement regulation, the agency must (i) file the Notice of
Intended Regulatory Action with the Registrar within 60 days of the effective
date of the emergency regulation and (ii) file the proposed regulation with the
Registrar within 180 days of the effective date of the emergency regulation. If
the agency chooses not to adopt the regulations, the emergency status ends when
the prescribed time limit expires.
STATEMENT
The
foregoing constitutes a generalized statement of the procedures to be followed.
For specific statutory language, it is suggested that Article 2 (§ 2.2-4006
et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined
carefully.
CITATION
TO THE VIRGINIA REGISTER
The Virginia
Register is cited by volume, issue, page number, and date. 34:8 VA.R.
763-832 December 11, 2017, refers to Volume 34, Issue 8, pages 763 through
832 of the Virginia Register issued on
December 11, 2017.
The
Virginia Register of Regulations is
published pursuant to Article 6 (§ 2.2-4031 et seq.) of Chapter 40 of
Title 2.2 of the Code of Virginia.
Members
of the Virginia Code Commission: John
S. Edwards, Chair; James A. "Jay" Leftwich, Vice Chair;
Ryan T. McDougle; Nicole Cheuk; Rita Davis; Leslie L. Lilley; Thomas
M. Moncure, Jr.; Christopher R. Nolen; Charles S. Sharp; Samuel T. Towell; Malfourd
W. Trumbo; Mark J. Vucci.
Staff
of the Virginia Register: Karen
Perrine, Registrar of Regulations; Anne Bloomsburg, Assistant
Registrar; Nikki Clemons, Regulations Analyst; Rhonda Dyer,
Publications Assistant; Terri Edwards, Senior Operations Staff
Assistant.
PUBLICATION SCHEDULE AND DEADLINES
Vol. 35 Iss. 24 - July 22, 2019
August 2019 through August 2020
Volume: Issue
|
Material Submitted By Noon*
|
Will Be Published On
|
35:26
|
July 31, 2019
|
August 19, 2019
|
36:1
|
August 14, 2019
|
September 2, 2019
|
36:2
|
August 28, 2019
|
September 16, 2019
|
36:3
|
September 11, 2019
|
September 30, 2019
|
36:4
|
September 25, 2019
|
October 14, 2019
|
36:5
|
October 9, 2019
|
October 28, 2019
|
36:6
|
October 23, 2019
|
November 11, 2019
|
36:7
|
November 6, 2019
|
November 25, 2019
|
36:8
|
November 18, 2019 (Monday)
|
December 9, 2019
|
36:9
|
December 4, 2019
|
December 23, 2019
|
36:10
|
December 18, 2019
|
January 6, 2020
|
36:11
|
January 1, 2020
|
January 20, 2020
|
36:12
|
January 15, 2020
|
February 3, 2020
|
36:13
|
January 29, 2020
|
February 17, 2020
|
36:14
|
February 12. 2020
|
March 2, 2020
|
36:15
|
February 26, 2020
|
March 16, 2020
|
36:16
|
March 11, 2020
|
March 30, 2020
|
36:17
|
March 25, 2020
|
April 13, 2020
|
36:18
|
April 8, 2020
|
April 27, 2020
|
36:19
|
April 22. 2020
|
May 11, 2020
|
36:20
|
May 6, 2020
|
May 25, 2020
|
36:21
|
May 20, 2020
|
June 8, 2020
|
36:22
|
June 3, 2020
|
June 22, 2020
|
36:23
|
June 17, 2020
|
July 6, 2020
|
36:24
|
July 1, 2020
|
July 20, 2020
|
36:25
|
July 15, 2020
|
August 3, 2020
|
*Filing deadlines are Wednesdays
unless otherwise specified.
PETITIONS FOR RULEMAKING
Vol. 35 Iss. 24 - July 22, 2019
TITLE
11. GAMING
CHARITABLE GAMING BOARD
Agency Decision
Title of Regulation: 11VAC15-40.
Charitable Gaming Regulations.
Statutory Authority: § 18.2-340.15 of the Code of
Virginia.
Name of Petitioner: Nathan A. Freels, Powerhouse Gaming.
Nature of Petitioner's Request: Petitioner requests that
the Charitable Gaming Board amend Charitable Gaming Regulations to allow
"for the calculation of Use of Proceeds be adjusted such that electronic
pulltabs are calculated as 2% of the charitable gaming gross receipts
specifically realized from the use of electronic pulltabs."
Agency Decision: Request denied.
Statement of Reason for Decision: The Charitable Gaming
Board (board) voted to take no action on the petitioner's request for
rulemaking for the following reason:
In 2018, the board created a workgroup to evaluate use of
proceeds and to consider whether changes to the current structure are
appropriate and necessary. It is premature for the board to interject itself
into this evaluation until the workgroup has completed its work. Though the board
voted to take no action on the petition, the workgroup will consider the
specific idea brought forth in the petition for rulemaking as it deliberates
over use of proceeds.
Agency Contact: Michael Menefee, Program Manager,
Charitable and Regulatory Programs, Department of Agriculture and Consumer
Services, 102 Governor Street, Richmond, VA 23219, telephone (804) 786-3983, or
email michael.menefee@cdacs.virginia.gov.
VA.R. Doc. No. R19-26; Filed July 1, 2019, 5:56 p.m.
w –––––––––––––––––– w
TITLE
24 TRANSPORTATION AND MOTOR VEHICLES
COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM
Agency Decision
Title of Regulation: 24VAC35-30.
VASAP Case Management Policy and Procedure Manual.
Statutory Authority: §§ 18.2-271.1 and 18.2-271.2
of the Code of Virginia.
Name of Petitioner: Cynthia Ellen Hites.
Nature of Petitioner's Request: "I, Cynthia Ellen
Hites, as a citizen of the Commonwealth of Virginia, pursuant to
§ 2.2-4007 of the Code of Virginia, do humbly submit this petition for the
following amendment to Virginia Administrative Code 24VAC35-30-150 (VASAP
Policy and Procedures Manual). Currently, the law states the following: Section
150, Paragraph A: 'Noncompliance reporting. When the offender has been deemed
noncompliant by the case manager, that case manager, within five working days,
shall notify in writing the referring court or agency and the offender.' As of
now, no penalty exists to the caseworker for breech of this law. With no
adverse effect to the caseworker, or ASAP director, respectively, for failing
to fulfill their duties, ASAP caseworkers can effectively operate with impunity
regarding the time allotted them to notify [the] offender and court of
noncompliance. There are no penalties established for the incidences of
caseworker error or malfeasance that result in restart of [an] ignition
interlock sentence, or force [the] offender to reappear in court to face
further punishment. I propose the following language be adopted, in lieu of the
current: 'A. Noncompliance reporting. When the offender has been deemed
noncompliant by the case manager, that case manager, within five working days,
shall notify in writing the referring court or agency and the offender. If
[the] caseworker fails to notify in writing both parties, within five working
days, the instance of noncompliance shall not be considered, and the offender
shall incur no penalty.'"
Agency Decision: Request denied.
Statement of Reason for Decision: During its June 7,
2019, meeting, the Commission on VASAP denied this petition, taking no action
for the following reasons:
1) Failure of a case manager to report noncompliance promptly
should not exonerate a client for violation of a probationary requirement;
however, it might be considered in mitigation.
2) Whenever there is any malfeasance by a case manager, or a
failure to otherwise perform required duties, any corrective or disciplinary
action of the ASAP employee is a personnel matter best handled on a
case-by-case basis to account for the specific circumstances.
3) ASAP case managers are not state employees. Thus, any
employee consequences pertaining to job performance must be addressed by the
local ASAP director and policy board and should not be included in state
regulations.
Agency Contact: Richard Foy, Field Services Specialist,
Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin
Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, or email rfoy@vasap.virginia.gov.
VA.R. Doc. No. R19-25; Filed June 20, 2019, 4:55 p.m.
NOTICES OF INTENDED REGULATORY ACTION
Vol. 35 Iss. 24 - July 22, 2019
TITLE 18. PROFESSIONAL AND OCCUPATIONALLICENSING
Regulations Governing the Practice of Nursing
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of the
Code of Virginia that the Board of Nursing intends to consider amending 18VAC90-19,
Regulations Governing the Practice of Nursing. The purpose of the proposed
action is to initiate rulemaking in response to a petition for rulemaking from
the Virginia Association of Clinical Nurse Specialists, which requested changes
to regulations relating to registration of a clinical nurse specialist. The
board intends to amend 18VAC90-19-210 to clarify that the board will accept for
registration evidence of a clinical nurse specialist certification that has
been retired or is the core certification, provided the certification has been
maintained and is current. Likewise, a retired or core certification that
remains current qualifies a clinical nurse specialist to renew registration.
The agency does not intend to hold a public hearing on the
proposed action after publication in the Virginia Register.
Statutory Authority: §§ 54.1-2400 and 54.1-3005 of the
Code of Virginia.
Public Comment Deadline: August 21, 2019.
Agency Contact: Jay P. Douglas, R.N., Executive
Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233,
telephone (804) 367-4520, FAX (804) 527-4455, or email
jay.douglas@dhp.virginia.gov.
VA.R. Doc. No. R19-28; Filed July 1, 2019, 8:12 p.m.
TITLE 22. SOCIAL SERVICES
Grants to Area Agencies on Aging
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of the
Code of Virginia that the Department for Aging and Rehabilitative Services
intends to consider amending 22VAC30-60, Grants to Area Agencies on Aging.
The purpose of the proposed action is to update and clarify the chapter, which
prescribes the requirements for a state-designated area agency on aging in
Virginia to receive federal and state funds for various programs, including
those for nutrition services, care coordination, legal assistance, and
information and referral services.
This Notice of Intended Regulatory Action serves as the report
of the findings of the regulatory review pursuant to § 2.2-4007.1 of the
Code of Virginia.
The agency does not intend to hold a public hearing on the
proposed action after publication in the Virginia Register.
Statutory Authority: § 51.5-131 of the Code of
Virginia; 42 USC § 3001 et seq.
Public Comment Deadline: August 21, 2019.
Agency Contact: Charlotte Arbogast, Policy Advisor,
Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive,
Richmond, VA 23229, telephone (804) 662-7063, FAX (804) 662-7663, TTY (800)
464-9950, or email charlotte.arbogast@dars.virginia.gov.
VA.R. Doc. No. R19-6060; Filed June 25, 2019, 10:00 a.m.
REGULATIONS
Vol. 35 Iss. 24 - July 22, 2019
TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Final Regulation
Title of Regulation: 2VAC5-115. Regulations for
Determining Whether a Facility Meets the Purpose of Finding Permanent Adoptive
Homes for Animals (adding 2VAC5-115-10, 2VAC5-115-20,
2VAC5-115-30).
Statutory Authority: § 3.2-6501 of the Code of
Virginia; Chapter 319 of the 2016 Acts of Assembly.
Effective Date: August 22, 2019.
Agency Contact: Dr. Kathryn MacDonald, Program Manager,
Animal Care and Emergency Response, Department of Agriculture and Consumer
Services, 102 Governor Street, Richmond, VA 23219, telephone (804) 692-4001,
FAX (804) 371-2380, or email kathryn.macdonald@vdacs.virginia.gov.
Summary:
Pursuant to Chapter 319 of the 2016 Acts of Assembly, which
directed the Board of Agriculture and Consumer Services to promulgate a
regulation to determine whether a private animal shelter meets the purpose of
finding permanent adoptive homes for animals, the new chapter establishes
provisions for making such a determination.
Summary of Public Comments and Agency's Response: A
summary of comments made by the public and the agency's response may be
obtained from the promulgating agency or viewed at the office of the Registrar
of Regulations.
CHAPTER 115
REGULATIONS FOR DETERMINING WHETHER A FACILITY MEETS THE PURPOSE OF FINDING
PERMANENT ADOPTIVE HOMES FOR ANIMALS
2VAC5-115-10. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Facility" means a building or portion thereof
as designated by the State Veterinarian, other than a private residential
dwelling and its surrounding grounds, that is used to contain primary
enclosures in which animals are housed or kept.
"Foster care provider" means a person who
provides care or rehabilitation for companion animals through an affiliation
with a public or private animal shelter, home-based rescue, releasing agency,
or other animal welfare organization.
"Private animal shelter" means a facility
operated for the purpose of finding permanent adoptive homes for animals that
is used to house or contain animals and that is owned or operated by an
incorporated, nonprofit, and nongovernmental entity, including a humane
society, animal welfare organization, society for the prevention of cruelty to
animals, or any other similar organization.
"Releasing agency" means (i) a public animal
shelter or (ii) a private animal shelter, humane society, animal welfare
organization, society for the prevention of cruelty to animals, or other
similar entity or home-based rescue that releases companion animals for
adoption.
2VAC5-115-20. Meeting the purpose of finding permanent
adoptive homes for animals.
A facility that is operated for the purpose of finding
permanent adoptive homes for animals shall annually (i) find permanent adoptive
homes for animals and (ii) conduct at least three of the following activities:
1. Be accessible to the public to view animals available
for adoption;
2. Advertise to the general public animals that are
available for adoption;
3. Transfer animals available for adoption to a releasing
agency;
4. Utilize a foster care provider for animals temporarily
awaiting placement in permanent adoptive homes; or
5. Offer services to the public in an effort to keep
animals in their permanent homes.
2VAC5-115-30. Failure to meet requirements.
Failure to meet the requirements in this chapter will
result in the State Veterinarian or the State Veterinarian's representative
determining that the facility does not operate for the purpose of finding
permanent adoptive homes for animals and is not a private animal shelter.
VA.R. Doc. No. R17-4927; Filed June 27, 2019, 4:40 p.m.
TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Forms
Forms
REGISTRAR'S
NOTICE: Forms used in administering the regulation have been filed by the
agency. The forms are not being published; however, online users of this issue
of the Virginia Register of Regulations may click on the name of a form with a
hyperlink to access it. The forms are also available from the agency contact or
may be viewed at the Office of the Registrar of Regulations, 900 East Main
Street, 11th Floor, Richmond, Virginia 23219.
Titles of Regulations:
2VAC5-670. Regulations Governing Pesticide Product Registration, Handling,
Storage, and Disposal under Authority of the Virginia Pesticide Control Act.
2VAC5-675. Regulations
Governing Pesticide Fees Charged by the Department of Agriculture and Consumer
Services.
2VAC5-680. Regulations
Governing Licensing of Pesticide Businesses Operating under Authority of the
Virginia Pesticide Control Act.
2VAC5-685. Regulations
Governing Pesticide Applicator Certification under Authority of Virginia
Pesticide Control Act.
Contact Information: Liza Fleeson Trossbach, Program
Manager, Office of Pesticide Services, Department of Agriculture and Consumer
Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559, or email
liza.fleeson@vdacs.virginia.gov.
FORMS (2VAC5-670)
Application for New Pesticide Product Registration, VDACS
07208 (rev. 9/2014)
Application
for New Pesticide Product Registration/Additional Information and Instructions,
VDACS-07208 (rev. 7/2019)
FORMS (2VAC5-675)
Application for New Pesticide Product
Registration/Additional Information and Instructions, VDACS-07208 (rev. 7/2017)
Application for Virginia Pesticide Business License to
sell, distribute, store, apply, or recommend pesticides for use, VDACS-07209
(rev. 7/2017)
Application for Reciprocal Pesticide Applicator
Certificate/Commercial Pesticide Applicator Categories, VDACS-07210 (rev.
7/2017)
Commercial Pesticide Applicator Certification
Application/Eligibility Requirements for Commercial Applicator Certification,
VDACS-07211 (rev. 7/2017)
Pesticide Registered Technician Application/General
Training Requirements for Registered Technicians, VDACS-07212-A (rev.
7/2018)
Pesticide Registered Technician Request for Authorization
to Take Pesticide Applicator Examination, VDACS-07212-B (eff. 7/2018)
Commercial Pesticide Applicator Request for Authorization
to Take Pesticide Applicator Examination/Commercial Pesticide Applicator
Categories, VDACS-07218 (rev. 7/2017)
Application
for New Pesticide Product Registration/Additional Information and Instructions,
VDACS-07208 (rev. 7/2019)
Application
for Virginia Pesticide Business License to sell, distribute, store, apply, or
recommend pesticides for use, VDACS-07209 (rev. 7/2019)
Application
for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator
Categories, VDACS-07210 (rev. 7/2019)
Commercial
Pesticide Applicator Certification Application/Eligibility Requirements for
Commercial Applicator Certification, VDACS-07211 (rev. 7/2019)
Pesticide
Registered Technician Application/General Training Requirements for Registered
Technicians, VDACS-07212A (rev. 7/2019)
Pesticide
Registered Technician Request for Authorization to Take Pesticide Applicator
Examination, VDACS-07212B (rev. 7/2019)
Commercial
Pesticide Applicator Request for Authorization to Take Pesticide Applicator
Examination/Commercial Pesticide Applicator Categories, VDACS-07218 (rev.
7/2019)
FORMS (2VAC5-680)
Application for Virginia Pesticide Business License, Form
VDACS-07209 (rev. 9/06).
Application
for Virginia Pesticide Business License to sell, distribute, store, apply, or
recommend pesticides for use, VDACS-07209 (rev. 7/2019)
Certificate of Insurance, Form VDACS-07214 (rev. 4/96).
Request to take the Virginia Pesticide Business License
Examination (rev. 1/09)
Request
to take the Virginia Pesticide Business License Examination (rev. 7/2019)
FORMS (2VAC5-685)
Commercial Pesticide Applicator Certification Application
- A, Form VDACS-07211 (rev. 9/2016)
Commercial Pesticide Applicator Request for Authorization
to Take Pesticide Applicator Examination - B, Form VDACS-07218 (rev. 9/2016)
Commercial
Pesticide Applicator Certification Application - A, Form VDACS-07211 (rev.
7/2019)
Commercial
Pesticide Applicator Request for Authorization to Take Pesticide Applicator
Examination - B, Form VDACS-07218 (rev. 7/2019)
Commercial Pesticide Applicator
Certification Exam bubble answer sheet, 2003
Private Pesticide Applicator
Certification Exam bubble answer sheet, 2003
Private Pesticide Applicator
Request for Authorization to Take Pesticide Applicator Examination at
Department of Motor Vehicles Customer Service Center (eff. 1/2009)
Power of Attorney (rev. 9/2016)
Proof of Additional Category
Specific Training for Registered Technicians (rev. 8/2016)
Application for Reciprocal
Pesticide Applicator Certificate, Form VDACS-07210 (rev. 9/2016)
Pesticide Registered
Technician Application Form - RT-A, Form VDACS-07212-A (rev. 9/2016)
Pesticide Registered
Technician Request for Authorization to Take Pesticide Applicator Examination –
RT-B, Form VDACS-07212-B (eff. 9/2016)
Application
for Reciprocal Pesticide Applicator Certificate, Form VDACS-07210 (rev. 7/2019)
Pesticide
Registered Technician Application Form - RT-A, Form VDACS-07212-A (rev. 7/2019)
Pesticide
Registered Technician Request for Authorization to Take Pesticide Applicator
Examination – RT-B, Form VDACS-07212-B (rev. 7/2019)
VA.R. Doc. No. R19-6080; Filed July 11, 2019, 8:51 a.m.
TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Forms
Forms
REGISTRAR'S
NOTICE: Forms used in administering the regulation have been filed by the
agency. The forms are not being published; however, online users of this issue
of the Virginia Register of Regulations may click on the name of a form with a
hyperlink to access it. The forms are also available from the agency contact or
may be viewed at the Office of the Registrar of Regulations, 900 East Main
Street, 11th Floor, Richmond, Virginia 23219.
Titles of Regulations:
2VAC5-670. Regulations Governing Pesticide Product Registration, Handling,
Storage, and Disposal under Authority of the Virginia Pesticide Control Act.
2VAC5-675. Regulations
Governing Pesticide Fees Charged by the Department of Agriculture and Consumer
Services.
2VAC5-680. Regulations
Governing Licensing of Pesticide Businesses Operating under Authority of the
Virginia Pesticide Control Act.
2VAC5-685. Regulations
Governing Pesticide Applicator Certification under Authority of Virginia
Pesticide Control Act.
Contact Information: Liza Fleeson Trossbach, Program
Manager, Office of Pesticide Services, Department of Agriculture and Consumer
Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559, or email
liza.fleeson@vdacs.virginia.gov.
FORMS (2VAC5-670)
Application for New Pesticide Product Registration, VDACS
07208 (rev. 9/2014)
Application
for New Pesticide Product Registration/Additional Information and Instructions,
VDACS-07208 (rev. 7/2019)
FORMS (2VAC5-675)
Application for New Pesticide Product
Registration/Additional Information and Instructions, VDACS-07208 (rev. 7/2017)
Application for Virginia Pesticide Business License to
sell, distribute, store, apply, or recommend pesticides for use, VDACS-07209
(rev. 7/2017)
Application for Reciprocal Pesticide Applicator
Certificate/Commercial Pesticide Applicator Categories, VDACS-07210 (rev.
7/2017)
Commercial Pesticide Applicator Certification
Application/Eligibility Requirements for Commercial Applicator Certification,
VDACS-07211 (rev. 7/2017)
Pesticide Registered Technician Application/General
Training Requirements for Registered Technicians, VDACS-07212-A (rev.
7/2018)
Pesticide Registered Technician Request for Authorization
to Take Pesticide Applicator Examination, VDACS-07212-B (eff. 7/2018)
Commercial Pesticide Applicator Request for Authorization
to Take Pesticide Applicator Examination/Commercial Pesticide Applicator
Categories, VDACS-07218 (rev. 7/2017)
Application
for New Pesticide Product Registration/Additional Information and Instructions,
VDACS-07208 (rev. 7/2019)
Application
for Virginia Pesticide Business License to sell, distribute, store, apply, or
recommend pesticides for use, VDACS-07209 (rev. 7/2019)
Application
for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator
Categories, VDACS-07210 (rev. 7/2019)
Commercial
Pesticide Applicator Certification Application/Eligibility Requirements for
Commercial Applicator Certification, VDACS-07211 (rev. 7/2019)
Pesticide
Registered Technician Application/General Training Requirements for Registered
Technicians, VDACS-07212A (rev. 7/2019)
Pesticide
Registered Technician Request for Authorization to Take Pesticide Applicator
Examination, VDACS-07212B (rev. 7/2019)
Commercial
Pesticide Applicator Request for Authorization to Take Pesticide Applicator
Examination/Commercial Pesticide Applicator Categories, VDACS-07218 (rev.
7/2019)
FORMS (2VAC5-680)
Application for Virginia Pesticide Business License, Form
VDACS-07209 (rev. 9/06).
Application
for Virginia Pesticide Business License to sell, distribute, store, apply, or
recommend pesticides for use, VDACS-07209 (rev. 7/2019)
Certificate of Insurance, Form VDACS-07214 (rev. 4/96).
Request to take the Virginia Pesticide Business License
Examination (rev. 1/09)
Request
to take the Virginia Pesticide Business License Examination (rev. 7/2019)
FORMS (2VAC5-685)
Commercial Pesticide Applicator Certification Application
- A, Form VDACS-07211 (rev. 9/2016)
Commercial Pesticide Applicator Request for Authorization
to Take Pesticide Applicator Examination - B, Form VDACS-07218 (rev. 9/2016)
Commercial
Pesticide Applicator Certification Application - A, Form VDACS-07211 (rev.
7/2019)
Commercial
Pesticide Applicator Request for Authorization to Take Pesticide Applicator
Examination - B, Form VDACS-07218 (rev. 7/2019)
Commercial Pesticide Applicator
Certification Exam bubble answer sheet, 2003
Private Pesticide Applicator
Certification Exam bubble answer sheet, 2003
Private Pesticide Applicator
Request for Authorization to Take Pesticide Applicator Examination at
Department of Motor Vehicles Customer Service Center (eff. 1/2009)
Power of Attorney (rev. 9/2016)
Proof of Additional Category
Specific Training for Registered Technicians (rev. 8/2016)
Application for Reciprocal
Pesticide Applicator Certificate, Form VDACS-07210 (rev. 9/2016)
Pesticide Registered
Technician Application Form - RT-A, Form VDACS-07212-A (rev. 9/2016)
Pesticide Registered
Technician Request for Authorization to Take Pesticide Applicator Examination –
RT-B, Form VDACS-07212-B (eff. 9/2016)
Application
for Reciprocal Pesticide Applicator Certificate, Form VDACS-07210 (rev. 7/2019)
Pesticide
Registered Technician Application Form - RT-A, Form VDACS-07212-A (rev. 7/2019)
Pesticide
Registered Technician Request for Authorization to Take Pesticide Applicator
Examination – RT-B, Form VDACS-07212-B (rev. 7/2019)
VA.R. Doc. No. R19-6080; Filed July 11, 2019, 8:51 a.m.
TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Forms
Forms
REGISTRAR'S
NOTICE: Forms used in administering the regulation have been filed by the
agency. The forms are not being published; however, online users of this issue
of the Virginia Register of Regulations may click on the name of a form with a
hyperlink to access it. The forms are also available from the agency contact or
may be viewed at the Office of the Registrar of Regulations, 900 East Main
Street, 11th Floor, Richmond, Virginia 23219.
Titles of Regulations:
2VAC5-670. Regulations Governing Pesticide Product Registration, Handling,
Storage, and Disposal under Authority of the Virginia Pesticide Control Act.
2VAC5-675. Regulations
Governing Pesticide Fees Charged by the Department of Agriculture and Consumer
Services.
2VAC5-680. Regulations
Governing Licensing of Pesticide Businesses Operating under Authority of the
Virginia Pesticide Control Act.
2VAC5-685. Regulations
Governing Pesticide Applicator Certification under Authority of Virginia
Pesticide Control Act.
Contact Information: Liza Fleeson Trossbach, Program
Manager, Office of Pesticide Services, Department of Agriculture and Consumer
Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559, or email
liza.fleeson@vdacs.virginia.gov.
FORMS (2VAC5-670)
Application for New Pesticide Product Registration, VDACS
07208 (rev. 9/2014)
Application
for New Pesticide Product Registration/Additional Information and Instructions,
VDACS-07208 (rev. 7/2019)
FORMS (2VAC5-675)
Application for New Pesticide Product
Registration/Additional Information and Instructions, VDACS-07208 (rev. 7/2017)
Application for Virginia Pesticide Business License to
sell, distribute, store, apply, or recommend pesticides for use, VDACS-07209
(rev. 7/2017)
Application for Reciprocal Pesticide Applicator
Certificate/Commercial Pesticide Applicator Categories, VDACS-07210 (rev.
7/2017)
Commercial Pesticide Applicator Certification
Application/Eligibility Requirements for Commercial Applicator Certification,
VDACS-07211 (rev. 7/2017)
Pesticide Registered Technician Application/General
Training Requirements for Registered Technicians, VDACS-07212-A (rev.
7/2018)
Pesticide Registered Technician Request for Authorization
to Take Pesticide Applicator Examination, VDACS-07212-B (eff. 7/2018)
Commercial Pesticide Applicator Request for Authorization
to Take Pesticide Applicator Examination/Commercial Pesticide Applicator
Categories, VDACS-07218 (rev. 7/2017)
Application
for New Pesticide Product Registration/Additional Information and Instructions,
VDACS-07208 (rev. 7/2019)
Application
for Virginia Pesticide Business License to sell, distribute, store, apply, or
recommend pesticides for use, VDACS-07209 (rev. 7/2019)
Application
for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator
Categories, VDACS-07210 (rev. 7/2019)
Commercial
Pesticide Applicator Certification Application/Eligibility Requirements for
Commercial Applicator Certification, VDACS-07211 (rev. 7/2019)
Pesticide
Registered Technician Application/General Training Requirements for Registered
Technicians, VDACS-07212A (rev. 7/2019)
Pesticide
Registered Technician Request for Authorization to Take Pesticide Applicator
Examination, VDACS-07212B (rev. 7/2019)
Commercial
Pesticide Applicator Request for Authorization to Take Pesticide Applicator
Examination/Commercial Pesticide Applicator Categories, VDACS-07218 (rev.
7/2019)
FORMS (2VAC5-680)
Application for Virginia Pesticide Business License, Form
VDACS-07209 (rev. 9/06).
Application
for Virginia Pesticide Business License to sell, distribute, store, apply, or
recommend pesticides for use, VDACS-07209 (rev. 7/2019)
Certificate of Insurance, Form VDACS-07214 (rev. 4/96).
Request to take the Virginia Pesticide Business License
Examination (rev. 1/09)
Request
to take the Virginia Pesticide Business License Examination (rev. 7/2019)
FORMS (2VAC5-685)
Commercial Pesticide Applicator Certification Application
- A, Form VDACS-07211 (rev. 9/2016)
Commercial Pesticide Applicator Request for Authorization
to Take Pesticide Applicator Examination - B, Form VDACS-07218 (rev. 9/2016)
Commercial
Pesticide Applicator Certification Application - A, Form VDACS-07211 (rev.
7/2019)
Commercial
Pesticide Applicator Request for Authorization to Take Pesticide Applicator
Examination - B, Form VDACS-07218 (rev. 7/2019)
Commercial Pesticide Applicator
Certification Exam bubble answer sheet, 2003
Private Pesticide Applicator
Certification Exam bubble answer sheet, 2003
Private Pesticide Applicator
Request for Authorization to Take Pesticide Applicator Examination at
Department of Motor Vehicles Customer Service Center (eff. 1/2009)
Power of Attorney (rev. 9/2016)
Proof of Additional Category
Specific Training for Registered Technicians (rev. 8/2016)
Application for Reciprocal
Pesticide Applicator Certificate, Form VDACS-07210 (rev. 9/2016)
Pesticide Registered
Technician Application Form - RT-A, Form VDACS-07212-A (rev. 9/2016)
Pesticide Registered
Technician Request for Authorization to Take Pesticide Applicator Examination –
RT-B, Form VDACS-07212-B (eff. 9/2016)
Application
for Reciprocal Pesticide Applicator Certificate, Form VDACS-07210 (rev. 7/2019)
Pesticide
Registered Technician Application Form - RT-A, Form VDACS-07212-A (rev. 7/2019)
Pesticide
Registered Technician Request for Authorization to Take Pesticide Applicator
Examination – RT-B, Form VDACS-07212-B (rev. 7/2019)
VA.R. Doc. No. R19-6080; Filed July 11, 2019, 8:51 a.m.
TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Forms
Forms
REGISTRAR'S
NOTICE: Forms used in administering the regulation have been filed by the
agency. The forms are not being published; however, online users of this issue
of the Virginia Register of Regulations may click on the name of a form with a
hyperlink to access it. The forms are also available from the agency contact or
may be viewed at the Office of the Registrar of Regulations, 900 East Main
Street, 11th Floor, Richmond, Virginia 23219.
Titles of Regulations:
2VAC5-670. Regulations Governing Pesticide Product Registration, Handling,
Storage, and Disposal under Authority of the Virginia Pesticide Control Act.
2VAC5-675. Regulations
Governing Pesticide Fees Charged by the Department of Agriculture and Consumer
Services.
2VAC5-680. Regulations
Governing Licensing of Pesticide Businesses Operating under Authority of the
Virginia Pesticide Control Act.
2VAC5-685. Regulations
Governing Pesticide Applicator Certification under Authority of Virginia
Pesticide Control Act.
Contact Information: Liza Fleeson Trossbach, Program
Manager, Office of Pesticide Services, Department of Agriculture and Consumer
Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559, or email
liza.fleeson@vdacs.virginia.gov.
FORMS (2VAC5-670)
Application for New Pesticide Product Registration, VDACS
07208 (rev. 9/2014)
Application
for New Pesticide Product Registration/Additional Information and Instructions,
VDACS-07208 (rev. 7/2019)
FORMS (2VAC5-675)
Application for New Pesticide Product
Registration/Additional Information and Instructions, VDACS-07208 (rev. 7/2017)
Application for Virginia Pesticide Business License to
sell, distribute, store, apply, or recommend pesticides for use, VDACS-07209
(rev. 7/2017)
Application for Reciprocal Pesticide Applicator
Certificate/Commercial Pesticide Applicator Categories, VDACS-07210 (rev.
7/2017)
Commercial Pesticide Applicator Certification
Application/Eligibility Requirements for Commercial Applicator Certification,
VDACS-07211 (rev. 7/2017)
Pesticide Registered Technician Application/General
Training Requirements for Registered Technicians, VDACS-07212-A (rev.
7/2018)
Pesticide Registered Technician Request for Authorization
to Take Pesticide Applicator Examination, VDACS-07212-B (eff. 7/2018)
Commercial Pesticide Applicator Request for Authorization
to Take Pesticide Applicator Examination/Commercial Pesticide Applicator
Categories, VDACS-07218 (rev. 7/2017)
Application
for New Pesticide Product Registration/Additional Information and Instructions,
VDACS-07208 (rev. 7/2019)
Application
for Virginia Pesticide Business License to sell, distribute, store, apply, or
recommend pesticides for use, VDACS-07209 (rev. 7/2019)
Application
for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator
Categories, VDACS-07210 (rev. 7/2019)
Commercial
Pesticide Applicator Certification Application/Eligibility Requirements for
Commercial Applicator Certification, VDACS-07211 (rev. 7/2019)
Pesticide
Registered Technician Application/General Training Requirements for Registered
Technicians, VDACS-07212A (rev. 7/2019)
Pesticide
Registered Technician Request for Authorization to Take Pesticide Applicator
Examination, VDACS-07212B (rev. 7/2019)
Commercial
Pesticide Applicator Request for Authorization to Take Pesticide Applicator
Examination/Commercial Pesticide Applicator Categories, VDACS-07218 (rev.
7/2019)
FORMS (2VAC5-680)
Application for Virginia Pesticide Business License, Form
VDACS-07209 (rev. 9/06).
Application
for Virginia Pesticide Business License to sell, distribute, store, apply, or
recommend pesticides for use, VDACS-07209 (rev. 7/2019)
Certificate of Insurance, Form VDACS-07214 (rev. 4/96).
Request to take the Virginia Pesticide Business License
Examination (rev. 1/09)
Request
to take the Virginia Pesticide Business License Examination (rev. 7/2019)
FORMS (2VAC5-685)
Commercial Pesticide Applicator Certification Application
- A, Form VDACS-07211 (rev. 9/2016)
Commercial Pesticide Applicator Request for Authorization
to Take Pesticide Applicator Examination - B, Form VDACS-07218 (rev. 9/2016)
Commercial
Pesticide Applicator Certification Application - A, Form VDACS-07211 (rev.
7/2019)
Commercial
Pesticide Applicator Request for Authorization to Take Pesticide Applicator
Examination - B, Form VDACS-07218 (rev. 7/2019)
Commercial Pesticide Applicator
Certification Exam bubble answer sheet, 2003
Private Pesticide Applicator
Certification Exam bubble answer sheet, 2003
Private Pesticide Applicator
Request for Authorization to Take Pesticide Applicator Examination at
Department of Motor Vehicles Customer Service Center (eff. 1/2009)
Power of Attorney (rev. 9/2016)
Proof of Additional Category
Specific Training for Registered Technicians (rev. 8/2016)
Application for Reciprocal
Pesticide Applicator Certificate, Form VDACS-07210 (rev. 9/2016)
Pesticide Registered
Technician Application Form - RT-A, Form VDACS-07212-A (rev. 9/2016)
Pesticide Registered
Technician Request for Authorization to Take Pesticide Applicator Examination –
RT-B, Form VDACS-07212-B (eff. 9/2016)
Application
for Reciprocal Pesticide Applicator Certificate, Form VDACS-07210 (rev. 7/2019)
Pesticide
Registered Technician Application Form - RT-A, Form VDACS-07212-A (rev. 7/2019)
Pesticide
Registered Technician Request for Authorization to Take Pesticide Applicator
Examination – RT-B, Form VDACS-07212-B (rev. 7/2019)
VA.R. Doc. No. R19-6080; Filed July 11, 2019, 8:51 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
BOARD OF GAME AND INLAND FISHERIES
Proposed Regulation
REGISTRAR'S NOTICE: The
Board of Game and Inland Fisheries is claiming an exemption from the
Administrative Process Act pursuant to § 29.1-701 E of the Code of
Virginia, which provides that the board shall promulgate regulations to
supplement Chapter 7 (§ 29.1-700 et seq.) of Title 29.1 of the Code of
Virginia as prescribed in Article 1 (§ 29.1-500 et seq.) of Chapter 5 of
Title 29.1 of the Code of Virginia.
Title of Regulation: 4VAC15-380. Watercraft:
Motorboat Numbering (amending 4VAC15-380-110).
Statutory Authority: §§ 29.1-701 and 29.1-710 of the
Code of Virginia.
Public Hearing Information:
August 22, 2019 - 9 a.m. - Department of Game and Inland
Fisheries, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228
Public Comment Deadline: July 31, 2019.
Agency Contact: Aaron Proctor, Regulations Coordinator,
Department of Game and Inland Fisheries, 7870 Villa Park Drive, Suite 400,
Henrico, VA 23228, telephone (804) 367-8341, or email
aaron.proctor@dgif.virginia.gov.
Summary:
The proposed amendment adds the definition of "tender
vessel."
4VAC15-380-110. Lifeboats and tender vessels defined.
The term "lifeboat" as used in § 29.1-710 of the
Code of Virginia shall mean a boat used exclusively as a lifesaving device
during times of emergency.
The term "tender vessel" as authorized under §
29.1-710 of the Code of Virginia shall mean a vessel equipped with propulsion
machinery of less than 10 horsepower that:
1. Is owned by the owner of a vessel for which a valid
certificate of number has been issued;
2. Displays the number of the owner's vessel as prescribed
in 4VAC15-380-30 followed by the suffix "1"; and
3. Is used as a tender for direct transportation between
that vessel and the shore and for no other purpose.
VA.R. Doc. No. R19-6051; Filed June 27, 2019, 2:36 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
BOARD OF GAME AND INLAND FISHERIES
Proposed Regulation
REGISTRAR'S NOTICE: The
Board of Game and Inland Fisheries is claiming an exemption from the
Administrative Process Act pursuant to § 29.1-701 E of the Code of
Virginia, which provides that the board shall promulgate regulations to
supplement Chapter 7 (§ 29.1-700 et seq.) of Title 29.1 of the Code of
Virginia as prescribed in Article 1 (§ 29.1-500 et seq.) of Chapter 5 of
Title 29.1 of the Code of Virginia.
Title of Regulation: 4VAC15-430. Watercraft: Safety
Equipment Requirements (amending 4VAC15-430-20 through 4VAC15-430-50).
Statutory Authority: §§ 29.1-701 and 29.1-735 of the
Code of Virginia.
Public Hearing Information:
August 22, 2019 - 9 a.m. - Department of Game and Inland
Fisheries, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228
Public Comment Deadline: July 31, 2019.
Agency Contact: Aaron Proctor, Regulations Coordinator,
Department of Game and Inland Fisheries, 7870 Villa Park Drive, Suite 400,
Henrico, VA 23228, telephone (804) 367-8341, or email
aaron.proctor@dgif.virginia.gov.
Summary:
The proposed amendments update requirements for personal
flotation devices to align with federal regulations.
4VAC15-430-20. Definitions.
As used in this chapter the following words and terms shall
have the following meanings:
"Coastal waters" means the territorial seas of the
United States, and those waters directly connected to the territorial seas
(i.e., bays, sounds, harbors, rivers, inlets, etc.) where any entrance exceeds
two nautical miles between opposite shorelines to the first point where the
largest distance between shorelines narrows to two miles, as shown on the
current edition of the appropriate National Ocean Service chart used for
navigation. Shorelines of islands or points of land present within a waterway
are considered when determining the distance between opposite shorelines.
"Passenger" means every person carried on board a
vessel other than:
1. The owner or his representative;
2. The operator;
3. Bona fide members of the crew engaged in the business of
the vessel who have contributed no consideration for their carriage and who are
paid for their services; or
4. Any guest on board a vessel that is being used exclusively
for pleasure purposes who has not contributed any consideration, directly or
indirectly, for his carriage.
"Personal flotation device" or "PFD"
means a device that is approved by the U.S. Coast Guard.
"Racing shell, rowing scull, racing canoe, and racing
kayak" means a manually propelled vessel that is recognized by national or
international racing associations for use in competitive racing and one in
which all occupants row, scull, or paddle, with the exception of a coxswain, if
one is provided, and is not designed to carry and does not carry any equipment
not solely for competitive racing.
"Recreational vessel" means any vessel being
manufactured or operated primarily for pleasure, or leased, rented, or
chartered to another for the latter's pleasure. It does not include any vessel
engaged in the carrying of any passengers for consideration.
"Sailboard" means a sail-propelled vessel with no
freeboard and equipped with a swivel-mounted mast not secured to a hull by guys
or stays.
"Throwable PFD" means a PFD that is intended to
be thrown to a person in the water. A PFD marked as Type IV or Type V with Type
IV performance is considered a throwable PFD unless specifically marked
otherwise. A wearable PFD is not a throwable PFD.
"Use" means operate, navigate, or employ.
"Vessel" means every description of watercraft,
other than a seaplane on the water, used or capable of being used as a means of
transportation on water, but does not include surfboards, tubes, swimming
rafts, inflatable toys and similar devices routinely used as water toys or
swimming aids.
"Visual distress signal" means a device that is
approved by the U.S. Coast Guard or certified by the manufacturer.
"Wearable PFD" means a PFD that is intended to
be worn or otherwise attached to the body. A PFD marked as Type I, Type II,
Type III, or Type V with Type I, II, or III performance is considered a
wearable PFD.
4VAC15-430-30. Personal flotation devices required.
A. Except as provided in 4VAC15-430-40, it shall be unlawful
to use a recreational vessel unless at least one PFD of the following types
is on board for each person:
1. Type I PFD At least one wearable PFD is on board
for each person;
2. Type II PFD Each PFD is used in accordance with
any requirements on the approval label; or and
3. Type III PFD Each PFD is used in accordance with
any requirements in its owner's manual if the approval label makes reference to
such a manual.
B. Except as provided in 4VAC15-430-40, it shall be unlawful
to use a recreational vessel of 16 feet or greater unless one Type IV throwable
PFD is on board in addition to the total number of PFDs required in subsection
A of this section.
C. Notwithstanding the provisions of § 29.1-742 of the Code
of Virginia, it shall be unlawful to operate a personal watercraft unless each
person riding on the personal watercraft or being towed by it is wearing a Type
I, Type II, Type III or Type V PFD wearable PFD that is approved for
such activity.
4VAC15-430-40. Personal flotation device exemptions.
A. A Type V PFD may be used in lieu of any PFD required
under 4VAC15-430-30, provided:
1. The approval label on the Type V PFD indicates that the
device is approved:
a. For the activity in which the vessel is being used; or
b. As a substitute for a PFD of the type required on the
vessel in use;
2. The PFD is used in accordance with any requirements on
the approval label;
3. The PFD is used in accordance with requirements in its
owner's manual, if the approval label makes reference to such a manual; and
4. The PFD is being worn.
B. A. The following vessels are exempted
from the requirements for carriage of the additional Type IV not
required to carry an additional throwable PFD required by 4VAC15-430-30.
1. Personal watercraft.
2. Nonmotorized canoes and kayaks 16 feet in length and over.
3. Racing shells, rowing sculls, racing canoes, and racing
kayaks.
4. Sailboards.
5. Vessels of the United States used by foreign competitors
while practicing for or racing in competition.
B. The following vessels are not required to carry any
PFD:
1. Racing shells, rowing sculls, racing canoes, and racing
kayaks while participating in or preparing and practicing for a race.
2. Sailboards.
C. Vessels of the United States used by foreign
competitors while practicing for or racing in competition are not required to
carry any PFD, provided the vessel carries one of the sponsoring foreign
country's acceptable flotation devices for each foreign competitor onboard.
4VAC15-430-50. Personal flotation device stowage.
A. It shall be unlawful to use a recreational vessel unless
each Type I, II, or III wearable PFD required by 4VAC15-430-30,
or equivalent type allowed by 4VAC15-430-40, is readily accessible.
"Readily accessible" means that PFDs are stowed where they can be
easily reached, or are out in the open ready for wear. A readily accessible PFD
cannot be in a protective covering or under lock and key.
B. It shall be unlawful to use a recreational vessel unless
each Type IV throwable PFD required by 4VAC15-430-30 of this
chapter is immediately available. "Immediately available" means the
PFD shall be quickly reachable in an emergency situation. An immediately
available PFD cannot be in a protective covering, in a closed compartment or
under other equipment.
VA.R. Doc. No. R19-6052; Filed June 27, 2019, 2:45 p.m.
TITLE 9. ENVIRONMENT
VIRGINIA WASTE MANAGEMENT BOARD
Final Regulation
REGISTRAR'S NOTICE: The
Virginia Waste Management Board is claiming an exemption from Article 2 of the
Administrative Process Act in accordance with § 2.2-4006 A 3, which
excludes regulations that consist only of changes in style or form or
corrections of technical errors, and an exemption from Article 2 of the
Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code
of Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations, provided such regulations do not
differ materially from those required by federal law or regulation. The
Virginia Waste Management Board will receive, consider, and respond to
petitions by any interested person at any time with respect to reconsideration
or revision.
Title of Regulation: 9VAC20-60. Virginia Hazardous
Waste Management Regulations (amending 9VAC20-60-18, 9VAC20-60-70,
9VAC20-60-260, 9VAC20-60-261, 9VAC20-60-264, 9VAC20-60-265, 9VAC20-60-266,
9VAC20-60-328, 9VAC20-60-1390, 9VAC20-60-1430, 9VAC20-60-1505).
Statutory Authority: § 10.1-1402 of the Code of
Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
Effective Date: August 23, 2019.
Agency Contact: Lisa A. Ellis, Coordinator, Hazardous
Waste Compliance Program, Department of Environmental Quality, 1111 East Main
Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804)
698-4237, or email lisa.ellis@deq.virginia.gov.
Summary:
The amendments incorporate the 2018 amendments to Title 40
of the Code of Federal Regulations into the regulation, not including the
provisions of the Environmental Protection Agency's (EPA) Response to Vacatur
of Certain Provisions of the Definition of Solid Waste Rule (83 FR 24664). The
amendments also incorporate EPA rules promulgated after July 1, 2018: (i) Safe
Management of Recalled Air Bags (83 FR 61552) and (ii) Management of Hazardous
Waste Pharmaceuticals and Amendment to the P075 Listing for Nicotine (84 FR
5816).
9VAC20-60-18. Applicability of incorporated references based on
the dates on which they became effective.
A. Except as noted, when a regulation of the United
States Environmental Protection Agency (EPA) set forth in Title 40 of
the Code of Federal Regulations is referenced and incorporated herein into
this chapter, that regulation shall be as it exists and has been published
in the July 1, 2017, update 2018 annual edition; however, the
incorporation by reference of Title 40 of the Code of Federal Regulations shall
not include the requirements of EPA's Response to Vacatur of Certain Provisions
of the Definition of Solid Waste Rule (83 FR 24664, May 30, 2018).
B. The references and incorporation of Title 40 of the
Code of Federal Regulations into this chapter also includes the following rules
promulgated by the United States Environmental Protection Agency after
publication of the July 1, 2018, annual edition of Title 40 of the Code of
Federal Regulations:
1. Safe Management of Recalled Air Bags (83 FR 61552,
November 30, 2018); and
2. Management of Hazardous Waste Pharmaceuticals Rule and
Amendment to the P075 Listing for Nicotine (84 FR 5816, February 22,
2019).
9VAC20-60-70. Public participation.
A. All regulations developed under the provisions of Title
10.1 of the Code of Virginia for hazardous waste management shall be developed
in accordance with the provisions of the Commonwealth of Virginia
Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and the
Virginia Waste Management Board Public Participation Guidelines, 9VAC20-10
9VAC20-11.
B. Modifications and revisions to all hazardous waste
management facility permits, except changes to interim status, shall be subject
to public participation in accordance with 9VAC20-60-270.
C. Modifications and revisions to this chapter shall be the
subject of public participation as specified by the Virginia Administrative
Process Act and the public participation guidelines of the board.
D. Dockets of all permitting actions, enforcement actions,
and administrative actions relative to this chapter shall be available to the
public for review, consistent with the Commonwealth of Virginia Administrative
Process Act, the Virginia Freedom of Information Act (§ 2.2-3700 et seq.
of the Code of Virginia), and the provisions of this chapter.
E. All reports and related materials received from hazardous
waste generators, transporters, and facilities, as required by this
chapter, shall be open to the public for review.
F. Public participation in the compliance evaluation and
enforcement programs is encouraged. The department will:
1. Investigate and provide written responses to all citizen complaints
addressed to the department;
2. Not oppose intervention by any citizen in a suit brought
before a court by the department as a result of the enforcement action; and
3. Publish a notice in major daily or weekly newspaper of
general circulation in the area and provide at least 30 days of public comment
on proposed settlements of civil enforcement actions except where the
settlement requires some immediate action.
9VAC20-60-260. Adoption of 40 CFR Part 260 by reference.
A. Except as otherwise provided, the regulations of the
United States Environmental Protection Agency set forth in 40 CFR Part 260
are hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations. Except as otherwise provided, all material definitions, reference
materials, and other ancillaries that are a part of 40 CFR Part 260 are also
hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations.
B. In all locations in these regulations where 40 CFR Part
260 is incorporated by reference, the following additions, modifications, and
exceptions shall amend the incorporated text for the purpose of its
incorporation into these regulations:
1. In 40 CFR 260.10, the term "Administrator" shall
mean the Administrator of the United States Environmental Protection Agency or
his designee.
2. In 40 CFR 260.10, the term "contained" shall be
appended by adding the following: (5) Hazardous secondary materials managed
under the exclusion provided in 40 CFR 261.4(a)(23) or (a)(24) shall not be
managed in a land-based unit unless the land-based unit meets the applicable
standards of 40 CFR Parts 260 through 270, as incorporated by reference, for
management of hazardous waste.
3. In 40 CFR 260.10, the term "EPA" shall mean the
United States Environmental Protection Agency.
4. In 40 CFR 260.10 the term "new tank system" and
"existing tank system," the reference to July 14, 1986, applies only
to tank regulations promulgated pursuant to federal Hazardous and Solid Waste
Amendment (HSWA) requirements. HSWA requirement categories include:
a. Interim status and permitting requirements applicable to
tank systems owned and operated by small quantity generators;
b. Leak detection requirements for all underground tank
systems for which construction commenced after July 14, 1986; and
c. Permitting standards for underground tanks that cannot be
entered for inspection.
For non-HSWA regulations, the reference date shall be January
1, 1998.
5. In 40 CFR 260.10, the term "Regional
Administrator" shall mean the Regional Administrator of Region III of the
United States Environmental Protection Agency or his designee.
6. In 40 CFR 260.10 definitions of the terms
"Person," "State," and "United States," the term
"state" shall have the meaning originally intended by the Code of
Federal Regulations and not be supplanted by "Commonwealth of
Virginia."
7. In 40 CFR 260.10 and wherever elsewhere in Title 40 of the
Code of Federal Regulations the term "universal waste" appears, it
shall be amended by addition of the following sentence: "In addition to
the hazardous wastes listed herein, the term "universal waste" shall
include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of
the Virginia Hazardous Waste Management Regulations as universal wastes, under
such terms and requirements as shall therein be ascribed."
8. Throughout 40 CFR 260.11(a), the terms "EPA" and
"U.S. Environmental Protection Agency" shall not be supplanted with
the term "Commonwealth of Virginia."
9. In Part XIV (9VAC20-60-1370 et seq.), the Virginia
Hazardous Waste Management Regulations contain provisions analogous to 40 CFR
260.30, 40 CFR 260.31, 40 CFR 260.32, 40 CFR 260.33, 40 CFR 260.34, 40 CFR
260.40, and 40 CFR 260.41. These sections of 40 CFR Part 260 are not
incorporated by reference and are not a part of the Virginia Hazardous Waste
Management Regulations.
10. Sections 40 CFR 260.2, 40 CFR 260.20, 40 CFR 260.21,
40 CFR 260.22, and 40 CFR 260.23 are not included in the incorporation of 40
CFR Part 260 by reference and are not a part of the Virginia Hazardous Waste
Management Regulations.
11. Appendix I to 40 CFR Part 260 is not incorporated by
reference and is not a part of the Virginia Hazardous Waste Management
Regulations.
12. In the 40 CFR 260.10 definitions of the terms "AES
filing compliance date," and "Electronic import-export reporting
compliance date," the term "EPA" shall have the meaning
originally intended by the Code of Federal Regulations and not be supplanted by
"Department of Environmental Quality."
13. In 40 CFR 260.4(a)(4) and 40 CFR 260.5(b)(2), the term
"EPA" shall be retained and shall mean the United States
Environmental Protection Agency. The term "EPA" shall not be
supplanted with "Department of Environmental Quality" as instructed
in 9VAC20-60-14 B 2.
14. The United States Environmental Protection Agency's
amendments to 40 CFR 260 by the Response to Vacatur of Certain Provisions of
the Definition of Solid Waste rule (83 FR 24664, May 30, 2018) shall not be
included in the incorporation by reference of 40 CFR 260 and are not part of
this chapter, 9VAC20-60; therefore, the incorporation of 40 CFR 260 is modified
as follows:
a. Retain 40 CFR 260.42 as it appears in EPA's Definition
of Solid Waste rule (80 FR 1694, January 13, 2015).
b. Retain 40 CFR 260.43 as it appears in EPA's Definition
of Solid Waste rule (80 FR 1694, January 13, 2015).
9VAC20-60-261. Adoption of 40 CFR Part 261 by reference.
A. Except as otherwise provided, the regulations of the
United States Environmental Protection Agency set forth in 40 CFR Part 261
are hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations. Except as otherwise provided, all material definitions, reference
materials, and other ancillaries that are a part of 40 CFR Part 261 are also
hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations.
B. In all locations in these regulations where 40 CFR Part
261 is incorporated by reference, the following additions, modifications, and
exceptions shall amend the incorporated text for the purpose of its
incorporation into these regulations this chapter:
1. Any agreements required by 40 CFR 261.4(b)(11)(ii) shall be
sent to the United States Environmental Protection Agency at the address
shown Waste Identification Branch (5304), U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460 and to the
Department of Environmental Quality, P.O. Box 1105, Richmond, Virginia 23218.
2. In 40 CFR 261.4(e)(3)(iii), the text "in the Region
where the sample is collected" shall be deleted.
3. In 40 CFR 261.4(f)(1), the term "Regional
Administrator" shall mean the Regional Administrator of Region III of the
United States Environmental Protection Agency or his designee.
4. In 40 CFR 261.6(a)(2), recyclable materials shall be
subject to the requirements of 9VAC20-60-270 and Part XII (9VAC20-60-1260 et
seq.) of this chapter.
5. Reserved.
6. In 40 CFR 261.9 and wherever elsewhere in Title 40 of the
Code of Federal Regulations there is a listing of universal wastes or a listing
of hazardous wastes that are the subject of provisions set out in 40 CFR Part
273 as universal wastes, it shall be amended by addition of the following
sentence: "In addition to the hazardous wastes listed here, the term
"universal waste" and all lists of universal waste or waste subject
to provisions of 40 CFR Part 273 shall include those hazardous wastes listed in
Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management
Regulations as universal wastes, in accordance with the terms and requirements
described."
7. In Subparts B and D of 40 CFR Part 261, the term
"Administrator" shall mean the Administrator of the United States
Environmental Protection Agency, and the term "Director" shall not
supplant "Administrator" throughout Subparts B and D.
8. For the purpose of this chapter, any solid waste is a
hazardous waste if it is defined to be hazardous waste under the laws or
regulations of the state in which it first became a solid waste.
9. In 40 CFR 261.6(c)(1) and 40 CFR 261.6(c)(2) mercury-containing
lamp recycling facilities must also comply with all applicable requirements of
9VAC20-60-264 B 34 and 9VAC20-60-265 B 21.
10. In Subpart E of 40 CFR Part 261, the term "EPA"
shall have the meaning originally intended by the Code of Federal Regulations
and not be supplanted by "Department of Environmental Quality."
11. In 40 CFR 261.2(a), reference to 40 CFR 260.30, 40 CFR
260.31, and 40 CFR 260.34 are replaced by analogous provisions of Part XIV
(9VAC20-60-1370 et seq.) of this chapter.
12. In 40 CFR 261.3(a)(2), reference to exclusion under 40 CFR
260.20 and 40 CFR 260.22 are not incorporated by reference.
13. In 40 CFR 261.21(f)(6)(i), the term "EPA"
shall be retained and shall mean the United States Environmental Protection
Agency. The term "EPA" shall not be supplanted with "Department
of Environmental Quality" as instructed in 9VAC20-60-14 B 2.
14. The United States Environmental Protection Agency's
(EPA's) amendments to 40 CFR 261 by the Response to Vacatur of Certain
Provisions of the Definition of Solid Waste Rule (83 FR 24664, May 30, 2018)
shall not be included in the incorporation by reference of 40 CFR 261 and are
not part of this chapter, 9VAC20-60; therefore, the incorporation of 40 CFR 261
is modified as follows:
a. Retain 40 CFR 261.4(a)(23) as it appears in EPA's
Definition of Solid Waste rule (80 FR 1694, January 13, 2015).
b. Retain 40 CFR 261.4(a)(24) as it appears in EPA's
Definition of Solid Waste rule (80 FR 1694, January 13, 2015).
c. Reserve 40 CFR 261.4(a)(25) as it appears in EPA's
Definition of Solid Waste rule (80 FR 1694, January 13, 2015).
9VAC20-60-264. Adoption of 40 CFR Part 264 by reference.
A. Except as otherwise provided, the regulations of the
United States Environmental Protection Agency set forth in 40 CFR Part 264 are
hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations. Except as otherwise provided, all material definitions, reference
materials and other ancillaries that are a part of 40 CFR Part 264 are also
hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations.
B. In all locations in these regulations where 40 CFR Part
264 is incorporated by reference, the following additions, modifications, and
exceptions shall amend the incorporated text for the purpose of its
incorporation into these regulations:
1. Sections 40 CFR 264.1(d), 40 CFR 264.1(f), 40 CFR
264.149, 40 CFR 264.150, 40 CFR 264.301(l), and Appendix VI are not
included in the incorporation of 40 CFR Part 264 by reference and are not a
part of the Virginia Hazardous Waste Management Regulations.
2. In 40 CFR 264.1(g)(11) and wherever elsewhere in Title 40
of the Code of Federal Regulations there is a listing of universal wastes or a
listing of hazardous wastes that are the subject of provisions set out in 40
CFR Part 273 as universal wastes, it shall be amended by addition of the
following sentence: "In addition to the hazardous wastes listed here, the
term "universal waste" and all lists of universal waste or waste subject
to provisions of 40 CFR Part 273 shall include those hazardous wastes
listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste
Management Regulations as universal wastes, in accordance with the terms and
requirements described."
3. In 40 CFR 264.12(a), the term "Regional
Administrator" shall mean the Regional Administrator of Region III of the
United States Environmental Protection Agency or his designee.
4. In 40 CFR 264.33, the following sentence shall be added to
the end of the paragraph: "A record of tests or inspections will be
maintained on a log at that facility or other reasonably accessible and
convenient location."
5. In addition to the notifications required by 40 CFR
264.56(d)(2), notification shall be made to the on-scene coordinator, the
National Response Center, and the Virginia Department of Emergency Management,
Emergency Operations Center. In the associated report filed under 40 CFR
264.56(i), the owner or operator shall include such other information
specifically requested by the director, which is reasonably necessary and
relevant to the purpose of an operating record.
6. In 40 CFR 264.93, "hazardous constituents" shall
include constituents identified in 40 CFR Part 264 Appendix IX in addition
to those in 40 CFR Part 261 Appendix VIII.
7. The federal text at 40 CFR 264.94(a)(2) is not incorporated
by reference. The following text shall be substituted for 40 CFR 264.94(a)(2):
"For any of the constituents for which the USEPA has established a Maximum
Contaminant Level (MCL) under the National Primary Drinking Water Regulation,
40 CFR Part 141 (regulations under the Safe Drinking Water Act), the
concentration must not exceed the value of the MCL; or."
8. The owner or operator must submit the detailed, written
closure cost estimate described in 40 CFR 264.142 upon the written request of
the director.
9. In 40 CFR 264.143(b)(1), 40 CFR 264.143(c)(1), 40 CFR
264.145(b)(1), and 40 CFR 264.145(c)(1), any surety company issuing surety
bonds to guarantee payment or performance must be licensed pursuant to Chapter
10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia.
10. In 40 CFR 264.143(b), 40 CFR 264.143(c), 40 CFR
264.145(b), and 40 CFR 264.145(c), any owner or operator demonstrating
financial assurance for closure or post-closure care using a surety bond shall
submit with the surety bond a copy of the deed book page documenting that the
power of attorney of the attorney-in-fact executing the bond has been recorded
pursuant to § 38.2-2416 of the Code of Virginia.
11. Where in 40 CFR 264.143(c)(5) the phrase "final
administrative determination pursuant to section 3008 of RCRA" appears, it
shall be replaced with "final determination pursuant to Chapter 40 (§
2.2-4000 et seq.) of Title 2.2 of the Code of Virginia."
12. The following text shall be substituted for 40 CFR
264.143(d)(8): "Following a final administrative determination pursuant to
Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia that the
owner or operator has failed to perform final closure in accordance with the
approved closure plan, the applicable regulations or other permit requirements
when required to do so, the director may draw on the letter of credit."
13. The following text shall be substituted for 40 CFR
264.143(e)(1): "An owner or operator may satisfy the requirements of this
section by obtaining closure insurance which conforms to the requirements of
this paragraph and submitting a certificate of such insurance, along with a
complete copy of the insurance policy, to the department. An owner or operator
of a new facility must submit the certificate of insurance along with a
complete copy of the insurance policy to the department at least 60 days before
the date on which the hazardous waste is first received for treatment, storage
or disposal. The insurance must be effective before this initial receipt of
hazardous waste. At a minimum, the insurer must be licensed pursuant to Chapter
10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia."
14. The following text shall be substituted for 40 CFR
264.143(f)(3)(ii), 40 CFR 264.145(f)(3)(ii), and 40 CFR
264.147(f)(3)(ii): "A copy of the owner's or operator's audited financial
statements for the latest completed fiscal year; including a copy of the
independent certified public accountant's report on examination of the owner's
or operator's financial statements for the latest completed fiscal year;
and"
15. In addition to the other requirements in 40 CFR
264.143(f)(3), 40 CFR 264.145(f)(3) and 40 CFR 264.147(f)(3), an owner or
operator must submit confirmation from the rating service that the owner or
operator has a current rating for its most recent bond issuance of AAA, AA, A,
or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by
Moody's if the owner or operator passes the financial test with a bond rating
as provided in 40 CFR 264.143(f)(1)(ii)(A).
16. The following text shall be substituted for 40 CFR
264.143(h) and 40 CFR 264.145(h): "An owner or operator may use a
financial assurance mechanism specified in this section to meet the
requirements of this section for more than one facility in Virginia. Evidence
of financial assurance submitted to the department must include a list showing,
for each facility, the EPA Identification Number, name, address, and the amount
of funds for closure or post-closure assured by the mechanism. The amount of
funds available through the mechanism must be no less than the sum of funds
that would be available if a separate mechanism had been established and
maintained for each facility. In directing funds available through the
mechanism for closure or post-closure care of any of the facilities covered by
the mechanism, the director may direct only the amount of funds designated for
that facility, unless the owner or operator agrees to the use of additional
funds available under the mechanism."
17. In addition to the requirements of 40 CFR 264.144,
"the owner or operator must submit a detailed, written post-closure cost
estimate upon the written request of the director."
18. The following text shall be substituted for 40 CFR
264.144(b): "During the active life of the facility and the post-closure
period, the owner or operator must adjust the post-closure cost estimate for
inflation within 60 days prior to the anniversary date of the establishment of
the financial instruments used to comply with 40 CFR 264.145. For owners or
operators using the financial test or corporate guarantee, the post-closure
cost estimate must be updated for inflation within 30 days after the close of
the firm's fiscal year and before the submission of updated information to the
department as specified in 40 CFR 264.145(f)(5). The adjustment may be made by
recalculating the post-closure cost estimate in current dollars or by using an
inflation factor derived from the most recent Implicit Price Deflator for Gross
National Product published by the U.S. Department of Commerce in its Survey of
Current Business as specified in 40 CFR 264.142(b)(1) and (2). The inflation
factor is the result of dividing the latest published annual Deflator by the
Deflator for the previous year.
a. The first adjustment is made by multiplying the
post-closure cost estimate by the inflation factor. The result is the adjusted
post-closure cost estimate.
b. Subsequent adjustments are made by multiplying the latest
adjusted post-closure cost estimate by the latest inflation factor."
19. The following text shall be substituted for 40 CFR
264.144(c): "During the active life of the facility and the post-closure
period, the owner or operator must revise the post-closure cost estimate within
30 days after the director has approved the request to modify the post-closure
plan, if the change in the post-closure plan increases the cost of post-closure
care. The revised post-closure cost estimate must be adjusted for inflation as
specified in 264.144(b)."
20. Where in 40 CFR 264.145(c)(5) the phrase "final
administrative determination pursuant to section 3008 of RCRA" appears, it
shall be replaced with "final determination pursuant to Chapter 40 (§
2.2-4000 et seq.) of Title 2.2 of the Code of Virginia."
21. The following text shall be substituted for 40 CFR
264.145(d)(9): "Following a final administrative determination pursuant to
Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia that the
owner or operator has failed to perform post-closure in accordance with the
approved post-closure plan, the applicable regulations, or other permit
requirements when required to do so, the director may draw on the letter of
credit."
22. The following text shall be substituted for 40 CFR
264.145(e)(1): "An owner or operator may satisfy the requirements of this
section by obtaining post-closure insurance which conforms to the requirements
of this paragraph and submitting a certificate of such insurance to the
department. An owner or operator of a new facility must submit the certificate
of insurance along with a complete copy of the insurance policy to the
department at least 60 days before the date on which the hazardous waste is
first received for treatment, storage or disposal. The insurance must be
effective before this initial receipt of hazardous waste. At a minimum, the
insurer must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title
38.2 of the Code of Virginia."
23. In 40 CFR 264.147(a)(1)(ii), 40 CFR 264.147(b)(1)(ii), 40
CFR 264.147(g)(2), and 40 CFR 264.147(i)(4), the term "Virginia"
shall not be substituted for the term "State" or "States."
24. In 40 CFR 264.191(a), the compliance date of January 12,
1988, applies only for HSWA tanks. For non-HSWA tanks, the compliance date is
November 2, 1997, instead of January 12, 1997.
25. In 40 CFR 264.191(c), the reference to July 14, 1986,
applies only to HSWA tanks. For non-HSWA tanks, the applicable date is November
2, 1987, instead of July 14, 1986.
26. In 40 CFR 264.193, the federal effective dates apply only
to HSWA tanks. For non-HSWA tanks, the applicable date is November 2, 1997,
instead of January 12, 1997.
27. A copy of all reports made in accordance with 40 CFR
264.196(d) shall be sent to the director and to the chief administrative
officer of the local government of the jurisdiction in which the event occurs.
The sentence in 40 CFR 264.196(d)(1), "If the release has been
reported pursuant to 40 CFR Part 302, that report will satisfy this
requirement." is not incorporated by reference into these regulations and
is not a part of the Virginia Hazardous Waste Management Regulations.
28. The following text shall be substituted for 40 CFR
264.570(a): "The requirements of this subpart apply to owners and
operators of facilities that use new or existing drip pads to convey wood
drippage, precipitation and/or surface water run-off to an associated
collection system. Existing HSWA drip pads are those constructed before
December 6, 1990, and those for which the owner or operator has a design and
has entered into a binding financial or other agreement for construction prior
to December 6, 1990. Existing non-HSWA drip pads are those constructed before
January 14, 1993, and those for which the owner or operator has a design and
has entered into a binding financial or other agreements for construction prior
to January 14, 1993. All other drip pads are new drip pads. The requirement at
40 CFR 264.573(b)(3) to install a leak collection system applies only to
those HSWA drip pads that are constructed after December 24, 1992, except for
those constructed after December 24, 1992, for which the owner or operator has
a design and has entered into a binding financial or other agreement for
construction prior to December 24, 1992. For non-HSWA drip pads, the
requirement at 40 CFR 264.573(b)(3) to install a leak collection system
applies only to those non-HSWA drip pads that are constructed after September
8, 1993, except for those constructed after September 8, 1993, for which the
owner or operator has a design and has entered into a binding financial or
other agreement for construction prior to September 8, 1993."
29. In 40 CFR 264.1030(c), the reference to 40 CFR 124.15
shall be replaced by a reference to 40 CFR 124.5.
30. The underground injection of hazardous waste for
treatment, storage or disposal shall be prohibited throughout the Commonwealth
of Virginia.
31. In addition to the notices required in Subpart B and
others parts of 40 CFR Part 264, the following notices are also required:
a. The owner or operator of a facility that has arranged to
receive hazardous waste from a foreign source (a source located outside of the
United States of America) shall notify the department and administrator in writing
at least four weeks in advance of the date the waste is expected to arrive at
the facility. Notice of subsequent shipments of the same waste from the same
foreign source is not required.
b. The owner or operator of a facility that receives hazardous
waste from an off-site source (except where the owner or operator of the
facility is also the generator of this waste) shall inform the generator in
writing that he has appropriate permits for, and will accept, the waste that
the generator is shipping. The owner or operator shall keep a copy of this
written notice as part of the operating record.
c. Before transferring ownership or operation of a facility
during its operating life, or of a disposal facility during the post-closure
care period, the owner or operator shall notify the new owner or operator in
writing of the requirements contained in this section and 9VAC20-60-270. An
owner or operator's failure to notify the new owner or operator of the
requirements in this section and 9VAC20-60-270 in no way relieves the new owner
or operator of his obligation to comply with all applicable requirements.
d. Any person responsible for the release of a hazardous
substance from the facility that poses an immediate or imminent threat to
public health and who is required by law to notify the National Response Center
shall notify the department and the chief administrative officer of the local
government of the jurisdiction in which the release occurs or their designees.
In cases when the released hazardous substances are hazardous wastes or
hazardous waste constituents additional requirements are prescribed by Subpart
D of 40 CFR Part 264.
32. In 40 CFR 264.71, the terms "EPA" and
"Environmental Protection Agency" shall mean the United States
Environmental Protection Agency, and the reference to "system" means
the United States Environmental Protection Agency's national electronic
manifest system.
33. Regardless of the provisions of 9VAC20-60-18, the
requirements of 40 CFR 264.71(j) are Subpart FF of 40 CFR Part 264
shall not be incorporated into this chapter.
34. Requirements for mercury-containing lamp recycling
facilities. The following requirements apply to all facilities that recover or
reclaim mercury from lamps.
a. All owners and operators of mercury-containing lamp
recycling facilities shall:
(1) Have established markets for the utilization of reclaimed
materials and be able to identify these markets to the department;
(2) Only introduce into the processing equipment lamps or
devices for which the equipment was specifically designed to process and
operate and maintain processing equipment consistent with the equipment
manufacturer's specifications; and
(3) Not speculatively accumulate the materials.
b. If a mercury-containing lamp recycling facility's
processed materials are to be delivered to a facility other than a mercury
reclamation facility, the owner or operator shall:
(1) Demonstrate proper equipment operation and efficiency
by sampling and analytical testing of the processed materials. The testing
shall ensure that such processed materials (i) have less than three parts per
million of "average mercury" during each consecutive 12-week time
period of operations ("average mercury" shall be calculated pursuant
to subdivision 34 b (3) of this subsection); (ii) have less than five parts per
million of total mercury as reported in the "weekly composite sample of
process operations" ("weekly composite sample of process
operations" shall be calculated pursuant to subdivision 34 b (3) of this
subsection); (iii) are not a hazardous waste; and (iv) comply with 40 CFR Part
268, if applicable.
(2) Retest, reprocess, or deliver to a mercury reclamation
facility processed materials that are in excess of the allowable levels of
mercury specified in subdivision 34 b (1) of this subsection.
(3) Sample and perform analytical testing of the processed
material for total mercury as follows:
(a) Facility operators shall take daily physical samples of
the mercury-containing materials at the point at which they exit the processing
equipment. These samples shall be representative of the materials
processed during that day.
(b) At the beginning of each week, the prior week's daily
samples shall be consolidated into one weekly sample, which shall be submitted
for chemical analysis of total mercury content using an approved EPA
methodology. At least three separate daily samples shall be taken in order to
obtain a weekly sample. When a facility is not operating at least three days
during a week, that week will be dropped out of the 12-week rolling average as
calculated under subdivision 34 b (3) (c) of this subsection. However, all
daily samples that are in a week that has been dropped out shall be counted
towards the very next weekly sample that is included in a 12-week rolling
average. The result of this analysis shall be considered the "weekly
composite sample of process operations."
(c) The "average mercury" value calculation shall be
the rolling average of weekly composite sample results from samples taken
during the most recent 12-week time period with each new weekly composite
sample result replacing the oldest sample result that was used in the previous
12-week period.
c. Mercury-containing lamp recycling facilities shall ensure
that the separated materials that are generated from their operations are
suitable and safe for their intended end use and shall bear the burden of
responsibility for the safety of these materials sold or delivered from the
operations. Facilities shall notify in writing receiving sources, other than
mercury reclamation facilities, of the amount and type of hazardous substances
present in the processed materials as demonstrated by laboratory analysis.
d. Operating requirements. Mercury-containing lamp recycling
facilities shall be operated in accordance with the following requirements:
(1) Mercury-containing lamp recycling facilities shall control
mercury emissions through the use of a single air handling system with
redundant mercury controls and comply with the following:
(a) The owner or operator shall operate, monitor, and maintain
an air handling system with redundant air pollution control equipment in order
to reduce the mercury content of the air collected during the volume reduction
and mercury recovery and reclamation processes.
(b) Redundant air pollution control equipment shall
incorporate at least two carbon filters or equivalent technology arranged in a
series so that the air passes through both filters before being released. In
the event of a single filter failure, each filter shall be designed to ensure
compliance with the risk-based protectiveness standards for mercury vapor
provided in subdivision 34 e of this subsection.
(c) A sample of air shall be collected after the first carbon
filter (or equivalent technology) and upstream of the second once each
operating day while mercury-containing lamps or devices are being processed.
The mercury content of the sample shall be determined for comparison with the
risk-based protectiveness standards provided in subdivision 34 e of this
subsection.
(d) The owner or operator shall operate, monitor, and maintain
the air pollution control equipment in such a manner as not to exceed the
risk-based protectiveness standards under subdivision 34 e of this subsection
for mercury vapor downstream of the first carbon filter (or equivalent
technology) and upstream of the second carbon filter.
(2) The area in which the processing equipment is located
shall be fully enclosed and kept under negative pressure while processing
mercury-containing lamps or devices.
e. Testing for mercury releases
from lamp crushing units shall be performed using a mercury vapor analyzer that
has been approved for the application by the U.S. Occupational Safety and
Health Administration or the Virginia Department of Labor and Industry or a
comparable device that has been calibrated by the manufacturer or laboratory
providing the equipment. Mercury vapor monitors used for testing must be
capable of detecting mercury at the applicable concentrations provided below or
lower in air and must be equipped with a data recording device to provide a
record of measurements taken. Mercury monitoring data shall be documented and
available for inspection in accordance with subdivision 34 g of this
subsection. The acute exposure protectiveness standard is 300 µg/m3
for a 10-minute exposure with the understanding that the acute exposure
protectiveness standard is considered a ceiling value and at no time during
bulb crushing operation will the air concentrations of mercury exceed 300 µg/m3.
The following are risk-based protectiveness standards at a distance of five
feet from the bulb crushing unit:
Monthly Bulb Crushing Duration
(X Hours/Month)*
|
Chronic Exposure Air Emission
Limit (µg/m3)
|
Acute Exposure Air Emission
Limit (µg/m3)
|
X = 32
|
1.314skin µg/m3
|
300 µg/m3
|
8 < X < 32
|
6.317 skin µg/m3
|
300 µg/m3
|
X = 8
|
27.375 skin µg/m3
|
300 µg/m3
|
*Monthly crushing duration is
determined based on the maximum number of hours that bulb crushing occurred
in any one month over the last 12-month period.
|
f. Closure. Mercury-containing lamp recycling facilities must
prepare and maintain a closure plan conforming to the requirements of 40 CFR
Part 264, Subpart G as adopted by reference in this section. Financial
assurance shall be provided to the department in accordance with 40 CFR Part
264, Subpart H as adopted by reference in this section.
g. Recordkeeping requirements. The owner or operator of a
mercury-containing lamp recycling facility shall maintain records of monitoring
information that (i) specify the date, place, and time of measurement; (ii)
provide the methodology used; and (iii) list the analytical results. The
records maintained shall include all calibration and maintenance records of
monitoring equipment. The owner or operator shall retain records of all
monitoring data and supporting information available for department inspection
for a period of at least three years from the date of collection.
35. The following additional information is required from
owners or operators of facilities that store or treat hazardous waste in waste
piles if an exemption is sought to Subpart F of 40 CFR Part 264 and 40 CFR
264.251 as provided in 40 CFR 264.250(c) and 40 CFR 264.90(b)(2):
a. An explanation of how the standards of 40 CFR
264.250(c) will be complied with; and
b. Detailed plans and an engineering report describing how the
requirements of 40 CFR 264.90(b)(2) will be met.
9VAC20-60-265. Adoption of 40 CFR Part 265 by reference.
A. Except as otherwise provided, the regulations of the
United States Environmental Protection Agency set forth in 40 CFR Part 265 are
hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations. Except as otherwise provided, all material definitions, reference
materials and other ancillaries that are parts of 40 CFR Part 265 are also
hereby incorporated as parts of the Virginia Hazardous Waste Management
Regulations.
B. In all locations in these regulations where 40 CFR
Part 265 is incorporated by reference, the following additions, modifications, and
exceptions shall amend the incorporated text for the purpose of its
incorporation into these regulations:
1. Sections 40 CFR 265.1(c)(4), 40 CFR 265.149 and 40 CFR
265.150 and Subpart R of 40 CFR Part 265 are not included in the incorporation
of 40 CFR Part 265 by reference and are not a part of the Virginia Hazardous
Waste Management Regulations.
2. In 40 CFR 265.1(c)(14) and wherever elsewhere in Title 40
of the Code of Federal Regulations there is a listing of universal wastes or a
listing of hazardous wastes that are the subject of provisions set out in 40
CFR Part 273 as universal wastes, it shall be amended by addition of the
following sentence: "In addition to the hazardous wastes listed here, the
term "universal waste" and all lists of universal waste or waste
subject to provision of 40 CFR Part 273 shall include those hazardous wastes
listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste
Management Regulations as universal wastes, in accordance with the terms and
requirements described."
3. A copy of all reports and notices made in accordance with
40 CFR 265.12 shall be sent to the department, the administrator and the chief
administrative officer of the local government of the jurisdiction in which the
event occurs.
4. In 40 CFR 265.12(a), the term "Regional
Administrator" shall mean the Regional Administrator of Region III of the
United States Environmental Protection Agency or his designee.
5. In 40 CFR 265.33, the following sentence shall be added to
the end of the paragraph: "A record of tests or inspections will be
maintained on a log at that facility or other reasonably accessible and
convenient location."
6. In addition to the notifications required by 40 CFR
265.56(d)(2), notification shall be made to the on-scene coordinator, the
National Response Center, and the Virginia Department of Emergency Management,
Emergency Operations Center. In the associated report filed under 40 CFR
265.56(i), the owner or operator shall include such other information
specifically requested by the director, which is reasonably necessary and
relevant to the purpose of an operating record.
7. In addition to the requirements of 40 CFR 265.91, a log
shall be made of each ground water groundwater monitoring well
describing the soils or rock encountered, the permeability of formations, and
the cation exchange capacity of soils encountered. A copy of the logs with
appropriate maps shall be sent to the department.
8. The following text shall be substituted for 40 CFR
265.143(g) and 40 CFR 265.145(g): "An owner or operator may use a
financial assurance mechanism specified in this section to meet the
requirements of this section for more than one facility in Virginia. Evidence
of financial assurance submitted to the department must include a list showing,
for each facility, the EPA Identification Number, name, address, and the amount
of funds for closure or post-closure assured by the mechanism. The amount of
funds available through the mechanism must be no less than the sum of funds
that would be available if a separate mechanism had been established and
maintained for each facility. In directing funds available through the
mechanism for closure or post-closure care of any of the facilities covered by
the mechanism, the director may direct only the amount of funds designated for
that facility, unless the owner or operator agrees to the use of additional
funds available under the mechanism.
9. In 40 CFR 265.147(a)(1)(ii), 40 CFR 265.147(g)(2), and 40
CFR 265.147(i)(4), the term "Virginia" shall not be substituted for
the term "State" or "States."
10. In 40 CFR 265.191(a), the compliance date of January 12,
1988, applies only for HSWA tanks. For non-HSWA tanks, the compliance date is
November 2, 1986.
11. In 40 CFR 265.191(c), the reference to July 14, 1986,
applies only to HSWA tanks. For non-HSWA tanks, the applicable date is November
2, 1987.
12. In 40 CFR 265.193, the federal effective dates apply only
to HSWA tanks. For non-HSWA tanks, the applicable date of January 12, 1987, is
replaced with November 2, 1997.
13. The following text shall be substituted for 40 CFR
265.440(a): "The requirements of this subpart apply to owners and
operators of facilities that use new or existing drip pads to convey wood
drippage, precipitation and/or surface water run-off to an associated
collection system. Existing HSWA drip pads are those constructed before
December 6, 1990, and those for which the owner or operator has a design and
has entered into a binding financial or other agreement for construction prior
to December 6, 1990. Existing non-HSWA drip pads are those constructed before
January 14, 1993, and those for which the owner or operator has a design and
has entered into a binding financial or other agreement for construction prior
to January 14, 1993. All other drip pads are new drip pads. The requirement at
40 CFR 265.443(b)(3) to install a leak collection system applies only to those
HSWA drip pads that are constructed after December 24, 1992, except for those
constructed after December 24, 1992, for which the owner or operator has a
design and has entered into a binding financial or other agreement for
construction prior to December 24, 1992. For non-HSWA drip pads, the
requirement at 40 CFR 264.573(b)(3) to install a leak collection system applies
only to those non-HSWA drip pads that are constructed after September 8, 1993,
except for those constructed after September 8, 1993, for which the owner or
operator has a design and has entered into a binding financial or other
agreement for construction prior to September 8, 1993."
14. In 40 CFR 265.1083(c)(4)(ii), the second occurrence of the
term "EPA" shall mean the United States Environmental Protection
Agency.
15. In addition to the requirements of 40 CFR 265.310, the
owner or operator shall consider at least the following factors in addressing
the closure and post-closure care objectives of this part:
a. Type and amount of hazardous waste and hazardous waste
constituents in the landfill;
b. The mobility and the expected rate of migration of the hazardous
waste and hazardous waste constituents;
c. Site location, topography, and surrounding land use, with
respect to the potential effects of pollutant migration;
d. Climate, including amount, frequency and pH of
precipitation;
e. Characteristics of the cover, including material, final
surface contours, thickness, porosity and permeability, slope, length of run of
slope, and type of vegetation on the cover; and
f. Geological and soil profiles and surface and subsurface
hydrology of the site.
16. Additionally, during the post-closure care period, the
owner or operator of a hazardous waste landfill shall comply with the
requirements of 40 CFR 265.116 and the following items:
a. Maintain the function and integrity of the final cover as
specified in the approved closure plan;
b. Maintain and monitor the leachate collection, removal, and
treatment system, if present, to prevent excess accumulation of the leachate in
the system;
c. Maintain and monitor the landfill gas collection and
control system, if present, to control the vertical and horizontal escape of
gases;
d. Protect and maintain, if present, surveyed benchmarks; and
e. Restrict access to the landfill as appropriate for its
post-closure use.
17. The underground injection of hazardous waste for
treatment, storage or disposal shall be prohibited throughout the Commonwealth
of Virginia.
18. Regulated units of the facility are those units used for
storage treatment or disposal of hazardous waste in surface impoundments, waste
piles, land treatment units, or landfills that received hazardous waste after
July 26, 1982. In addition to the requirements of Subpart G of 40 CFR Part
265, owners or operators of regulated units who manage hazardous wastes in
regulated units shall comply with the closure and post-closure requirements
contained in Subpart G of 40 CFR Part 264, Subpart H of 40 CFR Part 264,
and Subpart K of 40 CFR Part 264 through Subpart N of 40 CFR Part 264, as
applicable, and shall comply with the requirements in Subpart F of 40 CFR Part
264 during any post-closure care period and for the extended ground water
monitoring period, rather than the equivalent requirements contained in 40 CFR
Part 265. The following provisions shall also apply:
a. For owners or operators of surface impoundments or waste
piles included above who intend to remove all hazardous wastes at closure in
accordance with 40 CFR 264.228(a)(1) or 40 CFR 264.258(a), as applicable,
submittal of contingent closure and contingent post-closure plans is not
required. However, if the facility is subsequently required to close as a
landfill in accordance with Subpart N of 40 CFR Part 264, a modified closure
plan shall be submitted no more than 30 days after such determination. These
plans will be processed as closure plan amendments. For such facilities, the
corresponding post-closure plan shall be submitted within 90 days of the
determination that the unit shall be closed as a landfill.
b. A permit application as required under 9VAC20-60-270 to
address the post-closure care requirements of 40 CFR 264.117 and for ground
water groundwater monitoring requirements of 40 CFR 264.98, 40 CFR
264.99, or 40 CFR 264.100, as applicable, shall be submitted for all regulated
units that fail to satisfy the requirements of closure by removal or decontamination
in 40 CFR 264.228(a)(1), 40 CFR 264.258(a), or 40 CFR 264.280(d) and 40
CFR 264.280(e), as applicable. The permit application shall be submitted at the
same time as the closure plan for those units closing with wastes in place and
six months following the determination that closure by removal or
decontamination is unachievable for those units attempting such closure. The
permit application shall address the post-closure care maintenance of both the
final cover and the ground water groundwater monitoring wells as
well as the implementation of the applicable ground water groundwater
monitoring program whenever contaminated soils, subsoils, liners, etc., are
left in place. When all contaminated soils, subsoils, liners, etc., have been
removed yet ground water groundwater contamination remains, the
permit application shall address the post-closure care maintenance of the
ground water monitoring wells as well as the implementation of the applicable
ground water monitoring program.
c. In addition to the requirements of 40 CFR
264.112(d)(2)(i) for requesting an extension to the one-year limit, the owner
or operator shall demonstrate that he will continue to take all steps to
prevent threats to human health and the environment.
d. In addition to the requirements of 40 CFR 264.119(c), the
owner or operator shall also request a modification to the post-closure permit
if he wishes to remove contaminated structures and equipment.
19. In 40 CFR 265.71, the terms "EPA" and
"Environmental Protection Agency" shall mean the United States
Environmental Protection Agency, and the reference to "system" means
the United States Environmental Protection Agency's national electronic
manifest system.
20. Regardless of the provisions of 9VAC20-60-18, the
requirements of 40 CFR 265.71(j) are Subpart FF of 40 CFR Part 265
shall not be incorporated into this chapter.
21. Requirements for mercury-containing lamp recycling
facilities. The following requirements apply to all facilities that recover or
reclaim mercury from lamps:
a. All owners and operators of mercury-containing lamp
recycling facilities shall:
(1) Have established markets for the utilization of reclaimed
materials and be able to identify these markets to the department;
(2) Only introduce into the processing equipment lamps or
devices for which the equipment was specifically designed to process and
operate and maintain processing equipment consistent with the equipment
manufacturer's specifications; and
(3) Not speculatively accumulate the materials.
b. If a mercury-containing lamp recycling facility's processed
materials are to be delivered to a facility other than a mercury reclamation
facility, the owner or operator shall:
(1) Demonstrate proper equipment operation and efficiency
by sampling and analytical testing of the processed materials. The testing
shall ensure that such processed materials (i) have less than three parts per
million of "average mercury" during each consecutive 12-week time
period of operations ("average mercury" shall be calculated pursuant
to subdivision 21 b (3) of this subsection); (ii) have less than five parts per
million of total mercury as reported in the "weekly composite sample of
process operations" ("weekly composite sample of process
operations" shall be calculated pursuant to subdivision 21 b (3) of this
subsection); (iii) are not a hazardous waste; and (iv) comply with 40 CFR Part
268, if applicable.
(2) Retest, reprocess, or deliver to a mercury reclamation
facility processed materials that are in excess of the allowable levels of
mercury specified in subdivision 21 b (1) of this subsection.
(3) Sample and perform analytical testing of the processed
material for total mercury as follows:
(a) Facility operators shall take daily physical samples of
the mercury-containing materials at the point at which they exit the processing
equipment. These samples shall be representative of the materials
processed during that day.
(b) At the beginning of each week, the prior week's daily
samples shall be consolidated into one weekly sample that shall be submitted
for chemical analysis of total mercury content using an approved EPA
methodology. At least three separate daily samples shall be taken in order to
obtain a weekly sample. When a facility is not operating at least three days
during a week, that week will be dropped out of the 12-week rolling average as
calculated under subdivision 21 b (3) (c) of this subsection. However, all
daily samples that are in a week that has been dropped out shall be counted
towards the very next weekly sample that is included in a 12-week rolling
average. The result of this analysis shall be considered the "weekly
composite sample of process operations."
(c) The "average mercury" value calculation shall be
the rolling average of weekly composite sample results from samples taken
during the most recent 12-week time period with each new weekly composite
sample result replacing the oldest sample result that was used in the previous
12-week period.
c. Mercury-containing lamp recycling facilities shall
ensure that the separated materials that are generated from their operations
are suitable and safe for their intended end use and shall bear the burden of
responsibility for the safety of these materials sold or delivered from the
operations. Facilities shall notify in writing receiving sources, other than
mercury reclamation facilities, of the amount and type of any hazardous
substances present in the processed materials as demonstrated by laboratory
analysis.
d. Operating requirements. Mercury-containing lamp recycling facilities
shall be operated in accordance with the following requirements:
(1) Mercury-containing lamp recycling facilities shall control
mercury emissions through the use of a single air handling system with
redundant mercury controls and comply with the following:
(a) The owner or operator shall operate, monitor, and maintain
an air handling system with redundant air pollution control equipment in order
to reduce the mercury content of the air collected during the volume reduction
and mercury recovery and reclamation processes.
(b) Redundant air pollution control equipment shall
incorporate at least two carbon filters or equivalent technology arranged in a
series so that the air passes through both filters before being released. In
the event of a single filter failure, each filter shall be designed to ensure
compliance with the risk-based protectiveness standards for mercury vapor
provided in subdivision 21 e of this subsection.
(c) A sample of air shall be collected after the first carbon
filter (or equivalent technology) and upstream of the second once each
operating day while mercury-containing lamps or devices are being processed.
The mercury content of the sample shall be determined for comparison with the
risk-based protectiveness standards provided in subdivision 21 e of this
subsection.
(d) The owner or operator shall operate, monitor, and maintain
the air pollution control equipment in such a manner as not to exceed the
risk-based protectiveness standards under subdivision 21 e of this subsection for
mercury vapor downstream of the first carbon filter (or equivalent technology)
and upstream of the second carbon filter.
(2) The area in which the processing equipment is located
shall be fully enclosed and kept under negative pressure while processing
mercury-containing lamps or devices.
e. Testing for mercury releases from lamp crushing units shall
be performed using a mercury vapor analyzer that has been approved for the
application by the U.S. Occupational Safety and Health Administration or the
Virginia Department of Labor and Industry or a comparable device that has been
calibrated by the manufacturer or laboratory providing the equipment. Mercury
vapor monitors used for testing must be capable of detecting mercury at the
applicable concentrations provided below in this subdivision or
lower in air and must be equipped with a data recording device to provide a
record of measurements taken. Mercury monitoring data shall be documented and
available for inspection in accordance with subdivision 21 g of this
subsection. The acute exposure protectiveness standard is 300 µg/m3
for a 10-minute exposure with the understanding that the acute exposure
protectiveness standard is considered a ceiling value and at no time during
bulb crushing operation will the air concentrations of mercury exceed 300 µg/m3.
The following are risk-based protectiveness standards at a distance of five
feet from the bulb crushing unit:
Monthly Bulb Crushing Duration (X Hours/Month)*
|
Chronic Exposure Air Emission Limit (µg/m3)
|
Acute Exposure Air Emission Limit (µg/m3)
|
X = 32
|
1.314skin µg/m3
|
300 µg/m3
|
8 < X < 32
|
6.317 skin µg/m3
|
300 µg/m3
|
X = 8
|
27.375 skin µg/m3
|
300 µg/m3
|
*Monthly crushing duration is determined based on the
maximum number of hours that bulb crushing occurred in any one month over the
last 12-month period.
|
f. Closure. Mercury-containing lamp recycling facilities must
prepare and maintain a closure plan conforming to the requirements of 40 CFR
Part 265, Subpart G as adopted by reference in this section. Financial
assurance shall be provided to the department in accordance with 40 CFR Part
265, Subpart H as adopted by reference in this section.
g. Recordkeeping requirements. The owner or operator of a
mercury-containing lamp recycling facility shall maintain records of monitoring
information that (i) specify the date, place, and time of measurement; (ii)
provide the methodology used; and (iii) list the analytical results. The
records maintained shall include all calibration and maintenance records of
monitoring equipment. The owner or operator shall retain records of all
monitoring data and supporting information available for department inspection
for a period of at least three years from the date of collection.
22. In 40 CFR 265.12, the term "EPA" shall mean the
United States Environmental Protection Agency.
9VAC20-60-266. Adoption of 40 CFR Part 266 by reference.
A. Except as otherwise provided, the regulations of the
United States Environmental Protection Agency set forth in 40 CFR Part 266 are
hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations. Except as otherwise provided, all material definitions, reference
materials and other ancillaries that are a part of 40 CFR Part 266 are also
hereby incorporated as part of the Virginia Hazardous Waste Management
Regulations.
B. In all locations in these regulations where 40 CFR Part
266 is incorporated by reference, the following additions, modifications and
exceptions shall amend the incorporated text for the purpose of its
incorporation into these regulations:
1. In addition to the requirements of Subpart C of 40 CFR Part
266, those who generate or transport recyclable materials or those who own or
operate facilities that use or store recyclable materials are also subject to
applicable requirements of Parts IV (9VAC20-60-305 et seq.), VII (9VAC20-60-420
et seq.), and XII (9VAC20-60-1260 et seq.) of these regulations if the
materials are used in a manner constituting disposal.
2. In addition to the requirements of Subpart C of 40 CFR Part
266, those who generate or transport recyclable materials or those who own or
operate facilities that use or store recyclable materials are also subject to
applicable requirements of Parts IV, VII and XII of these regulations if the
recyclable materials are for precious metals recovery.
3. In addition to the requirements of Subpart G of 40 CFR Part
266, those who store lead-acid batteries subject to 40 CFR 266.80(b) are also
subject to the requirements of Parts IV, VII and XII of these regulations.
4. In 40 CFR Part 266, references to 49 CFR Parts 171
through 180 shall be as 49 CFR Parts 171 through 180 are incorporated by
reference in 9VAC20-110-110.
5. In 40 CFR 266.506(b)(3)(i), reference to (i) 40 CFR Part
62, Subpart FFF shall be replaced by 40 CFR Part 62, Subpart VV, which
incorporates Article 54 (9VAC5-40-7950 et seq.) of 9VAC5-40; and (ii) 40 CFR
Part 60, Subpart Eb shall be as it is incorporated by reference in Article 5
(9VAC5-50-400 et seq.) of 9VAC5-50.
6. In 40 CFR 266.506(b)(3)(ii), reference to (i) 40 CFR
Part 62, Subpart JJJ shall be replaced by 40 CFR Part 62, Subpart VV, which
incorporates Article 46 (9VAC5-40-6550 et seq.) of 9VAC5-40; and (ii) 40 CFR
Part 60, Subpart AAAA shall be as it is incorporated by reference in Article 5
(9VAC5-50-400 et seq.) of 9VAC5-50.
7. In 40 CFR 266.506(b)(3)(iii), reference to (i) 40 CFR
Part 62, Subpart HHH is not applicable in the Commonwealth of Virginia as there
are no affected facilities and a negative declaration was made in 40 CFR Part
62, Subpart VV; and (ii) 40 CFR Part 60, Subpart Ec shall be as Subpart Ec is
incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of 9VAC5-50.
8. In 40 CFR 266.506(b)(3)(iv), reference to 40 CFR Part
62, Subpart III shall be replaced by 40 CFR Part 62, Subpart VV, which
incorporates Article 45 (9VAC5-40-6250 et seq.) of 9VAC5-40; and (ii) 40 CFR
Part 60, Subpart CCCC shall be as Subpart CCCC is incorporated by reference in
Article 5 (9VAC5-50-400 et seq.) of 9VAC5-50.
9. In 40 CFR 266.506(b)(3)(v), reference to 40 CFR Part 63,
Subpart EEE shall be as Subpart EEE is incorporated by reference in Article 2
(9VAC5-60-90 et seq.) of 9VAC5-60.
9VAC20-60-328. EPA identification number.
A. A generator shall not treat, store, dispose of, transport,
or offer for transportation hazardous waste without having received an EPA
identification number from the administrator or the department.
B. A generator who has not received an EPA identification
number may obtain one by applying to the department using EPA Form 8700-12.
Upon receiving a request, the department will assign an EPA identification
number to the generator.
C. A generator shall not offer his hazardous waste to
transporters or to facilities that have not received an EPA identification
number.
D. Provisional identification number. If an emergency or other
unusual incident occurs which causes a necessity for the rapid transport of a
hazardous waste to an authorized hazardous waste management facility, the
generator involved in such a circumstance can telephone the Department of
Environmental Quality (804-698-4000) and obtain a provisional identification
number. Applicants receiving such a number will be mailed a blank EPA Form
8700-12 that shall be completed and returned to the Department of Environmental
Quality regional office within 10 calendar days. (Note: The department's
website, http://www.deq.state.va.us http://www.deq.virginia.gov,
or the receptionist at 804-698-4000, will provide information on how to contact
the appropriate regional office.)
9VAC20-60-1390. Changes in classifications as a solid waste.
A. Variances.
1. Applicability.
a. A person who recycles waste that is managed entirely within
the Commonwealth may petition the director to exclude the waste at a particular
site from the classification as the solid waste (Parts I (9VAC20-60-12 et seq.)
and III (9VAC20-60-124 et seq.) of this chapter). The conditions under which a
petition for a variance will be accepted are shown in subdivision 2 of this
subsection. The wastes excluded under such petitions may still, however, remain
classified as a solid waste for the purposes of other regulations issued by the
Virginia Waste Management Board or other agencies of the Commonwealth.
b. A person who generates wastes at a generating site in
Virginia and whose waste is subject to federal jurisdiction (e.g., the waste is
transported across state boundaries) shall first obtain a favorable decision
from the administrator in accordance with Subpart C, 40 CFR Part 260, before
his waste may be considered for a variance by the director.
c. A person who recycles materials from a generating site
outside the Commonwealth and who causes them to be brought into the
Commonwealth for recycling shall first obtain a favorable decision from the
administrator in accordance with Subpart C, 40 CFR Part 260, before the waste
may be considered for a variance by the director.
d. A person who received a favorable decision from the
administrator in the response to a petition for variance or nonwaste
determination or a person whose wastes were delisted as a result of a
successful petition to the administrator shall provide a notification to the
department containing the following information: (i) the petitioner's name and
address and (ii) a copy of the administrator's decision.
2. Conditions for a variance. In accordance with the standards
and criteria in subsection B of this section and the procedures in
9VAC20-60-1420 B, the director may determine on a case-by-case basis that the
following recycled materials are not solid wastes:
a. Materials that are accumulated speculatively without
sufficient amounts being recycled (as defined in Part I).
b. Materials that are reclaimed and then reused within the
original primary production process in which they were generated.
c. Materials that have been reclaimed but must be reclaimed
further before the materials are completely recovered.
d. Hazardous secondary materials that are reclaimed in a
continuous industrial process.
e. Hazardous secondary materials that are indistinguishable in
all relevant aspects from a product or intermediate.
f. Hazardous secondary materials that are transferred for
reclamation under 40 CFR 261.4(a)(24) and are managed at a verified reclamation
facility or intermediate facility where the management of the hazardous
secondary materials is not addressed under an a RCRA Part B
permit or interim status standards.
B. Standards and criteria for variances.
1. The director may grant requests for a variance from
classifying as a solid waste those materials that are accumulated speculatively
without sufficient amounts being recycled if the applicant demonstrates that
sufficient amounts of the material will be recycled or transferred for
recycling in the following year. If a variance is granted, it is valid only for
the following year, but can be renewed on an annual basis by filing a new
application. The director's decision will be based on the following criteria:
a. The manner in which the material is expected to be
recycled, and when the material is expected to be recycled, and whether this
expected disposition is likely to occur (for example, because of past practice,
market factors, the nature of the material, or contractual arrangement for
recycling);
b. The reason that the applicant has accumulated the material
for one or more years without recycling 75% of the volume accumulated at the
beginning of the year;
c. The quantity of material already accumulated and the
quantity expected to be generated and accumulated before the material is
recycled;
d. The extent to which the material is handled to minimize
loss; and
e. Other relevant factors.
2. The director may grant requests for a variance from
classifying as a solid waste those materials that are reclaimed and then reused
as feedstock within the original production process in which the materials were
generated if the reclamation operation is an essential part of the production
process. This determination will be based on the following criteria:
a. How economically viable the production process would be if
it were to use virgin materials, rather than reclaimed materials;
b. The prevalence of the practice on an industry-wide basis;
c. The extent to which the material is handled before
reclamation to minimize loss;
d. The time periods between generating the material and its
reclamation, and between reclamation and return to the original primary
production process;
e. The location of the reclamation operation in relation to
the production process;
f. Whether the reclaimed material is used for the purpose for
which it was originally produced when it is returned to the original process,
and whether it is returned to the process in substantially its original form;
g. Whether the person who generates the material also reclaims
it; and
h. Other relevant factors.
3. The director may grant requests for a variance from
classifying as a solid waste those hazardous secondary materials that have been
partially reclaimed but must be reclaimed further before recovery is completed
if the partial reclamation has produced a commodity-like material. A
determination that a partially reclaimed material for which the variance is
sought is commodity-like will be based on whether the hazardous secondary
material is legitimately recycled as specified in 40 CFR 260.43 and on
whether all of the following decision criteria are satisfied:
a. Whether the degree of partial reclamation the material has
undergone is substantial as demonstrated by using a partial reclamation process
other than the process that generated the hazardous waste;
b. Whether the partially reclaimed material has sufficient
economic value that it will be purchased for further reclamation;
c. Whether the partially reclaimed material is a viable
substitute for a product or intermediate produced from virgin or raw materials
that is used in subsequent production steps;
d. Whether there is a market for the partially reclaimed
material as demonstrated by known customer or customers who are further
reclaiming the material (e.g., records of sales or contracts and evidence of
subsequent use, such as bills of lading); and
e. Whether the partially reclaimed material is handled to
minimize loss.
4. The director may grant requests for a variance from
classifying as a solid waste those hazardous secondary materials that are
transferred for reclamation under 40 CFR 261.4(a)(24) and are managed at a
verified reclamation facility or intermediate facility where the management of
the hazardous secondary materials is not addressed under a RCRA Part B permit
or interim status standards. The director's decision will be based on the
following criteria:
a. The reclamation facility or intermediate facility must
demonstrate that the reclamation process for the hazardous secondary materials
is legitimate pursuant to 40 CFR 260.43;
b. The reclamation facility or intermediate facility must
satisfy the financial assurance condition in 40 CFR 261.4(a)(24)(vi)(F);
c. The reclamation facility or intermediate facility must not
be subject to a formal enforcement action in the previous three years and not
be classified as a significant noncomplier under RCRA Subtitle C, or must
provide credible evidence that the facility will manage the hazardous secondary
materials properly. Credible evidence may include a demonstration that the
facility has taken remedial steps to address the violations and prevent future
violations, or that the violations are not relevant to the proper management of
the hazardous secondary materials;
d. The intermediate or reclamation facility must have the
equipment and trained personnel needed to safely manage the hazardous secondary
material and must meet emergency preparedness and response requirements under
40 CFR Part 261 Subpart M;
e. If residuals are generated from the reclamation of the
excluded hazardous secondary materials, the reclamation facility must have the
permits required (if any) to manage the residuals, have a contract with an
appropriately permitted facility to dispose of the residuals, or present
credible evidence that the residuals will be managed in a manner that is protective
of human health and the environment; and
f. The intermediate or reclamation facility must address the
potential for risk to proximate populations from unpermitted releases of the
hazardous secondary material to the environment (i.e., releases that are not
covered by a permit, such as a permit to discharge to water or air), which may
include, but are not limited to, potential releases through surface
transport by precipitation runoff, releases to soil and groundwater, wind-blown
dust, fugitive air emissions, and catastrophic unit failures, and must include
consideration of potential cumulative risks from other nearby potential
stressors.
5. An applicant may apply to the administrator for a formal
determination that a hazardous secondary material is not discarded and
therefore not a solid waste (i.e., nonwaste determination). The determinations
will be based on the criteria contained in subdivision B 6 or B 7 of this
section, as applicable. If an application is denied, the hazardous secondary
material might still be eligible for a solid waste variance or exclusion (e.g.,
one of the solid waste variances under this section). Determinations may also
be granted by the director if the state is either authorized for this provision
or if the following conditions are met:
a. The director determines the hazardous secondary material
meets the criteria in subdivision B 6 or B 7 of this section, as applicable;
b. The state requests that EPA review its determination; and
c. EPA approves the state determination.
6. The director may grant a nonwaste determination for
hazardous secondary material that is reclaimed in a continuous industrial
process if the applicant demonstrates that the hazardous secondary material is
a part of the production process and is not discarded. The determination will
be based on whether the hazardous secondary material is legitimately recycled
as specified in 40 CFR 260.43 and on the following criteria:
a. The extent that the management of the hazardous secondary
material is part of the continuous primary production process and is not waste
treatment;
b. Whether the capacity of the production process would use
the hazardous secondary material in a reasonable timeframe and ensure that the
hazardous secondary material will not be abandoned (e.g., based on past
practices, market factors, the nature of the hazardous secondary material, or
any contractual arrangements);
c. Whether the hazardous constituents in the hazardous
secondary material are reclaimed rather than released to the air, water, or
land at significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be released by the
production process; and
d. Other relevant factors that demonstrate the hazardous
secondary material is not discarded, including why the hazardous secondary
material cannot meet, or should not have to meet, the conditions of an
exclusion under 40 CFR 261.2 or 40 CFR 261.4.
7. The director may grant a nonwaste determination for
hazardous secondary material that is indistinguishable in all relevant aspects
from a product or intermediate if the applicant demonstrates that the hazardous
secondary material is comparable to a product or intermediate and is not
discarded. The determination will be based on whether the hazardous secondary
material is legitimately recycled as specified in 40 CFR 260.43 and on the
following criteria:
a. Whether market participants treat the hazardous secondary
material as a product or intermediate rather than a waste (e.g., based on the
current positive value of the hazardous secondary material, stability of
demand, or any contractual arrangements);
b. Whether the chemical and physical identity of the hazardous
secondary material is comparable to commercial products or intermediates;
c. Whether the capacity of the market would use the hazardous
secondary material in a reasonable timeframe and ensure that the hazardous
secondary material will not be abandoned (e.g., based on past practices, market
factors, the nature of the hazardous secondary material, or any contractual
arrangements);
d. Whether the hazardous constituents in the hazardous
secondary material are reclaimed rather than released to the air, water, or
land at significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be released by the
production process; and
e. Other relevant factors that demonstrate the hazardous
secondary material is not discarded, including why the hazardous secondary
material cannot meet, or should not have to meet, the conditions of an
exclusion under 40 CFR 261.2 or 40 CFR 261.4.
9VAC20-60-1430. Petitions to include additional hazardous
wastes.
A. General.
1. Any person seeking to add a hazardous waste or a category
of hazardous waste to the universal waste regulations of 9VAC20-60-273 and Part
XVI (9VAC20-60-1495 et seq.) of this chapter may petition for a regulatory
amendment under this part.
2. To be successful, the petitioner shall demonstrate to the
satisfaction of the director that regulation under the universal waste
regulations of 9VAC20-60-273 and Part XVI of this chapter:
a. Is appropriate for the waste or category of waste;
b. Will improve management practices for the waste or category
of waste; and
c. Will improve implementation of the hazardous waste program.
The petition shall include the information required by
9VAC20-60-1370 C. The petition should also address as many of the factors
listed in subsection B of this section as are appropriate for the waste or
category of waste addressed in the petition.
3. The director will grant or deny a petition using the
factors listed in subsection B of this section. The decision will be based on
the weight of evidence showing that regulation under 9VAC20-60-273 and Part XVI
of this chapter is appropriate for the waste or category of waste, will improve
management practices for the waste or category of waste, and will improve
implementation of the hazardous waste program.
4. The director may request additional information needed to
evaluate the merits of the petition.
5. If the director adds new hazardous wastes to the list
contained in 9VAC20-60-273 and in Part XVI of these regulations, management of
these wastes under the universal waste regulations would only be allowed within
the Commonwealth or other states that have added those particular wastes to
their regulations. Shipments of such wastes to a state where universal waste
standards do not apply to that waste would have to comply with the full
hazardous waste requirements of Parts I through XV of this chapter.
B. Factors to consider.
1. The waste or category of waste, as generated by a wide
variety of generators, is listed in Subpart D of 40 CFR Part 261, or (if not
listed) a proportion of the waste stream exhibits one or more characteristics
of hazardous waste identified in Subpart C of 40 CFR Part 261. (When a
characteristic waste is added to the universal waste regulations of
9VAC20-60-273 and Part XVI of this chapter by using a generic name to identify
the waste category (e.g., batteries), the definition of universal waste will be
amended to include only the hazardous waste portion of the waste category
(e.g., hazardous waste batteries). Thus, only the portion of the waste stream
that does exhibit one or more characteristics (i.e., is hazardous waste) is
subject to the universal waste regulations of 9VAC20-60-273 and Part XVI of
this chapter;
2. The waste or category of waste is not exclusive to a
specific industry or group of industries, is commonly generated by a wide
variety of types of establishments (including, for example, households, retail
and commercial businesses, office complexes, conditionally exempt very
small quantity generators, small businesses, government organizations, as well
as large industrial facilities);
3. The waste or category of waste is generated by a large
number of generators (e.g., more than 1,000 nationally) and is frequently
generated in relatively small quantities by each generator;
4. Systems to be used for collecting the waste or category of
waste (including packaging, marking, and labeling practices) would ensure close
stewardship of the waste;
5. The risk posed by the waste or category of waste during
accumulation and transport is relatively low compared to other hazardous
wastes, and specific management standards proposed or referenced by the
petitioner (e.g., waste management requirements appropriate to be added to
9VAC20-60-273 or Part XVI of this chapter; and applicable requirements of the Virginia
Regulations Governing the Transportation of Hazardous Materials, 9VAC20-110-10
et seq.) 9VAC20-110) would be protective of human health and the
environment during accumulation and transport;
6. Regulation of the waste or category of waste under
9VAC20-60-273 will increase the likelihood that the waste will be diverted from
nonhazardous waste management systems (e.g., the municipal waste stream,
nonhazardous industrial or commercial waste stream, municipal sewer or
stormwater systems) to recycling, treatment, or disposal in compliance with the
Virginia Hazardous Waste Management Regulations;
7. Regulation of the waste or category of waste under
9VAC20-60-273 will improve implementation of and compliance with the hazardous
waste regulatory program; and
8. Such other factors as may be appropriate.
9VAC20-60-1505. Additional universal wastes.
A. The Commonwealth of Virginia incorporates at 9VAC20-60-273
A all universal wastes adopted by the federal government at 40 CFR Part 273. In
addition to the universal wastes listed in 40 CFR Part 273, the universal
wastes listed in this section are also universal wastes in Virginia if the
requirements as provided in this section for each particular universal waste
are met.
B. Mercury-containing lamps may be crushed for size reduction
provided the requirements of this subsection are met.
1. Mercury-containing lamps are crushed under the control of
the generator as defined in subdivision 4 of this subsection, and the crushed
lamps are sent off site for recycling.
2. The use of mobile crushing units is prohibited. Mobile
crushing units include any device or equipment or combination of devices and
equipment that is designed to be transported and operated at more than one
site.
3. Mercury-containing lamps that are crushed for size
reduction by a generator or under the control of the generator as defined in
subdivision 4 of this subsection may be managed under the provisions for
universal wastes, 9VAC20-60-273, if the owner or operator complies with all the
requirements and qualifications of this section.
4. "Under the control of the generator" means:
a. That the mercury-containing lamps are generated and crushed
at the generating facility (for purposes of this definition, generating
facility means all contiguous property owned, leased, or otherwise controlled
by the universal waste (UW) lamp generator); or
b. That the mercury-containing lamps are generated and crushed
at different facilities if the crushing facility is controlled by the generator
or if both the generating facility and the crushing facility are controlled by
a person as defined in 40 CFR Part 260.10, and if the generator provides one of
the following certifications: (i) "on behalf of [insert generator facility
name], I certify that this facility will send the indicated UW lamps to [insert
crushing facility name], which is controlled by [insert generator facility
name] and that [insert the name of either facility] has acknowledged full
responsibility for the safe management of the UW lamps" or (ii) "on
behalf of [insert generator facility name] I certify that this facility will
send the indicated UW lamps to [insert crushing facility name], that both
facilities are under common control, and that [insert name of either facility]
has acknowledged full responsibility for the safe management of the UW lamps."
For purposes of this certification, "control" means the power to
direct the policies of the facility, whether by the ownership of stock, voting
rights, or otherwise, except that contractors who operate facilities on behalf
of a different person as defined in 40 CFR Part 260.10 shall not be deemed to
"control" such facilities. The certification shall be submitted to
the department in accordance with subdivision 7 (h) of this subsection.
5. Mercury-containing lamp crushing operations that do not
meet the definition of "under the control of the generator" in
subdivision 4 of this subsection are subject to all applicable requirements for
destination facilities in 40 CFR Part 273, Subpart E.
6. Safety hazards to operating personnel shall be controlled
through an active safety program consistent with the requirements of 29 CFR
Part 1910.
7. Crushing, handling, and storing mercury-containing lamps
shall occur in a safe and controlled manner that minimizes the release of
mercury to the environment. Requirements for a safe and controlled manner shall
include the following:
a. Mercury-containing lamps shall be crushed in a mechanical
unit specifically designed to crush mercury-containing lamps. This unit shall
be hermetically sealed, except for air intakes, and under negative pressure.
Air intake points must be closed when the unit is not operating.
b. Crushing operations shall occur in a space with its ambient
air isolated from other work areas where persons who are not involved in the
crushing operation may work. The ambient air from rooms containing crushing
operations shall be discharged after filtration directly to an area outside the
building where persons are unlikely to be directly exposed. If a situation
exists at a particular facility in which the facility determines that discharge
of ambient air from a room containing a crushing operation to the outside is
technically or financially impracticable, the department may approve an
alternated design that allows the discharge of ambient air from a room
containing a crushing operation to another internal building space or
centralized air circulation system if:
(1) The ambient air is discharged to the internal building
space or centralized air circulation system through filtration system capable
of capturing both particulate and vapor phase mercury.
(2) The filtration system is maintained as recommended by the
manufacturer to ensure that it operates at its design mercury removal
efficiency.
(3) Maintenance of the filtration system shall be documented
and records of maintenance shall be kept on site.
c. Mercury-containing lamps shall be crushed with a device
that is equipped with air pollution controls that capture both particulate and
vapor phase mercury. At a minimum, these controls shall include a HEPA filter,
a sorption column of sulfur impregnated activated carbon media, and a negative
air flow (vacuum) throughout the unit. The crushing unit shall have
documentation from the manufacturer that demonstrates that the unit is equipped
as required and:
(1) Achieves a particle retention rate of 99.97% in the HEPA
filter (at a particle diameter less than 0.3 microns); and
(2) Achieves the air emission limits specified in the
risk-based protectiveness standards table of subdivision 7 n (2) of this
subsection.
d. Mercury-containing lamps shall be crushed indoors.
e. The transfer of crushed mercury-containing lamps in drums
or containers to other drums or containers is not permitted.
f. Crushed mercury-containing lamps shall be stored in closed
and hermetically sealed, nonleaking drums or containers that are in good
condition (e.g., no severe rusting, no apparent structural defects, and no
leaking).
g. Drums or containers used for storage of crushed
mercury-containing lamps shall be properly sealed and labeled. The label shall bear
the words "universal waste-lamps," "waste lamps," or
"used lamps."
h. The generator or facility under the control of the
generator shall make written notification to the department of the physical
location of the crushing operation no later than January 31, 2017, for all
existing operations or 30 calendar days prior to beginning operation of a new
crushing operation. The notification shall include the name of the individual
or company that owns the operation; the EPA ID number if one has been issued for
the facility; the location of the crushing operation; and the names, addresses,
and telephone numbers of the operator and principal contact person or persons.
A written notice of changes in the notification data shall be sent to the
department within 15 calendar days of the change. The notification shall
include the certification required under subdivision 4 (b) of this subsection
if applicable.
i. A written procedure specifying how to safely crush, handle,
and store mercury-containing lamps and how to minimize the release of mercury,
including during drum changes and malfunctions, shall be developed,
implemented, and documented. This procedure shall include (i) the type of
equipment to be used to crush mercury-containing lamps safely, (ii)
instructions for proper equipment operation and a schedule for maintenance of
the unit in accordance with written procedures developed by the manufacturer of
the equipment, (iii) proper waste management practices, and (iv) the use of
personal protective equipment to include at a minimum safety glasses or full
face shield and cut-proof gloves. The maintenance schedule shall identify all
maintenance operations and the frequency with which they must be performed,
including replacement of particle filters and the activated carbon media as
recommended by the manufacturer of the crushing unit.
j. Maintenance activities shall be documented and records of
maintenance shall be maintained and available for inspection per subdivision 8
of this subsection.
k. Each unit operator shall receive initial and annual
training in crushing procedures, waste handling, safety, use of personal
protective equipment, and emergency procedures, including proper procedures for
cleaning up broken mercury-containing lamps. All training shall be documented
and records of training shall be maintained and available for inspection per
subdivision 8 of this subsection.
l. Residues, filter media, used equipment, other
mercury-containing equipment, and other solid waste shall not be placed in the
container with the crushed mercury-containing lamps. Any waste materials
generated as part of the crushing operation that are determined to be hazardous
waste shall be managed under this chapter, as hazardous waste or if not
hazardous waste, as a solid waste under the Solid Waste Management Regulations,
9VAC20-81.
m. Any spills of the contents of the mercury-containing lamps
that may occur shall be cleaned up in accordance with 40 CFR Part 273.13(d)(2)
or 40 CFR Part 273.33(d)(2).
n. All generators or facilities under the control of the
generator that crush mercury-containing lamps, except those generators or
facilities that crush two hours or less and no more than 220 pounds/100
kilograms (CESQG (VSQG equivalent) of bulbs per month, shall
provide monitoring as follows:
(1) Ambient air within the lamp crushing room and exhaust air
from the lamp crushing unit shall be tested for mercury during the first month
of using the lamp crushing unit and whenever the unit is modified or replaced,
and annually thereafter. In addition, all connection points for hoses
circulating air from within the unit, the seal between the unit and the drum,
and openings in the crushing unit (e.g., the lamp feed tube) shall also be
tested for mercury release during the first month of lamp crushing operation
and annually thereafter. Routine maintenance of the machine does not constitute
modified or replaced for purposes of requiring ambient air testing. Ambient air
shall be tested within five feet of the lamp crushing device. Exhaust air and
other tests shall be performed within two inches of the designated testing
points on the lamp crushing device. All mercury testing required by this
section shall be performed at a time when the lamp crushing device is being
used to crush mercury-containing lamps.
(2) Testing for mercury releases from lamp crushing units
shall be performed using a mercury vapor analyzer that has been approved for
the application by the U.S. Occupational Safety and Health Administration or
the Virginia Department of Labor and Industry, or a comparable device that has
been calibrated by the manufacturer or laboratory providing the equipment.
Mercury vapor monitors used for testing must be capable of detecting mercury at
the applicable concentrations provided below or lower in air and must be
equipped with a data recording device to provide a record of measurements
taken. Mercury monitoring data shall be documented and available for inspection
per subdivision 8 of this subsection. The acute exposure protectiveness
standard is 300 µg/m3 for a 10-minute exposure with the
understanding that the acute exposure protectiveness standard is considered a
ceiling value and at no time during bulb crushing operation will the air
concentrations of mercury exceed 300 µg/m3. Alternately, compliance
with the acute exposure protectiveness standard may be demonstrated by
comparing the 95% upper confidence level of the mean of the individual data
points to the standard. The following are risk-based protectiveness standards
at a distance of five feet from the bulb crushing unit:
Monthly Bulb Crushing Duration (X Hours/Month)*
|
Chronic Exposure Air Emission Limit (µg/m3)
|
Acute Exposure Air Emission Limit (µg/m3)
|
X = 32
|
1.314skin µg/m3
|
300 µg/m3
|
8 < X < 32
|
6.317 skin µg/m3
|
300 µg/m3
|
X = 8
|
27.375 skin µg/m3
|
300µg/m3
|
X = 2
and no more than 220 lbs/month or 100 kg/month of bulbs
crushed
|
Monitoring not required
|
Monitoring not required
|
*Monthly crushing duration is determined based on the
maximum number of hours that bulb crushing occurred in any one month over the
last 12-month period.
|
(3) Any lamp crushing device that, when tested as described in
subdivisions 7 n (1) and 7 n (2) of this subsection, fails to meet the criteria
specified in subdivision 7 n (2) of this subsection, must immediately be
removed from service. Lamp crushing devices removed from service under this
subdivision may not be returned to service until the device has been inspected
and repaired, and in subsequent testing has been shown to meet the specified
criteria. Test data and documentation of repairs shall be kept in the facility
record and available for inspection per subdivision 8 of this subsection.
(4) The facility shall document the amount of time spent
crushing lamps and this information shall be maintained in the facility record
and available for inspection per subdivision 8 of this subsection.
8. A copy of all records, notifications, certifications, and
reports required by this section shall be kept on site and be available for
examination by the department for a period of at least three years.
9. All requirements of this section shall be immediately
effective for all new facilities beginning operations on or after January 1,
2017. All requirements of this section shall be effective for all existing
facilities no later than April 1, 2017.
VA.R. Doc. No. R19-5986; Filed June 26, 2019, 1:44 p.m.
TITLE 9. ENVIRONMENT
VIRGINIA WASTE MANAGEMENT BOARD
Fast-Track Regulation
Title of Regulation: 9VAC20-70. Financial Assurance
Regulations for Solid Waste Disposal, Transfer and Treatment Facilities (amending 9VAC20-70-210, 9VAC20-70-290).
Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the
Code of Virginia; §§ 1008(a)(3), 2002, and 4004(a) of the Resource Conservation
and Recovery Act; 40 CFR Part 258.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: August 21, 2019.
Effective Date: September 5, 2019.
Agency Contact: Melissa Porterfield, Department of
Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105,
Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email
melissa.porterfield@deq.virginia.gov.
Basis: Section 10.1-1402 of the Code of Virginia
authorizes the Virginia Waste Management Board to promulgate and enforce
regulations necessary to carry out its powers and duties and the intent of the
chapter and federal law. Section 10.1-1410 of the Code of Virginia authorizes
the board to promulgate regulations that ensure that if a solid waste
treatment, transfer, or disposal facility is abandoned, the costs associated
with protecting the public health and safety from the consequences of such abandonment
may be recovered from the person abandoning the facility.
Purpose: This amendment removes language that is no
longer applicable. Removing the obsolete language will avoid confusion
concerning the requirements applicable to local governments using the local
government financial test. The amendments protect public health, safety and
welfare by providing clarity to local governments required to provide financial
assurance for their activities.
Rationale for Using Fast-Track Rulemaking Process: This
action makes technical corrections. A previous amendment to this regulation
removed requirements for local governments to provide additional financial
assurance if their closure cost obligations are between 20% and 43% of their
total annual revenue. The amendments remove obsolete language pertaining to the
removal of the requirement for additional financial assurance to be provided
when the locality's closure cost obligations are between 20% and 43% of their
total annual revenue. The amendments do not change any financial assurance
requirements for local governments and avoid confusion concerning the
applicable regulatory requirements.
This regulatory action is expected to be noncontroversial since
it deletes obsolete language. It does not change any requirements of the local
government financial test. An informal public comment period was held on the
proposed changes and no comments were received on the changes.
Substance: Corrections are being made to remove obsolete
language related to the local government financial test that is no longer
applicable. The amendments do not change any requirements of the local
government financial test.
Issues: The primary advantage of this action is the
removal of obsolete language, which makes the requirements related to the local
government financial test easier to understand. This change benefits the
regulated community and the agency. There are no disadvantages to the public,
agency, Commonwealth, or regulated community.
Department of Planning and Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. The Virginia
Waste Management Board (Board) proposes to eliminate obsolete language.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. The
purpose of this regulation is to assure that owners and operators of permitted
or unpermitted waste management facilities are financially responsible for the
closure, post-closure care and corrective action at their facilities. The
regulation establishes standards and procedures for financial assurance to be
used in the issuance and continuation of permits to construct, operate, modify,
close, or provide post-closure care and to be used in the performance of
corrective actions or in formulation of enforcement documents issued by the
Department of Environmental Quality.
Eliminating obsolete language would have no impact on
requirements in practice but would be beneficial in that clarity for readers of
the regulation would be improved.
Businesses and Entities Affected. As the proposed amendments do
not change any requirements in practice and only improve the clarity of the
requirements, it is readers of the regulation that are particularly affected.
Localities Particularly Affected. The proposed amendments do
not disproportionately affect particular localities.
Projected Impact on Employment. The proposed amendments would
not affect employment.
Effects on the Use and Value of Private Property. The proposed
amendments do not significantly affect the use and value of private property.
Real Estate Development Costs. The revised proposed amendments
do not significantly 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 amendments do not significantly affect costs for small businesses.
Alternative Method that Minimizes
Adverse Impact. The proposed amendments do not adversely affect small
businesses.
Adverse Impacts:
Businesses. The proposed
amendments do not adversely affect businesses.
Localities. The proposed
amendments do not adversely affect localities.
Other Entities. The proposed
amendments do not adversely affect other entities.
__________________
1Adverse impact is indicated if there is any increase in
cost for any entity, even if the benefits exceed the costs.
Agency's Response to Economic Impact Analysis: The
Department of Environmental Quality has reviewed the economic impact analysis
prepared by the Department of Planning and Budget and has no comment.
Summary:
The amendments remove language pertaining to an obsolete
requirement for additional financial assurance to be provided when a locality's
closure cost obligations are between 20% and 43% of their total annual revenue.
This action does not change any financial assurance requirements for local
governments.
9VAC20-70-210. Local government financial test.
An owner or operator that satisfies the requirements of
subdivisions 1 through 3 of this section may demonstrate financial assurance
using the local government financial test up to the amount specified in
subdivision 4 of this section.
1. Financial component.
a. The owner or operator shall satisfy the provisions of
subdivision 1 a of this section, as applicable:
(1) If the owner or operator has outstanding, rated, general
obligation bonds that are not secured by insurance, a letter of credit, or
other collateral or guarantee, he shall supply the director with documentation
demonstrating that the owner or operator has a current rating of Aaa, Aa, A, or
Baa, as issued by Moody's, or AAA, AA, A, or BBB, as issued by Standard and
Poor's on all such general obligation bonds; or
(2) If the owner or operator does not have outstanding, rated
general obligation bonds, he shall satisfy each of the following financial
ratios based on the owner's or operator's most recent audited annual financial
statement:
(a) A ratio of cash plus marketable securities to total
expenditures greater than or equal to 0.05; and
(b) A ratio of annual debt service to total expenditures less
than or equal to 0.20.
b. The owner or operator shall prepare his financial
statements in conformity with Generally Accepted Accounting Principles for
governments and have its his financial statements audited by an
independent certified public accountant or by the Auditor of Public Accounts.
c. An owner or operator is not eligible to assure its his
obligations under this section if he:
(1) Is currently in default on any outstanding general
obligation bonds;
(2) Has any outstanding general obligation bonds rated lower
than Baa as issued by Moody's or BBB as issued by Standard and Poor's;
(3) Operated at a deficit equal to 5.0% or more of total
annual revenue in each of the past two fiscal years; or
(4) Receives an adverse opinion, disclaimer of opinion, or
other qualified opinion from the independent certified public accountant or
Auditor of Public Accounts auditing its his financial statement
as required under subdivision 1 b of this section. However, the director may
evaluate qualified opinions on a case-by-case basis and allow use of the
financial test in cases where the director deems the qualification insufficient
to warrant disallowance of the test.
2. Public notice component. The local government owner or
operator shall place a reference to the closure, post-closure care, or
corrective action costs assured through the financial test into the next
comprehensive annual financial report (CAFR) after January 7, 1998, or prior to
the initial receipt of waste at the facility, whichever is later. Disclosure
shall include the nature and source of closure and post-closure requirements,
the reported liability at the balance sheet date, the estimated total closure
and post-closure care cost remaining to be recognized, the percentage of
landfill capacity used to date, and the estimated landfill life in years. A
reference to corrective action cost shall be placed in CAFR no later than 120
days after the corrective action remedy has been selected in accordance with
9VAC20-81-260. For the first year the financial test is used to assure costs at
a particular facility, the reference may instead be placed in the operating
record until issuance of the next available CAFR if timing does not permit the
reference to be incorporated into the most recently issued CAFR or budget. For
closure and post-closure care costs, conformance with Government Accounting
Standards Board Statement 18 assures compliance with this public notice
component.
3. Recordkeeping and reporting requirements.
a. The local government owner or operator must submit to the department
the following items and place copies of the items in the facility's operating
record:
(1) An original letter signed by the local government's chief
financial officer worded as specified in 9VAC20-70-290 G;
(2) The local government's independently audited year-end
financial statements for the latest fiscal year, including the unqualified
opinion of the auditor who must be an independent, certified public accountant
or an appropriate state agency that conducts equivalent comprehensive audits;
(3) A report to the local government from the local
government's independent certified public accountant (CPA) or the Auditor of
Public Accounts based on performing an agreed upon procedures engagement
relative to the financial ratios required by subdivision 1 a (2) of this
section, if applicable, and the requirements of subdivisions 1 b, 1 c (3),
and 1 c (4) of this section. The CPA or state agency's report shall state the
procedures performed and the CPA or state agency's findings;
(4) A copy of the comprehensive annual financial report (CAFR)
used to comply with subdivision 2 of this section or certification that the
requirements of General Accounting Standards Board Statement 18 have been met; and
(5) A certification from the local government's chief executive
officer stating in detail the method selected by the local government for
funding closure and post-closure costs. If the method selected by the local
government is a trust fund, escrow account or similar mechanism, there
shall be included a certification from the local government's chief financial
officer indicating the current reserve obligated to closure and post-closure
care cost. If the method selected by local governments is the use of annual
operating budget and Capital Investment Funds, there shall be a certification
from the local government's chief financial officer so indicating. Nothing
herein shall be construed to prohibit the local government from revising its
plan for funding closure and post-closure care costs if such revision provides
economic benefit to the local government and if such revision provides adequate
means for funding closure and post-closure care cost. This certification shall
be worded as specified in 9VAC20-70-290 H; and (6) If the local government
is required under this section to fund a restricted sinking fund, escrow
account, or to obtain an irrevocable letter of credit, an original letter
signed by the local government's chief financial officer and worded as
specified in 9VAC20-70-290 I must be submitted.
b. The items required in subdivision 3 a of this section shall
be submitted to the department and placed in the facility operating record as
follows:
(1) In the case of closure and post-closure care, either
before January 7, 1998, or prior to the initial receipt of waste at the
facility, whichever is later; or
(2) In the case of corrective action, not later than 120 days
after the corrective action remedy is selected in accordance with the
requirements of 9VAC20-81-260.
c. After the initial submission of the items, the local
government owner or operator must update the information, place a copy of the
updated information in the operating record, and submit the updated
documentation described in subdivisions 3 a (1) through (6) of this section to
the department within 180 days following the close of the owner or operator's
fiscal year.
d. The local government owner or operator is no longer
required to meet the requirements of subdivision 3 of this section when:
(1) The owner or operator substitutes alternate financial
assurance as specified in this section; or
(2) The owner or operator is released from the requirements of
this section in accordance with 9VAC20-70-111 E, 9VAC20-70-112 B, or
9VAC20-70-113 C.
e. A local government shall satisfy the requirements of the financial
test at the close of each fiscal year. If the local government owner or
operator no longer meets the requirements of the local government financial
test it must, within 210 days following the close of the owner or operator's
fiscal year, obtain alternative financial assurance that meets the requirements
of this section, place a copy of the financial assurance mechanism in the
operating record, and submit the original financial assurance mechanism to the
director.
f. The director, based on a reasonable belief that the local
government owner or operator may no longer meet the requirements of the local
government financial test, may require additional reports of financial
condition from the local government at any time. If the director finds, on the basis
of such reports or other information, that the owner or operator no longer
meets the requirements of the local government financial test, the local
government shall provide alternate financial assurance in accordance with this
article.
4. Calculation of costs to be assured. The portion of the
closure, post-closure, and corrective action costs for which an owner or
operator can assure under subdivision 1 of this section is determined as
follows:
a. If the local government owner or operator does not assure
other environmental obligations through a financial test, it may assure
closure, post-closure, and corrective action costs that equal up to 43% of the
local government's total annual revenue or the sum of total revenues of
constituent governments in the case of regional authorities.
b. If the local government assures other environmental
obligations through a financial test, including those associated with UIC
facilities under 40 CFR 144.62, petroleum underground storage tank facilities
under 9VAC25-590, PCB polychlorinated biphenyls storage
facilities under 40 CFR Part 761, and hazardous waste treatment, storage, and
disposal facilities under Part IX or X of the Virginia Hazardous Waste
Management Regulations (9VAC20-60), it shall add those costs to the closure,
post-closure, and corrective action costs it seeks to assure under subdivision
1 of this section. The total shall not exceed 43% of the local government's
total annual revenue.
c. The owner or operator shall obtain an alternate financial
assurance mechanism for those costs that exceed the limits set in subdivisions
4 a and 4 b of this section.
9VAC20-70-290. Wording of financial mechanisms.
A. Wording of trust agreements.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
TRUST AGREEMENT
Trust agreement, the "Agreement," entered into as
of (date) by and between (name of the owner or operator), a (State)
(corporation, partnership, association, proprietorship), the
"Grantor," and (name of corporate trustee), a (State corporation)
(national bank), the "Trustee."
Whereas, the Virginia Waste Management Board has established
certain regulations applicable to the Grantor, requiring that the owner or
operator of a (solid) (regulated medical) (yard) waste (transfer station)
(receiving) (management) facility must provide assurance that funds will be
available when needed for (closure, post-closure care, or corrective action) of
the facility,
Whereas, the Grantor has elected to establish a trust to
provide (all or part of) such financial assurance for the facility identified
herein,
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee,
Now, therefore, the Grantor and the Trustee agree as follows:
Section 1. Definitions. As used in this Agreement:
A. The term "fiduciary" means any person who
exercises any power of control, management, or disposition or renders investment
advice for a fee or other compensation, direct or indirect, with respect to any
moneys or other property of this trust fund, or has any authority or
responsibility to do so, or who has any authority or responsibility in the
administration of this trust fund.
B. The term "Grantor" means the owner or operator
who enters into this Agreement and any successors or assigns of the Grantor.
C. The term "Trustee" means the Trustee who enters
into this Agreement and any successor Trustee.
Section 2. Identification of Facility and Cost Estimates.
This Agreement pertains to facility(ies) and cost estimates identified on
attached Schedule A.
(NOTE: On Schedule A, for each facility list, as applicable,
the permit number, name, address, and the current closure, post-closure,
corrective action cost estimates, or portions thereof, for which financial
assurance is demonstrated by this Agreement.)
Section 3. Establishment of Fund. The Grantor and the Trustee
hereby establish a trust fund, the "Fund," for the benefit of the
Department of Environmental Quality, Commonwealth of Virginia. The Grantor and
the Trustee intend that no third party have access to the Fund except as herein
provided. The Fund is established initially as property consisting of cash or
securities, which are acceptable to the Trustee, described in Schedule B
attached hereto. Such property and any other property subsequently transferred
to the Trustee is referred to as the fund, together with all earnings and
profits thereon, less any payments or distributions made by the Trustee
pursuant to this Agreement. The Fund will be held by the Trustee, IN TRUST, as
hereinafter provided. The Trustee undertakes no responsibility for the amount
or adequacy of, nor any duty to collect from the Grantor, any payments to
discharge any liabilities of the Grantor established by the Commonwealth of
Virginia's Department of Environmental Quality.
Section 4. Payment for (Closure, Post-Closure Care, or
Corrective Action). The Trustee will make such payments from the Fund as the
Department of Environmental Quality, Commonwealth of Virginia will direct, in
writing, to provide for the payment of the costs of (closure, post-closure
care, corrective action) of the facility covered by this Agreement. The Trustee
will reimburse the Grantor or other persons as specified by the Department of
Environmental Quality, Commonwealth of Virginia, from the Fund for (closure,
post-closure care, corrective action) expenditures in such amounts as the
Department of Environmental Quality will direct, in writing. In addition, the
Trustee will refund to the Grantor such amounts as the Department of
Environmental Quality specifies in writing. Upon refund, such funds will no
longer constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund. Payments made to the
Trustee for the fund will consist of cash or securities acceptable to the
Trustee.
Section 6. Trustee Management. The Trustee will invest and
reinvest the principal and income of the Fund and keep the Fund invested as a
single fund, without distinction between principal and income, in accordance
with investment guidelines and objectives communicated in writing to the
Trustee from time to time by the Grantor, subject, however, to the provisions
of this Section. In investing, reinvesting, exchanging, selling and managing
the Fund, the Trustee or any other fiduciary will discharge his duties with
respect to the trust fund solely in the interest of the beneficiary and with
the care, skill, prudence, and diligence under the circumstances then
prevailing which persons of prudence, acting in a like capacity and familiar
with such matters, would use in the conduct of any enterprise of a like
character and with like aims; except that:
A. Securities or other obligations of the Grantor, or any
other owner or operator of the facility, or any of their affiliates as defined
in the Investment Company Act of 1940, as amended, 15 USC § 80a-2(a), will not
be acquired or held, unless they are securities or other obligations of the
federal or a state government;
B. The Trustee is authorized to invest the Fund in time or
demand deposits of the Trustee, to the extent insured by an agency of the
federal or state government; and
C. The Trustee is authorized to hold cash awaiting investment
or distribution uninvested for a reasonable time and without liability for the
payment of interest thereon.
Section 7. Commingling and Investment. The Trustee is
expressly authorized in its discretion:
A. To transfer from time to time any or all of the assets of
the Fund to any common, commingled or collective trust fund created by the
Trustee in which the Fund is eligible to participate subject to all of the
provisions thereof, to be commingled with the assets of other trusts
participating herein. To the extent of the equitable share of the Fund in any
such commingled trust, such commingled trust will be part of the Fund; and
B. To purchase shares in any investment company registered
under the Investment Company Act of 1940, 15 USC § 80a-1 et seq., of
one which may be created, managed, underwritten, or to which investment advice
is rendered or the shares of which are sold by the Trustee. The Trustees may
vote such shares in its discretion.
Section 8. Express Powers of Trustee. Without in any way
limiting the powers and discretions conferred upon the Trustee by the other
provisions of this Agreement or by law, the Trustee is expressly authorized and
empowered:
A. To sell, exchange, convey, transfer or otherwise dispose of
any property held by it, by private contract or at public auction. No person
dealing with the Trustee will be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other dispositions;
B. To make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other instruments that may
be necessary or appropriate to carry out the powers herein granted;
C. To register any securities held in the fund in its own name
or in the name of a nominee and to hold any security in bearer form or in book
entry, or to combine certificates representing such securities with
certificates of the same issue held by the Trustee in other fiduciary
capacities, or to deposit or arrange for the deposit of such securities in a
qualified central depository even though, when so deposited, such securities
may be merged and held in bulk in the name of the nominee of such depository
with other securities deposited therein by another person, or to deposit or
arrange for the deposit of any securities issued by the United State
government, or any agency or instrumentality thereof with a Federal Reserve
Bank, but the books and records of the Trustee will at all times show that all
such securities are part of the Fund;
D. To deposit any cash in the fund in interest-bearing
accounts maintained or savings certificates issued by the Trustee, in its
separate corporate capacity, or in any other banking institution affiliated
with the Trustee, to the extent insured by an agency of the Federal or State
government; and
E. To compromise or otherwise adjust all claims in favor of or
against the Fund.
Section 9. Taxes and Expenses. All taxes of any kind that may
be assessed or levied against or in respect of the Fund and all brokerage commissions
incurred by the Fund will be paid from the Fund. All other expenses incurred by
the Trustee in connection with the administration of this Trust, including fees
for legal services rendered to the Trustee, the compensation of the Trustee to
the extent not paid directly by the Grantor, and all other proper charges and
disbursements of the Trustee will be paid from the Fund.
Section 10. Annual Valuation. The Trustee will annually, at
the end of the month coincident with or preceding the anniversary date of
establishment of the Fund, furnish the Grantor and to the director of the
Department of Environmental Quality, Commonwealth of Virginia, a statement
confirming the value of the Trust. Any securities in the Fund will be valued at
market value as of no more than 30 days prior to the date of the statement. The
failure of the Grantor to object in writing to the Trustee within 90 days after
the statement has been furnished to the Grantor and the director of the
Department of Environmental Quality, Commonwealth of Virginia will constitute a
conclusively binding assent by the Grantor, barring the Grantor from asserting
any claim or liability against the Trustee with respect to matters disclosed in
the statement.
Section 11. Advice of Counsel. The Trustee may from time to
time consult with counsel, who may be counsel to the Grantor, with respect to
any question arising as to the construction of this Agreement or any action to
be taken hereunder. The Trustee will be fully protected, to the extent
permitted by law, in acting upon the advice of counsel.
Section 12. Trustee Compensation. The Trustee will be
entitled to reasonable compensation for its services as agreed upon in writing
from time to time with the Grantor.
Section 13. Successor Trustee. The Trustee may resign or the
Grantor may replace the Trustee, but such resignation or replacement shall not
be effective until the Grantor has appointed a successor trustee and this
successor accepts the appointment. The successor trustee shall have the same
powers and duties as those conferred upon the Trustee hereunder. Upon
acceptance of the appointment by the successor trustee, the Trustee will
assign, transfer and pay over to the successor trustee the funds and properties
then constituting the Fund. If for any reason the grantor cannot or does not
act in the event of the resignation of the Trustee, the Trustee may apply to a
court of competent jurisdiction for the appointment of a successor trustee or
for instructions. The successor trustee and the date on which he assumes
administration of the trust will be specified in writing and sent to the
Grantor, the director of the Department of Environmental Quality, Commonwealth
of Virginia, and the present trustees by certified mail 10 days before such
change becomes effective. Any expenses incurred by the Trustee as a result of
any of the acts contemplated by this section will be paid as provided in Part
IX.
Section 14. Instructions to the Trustee. All orders, requests
and instructions by the Grantor to the Trustee will be in writing, signed by
such persons as are designated in the attached Exhibit A or such other
designees as the grantor may designate by amendment to Exhibit A. The Trustee
will be fully protected in acting without inquiry in accordance with the Grantor's
orders, requests and instructions. All orders, requests, and instructions by
the Director of the Department of Environmental Quality, Commonwealth of
Virginia, to the Trustee will be in writing, signed by the Director and the
Trustee will act and will be fully protected in acting in accordance with such
orders, requests and instructions. The Trustee will have the right to assume,
in the absence of written notice to the contrary, that no event constituting a
change or a termination of the authority of any person to act on behalf of the
Grantor or the Commonwealth of Virginia's Department of Environmental Quality
hereunder has occurred. The Trustee will have no duty to act in the absence of
such orders, requests and instructions from the Grantor and/or the Commonwealth
of Virginia's Department of Environmental Quality, except as provided for
herein.
Section 15. Notice of Nonpayment. The Trustee will notify the
Grantor and the Director of the Department of Environmental Quality,
Commonwealth of Virginia, by certified mail within 10 days following the
expiration of the 30-day period after the anniversary of the establishment of
the Trust, if no payment is received from the Grantor during that period. After
the pay-in period is completed, the Trustee is not required to send a notice of
nonpayment.
Section 16. Amendment of Agreement. This Agreement may be
amended by an instrument in writing executed by the Grantor, the Trustee, and
the Director of the Department of Environmental Quality, Commonwealth of
Virginia, or by the Trustee and the Director of the Department of Environmental
Quality, Commonwealth of Virginia, if the Grantor ceases to exist.
Section 17. Irrevocability and Termination. Subject to the
right of the parties to amend this Agreement as provided in Section 16, this
Trust will be irrevocable and will continue until terminated at the written
agreement of the Grantor, the Trustee, and the Director of the Department of
Environmental Quality, Commonwealth of Virginia, or by the Trustee and the
Director if the Grantor ceases to exist. Upon termination of the Trust, all
remaining trust property, less final trust administration expenses, will be
delivered to the Grantor.
Section 18. Immunity and Indemnification. The Trustee will
not incur personal liability of any nature in connection with any act or
omission, made in good faith, in the administration of this Trust, or in
carrying out any directions by the Grantor or the Director of the Department of
Environmental Quality, Commonwealth of Virginia, issued in accordance with this
Agreement. The Trustee will be indemnified and saved harmless by the Grantor or
from the Trust Fund, or both, from and against any personal liability to which
the Trustee may be subjected by reason of any act or conduct in its official
capacity, including all expenses reasonably incurred in its defense in the
event the Grantor fails to provide such defense.
Section 19. Choice of Law. This Agreement will be
administered, construed and enforced according to the laws of the Commonwealth
of Virginia.
Section 20. Interpretation. As used in the Agreement, words
in the singular include the plural and words in the plural include the
singular. The descriptive headings for each section of this Agreement will not
affect the interpretation of the legal efficacy of this Agreement.
In witness whereof the parties have caused this Agreement to
be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written.
The parties below certify that the wording of this Agreement is identical to
the wording specified in 9VAC20-70-290 A of the Financial Assurance Regulations
for Solid Waste Disposal, Transfer and Treatment Facilities, as such
regulations were constituted on the date shown immediately below.
(Signature of Grantor)
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By: (Title)
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(Date)
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Attest:
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(Title)
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(Date)
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(Seal)
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(Signature of Trustee)
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By
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Attest:
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(Title)
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(Seal)
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(Date)
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Certification of Acknowledgment:
COMMONWEALTH OF VIRGINIA
STATE OF __________
CITY/COUNTY OF __________
On this date, before me personally came (owner or operator)
to me known, who being by me duly sworn, did depose and say that she/he resides
at (address), that she/he is (title) of (corporation), the corporation described
in and which executed the above instrument; that she/he knows the seal of said
corporation; that the seal affixed to such instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation,
and that she/he signed her/his name thereto by like order.
(Signature of Notary Public)
B. Wording of surety bond guaranteeing performance or
payment.
(NOTE: instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
PERFORMANCE OR PAYMENT BOND
Date bond executed: __________
Effective date: __________
Principal: (legal name and business address) _____________
Type of organization: (insert "individual,"
"joint venture," "partnership," or "corporation")
_____________
State of incorporation: __________
Surety: (name and business address) _____________
Name, address, permit number, if any, and (closure,
post-closure care, or corrective action) cost estimate for the facility:
_____________
Penal sum of bond: $________
Surety's bond number: __________
Know all men by these present, That we, the Principal and
Surety hereto are firmly bound to the Department of Environmental Quality,
Commonwealth of Virginia, (hereinafter called the Department) in the above
penal sum for the payment of which we bind ourselves, our heirs, executors,
administrators, successors and assigns, jointly and severally; provided that,
where the Surety(ies) are corporations acting as co-sureties, we, the Sureties,
bind ourselves in such sum "jointly and severally" only for the
purpose of allowing a joint action or actions against any or all of us, and for
all other purposes each Surety binds itself, jointly and severally with the
Principal, for the payment of each sum only as is set forth opposite the name
of such Surety, but if no limit of liability is indicated, the limit of
liability shall be the full amount of the penal sum.
Whereas, said Principal is required to have a permit from the
Department of Environmental Quality, Commonwealth of Virginia, in order to own
or operate the (solid, regulated medical, yard) waste management facility
identified above, and
Whereas, said Principal is required to provide financial
assurance for (closure, post-closure care, corrective action) of the facility
as a condition of the permit or an order issued by the department,
Now, therefore the conditions of this obligation are such
that if the Principal shall faithfully perform (closure, post-closure care,
corrective action), whenever required to do so, of the facility identified
above in accordance with the order or the (closure, post-closure care,
corrective action) plan submitted to receive said permit and other requirements
of said permit as such plan and permit may be amended or renewed pursuant to
all applicable laws, statutes, rules, and regulations, as such laws, statutes,
rules, and regulations may be amended,
Or, if the Principal shall faithfully perform (closure,
post-closure care, corrective action) following an order to begin (closure,
post-closure care, corrective action) issued by the Commonwealth of Virginia's
Department of Environmental Quality or by a court, or following a notice of
termination of the permit,
Or, if the Principal shall provide alternate financial
assurance as specified in the Department's regulations and obtain the
director's written approval of such assurance, within 90 days of the date
notice of cancellation is received by the Director of the Department of
Environmental Quality from the Surety, then this obligation will be null and void,
otherwise it is to remain in full force and effect for the life of the
management facility identified above.
The Surety shall become liable on this bond obligation only
when the Principal has failed to fulfill the conditions described above. Upon
notification by the Director of the Department of Environmental Quality,
Commonwealth of Virginia, that the Principal has been found in violation of the
requirements of the Department's regulations, the Surety must either perform
(closure, post-closure care, corrective action) in accordance with the approved
plan and other permit requirements or forfeit the (closure, post-closure care,
corrective action) amount guaranteed for the facility to the Commonwealth of
Virginia.
Upon notification by the Director of the Department of
Environmental Quality, Commonwealth of Virginia, that the Principal has been
found in violation of an order to begin (closure, post-closure care, corrective
action), the Surety must either perform (closure, post-closure care, corrective
action) in accordance with the order or forfeit the amount of the (closure,
post-closure care, corrective action) guaranteed for the facility to the
Commonwealth of Virginia.
The Surety hereby waives notification of amendments to the
(closure, post-closure care, corrective action) plans, orders, permit,
applicable laws, statutes, rules, and regulations and agrees that such
amendments shall in no way alleviate its obligation on this bond.
For purposes of this bond, (closure, post-closure care,
corrective action) shall be deemed to have been completed when the Director of
the Department of Environmental Quality, Commonwealth of Virginia, determines
that the conditions of the approved plan have been met.
The liability of the Surety shall not be discharged by any
payment or succession of payments hereunder, unless and until such payment or
payments shall amount in the aggregate to the penal sum of the bond, but the
obligation of the Surety hereunder shall not exceed the amount of said penal
sum unless the Director of the Department of Environmental Quality,
Commonwealth of Virginia, should prevail in an action to enforce the terms of
this bond. In this event, the Surety shall pay, in addition to the penal sum
due under the terms of the bond, all interest accrued from the date the
Director of the Department of Environmental Quality, Commonwealth of Virginia,
first ordered the Surety to perform. The accrued interest shall be calculated
at the judgment rate of interest pursuant to § 6.2-302 of the Code of Virginia.
The Surety may cancel the bond by sending written notice of
cancellation to the owner or operator and to the Director of the Department of
Environmental Quality, Commonwealth of Virginia, provided, however, that
cancellation cannot occur (1) during the 120 days beginning on the date of
receipt of the notice of cancellation by the director as shown on the signed
return receipt; or (2) while an enforcement action is pending.
The Principal may terminate this bond by sending written
notice to the Surety, provided, however, that no such notice shall become
effective until the Surety receives written authorization for termination of
the bond by the Director of the Department of Environmental Quality,
Commonwealth of Virginia.
In witness whereof, the Principal and Surety have executed
this Performance Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that
they are authorized to execute this surety bond on behalf of the Principal and
Surety and I hereby certify that the wording of this surety bond is identical
to the wording specified in 9VAC20-70-290 B of the Financial Assurance
Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as
such regulations were constituted on the date shown immediately below.
Principal
Signature(s): __________
Name(s) and Title(s): (typed)__________
Corporate Surety
Name and Address: __________
State of Incorporation: __________
Liability Limit: $___
Signature(s): __________
Name(s) and Title(s): (typed)__________
Corporate Seal:
C. Wording of irrevocable standby letter of credit.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
IRREVOCABLE STANDBY LETTER OF CREDIT
Director
Department of Environmental Quality
P.O. Box 1105
Richmond, Virginia 23218
Dear (Sir or Madam):
We hereby establish our Irrevocable Letter of Credit No......
in your favor at the request and for the account of (owner's or operator's name
and address) up to the aggregate amount of (in words) U.S. dollars $____,
available upon presentation of
1. Your sight draft, bearing reference to this letter of
credit No ____ together with
2. Your signed statement declaring that the amount of the
draft is payable pursuant to regulations issued under the authority of the
Department of Environmental Quality, Commonwealth of Virginia.
The following amounts are included in the amount of this
letter of credit: (Insert the facility permit number, if any, name and address,
and the closure, post-closure care, corrective action cost estimate, or
portions thereof, for which financial assurance is demonstrated by this letter
of credit.)
This letter of credit is effective as of (date) and will
expire on (date at least one year later), but such expiration date will be
automatically extended for a period of (at least one year) on (date) and on
each successive expiration date, unless, at least 120 days before the current
expiration date, we notify you and (owner or operator's name) by certified mail
that we decide not to extend the Letter of Credit beyond the current expiration
date. In the event you are so notified, unused portion of the credit will be
available upon presentation of your sight draft for 120 days after the date of receipt
by you as shown on the signed return receipt or while a compliance procedure is
pending, whichever is later.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we will duly honor such draft upon
presentation to us, and we will pay to you the amount of the draft promptly and
directly.
I hereby certify that I am authorized to execute this letter
of credit on behalf of (issuing institution) and I hereby certify that the
wording of this letter of credit is identical to the wording specified in
9VAC20-70-290 C of the Financial Assurance Regulations for Solid Waste
Disposal, Transfer, and Treatment Facilities as such regulations were
constituted on the date shown immediately below.
Attest:
(Print name and title of
official of issuing institution) (Date)
This credit is subject to (insert "the most recent
edition of the Uniform Customs and Practice for Documentary Credits, published
by the International Chamber of Commerce," of "the Uniform Commercial
Code.")
D. Assignment of certificate of deposit account.
City _______________________ ____________, 20___
FOR VALUE RECEIVED, the undersigned assigns all right, title
and interest to the Virginia Department of Environmental Quality, Commonwealth
of Virginia, and its successors and assigns the Virginia Department of
Environmental Quality the principal amount of the instrument, including all
monies deposited now or in the future to that instrument, indicated below:
() If checked here, this assignment includes all interest now
and hereafter accrued.
Certificate of Deposit Account No. _____________________
This assignment is given as security to the Virginia
Department of Environmental Quality in the amount of _______________________
Dollars ($_____________).
Continuing Assignment. This assignment shall continue to
remain in effect for all subsequent terms of the automatically renewable
certificate of deposit.
Assignment of Document. The undersigned also assigns any
certificate or other document evidencing ownership to the Virginia Department
of Environmental Quality.
Additional Security. This assignment shall secure the payment
of any financial obligation of the (name of owner/operator) to the Virginia
Department of Environmental Quality for ("closure" "post closure
care" "corrective action") at the (facility name and permit
number) located (physical address)
Application of Funds. The undersigned agrees that all or any
part of the funds of the indicated account or instrument may be applied to the
payment of any and all financial assurance obligations of (name of
owner/operator) to the Virginia Department of Environmental Quality for
("closure" "post closure care" "corrective
action") at the (facility name and address). The undersigned authorizes
the Virginia Department of Environmental Quality to withdraw any principal
amount on deposit in the indicated account or instrument including any
interest, if indicated, and to apply it in the Virginia Department of
Environmental Quality's discretion to fund ("closure" "post
closure care" "corrective action") at the (facility name) or in
the event of (owner or operator's) failure to comply with the Virginia
Financial Assurance Regulations for Solid Waste Disposal, Transfer, and
Treatment Facilities, 9VAC20-70. The undersigned agrees that the Virginia
Department of Environmental Quality may withdraw any principal and/or interest
from the indicated account or instrument without demand or notice. (The
undersigned) agrees to assume any and all loss of penalty due to federal
regulations concerning the early withdrawal of funds. Any partial withdrawal of
principal or interest shall not release this assignment.
The party or parties to this Assignment set their hand or
seals, or if corporate, has caused this assignment to be signed in its
corporate name by its duly authorized officers and its seal to be affixed by
authority of its Board of Directors the day and year above written.
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SEAL
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(Owner)
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(print owner's name)
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SEAL
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(Owner)
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(print owner's name)
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THE FOLLOWING SECTION IS TO BE COMPLETED BY THE BRANCH OR
LENDING OFFICE:
The signature(s) as shown above compare correctly with the
name(s) as shown on record as owner(s) of the Certificate of Deposit indicated
above. The above assignment has been properly recorded by placing a hold in the
amount of $ _______________________ for the benefit of the Department of
Environmental Quality.
() If checked here, the accrued interest on the Certificate
of Deposit indicated above has been maintained to capitalize versus being
mailed by check or transferred to a deposit account.
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(Signature)
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(Date)
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(print name)
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(Title)
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E. Wording of certificate of insurance.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
CERTIFICATE OF INSURANCE
Name and Address of Insurer
(herein called the "Insurer"):
_____________
_____________
Name and Address of Insured
(herein called the "Insured"):
_____________
_____________
_____________
Facilities Covered: (List for each facility: Permit number
(if applicable), name, address and the amount of insurance for closure,
post-closure care, or corrective action. (These amounts for all facilities
covered shall total the face amount shown below.))
Face Amount: $ __________
Policy Number: __________
Effective Date: ___________
The Insurer hereby certifies that it has issued to the
Insured the policy of insurance identified above to provide financial assurance
for (insert "closure," "post-closure care,"
"corrective action") for the facilities identified above. The Insurer
further warrants that such policy conforms in all respects with the
requirements of 9VAC20-70-190 of the Financial Assurance Regulations for Solid Waste
Disposal, Transfer, and Treatment Facilities ("Regulations")
(9VAC20-70), as such regulations were constituted on the date shown immediately
below. It is agreed that any provision of the policy inconsistent with such
regulations is hereby amended to eliminate such inconsistency.
Whenever requested by the Director, the Insurer agrees to
furnish to the Director a duplicate original of the policy listed above,
including all endorsements thereon.
I hereby certify that the wording of this certificate is identical
to the wording specified in 9VAC20-70-290 E of the Financial Assurance
Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as
such regulations were constituted on the date shown immediately below.
(Authorized signature for Insurer)
(Name of person signing)
(Title of person signing)
Signature of witness or notary:
(Date)
F. Wording of letter from chief financial officer.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses removed.)
Director
Department of Environmental Quality
P.O. Box 1105
Richmond, Virginia 23218
Dear (Sir, Madam):
I am the chief financial officer of (name and address of
firm). This letter is in support of this firm's use of the financial test to demonstrate
financial assurance, as specified in 9VAC20-70-200 of the Financial Assurance
Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities
(9VAC20-70) ("Regulations").
(Fill out the following four paragraphs regarding solid
waste, regulated medical waste, yard waste composting, hazardous waste,
underground injection (regulated under the federal program in 40 CFR Part 144,
or its equivalent in other states), petroleum underground storage (9VAC25-590),
above ground storage facilities (9VAC25-640) and PCB storage (regulated under
40 CFR Part 761) facilities and associated cost estimates. If your firm has no
facilities that belong in a particular paragraph, write "None" in the
space indicated. For each facility, include its name, address, permit number,
if any, and current closure, post-closure care, corrective action or any other
environmental obligation cost estimates. Identify each cost estimate as to
whether it is for closure, post-closure care, corrective action or other
environmental obligation.)
1. This firm is the owner or operator of the following
facilities for which financial assurance is demonstrated through the corporate
test specified in 9VAC20-70-200 or its equivalent in other applicable
regulations. The current cost estimates covered by the test are shown for each
facility:
2. This firm guarantees, through the corporate guarantee
specified in 9VAC20-70-220, the financial assurance for the following
facilities owned or operated by subsidiaries of this firm. The current cost estimates
so guaranteed are shown for each facility:
3. This firm, as owner or operator or guarantor, is
demonstrating financial assurance for the following facilities through the use
of a financial test. The current cost estimates covered by such a test are
shown for each facility:
4. This firm is the owner or operator of the following waste
management facilities for which financial assurance is not demonstrated through
the financial test or any other financial assurance mechanism. The current cost
estimates for the facilities which are not covered by such financial assurance
are shown for each facility:
This firm (insert "is required" or "is not
required") to file a Form 10K with the Securities and Exchange Commission
(SEC) for the latest fiscal year.
The fiscal year of this firm ends on (month, day). The
figures for the following items marked with an asterisk are derived from this
firm's independently audited, year-end financial statements for the latest
completed fiscal year, ended (date).
1) Sum of current closure, post-closure care, corrective
action or other environmental obligations cost estimates (total of all cost
estimates shown in the four paragraphs above.)
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$_____________
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2) Tangible net worth*
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$_____________
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3) Total assets located in the United States*
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$_____________
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YES
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NO
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Line 2 exceeds line 1 by at least $10 million?
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_____
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_____
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Line 3 exceeds line 1 by at least $10 million?
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_____
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_____
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(Fill in Alternative I if the criteria of 9VAC20-70-200 1 a
(1) are used. Fill in Alternative II if the criteria of 9VAC20-70-200 1 a (2)
are used. Fill in Alternative III if the criteria of 9VAC20-70-200 1 a (3) are
used.)
ALTERNATIVE I
Current bond rating of this firm's senior unsubordinated debt
and name of rating service
Date of issuance of bond
Date of maturity of bond
ALTERNATIVE II
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4) Total liabilities* (if any portion of the closure,
post-closure care, corrective action or other environmental obligations cost
estimates is included in total liabilities, you may deduct the amount of that
portion from this line and add that amount to line 5.)
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$____________
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5) Net worth*
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$____________
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Is line 4 divided by line 5 less than 1.5?
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YES
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NO
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ALTERNATIVE III
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6) Total liabilities*
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$_______
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7) The sum of net income plus
depreciation, depletion, and amortization minus $10 million*
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$_______
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Is line 7 divided by line 6 less than 0.1?
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YES
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NO
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I hereby certify that the wording of this letter is identical
to the wording in 9VAC20-70-290 F of the Financial Assurance Regulations for
Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations
were constituted on the date shown immediately below.
(Signature)
(Name)
(Title)
(Date)
G. Wording of the local government letter from chief
financial officer.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of (insert: name and address
of local government owner or operator, or guarantor). This letter is in support
of the use of the financial test to demonstrate financial responsibility for
("closure care" "post-closure care" "corrective action
costs") arising from operating a solid waste management facility.
The following facilities are assured by this financial test:
(List for each facility: the name and address of the facility, the permit
number, the closure, post-closure and/or corrective action costs, whichever
applicable, for each facility covered by this instrument).
This owner's or operator's financial statements were prepared
in conformity with Generally Accepted Accounting Principles for governments and
have been audited by ("an independent certified public accountant"
"Auditor of Public Accounts"). The owner or operator has not received
an adverse opinion or a disclaimer of opinion from ("an independent
certified public accountant" "Auditor of Public Accounts") on
its financial statements for the latest completed fiscal year.
This owner or operator is not currently in default on any
outstanding general obligation bond. Any outstanding issues of general
obligation, if rated, have a Moody's rating of Aaa, Aa, A, or Baa or a Standard
and Poor's rating of AAA, AA, A or BBB; if rated by both firms, the bonds have
a Moody's rating of Aaa, Aa, A or Baa and a Standard and Poor's rating of AAA,
AA, A, or BBB.
The fiscal year of this owner or operator ends on (month,
day). The figures for the following items marked with the asterisk are derived
from this owner's or operator's independently audited, year-end financial
statements for the latest completed fiscal year ended (date).
(Please complete Alternative I or Alternative II.)
(Fill in Alternative I if the criteria in 9VAC20-70-210 1 a
(1) are used. Fill in Alternative II if the criteria of 9VAC20-70-210 1 a (2)
are used.)
ALTERNATIVE I - BOND RATING TEST
The details of the issue date, maturity, outstanding amount,
bond rating, and bond rating agency of all outstanding general obligation bond
issues that are being used by (name of local government owner or operator, or
guarantor) to demonstrate financial responsibility are as follows: (complete
table):
Issue Date
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Maturity Date
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Outstanding Amount
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Bond Rating
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Rating Agency
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______
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______
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__________
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______
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___________
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______
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______
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__________
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______
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___________
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______
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______
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__________
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______
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___________
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______
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______
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__________
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______
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___________
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______
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______
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__________
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______
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___________
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______
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______
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___________
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______
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___________
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Any outstanding issues of general obligation bonds, if rated,
have a Moody's rating of Aaa, Aa, A, or Baa or a Standard and Poor's rating of
AAA, AA, A or BBB; if rated by both firms, the bonds have a Moody's rating of
Aaa, Aa, A or Baa and a Standard and Poor's rating of AAA, AA, A or BBB.
1) Sum of current closure, post-closure and corrective
action cost estimates (total of all cost estimates listed above)
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$_______________
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*2) Operating Deficit
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(a) latest completed fiscal year (insert year)
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$_______________
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(b) previous fiscal year (insert year)
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$_______________
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*3) Total Revenue
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(a) latest completed fiscal
year (insert year)
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$_______________
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(b) previous fiscal year (insert year)
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$_______________
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4) Other self-insured
environmental costs
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(a) Amount of aggregate
underground injection control systems financial assurance insured by a
financial test under 40 CFR 144.62
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$_______________
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(b) Amount of annual underground storage tank aggregate
coverage insured by a financial test under 40 CFR Part 280 and 9VAC25-590
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$_______________
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(c) Amount of aggregate costs associated with PCB storage
facilities insured by a financial test under 40 CFR Part 761
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$_______________
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(d) Amount of annual aggregate hazardous waste financial
assurance insured by a financial test under 40 CFR Parts 264 and 265 and
9VAC20-60
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$_______________
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(e) Total of lines 4(a) through 4(d)
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$_______________
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YES
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NO
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5) Is (line 2a / line 3a) < 0.05?
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____
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____
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6) Is (line 2b / line 3b) < 0.05?
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____
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____
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7) Is (line 1 + line 4e) <= (line 3a x 0.43)?
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____
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____
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8) Is (line 1 + line 4e) <= (line 3a x 0.20)?
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____
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____
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If the answer to line 7 is yes and the answer to line 8 is
no, please attach documentation from the agent/trustee /issuing institution
stating the current balance of the account/fund /irrevocable letter of credit
as of the latest fiscal reporting year to this form as required by
9VAC20-70-210.
ALTERNATIVE II - FINANCIAL
RATIO TEST
1) Sum of current closure,
post-closure and corrective action cost estimates
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$_______________
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*2) Operating Deficit
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(a) latest completed fiscal year (insert year)
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$_______________
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(b) previous fiscal year (insert year)
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$_______________
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*3) Total Revenue
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(a) latest completed fiscal year (insert year)
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$_______________
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(b) previous fiscal year (insert year)
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$_______________
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4) Other self-insured environmental costs
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(a) Amount of aggregate underground injection control
systems financial assurance insured by a financial test under 40 CFR 144.62
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$_______________
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(b) Amount of annual underground storage tank aggregate
coverage insured by a financial test under 40 CFR Part 280 and 9VAC25-590
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$_______________
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(c) Amount of aggregate costs associated with PCB storage
facilities insured by a financial test under 40 CFR Part 761
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$_______________
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(d) Amount of annual aggregate hazardous waste financial
assurance insured by a financial test under 40 CFR Parts 264 and 265 and
9VAC20-60
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$_______________
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(e) Total of lines 4(a) through 4(d)
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$_______________
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*5) Cash plus marketable securities
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$_______________
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*6) Total Expenditures
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$_______________
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*7) Annual Debt Service
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$_______________
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YES
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NO
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8) Is (line 2a / line 3a) < 0.05?
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____
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____
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9) Is (line 2b / line 3b) < 0.05?
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____
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____
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10) Is (line 1 + line 4e) <= (line 3a x 0.43)?
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____
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____
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11) Is (line 5 / line 6) >= 0.05?
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____
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____
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12) Is (line 7 / line 6) <= 0.20?
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____
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____
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13) Is (line 1 + line 4e) <= (line 3a x.20)
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____
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____
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If the answer to line 13 is
no, please attach documentation from the agent/trustee/issuing institution
stating the current balance of the account/fund/irrevocable letter of credit as
of the latest fiscal reporting year to this form as required by 9VAC20-70-210.
I hereby certify that the wording of this letter is identical
to the wording in 9VAC20-70-290 G of the Financial Assurance Regulations for
Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations
were constituted on the date shown immediately below.
(Signature)
(Name of person signing)
(Title of person signing)
(Date)
H. Certification of funding.
CERTIFICATION OF FUNDING
I certify the following information details the current plan
for funding closure and post closure at the solid waste management facilities
listed below.
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Facility Permit #
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Source for funding closure and post closure
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Name of Locality or Corporation:
_______________________________________
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Signature
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Printed Name
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Date
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Title
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I. Certification of
escrow/sinking fund /irrevocable letter of credit balance.
CERTIFICATION OF ESCROW/SINKING FUND BALANCE OR AMOUNT OF
IRREVOCABLE LETTER OF CREDIT
I am the Chief Financial Officer of (name of locality) and
hereby certify that as of (date) the current balance in the restricted sinking
(type of fund) fund or the escrow account or the amount of the irrevocable
letter of credit restricted to landfill closure costs is $_____________
The calculation used to determine the amount required to
be funded is as follows:
(Show the values that were used in the following formula:
(CE * CD) - E
Where CE is the current closure cost estimate, CD is the
percentage of landfill capacity used to date, and E is current year expenses
for closure.)
Therefore, this account has been funded or an irrevocable
letter of credit has been obtained in accordance with the Financial Assurance
Regulations for Solid Waste Disposal, Transfer and Treatment Facilities,
9VAC20-70.
(Signature)
(Name of person signing)
(Title of person signing)
(Date)
J. I. Wording of corporate guarantee.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses removed.)
CORPORATE GUARANTEE
Guarantee made this (date) by (name of guaranteeing entity),
a business corporation organized under the laws of the state of (insert name of
state), herein referred to as guarantor. This guarantee is made on behalf of
the (owner or operator) of (business address), which is (one of the following:
"our subsidiary"; "a subsidiary of (name and address of common
parent corporation) of which guarantor is a subsidiary"; or "an
entity with which the guarantor has a substantial business relationship, as
defined in Part I of the Virginia Financial Assurance Regulations for Solid
Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70)") to the
Virginia Department of Environmental Quality ("Department"), obligee,
on behalf of our subsidiary (owner or operator) of (business address).
Recitals
1. Guarantor meets or exceeds the financial test criteria in
9VAC20-70-200 and agrees to comply with the reporting requirements for
guarantors as specified in 9VAC20-70-220 of the Financial Assurance Regulations
for Solid Waste Disposal, Transfer, and Treatment Facilities
("Regulations").
2. (Owner or operator) owns or operates the following (solid,
regulated medical, yard) waste management facility(ies) covered by this
guarantee: (List for each facility: name, address, and permit number, if any.
Indicate for each whether guarantee is for closure, post-closure care,
corrective action or other environmental obligations.)
3. "Closure plans", "post-closure care
plans" and "corrective action plans" as used below refer to the
plans maintained as required by the Solid Waste Management Regulations
(9VAC20-81), or the Regulated Medical Waste Management Regulations
(9VAC20-120).
4. For value received from (owner or operator), guarantor
guarantees to the Department that in the event that (owner or operator) fails
to perform (insert "closure," "post-closure care," or
"corrective action") of the above facility(ies) in accordance with
the closure or post-closure care plans and other (requirements of the) permit
or (the order) whenever required to do so, the guarantor shall do so or
establish a trust fund as specified in 9VAC20-70-140 in the name of (owner or
operator) in the amount of the current cost estimates.
5. Guarantor agrees that if, at the end of any fiscal year
before termination of this guarantee, the guarantor fails to meet the financial
test criteria, guarantor shall send within 90 days, by certified mail, notice
to the director and to (owner or operator) that he intends to provide alternate
financial assurance as specified in Article 4 of Part III of the Regulations,
in the name of (owner or operator). Within 120 days after the end of such
fiscal year, the guarantor shall establish such financial assurance unless
(owner or operator) has done so.
6. The guarantor agrees to notify the director by certified
mail, of a voluntary or involuntary proceeding under Title 11 (Bankruptcy),
U.S. Code, naming guarantor as debtor, within 10 days after commencement of the
proceeding.
7. Guarantor agrees that within 30 days after being notified
by the director of a determination that guarantor no longer meets the financial
test criteria or that he is disallowed from continuing as a guarantor of
closure, post-closure care, or corrective action, he shall establish alternate
financial assurance as specified in Article 4 of Part III of the Regulations,
in the name of (owner or operator) unless (owner or operator) has done so.
8. Guarantor agrees to remain bound under this guarantee
notwithstanding any or all of the following: amendment or modification of the
closure, post-closure or corrective action plan, amendment or modification of
the permit, amendment or modification of the order, the extension or reduction
of the time of performance of closure, post-closure, or corrective action or
any other modification or alteration of an obligation of the owner or operator
pursuant to the (Solid Waste Management Regulations or Regulated Medical Waste
Management Regulations or § 10.1-1454.1 of the Code of Virginia).
9. Guarantor agrees to remain bound under this guarantee for
so long as (owner or operator) shall comply with the applicable financial
assurance requirements of Article 4 of Part III of the Regulations for the
above-listed facilities, except as provided in paragraph 10 of this agreement.
10. (Insert the following
language if the guarantor is (a) a direct or higher-tier corporate parent, or
(b) a firm whose parent corporation is also the parent corporation of the owner
or operator:) Guarantor may terminate this guarantee by sending notice by
certified mail to the Director of the Department of Environmental Quality and
to the (owner or operator), provided that this guarantee may not be terminated
unless and until (the owner or operator) obtains and the director approves,
alternate (closure, post-closure, corrective action) coverage complying with
the requirements of 9VAC20-70. (Insert the following language if the guarantor
is a firm qualifying as a guarantor due to its "substantial business
relationship" with the owner or operator:) Guarantor may terminate this
guarantee 120 days following the receipt of notification, through certified
mail, by the director and by (the owner or operator).
11. Guarantor agrees that if (owner or operator) fails to
provide alternate financial assurance as specified in Article 4 of Part III of
the Regulations, and obtain written approval of such assurance from the
director within 90 days after a notice of cancellation by the guarantor is
received by the director from guarantor, guarantor shall provide such alternate
financial assurance in the name of (owner or operator).
12. Guarantor expressly waives notice of acceptance of this
guarantee by the Department or by (owner or operator). Guarantor also expressly
waives notice of amendments or modifications of the closure and/or post-closure
plan and of amendments or modifications of the facility permit(s).
I hereby certify that the wording of this guarantee is
identical to the wording in 9VAC20-70-290 JI of the Financial
Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment
Facilities as such regulations were constituted on the date shown immediately
below.
(Name of guarantor)
Effective date: __________
(Authorized signature for guarantor) __________
(Name of person signing) __________
(Title of person signing) __________
Signature of witness or notary: __________
K. J. Wording of local government guarantee.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses removed.)
LOCAL GOVERNMENT GUARANTEE
Guarantee made this (date) by (name of guaranteeing entity),
a local government created under the laws of the state of Virginia, herein
referred to as guarantor. This guarantee is made on behalf of the (owner or
operator) of (address), to the Virginia Department of Environmental Quality
("Department"), obligee.
Recitals
1. Guarantor meets or exceeds the financial test criteria in
9VAC20-70-210 and agrees to comply with the reporting requirements for
guarantors as specified in 9VAC20-70-230 of the Financial Assurance Regulations
for Solid Waste Disposal, Treatment and Transfer Facilities ("Regulations").
2. (Owner or operator) owns or operates the following (solid,
regulated medical, yard) waste management facility(ies) covered by this
guarantee: (List for each facility: name, address, and permit number, if any.
Indicate for each whether guarantee is for closure, post-closure care,
corrective action or other environmental obligations.)
3. "Closure plans" and "post-closure care
plans" as used below refer to the plans maintained as required by the
Solid Waste Management Regulations (9VAC20-81).
4. For value received from (owner or operator), guarantor
guarantees to the Department that in the event that (owner or operator) fails
to perform (insert "closure," "post-closure care," or
"corrective action") of the above facility(ies) in accordance with the
closure or post-closure care plans and other (requirements of the) permit or
(the order) whenever required to do so, the guarantor shall do so or establish
a trust fund as specified in 9VAC20-70-150 in the name of (owner or operator)
in the amount of the current cost estimates.
5. Guarantor agrees that if, at the end of any fiscal year
before termination of this guarantee, the guarantor fails to meet the financial
test criteria, guarantor shall send within 90 days, by certified mail, notice
to the director and to (owner or operator) that he intends to provide alternate
financial assurance as specified in Article 4 of Part III of the Regulations,
in the name of (owner or operator). Within 120 days after the end of such
fiscal year, the guarantor shall establish such financial assurance unless
(owner or operator) has done so.
6. The guarantor agrees to notify the director by certified
mail, of a voluntary or involuntary proceeding under Title 11 (bankruptcy),
U.S. Code, naming guarantor as debtor, within 10 days after commencement of the
proceeding.
7. Guarantor agrees that within 30 days after being notified
by the director of a determination that guarantor no longer meets the financial
test criteria or that he is disallowed from continuing as a guarantor of
closure, post-closure care, or corrective action, he shall establish alternate
financial assurance as specified in Article 4 of Part III of the Regulations in
the name of (owner or operator) unless (owner or operator) has done so.
8. Guarantor agrees to remain bound under this guarantee
notwithstanding any or all of the following: amendment or modification of the
closure or post-closure plan, amendment or modification of the closure or
post-closure plan, amendment or modification of the permit, amendment or
modification of the order, the extension or reduction of the time of
performance of the closure or post-closure, or any other modification or
alteration of an obligation of the owner or operator pursuant to the Virginia
(Solid Waste Management or Regulated Medical Waste Management) Regulations.
9. Guarantor agrees to remain bound under this guarantee for
so long as (owner or operator) shall comply with the applicable financial
assurance requirements of Article 4 of Part III of the Regulations for the
above-listed facilities, except as provided in paragraph 10 of this agreement.
10. Guarantor may terminate this guarantee by sending notice
by certified mail to the Director of the Department of Environmental Quality
and to the (owner or operator), provided that this guarantee may not be
terminated unless and until (the owner or operator) obtains and the director
approves, alternate (closure, post-closure, corrective action,) coverage
complying with the requirements of 9VAC20-70.
11. Guarantor agrees that if (owner or operator) fails to
provide alternate financial assurance as specified in Article 4 of Part III of
the Regulations, and obtain written approval of such assurance from the
director with 90 days after a notice of cancellation by the guarantor is
received by the director from guarantor, guarantor shall provide such alternate
financial assurance in the name of (owner or operator).
12. Guarantor expressly waives notice of acceptance of this
guarantee by the Department or by (owner or operator). Guarantor also expressly
waives notice of amendments or modifications of the closure and/or post-closure
plan and of amendments or modifications of the facility permit(s).
I hereby certify that the wording of this guarantee is
identical to the wording specified in 9VAC20-70-290 K J of the
Financial Assurance Regulations for Solid Waste Disposal, Transfer and
Treatment Facilities as such regulations were constituted on the date shown
immediately below.
(Name of guarantor) __________
Effective date: __________
(Authorized signature for guarantor) __________
(Name of person signing) __________
(Title of person signing) __________
Signature of witness or notary: __________
VA.R. Doc. No. R19-5480; Filed June 23, 2019, 11:56 a.m.
TITLE 9. ENVIRONMENT
VIRGINIA WASTE MANAGEMENT BOARD
Forms
REGISTRAR'S NOTICE:
Forms used in administering the regulation have been filed by the agency. The
forms are not being published; however, online users of this issue of the
Virginia Register of Regulations may click on the name of a form with a
hyperlink to access it. The forms are also available from the agency contact or
may be viewed at the Office of the Registrar of Regulations, 900 East Main
Street, 11th Floor, Richmond, Virginia 23219.
Title of Regulation: 9VAC20-90. Solid Waste
Management Permit Action Fees and Annual Fees.
Contact Information: Gary Graham, Regulatory Analyst,
Department of Environmental Quality, 1111 East Main Street, Suite 1400,
Richmond, VA 23219, telephone (804) 698-4103, or email gary.graham@deq.virginia.gov.
FORMS (9VAC20-90)
Solid Waste Information and Assessment Program -
Reporting Table, Form DEQ 50-25 with Statement of Economic Benefits Form
and Instructions (rev. 11/2014)
Solid Waste Annual Permit Fee Quarter Payment Form PF001
(rev. 6/2018)
Solid
Waste Annual Permit Fee Quarter Payment Form PF001 (rev. 6/2019)
VA.R. Doc. No. R19-6059; Filed July 1, 2019, 3:32 p.m.
TITLE 9. ENVIRONMENT
VIRGINIA WASTE MANAGEMENT BOARD
Final Regulation
REGISTRAR'S NOTICE: The
Virginia Waste Management Board is claiming an exemption from Article 2 of the
Administrative Process Act in accordance with § 2.2-4006 A 3, which
excludes regulations that consist only of changes in style or form or
corrections of technical errors, and an exemption from Article 2 of the
Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code
of Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations, provided such regulations do not
differ materially from those required by federal law or regulation. The
Virginia Waste Management Board will receive, consider, and respond to
petitions by any interested person at any time with respect to reconsideration
or revision.
Title of Regulation:
9VAC20-110. Regulations Governing the Transportation of Hazardous Materials (amending 9VAC20-110-110).
Statutory Authority: §§ 10.1-1450 and 44-146.30 of
the Code of Virginia; 49 USC §§ 1809 through 1810; 49 CFR Parts 107,
170 through 180, 383, and 390 through 397.
Effective Date: August 21, 2019.
Agency Contact: Debra A. Harris, Department of
Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804)
698-4209, FAX (804) 698-4019, or email debra.harris@deq.virgina.gov.
Summary:
The amendment updates the federal regulations from Title 49
of the Code of Federal Regulations that are incorporated by reference into
Virginia's Regulations Governing the Transportation of Hazardous Materials
(9VAC20-110) to the latest version as published on October 1, 2018.
Part III
Compliance with Federal Regulations
9VAC20-110-110. Compliance.
A. Every person who transports or offers for transportation
hazardous materials within or through the Commonwealth of Virginia shall comply
with the federal regulations governing the transportation of hazardous
materials promulgated by the U.S. Secretary of Transportation with amendments
promulgated as of October 1, 2016 2018, pursuant to the Hazardous
Materials Transportation Act, and located at Title 49 of the Code of Federal
Regulations as set forth below and which are incorporated in these regulations
by reference:
1. Special Permits. 49 CFR Part 107, Subpart B.
2. Registration of Cargo Tank and Cargo Tank Motor Vehicle
Manufacturers, Assemblers, Repairers, Inspectors, Testers, and Design
Certifying Engineers in 49 CFR Part 107, Subpart F.
3. Registration of Persons Who Offer or Transport Hazardous
Materials in 49 CFR Part 107, Subpart G.
4. Hazardous Materials Regulations in 49 CFR Parts 171 through
177.
5. Specifications for Packagings in 49 CFR Part 178.
6. Specifications for Tank Cars in 49 CFR Part 179.
7. Continuing Qualification and Maintenance of Packagings in
49 CFR Part 180.
8. Motor Carrier Safety Regulations in 49 CFR Parts 390
through 397.
B. The references to and
incorporation by reference of 49 CFR Part 390 into this chapter includes
the compliance date extension as promulgated by the U.S. Department of
Transportation's Federal Motor Carrier Safety Administration (83 FR 62505,
December 4, 2018).
VA.R. Doc. No. R19-5539; Filed June 27, 2019, 8:41 p.m.
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Fast-Track Regulation
Title of Regulation: 9VAC25-640. Aboveground Storage
Tank and Pipeline Facility Financial Responsibility Requirements (amending 9VAC25-640-30; repealing 9VAC25-640-250).
Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:16 of
the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: August 21, 2019.
Effective Date: September 5, 2019.
Agency Contact: Melissa Porterfield, Department of
Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105,
Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email
melissa.porterfield@deq.virginia.gov.
Basis: The legal basis for the Aboveground Storage Tank
and Pipeline Facility Financial Responsibility Requirements (9VAC25-640) is the
State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia).
Specifically, § 62.1-44.34:16 D of the Code of Virginia authorizes the State
Water Control Board to promulgate regulations requiring operators of facilities
to demonstrate financial responsibility based on the total storage capacity of
all facilities operated within the Commonwealth and operators of pipelines to
demonstrate financial responsibility for any pipelines operated within the
Commonwealth.
Purpose: The amendment modifies the language in
9VAC25-640-30 to include the revisions made to the exclusions in 9VAC25-91-30
of the Facility and Aboveground Storage Tank (AST) Regulation. This will remove
confusion concerning activities excluded from regulation. The amendments are
necessary to protect the public health, safety, and welfare as they remove
confusion concerning activities excluded from the regulation.
9VAC25-640-250, which is obsolete, is being repealed.
Regulations are periodically reviewed as required by Executive Order 17 (2014)
and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia and the regulatory
language is no longer needed or applicable.
Rationale for Using Fast-Track Rulemaking Process: The
proposed amendments are expected to be noncontroversial and therefore justify
using the fast-track rulemaking process.
Substance: This amendment modifies the language in
9VAC25-640-30 to include the revisions made to the exclusions in 9VAC25-91-30
of the Facility and Aboveground Storage Tank (AST) Regulation. This will remove
confusion concerning activities excluded from regulation.
9VAC25-640-250, which is obsolete is also being repealed.
Issues: The public, regulated community, and agency will
all benefit from these changes. There are no disadvantages to the public,
regulated community, or agency.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The State
Water Control Board (Board) proposes to incorporate the changes that occurred
in a companion regulation.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. This regulation establishes
financial assurance requirements for facilities and individual storage tanks
that are subject to a companion regulation, the Facility and Aboveground
Storage Tank (AST) Regulation (9VAC25-91). The companion regulation contains
the technical requirements for registration of facilities and individual ASTs
among others. The Board recently excluded ASTs that are an integral part of an
equipment or machinery (e.g., fuel tank affixed into the frame of an emergency
generator) from registration.1 In the same action, the Board also
added an example to clarify that airport refueling trucks and mobile refueling
vehicles are exempt from registration because they are examples of
"licensed motor vehicles" that are already excluded from the
regulation. In this action, the Board proposes to incorporate in this
regulation the new exemption and the clarification of an existing exemption in
the companion regulation.
The companion regulation determines whether a facility or an
individual AST is subject to registration. Thus, when the companion regulation
was amended to exempt certain equipment, the financial assurance requirements
relating to those types of ASTs were automatically made obsolete. As a result,
amending this regulation will have no economic impact other than improving the
clarity of this regulation and consistency between this regulation and the
companion regulation.
Businesses and Entities Affected. At the end of fiscal year
2017, there were 10,972 active registered ASTs in Virginia. These ASTs were
located at 4,003 facilities within the state.
Localities Particularly Affected. The proposed amendments do
not affect any particular locality more than others.
Projected Impact on Employment. The proposed amendments do not
have any effect on employment.
Effects on the Use and Value of Private Property. The proposed
amendments do not have any effect on the use and value of private property.
Real Estate Development Costs. No impact on real estate
development costs is expected.
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. According to the Department of
Environmental Quality, there are 2,030 facilities that only have one AST
registered, which is an indication that the facility is likely a small
business. The proposed changes do not affect costs for them, but will likely
improve clarity of the regulation.
Alternative Method that Minimizes Adverse Impact. The proposed
amendments do not have adverse effects on small businesses.
Adverse Impacts:
Businesses. The proposed amendments do not have adverse impacts
on businesses.
Localities. The proposed amendments would not adversely affect
localities.
Other Entities. The proposed amendments would not adversely
affect other entities.
______________________
1http://townhall.virginia.gov/l/viewstage.cfm?stageid=6844
Agency's Response to Economic Impact Analysis: The
Department of Environmental Quality has reviewed the economic impact analysis
prepared by the Department of Planning and Budget and has no comment.
Summary:
The amendments (i) revise the list of exclusions in
9VAC25-640 for consistency with the Facility and Aboveground Storage Tank
Regulation (9VAC25-91-30), a companion regulation, and (ii) repeal an obsolete
section regarding regular review of the regulation.
9VAC25-640-30. Exclusions.
The requirements of this chapter do not apply to:
1. Vessels;
2. Licensed motor vehicles, unless used solely for the storage
of oil (e.g., airport refueling trucks and mobile refueling vehicles);
3. An AST with a storage capacity of 660 gallons or less of
oil, except with regard to purposes of the requirements of 9VAC25-640-220;
4. An AST containing petroleum, including crude oil or any
fraction thereof, which is liquid at standard temperature and pressure (60°F at
14.7 pounds per square inch absolute) subject to and specifically listed or
designated as a hazardous substance under subparagraphs (A) through (F) of §
101(14) of the federal Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) (42 USC § 9601 et seq.);
5. A wastewater treatment tank system that is part of a
wastewater treatment facility regulated under § 402 or § 307(b) of
the federal Clean Water Act (33 USC § 1251 et seq.);
6. An AST that is regulated by the Department of Mines,
Minerals and Energy under Chapter 22.1 (§ 45.1-361.1 et seq.) of Title
45.1 of the Code of Virginia;
7. An AST used for the storage of products that are regulated
pursuant to the federal Food, Drug and Cosmetic Act (21 USC § 301 et seq.),
except with regard to purposes of the requirements of 9VAC25-640-220;
8. An AST that is used to store hazardous wastes listed or
identified under Subtitle C of the Resource Conservation and Recovery Act
(RCRA) (Solid Waste Disposal Act) (42 USC § 6901 et seq.);
9. An AST that is used to store propane gas, butane gas,
or other liquid petroleum gases;
10. An AST used to store nonpetroleum hydrocarbon-based animal
and vegetable oils;
11. A liquid trap or associated gathering lines directly
related to oil or gas production, or gathering operations;
12. A surface impoundment, pit, pond, or lagoon;
13. A storm water or wastewater collection system;
14. Equipment or machinery that contains oil for operational
purposes, including but not limited to lubricating systems, hydraulic systems,
and heat transfer systems;
15. An AST that forms an integral part (cannot be readily
detached or removed) of the equipment or machinery and the contents of the AST
are solely used by the attached equipment or machinery (e.g., fuel tank affixed
into the frame of an emergency generator);
16. An AST used to contain oil for less than 120 days
when: (i) used in connection with activities related to the containment and
clean up of oil; (ii) used by a federal, state, or local entity in
responding to an emergency; or (iii) used temporarily on site to replace
permanent storage capacity, except with regard to purposes of the requirements
of 9VAC25-640-220;
16. 17. Oil-filled electrical equipment,
including, but not limited to, transformers, circuit breakers, or
capacitors;
17. 18. A flow-through process tank;
18. 19. Oily water separators;
19. 20. An AST containing dredge spoils;
20. 21. An AST located on a farm or residence
used for storing motor fuel for noncommercial purposes with an aggregated
storage capacity of 1,100 gallons or less, except with regard to purposes of
the requirements of 9VAC25-640-220;
21. 22. Pipes or piping beyond the first valve
from the AST that connects an AST with production process tanks or production
process equipment;
22. 23. An AST storing asphalt and asphalt
compounds which are not liquid at standard conditions of temperature and
pressure (60°F at 14.7 pounds per square inch absolute);
23. 24. Underground storage tanks regulated
under a state program;
24. 25. An AST with a capacity of 5,000 gallons
or less used for storing heating oil for consumptive use on the premises where
stored, except with regard to purposes of the requirements of 9VAC25-640-220.
9VAC25-640-250. Evaluation of chapter. (Repealed.)
A. By October 31, 2012, the
department shall perform an analysis on this chapter and provide the board with
a report on the results. The analysis shall include (i) the purpose and need
for the chapter; (ii) alternatives that would achieve the stated purpose of
this chapter in a less burdensome and less intrusive manner; (iii) an
assessment of the effectiveness of this chapter; (iv) the results of a review
of current state and federal statutory and regulatory requirements, including
identification and justification of requirements of this chapter which are more
stringent than federal requirements; and (v) the results of a review as to
whether this chapter is clearly written and easily understandable by affected
entities.
B. Upon review of the
department's analysis, the board shall confirm the need to (i) continue this
chapter without amendments, (ii) repeal this chapter or (iii) amend this
chapter. If the board's decision is to repeal or amend this chapter, the board
shall authorize the department to initiate the applicable regulatory process to
carry out the decision of the board.
VA.R. Doc. No. R19-4744; Filed June 23, 2019, 12:10 p.m.
TITLE 10. FINANCE AND FINANCIAL INSTITUTIONS
STATE CORPORATION COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The
State Corporation Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia,
which exempts courts, any agency of the Supreme Court, and any agency that by
the Constitution is expressly granted any of the powers of a court of record.
Title of Regulation: 10VAC5-120. Money Order Sellers
and Money Transmitters (amending 10VAC5-120-10, 10VAC5-120-20,
10VAC5-120-40 through 10VAC5-120-70; adding 10VAC5-120-35).
Statutory Authority: §§ 6.2-1913 and 12.1-13 of the
Code of Virginia.
Effective Date: July 15, 2019.
Agency Contact: Dustin Physioc, Deputy Commissioner,
Bureau of Financial Institutions, State Corporation Commission, P.O. Box 640,
Richmond, VA 23218, telephone (804) 786-0831, FAX (804) 371-9416, or email
dustin.physioc@scc.virginia.gov.
Summary:
The amendments implement Chapter 634 of the 2019 Acts of
Assembly and require licensees to register with the Nationwide Multistate
Licensing System and Registry (NMLS). Amendments (i) require current licensees
to transition to NMLS and for other persons seeking a license under Chapter 19
(§ 6.2-1900 et seq.) of Title 6.2 of the Code of Virginia to apply through NMLS;
(ii) require licensees to maintain current information in NMLS records; (iii)
clarify that licenses must be renewed annually between November 1 and December
31; (iv) replace existing reporting requirements with a requirement that
licensees file quarterly call reports through NMLS along with information
concerning their financial condition; (v) establish the time period within
which licensees must file audited financial statements required by § 6.2-1905
D of the Code of Virginia; (vi) provide that the authorized delegate
information referenced in § 6.2-1917 B of the Code of Virginia must be
submitted through the NMLS agent reporting functionality; (vii) specify that
the annual assessment is calculated using the information reported by licensees
in quarterly call reports or other written reports required by the Commissioner
of Financial Institutions; (viii) provide that if the Bureau of Financial
Institutions requests information from an applicant to complete a deficient
application and the information is not received within 60 days of the request,
the application is deemed abandoned unless an extension of time is requested
and approved prior to the expiration of the 60-day period; and (ix) make other
technical changes for consistency and clarity.
AT RICHMOND, JULY 1, 2019
COMMONWEALTH OF VIRGINIA, ex rel.
STATE CORPORATION COMMISSION
CASE NO. BFI-2019-00016
Ex Parte: In re: Money Order Sellers
and Money Transmitters
ORDER ADOPTING REGULATIONS
On May 21, 2019, the State Corporation Commission
("Commission") entered an Order to Take Notice of a proposal by the
Bureau of Financial Institutions ("Bureau") to amend the Commission's
regulations governing licensed money order sellers and money transmitters
("licensees"), which are set forth in Chapter 120 of Title 10 of the
Virginia Administrative Code ("Chapter 120").
The proposed amendments to Chapter 120 were prompted by
Chapter 634 of the 2019 Virginia Acts of Assembly, which became effective on
July 1, 2019, and requires all licensees to register with the Nationwide
Multistate Licensing System and Registry ("NMLS"). The proposal sets
forth the requirements for current licensees to transition to NMLS and for
other persons seeking a license under Chapter 19 of Title 6.2 of the Code of
Virginia to submit their applications through NMLS. Additionally, the proposed
regulations require licensees to maintain current information in their NMLS
records and clarify that all licenses must be renewed annually between November
1 and December 31. The proposal also: (i) replaces the existing reporting
requirements in subsections A and B of 10 VAC 5-120-40 with a requirement that
licensees file quarterly call reports through NMLS along with information
concerning their financial condition; (ii) prescribes the time period within
which licensees must file the audited financial statements required by
§ 6.2-1905 D of the Code of Virginia; (iii) requires the authorized
delegate information specified in § 6.2-1917 B of the Code of Virginia to
be submitted through the agent reporting functionality in NMLS; (iv) specifies
that the annual assessment will be calculated using the information reported by
licensees in their quarterly call reports or other written reports that may be
required by the Commissioner of Financial Institutions; and (v) provides that
if the Bureau requests information from an applicant to complete a deficient
application and such information is not received within 60 days of the Bureau's
request, the application will be deemed abandoned unless an extension of time
is requested and approved prior to the expiration of the 60-day period. Various
technical and conforming amendments were also proposed.
The Order to Take Notice and proposed regulations were
published in the Virginia Register of Regulations on June 10, 2019, posted on
the Commission's website, and sent to all licensees and other interested
parties. Licensees and other interested parties were afforded the opportunity
to file written comments or request a hearing on or before June 21, 2019. No
comments or requests for a hearing were filed.
NOW THE COMMISSION, having considered the proposed
regulations, the record herein, and applicable law, concludes that the proposed
regulations should be adopted as proposed with an effective date of July 15,
2019.
Accordingly, IT IS ORDERED THAT:
(1) The proposed regulations, as attached hereto, are adopted
effective July 15, 2019.
(2) This Order and the attached regulations shall be posted
on the Commission's website at http://www.scc.virginia.gov/case.
(3) The Commission's Division of Information Resources shall
provide a copy of this Order, including a copy of the attached regulations, to
the Virginia Registrar of Regulations for publication in the Virginia Register
of Regulations.
(4) This case is dismissed, and the papers herein shall be
placed in the Commission's file for ended causes.
AN ATTESTED COPY hereof, together with a copy of the attached
regulations, shall be sent by the Clerk of the Commission to the Commission's
Office of General Counsel and the Commissioner of Financial Institutions, who
shall forthwith send by e-mail or U.S. mail a copy of this Order, together with
a copy of the attached regulations, to all licensed money order sellers and
money transmitters, and such other interested parties as he may designate.
10VAC5-120-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Authorized delegate," "licensee,"
"monetary value," "money order," and
"outstanding" shall have the meanings ascribed to them in
§ 6.2-1900 of the Code of Virginia.
"Bureau," "commission," and
"commissioner" shall have the meanings ascribed to them in
§ 6.2-100 of the Code of Virginia.
"Chapter 19" means Chapter 19 (§ 6.2-1900 et seq.)
of Title 6.2 of the Code of Virginia.
"Generally accepted accounting principles" for
purposes of Chapter 19 and this chapter means standard accounting guidelines as
established and administered by the American Institute of Certified Public
Accountants (AICPA) and the United States Financial Accounting Standards Board
(FASB).
"Merchant or service provider" means a person
engaged in the business of selling goods or services, but excluding a person
licensed or required to be licensed under Chapter 19.
"Money transmission" for purposes of Chapter 19 and
this chapter shall have the meaning ascribed to it in § 6.2-1900 of the
Code of Virginia. However, the term shall not include the actions of an agent
who collects funds on behalf of a merchant or service provider, provided that
(i) the agent has been explicitly designated in a written agreement as an agent
of the merchant or service provider; (ii) any funds collected by the agent
shall be deemed for all purposes to be received by the merchant or service
provider, regardless of whether the agent actually remits such funds to the
merchant or service provider; (iii) the agent provides the Virginia resident
with a dated receipt indicating that payment to the agent constitutes payment
to the merchant or service provider; and (iv) there is no risk of loss to the
Virginia resident if the agent fails to remit such resident's funds to the
merchant or service provider. This definition shall not be construed to
prohibit the merchant or service provider from seeking indemnification from its
agent for any direct losses incurred due to the agent's failure to remit funds
in accordance with its agreement.
"Reporting period" means a calendar quarter, the
first six months of a calendar year, or the last six months of a calendar year,
as the case may be.
"Nationwide Multistate Licensing System and
Registry" and "registry" shall have the meanings ascribed to
them in § 6.2-1900 of the Code of Virginia.
"Senior officer" for purposes of Chapter 19 means
an individual who has significant management responsibility within an
organization or otherwise has the authority to influence or control the conduct
of the organization's affairs, including but not limited to its
compliance with applicable laws and regulations.
10VAC5-120-20. Surety bond standards.
A. Every licensee shall be bonded in a principal amount
determined by the Commissioner of Financial Institutions. The bond amount shall
be equal to the licensee's Virginia average monthly money order sales during
the preceding two reporting periods calendar quarters, or its
Virginia average monthly money transmission volume during such periods, or
both, as applicable, rounded to the next highest multiple of $10,000, but not
exceeding $500,000. The commissioner, however, may increase the amount of bond
required to a maximum of $1 million upon the basis of the impaired financial
condition of a licensee, as evidenced by net worth reduction, financial losses,
or other relevant criteria.
B. The amount of bond required of a new licensee shall be
based upon the applicant's financial condition, capitalization, projected
Virginia monthly money order sales and money transmission volume, experience,
and other factors deemed pertinent.
C. The minimum bond required shall be $25,000.
D. The form of the bond will be prescribed and provided by
the commissioner. The required bond shall be submitted prior to the issuance of
a license, and shall be maintained continuously thereafter as long as
the licensee or former licensee has money orders outstanding or unfulfilled
money transmission agreements.
10VAC5-120-35. Nationwide Multistate Licensing System and
Registry.
A. Applications for a license under Chapter 19 shall be
made through the registry in accordance with instructions provided by the
commissioner. The commissioner may provide these instructions through the
registry, on the commission's Internet website, or by any other means the
commissioner deems appropriate.
B. Every licensee holding a license under Chapter 19 prior
to July 1, 2019, shall register with the registry and file through the registry
a transition request for its license under Chapter 19 no later than September
1, 2019.
C. Every licensee shall maintain current information in
its records with the registry. Except as otherwise required by Chapter 19 or
this chapter, a licensee shall update its information as soon as is
practicable, but in no event later than 10 business days from when a change
takes effect.
D. A license issued under Chapter 19 shall expire on December
31 of each calendar year unless it is renewed by a licensee on or after
November 1 of the same year. However, licenses that are granted between
November 1 and December 31 shall not expire until the end of the following
calendar year. A license shall be renewed upon the commissioner finding that
the licensee has satisfied the requirements set forth in subsection F of §
6.2-1905 of the Code of Virginia.
10VAC5-120-40. Reporting and filing requirements.
A. 1. Licensees licensed for less than three years shall
file reports with the commissioner within 45 days after the end of each
calendar quarter.
2. Licensees licensed for three years or longer shall file
reports with the commissioner within 45 days after the end of each semiannual
reporting period.
3. Licensees affiliated by common ownership with another
licensee licensed for three years or longer, and licensees that acquire all or
part of the money order sales business or money transmission business of
another licensee licensed for three years or longer, shall file reports with
the commissioner within 45 days after the end of each semiannual reporting
period.
Pursuant to subsection D of § 6.2-1905 of the Code of
Virginia, every licensee shall file quarterly call reports through the registry
as well as such other information pertaining to the licensee's financial
condition as may be required by the registry. Reports shall be in such form,
contain such information, and be submitted with such frequency and by such
dates as the registry may require. Compliance with this subsection shall
satisfy the requirement in subsection B of § 6.2-1917 of the Code of Virginia
that a licensee file its quarterly financial statements with the commissioner.
B. Licensees shall file a report of outstandings and
permissible investments with the commissioner within 45 days after the end of
each calendar quarter.
C. Within one business day after a licensee becomes
aware of the occurrence of any of the following events, the licensee shall file
a written report with the commissioner describing the event:
1. Bankruptcy, reorganization, or receivership proceedings are
filed by or against the licensee.
2. Any local, state, or federal governmental authority
institutes revocation, suspension, or other formal administrative, regulatory,
or enforcement proceedings against the licensee.
3. Any local, state, or federal governmental authority (i)
revokes or suspends the licensee's money order seller license, money
transmitter license, or other license for a similar business; (ii) takes formal
administrative, regulatory, or enforcement action against the licensee relating
to its money order sales, money transmission, or similar business; or (iii)
takes any other action against the licensee relating to its money order sales,
money transmission, or similar business where the total amount of restitution
or other payment from the licensee exceeds $20,000. A licensee shall not be
required to provide the commissioner with information about such event to the
extent that such disclosure is prohibited by the laws of another state.
4. Based on allegations by any local, state, or federal
governmental authority that the licensee violated any law or regulation
applicable to the conduct of its licensed money order sales, money
transmission, or similar business, the licensee enters into, or otherwise
agrees to the entry of, a settlement or consent order, decree, or agreement
with or by such governmental authority.
5. The licensee surrenders its money order seller license,
money transmitter license, or other license for a similar business in another
state in lieu of threatened or pending license revocation; license suspension;
or other administrative, regulatory, or enforcement action.
6. The licensee is denied a money order seller license, money
transmitter license, or other license for a similar business in another state.
7. The licensee or any of its members, partners, directors,
officers, principals, employees, or authorized delegates is indicted or
convicted of a felony.
D. C. The reports required by this section
shall contain such information as the commissioner may require. The
commissioner may require such additional reports as he deems necessary.
D. Every licensee shall file the audited financial
statements required by subsection D of § 6.2-1905 of the Code of Virginia
within 105 days of the end of its fiscal year. For example, if a licensee's
fiscal year ends on March 31, its audited financial statements must be filed by
July 14 of the same year. If a licensee is unable to file its audited financial
statements within 105 days of the end of its fiscal year, the licensee may
request an extension, which may be granted by the commissioner for good cause
shown. A licensee's audited financial statements shall cover the prior 12-month
fiscal period and be prepared in accordance with generally accepted accounting
principles.
E. The authorized delegate information required by
subsection B of § 6.2-1917 of the Code of Virginia shall be submitted to the
commissioner through the registry's agent reporting functionality.
F. Any reports, notifications, or filings required by
Chapter 19 or this chapter may be submitted to the commissioner through the
registry, provided that the registry is capable of receiving such reports,
notifications, or filings.
10VAC5-120-50. Assessment schedule for the examination and
supervision of money order sellers and money transmitters.
Pursuant to subsection B of § 6.2-1905 of the Code of
Virginia, the commission sets the following schedule for the annual assessment
to be paid by persons licensed under Chapter 19. The assessment defrays the
costs of the examination and supervision of licensees by the bureau.
The annual assessment shall be $0.000047 per dollar of money
orders sold and money transmitted by a licensee pursuant to Chapter 19. The assessment
shall be based on the dollar volume of business conducted by a licensee, either
directly or through its authorized delegates, during the calendar year
preceding the year of the assessment as reported by each licensee in (i) the
quarterly call reports filed through the registry or (ii) such other written
reports as the commissioner may require pursuant to subsection D of
§ 6.2-1905 of the Code of Virginia. If a licensee fails to fully report
its volume information for the prior calendar year by the assessment date, a
provisional fee subject to adjustment when the information is reported, shall
be assessed.
The amount calculated using the above schedule in
this section shall be rounded down to the nearest whole dollar.
Fees shall be assessed on or before August 1 for the current
calendar year. The assessment shall be paid by licensees on or before September
1.
The annual report, due April 15 each year, of each
licensee provides the basis for its assessment. In cases where a license has
been granted between January 1 and April 15 of the year of the assessment, the
licensee's initial annual assessment shall be $0.
Fees prescribed and assessed pursuant to this schedule are
apart from, and do not include, the following: (i) the annual
license renewal fee of $750 authorized by subsection A of § 6.2-1905 of
the Code of Virginia and (ii) the reimbursement for expenses authorized by
subsection C of § 6.2-1905 of the Code of Virginia.
10VAC5-120-60. Responding to requests from the Bureau of
Financial Institutions; providing false, misleading, or deceptive information.
A. When the bureau requests a written response, books,
records, documentation, or other information from a licensee or its authorized
delegate in connection with the bureau's investigation, enforcement, or
examination of compliance with applicable laws and regulations, the licensee or
authorized delegate shall deliver a written response as well as any requested
books, records, documentation, or information within the time period specified
in the bureau's request. If no time period is specified, a written response as
well as any requested books, records, documentation, or information shall be
delivered by the licensee or its authorized delegate to the bureau not later
than 30 days from the date of such request. In determining the specified time
period for responding to the bureau and when considering a request for an
extension of time to respond, the bureau shall take into consideration the
volume and complexity of the requested written response, books, records,
documentation, or information, and such other factors as the bureau
determines to be relevant under the circumstances. Requests made by the bureau
pursuant to this subsection are deemed to be in furtherance of the bureau's
investigation and examination authority provided for in § 6.2-1910 of the
Code of Virginia.
B. A licensee shall not provide any false, misleading, or
deceptive information to the bureau.
C. If the bureau requests information from an applicant to
complete a deficient application filed under § 6.2-1903 or 6.2-1914 of the
Code of Virginia, and the information is not received within 60 days of the
request, the application shall be deemed abandoned unless a request for an
extension of time is received and approved by the bureau prior to the
expiration of the 60-day period.
10VAC5-120-70. Acquisitions; additional business requirements
and restrictions; operating rules.
A. Any person submitting an application to acquire, directly
or indirectly, 25% or more of the voting shares of a corporation or 25% or more
of the ownership of any other person licensed to conduct business under Chapter
19 shall pay a nonrefundable application fee of $500.
B. A licensee shall not permit an authorized delegate to
designate or appoint a subdelegate to sell money orders or engage in money
transmission business.
C. The audited financial statements filed by a licensee
pursuant to § 6.2-1905 D of the Code of Virginia shall cover the prior 12-month
fiscal period and be prepared in accordance with generally accepted accounting
principles.
D. Quarterly financial statements filed by a licensee
pursuant to § 6.2-1917 B of the Code of Virginia shall be consolidated and
prepared in accordance with generally accepted accounting principles.
E. A licensee shall comply with Chapter 19, this
chapter, and all other state and federal laws and regulations applicable to the
conduct of its business. For purposes of Chapter 19 and this chapter, the acts
and omissions of a licensee's authorized delegates shall be deemed acts and
omissions of such licensee.
F. D. In addition to the records specified in subsection
B of § 6.2-1916 B of the Code of Virginia, a licensee shall
maintain in its principal place of business such other books, accounts, and
records as the commissioner may reasonably require in order to determine
whether such licensee is complying with the provisions of Chapter 19, this
chapter, and other laws and regulations applicable to the conduct of its
business.
G. E. If a licensee, authorized delegate, or
former licensee disposes of records containing a consumer's personal financial
information or copies of a consumer's identification documents, such records
and copies shall be shredded, incinerated, or otherwise disposed of in a secure
manner. A licensee, authorized delegate, or former licensee may arrange for
service from a business record destruction vendor.
H. F. A licensee or former licensee shall
provide the following information to the bureau within 10 days after such
person's license is surrendered or revoked or the licensed business is
otherwise closed: (i) the names, addresses, telephone numbers, fax numbers, and
email addresses of a designated contact person and the person who consumers may
contact regarding outstanding money orders or money transmission transactions;
(ii) the location of the licensee's or former licensee's money order and money
transmission records; and (iii) any additional information that the bureau may
reasonably require. A licensee or former licensee shall maintain current
information with the bureau until the licensee or former licensee has no
outstanding money orders and money transmission transactions.
I. G. A person shall remain subject to the
provisions of Chapter 19 and this chapter applicable to licensees in connection
with all money orders sold and money or monetary value received for
transmission while licensed under Chapter 19 notwithstanding the occurrence of
any of the following events:
1. The person's license is surrendered or revoked; or
2. The person ceases selling money orders or transmitting
money or monetary value.
J. H. A licensee shall not provide any
information to a Virginia resident that is false, misleading, or deceptive.
K. I. A licensee shall not engage in any
activity that directly or indirectly results in an evasion of the provisions of
Chapter 19 or this chapter.
L. J. A licensee shall
continuously maintain the requirements and standards for licensure prescribed
in § 6.2-1906 of the Code of Virginia.
VA.R. Doc. No. R19-6009; Filed July 1, 2019, 4:27 p.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Final Regulation
REGISTRAR'S
NOTICE: The State Board of Health is claiming an exemption from Article 2
of the Administrative Process Act in accordance with § 2.2-4006 A 4 a of
the Code of Virginia, which excludes regulations that are necessary to conform
to changes in Virginia statutory law or the appropriation act where no agency
discretion is involved. The State Board of Health will receive, consider, and
respond to petitions by any interested person at any time with respect to
reconsideration or revision.
Title of Regulation:
12VAC5-220. Virginia Medical Care Facilities Certificate of Public Need Rules
and Regulations (amending 12VAC5-220-100; adding
12VAC5-220-155).
Statutory Authority: §§ 32.1-12 and 32.1-102.2 of the
Code of Virginia.
Effective Date: August 23, 2019.
Agency Contact: Erik Bodin, Division Director, COPN,
MCHIP, and Cooperative Agreement, Virginia Department of Health, 9960 Mayland
Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-1889, or email
erik.bodin@vdh.virginia.gov.
Summary:
As required by legislation enacted during the 2019 Session
of the General Assembly, the amendments (i) establish an exemption from the
requirement for a certificate of public need, for a period of no more than 30
days, for projects involving a temporary increase in the total number of beds
in an existing hospital or nursing home when the commissioner has determined
that a natural or man-made disaster has caused the evacuation of a hospital or
nursing home and that a public health emergency exists due to a shortage of
hospital or nursing home beds (Chapters 136 and 343) and (ii) require every
medical care facility subject to the requirements of certificate of public need
law whose certificate does not include conditions for charity care but opt to
provide charity care to annually report the amount of charity care provided to
the commissioner (Chapter 839).
Part III
Mandatory Requirements
12VAC5-220-100. Requirements for reviewable medical care
facility projects; exceptions.
A. Prior to initiating a reviewable medical care
facility project the owner or sponsor shall obtain a certificate of public need
from the commissioner. In the case of an acquisition of an existing medical
care facility, the notification requirement set forth in 12VAC5-220-120 shall
be met.
B. Projects involving a temporary increase in the total
number of beds in an existing hospital or nursing home shall be exempt from the
requirement for a certificate, for a period of no more than 30 days, if the
commissioner has determined that a natural or man-made disaster has caused the
evacuation of a hospital or nursing home and that a public health emergency
exists due to a shortage of hospital or nursing home beds.
12VAC5-220-155. Requirements for the reporting of charity
care.
Every medical care facility subject to the requirements of
Article 1.1 (§ 32.1-102.1 et seq.) of Chapter 4 of Title 32.1 of the Code of
Virginia, other than a nursing home, that is not a medical care facility for
which a certificate with conditions imposed pursuant to § 32.1-102.4 F of the
Code of Virginia has been issued and that provides charity care, as defined in
§ 32.1-102.1 of the Code of Virginia, shall annually report to the
commissioner the amount of charity care provided.
VA.R. Doc. No. R19-5942; Filed June 20, 2019, 5:41 p.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Final Regulation
REGISTRAR'S
NOTICE: The State Board of Health is claiming an exemption from Article 2
of the Administrative Process Act in accordance with § 2.2-4006 A 4 a of
the Code of Virginia, which excludes regulations that are necessary to conform
to changes in Virginia statutory law or the appropriation act where no agency
discretion is involved. The State Board of Health will receive, consider, and
respond to petitions by any interested person at any time with respect to
reconsideration or revision.
Title of Regulation: 12VAC5-371. Regulations for the
Licensure of Nursing Facilities (amending 12VAC5-371-30, 12VAC5-371-40).
Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code
of Virginia.
Effective Date: August 23, 2019.
Agency Contact: Robert Payne, Director, Office of
Licensure and Certification, Virginia Department of Health, 9960 Mayland Drive,
Suite 401, Richmond, VA 23233, telephone (804) 367-2109, FAX (804) 527-4502, or
email robert.payne@vdh.virginia.gov.
Summary:
In accordance with Chapters 136 and 343 of the 2019 Acts of
Assembly, the amendment establishes an exemption, for a period of no more than
30 days, from the requirement to obtain a license to add temporary beds in an
existing nursing home when the commissioner has determined that a natural or
man-made disaster has caused the evacuation of a hospital or nursing home and
that a public health emergency exists due to a shortage of nursing home beds.
12VAC5-371-30. License.
A. A license to operate a facility is issued to a person or
organization. An organization may be a partnership, association, corporation,
or public entity.
B. Each license and renewal thereof shall be issued for one
year. A nursing facility shall operate within the terms of its license, which
include the:
1. Name of the facility;
2. Name of the operator;
3. Physical location of the nursing facility;
4. Maximum number of beds allowed; and
5. Date the license expires.
C. A separate license shall be required for nursing
facilities maintained on separate premises, even though they are owned or are
operated under the same management.
D. Every nursing facility shall be designated by a permanent
and appropriate name. The name shall not be changed without first notifying the
OLC.
E. The number of resident beds allowed in a nursing facility
shall be determined by the department. Requests to increase beds must be made
in writing and must include an approved Certificate of Public Need, except
as provided in 12VAC5-371-40 J.
F. Nursing facility units located in and operated by
hospitals shall be licensed under Regulations for the Licensure of Hospitals in
Virginia (12VAC5-410). Approval for such units shall be included on the annual
license issued to each hospital.
G. Any person establishing, conducting, maintaining, or
operating a nursing facility without a license shall be guilty of a Class 6
felony.
12VAC5-371-40. Licensing process.
A. Upon request, the OLC will provide consultation to any
person seeking information about obtaining a license. The purpose of such
consultation is to:
1. Explain the standards and the licensing process;
2. Provide assistance in locating other sources of
information;
3. Review the potential applicant's proposed program plans,
forms, and other documents, as they relate to standards; and
4. Alert the potential applicant regarding the need to meet
other state and local ordinances, such as fire and building codes and
environmental health standards, where applicable.
B. Upon request, the OLC will provide an application form for
a license to operate a nursing facility.
C. The OLC shall consider the application complete when all
requested information and the application fee is submitted with the form
required. If the OLC finds the application incomplete, the applicant will be
notified of receipt of the incomplete application.
D. The applicant shall complete and submit the initial
application to the OLC at least 30 days prior to a planned opening date to
allow the OLC time to act on the application. An application for a license may
be withdrawn at any time.
E. Application for initial license of a nursing facility
shall include a statement of any agreement made with the commissioner as a
condition for Certificate of Public Need approval to provide a level of care at
a reduced rate to indigents or accept patients requiring specialized care.
Any initial license issued to any nursing facility that made
such agreement as a condition of its Certificate of Public Need approval shall
not be renewed without demonstrating prior to or at the time of applying for
renewal that it is substantially complying with its agreement.
F. The renewal of a nursing facility license shall be
conditioned upon the up-to-date payment of any civil penalties owed as a result
of willful refusal, failure, or neglect to honor certain conditions established
in their award of a Certificate of Public Need pursuant to § 32.1-102.4 F of
the Code of Virginia.
G. Prior to changes in operation which would affect the terms
of the license, the licensee must secure a modification to the terms of the
license from the OLC.
H. Requests to modify a license must be submitted in writing,
30 working days in advance of any proposed changes, to the Director of the
Office of Licensure and Certification.
I. The license shall be returned to the OLC following a
correction or reissuance when there has been a change in:
1. Address;
2. Operator;
3. Name; or
4. Bed capacity.
J. Nursing facilities shall be exempt, for a period of no
more than 30 days, from the requirement to obtain a license to add temporary
beds when the commissioner has determined that a natural or man-made disaster
has caused the evacuation of a hospital or nursing home and that a public
health emergency exists due to a shortage of hospital or nursing home beds.
J. K. The OLC will evaluate written information
about any planned changes in operation which would affect either the terms of
the license or the continuing eligibility for a license. A licensing
representative may visit the facility during the process of evaluating a
proposed modification.
K. L. If a modification can be granted, the OLC
shall respond in writing with a modified license. In the event a new
application is needed, the licensee will receive written notification. When the
modification cannot be granted, the licensee shall be advised by letter.
L. M. The department shall send an application
for renewal of the license to the licensee prior to the expiration date of the
current license.
M. N. The licensee shall submit the completed renewal
application form along with any required attachments and the application fee by
the date indicated in the cover letter.
N. O. It is the licensee's responsibility to
complete and return the application to assure timely processing. Should a
current license expire before a new license is issued, the current license
shall remain in effect provided the complete and accurate application was filed
on time.
VA.R. Doc. No. R19-5944; Filed June 20, 2019, 5:42 p.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Final Regulation
REGISTRAR'S NOTICE: The
State Board of Health is claiming an exemption from Article 2 of the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code
of Virginia, which excludes regulations that are necessary to conform to
changes in Virginia statutory law or the appropriation act where no agency
discretion is involved. The State Board of Health will receive, consider, and
respond to petitions by any interested person at any time with respect to
reconsideration or revision.
Title of Regulation: 12VAC5-410. Regulations for the
Licensure of Hospitals in Virginia (amending 12VAC5-410-110, 12VAC5-410-130,
12VAC5-410-230).
Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code
of Virginia.
Effective Date: August 23, 2019.
Agency Contact: Robert Payne, Director, Office of
Licensure and Certification, Virginia Department of Health, 9960 Mayland Drive,
Richmond, VA 23233, telephone (804) 367-2109, FAX (804) 527-4502, or email robert.payne@vdh.virginia.gov.
Summary:
In accordance with legislation enacted during the 2019
Session of the General Assembly, the amendments (i) establish an exemption, for
a period of no more than 30 days, from the requirement to obtain a license to
add temporary beds in an existing hospital when the commissioner has determined
that a natural or man-made disaster has caused the evacuation of a hospital or
nursing home and that a public health emergency exists due to a shortage of
hospital beds (Chapters 136 and 343) and (ii) require every hospital to provide
written information about a patient's ability to request an estimate of the
payment, post that information conspicuously in public areas of the hospital,
including admissions or registration areas, and include that information on any
website maintained by the hospital (Chapters 670 and 671).
12VAC5-410-110. Bed capacity.
A. Each license issued by the commissioner shall specify the
maximum allowable number of beds. The number of beds allowed shall be determined
by the OLC and shall so appear on the license issued by the OLC.
B. Request for licensed bed increase or decrease shall be
made in writing to the OLC. No increase will be granted without an approved
Certificate of Public Need.
C. Hospitals shall be exempt from the requirement to
obtain a license to add temporary beds, for a period of no more than 30 days,
when the commissioner has determined that a natural or man-made disaster has
caused the evacuation of a hospital or nursing home and that a public health
emergency exists due to a shortage of hospital or nursing home beds.
12VAC5-410-130. Return of license.
The OLC shall be notified in writing at least within 30
working days in advance of any proposed change in location or ownership of the
facility. A license shall not be transferred from one owner to another or from
one location to another. The license issued by the commissioner shall be
returned to the OLC for correction or reissuance when any of the following
changes occur during the licensing year:
1. Revocation;
2. Change of location;
3. Change of ownership;
4. Change of name;
5. Change of bed capacity, except as provided in
12VAC5-410-110 C; or
6. Voluntary closure.
Article 2
Patient Care Services
12VAC5-410-230. Patient care management.
A. All patients shall be under the care of a member of the
medical staff.
B. Each hospital shall have a plan that includes effective
mechanisms for the periodic review and revision of patient care policies and
procedures.
C. Each hospital shall establish a protocol relating to the
rights and responsibilities of patients based on Joint Commission on
Accreditation of Healthcare Organizations' 2000 Hospital Accreditation
Standards, January 2000. The protocol shall include a process reasonably
designed to inform patients of their rights and responsibilities. Patients
shall be given a copy of their rights and responsibilities upon admission.
D. No medication or treatment shall be given except on the
signed order of a person lawfully authorized by state statutes.
1. Hospital personnel, as designated in medical staff bylaws,
rules and regulations, or hospital policies and procedures, may accept
emergency telephone and other verbal orders for medication or treatment for
hospital patients from physicians and other persons lawfully authorized by
state statute to give patient orders.
2. As specified in the hospital's medical staff bylaws, rules
and regulations, or hospital policies and procedures, emergency telephone and
other verbal orders shall be signed within a reasonable period of time not to
exceed 72 hours, by the person giving the order, or, when such person is not
available, cosigned by another physician or other person authorized to give the
order.
E. Each hospital shall have a reliable method for identification
of each patient, including newborn infants.
F. Each hospital shall include in its visitation policy a
provision allowing each adult patient to receive visits from any individual
from whom the patient desires to receive visits, subject to other restrictions
contained in the visitation policy including the patient's medical condition
and the number of visitors permitted in the patient's room simultaneously.
G. Each hospital that is equipped to provide life-sustaining
treatment shall develop a policy to determine the medical or ethical
appropriateness of proposed medical care, which shall include:
1. A process for obtaining a second opinion regarding the
medical and ethical appropriateness of proposed medical care in cases in which
a physician has determined proposed care to be medically or ethically
inappropriate;
2. Provisions for review of the determination that proposed
medical care is medically or ethically inappropriate by an interdisciplinary
medical review committee and a determination by the interdisciplinary medical
review committee regarding the medical and ethical appropriateness of the
proposed health care of the patient;
3. Requirements for a written explanation of the decision of
the interdisciplinary medical review committee, which shall be included in the
patient's medical record; and
4. Provisions to ensure the patient, the patient's agent, or
the person authorized to make the patient's medical decisions in accordance
with § 54.1-2986 of the Code of Virginia is informed of the patient's right to
obtain the patient's medical record and the right to obtain an independent
medical opinion and afforded reasonable opportunity to participate in the
medical review committee meeting.
The policy shall not prevent the patient, the patient's
agent, or the person authorized to make the patient's medical decisions from
obtaining legal counsel to represent the patient or from seeking other legal
remedies, including court review, provided that the patient, the patient's
agent, person authorized to make the patient's medical decisions, or legal
counsel provide written notice to the chief executive officer of the hospital
within 14 days of the date of the physician's determination that proposed
medical treatment is medically or ethically inappropriate as documented in the
patient's medical record.
H. Each hospital shall establish a protocol requiring that,
before a health care provider arranges for air medical transportation services
for a patient who does not have an emergency medical condition as defined in 42 USC
§ 1395dd(e)(1), the hospital shall provide the patient or the patient's
authorized representative with written or electronic notice that the patient
(i) may have a choice of transportation by an air medical transportation
provider or medically appropriate ground transportation by an emergency medical
services provider and (ii) will be responsible for charges incurred for such
transportation in the event that the provider is not a contracted network
provider of the patient's health insurance carrier or such charges are not
otherwise covered in full or in part by the patient's health insurance plan.
I. Each hospital shall provide written information about
the patient's ability to request an estimate of the payment amount for which
the participant will be responsible pursuant to § 32.1-137.05 of the Code
of Virginia. The written information shall be posted conspicuously in public
areas of the hospital, including admissions or registration areas, and included
on any website maintained by the hospital.
VA.R. Doc. No. R19-5943; Filed June 20, 2019, 5:42 p.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation
Titles of Regulations: 12VAC30-10. State Plan under
Title XIX of the Social Security Act Medical Assistance Program; General Provisions (amending 12VAC30-10-540).
12VAC30-50. Amount, Duration, and Scope of Medical and
Remedial Care Services (amending 12VAC30-50-20, 12VAC30-50-30,
12VAC30-50-60, 12VAC30-50-70, 12VAC30-50-130, 12VAC30-50-226).
12VAC30-60. Standards Established and Methods Used to Assure
High Quality Care (amending 12VAC30-60-5, 12VAC30-60-50,
12VAC30-60-61).
12VAC30-130. Amount, Duration and Scope of Selected Services (repealing 12VAC30-130-850 through
12VAC30-130-890).
Statutory Authority: § 32.1-325 of the Code of
Virginia, 42 USC § 1396 et seq.
Effective Date: August 22, 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.
Summary:
The regulatory action implements Items 301 OO and 301 PP of
Chapter 665 of the 2015 Acts of Assembly, which required the department to
develop and implement a care coordination model and make programmatic changes
in the provision of residential treatment for children. The action replaces
emergency regulations published in 33:13 VA.R. 1436-1469 February 20,
2017, and extended in 35:9 VA.R. 1130 December 24, 2018.
The amendments clarify policy interpretations and revise
program standards to allow for more evidence-based service delivery, allow the
department to implement more effective utilization management in collaboration
with the behavioral health service administrator, enhance individualized
coordination of care, implement standardized coordination of individualized
aftercare resources by ensuring access to medical and behavioral health service
providers in the individual's home community, and support department audit
practices. The action meets the requirements set forth by the Centers for
Medicare and Medicaid Services (CMS) in 42 CFR 441 Subpart D and 42 CFR
441.453.
The amendments include changes to the following areas: (i)
provider qualifications, including acceptable licensing standards; (ii)
preadmission assessment requirements; (iii) program requirements; (iv)
discharge planning and care coordination requirements; and (v) utilization
review requirements to clarify program requirements, ensure adequate
documentation of service delivery, and help providers avoid payment
retractions.
The action requires enhanced care coordination to provide
the necessary objective evaluations of treatment progress and to facilitate
evidence-based practices during the treatment to reduce the length of stay by
ensuring that medical necessity indicates the correct level of care, that
appropriate and effective care is delivered in a person centered manner, and
that service providers and local systems use standardized preadmission and
discharge processes to ensure effective services are delivered. The final
regulatory text is the same as the proposed regulatory text.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
12VAC30-10-540. Inspection of care in intermediate care
facilities for the mentally retarded persons with intellectual and
developmental disabilities, facilities providing inpatient psychiatric
services for individuals under younger than 21 years of age,
and mental hospitals.
All applicable requirements of 42 CFR 456, Subpart I,
are met with respect to periodic inspections of care and services.*
Inpatient psychiatric services for individuals under age
21 are not provided under this plan.
*Inspection of Care (IOC) in Intermediate Care Facilities
for the Mentally Retarded and Institutions for Mental Diseases are Inspection
of care in intermediate care facilities for persons with intellectual and
developmental disabilities is completed through contractual arrangements
with the Virginia Department of Health.
12VAC30-50-20. Services provided to the categorically needy
without limitation.
The following services as described in Part III
(12VAC30-50-100 et seq.) of this chapter are provided to the categorically
needy without limitation:
1. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
2. Services for individuals age 65 years of age
or over older in institutions for mental diseases: inpatient
hospital services; skilled nursing facility services; and services in an
intermediate care facility.
3. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined, in
accordance with § 1902(a)(31)(A) of the Social Security Act (the
Act), to be in need of such care, including such services in a public
institution (or distinct part thereof) for the mentally retarded or
persons with intellectual or developmental disability or related
conditions.
4. Hospice care (in accordance with § 1905(o) of the Act).
5. Any other medical care and any type of remedial care
recognized under state law, specified by the U.S. Secretary of Health
and Human Services: care and services provided in religious nonmedical
health care institutions;, nursing facility services for patients
under younger than 21 years of age;, or
emergency hospital services.
6. Private health insurance premiums, coinsurance, and
deductibles when cost effective (pursuant to Pub. L. P.L. No.
101-508 § 4402).
7. Program of All-Inclusive Care for the Elderly (PACE)
services are provided for eligible individuals as an optional State Plan
service for categorically needy individuals without limitation.
8. Pursuant to Pub. L. P.L. No. 111-148 § 4107,
counseling and pharmacotherapy for cessation of tobacco use by pregnant women
shall be covered.
a. Counseling and pharmacotherapy for cessation of tobacco use
by pregnant women means diagnostic, therapy, and counseling services and
pharmacotherapy (including the coverage of prescription and nonprescription
tobacco cessation agents approved by the U.S. Food and Drug
Administration) for cessation of tobacco use by pregnant women who use tobacco
products or who are being treated for tobacco use that is furnished (i) by or
under the supervision of a physician, (ii) by any other health care professional
who is legally authorized to provide tobacco cessation services under state law
and is authorized to provide Medicaid coverable services other than tobacco
cessation services, or (iii) by any other health care professional who is
legally authorized to provide tobacco cessation services under state law and
who is specifically designated by the U.S. Secretary of Health and Human
Services in federal regulations for this purpose.
b. No cost sharing shall be applied to these services. In
addition to other services that are covered for pregnant women, 12VAC30-50-510
also provides for other smoking cessation services that are covered for
pregnant women.
9. Inpatient psychiatric facility services and residential
psychiatric treatment services (including therapeutic group homes and
psychiatric residential treatment facilities) for individuals younger than 21
years of age.
12VAC30-50-30. Services not provided to the categorically
needy.
The following services and devices are not provided to the
categorically needy:
1. Chiropractors' Chiropractor services.
2. Private duty nursing services.
3. Dentures.
4. Other diagnostic and preventive services other than those
provided elsewhere in this plan: diagnostic services (see (12VAC30-50-95)
et seq.).
5. Inpatient psychiatric facility services for individuals
under 21 years of age, other than those covered under early and periodic
screening, diagnosis, and treatment (at 12VAC30-50-130). (Reserved.)
6. Special tuberculosis (TB) related services under § 1902(z)(2)(F)
of the Social Security Act (the Act).
7. Respiratory care services (in accordance with § 1920(e)(9)(A)
through (C) of the Act).
8. Ambulatory prenatal care for pregnant women furnished
during a presumptive eligibility period by a qualified provider (in accordance
with § 1920 of the Act).
9. Any other medical care and any type of remedial care
recognized under state law specified by the U.S. Secretary of Health
and Human Services: personal care services in recipient's home, prescribed
in accordance with a plan of treatment and provided by a qualified person under
supervision of a registered nurse.
12VAC30-50-60. Services provided to all medically needy groups
without limitations.
Services as described in Part III (12VAC30-50-100 et seq.) of
this chapter are provided to all medically needy groups without limitations.
1. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
2. Early and periodic screening and diagnosis of individuals under
younger than 21 years of age, and treatment of conditions found.
3. Pursuant to Pub. L. P.L. No. 111-148 § 4107,
counseling and pharmacotherapy for cessation of tobacco use by pregnant women
shall be covered.
a. Counseling and pharmacotherapy for cessation of tobacco use
by pregnant women means diagnostic, therapy, and counseling services and
pharmacotherapy (including the coverage of prescription and nonprescription
tobacco cessation agents approved by the U.S. Food and Drug
Administration) for cessation of tobacco use by pregnant women who use tobacco
products or who are being treated for tobacco use that is furnished (i) by or
under the supervision of a physician, (ii) by any other health care
professional who is legally authorized to provide tobacco cessation services
under state law and is authorized to provide Medicaid coverable services other
than tobacco cessation services, or (iii) by any other health care professional
who is legally authorized to provide tobacco cessation services under state law
and who is specifically designated by the U.S. Secretary of Health and Human
Services in federal regulations for this purpose.
b. No cost sharing shall be applied to these services. In
addition to other services that are covered for pregnant women, 12VAC30-50-510
also provides for other smoking cessation services that are covered for
pregnant women.
4. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined in
accordance with § 1905(a)(4)(A) of the Social Security Act (the
Act) to be in need of such care.
5. Hospice care (in accordance with § 1905(o) of the
Act).
6. Any other medical care or any other type of remedial care
recognized under state law, specified by the secretary U.S. Secretary
of Health and Human Services, including: care and services provided in
religious nonmedical health care institutions;, skilled nursing
facility services for patients under younger than 21 years of age;,
and emergency hospital services.
7. Private health insurance premiums, coinsurance and
deductibles when cost effective (pursuant to Pub. L. P.L. No.
101-508 § 4402).
8. Program of All-Inclusive Care for the Elderly (PACE)
services are provided for eligible individuals as an optional State Plan service
for medically needy individuals without limitation.
9. Inpatient psychiatric facility services and residential
psychiatric treatment services (including therapeutic group homes and
psychiatric residential treatment facilities) for individuals younger than 21
years of age.
12VAC30-50-70. Services or devices not provided to the
medically needy.
1. Chiropractors' Chiropractor services.
2. Private duty nursing services.
3. Dentures.
4. Diagnostic or preventive services other than those provided
elsewhere in the State Plan.
5. Inpatient hospital services, skilled nursing facility
services, and intermediate care facility services for individuals age 65
years of age or older in institutions for mental disease(s) diseases.
6. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined in
accordance with § 1905(a)(4)(A) of the Social Security Act (the Act),
to be in need of such care in a public institution, or a distinct part thereof,
for the mentally retarded or persons with intellectual or
developmental disability or related conditions.
7. Inpatient psychiatric facility services for individuals
under 21 years of age, other than those covered under early and periodic
screening, diagnosis, and treatment (at 12VAC30-50-130). (Reserved.)
8. Special tuberculosis (TB) services under §
1902(z)(2)(F) of the Act.
9. Respiratory care services (in accordance with § 1920(e)(9)(A)
through (C) of the Act).
10. Ambulatory prenatal care for pregnant women furnished
during a presumptive eligibility period by a qualified provider (in accordance
with § 1920 of the Act).
11. Personal care services in a recipient's home, prescribed
in accordance with a plan of treatment and provided by a qualified person under
supervision of a registered nurse.
12. Home and community care for functionally disabled elderly
individuals, as defined, described and limited in 12VAC30-50-460 and
12VAC30-50-470.
13. Personal care services furnished to an individual who is
not an inpatient or resident of a hospital, nursing facility, intermediate care
facility for the mentally retarded intellectually or developmentally
disabled persons, or institution for mental disease that are (i) authorized
for the individual by a physician in accordance with a plan of treatment, (ii)
provided by an individual who is qualified to provide such services and who is
not a member of the individual's family, and (iii) furnished in a home.
12VAC30-50-130. Nursing facility services, EPSDT, including
school health services, and family planning.
A. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
Service must be ordered or prescribed and directed or
performed within the scope of a license of the practitioner of the healing
arts.
B. Early General provisions for early and
periodic screening and, diagnosis, and treatment (EPSDT)
of individuals younger than 21 years of age, and treatment of conditions
found.
1. Payment of medical assistance services shall be made on
behalf of individuals younger than 21 years of age, who are Medicaid
eligible, for medically necessary stays in acute care facilities,
and the accompanying attendant physician care, in excess of 21 days per
admission when such services are rendered for the purpose of diagnosis and
treatment of health conditions identified through a physical examination.
2. Routine physicals and immunizations (except as provided
through EPSDT) are not covered except that well-child examinations in a private
physician's office are covered for foster children of the local departments
of social services departments on specific referral from those
departments.
3. Orthoptics services shall only be reimbursed if medically
necessary to correct a visual defect identified by an EPSDT examination or
evaluation. The department DMAS shall place appropriate
utilization controls upon this service.
4. Consistent with § 6403 of the Omnibus Budget
Reconciliation Act of 1989 § 6403, early and periodic screening, diagnostic,
and treatment services means the following services: screening services, vision
services, dental services, hearing services, and such other necessary health
care, diagnostic services, treatment, and other measures described in Social
Security Act § 1905(a) to correct or ameliorate defects and physical and
mental illnesses and conditions discovered by the screening services and that
are medically necessary, whether or not such services are covered under the
State Plan and notwithstanding the limitations, applicable to recipients ages
21 years of age and older, provided for by § 1905(a) of the Social
Security Act.
5. C. Community mental health services provided
through early and periodic screening diagnosis and treatment (EPSDT) for
individuals younger than 21 years of age. These services in order to be
covered (i) shall meet medical necessity criteria based upon diagnoses made by
LMHPs who are practicing within the scope of their licenses and (ii) are
shall be reflected in provider records and on providers' provider
claims for services by recognized diagnosis codes that support and are
consistent with the requested professional services.
a. 1. Definitions. The following words and terms
when used in this section shall have the following meanings unless the context
clearly indicates otherwise:
"Activities of daily living" means personal care
activities and includes bathing, dressing, transferring, toileting, feeding,
and eating.
"Adolescent or child" means the individual
receiving the services described in this section. For the purpose of the use of
these terms this term, adolescent means an individual 12 through
20 years of age; a child means an individual from birth up to 12 years of
age.
"Behavioral health service" means the same as
defined in 12VAC30-130-5160.
"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS.
"Care coordination" means the collaboration
and sharing of information among health care providers, who are involved
with an individual's health care, to improve the care.
"Caregiver" means the same as defined
in 12VAC30-130-5160.
"Certified prescreener" means an employee of the
local community services board or behavioral health authority, or its designee,
who is skilled in the assessment and treatment of mental illness and has
completed a certification program approved by the Department of Behavioral
Health and Developmental Services.
"Clinical experience" means providing direct
behavioral health services on a full-time basis or equivalent hours of
part-time work to children and adolescents who have diagnoses of mental illness
and includes supervised internships, supervised practicums, and supervised
field experience for the purpose of Medicaid reimbursement of (i) intensive
in-home services, (ii) day treatment for children and adolescents, (iii)
community-based residential services for children and adolescents who are
younger than 21 years of age (Level A), or (iv) therapeutic behavioral services
(Level B). Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be as
established by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.
"Child" means an individual ages birth through 11
years.
"DBHDS" means the Department of Behavioral Health
and Developmental Services.
"Direct supervisor" means the person who provides
direct supervision to the peer recovery specialist. The direct supervisor (i)
shall have two consecutive years of documented practical experience rendering
peer support services or family support services, have certification training
as a PRS under a certifying body approved by DBHDS, and have documented
completion of the DBHDS PRS supervisor training; (ii) shall be a qualified
mental health professional (QMHP-A, QMHP-C, or QMHP-E) as defined in 12VAC35-105-20
with at least two consecutive years of documented experience as a QMHP, and who
has documented completion of the DBHDS PRS supervisor training; or (iii) shall
be an LMHP who has documented completion of the DBHDS PRS supervisor training
who is acting within his scope of practice under state law. An LMHP providing
services before April 1, 2018, shall have until April 1, 2018, to complete the
DBHDS PRS supervisor training.
"DMAS" means the Department of Medical Assistance
Services and its contractors.
"EPSDT" means early and periodic screening,
diagnosis, and treatment.
"Family support partners" means the same as defined
in 12VAC30-130-5170.
"Human services field" means the same as the term is
defined by DBHDS the Department of Health Professions in the
document entitled Human Services and Related Fields Approved
Degrees/Experience, issued March 12, 2013, revised May 3, 2013 Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted
November 3, 2017, revised February 9, 2018.
"Individual service plan" or "ISP" means
the same as the term is defined in 12VAC30-50-226.
"Licensed mental health professional" or
"LMHP" means the same as defined in 12VAC35-105-20.
"LMHP-resident" or "LMHP-R" means the same
as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of
Counseling. For purposes of Medicaid reimbursement to their supervisors for
services provided by such residents, they shall use the title
"Resident" in connection with the applicable profession after their signatures
to indicate such status.
"LMHP-resident in psychology" or "LMHP-RP"
means the same as an individual in a residency, as that term is defined in
18VAC125-20-10, program for clinical psychologists. An LMHP-resident in
psychology shall be in continuous compliance with the regulatory requirements
for supervised experience as found in 18VAC125-20-65 and shall not perform the
functions of the LMHP-RP or be considered a "resident" until the
supervision for specific clinical duties at a specific site has been
preapproved in writing by the Virginia Board of Psychology. For purposes of
Medicaid reimbursement by supervisors for services provided by such residents,
they shall use the title "Resident in Psychology" after their
signatures to indicate such status.
"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" as defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be
considered a "supervisee" until the supervision for specific clinical
duties at a specific site is preapproved in writing by the Virginia Board of
Social Work. For purposes of Medicaid reimbursement to their supervisors for
services provided by supervisees, these persons shall use the title
"Supervisee in Social Work" after their signatures to indicate such
status.
"Peer recovery specialist" or "PRS" means
the same as defined in 12VAC30-130-5160.
"Person centered" means the same as defined in
12VAC30-130-5160.
"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized and member-specific progress notes are part of the
minimum documentation requirements and shall convey the individual's status,
staff interventions, and, as appropriate, the individual's progress, or lack of
progress, toward goals and objectives in the ISP. The progress notes shall also
include, at a minimum, the name of the service rendered, the date of the
service rendered, the signature and credentials of the person who rendered the
service, the setting in which the service was rendered, and the amount of time
or units/hours required to deliver the service. The content of each progress
note shall corroborate the time/units billed. Progress notes shall be
documented for each service that is billed.
"Psychoeducation" means (i) a specific form of
education aimed at helping individuals who have mental illness and their family
members or caregivers to access clear and concise information about mental
illness and (ii) a way of accessing and learning strategies to deal with mental
illness and its effects in order to design effective treatment plans and
strategies.
"Psychoeducational activities" means systematic
interventions based on supportive and cognitive behavior therapy that
emphasizes an individual's and his family's needs and focuses on increasing the
individual's and family's knowledge about mental disorders, adjusting to mental
illness, communicating and facilitating problem solving and increasing coping
skills.
"Qualified mental health professional-child" or
"QMHP-C" means the same as the term is defined in 12VAC35-105-20.
"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-590 including a
"QMHP-trainee" as defined by the Department of Health Professions.
"Qualified paraprofessional in mental health" or
"QPPMH" means the same as the term is defined in
12VAC35-105-20 and consistent with the requirements of 12VAC35-105-1370.
"Recovery-oriented services" means the same as
defined in 12VAC30-130-5160.
"Recovery, resiliency, and wellness plan" means the
same as defined in 12VAC30-130-5160.
"Resiliency" means the same as defined in
12VAC30-130-5160.
"Self-advocacy" means the same as defined in
12VAC30-130-5160.
"Service-specific provider intake" means the
face-to-face interaction in which the provider obtains information from the
child or adolescent, and parent or other family member as appropriate, about
the child's or adolescent's mental health status. It includes documented
history of the severity, intensity, and duration of mental health care problems
and issues and shall contain all of the following elements: (i) the presenting issue/reason
issue or reason for referral, (ii) mental health
history/hospitalizations, (iii) previous interventions by providers and
timeframes and response to treatment, (iv) medical profile, (v) developmental
history including history of abuse, if appropriate, (vi) educational/vocational
educational or vocational status, (vii) current living situation and
family history and relationships, (viii) legal status, (ix) drug and alcohol
profile, (x) resources and strengths, (xi) mental status exam and profile,
(xii) diagnosis, (xiii) professional summary and clinical formulation, (xiv)
recommended care and treatment goals, and (xv) the dated signature of the LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.
"Services provided under arrangement" means the
same as defined in 12VAC30-130-850.
"Strength-based" means the same as defined in
12VAC30-130-5160.
"Supervision" means the same as defined in
12VAC30-130-5160.
b. 2. Intensive in-home services (IIH) to
children and adolescents younger than 21 years of age shall be time-limited
interventions provided in the individual's residence and when clinically
necessary in community settings. All interventions and the settings of the
intervention shall be defined in the Individual Service Plan. All IIH services
shall be designed to specifically improve family dynamics, and
provide modeling, and the clinically necessary interventions that
increase functional and therapeutic interpersonal relations between family
members in the home. IIH services are designed to promote psychoeducational
benefits of psychoeducation in the home setting of an individual who is
at risk of being moved into an out-of-home placement or who is being
transitioned to home from an out-of-home placement due to a documented medical
need of the individual. These services provide crisis treatment; individual and
family counseling; communication skills (e.g., counseling to assist the
individual and his the individual's parents or guardians, as
appropriate, to understand and practice appropriate problem solving, anger
management, and interpersonal interaction, etc.); care coordination with other
required services; and 24-hour emergency response.
(1) a. Service authorization shall be required
for Medicaid reimbursement prior to the onset of services. Services rendered
before the date of authorization shall not be reimbursed.
(2) b. Service-specific provider intakes shall
be required prior to the start of services at the onset of services and
ISPs shall be required during the entire duration of services. Services based
upon incomplete, missing, or outdated service-specific provider intakes or ISPs
shall be denied reimbursement. Requirements for service-specific provider
intakes and ISPs are set out in this section.
(3) c. These services may shall
only be rendered by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C,
or a QMHP-E.
c. 3. Therapeutic day treatment (TDT) shall be
provided two or more hours per day in order to provide therapeutic
interventions (a unit is defined in 12VAC30-60-61 D 11). Day treatment
programs provide evaluation; medication education and management; opportunities
to learn and use daily living skills and to enhance social and interpersonal
skills (e.g., problem solving, anger management, community responsibility,
increased impulse control, and appropriate peer relations, etc.); and
individual, group, and family counseling.
(1) a. Service authorization shall be required
for Medicaid reimbursement.
(2) b. Service-specific provider intakes shall be
required at prior to the onset start of services,
and ISPs shall be required during the entire duration of services. Services
based upon incomplete, missing, or outdated service-specific provider intakes
or ISPs shall be denied reimbursement. Requirements for service-specific
provider intakes and ISPs are set out in this section.
(3) c. These services may shall be
rendered only by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or
a QMHP-E.
d. Community-based services for children and adolescents
younger than 21 years of age (Level A) pursuant to 42 CFR 440.031(d).
(1) Such services shall be a combination of therapeutic
services rendered in a residential setting. The residential services will
provide structure for daily activities, psychoeducation, therapeutic
supervision, care coordination, and psychiatric treatment to ensure the
attainment of therapeutic mental health goals as identified in the individual
service plan (plan of care). Individuals qualifying for this service must
demonstrate medical necessity for the service arising from a condition due to
mental, behavioral or emotional illness that results in significant functional
impairments in major life activities in the home, school, at work, or in the
community. The service must reasonably be expected to improve the child's
condition or prevent regression so that the services will no longer be needed.
The application of a national standardized set of medical necessity criteria in
use in the industry, such as McKesson InterQual® Criteria or an
equivalent standard authorized in advance by DMAS, shall be required for this
service.
(2) In addition to the residential services, the child must
receive, at least weekly, individual psychotherapy that is provided by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.
(3) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.
(4) Authorization shall be required for Medicaid
reimbursement. Services that were rendered before the date of service authorization
shall not be reimbursed.
(5) Room and board costs shall not be reimbursed. DMAS
shall reimburse only for services provided in facilities or programs with no
more than 16 beds.
(6) These residential providers must be licensed by the
Department of Social Services, Department of Juvenile Justice, or Department of
Behavioral Health and Developmental Services under the Standards for Licensed
Children's Residential Facilities (22VAC40-151), Regulation Governing Juvenile
Group Homes and Halfway Houses (6VAC35-41), or Regulations for Children's
Residential Facilities (12VAC35-46).
(7) Daily progress notes shall document a minimum of seven
psychoeducational activities per week. Psychoeducational programming must
include development or maintenance of daily living skills, anger management,
social skills, family living skills, communication skills, stress management,
and any care coordination activities.
(8) The facility/group home must coordinate services with
other providers. Such care coordination shall be documented in the individual's
medical record. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.
(9) Service-specific provider intakes shall be required at
the onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
intakes and ISPs are set out in 12VAC30-60-61.
(10) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.
D. Therapeutic group home services and psychiatric
residential treatment facility (PRTF) services for early and periodic screening
diagnosis and treatment (EPSDT) of individuals younger than 21 years of age.
1. Definitions. The following words and terms when used in
this subsection shall have the following meanings:
"Active treatment" means implementation of an
initial plan of care (IPOC) and comprehensive individual plan of care (CIPOC).
"Assessment" means the face-to-face interaction
by an LMHP, LMHP-R, LMHP-RP, or LMHP-S to obtain information from the child or
adolescent and parent, guardian, or other family member, as appropriate, utilizing
a tool or series of tools to provide a comprehensive evaluation and review of
the child's or adolescent's mental health status. The assessment shall include
a documented history of the severity, intensity, and duration of mental health
problems and behavioral and emotional issues.
"Certificate of need" or "CON" means a
written statement by an independent certification team that services in a
therapeutic group home or PRTF are or were needed.
"Combined treatment services" means a structured,
therapeutic milieu and planned interventions that promote (i) the development
or restoration of adaptive functioning, self-care, and social skills; (ii)
community integrated activities and community living skills that each
individual requires to live in less restrictive environments; (iii) behavioral
consultation; (iv) individual and group therapy; (v) skills restoration, the
restoration of coping skills, family living and health awareness, interpersonal
skills, communication skills, and stress management skills; (vi) family
education and family therapy; and (vii) individualized treatment planning.
"Comprehensive individual plan of care" or
"CIPOC" means a person centered plan of care that meets all of the
requirements of this subsection and is specific to the individual's unique
treatment needs and acuity levels as identified in the clinical assessment and
information gathered during the referral process.
"Crisis" means a deteriorating or unstable
situation that produces an acute, heightened emotional, mental, physical,
medical, or behavioral event.
"Crisis management" means immediately provided
activities and interventions designed to rapidly manage a crisis. The
activities and interventions include behavioral health care to provide
immediate assistance to individuals experiencing acute behavioral health
problems that require immediate intervention to stabilize and prevent harm and
higher level of acuity. Activities shall include assessment and short-term
counseling designed to stabilize the individual. Individuals are referred to
long-term services once the crisis has been stabilized.
"Daily supervision" means the supervision
provided in a PRTF through a resident-to-staff ratio approved by the Office of
Licensure at the Department of Behavioral Health and Developmental Services
with documented supervision checks every 15 minutes throughout a 24-hour
period.
"Discharge planning" means family and
locality-based care coordination that begins upon admission to a PRTF or
therapeutic group home with the goal of transitioning the individual out of the
PRTF or therapeutic group home to a less restrictive care setting with
continued, clinically-appropriate, and possibly intensive, services as soon as
possible upon discharge. Discharge plans shall be recommended by the treating physician,
psychiatrist, or treating LMHP responsible for the overall supervision of the
plan of care and shall be approved by the DMAS contractor.
"DSM-5" means the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition, copyright 2013, American Psychiatric
Association.
"Emergency admissions" means those admissions
that are made when, pending a review for the certificate of need, it appears
that the individual is in need of an immediate admission to a therapeutic group
home or PRTF and likely does not meet the medical necessity criteria to receive
crisis intervention, crisis stabilization, or acute psychiatric inpatient
services.
"Emergency services" means unscheduled and
sometimes scheduled crisis intervention, stabilization, acute psychiatric inpatient
services, and referral assistance provided over the telephone or face-to-face
if indicated, and available 24 hours a day, seven days per week.
"Family engagement" means a family-centered and
strengths-based approach to partnering with families in making decisions,
setting goals, achieving desired outcomes, and promoting safety, permanency,
and well-being for children, adolescents, and families. Family engagement
requires ongoing opportunities for an individual to build and maintain
meaningful relationships with family members, for example, frequent,
unscheduled, and noncontingent telephone calls and visits between an individual
and family members. Family engagement may also include enhancing or
facilitating the development of the individual's relationship with other family
members and supportive adults responsible for the individual's care and
well-being upon discharge.
"Family engagement activity" means an
intervention consisting of family psychoeducational training or coaching,
transition planning with the family, family and independent living skills, and
training on accessing community supports as identified in the plan of care.
Family engagement activity does not include and is not the same as family
therapy.
"Family therapy" means counseling services
involving the individual's family and significant others to advance the
treatment goals when (i) the counseling with the family member and significant
others is for the direct benefit of the individual, (ii) the counseling is not
aimed at addressing treatment needs of the individual's family or significant
others, and (iii) the individual is present except when it is clinically
appropriate for the individual to be absent in order to advance the
individual's treatment goals. Family therapy shall be aligned with the goals of
the individual's plan of care. All family therapy services furnished are for
the direct benefit of the individual, in accordance with the individual's needs
and treatment goals identified in the individual's plan of care, and for the
purpose of assisting in the individual's recovery.
"FAPT" means the family assessment and planning
team.
"ICD-10" means International Statistical
Classification of Diseases and Related Health Problems, 10th Revision,
published by the World Health Organization.
"Independent certification team" means a team
that has competence in diagnosis and treatment of mental illness, preferably in
child psychiatry; has knowledge of the individual's situation; and is composed
of at least one physician and one LMHP. The independent certification team
shall be a DMAS-authorized contractor with contractual or employment
relationships with the required team members.
"Individual" means the child or adolescent
younger than 21 years of age who is receiving therapeutic group home or PRTF
services.
"Individual and group therapy" means the
application of principles, standards, and methods of the counseling profession
in (i) conducting assessments and diagnosis for the purpose of establishing
treatment goals and objectives and (ii) planning, implementing, and evaluating
plans of care using treatment interventions to facilitate human development and
to identify and remediate mental, emotional, or behavioral disorders and
associated distresses that interfere with mental health.
"Initial plan of care" or "IPOC" means
a person centered plan of care established at admission that meets all of the
requirements of this subsection and is specific to the individual's unique
treatment needs and acuity levels as identified in the clinical assessment and
information gathered during the referral process.
"Intervention" means scheduled therapeutic
treatment such as individual or group psychoeducation; skills restoration;
structured behavior support and training activities; recreation, art, and music
therapies; community integration activities that promote or assist in the
child's or adolescent's ability to acquire coping and functional or
self-regulating behavior skills; day and overnight passes; and family
engagement activities. Interventions shall not include individual, group, and
family therapy; medical or dental appointments; or physician services,
medication evaluation, or management provided by a licensed clinician or
physician and shall not include school attendance. Interventions shall be provided
in the therapeutic group home or PRTF and, when clinically necessary, in a
community setting or as part of a therapeutic pass. All interventions and
settings of the intervention shall be established in the plan of care.
"Plan of care" means the initial plan of care
(IPOC) and the comprehensive individual plan of care (CIPOC).
"Physician" means an individual licensed to
practice medicine or osteopathic medicine in Virginia, as defined in § 54.1-2900
of the Code of Virginia.
"Psychiatric residential treatment facility" or
"PRTF" means the same as defined in 42 CFR 483.352 and is a 24-hour,
supervised, clinically and medically necessary, out-of-home active treatment
program designed to provide necessary support and address mental health,
behavioral, substance abuse, cognitive, and training needs of an individual
younger than 21 years of age in order to prevent or minimize the need for more
intensive treatment.
"Recertification" means a certification for each
applicant or recipient for whom therapeutic group home or PRTF services are
needed.
"Room and board" means a component of the total
daily cost for placement in a licensed PRTF. Residential room and board costs
are maintenance costs associated with placement in a licensed PRTF and include
a semi-private room, three meals and two snacks per day, and personal care
items. Room and board costs are reimbursed only for PRTF settings.
"Services provided under arrangement" means
services including physician and other health care services that are furnished
to children while they are in a freestanding psychiatric hospital or PRTF that
are billed by the arranged practitioners separately from the freestanding
psychiatric hospital's or PRTF's per diem.
"Skills restoration" means a face-to-face service
to assist individuals in the restoration of lost skills that are necessary to
achieve the goals established in the beneficiary's plan of care. Services
include assisting the individual in restoring self-management, interpersonal,
communication, and problem solving skills through modeling, coaching, and
cueing.
"Therapeutic group home" means a congregate
residential service providing 24-hour supervision in a community-based home
having eight or fewer residents.
"Therapeutic pass" means time at home or
time with family consisting of partial or entire days of time away from the
therapeutic group home or psychiatric residential treatment facility as
clinically indicated in the plan of care and as paired with facility-based and
community-based interventions to promote discharge planning, community
integration, and family engagement activities. Therapeutic passes are not
recreational but are a therapeutic component of the plan of care and are
designed for the direct benefit of the individual.
"Treatment planning" means development of a
person centered plan of care that is specific to the individual's unique
treatment needs and acuity levels.
e. 2. Therapeutic behavioral group
home services (Level B) pursuant to 42 CFR 440.130(d).
(1) Such services must be therapeutic services rendered in
a residential setting. The residential services will provide structure for
daily activities, psychoeducation, therapeutic supervision, care coordination,
and psychiatric treatment to ensure the attainment of therapeutic mental health
goals as identified in the individual service plan (plan of care). Individuals
qualifying for this service must demonstrate medical necessity for the service
arising from a condition due to mental, behavioral or emotional illness that
results in significant functional impairments in major life activities in the
home, school, at work, or in the community. The service must reasonably be
expected to improve the child's condition or prevent regression so that the
services will no longer be needed. The application of a national standardized
set of medical necessity criteria in use in the industry, such as McKesson
InterQual ® Criteria, or an equivalent standard authorized in advance by DMAS
shall be required for this service.
(2) Authorization is required for Medicaid reimbursement.
Services that are rendered before the date of service authorization shall not
be reimbursed.
(3) a. Therapeutic group home services for children
and adolescents younger than 21 years of age shall provide therapeutic services
to restore or maintain appropriate skills necessary to promote prosocial
behavior and healthy living, including skills restoration, family living and
health awareness, interpersonal skills, communication skills, and stress
management skills. Therapeutic services shall also engage families and reflect
family-driven practices that correlate to sustained positive outcomes
post-discharge for youth and their family members. Each component of
therapeutic group home services is provided for the direct benefit of the
individual, in accordance with the individual's needs and treatment goals
identified in the individual's plan of care, and for the purpose of assisting
in the individual's recovery. These services are provided under 42 CFR
440.130(d) in accordance with the rehabilitative services benefit.
b. The plan of care shall include individualized
activities, including a minimum of one intervention per 24-hour period in
addition to individual, group, and family therapies. Daily interventions are
not required when there is documentation to justify clinical or medical reasons
for the individual's deviations from the plan of care. Interventions shall be
documented on a progress note and shall be outlined in and aligned with the
treatment goals and objectives in the IPOC and CIPOC. Any deviation from the
plan of care shall be documented along with a clinical or medical justification
for the deviation.
c. Medical necessity criteria for admission to a
therapeutic group home. The following requirements for severity of need and
intensity and quality of service shall be met to satisfy the medical necessity
criteria for admission.
(1) Severity of need required for admission. All of the
following criteria shall be met to satisfy the criteria for severity of need:
(a) The individual's behavioral health condition can only
be safely and effectively treated in a 24-hour therapeutic milieu with onsite
behavioral health therapy due to significant impairments in home, school, and
community functioning caused by current mental health symptoms consistent with
a DSM-5 diagnosis.
(b) The certificate of need must demonstrate all of the
following: (i) ambulatory care resources (all available modalities of treatment
less restrictive than inpatient treatment) available in the community do not
meet the treatment needs of the individual; (ii) proper treatment of the
individual's psychiatric condition requires services on an inpatient basis
under the direction of a physician; and (iii) the services can reasonably be
expected to improve the individual's condition or prevent further regression so
that the services will no longer be needed.
(c) The state uniform assessment tool shall be completed.
The assessment shall demonstrate at least two areas of moderate impairment in
major life activities. A moderate impairment is defined as a major or
persistent disruption in major life activities. A moderate impairment is
evidenced by, but not limited to (i) frequent conflict in the family setting
such as credible threats of physical harm, where "frequent" means
more than expected for the individual's age and developmental level; (ii)
frequent inability to accept age-appropriate direction and supervision from
caretakers, from family members, at school, or in the home or community; (iii)
severely limited involvement in social support, which means significant
avoidance of appropriate social interaction, deterioration of existing
relationships, or refusal to participate in therapeutic interventions; (iv)
impaired ability to form a trusting relationship with at least one caretaker in
the home, school, or community; (v) limited ability to consider the effect of
one's inappropriate conduct on others; and (vi) interactions consistently
involving conflict, which may include impulsive or abusive behaviors.
(d) Less restrictive community-based services have been
given a fully adequate trial and were unsuccessful or, if not attempted, have
been considered, but in either situation were determined to be unable to meet
the individual's treatment needs and the reasons for that are discussed in the certificate
of need.
(e) The individual's symptoms, or the need for treatment in
a 24 hours a day, seven days a week level of care (LOC), are not primarily due
to any of the following: (i) intellectual disability, developmental disability,
or autistic spectrum disorder; (ii) organic mental disorders, traumatic brain
injury, or other medical condition; or (iii) the individual does not require a
more intensive level of care.
(f) The individual does not require primary medical or
surgical treatment.
(2) Intensity and quality of service necessary for
admission. All of the following criteria shall be met to satisfy the criteria
for intensity and quality of service:
(a) The therapeutic group home service has been prescribed
by a psychiatrist, psychologist, or other LMHP who has documented that a
residential setting is the least restrictive clinically appropriate service
that can meet the specifically identified treatment needs of the individual.
(b) The therapeutic group home is not being used for
clinically inappropriate reasons, including (i) an alternative to incarceration
or preventative detention; (ii) an alternative to a parent's, guardian's, or
agency's capacity to provide a place of residence for the individual; or (iii)
a treatment intervention when other less restrictive alternatives are
available.
(c) The individual's treatment goals are included in the
service specific provider intake and include behaviorally defined objectives
that require and can reasonably be achieved within a therapeutic group home setting.
(d) The therapeutic group home is required to coordinate
with the individual's community resources, including schools and FAPT as
appropriate, with the goal of transitioning the individual out of the program
to a less restrictive care setting for continued, sometimes intensive, services
as soon as possible and appropriate.
(e) The therapeutic group home program must incorporate
nationally established, evidence-based, trauma-informed services and supports
that promote recovery and resiliency.
(f) Discharge planning begins upon admission, with concrete
plans for the individual to transition back into the community beginning within
the first week of admission, with clear action steps and target dates outlined
in the plan of care.
(3) Continued stay criteria. The following criteria shall
be met in order to satisfy the criteria for continued stay:
(a) All of the admission guidelines continue to be met and
continue to be supported by the written clinical documentation.
(b) The individual shall meet one of the following
criteria: (i) the desired outcome or level of functioning has not been restored
or improved in the timeframe outlined in the individual's plan of care or the
individual continues to be at risk for relapse based on history or (ii) the
nature of the functional gains is tenuous and use of less intensive services
will not achieve stabilization.
(c) The individual shall meet one of the following
criteria: (i) the individual has achieved initial CIPOC goals, but additional
goals are indicated that cannot be met at a lower level of care; (ii) the
individual is making satisfactory progress toward meeting goals but has not
attained plan of care goals, and the goals cannot be addressed at a lower level
of care; (iii) the individual is not making progress, and the plan of care has
been modified to identify more effective interventions; or (iv) there are
current indications that the individual requires this level of treatment to
maintain level of functioning as evidenced by failure to achieve goals identified
for therapeutic visits or stays in a nontreatment residential setting or in a
lower level of residential treatment.
(d) There is a written, up-to-date discharge plan that (i)
identifies the custodial parent or custodial caregiver at discharge; (ii) identifies
the school the individual will attend at discharge, if applicable; (iii)
includes individualized education program (IEP) and FAPT recommendations, if
necessary; (iv) outlines the aftercare treatment plan (discharge to another
residential level of care is not an acceptable discharge goal); and (v) lists
barriers to community reintegration and progress made on resolving these
barriers since last review.
(e) The active plan of care includes structure for combined
treatment services and activities to ensure the attainment of therapeutic
mental health goals as identified in the plan of care. Combined treatment
services reinforce and practice skills learned in individual, group, and family
therapy such as community integration skills, coping skills, family living and
health awareness skills, interpersonal skills, and stress management skills.
Combined treatment services may occur in group settings, in one-on-one
interactions, or in the home setting during a therapeutic pass. In addition to
the combined treatment services, the child or adolescent must also receive
psychotherapy services, care coordination, family-based discharge planning, and
locality-based transition activities. The child or adolescent shall receive
intensive family interventions at least twice per month, although it is
recommended that the intensive family interventions be provided at a frequency
of one family therapy session per week. Family involvement begins immediately
upon admission to therapeutic group home. If the minimum requirement cannot be
met, the reasons must be reported, and continued efforts to involve family
members must also be documented. Other family members or supportive adults may
be included as indicated in the plan of care.
(f) Less restrictive treatment options have been considered
but cannot yet meet the individual's treatment needs. There is sufficient
current clinical documentation or evidence to show that therapeutic group home
level of care continues to be the least restrictive level of care that can meet
the individual's mental health treatment needs.
(4) Discharge shall occur if any of the following applies:
(i) the level of functioning has improved with respect to the goals outlined in
the plan of care, and the individual can reasonably be expected to maintain these
gains at a lower level of treatment; (ii) the individual no longer benefits
from service as evidenced by absence of progress toward plan of care goals for
a period of 60 days; or (iii) other less intensive services may achieve
stabilization.
d. The following clinical activities shall be required for
each therapeutic group home resident:
(1) An assessment be performed by an LMHP, LMHP-R, LMHP-RP,
or LMHP-S.
(2) A face-to-face evaluation shall be performed by an
LMHP, LMHP-R, LMHP-RP, or LMHP-S within 30 calendar days prior to admission
with a documented DSM-5 or ICD-10 diagnosis.
(3) A certificate of need shall be completed by an
independent certification team according to the requirements of subdivision D 4
of this section. Recertification shall occur at least every 60 calendar days by
an LMHP, LMHP-R, LMHP-RP, or LMHP-S acting within his scope of practice.
(4) An IPOC that is specific to the individual's unique
treatment needs and acuity levels. The IPOC shall be completed on the day of
admission by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be signed by the
LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual and a family member or
legally authorized representative. The IPOC shall include all of the following:
(a) Individual and family strengths and personal traits
that would facilitate recovery and opportunities to develop motivational
strategies and treatment alliance;
(b) Diagnoses, symptoms, complaints, and complications
indicating the need for admission;
(c) A description of the functional level of the
individual;
(d) Treatment objectives with short-term and long-term
goals;
(e) Orders for medications, psychiatric, medical, dental,
and any special health care needs whether or not provided in the facilities,
treatments, restorative and rehabilitative services, activities, therapies,
therapeutic passes, social services, community integration, diet, and special
procedures recommended for the health and safety of the individual;
(f) Plans for continuing care, including review and
modification to the plan of care; and
(g) Plans for discharge.
(5) A CIPOC shall be completed no later than 14 calendar
days after admission. The CIPOC shall meet all of the following criteria:
(a) Be based on a diagnostic evaluation that includes
examination of the medical, psychological, social, behavioral, and
developmental aspects of the individual's situation and shall reflect the need
for therapeutic group home care;
(b) Be based on input from school, home, other health care
providers, FAPT if necessary, the individual, and the family or legal guardian;
(c) Shall state treatment objectives that include
measurable short-term and long-term goals and objectives, with target dates for
achievement;
(d) Prescribe an integrated program of therapies,
activities, and experiences designed to meet the treatment objectives related
to the diagnosis; and
(e) Include a comprehensive discharge plan with necessary,
clinically appropriate community services to ensure continuity of care upon
discharge with the individual's family, school, and community.
(6) The CIPOC shall be reviewed, signed, and dated every 30
calendar days by the LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual or a
family member or primary caregiver. Updates shall be signed and dated by the
LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual or a family member or
legally authorized representative. The review shall include all of the
following:
(a) The individual's response to the services provided;
(b) Recommended changes in the plan as indicated by the
individual's overall response to the CIPOC interventions; and
(c) Determinations regarding whether the services being
provided continue to be required.
(7) Crisis management, clinical assessment, and
individualized therapy shall be provided to address both behavioral health and
substance use disorder needs as indicated in the plan of care to address
intermittent crises and challenges within the therapeutic group home setting or
community settings as defined in the plan of care and to avoid a higher level
of care.
(8) Care coordination shall be provided with medical,
educational, and other behavioral health providers and other entities involved
in the care and discharge planning for the individual as included in the plan
of care.
(9) Weekly individual therapy shall be provided in the
therapeutic group home, or other settings as appropriate for the individual's
needs, by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, which shall be documented in
progress notes in accordance with the requirements in 12VAC30-60-61.
(10) Weekly (or more frequently if clinically indicated)
group therapy shall be provided by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, which
shall be documented in progress notes in accordance with the requirements in
12VAC30-60-61 and as planned and documented in the plan of care.
(11) Family treatment shall be provided as clinically
indicated, provided by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, and documented in
progress notes in accordance with the requirements in 12VAC30-60-61 and as
planned and documented in the plan of care.
(12) Family engagement activities shall be provided in
addition to family therapy or counseling. Family engagement activities shall be
provided at least weekly as outlined in the plan of care, and daily
communication with the family or legally authorized representative shall be
part of the family engagement strategies in the plan of care. For each
service authorization period when family engagement is not possible, the
therapeutic group home shall identify and document the specific barriers to the
individual's engagement with the individual's family or legally authorized
representatives. The therapeutic group home shall document on a weekly basis
the reasons why family engagement is not occurring as required. The therapeutic
group home shall document alternative family engagement strategies to be used
as part of the interventions in the plan of care and request approval of the
revised plan of care by DMAS. When family engagement is not possible, the
therapeutic group home shall collaborate with DMAS on a weekly basis to develop
individualized family engagement strategies and document the revised strategies
in the plan of care.
(13) Therapeutic passes shall be provided as clinically
indicated in the plan of care and as paired with facility-based and community-based
interventions to promote discharge planning, community integration, and family
engagement activities.
(a) The provider shall document how the family was prepared
for the therapeutic pass to include a review of the plan of care goals and
objectives being addressed by the planned interventions and the safety and
crisis plan in effect during the therapeutic pass.
(b) If a facility staff member does not accompany the
individual on the therapeutic pass and the therapeutic pass exceeds 24 hours,
the provider shall make daily contacts with the family and be available 24
hours per day to address concerns, incidents, or crises that may arise during
the pass.
(c) Contact with the family shall occur within seven
calendar days of the therapeutic pass to discuss the accomplishments and
challenges of the therapeutic pass along with an update on progress toward plan
of care goals and any necessary changes to the plan of care.
(d) Twenty-four therapeutic passes shall be permitted per
individual, per admission, without authorization as approved by the treating
LMHP and documented in the plan of care. Additional therapeutic passes shall
require service authorization. Any unauthorized therapeutic passes shall result
in retraction for those days of service.
(14) Discharge planning shall begin at admission and
continue throughout the individual's stay at the therapeutic group home. The
family or guardian, the community services board (CSB), the family assessment
and planning team (FAPT) case manager, and the DMAS contracted care manager
shall be involved in treatment planning and shall identify the anticipated
needs of the individual and family upon discharge and available services in the
community. Prior to discharge, the therapeutic group home shall submit an active
and viable discharge plan to the DMAS contractor for review. Once the DMAS
contractor approves the discharge plan, the provider shall begin actively
collaborating with the family or legally authorized representative and the
treatment team to identify behavioral health and medical providers and schedule
appointments for service-specific provider intakes as needed. The therapeutic
group home shall request permission from the parent or legally authorized
representative to share treatment information with these providers and shall
share information pursuant to a valid release. The therapeutic group home shall
request information from post-discharge providers to establish that the
planning of pending services and transition planning activities has begun,
shall establish that the individual has been enrolled in school, and shall
provide individualized education program recommendations to the school if
necessary. The therapeutic group home shall inform the DMAS contractor of all
scheduled appointments within 30 calendar days of discharge and shall notify
the DMAS contractor within one business day of the individual's discharge date
from the therapeutic group home.
(15) Room and board costs shall not be reimbursed.
Facilities that only provide independent living services or nonclinical
services that do not meet the requirements of this subsection are not reimbursed
eligible for reimbursement. DMAS shall reimburse only for services
provided in facilities or programs with no more than 16 beds.
(4) These residential (16) Therapeutic group home
services providers must shall be licensed by the Department
of Behavioral Health and Developmental Services (DBHDS) under the Regulations
for Children's Residential Facilities (12VAC35-46).
(5) Daily progress notes shall document that a minimum of
seven psychoeducational activities per week occurs. Psychoeducational
programming must include development or maintenance of daily living skills,
anger management, social skills, family living skills, communication skills,
and stress management. This service may be provided in a program setting or a
community-based group home.
(6) The individual must receive, at least weekly,
individual psychotherapy and, at least weekly, group psychotherapy that is
provided as part of the program.
(7) (17) Individuals shall be discharged from
this service when treatment goals are met or other less intensive
services may achieve stabilization.
(8) Service-specific provider intakes shall be required at
the onset of services and ISPs shall be required during the entire duration of
services. (18) Services that are based upon incomplete, missing, or
outdated service-specific provider intakes or ISPs plans of care
shall be denied reimbursement. Requirements for intakes and ISPs are set out
in 12VAC30-60-61.
(9) These (19) Therapeutic group home services
may only be rendered by and within the scope of practice of an LMHP,
LMHP-supervisee, LMHP-resident,
LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH as defined in 12VAC35-105-20.
(10) (20) The facility/group psychiatric
residential treatment facility or therapeutic group home shall coordinate
necessary services and discharge planning with other providers as
medically and clinically necessary. Documentation of this care coordination
shall be maintained by the facility/group facility or group home
in the individual's record. The documentation shall include who was contacted,
when the contact occurred, and what information was transmitted, and
recommended next steps.
(21) Failure to perform any of the items described in this subsection
shall result in a retraction of the per diem for each day of noncompliance.
3. PRTF services are a 24-hour, supervised, clinically and
medically necessary out-of-home program designed to provide necessary support
and address mental health, behavioral, substance use, cognitive, or other
treatment needs of an individual younger than 21 years of age in order to
prevent or minimize the need for more inpatient treatment. Active treatment and
comprehensive discharge planning shall begin prior to admission. In order to be
covered for individuals younger than 21 years of age, these services shall (i)
meet DMAS-approved psychiatric medical necessity criteria or be approved as an
EPSDT service based upon a diagnosis made by an LMHP, LMHP-R, LMHP-RP, or LMHP-S
who is practicing within the scope of his license and (ii) be reflected in
provider records and on the provider's claims for services by recognized
diagnosis codes that support and are consistent with the requested professional
services.
a. PRTF services shall be covered for the purpose of
diagnosis and treatment of mental health and behavioral disorders when such
services are rendered by a psychiatric facility that is not a hospital and is
accredited by the Joint Commission on Accreditation of Healthcare
Organizations, the Commission on Accreditation of Rehabilitation Facilities,
the Council on Accreditation of Services for Families and Children, or by any
other accrediting organization with comparable standards that is recognized by
the state.
b. Providers of PRTF services shall be licensed by DBHDS.
c. PRTF services are reimbursable only when the treatment
program is fully in compliance with (i) 42 CFR Part 441 Subpart D, specifically
42 CFR 441.151 (a) and (b) and 42 CFR 441.152 through 42 CFR 441.156 and (ii)
the Conditions of Participation in 42 CFR Part 483 Subpart G. Each admission
must be service authorized, and the treatment must meet DMAS requirements for
clinical necessity.
d. The PRTF benefit for individuals younger than 21 years
of age shall include services defined at 42 CFR 440.160 that are provided
under the direction of a physician pursuant to a certification of medical
necessity and plan of care developed by an interdisciplinary team of
professionals and shall involve active treatment designed to achieve the
child's discharge from PRTF services at the earliest possible time. The PRTF
services benefit shall include services provided under arrangement furnished by
Medicaid enrolled providers other than the PRTF, as long as the PRTF (i) arranges
for and oversees the provision of all services, (ii) maintains all medical
records of care furnished to the individual, and (iii) ensures that the
services are furnished under the direction of a physician. Services provided
under arrangement shall be documented by a written referral from the PRTF. For
purposes of pharmacy services, a prescription ordered by an employee or
contractor of the facility who is licensed to prescribe drugs shall be
considered the referral.
e. PRTFs, as defined at 42 CFR 483.352, shall arrange
for, maintain records of, and ensure that physicians order these services: (i)
medical and psychological services, including those furnished by physicians,
licensed mental health professionals, and other licensed or certified health professionals
(i.e., nutritionists, podiatrists, respiratory therapists, and substance abuse
treatment practitioners); (ii) pharmacy services; (iii) outpatient hospital
services; (iv) physical therapy, occupational therapy, and therapy for
individuals with speech, hearing, or language disorders; (v) laboratory and
radiology services; (vi) durable medical equipment; (vii) vision services;
(viii) dental, oral surgery, and orthodontic services; (ix) nonemergency
transportation services; and (x) emergency services.
f. PRTF services shall include assessment and
reassessment; room and board; daily supervision; combined treatment services;
individual, family, and group therapy; care coordination; interventions;
general or special education; medical treatment (including medication,
coordination of necessary medical services, and 24-hour onsite nursing);
specialty services; and discharge planning that meets the medical and clinical
needs of the individual.
g. Medical necessity criteria for admission to a PRTF. The
following requirements for severity of need and intensity and quality of
service shall be met to satisfy the medical necessity criteria for admission:
(1) Severity of need required for admission. The following
criteria shall be met to satisfy the criteria for severity of need:
(a) There is clinical evidence that the individual has a
DSM-5 disorder that is amenable to active psychiatric treatment.
(b) There is a high degree of potential of the condition
leading to acute psychiatric hospitalization in the absence of residential
treatment.
(c) Either (i) there is clinical evidence that the
individual would be a risk to self or others if the individual were not in a
PRTF or (ii) as a result of the individual's mental disorder, there is an
inability for the individual to adequately care for his own physical needs, and
caretakers, guardians, or family members are unable to safely fulfill these
needs, representing potential serious harm to self.
(d) The individual requires supervision seven days per
week, 24 hours per day to develop skills necessary for daily living; to assist
with planning and arranging access to a range of educational, therapeutic, and
aftercare services; and to develop the adaptive and functional behavior that
will allow the individual to live outside of a PRTF setting.
(e) The individual's current living environment does not
provide the support and access to therapeutic services needed.
(f) The individual is medically stable and does not require
the 24-hour medical or nursing monitoring or procedures provided in a hospital
level of care.
(2) Intensity and quality of service necessary for
admission. The following criteria shall be met to satisfy the criteria for
intensity and quality of service:
(a) The evaluation and assignment of a DSM-5 diagnosis must
result from a face-to-face psychiatric evaluation.
(b) The program provides supervision seven days per week,
24 hours per day to assist with the development of skills necessary for daily
living; to assist with planning and arranging access to a range of educational,
therapeutic, and aftercare services; and to assist with the development of the
adaptive and functional behavior that will allow the individual to live outside
of a PRTF setting.
(c) An individualized plan of active psychiatric treatment
and residential living support is provided in a timely manner. This treatment
must be medically monitored, with 24-hour medical availability and 24-hour
nursing services availability. This plan includes (i) at least once-a-week
psychiatric reassessments; (ii) intensive family or support system involvement
occurring at least once per week or valid reasons identified as to why such a
plan is not clinically appropriate or feasible; (iii) psychotropic medications,
when used, are to be used with specific target symptoms identified; (iv)
evaluation for current medical problems; (v) evaluation for concomitant
substance use issues; and (vi) linkage or coordination with the individual's
community resources, including the local school division and FAPT case manager,
as appropriate, with the goal of returning the individual to his regular social
environment as soon as possible, unless contraindicated. School contact should
address an individualized educational plan as appropriate.
(d) A urine drug screen is considered at the time of
admission, when progress is not occurring, when substance misuse is suspected,
or when substance use and medications may have a potential adverse interaction.
After a positive screen, additional random screens are considered and referral
to a substance use disorder provider is considered.
(3) Criteria for continued stay. The following criteria
shall be met to satisfy the criteria for continued stay:
(a) Despite reasonable therapeutic efforts, clinical
evidence indicates at least one of the following: (i) the persistence of
problems that caused the admission to a degree that continues to meet the
admission criteria (both severity of need and intensity of service needs); (ii)
the emergence of additional problems that meet the admission criteria (both severity
of need and intensity of service needs); or (iii) that disposition planning or
attempts at therapeutic reentry into the community have resulted in or would
result in exacerbation of the psychiatric illness to the degree that would
necessitate continued PRTF treatment. Subjective opinions without objective
clinical information or evidence are not sufficient to meet severity of need
based on justifying the expectation that there would be a decompensation.
(b) There is evidence of objective, measurable, and
time-limited therapeutic clinical goals that must be met before the individual
can return to a new or previous living situation. There is evidence that
attempts are being made to secure timely access to treatment resources and
housing in anticipation of discharge, with alternative housing contingency
plans also being addressed.
(c) There is evidence that the plan of care is focused on
the alleviation of psychiatric symptoms and precipitating psychosocial
stressors that are interfering with the individual's ability to return to a
less-intensive level of care.
(d) The current or revised plan of care can be reasonably
expected to bring about significant improvement in the problems meeting the
criteria in subdivision 3 c (3) (a) of this subsection, and this is documented
in weekly progress notes written and signed by the provider.
(e) There is evidence of intensive family or support system
involvement occurring at least once per week, unless there is an identified
valid reason why it is not clinically appropriate or feasible.
(f) A discharge plan is formulated that is directly linked
to the behaviors or symptoms that resulted in admission and begins to identify
appropriate post-PRTF resources including the local school division and FAPT
case manager as appropriate.
(g) All applicable elements in admission-intensity and
quality of service criteria are applied as related to assessment and treatment
if clinically relevant and appropriate.
(4) Discharge criteria. Discharge shall occur if any of the
following applies: (i) the level of functioning has improved with respect to
the goals outlined in the plan of care, and the individual can reasonably be
expected to maintain these gains at a lower level of treatment; (ii) the
individual no longer benefits from service as evidenced by absence of progress
toward plan of care goals for a period of 30 days; or (iii) other less
intensive services may achieve stabilization.
h. The following clinical activities shall be required for
each PRTF resident:
(1) A face-to-face assessment shall be performed by an
LMHP, LMHP-R, LMHP-RS, or LMHP-S within 30 calendar days prior to admission and
weekly thereafter and shall document a DSM-5 or ICD-10 diagnosis.
(2) A certificate of need shall be completed by an
independent certification team according to the requirements of 12VAC30-50-130
D 4. Recertification shall occur at least every 30 calendar days by a physician
acting within his scope of practice.
(3) The initial plan of care (IPOC) shall be completed
within 24 hours of admission by the treatment team. The IPOC shall
include:
(a) Individual and family strengths and personal traits
that would facilitate recovery and opportunities to develop motivational
strategies and treatment alliance;
(b) Diagnoses, symptoms, complaints, and complications
indicating the need for admission;
(c) A description of the functional level of the
individual;
(d) Treatment objectives with short-term and long-term
goals;
(e) Any orders for medications, psychiatric, medical,
dental, and any special health care needs, whether or not provided in the
facility; education or special education; treatments; interventions; and
restorative and rehabilitative services, activities, therapies, social
services, diet, and special procedures recommended for the health and safety of
the individual;
(f) Plans for continuing care, including review and
modification to the plan of care;
(g) Plans for discharge; and
(h) Signature and date by the individual, parent, or
legally authorized representative, a physician, and treatment team members.
(4) The CIPOC shall be completed and signed no later than
14 calendar days after admission by the treatment team. The PRTF shall request
authorizations from families to release confidential information to collect
information from medical and behavioral health treatment providers, schools,
FAPT, social services, court services, and other relevant parties. This
information shall be used when considering changes and updating the CIPOC. The
CIPOC shall meet all of the following criteria:
(a) Be based on a diagnostic evaluation that includes
examination of the medical, psychological, social, behavioral, and
developmental aspects of the individual's situation and must reflect the need
for PRTF care;
(b) Be developed by an interdisciplinary team of physicians
and other personnel specified in subdivision 3 d 4 of this subsection who are
employed by or provide services to the individual in the facility in
consultation with the individual, family member, or legally authorized
representative, or appropriate others into whose care the individual will be
released after discharge;
(c) Shall state treatment objectives that shall include
measurable, evidence-based, and short-term and long-term goals and objectives;
family engagement activities; and the design of community-based aftercare with
target dates for achievement;
(d) Prescribe an integrated program of therapies,
interventions, activities, and experiences designed to meet the treatment
objectives related to the individual and family treatment needs; and
(e) Describe comprehensive transition plans and
coordination of current care and post-discharge plans with related community
services to ensure continuity of care upon discharge with the recipient's
family, school, and community.
(5) The CIPOC shall be reviewed every 30 calendar days by
the team specified in subdivision 3 d 4 of this subsection to determine that
services being provided are or were required from a PRTF and to recommend
changes in the plan as indicated by the individual's overall adjustment during
the time away from home. The CIPOC shall include the signature and date from
the individual, parent, or legally authorized representative, a physician, and
treatment team members.
(6) Individual therapy shall be provided three times
per week (or more frequently based upon the individual's needs) provided by an
LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the plan of care
and progress notes in accordance with the requirements in this subsection and
12VAC30-60-61.
(7) Group therapy shall be provided as clinically indicated
by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the plan of
care and progress notes in accordance with the requirements in this subsection.
(8) Family therapy shall be provided as clinically
indicated by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the
plan of care and progress notes in accordance with the individual and family or
legally authorized representative's goals and the requirements in this
subsection.
(9) Family engagement shall be provided in addition to
family therapy or counseling. Family engagement shall be provided at least
weekly as outlined in the plan of care and daily communication with the
treatment team representative and the treatment team representative and the family
or legally authorized representative shall be part of the family engagement
strategies in the plan of care. For each service authorization period when
family engagement is not possible, the PRTF shall identify and document the
specific barriers to the individual's engagement with his family or legally
authorized representatives. The PRTF shall document on a weekly basis the
reasons that family engagement is not occurring as required. The PRTF shall
document alternate family engagement strategies to be used as part of the
interventions in the plan of care and request approval of the revised plan of
care by DMAS. When family engagement is not possible, the PRTF shall
collaborate with DMAS on a weekly basis to develop individualized family
engagement strategies and document the revised strategies in the plan of care.
(10) Three interventions shall be provided per 24-hour
period including nights and weekends. Family engagement activities are
considered to be an intervention and shall occur based on the treatment and
visitation goals and scheduling needs of the family or legally authorized
representative. Interventions shall be documented on a progress note and shall
be outlined in and aligned with the treatment goals and objectives in the plan
of care. Any deviation from the plan of care shall be documented along with a
clinical or medical justification for the deviation based on the needs of the
individual.
(11) Therapeutic passes shall be provided as clinically
indicated in the plan of care and as paired with community-based and
facility-based interventions to promote discharge planning, community
integration, and family engagement. Therapeutic passes include activities as
listed in subdivision 2 d (13) of this section. Twenty-four therapeutic passes
shall be permitted per individual, per admission, without authorization as
approved by the treating physician and documented in the plan of care.
Additional therapeutic passes shall require service authorization from DMAS.
Any unauthorized therapeutic passes not approved by the provider or DMAS shall
result in retraction for those days of service.
(12) Discharge planning shall begin at admission and
continue throughout the individual's placement at the PRTF. The parent or
legally authorized representative, the community services board (CSB), the
family assessment planning team (FAPT) case manager, if appropriate, and the
DMAS contracted care manager shall be involved in treatment planning and shall
identify the anticipated needs of the individual and family upon discharge and
identify the available services in the community. Prior to discharge, the PRTF
shall submit an active discharge plan to the DMAS contractor for review. Once
the DMAS contractor approves the discharge plan, the provider shall begin
collaborating with the parent or legally authorized representative and the
treatment team to identify behavioral health and medical providers and schedule
appointments for service-specific provider intakes as needed. The PRTF shall
request written permission from the parent or legally authorized representative
to share treatment information with these providers and shall share information
pursuant to a valid release. The PRTF shall request information from
post-discharge providers to establish that the planning of services and
activities has begun, shall establish that the individual has been enrolled in
school, and shall provide individualized education program recommendations to
the school if necessary. The PRTF shall inform the DMAS contractor of all
scheduled appointments within 30 calendar days of discharge and shall notify
the DMAS contractor within one business day of the individual's discharge date
from the PRTF.
(13) Failure to perform any of the items as described in
subdivisions 3 h (1) through 3 h (12) of this subsection up until the discharge
of the individual shall result in a retraction of the per diem and all other
contracted and coordinated service payments for each day of noncompliance.
i. The team developing the CIPOC shall meet the following
requirements:
(1) At least one member of the team must have expertise in
pediatric behavioral health. Based on education and experience, preferably
including competence in child or adolescent psychiatry, the team must be
capable of all of the following: assessing the individual's immediate and
long-range therapeutic needs, developmental priorities, and personal strengths
and liabilities; assessing the potential resources of the individual's family
or legally authorized representative; setting treatment objectives; and
prescribing therapeutic modalities to achieve the CIPOC's objectives.
(2) The team shall include one of the following:
(a) A board-eligible or board-certified psychiatrist;
(b) A licensed clinical psychologist and a physician
licensed to practice medicine or osteopathy; or
(c) A physician licensed to practice medicine or osteopathy
with specialized training and experience in the diagnosis and treatment of
mental diseases and a licensed clinical psychologist.
(3) The team shall also include one of the following: an
LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP.
4. Requirements for independent certification teams
applicable to both therapeutic group homes and PRTFs:
a. The independent certification team shall certify the
need for PRTF or therapeutic group home services and issue a certificate of
need document within the process and timeliness standards as approved by DMAS
under contractual agreement with the DMAS contractor.
b. The independent certification team shall be approved by
DMAS through a memorandum of understanding with a locality or be approved under
contractual agreement with the DMAS contractor. The team shall initiate and
coordinate referral to the family assessment and planning team (FAPT) as
defined in §§ 2.2-5207 and 2.2-5208 of the Code of Virginia to facilitate care
coordination and for consideration of educational coverage and other supports
not covered by DMAS.
c. The independent certification team shall assess the
individual's and family's strengths and needs in addition to diagnoses,
behaviors, and symptoms that indicate the need for behavioral health treatment
and also consider whether local resources and community-based care are
sufficient to meet the individual's treatment needs, as presented within the
previous 30 calendar days, within the least restrictive environment.
d. The LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP, as
part of the independent certification team, shall meet with an individual and
the individual's parent or legally authorized representative within two business
days from a request to assess the individual's needs and begin the process to
certify the need for an out-of-home placement.
e. The independent certification team shall meet with an
individual and the individual's parent or legally authorized representative
within 10 business days from a request to certify the need for an out-of-home
placement.
f. The independent certification team shall assess the
treatment needs of the individual to issue a certificate of need (CON) for the
most appropriate medically necessary services. The certification shall include
the dated signature and credentials for each of the team members who rendered
the certification. Referring or treatment providers shall not actively
participate during the certification process but may provide supporting
clinical documentation to the certification team.
g. The CON shall be effective for 30 calendar days prior to
admission.
h. The independent certification team shall provide the
completed CON to the facility within one calendar day of completing the CON.
i. The individual and the individual's parent or legally
authorized representative shall have the right to freedom of choice of service
providers.
j. If the individual or the individual's parent or legally
authorized representative disagrees with the independent certification team's
recommendation, the parent or legally authorized representative may appeal the
recommendation in accordance with 12VAC30-110.
k. If the LMHP, as part of the independent certification
team, determines that the individual is in immediate need of treatment, the
LMHP shall refer the individual to an appropriate Medicaid-enrolled crisis
intervention provider, crisis stabilization provider, or inpatient psychiatric
provider in accordance with 12VAC30-50-226 or shall refer the individual for
emergency admission to a PRTF or therapeutic group home under subdivision 4 m
of this subsection and shall also alert the individual's managed care
organization.
l. For individuals who are already eligible for Medicaid at
the time of admission, the independent certification team shall be a
DMAS-authorized contractor with competence in the diagnosis and treatment of
mental illness, preferably in child psychiatry, and have knowledge of the
individual's situation and service availability in the individual's local
service area. The team shall be composed of at least one physician and one
LMHP, including LMHP-S, LMHP-R, and LMHP-RP. An individual's parent or legally
authorized representative shall be included in the certification process.
m. For emergency admissions, an assessment must be made by
the team responsible for the comprehensive individual plan of care (CIPOC).
Reimbursement shall only occur when a certificate of need is issued by the team
responsible for the CIPOC within 14 calendar days after admission. The
certification shall cover any period of time after admission and before claims
are made for reimbursement by Medicaid. After processing an emergency
admission, the therapeutic group home, PRTF, or institution for mental diseases
(IMD) shall notify the DMAS contractor within five calendar days of the
individual's status as being under the care of the facility.
n. For all individuals who apply and become eligible for
Medicaid while an inpatient in a facility or program, the certification team
shall refer the case to the DMAS contractor for referral to the local FAPT to
facilitate care coordination and consideration of educational coverage and
other supports not covered by DMAS.
o. For individuals who apply and become eligible for
Medicaid while an inpatient in the facility or program, the certification shall
be made by the team responsible for the CIPOC and shall cover any period of
time before the application for Medicaid eligibility for which claims are made
for reimbursement by Medicaid. Upon the individual's enrollment into the
Medicaid program, the therapeutic group home, PRTF, or IMD shall notify the
DMAS contractor of the individual's status as being under the care of the
facility within five calendar days of the individual becoming eligible for
Medicaid benefits.
5. Service authorization requirements applicable to both
therapeutic group homes and PRTFs:
a. Authorization shall be required and shall be conducted
by DMAS using medical necessity criteria specified in this subsection.
b. An individual shall have a valid psychiatric diagnosis
and meet the medical necessity criteria as defined in this subsection to
satisfy the criteria for admission. The diagnosis shall be current, as
documented within the past 12 months. If a current diagnosis is not available,
the individual will require a mental health evaluation prior to admission by an
LMHP affiliated with the independent certification team to establish a
diagnosis and recommend and coordinate referral to the available treatment
options.
c. At authorization, an initial length of stay shall be
agreed upon by the individual and parent or legally authorized representative
with the treating provider, and the treating provider shall be responsible for
evaluating and documenting evidence of treatment progress, assessing the need
for ongoing out-of-home placement, and obtaining authorization for continued
stay.
d. Information that is required to obtain authorization for
these services shall include:
(1) A completed state-designated uniform assessment
instrument approved by DMAS;
(2) A certificate of need completed by an independent
certification team specifying all of the following:
(a) The ambulatory care and Medicaid or FAPT-funded
services available in the community do not meet the specific treatment needs of
the individual;
(b) Alternative community-based care was not successful;
(c) Proper treatment of the individual's psychiatric
condition requires services in a 24-hour supervised setting under the direction
of a physician; and
(d) The services can reasonably be expected to improve the
individual's condition or prevent further regression so that a more intensive
level of care will not be needed;
(3) Diagnosis as defined in the DSM-5 and based on (i) an
evaluation by a psychiatrist or LMHP that has been completed within 30 calendar
days of admission or (ii) a diagnosis confirmed in writing by an LMHP after
review of a previous evaluation completed within one year of admission;
(4) A description of the individual's behavior during the
seven calendar days immediately prior to admission;
(5) A description of alternate placements and community
mental health and rehabilitation services and traditional behavioral health
services pursued and attempted and the outcomes of each service;
(6) The individual's level of functioning and clinical
stability;
(7) The level of family involvement and supports available;
and
(8) The initial plan of care (IPOC).
6. Continued stay criteria requirements applicable to both
therapeutic group homes and PRTFs. For a continued stay authorization or a
reauthorization to occur, the individual shall meet the medical necessity
criteria as defined in this subsection to satisfy the criteria for continuing
care. The length of the authorized stay shall be determined by DMAS. A current
plan of care and a current (within 30 calendar days) summary of progress
related to the goals and objectives of the plan of care shall be submitted to
DMAS for continuation of the service. The service provider shall also submit:
a. A state uniform assessment instrument, completed no more
than 30 business days prior to the date of submission;
b. Documentation that the required services have been
provided as defined in the plan of care;
c. Current (within the last 14 calendar days) information
on progress related to the achievement of all treatment and discharge-related
goals; and
d. A description of the individual's continued impairment
and treatment needs, problem behaviors, family engagement activities,
community-based discharge planning and care coordination, and need for a
residential level of care.
7. EPSDT services requirements applicable to therapeutic
group homes and PRTFs. Service limits may be exceeded based on medical
necessity for individuals eligible for EPSDT. EPSDT services may involve
service modalities not available to other individuals, such as applied
behavioral analysis and neuro-rehabilitative services. Individualized services
to address specific clinical needs identified in an EPSDT screening shall
require authorization by a DMAS contractor. In unique EPSDT cases, DMAS may
authorize specialized services beyond the standard therapeutic group home or
PRTF medical necessity criteria and program requirements, as medically and
clinically indicated to ensure the most appropriate treatment is available to
each individual. Treating service providers authorized to deliver medically
necessary EPSDT services in therapeutic group homes and PRTFs on behalf of a
Medicaid-enrolled individual shall adhere to the individualized interventions
and evidence-based progress measurement criteria described in the plan of care
and approved for reimbursement by DMAS. All documentation, independent
certification team, family engagement activity, therapeutic pass, and discharge
planning requirements shall apply to cases approved as EPSDT PRTF or
therapeutic group home service.
8. Inpatient psychiatric services shall be covered for
individuals younger than 21 years of age for medically necessary stays in
inpatient psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2)
for the purpose of diagnosis and treatment of mental health and behavioral
disorders identified under EPSDT when such services meet the requirements set
forth in subdivision 7 of this subsection.
a. Inpatient psychiatric services shall be provided under
the direction of a physician.
b. Inpatient psychiatric services shall be provided by (i)
a psychiatric hospital that undergoes a state survey to determine whether the
hospital meets the requirements for participation in Medicare as a psychiatric
hospital as specified in 42 CFR 482.60 or is accredited by a national
organization whose psychiatric hospital accrediting program has been approved
by the Centers for Medicare and Medicaid Services (CMS); or (ii) a hospital
with an inpatient psychiatric program that undergoes a state survey to
determine whether the hospital meets the requirements for participation in
Medicare as a hospital, as specified in 42 CFR part 482 or is accredited by a
national accrediting organization whose hospital accrediting program has been
approved by CMS.
c. Inpatient psychiatric admissions at general acute care
hospitals and freestanding psychiatric hospitals shall also be subject to the
requirements of 12VAC30-50-100, 12VAC30-50-105, and 12VAC30-60-25.
d. PRTF services are reimbursable only when the treatment
program is fully in compliance with (i) 42 CFR Part 441 Subpart D, specifically
42 CFR 441.151(a) and 42 CFR 441.151 (b) and 42 CFR 441.152 through 42 CFR
441.156 and (ii) the Conditions of Participation in 42 CFR Part 483 Subpart G.
Each admission must be service authorized and the treatment must meet DMAS
requirements for clinical necessity.
e. The inpatient psychiatric benefit for individuals
younger than 21 years of age shall include services that are provided pursuant
to a certification of medical necessity and plan of care developed by an
interdisciplinary team of professionals and shall involve active treatment
designed to achieve the individual's discharge from inpatient status at the
earliest possible time. The inpatient psychiatric benefit shall include
services provided under arrangement furnished by Medicaid enrolled providers
other than the inpatient psychiatric facility, as long as the inpatient
psychiatric facility (i) arranges for and oversees the provision of all
services, (ii) maintains all medical records of care furnished to the
individual, and (iii) ensures that the services are furnished under the
direction of a physician. Services provided under arrangement shall be
documented by a written referral from the inpatient psychiatric facility. For
purposes of pharmacy services, a prescription ordered by an employee or
contractor of the inpatient psychiatric facility who is licensed to prescribe
drugs shall be considered the referral.
f. State freestanding psychiatric hospitals shall arrange
for, maintain records of, and ensure that physicians order pharmacy services
and emergency services. Private freestanding psychiatric hospitals shall
arrange for, maintain records of, and ensure that physicians order the
following services: (i) medical and psychological services including those
furnished by physicians, licensed mental health professionals, and other
licensed or certified health professionals (i.e., nutritionists, podiatrists,
respiratory therapists, and substance abuse treatment practitioners); (ii)
outpatient hospital services; (iii) physical therapy, occupational therapy, and
therapy for individuals with speech, hearing, or language disorders; (iv)
laboratory and radiology services; (v) vision services; (vi) dental, oral
surgery, and orthodontic services; (vii) nonemergency transportation services;
and (viii) emergency services. (Emergency services means the same as is set
forth in 12VAC30-50-310 B.)
f. E. Mental health family support partners.
(1) 1. Mental health family support partners are
peer recovery support services and are nonclinical, peer-to-peer activities
that engage, educate, and support the caregiver and an individual's self-help
efforts to improve health recovery resiliency and wellness. Mental health
family support partners is a peer support service and is a strength-based,
individualized service provided to the caregiver of a Medicaid-eligible
individual younger than 21 years of age with a mental health disorder that is
the focus of support. The services provided to the caregiver and individual
must be directed exclusively toward the benefit of the Medicaid-eligible
individual. Services are expected to improve outcomes for individuals younger
than 21 years of age with complex needs who are involved with multiple systems
and increase the individual's and family's confidence and capacity to manage
their own services and supports while promoting recovery and healthy
relationships. These services are rendered by a PRS who is (i) a parent of a
minor or adult child with a similar mental health disorder or (ii) an adult
with personal experience with a family member with a similar mental health
disorder with experience navigating behavioral health care services. The PRS
shall perform the service within the scope of his knowledge, lived experience,
and education.
(2) 2. Under the clinical oversight of the LMHP
making the recommendation for mental health family support partners, the peer
recovery specialist in consultation with his direct supervisor shall develop a
recovery, resiliency, and wellness plan based on the LMHP's recommendation for
service, the individual's and the caregiver's perceived recovery needs, and any
clinical assessments or service specific provider intakes as defined in this
section within 30 calendar days of the initiation of service. Development of
the recovery, resiliency, and wellness plan shall include collaboration with
the individual and the individual's caregiver. Individualized goals and
strategies shall be focused on the individual's identified needs for
self-advocacy and recovery. The recovery, resiliency, and wellness plan shall
also include documentation of how many days per week and how many hours per
week are required to carry out the services in order to meet the goals of the
plan. The recovery, resiliency, and wellness plan shall be completed, signed,
and dated by the LMHP, the PRS, the direct supervisor, the individual, and the
individual's caregiver within 30 calendar days of the initiation of service.
The PRS shall act as an advocate for the individual, encouraging the individual
and the caregiver to take a proactive role in developing and updating goals and
objectives in the individualized recovery planning.
(3) 3. Documentation of required activities
shall be required as set forth in 12VAC30-130-5200 A, C, and E through J.
(4) 4. Limitations and exclusions to service
delivery shall be the same as set forth in 12VAC30-130-5210.
(5) 5. Caregivers of individuals younger than 21
years of age who qualify to receive mental health family support partners shall
(i) care for an individual with a mental health disorder who requires recovery
assistance and (ii) meet two or more of the following:
(a) a. Individual and his caregiver need
peer-based recovery-oriented services for the maintenance of wellness and the
acquisition of skills needed to support the individual.
(b) b. Individual and his caregiver need
assistance to develop self-advocacy skills to assist the individual in
achieving self-management of the individual's health status.
(c) c. Individual and his caregiver need
assistance and support to prepare the individual for a successful work or
school experience.
(d) d. Individual and his caregiver need
assistance to help the individual and caregiver assume responsibility for
recovery.
(6) 6. Individuals 18 through, 19, and
20 years of age who meet the medical necessity criteria in 12VAC30-50-226 B 7
e, who would benefit from receiving peer supports directly and who choose to
receive mental health peer support services directly instead of through their
caregiver, shall be permitted to receive mental health peer support services by
an appropriate PRS.
(7) 7. To qualify for continued mental health
family support partners, medical necessity criteria shall continue to be met,
and progress notes shall document the status of progress relative to the goals
identified in the recovery, resiliency, and wellness plan.
(8) 8. Discharge criteria from mental health
family support partners shall be the same as set forth in 12VAC30-130-5180 E.
(9) 9. Mental health family support partners
services shall be rendered on an individual basis or in a group.
(10) 10. Prior to service initiation, a
documented recommendation for mental health family support partners services shall
be made by a licensed mental health professional (LMHP) who is acting within
his scope of practice under state law. The recommendation shall verify that the
individual meets the medical necessity criteria set forth in subdivision 5 of
this subsection. The recommendation shall be valid for no longer than 30
calendar days.
(11) 11. Effective July 1, 2017, a peer recovery
specialist shall have the qualifications, education, experience, and
certification required by DBHDS in order to be eligible to register with the
Virginia Board of Counseling on or after July 1, 2018. Upon the promulgation of
regulations by the Board of Counseling, registration of peer recovery
specialists by the Board of Counseling shall be required. The PRS shall perform
mental health family support partners services under the oversight of the LMHP
making the recommendation for services and providing the clinical oversight of
the recovery, resiliency, and wellness plan.
(12) 12. The PRS shall be employed by or have a
contractual relationship with the enrolled provider licensed for one of the
following:
(a) a. Acute care general and emergency
department hospital services licensed by the Department of Health.
(b) b. Freestanding psychiatric hospital and
inpatient psychiatric unit licensed by the Department of Behavioral Health and
Developmental Services.
(c) c. Psychiatric residential treatment
facility licensed by the Department of Behavioral Health and Developmental
Services.
(d) d. Therapeutic group home licensed by the
Department of Behavioral Health and Developmental Services.
(e) e. Outpatient mental health clinic services
licensed by the Department of Behavioral Health and Developmental Services.
(f) f. Outpatient psychiatric services provider.
(g) g. A community mental health and rehabilitative
services provider licensed by the Department of Behavioral Health and
Developmental Services as a provider of one of the following community mental
health and rehabilitative services as defined in this section, 12VAC30-50-226,
12VAC30-50-420, or 12VAC30-50-430 for which the individual younger than 21
years meets medical necessity criteria: (i) intensive in home; (ii)
therapeutic day treatment; (iii) day treatment or partial hospitalization; (iv)
crisis intervention; (v) crisis stabilization; (vi) mental health skill
building; or (vii) mental health case management.
(13) 13. Only the licensed and enrolled provider
as referenced in subdivision 5 f (12) 12 of this subsection shall
be eligible to bill and receive reimbursement from DMAS or its contractor
for mental health family support partner services. Payments shall not be
permitted to providers that fail to enter into an enrollment agreement with
DMAS or its contractor. Reimbursement shall be subject to retraction for
any billed service that is determined not to be in compliance with DMAS
requirements.
(14) 14. Supervision of the PRS shall meet the
requirements set forth in 12VAC30-50-226 B 7 l.
6. Inpatient psychiatric services shall be covered for
individuals younger than age 21 for medically necessary stays in inpatient
psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2) for the
purpose of diagnosis and treatment of mental health and behavioral disorders
identified under EPSDT when such services are rendered by: (i) a psychiatric hospital
or an inpatient psychiatric program in a hospital accredited by the Joint
Commission on Accreditation of Healthcare Organizations or (ii) a psychiatric
facility that is accredited by the Joint Commission on Accreditation of
Healthcare Organizations or the Commission on Accreditation of Rehabilitation
Facilities. Inpatient psychiatric hospital admissions at general acute care
hospitals and freestanding psychiatric hospitals shall also be subject to the
requirements of 12VAC30-50-100, 12VAC30-50-105, and 12VAC30-60-25. Inpatient
psychiatric admissions to residential treatment facilities shall also be
subject to the requirements of Part XIV (12VAC30-130-850 et seq.) of Amount,
Duration and Scope of Selected Services.
a. The inpatient psychiatric services benefit for
individuals younger than 21 years of age shall include services defined at 42
CFR 440.160 that are provided under the direction of a physician pursuant to a
certification of medical necessity and plan of care developed by an
interdisciplinary team of professionals and shall involve active
treatment designed to achieve the child's discharge from inpatient status at
the earliest possible time. The inpatient psychiatric services benefit shall
include services provided under arrangement furnished by Medicaid enrolled
providers other than the inpatient psychiatric facility, as long as the
inpatient psychiatric facility (i) arranges for and oversees the provision of
all services, (ii) maintains all medical records of care furnished to the
individual, and (iii) ensures that the services are furnished under the
direction of a physician. Services provided under arrangement shall be
documented by a written referral from the inpatient psychiatric facility. For
purposes of pharmacy services, a prescription ordered by an employee or
contractor of the facility who is licensed to prescribe drugs shall be
considered the referral.
b. Eligible services provided under arrangement with the
inpatient psychiatric facility shall vary by provider type as described in this
subsection. For purposes of this section, emergency services means the same as
is set out in 12VAC30-50-310 B.
(1) State freestanding psychiatric hospitals shall arrange
for, maintain records of, and ensure that physicians order these services: (i)
pharmacy services and (ii) emergency services.
(2) Private freestanding psychiatric hospitals shall
arrange for, maintain records of, and ensure that physicians order these
services: (i) medical and psychological services including those furnished by
physicians, licensed mental health professionals, and other licensed or
certified health professionals (i.e., nutritionists, podiatrists, respiratory
therapists, and substance abuse treatment practitioners); (ii) outpatient
hospital services; (iii) physical therapy, occupational therapy, and therapy
for individuals with speech, hearing, or language disorders; (iv)
laboratory and radiology services; (v) vision services; (vi) dental, oral
surgery, and orthodontic services; (vii) transportation services; and (viii) emergency
services.
(3) Residential treatment facilities, as defined at 42 CFR
483.352, shall arrange for, maintain records of, and ensure that physicians
order these services: (i) medical and psychological services, including those
furnished by physicians, licensed mental health professionals, and other
licensed or certified health professionals (i.e., nutritionists, podiatrists,
respiratory therapists, and substance abuse treatment practitioners); (ii)
pharmacy services; (iii) outpatient hospital services; (iv) physical therapy,
occupational therapy, and therapy for individuals with speech, hearing, or
language disorders; (v) laboratory and radiology services; (vi) durable medical
equipment; (vii) vision services; (viii) dental, oral surgery, and orthodontic
services; (ix) transportation services; and (x) emergency services.
c. Inpatient psychiatric services are reimbursable only
when the treatment program is fully in compliance with (i) 42 CFR Part 441
Subpart D, specifically 42 CFR 441.151(a) and (b) and 42 CFR 441.152 through 42
CFR 441.156, and (ii) the conditions of participation in 42 CFR Part 483
Subpart G. Each admission must be preauthorized and the treatment must meet
DMAS requirements for clinical necessity.
d. Service limits may be exceeded based on medical
necessity for individuals eligible for EPSDT.
7. F. Hearing aids shall be reimbursed for
individuals younger than 21 years of age according to medical necessity when
provided by practitioners licensed to engage in the practice of fitting or dealing
in hearing aids under the Code of Virginia.
8. G. Addiction and recovery treatment services
shall be covered under EPSDT consistent with 12VAC30-130-5000 et seq.
9. H. Services facilitators shall be required
for all consumer-directed personal care services consistent with the
requirements set out in 12VAC30-120-935.
10. I. Behavioral therapy services shall be
covered for individuals younger than 21 years of age.
a. 1. Definitions. The following words and terms
when used in this subsection shall have the following meanings unless the
context clearly indicates otherwise:
"Behavioral therapy" means systematic interventions
provided by licensed practitioners acting within the scope of practice defined
under a Virginia Department of Health Professions regulatory board and covered
as remedial care under 42 CFR 440.130(d) to individuals younger than 21 years
of age. Behavioral therapy includes applied behavioral analysis. Family
training related to the implementation of the behavioral therapy shall be included
as part of the behavioral therapy service. Behavioral therapy services shall be
subject to clinical reviews and determined as medically necessary. Behavioral
therapy may be provided in the individual's home and community settings as
deemed by DMAS or its contractor as medically necessary treatment.
"Counseling" means a professional mental health
service that can only be provided by a person holding a license issued by a
health regulatory board at the Department of Health Professions, which includes
conducting assessments, making diagnoses of mental disorders and conditions,
establishing treatment plans, and determining treatment interventions.
"Individual" means the child or adolescent younger
than 21 years of age who is receiving behavioral therapy services.
"Primary care provider" means a licensed medical
practitioner who provides preventive and primary health care and is responsible
for providing routine EPSDT screening and referral and coordination of other
medical services needed by the individual.
b. 2. Behavioral therapy services shall be
designed to enhance communication skills and decrease maladaptive patterns of
behavior, which if left untreated, could lead to more complex problems and the
need for a greater or a more intensive level of care. The service goal shall be
to ensure the individual's family or caregiver is trained to effectively manage
the individual's behavior in the home using modification strategies. All
services shall be provided in accordance with the ISP and clinical assessment summary.
c. 3. Behavioral therapy services shall be
covered when recommended by the individual's primary care provider or other
licensed physician, licensed physician assistant, or licensed nurse
practitioner and determined by DMAS or its contractor to be medically
necessary to correct or ameliorate significant impairments in major life
activities that have resulted from either developmental, behavioral, or mental
disabilities. Criteria for medical necessity are set out in 12VAC30-60-61 H
F. Service-specific provider intakes shall be required at the onset of
these services in order to receive authorization for reimbursement. Individual
service plans (ISPs) shall be required throughout the entire duration of
services. The services shall be provided in accordance with the individual
service plan and clinical assessment summary. These services shall be provided
in settings that are natural or normal for a child or adolescent without a
disability, such as the individual's home, unless there is justification in the
ISP, which has been authorized for reimbursement, to include service settings
that promote a generalization of behaviors across different settings to
maintain the targeted functioning outside of the treatment setting in the
individual's home and the larger community within which the individual resides.
Covered behavioral therapy services shall include:
(1) a. Initial and periodic service-specific
provider intake as defined in 12VAC30-60-61 H F;
(2) b. Development of initial and updated ISPs
as established in 12VAC30-60-61 H F;
(3) c. Clinical supervision activities.
Requirements for clinical supervision are set out in 12VAC30-60-61 H F;
(4) d. Behavioral training to increase the
individual's adaptive functioning and communication skills;
(5) e. Training a family member in behavioral
modification methods as established in 12VAC30-60-61 H F;
(6) f. Documentation and analysis of
quantifiable behavioral data related to the treatment objectives; and
(7) g. Care coordination.
C. J. School health services.
1. School health assistant services are repealed effective
July 1, 2006.
2. School divisions may provide routine well-child screening
services under the State Plan. Diagnostic and treatment services that are
otherwise covered under early and periodic screening, diagnosis and treatment
services, shall not be covered for school divisions. School divisions to
receive reimbursement for the screenings shall be enrolled with DMAS as clinic
providers.
a. Children enrolled in managed care organizations shall
receive screenings from those organizations. School divisions shall not receive
reimbursement for screenings from DMAS for these children.
b. School-based services are listed in a recipient's
individualized education program (IEP) and covered under one or more of the
service categories described in § 1905(a) of the Social Security Act. These
services are necessary to correct or ameliorate defects of physical or mental
illnesses or conditions.
3. Providers shall be licensed under the applicable state
practice act or comparable licensing criteria by the Virginia Department of
Education, and shall meet applicable qualifications under 42 CFR Part 440.
Identification of defects, illnesses or conditions, and services
necessary to correct or ameliorate them shall be performed by practitioners
qualified to make those determinations within their licensed scope of practice,
either as a member of the IEP team or by a qualified practitioner outside the
IEP team.
a. Providers shall be employed by the school division or under
contract to the school division.
b. Supervision of services by providers recognized in
subdivision 4 of this subsection shall occur as allowed under federal
regulations and consistent with Virginia law, regulations, and DMAS provider
manuals.
c. The services described in subdivision 4 of this subsection
shall be delivered by school providers, but may also be available in the
community from other providers.
d. Services in this subsection are subject to utilization
control as provided under 42 CFR Parts 455 and 456.
e. The IEP shall determine whether or not the services
described in subdivision 4 of this subsection are medically necessary and that
the treatment prescribed is in accordance with standards of medical practice.
Medical necessity is defined as services ordered by IEP providers. The IEP
providers are qualified Medicaid providers to make the medical necessity
determination in accordance with their scope of practice. The services must be
described as to the amount, duration and scope.
4. Covered services include:
a. Physical therapy, and occupational therapy
and services for individuals with speech, hearing, and language disorders,
performed by, or under the direction of, providers who meet the qualifications
set forth at 42 CFR 440.110. This coverage includes audiology services.
b. Skilled nursing services are covered under 42 CFR
440.60. These services are to be rendered in accordance to the licensing
standards and criteria of the Virginia Board of Nursing. Nursing services are
to be provided by licensed registered nurses or licensed practical nurses but
may be delegated by licensed registered nurses in accordance with the
regulations of the Virginia Board of Nursing, especially the section on
delegation of nursing tasks and procedures. The licensed practical nurse is
under the supervision of a registered nurse.
(1) The coverage of skilled nursing services shall be of a
level of complexity and sophistication (based on assessment, planning,
implementation, and evaluation) that is consistent with skilled nursing
services when performed by a licensed registered nurse or a licensed practical
nurse. These skilled nursing services shall include dressing changes,
maintaining patent airways, medication administration/monitoring administration
or monitoring, and urinary catheterizations.
(2) Skilled nursing services shall be directly and
specifically related to an active, written plan of care developed by a
registered nurse that is based on a written order from a physician, physician
assistant, or nurse practitioner for skilled nursing services. This
order shall be recertified on an annual basis.
c. Psychiatric and psychological services performed by
licensed practitioners within the scope of practice are defined under state law
or regulations and covered as physicians' services under 42 CFR 440.50 or
medical or other remedial care under 42 CFR 440.60. These outpatient services
include individual medical psychotherapy, group medical psychotherapy coverage,
and family medical psychotherapy. Psychological and neuropsychological testing
are allowed when done for purposes other than educational diagnosis, school
admission, evaluation of an individual with intellectual or developmental
disability prior to admission to a nursing facility, or any placement issue.
These services are covered in the nonschool settings also. School providers who
may render these services when licensed by the state include psychiatrists,
licensed clinical psychologists, school psychologists, licensed clinical social
workers, professional counselors, psychiatric clinical nurse specialists,
marriage and family therapists, and school social workers.
d. Personal care services are covered under 42 CFR
440.167 and performed by persons qualified under this subsection. The personal
care assistant is supervised by a DMAS recognized school-based health
professional who is acting within the scope of licensure. This practitioner
professional develops a written plan for meeting the needs of the child
individual, which is implemented by the assistant. The assistant must
have qualifications comparable to those for other personal care aides
recognized by the Virginia Department of Medical Assistance Services. The
assistant performs services such as assisting with toileting, ambulation, and
eating. The assistant may serve as an aide on a specially adapted school
vehicle that enables transportation to or from the school or school contracted
provider on days when the student is receiving a Medicaid-covered service under
the IEP. Children Individuals requiring an aide during
transportation on a specially adapted vehicle shall have this stated in the
IEP.
e. Medical evaluation services are covered as physicians'
services under 42 CFR 440.50 or as medical or other remedial care under 42 CFR
440.60. Persons performing these services shall be licensed physicians,
physician assistants, or nurse practitioners. These practitioners shall
identify the nature or extent of a child's an individual's
medical or other health related condition.
f. Transportation is covered as allowed under 42 CFR
431.53 and described at State Plan Attachment 3.1-D (12VAC30-50-530).
Transportation shall be rendered only by school division personnel or
contractors. Transportation is covered for a child an individual
who requires transportation on a specially adapted school vehicle that enables
transportation to or from the school or school contracted provider on days when
the student individual is receiving a Medicaid-covered service
under the IEP. Transportation shall be listed in the child's individual's
IEP. Children Individuals requiring an aide during transportation
on a specially adapted vehicle shall have this stated in the IEP.
g. Assessments are covered as necessary to assess or reassess
the need for medical services in a child's an individual's IEP
and shall be performed by any of the above licensed practitioners within the
scope of practice. Assessments and reassessments not tied to medical needs of
the child individual shall not be covered.
5. DMAS will ensure through quality management review that
duplication of services will be monitored. School divisions have a
responsibility to ensure that if a child an individual is
receiving additional therapy outside of the school, that there will be
coordination of services to avoid duplication of service.
D. K. Family planning services and supplies for
individuals of child-bearing age.
1. Service must be ordered or prescribed and directed or
performed within the scope of the license of a practitioner of the healing
arts.
2. Family planning services shall be defined as those services
that delay or prevent pregnancy. Coverage of such services shall not include
services to treat infertility or services to promote fertility. Family planning
services shall not cover payment for abortion services and no funds shall be
used to perform, assist, encourage, or make direct referrals for abortions.
3. Family planning services as established by § 1905(a)(4)(C)
of the Social Security Act include annual family planning exams; cervical
cancer screening for women; sexually transmitted infection (STI) testing; lab
services for family planning and STI testing; family planning education,
counseling, and preconception health; sterilization procedures; nonemergency
transportation to a family planning service; and U.S. Food and Drug
Administration approved prescription and over-the-counter contraceptives,
subject to limits in 12VAC30-50-210.
12VAC30-50-226. Community mental health services.
A. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context clearly
indicates otherwise:
"Activities of daily living" or "ADLs"
means personal care tasks such as bathing, dressing, toileting, transferring,
and eating or feeding. An individual's degree of independence in performing
these activities is a part of determining appropriate level of care and service
needs.
"Affiliated" means any entity or property in which
a provider or facility has a direct or indirect ownership interest of 5.0% or
more, or any management, partnership, or control of an entity.
"Behavioral health service" means the same as
defined in 12VAC30-130-5160.
"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS. DMAS' designated BHSA shall be
authorized to constitute, oversee, enroll, and train a provider network;
perform service authorization; adjudicate claims; process claims; gather and
maintain data; reimburse providers; perform quality assessment and improvement;
conduct member outreach and education; resolve member and provider issues; and
perform utilization management including care coordination for the provision of
Medicaid-covered behavioral health services. Such authority shall include
entering into or terminating contracts with providers in accordance with DMAS
authority pursuant to 42 CFR Part 1002 and § 32.1-325 D and E of the Code
of Virginia. DMAS shall retain authority for and oversight of the BHSA entity
or entities.
"Certified prescreener" means an employee of either
the local community services board/behavioral board or behavioral
health authority or its designee who is skilled in the assessment and treatment
of mental illness and who has completed a certification program approved by
DBHDS.
"Clinical experience" means, for the purpose of
rendering (i) mental health day treatment/partial hospitalization, (ii)
intensive community treatment, (iii) psychosocial rehabilitation, (iv) mental
health skill building, (v) crisis stabilization, or (vi) crisis intervention
services, practical experience in providing direct services to individuals with
diagnoses of mental illness or intellectual disability or the provision of
direct geriatric services or special education services. Experience shall
include supervised internships, supervised practicums, or supervised field
experience. Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be
established by DBHDS in the document titled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.
"Code" means the Code of Virginia.
"DBHDS" means the Department of Behavioral Health
and Developmental Services consistent with Chapter 3 (§ 37.2-300 et seq.)
of Title 37.2 of the Code of Virginia.
"Direct supervisor" means the person who provides
direct supervision to the peer recovery specialist. The direct supervisor (i)
shall have two consecutive years of documented practical experience rendering
peer support services or family support services, have certification training
as a PRS under a certifying body approved by DBHDS, and have documented
completion of the DBHDS PRS supervisor training; (ii) shall be a qualified
mental health professional (QMHP-A, QMHP-C, or QMHP-E) as defined in
12VAC35-105-20 with at least two consecutive years of documented experience as
a QMHP, and who has documented completion of the DBHDS PRS supervisor training;
or (iii) shall be an LMHP who has documented completion of the DBHDS PRS
supervisor training who is acting within his scope of practice under state law.
An LMHP providing services before April 1, 2018, shall have until April 1,
2018, to complete the DBHDS PRS supervisor training.
"DMAS" means the Department of Medical Assistance
Services and its contractor or contractors consistent with Chapter 10 (§
32.1-323 et seq.) of Title 32.1 of the Code of Virginia.
"DSM-5" means the Diagnostic and Statistical Manual
of Mental Disorders, Fifth Edition, copyright 2013, American Psychiatric
Association.
"Human services field" means the same as the term
is defined by DBHDS the Department of Health Professions in the
guidance document entitled Human Services and Related Fields Approved
Degrees/Experience, issued March 12, 2013, revised May 3, 2013. Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted
November 3, 2017, revised February 9, 2018.
"Individual" means the patient, client, or
recipient of services described in this section.
"Individual service plan" or "ISP" means
a comprehensive and regularly updated treatment plan specific to the
individual's unique treatment needs as identified in the service-specific
provider intake. The ISP contains, but is not limited to, the individual's
treatment or training needs, the individual's goals and measurable objectives
to meet the identified needs, services to be provided with the recommended
frequency to accomplish the measurable goals and objectives, the estimated
timetable for achieving the goals and objectives, and an individualized
discharge plan that describes transition to other appropriate services. The
individual shall be included in the development of the ISP and the ISP shall be
signed by the individual. If the individual is a minor child, the ISP
shall also be signed by the individual's parent/legal parent or legal
guardian. Documentation shall be provided if the individual, who is a minor
child or an adult who lacks legal capacity, is unable or unwilling to sign the
ISP.
"Individualized training" means instruction and
practice in functional skills and appropriate behavior related to the
individual's health and safety, instrumental activities of daily living skills,
and use of community resources; assistance with medical management; and
monitoring health, nutrition, and physical condition. The training shall be
rehabilitative and based on a variety of incremental (or cumulative) approaches
or tools to organize and guide the individual's life planning and shall reflect
what is important to the individual in addition to all other factors that
affect his the individual's functioning, including effects of the
disability and issues of health and safety.
"Licensed mental health professional" or
"LMHP" means the same as defined in 12VAC35-105-20.
"LMHP-resident" or "LMHP-R" means the
same as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of
Counseling. For purposes of Medicaid reimbursement to their supervisors for
services provided by such residents, they shall use the title
"Resident" in connection with the applicable profession after their
signatures to indicate such status.
"LMHP-resident in psychology" or
"LMHP-RP" means the same as an individual in a residency, as that
term is defined in 18VAC125-20-10, program for clinical psychologists. An
LMHP-resident in psychology shall be in continuous compliance with the
regulatory requirements for supervised experience as found in 18VAC125-20-65
and shall not perform the functions of the LMHP-RP or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of
Psychology. For purposes of Medicaid reimbursement by supervisors for services
provided by such residents, they shall use the title "Resident in
Psychology" after their signatures to indicate such status.
"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" is defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be considered
a "supervisee" until the supervision for specific clinical duties at
a specific site is preapproved in writing by the Virginia Board of Social Work.
For purposes of Medicaid reimbursement to their supervisors for services
provided by supervisees, these persons shall use the title "Supervisee in
Social Work" after their signatures to indicate such status.
"Peer recovery specialist" or "PRS" means
the same as defined in 12VAC30-130-5160.
"Person centered" means the same as defined in
12VAC30-130-5160.
"Qualified mental health professional-adult" or
"QMHP-A" means the same as defined in 12VAC35-105-20.
"Qualified mental health professional-child" or
"QMHP-C" means the same as defined in 12VAC35-105-20.
"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in
12VAC35-105-20, including a "QMHP-trainee" as defined by the
Department of Health Professions.
"Qualified paraprofessional in mental health" or
"QPPMH" means the same as defined in 12VAC35-105-20.
"Recovery-oriented services" means the same as
defined in 12VAC30-130-5160.
"Recovery, resiliency, and wellness plan" means the
same as defined in 12VAC30-130-5160.
"Register" or "registration" means
notifying DMAS or its contractor that an individual will be receiving services
that do not require service authorization.
"Resiliency" means the same as defined in
12VAC30-130-5160.
"Review of ISP" means that the provider evaluates
and updates the individual's progress toward meeting the individualized service
plan objectives and documents the outcome of this review. For DMAS to determine
that these reviews are satisfactory and complete, the reviews shall (i) update
the goals, objectives, and strategies of the ISP to reflect any change in the
individual's progress and treatment needs as well as any newly identified
problems; (ii) be conducted in a manner that enables the individual to
participate in the process; and (iii) be documented in the individual's medical
record no later than 15 calendar days from the date of the review.
"Self-advocacy" means the same as defined in
12VAC30-130-5160.
"Service authorization" means the process to
approve specific services for an enrolled Medicaid, FAMIS Plus, or FAMIS
individual by a DMAS service authorization contractor prior to service delivery
and reimbursement in order to validate that the service requested is medically
necessary and meets DMAS and DMAS contractor criteria for reimbursement.
Service authorization does not guarantee payment for the service.
"Service-specific provider intake" means the same
as defined in 12VAC30-50-130 and also includes individuals who are older than
21 years of age.
"Strength-based" means the same as defined in
12VAC30-130-5160.
"Supervision" means the same as defined in
12VAC30-130-5160.
B. Mental health services. The following services, with their
definitions, shall be covered: day treatment/partial hospitalization,
psychosocial rehabilitation, crisis services, intensive community treatment
(ICT), and mental health skill building. Staff travel time shall not be
included in billable time for reimbursement. These services, in order to be
covered, shall meet medical necessity criteria based upon diagnoses made by
LMHPs who are practicing within the scope of their licenses and are reflected
in provider records and on providers' claims for services by recognized
diagnosis codes that support and are consistent with the requested professional
services. These services are intended to be delivered in a person-centered
person centered manner. The individuals who are receiving these services
shall be included in all service planning activities. All services which do not
require service authorization require registration. This registration shall
transmit service-specific information to DMAS or its contractor in accordance
with service authorization requirements.
1. Day treatment/partial hospitalization services shall be
provided in sessions of two or more consecutive hours per day, which may be
scheduled multiple times per week, to groups of individuals in a nonresidential
setting. These services, limited annually to 780 units, include the major
diagnostic, medical, psychiatric, psychosocial, and psychoeducational treatment
modalities designed for individuals who require coordinated, intensive,
comprehensive, and multidisciplinary treatment but who do not require inpatient
treatment. One unit of service shall be defined as a minimum of two but less
than four hours on a given day. Two units of service shall be defined as at
least four but less than seven hours in a given day. Three units of service
shall be defined as seven or more hours in a given day. Authorization is
required for Medicaid reimbursement.
a. Day treatment/partial hospitalization services shall be
time limited interventions that are more intensive than outpatient services and
are required to stabilize an individual's psychiatric condition. The services
are delivered when the individual is at risk of psychiatric hospitalization or
is transitioning from a psychiatric hospitalization to the community. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual is at risk of
psychiatric hospitalization or is transitioning from a psychiatric
hospitalization to the community.
b. Individuals qualifying for this service must demonstrate a
clinical necessity for the service arising from mental, behavioral, or
emotional illness that results in significant functional impairments in major
life activities. Individuals must meet at least two of the following criteria
on a continuing or intermittent basis:
(1) Experience difficulty in establishing or maintaining
normal interpersonal relationships to such a degree that they are at risk of
hospitalization or homelessness or isolation from social supports;
(2) Experience difficulty in activities of daily living such
as maintaining personal hygiene, preparing food and maintaining adequate
nutrition, or managing finances to such a degree that health or safety is
jeopardized;
(3) Exhibit such inappropriate behavior that the individual
requires repeated interventions or monitoring by the mental health, social
services, or judicial system that have been documented; or
(4) Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.
c. Individuals shall be discharged from this service when they
are no longer in an acute psychiatric state and other less intensive services
may achieve psychiatric stabilization.
d. Admission and services for time periods longer than 90
calendar days must be authorized based upon a face-to-face evaluation by a
physician, psychiatrist, licensed clinical psychologist, licensed professional
counselor, licensed clinical social worker, or psychiatric clinical nurse
specialist.
e. These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-A, QMHP-C, QMHP-E, or a QPPMH.
2. Psychosocial rehabilitation shall be provided at least two
or more hours per day to groups of individuals in a nonresidential setting.
These services, limited annually to 936 units, include assessment, education to
teach the patient about the diagnosed mental illness and appropriate
medications to avoid complication and relapse, and opportunities to learn and
use independent living skills and to enhance social and interpersonal skills
within a supportive and normalizing program structure and environment. One unit
of service is defined as a minimum of two but less than four hours on a given
day. Two units are defined as at least four but less than seven hours in a
given day. Three units of service shall be defined as seven or more hours in a
given day. Authorization is required for Medicaid reimbursement. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual meets criteria for
this service.
a. Individuals qualifying for this service must demonstrate a
clinical necessity for the service arising from mental, behavioral, or
emotional illness that results in significant functional impairments in major
life activities. Services are provided to individuals: (i) who without
these services would be unable to remain in the community or (ii) who meet at
least two of the following criteria on a continuing or intermittent basis:
(1) Experience difficulty in establishing or maintaining
normal interpersonal relationships to such a degree that they are at risk of
psychiatric hospitalization, homelessness, or isolation from social supports;
(2) Experience difficulty in activities of daily living such
as maintaining personal hygiene, preparing food and maintaining adequate
nutrition, or managing finances to such a degree that health or safety is
jeopardized;
(3) Exhibit such inappropriate behavior that repeated
interventions documented by the mental health, social services, or judicial
system are or have been necessary; or
(4) Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or significantly inappropriate social
behavior.
b. These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-A, QMHP-C, QMHP-E, or a QPPMH.
3. Crisis intervention shall provide immediate mental health
care, available 24 hours a day, seven days per week, to assist individuals who
are experiencing acute psychiatric dysfunction requiring immediate clinical
attention. This service's objectives shall be to prevent exacerbation of a
condition, to prevent injury to the client or others, and to provide treatment
in the context of the least restrictive setting. Crisis intervention activities
shall include assessing the crisis situation, providing short-term counseling
designed to stabilize the individual, providing access to further immediate
assessment and follow-up, and linking the individual and family with ongoing
care to prevent future crises. Crisis intervention services may include office
visits, home visits, preadmission screenings, telephone contacts, and other
client-related activities for the prevention of institutionalization. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual meets criteria for
this service. The provision of this service to an individual shall be
registered with either DMAS, DMAS contractors, or the BHSA within one
business day or the completion of the service-specific provider intake to avoid
duplication of services and to ensure informed care coordination.
a. Individuals qualifying for this service must demonstrate a
clinical necessity for the service arising from an acute crisis of a
psychiatric nature that puts the individual at risk of psychiatric
hospitalization. Individuals must meet at least two of the following criteria
at the time of admission to the service:
(1) Experience difficulty in establishing or maintaining
normal interpersonal relationships to such a degree that they are at risk of
psychiatric hospitalization, homelessness, or isolation from social supports;
(2) Experience difficulty in activities of daily living such
as maintaining personal hygiene, preparing food and maintaining adequate
nutrition, or managing finances to such a degree that health or safety is
jeopardized;
(3) Exhibit such inappropriate behavior that immediate
interventions documented by mental health, social services, or the judicial
system are or have been necessary; or
(4) Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or significantly inappropriate social
behavior.
b. The annual limit for crisis intervention is 720 units per
year. A unit shall equal 15 minutes.
c. These services may only be rendered by an LMHP, an
LMHP-supervisee, LMHP-resident, LMHP-RP, or a certified prescreener.
4. Intensive community treatment (ICT), initially covered for
a maximum of 26 weeks based on an initial service-specific provider intake and
may be reauthorized for up to an additional 26 weeks annually based on written
intake and certification of need by a licensed mental health provider (LMHP),
shall be defined by 12VAC35-105-20 or LMHP-S, LMHP-R, and LMHP-RP and shall
include medical psychotherapy, psychiatric assessment, medication management,
and care coordination activities offered to outpatients outside the clinic,
hospital, or office setting for individuals who are best served in the
community. Authorization is required for Medicaid reimbursement.
a. To qualify for ICT, the individual must meet at least one
of the following criteria:
(1) The individual must be at high risk for psychiatric
hospitalization or becoming or remaining homeless due to mental illness or
require intervention by the mental health or criminal justice system due to
inappropriate social behavior.
(2) The individual has a history (three months or more) of a
need for intensive mental health treatment or treatment for co-occurring
serious mental illness and substance use disorder and demonstrates a resistance
to seek out and utilize appropriate treatment options.
b. A written, service-specific provider intake, as defined at
12VAC30-50-130, that documents the individual's eligibility and the need for
this service must be completed prior to the initiation of services. This intake
must be maintained in the individual's records.
c. An individual service plan shall be initiated at the time
of admission and must be fully developed, as defined in this section, within 30
days of the initiation of services.
d. The annual unit limit shall be 130 units with a unit
equaling one hour.
e. These services may only be rendered by a team that meets
the requirements of 12VAC35-105-1370.
5. Crisis stabilization services for nonhospitalized
individuals shall provide direct mental health care to individuals experiencing
an acute psychiatric crisis which may jeopardize their current community living
situation. Services may be provided for up to a 15-day period per crisis
episode following a face-to-face service-specific provider intake by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP. Only one unit of service shall be
reimbursed for this intake. The provision of this service to an individual
shall be registered with either DMAS, DMAS contractors, or the BHSA
within one business day of the completion of the service-specific provider
intake to avoid duplication of services and to ensure informed care
coordination.
a. The goals of crisis stabilization programs shall be to
avert hospitalization or rehospitalization, provide normative environments with
a high assurance of safety and security for crisis intervention, stabilize
individuals in psychiatric crisis, and mobilize the resources of the community
support system and family members and others for on-going maintenance and
rehabilitation. The services must be documented in the individual's records as
having been provided consistent with the ISP in order to receive Medicaid
reimbursement.
b. The crisis stabilization program shall provide to
individuals, as appropriate, psychiatric assessment including medication
evaluation, treatment planning, symptom and behavior management, and individual
and group counseling.
c. This service may be provided in any of the following
settings, but shall not be limited to: (i) the home of an individual who lives
with family or other primary caregiver; (ii) the home of an individual who
lives independently; or (iii) community-based programs licensed by DBHDS to
provide residential services but which are not institutions for mental disease
(IMDs).
d. This service shall not be reimbursed for (i) individuals
with medical conditions that require hospital care; (ii) individuals with a
primary diagnosis of substance abuse; or (iii) individuals with psychiatric
conditions that cannot be managed in the community (i.e., individuals who are
of imminent danger to themselves or others).
e. The maximum limit on this service is 60 days annually.
f. Services must be documented through daily progress notes
and a daily log of times spent in the delivery of services. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual meets criteria for
this service. Individuals qualifying for this service must demonstrate a
clinical necessity for the service arising from an acute crisis of a
psychiatric nature that puts the individual at risk of psychiatric
hospitalization. Individuals must meet at least two of the following criteria
at the time of admission to the service:
(1) Experience difficulty in establishing and maintaining
normal interpersonal relationships to such a degree that the individual is at
risk of psychiatric hospitalization, homelessness, or isolation from social
supports;
(2) Experience difficulty in activities of daily living such
as maintaining personal hygiene, preparing food and maintaining adequate
nutrition, or managing finances to such a degree that health or safety is
jeopardized;
(3) Exhibit such inappropriate behavior that immediate
interventions documented by the mental health, social services, or judicial
system are or have been necessary; or
(4) Exhibit difficulty in cognitive ability such that the
individual is unable to recognize personal danger or significantly
inappropriate social behavior.
g. These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-A, QMHP-C, QMHP-E or a certified
prescreener.
6. Mental health skill-building services (MHSS) shall be
defined as goal-directed training to enable individuals to achieve and maintain
community stability and independence in the most appropriate, least restrictive
environment. Authorization is required for Medicaid reimbursement. Services
that are rendered before the date of service authorization shall not be
reimbursed. These services may be authorized up to six consecutive months as
long as the individual meets the coverage criteria for this service. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual meets criteria for
this service. These services shall provide goal-directed training in the
following areas in order to be reimbursed by Medicaid or the BHSA DMAS
contractor: (i) functional skills and appropriate behavior related to the
individual's health and safety, instrumental activities of daily living, and use
of community resources; (ii) assistance with medication management; and (iii)
monitoring of health, nutrition, and physical condition with goals towards
self-monitoring and self-regulation of all of these activities. Providers shall
be reimbursed only for training activities defined in the ISP and only where
services meet the service definition, eligibility, and service provision
criteria and this section. A review of MHSS services by an LMHP, LMHP-R,
LMHP-RP, or LMHP-S shall be repeated for all individuals who have received at
least six months of MHSS to determine the continued need for this service.
a. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from a condition due to mental,
behavioral, or emotional illness that results in significant functional
impairments in major life activities. Services are provided to individuals who
require individualized goal-directed training in order to achieve or maintain
stability and independence in the community.
b. Individuals ages 21 years of age and older
shall meet all of the following criteria in order to be eligible to receive
mental health skill-building services:
(1) The individual shall have one of the following as a
primary mental health diagnosis:
(a) Schizophrenia or other psychotic disorder as set out in
the DSM-5;
(b) Major depressive disorder;
(c) Recurrent Bipolar I or Bipolar II; or
(d) Any other serious mental health disorder that a physician
has documented specific to the identified individual within the past year and
that includes all of the following: (i) is a serious mental illness; (ii)
results in severe and recurrent disability; (iii) produces functional
limitations in the individual's major life activities that are documented in
the individual's medical record; and (iv) requires individualized training for
the individual in order to achieve or maintain independent living in the
community.
(2) The individual shall require individualized goal-directed
training in order to acquire or maintain self-regulation of basic living
skills, such as symptom management; adherence to psychiatric and physical
health medication treatment plans; appropriate use of social skills and
personal support systems; skills to manage personal hygiene, food preparation,
and the maintenance of personal adequate nutrition; money management; and use
of community resources.
(3) The individual shall have a prior history of any of the
following: (i) psychiatric hospitalization; (ii) either residential or
nonresidential crisis stabilization; (iii) intensive community treatment (ICT)
or program of assertive community treatment (PACT) services; (iv) placement in
a psychiatric residential treatment facility (RTC-Level C) (PRTF)
as a result of decompensation related to the individual's serious mental
illness; or (v) a temporary detention order (TDO) evaluation, pursuant to § 37.2-809
B of the Code of Virginia. This criterion shall be met in order to be initially
admitted to services and not for subsequent authorizations of service. Discharge
summaries from prior providers that clearly indicate (i) the type of treatment
provided, (ii) the dates of the treatment previously provided, and (iii) the
name of the treatment provider shall be sufficient to meet this requirement.
Family member statements shall not suffice to meet this requirement.
(4) The individual shall have had a prescription for
antipsychotic, mood stabilizing, or antidepressant medications within the 12
months prior to the service-specific provider intake date. If a physician or
other practitioner who is authorized by his license to prescribe medications
indicates that antipsychotic, mood stabilizing, or antidepressant medications
are medically contraindicated for the individual, the provider shall obtain
medical records signed by the physician or other licensed prescriber detailing
the contraindication. This documentation shall be maintained in the
individual's mental health skill-building services record, and the provider
shall document and describe how the individual will be able to actively
participate in and benefit from services without the assistance of medication.
This criterion shall be met upon admission to services and shall not be
required for subsequent authorizations of service. Discharge summaries from
prior providers that clearly indicate (i) the type of treatment provided, (ii)
the dates of the treatment previously provided, and (iii) the name of the
treatment provider shall be sufficient to meet this requirement. Family member
statements shall not suffice to meet this requirement.
c. Individuals aged 18 to 21 years of age shall
meet all of the following criteria in order to be eligible to receive mental
health skill-building services:
(1) The individual shall not be living in a supervised setting
as described in § 63.2-905.1 of the Code of Virginia. If the individual is
transitioning into an independent living situation, MHSS shall only be
authorized for up to six months prior to the date of transition.
(2) The individual shall have at least one of the following as
a primary mental health diagnosis.:
(a) Schizophrenia or other psychotic disorder as set out in
the DSM-5;
(b) Major depressive disorder;
(c) Recurrent Bipolar I or Bipolar II; or
(d) Any other serious mental health disorder that a physician
has documented specific to the identified individual within the past year and
that includes all of the following: (i) is a serious mental illness or serious
emotional disturbance; (ii) results in severe and recurrent disability; (iii)
produces functional limitations in the individual's major life activities that
are documented in the individual's medical record; and (iv) requires
individualized training for the individual in order to achieve or maintain
independent living in the community.
(3) The individual shall require individualized goal-directed
training in order to acquire or maintain self-regulation of basic living skills
such as symptom management; adherence to psychiatric and physical health
medication treatment plans; appropriate use of social skills and personal
support systems; skills to manage personal hygiene, food preparation, and the
maintenance of personal adequate nutrition; money management; and use of
community resources.
(4) The individual shall have a prior history of any of the
following: (i) psychiatric hospitalization; (ii) either residential or
nonresidential crisis stabilization; (iii) intensive community treatment (ICT)
or program of assertive community treatment (PACT) services; (iv) placement in
a psychiatric residential treatment facility (RTC-Level C) as a result
of decompensation related to the individual's serious mental illness; or (v)
temporary detention order (TDO) evaluation pursuant to § 37.2-809 B of the Code
of Virginia. This criterion shall be met in order to be initially admitted to
services and not for subsequent authorizations of service. Discharge summaries
from prior providers that clearly indicate (i) the type of treatment provided,
(ii) the dates of the treatment previously provided, and (iii) the name of the
treatment provider shall be sufficient to meet this requirement. Family member
statements shall not suffice to meet this requirement.
(5) The individual shall have had a prescription for
antipsychotic, mood stabilizing, or antidepressant medications, within the 12
months prior to the assessment date. If a physician or other practitioner who
is authorized by his license to prescribe medications indicates that
antipsychotic, mood stabilizing, or antidepressant medications are medically
contraindicated for the individual, the provider shall obtain medical records
signed by the physician or other licensed prescriber detailing the
contraindication. This documentation of medication management shall be
maintained in the individual's mental health skill-building services record. For
individuals not prescribed antipsychotic, mood stabilizing, or antidepressant
medications, the provider shall have documentation from the medication
management physician describing how the individual will be able to actively
participate in and benefit from services without the assistance of medication.
This criterion shall be met in order to be initially admitted to services and
not for subsequent authorizations of service. Discharge summaries from prior
providers that clearly indicate (i) the type of treatment provided, (ii) the
dates of the treatment previously provided, and (iii) the name of the treatment
provider shall be sufficient to meet this requirement. Family member statements
shall not suffice to meet this requirement.
(6) An independent clinical assessment, established in
12VAC30-130-3020, shall be completed for the individual.
d. Service-specific provider intakes shall be required at the
onset of services and individual service plans (ISPs) shall be required during
the entire duration of services. Services based upon incomplete, missing,
or outdated service-specific provider intakes or ISPs shall be denied
reimbursement. Requirements for service-specific provider intakes and ISPs are
set out in 12VAC30-50-130.
e. The yearly limit for mental health skill-building services
is 520 units. Only direct face-to-face contacts and services to the individual
shall be reimbursable. One unit is 1 to 2.99 hours per day, and two
units is 3 to 4.99 hours per day.
f. These services may only be rendered by an LMHP, LMHP-R,
LMHP-RP, LMHP-S, QMHP-A, QMHP-C, QMHP-E, or QPPMH.
g. The provider shall clearly document details of the services
provided during the entire amount of time billed.
h. The ISP shall not include activities that contradict or
duplicate those in the treatment plan established by the therapeutic
group home or assisted living facility. The provider shall coordinate mental
health skill-building services with the treatment plan established by the group
home or assisted living facility and shall document all coordination activities
in the medical record.
i. Limits and exclusions.
(1) Group Therapeutic group home (Level A or
B) and assisted living facility providers shall not serve as the mental
health skill-building services provider for individuals residing in the
provider's respective facility. Individuals residing in facilities may,
however, receive MHSS from another MHSS agency not affiliated with the owner of
the facility in which they reside.
(2) Mental health skill-building services shall not be reimbursed
for individuals who are receiving in-home residential services or congregate
residential services through the Intellectual Disability Waiver or Individual
and Family Developmental Disabilities Support Waiver.
(3) Mental health skill-building services shall not be
reimbursed for individuals who are also receiving services under the Department
of Social Services independent living program (22VAC40-151), independent living
services (22VAC40-131 and 22VAC40-151), or independent living arrangement (22VAC40-131)
or any Comprehensive Services Act-funded independent living skills programs.
(4) Mental health skill-building services shall not be
available to individuals who are receiving treatment foster care
(12VAC30-130-900 et seq.).
(5) Mental health skill-building services shall not be
available to individuals who reside in intermediate care facilities for
individuals with intellectual disabilities or hospitals.
(6) Mental health skill-building services shall not be
available to individuals who reside in nursing facilities, except for up to 60
days prior to discharge. If the individual has not been discharged from the
nursing facility during the 60-day period of services, mental health
skill-building services shall be terminated and no further service authorizations
shall be available to the individual unless a provider can demonstrate and
document that mental health skill-building services are necessary. Such
documentation shall include facts demonstrating a change in the individual's
circumstances and a new plan for discharge requiring up to 60 days of mental
health skill-building services.
(7) Mental health skill-building services shall not be
available for residents of psychiatric residential treatment centers (Level
C facilities) except for the intake code H0032 (modifier U8) in the seven
days immediately prior to discharge.
(8) Mental health skill-building services shall not be
reimbursed if personal care services or attendant care services are being
received simultaneously, unless justification is provided why this is necessary
in the individual's mental health skill-building services record. Medical
record documentation shall fully substantiate the need for services when
personal care or attendant care services are being provided. This applies to
individuals who are receiving additional services through the Intellectual
Disability Waiver (12VAC30-120-1000 et seq.), Individual and Family
Developmental Disabilities Support Waiver (12VAC30-120-700 et seq.), the
Elderly or Disabled with Consumer Direction Waiver (12VAC30-120-900 et seq.),
and EPSDT services (12VAC30-50-130).
(9) Mental health skill-building services shall not be
duplicative of other services. Providers shall be required to ensure that if an
individual is receiving additional therapeutic services that there will be
coordination of services by either the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A,
QMHP-C, QMHP-E, or QPPMH to avoid duplication of services.
(10) Individuals who have organic disorders, such as delirium,
dementia, or other cognitive disorders not elsewhere classified, will be
prohibited from receiving mental health skill-building services unless their
physicians issue signed and dated statements indicating that the individuals
can benefit from this service.
(11) Individuals who are not diagnosed with a serious mental
health disorder but who have personality disorders or other mental health
disorders, or both, that may lead to chronic disability shall not be excluded
from the mental health skill-building services eligibility criteria provided
that the individual has a primary mental health diagnosis from the list
included in subdivision B 6 b (1) or B 6 c (2) of this section and that the
provider can document and describe how the individual is expected to actively
participate in and benefit from mental health skill-building services.
7. Mental health peer support services.
a. Mental health peer support services are peer recovery
support services and are nonclinical, peer-to-peer activities that engage,
educate, and support an individual's self-help efforts to improve health
recovery, resiliency, and wellness. Mental health peer support services for
adults is a person centered, strength-based, and recovery-oriented
rehabilitative service for individuals 21 years of age or older provided
by a peer recovery specialist successful in the recovery process with lived
experience with a mental health disorder, who is trained to offer support and
assistance in helping others in the recovery to reduce the disabling effects of
a mental health disorder that is the focus of support. Services assist the
individual with developing and maintaining a path to recovery, resiliency, and
wellness. Specific peer support service activities shall emphasize the
acquisition, development, and enhancement of recovery, resiliency, and
wellness. Services are designed to promote empowerment, self-determination,
understanding, and coping skills through mentoring and service coordination
supports, as well as to assist individuals in achieving positive coping
mechanisms for the stressors and barriers encountered when recovering from
their illnesses or disorders.
b. Under the clinical oversight of the LMHP making the
recommendation for mental health support services, the peer recovery specialist
in consultation with his direct supervisor shall develop a recovery,
resiliency, and wellness plan based on the LMHP's recommendation for service,
the individual's perceived recovery needs, and any clinical assessments or
service specific provider intakes as defined in this section within 30 calendar
days of the initiation of service. Development of the recovery, resiliency, and
wellness plan shall include collaboration with the individual. Individualized
goals and strategies shall be focused on the individual's identified needs for
self-advocacy and recovery. The recovery, resiliency, and wellness plan shall
also include documentation of how many days per week and how many hours per
week are required to carry out the services in order to meet the goals of the
plan. The recovery, resiliency, and wellness plan shall be completed, signed,
and dated by the LMHP, the PRS, the direct supervisor, and the individual
within 30 calendar days of the initiation of service. The PRS shall act as an
advocate for the individual, encouraging the individual to take a proactive
role in developing and updating goals and objectives in the individualized
recovery planning.
c. Documentation of required activities shall be required as
set forth in 12VAC30-130-5200 A, C, and E through J.
d. Limitations and exclusions to service delivery shall be the
same as set forth in 12VAC30-130-5210.
e. Individuals 21 years of age or older qualifying for
mental health peer support services shall meet the following requirements:
(1) Require recovery-oriented assistance and support services
for the acquisition of skills needed to engage in and maintain recovery; for
the development of self-advocacy skills to achieve a decreasing dependency on
formalized treatment systems; and to increase responsibilities, wellness
potential, and shared accountability for the individual's own recovery.
(2) Have a documented mental health disorder diagnosis.
(3) Demonstrate moderate to severe functional impairment
because of a diagnosis that interferes with or limits performance in at least
one of the following domains: educational (e.g., obtaining a high school or
college degree); social (e.g., developing a social support system); vocational
(e.g., obtaining part-time or full-time employment); self-maintenance (e.g.,
managing symptoms, understanding his illness, living more independently).
f. To qualify for continued mental health peer support
services, medical necessity criteria shall continue to be met, and progress
notes shall document the status of progress relative to the goals identified in
the recovery, resiliency, and wellness plan.
g. Discharge criteria from mental health peer support services
is the same as set forth in 12VAC30-130-5180 E.
h. Mental health peer support services shall be rendered
on an individual basis or in a group.
i. Prior to service initiation, a documented recommendation
for mental health peer support services shall be made by a licensed mental
health professional acting within the scope of practice under state law The
recommendation shall verify that the individual meets the medical necessity
criteria set forth in subdivision 7 e of this subsection. The recommendation
shall be valid for no longer than 30 calendar days.
j. Effective July 1, 2017, a peer recovery specialist shall
have the qualifications, education, experience, and certification established
by DBHDS in order to be eligible to register with the Board of Counseling on or
after July 1, 2018. Upon the promulgation of regulations by the Board of
Counseling, registration of peer recovery specialists by the Board of Counseling
shall be required. The PRS shall perform mental health peer support services
under the oversight of the LMHP making the recommendation for services and
providing the clinical oversight of the recovery, resiliency, and wellness
plan. The PRS shall be employed by or have a contractual relationship with an
enrolled provider licensed for one of the following:
(1) Acute care general hospital licensed by the Department of
Health.
(2) Freestanding psychiatric hospital and inpatient
psychiatric unit licensed by the Department of Behavioral Health and
Developmental Services.
(3) Outpatient mental health clinic services licensed by the
Department of Behavioral Health and Developmental Services.
(4) Outpatient psychiatric services provider.
(5) Rural health clinics and federally qualified health
centers.
(6) Hospital emergency department services licensed by the
Department of Health.
(7) Community mental health and rehabilitative services
provider licensed by the Department of Behavioral Health and Developmental
Services as a provider of one of the following community mental health and
rehabilitative services defined in this section or 12VAC30-50-420 for which the
individual meets medical necessity criteria:
(a) Day treatment or partial hospitalization;
(b) Psychosocial rehabilitation;
(c) Crisis intervention;
(d) Intensive community treatment;
(e) Crisis stabilization;
(f) Mental health skill building; or
(g) Mental health case management.
k. Only the licensed and enrolled provider referenced in
subdivision 7 j of this subsection shall be eligible to bill mental health peer
support services. Payments shall not be permitted to providers that fail to
enter into an enrollment agreement with DMAS or its contractor.
Reimbursement shall be subject to retraction for any billed service that is
determined to not to be in compliance with DMAS requirements.
l. Supervision of the PRS shall be required as set forth in
the definition of "supervision" in 12VAC30-130-5160. Supervision of
the PRS shall also meet the following requirements: the supervisor shall be
under the clinical oversight of the LMHP making the recommendation for
services, and the peer recovery specialist in consultation with his direct
supervisor shall conduct and document a review of the recovery, resiliency, and
wellness plan every 90 calendar days with the individual and the caregiver, as
applicable. The review shall be signed by the PRS and the individual and, as
applicable, the identified family member or caregiver. Review of the recovery,
resiliency, and wellness plan means the PRS evaluates and updates the
individual's progress every 90 days toward meeting the plan's goals and
documents the outcome of this review in the individual's medical record. For
DMAS to determine that these reviews are complete, the reviews shall (i) update
the goals and objectives as needed to reflect any change in the individual's
recovery as well as any newly identified needs, (ii) be conducted in a manner
that enables the individual to actively participate in the process, and (iii)
be documented by the PRS in the individual's medical record no later than 15
calendar days from the date of the review.
DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-50)
Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition, DSM-5, 2013, American Psychiatric Association
Length of Stay by Diagnosis and Operation, Southern Region,
1996, HCIA, Inc.
Guidelines for Perinatal Care, 4th Edition, August 1997,
American Academy of Pediatrics and the American College of Obstetricians and
Gynecologists
Virginia Supplemental Drug Rebate Agreement Contract and
Addenda
Office Reference Manual (Smiles for Children), prepared by
DMAS' Dental Benefits Administrator, copyright 2010, dated March 13, 2014 (http://www.dmas.virginia.gov/Content_atchs/dnt/VA_SFC_ORM_140313.pdf)
Patient Placement Criteria for the Treatment of
Substance-Related Disorders ASAM PPC-2R, Second Edition, copyright 2001,
American Society of Addiction Medicine
Human Services and Related Fields Approved
Degrees/Experience, Department of Behavioral Health and Developmental Services
(rev. 5/13)
Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted on
November 3, 2017, revised on February 9, 2018
12VAC30-60-5. Applicability of utilization review requirements.
A. These utilization requirements shall apply to all Medicaid
covered services unless otherwise specified.
B. Some Medicaid covered services require an approved service
authorization prior to service delivery in order for reimbursement to occur.
1. To obtain service authorization, all providers' information
supplied to the Department of Medical Assistance Services (DMAS), service
authorization contractor, or the behavioral health service authorization
contractor or its contractor shall be fully substantiated throughout
individuals' medical records.
2. Providers shall be required to maintain documentation
detailing all relevant information about the Medicaid individuals who are in providers'
the provider's care. Such documentation shall fully disclose the extent
of services provided in order to support providers' the provider's
claims for reimbursement for services rendered. This documentation shall be
written, signed, and dated at the time the services are rendered unless
specified otherwise.
C. DMAS, or its designee contractor, shall
perform reviews of the utilization of all Medicaid covered services pursuant to
42 CFR 440.260 and 42 CFR Part 456.
D. DMAS shall recover expenditures made for covered services
when providers' documentation does not comport with standards specified in all
applicable regulations.
E. Providers who are determined not to be in compliance with
DMAS requirements shall be subject to 12VAC30-80-130 for the repayment of those
overpayments to DMAS.
F. Utilization review requirements specific to community
mental health services and residential treatment services, including
therapeutic group homes and psychiatric residential treatment facilities (PRTFs),
as set out in 12VAC30-50-130 and 12VAC30-50-226, shall be as follows:
1. To apply to be reimbursed as a Medicaid provider, the
required Department of Behavioral Health and Developmental Services (DBHDS)
license shall be either a full, annual, triennial, or conditional license.
Providers must be enrolled with DMAS or the BHSA its contractor
to be reimbursed. Once a health care entity has been enrolled as a provider, it
shall maintain, and update periodically as DMAS or its contractor
requires, a current Provider Enrollment Agreement for each Medicaid service
that the provider offers.
2. Health care entities with provisional licenses shall not be
reimbursed as Medicaid providers of community mental health services.
3. Payments shall not be permitted to health care entities
that either hold provisional licenses or fail to enter into a Medicaid
Provider Enrollment Agreement provider contract with DMAS or its
contractor for a service prior to rendering that service.
4. The behavioral health service authorization contractor
DMAS or its contractor shall apply a national standardized set of
medical necessity criteria in use in the industry, such as McKesson
InterQual Criteria, or an equivalent standard authorized in advance by
DMAS. Services that fail to meet medical necessity criteria shall be denied
service authorization.
5. For purposes of Medicaid reimbursement for services
provided by staff in residency, the following terms shall be used after their
signatures to indicate such status:
a. An LMHP-R shall use the term "Resident" after
his signature.
b. An LMHP-RP shall use the term "Resident in
Psychology" after his signature.
c. An LMHP-S shall use the term "Supervisee in Social
Work" after his signature.
12VAC30-60-50. Utilization control: Intermediate Care
Facilities care facilities for the Mentally Retarded (ICF/MR)
persons with intellectual and developmental disabilities and Institutions
institutions for Mental Disease (IMD) mental disease.
A. "Institution for mental disease" or
"IMD" means the same as that term is defined in § 1905(i) of the
Social Security Act.
B. With respect to each Medicaid-eligible resident in
an ICF/MR intermediate care facility for persons with intellectual
and developmental disabilities (ICF/ID) or an IMD in Virginia, a
written plan of care must be developed prior to admission to or authorization
of benefits in such facility, and a regular program of independent professional
review (including a medical evaluation) shall be completed periodically for
such services. The purpose of the review is to determine: the adequacy of the
services available to meet his the resident's current health
needs and promote his the resident's maximum physical well being;
the necessity and desirability of his the resident's continued
placement in the facility; and the feasibility of meeting his the
resident's health care needs through alternative institutional or
noninstitutional services. Long-term care of residents in such facilities will
be provided in accordance with federal law that is based on the resident's
medical and social needs and requirements.
B. C. With respect to each ICF/MR ICF/ID
or IMD, periodic on-site onsite inspections of the care being
provided to each person receiving medical assistance, by one or more
independent professional review teams (composed of a physician or registered
nurse and other appropriate health and social service personnel), shall be
conducted. The review shall include, with respect to each recipient, a
determination of the adequacy of the services available to meet his the
resident's current health needs and promote his the resident's
maximum physical well-being, the necessity and desirability of continued
placement in the facility, and the feasibility of meeting his the
resident's health care needs through alternative institutional or
noninstitutional services. Full reports shall be made to the state agency by
the review team of the findings of each inspection, together with any
recommendations.
C. D. In order for reimbursement to be made to
a facility for the mentally retarded persons with intellectual and
developmental disabilities, the resident must meet criteria for placement
in such facility as described in 12VAC30-60-360 and the facility must provide
active treatment for mental retardation intellectual or developmental
disabilities.
D. E. In each case for which payment for
nursing facility services for the mentally retarded persons with
intellectual or developmental disabilities or institution for mental
disease services is made under the State Plan:
1. A physician must certify for each applicant or recipient
that inpatient care is needed in a facility for the mentally retarded or an
institution for mental disease. A certificate of need shall be completed
by an independent certification team according to the requirements of
12VAC30-50-130 D 5. Recertification shall occur at least every 60 calendar days
by a physician, or by a physician assistant or nurse practitioner acting within
their scope of practice as defined by state law and under the supervision of a physician.
The certification must be made at the time of admission or, if an individual
applies for assistance while in the facility, before the Medicaid agency
authorizes payment; and
2. A physician, or physician assistant or nurse practitioner
acting within the scope of the practice as defined by state law and under the
supervision of a physician, must recertify for each applicant at least every 365
60 calendar days that services are needed in a facility for the
mentally retarded persons with intellectual and developmental
disabilities or an institution for mental disease.
E. F. When a resident no longer meets criteria
for facilities for the mentally retarded persons with intellectual
and developmental disabilities or for an institution for mental
disease, or no longer requires active treatment in a facility for the
mentally retarded persons with intellectual and developmental
disabilities then the resident must shall be discharged.
F. G. All services provided in an IMD and in
an ICF/MR ICF/ID shall be provided in accordance with guidelines
found in the Virginia Medicaid Nursing Home Manual.
H. All services provided in an IMD shall be provided with
the applicable provider agreement and all documents referenced therein.
I. Psychiatric services in IMDs shall only be covered for
eligible individuals younger than 21 years of age.
J. IMD services provided without service authorization
from DMAS or its contractor shall not be covered.
K. Absence of any of the required IMD documentation shall
result in denial or retraction of reimbursement.
L. In each case for which payment for IMD services is made
under the State Plan:
1. A physician shall certify at the time of admission, or
at the time the IMD is notified of an individual's retroactive eligibility
status, that the individual requires or required inpatient services in an IMD
consistent with 42 CFR 456.160.
2. The physician, or physician assistant or nurse
practitioner acting within the scope of practice as defined by state law and
under the supervision of a physician, shall recertify at least every 60
calendar days that the individual continues to require inpatient services in an
IMD.
3. Before admission to an IMD or before authorization
for payment, the attending physician or staff physician shall perform a medical
evaluation of the individual, and appropriate personnel shall complete a
psychiatric and social evaluation as described in 42 CFR 456.170.
4. Before admission to an IMD or before authorization for
payment, the attending physician or staff physician shall establish a written
plan of care for each individual as described in 42 CFR 441.155 and 42 CFR
456.180.
M. It shall be documented that the individual requiring
admission to an IMD who is younger than 21 years of age, that treatment is
medically necessary, and that the necessity was identified as a result of an
independent certification of need team review. Required documentation shall
include the following:
1. Diagnosis, as defined in the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition 2013, American Psychiatric
Association, and based on an evaluation by a psychiatrist completed within 30
calendar days of admission or if the diagnosis is confirmed, in writing, by a
previous evaluation completed within one year within admission.
2. A certification of the need for services as defined in
42 CFR 441.152 by an interdisciplinary team meeting the requirements of 42
CFR 441.153 or 42 CFR 441.156 and the Psychiatric Treatment of Minors Act (§
16.1-335 et seq. of the Code of Virginia).
N. The use of seclusion and restraint in an IMD shall be
in accordance with 42 CFR 483.350 through 42 CFR 483.376. Each use of a
seclusion or restraint, as defined in 42 CFR 483.350 through 42 CFR 483.376,
shall be reported by the service provider to DMAS or its contractor within one
calendar day of the incident.
12VAC30-60-61. Services related to the Early and Periodic
Screening, Diagnosis and Treatment Program (EPSDT); community mental health and
behavioral therapy services for children.
A. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context indicates
otherwise:
"At risk" means one or more of the following: (i)
within the two weeks before the intake, the individual shall be screened by an
LMHP for escalating behaviors that have put either the individual or others at
immediate risk of physical injury; (ii) the parent/guardian parent or
guardian is unable to manage the individual's mental, behavioral, or
emotional problems in the home and is actively, within the past two to four
weeks, seeking an out-of-home placement; (iii) a representative of either a
juvenile justice agency, a department of social services (either the state
agency or local agency), a community services board/behavioral health authority,
the Department of Education, or an LMHP, as defined in 12VAC35-105-20, and who
is neither an employee of nor consultant to the intensive in-home (IIH)
services or therapeutic day treatment (TDT) provider, has recommended an
out-of-home placement absent an immediate change of behaviors and when
unsuccessful mental health services are evident; (iv) the individual has a
history of unsuccessful services (either crisis intervention, crisis
stabilization, outpatient psychotherapy, outpatient substance abuse services,
or mental health support) within the past 30 calendar days; or
(v) the treatment team or family assessment planning team (FAPT) recommends IIH
services or TDT for an individual currently who is either: (a) transitioning
out of psychiatric residential treatment facility Level C (PRTF)
services, (b) transitioning out of a therapeutic group home Level A
or B services, (c) transitioning out of acute psychiatric hospitalization,
or (d) transitioning between foster homes, mental health case management,
crisis intervention, crisis stabilization, outpatient psychotherapy, or
outpatient substance abuse services.
"Failed services" or "unsuccessful
services" means, as measured by ongoing behavioral, mental, or physical
distress, that the services did not treat or resolve the individual's mental
health or behavioral issues.
"Individual" means the Medicaid-eligible person
receiving these services and for the purpose of this section includes children
from birth up to 12 years of age or and adolescents ages 12
through 20 years.
"Licensed assistant behavior analyst" means a
person who has met the licensing requirements of 18VAC85-150 and holds a valid
license issued by the Department of Health Professions.
"Licensed behavior analyst" means a person who has
met the licensing requirements of 18VAC85-150 and holds a valid license issued
by the Department of Health Professions.
"New service" means a community mental health
rehabilitation service for which the individual does not have a current service
authorization in effect as of July 17, 2011.
"Out-of-home placement" means placement in one or
more of the following: (i) either a Level A or Level B therapeutic
group home; (ii) regular foster home if the individual is currently residing
with his the individual's biological family and, due to his
behavior problems, is at risk of being placed in the custody of the local
department of social services; (iii) treatment foster care if the individual is
currently residing with his the individual's biological family or
a regular foster care family and, due to the individual's behavioral problems,
is at risk of removal to a higher level of care; (iv) Level C psychiatric
residential treatment facility; (v) emergency shelter for the individual
only due either to his mental health or behavior or both; (vi) psychiatric
hospitalization; or (vii) juvenile justice system or incarceration.
"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized progress notes are part of the minimum documentation
requirements and shall convey the individual's status, staff interventions,
and, as appropriate, the individual's progress or lack of progress toward goals
and objectives in the plan of care. The progress notes shall also include, at a
minimum, the name of the service rendered, the date of the service rendered, the
signature and credentials of the person who rendered the service, the setting
in which the service was rendered, and the amount of time or units required to
deliver the service. The content of each progress note shall corroborate the
time or units billed. Progress notes shall be documented for each service that
is billed.
"Service-specific provider intake" means the
evaluation that is conducted according to the Department of Medical Assistance
Services (DMAS) intake definition set out in 12VAC30-50-130.
B. Utilization review requirements for all services in this
section.
1. The services described in this section shall be rendered
consistent with the definitions, service limits, and requirements described in
this section and in 12VAC30-50-130.
2. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.
3. Individual service plans (ISPs) shall meet all of the
requirements set forth in 12VAC30-60-143 B 7.
C. Utilization review of intensive in-home (IIH) services for
children and adolescents.
1. The service definition for intensive in-home (IIH) services
is contained in 12VAC30-50-130.
2. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from mental, behavioral or emotional
illness that results in significant functional impairments in major life
activities. Individuals must meet at least two of the following criteria on a
continuing or intermittent basis to be authorized for these services:
a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.
b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services or judicial system
are or have been necessary.
c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.
3. Prior to admission, an appropriate service-specific
provider intake, as defined in 12VAC30-50-130, shall be conducted by the
licensed mental health professional (LMHP), LMHP-supervisee, LMHP-resident, or
LMHP-RP, documenting the individual's diagnosis and describing how service
needs can best be met through intervention provided typically but not solely in
the individual's residence. The service-specific provider intake shall describe
how the individual's clinical needs put the individual at risk of out-of-home
placement and shall be conducted face-to-face in the individual's residence.
Claims for services that are based upon service-specific provider intakes that
are incomplete, outdated (more than 12 months old), or missing shall not be
reimbursed.
4. An individual service plan (ISP) shall be fully completed,
signed, and dated by either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a
QMHP-C, or a QMHP-E and the individual and individual's parent/guardian parent
or guardian within 30 calendar days of initiation of services. The
ISP shall meet all of the requirements as defined in 12VAC30-50-226.
5. DMAS shall not reimburse for dates of services in which the
progress notes are not individualized and child-specific. Duplicated progress
notes shall not constitute the required child-specific individualized progress
notes. Each progress note shall demonstrate unique differences particular to
the individual's circumstances, treatment, and progress. Claim payments shall
be retracted for services that are supported by documentation that does not
demonstrate unique differences particular to the individual.
6. Services shall be directed toward the treatment of the
eligible individual and delivered primarily in the family's residence with the
individual present. As clinically indicated, the services may be rendered
in the community if there is documentation, on that date of service, of the
necessity of providing services in the community. The documentation shall describe
how the alternative community service location supports the identified clinical
needs of the individual and describe how it facilitates the implementation of
the ISP. For services provided outside of the home, there shall be
documentation reflecting therapeutic treatment as set forth in the ISP provided
for that date of service in the appropriately signed and dated progress notes.
7. These services shall be provided when the clinical needs of
the individual put him the individual at risk for out-of-home
placement, as these terms are defined in this section:
a. When services that are far more intensive than outpatient
clinic care are required to stabilize the individual in the family situation,;
or
b. When the individual's residence as the setting for services
is more likely to be successful than a clinic.
The service-specific provider intake shall describe how the
individual meets either subdivision 7 a or 7 b of this subdivision
7 subsection.
8. Services shall not be provided if the individual is no
longer a resident of the home.
9. Services shall also be used to facilitate the transition to
home from an out-of-home placement when services more intensive than outpatient
clinic care are required for the transition to be successful. The individual
and responsible parent/guardian parent or guardian shall be
available and in agreement to participate in the transition.
10. At least one parent/legal parent or legal
guardian or responsible adult with whom the individual is living must be
willing to participate in the intensive in-home services with the goal of
keeping the individual with the family. In the instance of this service, a
responsible adult shall be an adult who lives in the same household with the
child and is responsible for engaging in therapy and service-related activities
to benefit the individual.
11. The enrolled provider shall be licensed by the Department
of Behavioral Health and Developmental Services (DBHDS) as a provider of
intensive in-home services. The provider shall also have a provider enrollment
agreement with DMAS or its contractor in effect prior to the delivery of this
service that indicates that the provider will offer intensive in-home services.
12. Services must only be provided by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E. Reimbursement shall
not be provided for such services when they have been rendered by a QPPMH as
defined in 12VAC35-105-20.
13. The billing unit for intensive in-home service shall be
one hour. Although the pattern of service delivery may vary, intensive in-home
services is an intensive service provided to individuals for whom there is an
ISP in effect which demonstrates the need for a minimum of three hours a week
of intensive in-home service, and includes a plan for service provision of a
minimum of three hours of service delivery per individual/family individual
or family per week in the initial phase of treatment. It is expected that
the pattern of service provision may show more intensive services and more
frequent contact with the individual and family initially with a lessening or
tapering off of intensity toward the latter weeks of service. Service plans
shall incorporate an individualized discharge plan that describes transition
from intensive in-home to less intensive or nonhome based services.
14. The ISP, as defined in 12VAC30-50-226, shall be updated as
the individual's needs and progress changes and signed by either the parent or
legal guardian and the individual. Documentation shall be provided if the
individual, who is a minor child, is unable or unwilling to sign the ISP. If
there is a lapse in services that is greater than 31 consecutive calendar days
without any communications from family members/legal members or legal
guardian or the individual with the provider, the provider shall discharge the
individual. If the individual continues to need services, then a new intake/admission
intake or admission shall be documented and a new service authorization
shall be required.
15. The provider shall ensure that the maximum staff-to-caseload
ratio fully meets the needs of the individual.
16. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430,
the provider shall contact the case manager and provide notification of
the provision of services. In addition, the provider shall send monthly updates
to the case manager on the individual's status. A discharge summary shall be
sent to the case manager within 30 calendar days of the service
discontinuation date. Providers and case managers who are using the same
electronic health record for the individual shall meet requirements for
delivery of the notification, monthly updates, and discharge summary upon entry
of the information in the electronic health records.
17. Emergency assistance shall be available 24 hours per day,
seven days a week.
18. Providers shall comply with DMAS marketing requirements at
12VAC30-130-2000. Providers that DMAS determines violate these marketing
requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.
19. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or guardian, shall
inform him the primary care provider of the individual's receipt
of IIH services. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.
D. Utilization review of therapeutic day treatment for
children and adolescents.
1. The service definition for therapeutic day treatment (TDT)
for children and adolescents is contained in 12VAC30-50-130.
2. Therapeutic day treatment is appropriate for children and
adolescents who meet one of the following criteria:
a. Children and adolescents who require year-round treatment
in order to sustain behavior or emotional gains.
b. Children and adolescents whose behavior and emotional
problems are so severe they cannot be handled in self-contained or resource
emotionally disturbed (ED) classrooms without:
(1) This programming during the school day; or
(2) This programming to supplement the school day or school
year.
c. Children and adolescents who would otherwise be placed on
homebound instruction because of severe emotional/behavior problems that
interfere with learning.
d. Children and adolescents who (i) have deficits in social
skills, peer relations or dealing with authority; (ii) are hyperactive; (iii)
have poor impulse control; or (iv) are extremely depressed or marginally
connected with reality.
e. Children in preschool enrichment and early intervention
programs when the children's emotional/behavioral emotional or
behavioral problems are so severe that they the children
cannot function in these programs without additional services.
3. The service-specific provider intake shall document the
individual's behavior and describe how the individual meets these specific
service criteria in subdivision 2 of this subsection.
4. Prior to admission to this service, a service-specific
provider intake shall be conducted by the LMHP as defined in 12VAC35-105-20.
5. An ISP shall be fully completed, signed, and dated by an
LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or QMHP-E and by the
individual or the parent/guardian parent or guardian within 30 calendar
days of initiation of services and shall meet all requirements of an ISP as
defined in 12VAC30-50-226. Individual progress notes shall be required for each
contact with the individual and shall meet all of the requirements as defined
in 12VAC30-50-130 this section.
6. Such services shall not duplicate those services provided
by the school.
7. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from a condition due to mental,
behavioral, or emotional illness that results in significant functional
impairments in major life activities. Individuals shall meet at least two of
the following criteria on a continuing or intermittent basis:
a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.
b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services, or judicial
system are or have been necessary.
c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.
8. The enrolled provider of therapeutic day treatment for
child and adolescent services shall be licensed by DBHDS to provide day support
services. The provider shall also have a provider enrollment agreement in
effect with DMAS prior to the delivery of this service that indicates that the
provider offers therapeutic day treatment services for children and
adolescents.
9. Services shall be provided by an LMHP, LMHP-supervisee,
LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E.
10. The minimum staff-to-individual ratio as defined by DBHDS
licensing requirements shall ensure that adequate staff is available to meet
the needs of the individual identified on the ISP.
11. The program shall operate a minimum of two hours per day
and may offer flexible program hours (i.e., before or after school or during
the summer). One unit of service shall be defined as a minimum of two hours but
less than three hours in a given day. Two units of service shall be defined as
a minimum of three but less than five hours in a given day. Three units of
service shall be defined as five or more hours of service in a given day.
12. Time required for academic instruction when no treatment
activity is going on shall not be included in the billing unit.
13. Services shall be provided following a service-specific
provider intake that is conducted by an LMHP, LMHP-supervisee, LMHP-resident,
or LMHP-RP. An LMHP, LMHP-supervisee, or LMHP-resident shall make and document
the diagnosis. The service-specific provider intake shall include the elements
as defined in 12VAC30-50-130.
14. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider
shall collaborate with the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 calendar days of the service
discontinuation date. Providers and case managers using the same electronic
health record for the individual shall meet requirements for delivery of the
notification, monthly updates, and discharge summary upon entry of this
documentation into the electronic health record.
15. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
the individual's parent or legal guardian, shall inform the primary care
provider of the child's the individual's receipt of community
mental health rehabilitative services. The documentation shall include who was
contacted, when the contact occurred, and what information was transmitted. The
parent/legal parent or legal guardian shall be required to give
written consent that this provider has permission to inform the primary care
provider of the child's or adolescent's receipt of community mental health
rehabilitative services.
16. Providers shall comply with DMAS marketing requirements as
set out in 12VAC30-130-2000. Providers that DMAS determines have violated these
marketing requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.
17. If there is a lapse in services greater than 31
consecutive calendar days, the provider shall discharge the individual. If the
individual continues to need services, a new intake/admission intake
or admission documentation shall be prepared and a new service
authorization shall be required.
E. Utilization review of community-based services for
children and adolescents younger than 21 years of age (Level A).
1. The staff ratio must be at least one to six during the
day and at least one to 10 between 11 p.m. and 7 a.m. The program
director supervising the program/group home must be, at minimum, a QMHP-C or
QMHP-E (as defined in 12VAC35-105-20). The program director must be employed
full time.
2. In order for Medicaid reimbursement to be approved, at
least 50% of the provider's direct care staff at the group home must meet DBHDS
paraprofessional staff criteria, defined in 12VAC35-105-20.
3. Authorization is required for Medicaid reimbursement.
All community-based services for children and adolescents younger than 21
(Level A) require authorization prior to reimbursement for these services.
Reimbursement shall not be made for this service when other less intensive
services may achieve stabilization.
4. Services must be provided in accordance with an
individual service plan (ISP), which must be fully completed within 30 days of
authorization for Medicaid reimbursement.
5. Prior to admission, a service-specific provider intake
shall be conducted according to DMAS specifications described in
12VAC30-50-130.
6. Such service-specific provider intakes shall be
performed by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.
7. If an individual receiving community-based services for
children and adolescents younger than 21 years of age (Level A) is also
receiving case management services, the provider shall collaborate with the
case manager by notifying the case manager of the provision of Level A services
and shall send monthly updates on the individual's progress. When the
individual is discharged from Level A services, a discharge summary shall be
sent to the case manager within 30 days of the service discontinuation
date. Providers and case managers who are using the same electronic health
record for the individual shall meet requirements for the delivery of the
notification, monthly updates, and discharge summary upon entry of this
documentation into the electronic health record.
F. E. Utilization review of therapeutic behavioral
services group home for children and adolescents younger than 21
years of age (Level B).
1. The staff ratio must be at least one to four during the
day and at least one to eight between 11 p.m. and 7 a.m. approved
by the Office of Licensure at the Department of Behavioral Health and Developmental
Services. The clinical director must shall be a licensed
mental health professional. The caseload of the clinical director must not
exceed 16 individuals including all sites for which the same clinical director
is responsible.
2. The program director must shall be full time
and be a QMHP-C or QMHP-E with a bachelor's degree and at least one year's
clinical experience meet the requirements for a program director as
defined in 12VAC35-46-350.
3. For Medicaid reimbursement to be approved, at least 50% of
the provider's direct care staff at the therapeutic group home shall
meet DBHDS paraprofessional staff qualified paraprofessional in
mental health (QPPMH) criteria, as defined in 12VAC35-105-20. The program/group
therapeutic group home must shall coordinate services with
other providers.
4. All therapeutic behavioral group home
services (Level B) shall be authorized prior to reimbursement for these
services. Services rendered without such prior authorization shall not be
covered.
5. Services must be provided in accordance with an ISP a
comprehensive individual plan of care as defined in 12VAC30-50-130, which
shall be fully completed within 30 calendar days of authorization for
Medicaid reimbursement.
6. Prior to admission, a service-specific provider intake
an assessment shall be performed using all elements specified by DMAS in
12VAC30-50-130.
7. Such service-specific provider intakes assessments
shall be performed by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.
8. If an individual receiving therapeutic behavioral group
home services for children and adolescents younger than 21 years of age (Level
B) is also receiving case management services, the therapeutic behavioral
group home services provider must collaborate with the care coordinator/case
manager by notifying him of the provision of Level B therapeutic
group home services and the Level B therapeutic group home
services provider shall send monthly updates on the individual's treatment
status. When the individual is discharged from Level B services, a discharge
summary shall be sent to the care coordinator/case manager within 30 days of
the discontinuation date.
9. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian parent or legally authorized representative, shall inform
the primary care provider of the individual's receipt of these Level B therapeutic
group home services. The documentation shall include who was contacted,
when the contact occurred, and what information was transmitted. If these
individuals are children or adolescents, then the parent/legal guardian parent
or legally authorized representative shall be required to give written
consent that this provider has permission to inform the primary care provider
of the individual's receipt of community mental health rehabilitative services.
G. Utilization review. Utilization reviews for
community-based services for children and adolescents younger than 21 years of
age (Level A) and therapeutic behavioral services for children and adolescents
younger than 21 years of age (Level B) shall include determinations whether
providers meet all DMAS requirements, including compliance with DMAS marketing
requirements. Providers that DMAS determines have violated the DMAS marketing
requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.
H. F. Utilization review of behavioral therapy
services for children individuals younger than 21 years of age.
1. In order for Medicaid to cover behavioral therapy services,
the provider shall be enrolled with DMAS or its contractor as a Medicaid
provider. The provider enrollment agreement shall be in effect prior to the
delivery of services for Medicaid reimbursement.
2. Behavioral therapy services shall be covered for
individuals younger than 21 years of age when recommended by the individual's
primary care provider, licensed physician, licensed physician assistant, or
licensed nurse practitioner and determined by DMAS or its contractor to be
medically necessary to correct or ameliorate significant impairments in major
life activities that have resulted from either developmental, behavioral, or
mental disabilities.
3. Behavioral therapy services require service authorization.
Services shall be authorized only when eligibility and medical necessity
criteria are met.
4. Prior to treatment, an appropriate service-specific
provider intake shall be conducted, documented, signed, and dated by a licensed
behavior analyst (LBA), licensed assistant behavior analyst (LABA), LMHP,
LMHP-R, LMHP-RP, or LMHP-S, acting within the scope of his practice,
documenting the individual's diagnosis (including a description of the
behaviors targeted for treatment with their frequency, duration, and intensity)
and describing how service needs can best be met through behavioral therapy.
The service-specific provider intake shall be conducted face-to-face in the
individual's residence with the individual and parent or guardian.
5. The ISP shall be developed upon admission to the service
and reviewed within 30 days of admission to the service to ensure that all
treatment goals are reflective of the individual's clinical needs and shall
describe each treatment goal, targeted behavior, one or more measurable
objectives for each targeted behavior, the behavioral modification strategy to
be used to manage each targeted behavior, the plan for parent or caregiver
training, care coordination, and the measurement and data collection methods to
be used for each targeted behavior in the ISP. The ISP as defined in
12VAC30-50-130 shall be fully completed, signed, and dated by an LBA, LABA,
LMHP, LMHP-R, LMHP-RP, or LMHP-S. Every three months, the LBA, LABA, LMHP,
LMHP-R, LMHP-RP, or LMHP-S shall review the ISP, modify the ISP as appropriate,
and update the ISP, and all of these activities shall occur with the individual
in a manner in which the individual may participate in the process. The ISP
shall be rewritten at least annually.
6. Reimbursement for the initial service-specific provider
intake and the initial ISP shall be limited to five hours without service
authorization. If additional time is needed to complete these documents,
service authorization shall be required.
7. Clinical supervision shall be required for Medicaid reimbursement
of behavioral therapy services that are rendered by an LABA, LMHP-R, LMHP-RP,
or LMHP-S or unlicensed staff consistent with the scope of practice as
described by the applicable Virginia Department of Health Professions
regulatory board. Clinical supervision of unlicensed staff shall occur at least
weekly. As documented in the individual's medical record, clinical supervision
shall include a review of progress notes and data and dialogue with supervised
staff about the individual's progress and the effectiveness of the ISP.
Clinical supervision shall be documented by, at a minimum, the
contemporaneously dated signature of the clinical supervisor.
8. Family training involving the individual's family and
significant others to advance the treatment goals of the individual shall be
provided when (i) the training with the family member or significant other is
for the direct benefit of the individual, (ii) the training is not aimed at
addressing the treatment needs of the individual's family or significant
others, (iii) the individual is present except when it is clinically
appropriate for the individual to be absent in order to advance the
individual's treatment goals, and (iv) the training is aligned with the goals
of the individual's treatment plan.
9. The following shall not be covered under this service:
a. Screening to identify physical, mental, or developmental
conditions that may require evaluation or treatment. Screening is covered as an
EPSDT service provided by the primary care provider and is not covered as a
behavioral therapy service under this section.
b. Services other than the initial service-specific provider
intake that are provided but are not based upon the individual's ISP or linked
to a service in the ISP. Time not actively involved in providing services
directed by the ISP shall not be reimbursed.
c. Services that are based upon an incomplete, missing, or
outdated service-specific provider intake or ISP.
d. Sessions that are conducted for family support, education,
recreational, or custodial purposes, including respite or child care.
e. Services that are provided by a provider but are rendered
primarily by a relative or guardian who is legally responsible for the
individual's care.
f. Services that are provided in a clinic or provider's office
without documented justification for the location in the ISP.
g. Services that are provided in the absence of the individual
or a parent or other authorized caregiver identified in the ISP with the
exception of treatment review processes described in subdivision 12 e of this
subsection, care coordination, and clinical supervision.
h. Services provided by a local education agency.
i. Provider travel time.
10. Behavioral therapy services shall not be reimbursed
concurrently with community mental health services described in 12VAC30-50-130 B
5 C or 12VAC30-50-226, or behavioral, psychological, or psychiatric
therapeutic consultation described in 12VAC30-120-756, 12VAC30-120-1000,
or 12VAC30-135-320.
11. If the individual is receiving targeted case management
services under the Medicaid state plan State Plan (defined in
12VAC30-50-410 through 12VAC30-50-491 12VAC30-50-491), the
provider shall notify the case manager of the provision of behavioral therapy
services unless the parent or guardian requests that the information not be
released. In addition, the provider shall send monthly updates to the case
manager on the individual's status pursuant to a valid release of information.
A discharge summary shall be sent to the case manager within 30 days of the
service discontinuation date. A refusal of the parent or guardian to release
information shall be documented in the medical record for the date the request
was discussed.
12. Other standards to ensure quality of services:
a. Services shall be delivered only by an LBA, LABA, LMHP,
LMHP-R, LMHP-RP, LMHP-S, or clinically supervised unlicensed staff consistent
with the scope of practice as described by the applicable Virginia Department
of Health Professions regulatory board.
b. Individual-specific services shall be directed toward the
treatment of the eligible individual and delivered in the family's residence
unless an alternative location is justified and documented in the ISP.
c. Individual-specific progress notes shall be created
contemporaneously with the service activities and shall document the name and
Medicaid number of each individual; the provider's name, signature, and date;
and time of service. Documentation shall include activities provided, length of
services provided, the individual's reaction to that day's activity, and
documentation of the individual's and the parent or caregiver's progress toward
achieving each behavioral objective through analysis and reporting of
quantifiable behavioral data. Documentation shall be prepared to clearly demonstrate
efficacy using baseline and service-related data that shows clinical progress
and generalization for the child and family members toward the therapy goals as
defined in the service plan.
d. Documentation of all billed services shall include the amount
of time or billable units spent to deliver the service and shall be signed and
dated on the date of the service by the practitioner rendering the service.
e. Billable time is permitted for the LBA, LABA, LMHP, LMHP-R,
LMHP-RP, or LMHP-S to better define behaviors and develop documentation
strategies to measure treatment performance and the efficacy of the ISP
objectives, provided that these activities are documented in a progress note as
described in subdivision 12 c of this subsection.
13. Failure to comply with any of the requirements in
12VAC30-50-130 or in this section shall result in retraction.
DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-60)
Department of Medical Assistance Services Provider Manuals (https://www.virginiamedicaid.dmas.virginia.gov/wps/portal/ProviderManuals):
Virginia Medicaid Nursing Home Manual
Virginia Medicaid Rehabilitation Manual
Virginia Medicaid Hospice Manual
Virginia Medicaid School Division Manual
Development
of Special Criteria for the Purposes of Pre-Admission Screening, Medicaid Memo,
October 3, 2012, Department of Medical Assistance Services
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition (DSM-IV-TR), copyright 2000, American Psychiatric Association
Patient Placement Criteria for the Treatment of
Substance-Related Disorders (ASAM PPC-2R), Second Edition, copyright 2001,
American Society on Addiction Medicine, Inc.
Medicaid Memo, Reissuance of the Pre-Admission
Screening (PAS) Provider Manual, Chapter IV, November 22, 2016, Department of
Medical Assistance Services
Medicaid Special Memo, Subject: New Service
Authorization Requirement for an Independent Clinical Assessment for Medicaid
and FAMIS Children's Community Mental Health Rehabilitative Services, dated
June 16, 2011, Department of Medical Assistance Services
Medicaid Special Memo, Subject: Changes to
Children Community Mental Health Rehabilitative Services - Children's Services,
July 1, 2010 & September 1, 2010, dated July 23, 2010, Department of
Medical Assistance Services
Medicaid Special Memo, Subject: Changes to
Community Mental Health Rehabilitative Services - Adult-Oriented Services, July
1, 2010 & September 1, 2010, dated July 23, 2010, Department of Medical
Assistance Services
Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted
November 3, 2017, revised February 9, 2018
Part XIV
Residential Psychiatric Treatment for Children and Adolescents (Repealed)
12VAC30-130-850. Definitions. (Repealed.)
The following words and terms when used in this part shall
have the following meanings, unless the context clearly indicates otherwise:
"Active treatment" means implementation of a
professionally developed and supervised individual plan of care that must be
designed to achieve the recipient's discharge from inpatient status at the
earliest possible time.
"Certification" means a statement signed by a
physician that inpatient services in a residential treatment facility are or
were needed. The certification must be made at the time of admission, or, if an
individual applies for assistance while in a mental hospital or residential
treatment facility, before the Medicaid agency authorizes payment.
"Comprehensive individual plan of care" or
"CIPOC" means a written plan developed for each recipient in
accordance with 12VAC30-130-890 to improve his condition to the extent that
inpatient care is no longer necessary.
"Emergency services" means a medical condition
manifesting itself by acute symptoms of sufficient severity (including severe
pain) such that a prudent layperson, who possesses an average knowledge of
health and medicine, could reasonably expect the absence of immediate medical
attention to result in placing the health of the individual (or, with respect
to a pregnant woman, the health of the woman or her unborn child) in serious
jeopardy, serious impairment to bodily functions, or serious dysfunction of any
bodily organ or part.
"Individual" or "individuals" means a
child or adolescent younger than 21 years of age who is receiving a service
covered under this part of this chapter.
"Initial plan of care" means a plan of care
established at admission, signed by the attending physician or staff physician,
that meets the requirements in 12VAC30-130-890.
"Inpatient psychiatric facility" or
"IPF" means a private or state-run freestanding psychiatric hospital
or psychiatric residential treatment center.
"Recertification" means a certification for each
applicant or recipient that inpatient services in a residential treatment
facility are needed. Recertification must be made at least every 60 days by a
physician, or physician assistant or nurse practitioner acting within the scope
of practice as defined by state law and under the supervision of a physician.
"Recipient" or "recipients" means the
child or adolescent younger than 21 years of age receiving this covered
service.
"RTC-Level C" means a psychiatric residential
treatment facility (Level C).
"Services provided under arrangement" means services
including physician and other health care services that are furnished to
children while they are in an IPF that are billed by the arranged practitioners
separately from the IPF per diem.
12VAC30-130-860. Service coverage; eligible individuals;
service certification. (Repealed.)
A. Residential treatment programs (Level C) shall be
24-hour, supervised, medically necessary, out-of-home programs designed to
provide necessary support and address the special mental health and behavioral
needs of a child or adolescent in order to prevent or minimize the need for
more intensive inpatient treatment. Services must include, but shall not be
limited to, assessment and evaluation, medical treatment (including drugs),
individual and group counseling, and family therapy necessary to treat the
child.
B. Residential treatment programs (Level C) shall provide
a total, 24 hours per day, specialized form of highly organized, intensive and
planned therapeutic interventions that shall be utilized to treat some of the
most severe mental, emotional, and behavioral disorders. Residential treatment
is a definitive therapeutic modality designed to deliver specified results for
a defined group of problems for children or adolescents for whom outpatient day
treatment or other less intrusive levels of care are not appropriate, and for
whom a protected, structured milieu is medically necessary for an extended
period of time.
C. Therapeutic Behavioral Services for Children and
Adolescents under 21 (Level B) and Community-Based Services for Children and
Adolescents under 21 (Level A) must be therapeutic services rendered in a
residential type setting such as a group home or program that provides
structure for daily activities, psychoeducation, therapeutic supervision and
mental health care to ensure the attainment of therapeutic mental health goals
as identified in the individual service plan (plan of care). The child or
adolescent must have a medical need for the service arising from a condition
due to mental, behavioral or emotional illness that results in significant
functional impairments in major life activities.
D. Active treatment shall be required. Residential
Treatment, Therapeutic Behavioral and Community-Based Services for Children and
Adolescents under age 21 shall be designed to serve the mental health needs of
children. In order to be reimbursed for Residential Treatment (Level C),
Therapeutic Behavioral Services for Children and Adolescents under 21 (Level
B), and Community-Based Services for Children and Adolescents under 21 (Level
A), the facility must provide active mental health treatment beginning at
admission and it must be related to the recipient's principle diagnosis and
admitting symptoms. To the extent that any recipient needs mental health
treatment and his needs meet the medical necessity criteria for the service, he
will be approved for these services. These services do not include
interventions and activities designed only to meet the supportive nonmental
health special needs, including but not limited to personal care, habilitation
or academic educational needs of the recipients.
E. An individual eligible for Residential Treatment
Services (Level C) is a recipient under the age of 21 years whose treatment
needs cannot be met by ambulatory care resources available in the community,
for whom proper treatment of his psychiatric condition requires services on an
inpatient basis under the direction of a physician.
An individual eligible for Therapeutic Behavioral Services
for Children and Adolescents under 21 (Level B) is a child, under the age of 21
years, for whom proper treatment of his psychiatric condition requires less
intensive treatment in a structured, therapeutic residential program under the
direction of a Licensed Mental Health Professional.
An individual eligible for Community-Based Services for
Children and Adolescents under 21 (Level A) is a child, under the age of 21
years, for whom proper treatment of his psychiatric condition requires less
intensive treatment in a structured, therapeutic residential program under the
direction of a qualified mental health professional. The services for all three
levels can reasonably be expected to improve the child's or adolescent's
condition or prevent regression so that the services will no longer be needed.
F. In order for Medicaid to reimburse for Residential
Treatment (Level C), Therapeutic Behavioral Services for Children and
Adolescents under 21 (Level B), and Community-Based Services for Children and
Adolescents under 21 (Level A), the need for the service must be certified
according to the standards and requirements set forth in subdivisions 1 and 2
of this subsection. At least one member of the independent certifying team must
have pediatric mental health expertise.
1. For an individual who is already a Medicaid recipient
when he is admitted to a facility or program, certification must:
a. Be made by an independent certifying team that includes
a licensed physician who:
(1) Has competence in diagnosis and treatment of pediatric
mental illness; and
(2) Has knowledge of the recipient's mental health history
and current situation.
b. Be signed and dated by a physician and the team.
2. For a recipient who applies for Medicaid while an
inpatient in the facility or program, the certification must:
a. Be made by the team responsible for the plan of care;
b. Cover any period of time before the application for
Medicaid eligibility for which claims for reimbursement by Medicaid are made;
and
c. Be signed and dated by a physician and the team.
12VAC30-130-870. Preauthorization. (Repealed.)
A. Authorization for Residential Treatment (Level C) shall
be required within 24 hours of admission and shall be conducted by DMAS or its
utilization management contractor using medical necessity criteria specified by
DMAS. At preauthorization, an initial length of stay shall be assigned and the
residential treatment provider shall be responsible for obtaining authorization
for continued stay.
B. DMAS will not pay for admission to or continued stay in
residential facilities (Level C) that were not authorized by DMAS.
C. Information that is required in order to obtain
admission preauthorization for Medicaid payment shall include:
1. A completed state-designated uniform assessment
instrument approved by the department.
2. A certification of the need for this service by the team
described in 12VAC30-130-860 that:
a. The ambulatory care resources available in the community
do not meet the specific treatment needs of the recipient;
b. Proper treatment of the recipient's psychiatric
condition requires services on an inpatient basis under the direction of a
physician; and
c. The services can reasonably be expected to improve the
recipient's condition or prevent further regression so that the services will
not be needed.
3. Additional required written documentation shall include
all of the following:
a. Diagnosis, as defined in the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (DSM-IV, effective October 1, 1996),
including Axis I (Clinical Disorders), Axis II (Personality Disorders/Mental
Retardation, Axis III (General Medical Conditions), Axis IV (Psychosocial and
Environmental Problems), and Axis V (Global Assessment of Functioning);
b. A description of the child's behavior during the seven
days immediately prior to admission;
c. A description of alternative placements tried or
explored and the outcomes of each placement;
d. The child's functional level and clinical stability;
e. The level of family support available; and
f. The initial plan of care as defined and specified at
12VAC30-130-890.
D. Continued stay criteria for Residential Treatment
(Level C): information for continued stay authorization (Level C) for Medicaid
payment must include:
1. A state uniform assessment instrument, completed no more
than 90 days prior to the date of submission;
2. Documentation that the required services are provided as
indicated;
3. Current (within the last 30 days) information on
progress related to the achievement of treatment goals. The treatment goals
must address the reasons for admission, including a description of any new
symptoms amenable to treatment;
4. Description of continued impairment, problem behaviors,
and need for Residential Treatment level of care.
E. Denial of service may be appealed by the recipient
consistent with 12VAC30-110-10 et seq.; denial of reimbursement may be appealed
by the provider consistent with the Administrative Process Act (§ 2.2-4000 et
seq. of the Code of Virginia).
F. DMAS will not pay for services for Therapeutic Behavioral
Services for Children and Adolescents under 21 (Level B), and Community-Based
Services for Children and Adolescents under 21 (Level A) that are not prior
authorized by DMAS.
G. Authorization for Level A and Level B residential
treatment shall be required within three business days of admission.
Authorization for services shall be based upon the medical necessity criteria
described in 12VAC30-50-130. The authorized length of stay must not exceed six
months and may be reauthorized. The provider shall be responsible for
documenting the need for a continued stay and providing supporting
documentation.
H. Information that is required in order to obtain
admission authorization for Medicaid payment must include:
1. A current completed state-designated uniform assessment
instrument approved by the department. The state designated uniform assessment
instrument must indicate at least two areas of moderate impairment for Level B
and two areas of moderate impairment for Level A. A moderate impairment is
evidenced by, but not limited to:
a. Frequent conflict in the family setting, for example,
credible threats of physical harm.
b. Frequent inability to accept age appropriate direction
and supervision from caretakers, family members, at school, or in the home or community.
c. Severely limited involvement in social support; which
means significant avoidance of appropriate social interaction, deterioration of
existing relationships, or refusal to participate in therapeutic interventions.
d. Impaired ability to form a trusting relationship with at
least one caretaker in the home, school or community.
e. Limited ability to consider the effect of one's
inappropriate conduct on others, interactions consistently involving conflict,
which may include impulsive or abusive behaviors.
2. A certification of the need for the service by the team
described in 12VAC30-130-860 that:
a. The ambulatory care resources available in the community
do not meet the specific treatment needs of the child;
b. Proper treatment of the child's psychiatric condition
requires services in a community-based residential program; and
c. The services can reasonably be expected to improve the
child's condition or prevent regression so that the services will not be
needed.
3. Additional required written documentation must include
all of the following:
a. Diagnosis, as defined in the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (DSM-IV, effective October 1, 1996),
including Axis I (Clinical Disorders), Axis II (Personality Disorders/Mental
Retardation), Axis III (General Medical Conditions), Axis IV (Psychosocial and
Environmental Problems), and Axis V (Global Assessment of Functioning);
b. A description of the child's behavior during the 30 days
immediately prior to admission;
c. A description of alternative placements tried or
explored and the outcomes of each placement;
d. The child's functional level and clinical stability;
e. The level of family support available; and
f. The initial plan of care as defined and specified at
12VAC30-130-890.
I. Denial of service may be appealed by the child
consistent with 12VAC30-110; denial of reimbursement may be appealed by the
provider consistent with the Administrative Process Act (§ 2.2-4000 et seq. of
the Code of Virginia).
J. Continued stay criteria for Levels A and B:
1. The length of the authorized stay shall be determined by
DMAS or its contractor.
2. A current Individual Service Plan (ISP) (plan of care)
and a current (within 30 days) summary of progress related to the goals and
objectives on the ISP (plan of care) must be submitted for continuation of the
service.
3. For reauthorization to occur, the desired outcome or
level of functioning has not been restored or improved, over the time frame
outlined in the child's ISP (plan of care) or the child continues to be at risk
for relapse based on history or the tenuous nature of the functional gains and
use of less intensive services will not achieve stabilization. Any one of the
following must apply:
a. The child has achieved initial service plan (plan of
care) goals but additional goals are indicated that cannot be met at a lower
level of care.
b. The child is making satisfactory progress toward meeting
goals but has not attained ISP goals, and the goals cannot be addressed at a
lower level of care.
c. The child is not making progress, and the service plan
(plan of care) has been modified to identify more effective interventions.
d. There are current indications that the child requires
this level of treatment to maintain level of functioning as evidenced by
failure to achieve goals identified for therapeutic visits or stays in a
nontreatment residential setting or in a lower level of residential treatment.
K. Discharge criteria for Levels A and B.
1. Reimbursement shall not be made for this level of care
if either of the following applies:
a. The level of functioning has improved with respect to
the goals outlined in the service plan (plan of care) and the child can
reasonably be expected to maintain these gains at a lower level of treatment;
or
b. The child no longer benefits from service as evidenced
by absence of progress toward service plan goals for a period of 60 days.
12VAC30-130-880. Provider qualifications. (Repealed.)
A. Providers must provide all Residential Treatment
Services (Level C) as defined within this part and set forth in 42 CFR Part 441
Subpart D.
B. Providers of Residential Treatment Services (Level C)
must be:
1. A residential treatment program for children and
adolescents licensed by DMHMRSAS that is located in a psychiatric hospital
accredited by the Joint Commission on Accreditation of Healthcare
Organizations;
2. A residential treatment program for children and
adolescents licensed by DMHMRSAS that is located in a psychiatric unit of an
acute general hospital accredited by the Joint Commission on Accreditation of
Healthcare Organizations; or
3. A psychiatric facility that is (i) accredited by the
Joint Commission on Accreditation of Healthcare Organizations, the Commission
on Accreditation of Rehabilitation Facilities, the Council on Quality and
Leadership in Supports for People with Disabilities, or the Council on
Accreditation of Services for Families and Children and (ii) licensed by
DMHMRSAS as a residential treatment program for children and adolescents.
C. Providers of Community-Based Services for Children and
Adolescents under 21 (Level A) must be licensed by the Department of Social
Services, Department of Juvenile Justice, or Department of Education under the
Standards for Interdepartmental Regulation of Children's Residential Facilities
(22VAC42-10).
D. Providers of Therapeutic Behavioral Services (Level B)
must be licensed by the Department of Mental Health, Mental Retardation, and
Substance Abuse Services (DMHMRSAS) under the Standards for Interdepartmental
Regulation of Children's Residential Facilities (22VAC42-10).
12VAC30-130-890. Plans of care; review of plans of care.
(Repealed.)
A. All Medicaid services are subject to utilization review
and audit. The absence of any required documentation may result in denial or
retraction of any reimbursement.
B. For Residential Treatment Services (Level C) (RTS-Level
C), an initial plan of care must be completed at admission and a Comprehensive
Individual Plan of Care (CIPOC) must be completed no later than 14 days after
admission.
C. Initial plan of care
(Level C) must include:
1. Diagnoses, symptoms, complaints, and complications
indicating the need for admission;
2. A description of the functional level of the individual;
3. Treatment objectives with short-term and long-term
goals;
4. Any orders for medications, treatments, restorative and
rehabilitative services, activities, therapies, social services, diet, and
special procedures recommended for the health and safety of the individual and
a list of services provided under arrangement (see 12VAC30-50-130 for eligible
services provided under arrangement) that will be furnished to the individual
through the RTC-Level C's referral to an employed or a contracted provider of
services under arrangement, including the prescribed frequency of treatment and
the circumstances under which such treatment shall be sought;
5. Plans for continuing care, including review and
modification to the plan of care;
6. Plans for discharge; and
7. Signature and date by the physician.
D. The CIPOC for Level C
must meet all of the following criteria:
1. Be based on a diagnostic evaluation that includes
examination of the medical, psychological, social, behavioral, and
developmental aspects of the individual's situation and must reflect the need
for inpatient psychiatric care;
2. Be developed by an interdisciplinary team of physicians
and other personnel specified under subsection G of this section, who are
employed by, or provide services to, patients in the facility in consultation
with the individual and his parents, legal guardians, or appropriate others in
whose care he will be released after discharge;
3. State treatment objectives that must include measurable
short-term and long-term goals and objectives, with target dates for
achievement;
4. Prescribe an integrated program of therapies,
activities, and experiences designed to meet the treatment objectives related
to the diagnosis;
5. Include a list of services provided under arrangement
(described in 12VAC30-50-130) that will be furnished to the individual through
referral to an employee or a contracted provider of services under arrangement,
including the prescribed frequency of treatment and the circumstances under
which such treatment shall be sought; and
6. Describe comprehensive discharge plans and coordination
of inpatient services and post-discharge plans with related community services
to ensure continuity of care upon discharge with the individual's family,
school, and community.
E. Review of the CIPOC for Level C. The CIPOC must be
reviewed every 30 days by the team specified in subsection G of this section
to:
1. Determine that services being provided are or were
required on an inpatient basis; and
2. Recommend changes in the plan as indicated by the
individual's overall adjustment as an inpatient.
F. The development and review of the plan of care for
Level C as specified in this section satisfies the facility's utilization
control requirements for recertification and establishment and periodic review
of the plan of care, as required in 42 CFR 456.160 and 456.180.
G. Team developing the CIPOC for Level C. The following
requirements must be met:
1. At least one member of the team must have expertise in
pediatric mental health. Based on education and experience, preferably
including competence in child psychiatry, the team must be capable of all of
the following:
a. Assessing the individual's immediate and long-range
therapeutic needs, developmental priorities, and personal strengths and liabilities;
b. Assessing the potential resources of the individual's
family;
c. Setting treatment objectives; and
d. Prescribing therapeutic modalities to achieve the plan's
objectives.
2. The team must include, at a minimum, either:
a. A board-eligible or board-certified psychiatrist;
b. A clinical psychologist who has a doctoral degree and a
physician licensed to practice medicine or osteopathy; or
c. A physician licensed to practice medicine or osteopathy
with specialized training and experience in the diagnosis and treatment of
mental diseases, and a psychologist who has a master's degree in clinical
psychology or who has been certified by the state or by the state psychological
association.
3. The team must also include one of the following:
a. A psychiatric social worker;
b. A registered nurse with specialized training or one
year's experience in treating mentally ill individuals;
c. An occupational therapist who is licensed, if required
by the state, and who has specialized training or one year of experience in
treating mentally ill individuals; or
d. A psychologist who has a master's degree in clinical
psychology or who has been certified by the state or by the state psychological
association.
H. The RTC-Level C shall not receive a per diem
reimbursement for any day that:
1. The initial or comprehensive written plan of care fails
to include within three business days of the initiation of the service provided
under arrangement:
a. The prescribed frequency of treatment of such service,
or includes a frequency that was exceeded; or
b. All services that the individual needs while residing at
the RTC-Level C and that will be furnished to the individual through the
RTC-Level C referral to an employed or contracted provider of services under
arrangement;
2. The initial or comprehensive written plan of care fails
to list the circumstances under which the service provided under arrangement
shall be sought;
3. The referral to the service provided under arrangement
was not present in the individual's RTC-Level C record;
4. The service provided under arrangement was not supported
in that provider's records by a documented referral from the RTC-Level C;
5. The medical records from the provider of services under
arrangement (i.e., admission and discharge documents, treatment plans, progress
notes, treatment summaries, and documentation of medical results and findings)
(i) were not present in the individual's RTC-Level C record or had not been
requested in writing by the RTC-Level C within seven days of discharge from or
completion of the service or services provided under arrangement or (ii) had
been requested in writing within seven days of discharge from or completion of
the service or services provided under arrangement, but not received within 30
days of the request, and not re-requested;
6. The RTC-Level C did not have a fully executed contract
or employee relationship with an independent provider of services under
arrangement in advance of the provision of such services. For emergency
services, the RTC-Level C shall have a fully executed contract with the
emergency services provider prior to submission of the emergency service
provider's claim for payment;
7. A physician's order for the service under arrangement is
not present in the record; or
8. The service under arrangement is not included in the
individual's CIPOC within 30 calendar days of the physician's order.
I. The provider of services under arrangement shall be
required to reimburse DMAS for the cost of any such service provided under arrangement
that was (i) furnished prior to receiving a referral or (ii) in excess of the
amounts in the referral. Providers of services under arrangement shall be
required to reimburse DMAS for the cost of any such services provided under
arrangement that were rendered in the absence of an employment or contractual
relationship.
J. For therapeutic behavioral services for children and
adolescents under 21 (Level B), the initial plan of care must be completed at
admission by the licensed mental health professional (LMHP) and a CIPOC must be
completed by the LMHP no later than 30 days after admission. The assessment
must be signed and dated by the LMHP.
K. For community-based services for children and
adolescents under 21 (Level A), the initial plan of care must be completed at
admission by the QMHP and a CIPOC must be completed by the QMHP no later than
30 days after admission. The individualized plan of care must be signed and
dated by the program director.
L. Initial plan of care for Levels A and B must include:
1. Diagnoses, symptoms, complaints, and complications
indicating the need for admission;
2. A description of the functional level of the individual;
3. Treatment objectives with short-term and long-term
goals;
4. Any orders for medications, treatments, restorative and
rehabilitative services, activities, therapies, social services, diet, and
special procedures recommended for the health and safety of the patient;
5. Plans for continuing care, including review and
modification to the plan of care; and
6. Plans for discharge.
M. The CIPOC for Levels A and B must meet all of the
following criteria:
1. Be based on a diagnostic evaluation that includes
examination of the medical, psychological, social, behavioral, and
developmental aspects of the individual's situation and must reflect the need
for residential psychiatric care;
2. The CIPOC for both levels must be based on input from
school, home, other health care providers, the individual and family (or legal
guardian);
3. State treatment objectives that include measurable
short-term and long-term goals and objectives, with target dates for
achievement;
4. Prescribe an integrated program of therapies,
activities, and experiences designed to meet the treatment objectives related
to the diagnosis; and
5. Describe comprehensive discharge plans with related
community services to ensure continuity of care upon discharge with the
individual's family, school, and community.
N. Review of the CIPOC for Levels A and B. The CIPOC must
be reviewed, signed, and dated every 30 days by the QMHP for Level A and by the
LMHP for Level B. The review must include:
1. The response to services provided;
2. Recommended changes in the plan as indicated by the
individual's overall response to the plan of care interventions; and
3. Determinations regarding whether the services being
provided continue to be required.
Updates must be signed and dated by the service provider.
VA.R. Doc. No. R17-4495; Filed July 3, 2019, 8:58 a.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation
Titles of Regulations: 12VAC30-10. State Plan under
Title XIX of the Social Security Act Medical Assistance Program; General Provisions (amending 12VAC30-10-540).
12VAC30-50. Amount, Duration, and Scope of Medical and
Remedial Care Services (amending 12VAC30-50-20, 12VAC30-50-30,
12VAC30-50-60, 12VAC30-50-70, 12VAC30-50-130, 12VAC30-50-226).
12VAC30-60. Standards Established and Methods Used to Assure
High Quality Care (amending 12VAC30-60-5, 12VAC30-60-50,
12VAC30-60-61).
12VAC30-130. Amount, Duration and Scope of Selected Services (repealing 12VAC30-130-850 through
12VAC30-130-890).
Statutory Authority: § 32.1-325 of the Code of
Virginia, 42 USC § 1396 et seq.
Effective Date: August 22, 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.
Summary:
The regulatory action implements Items 301 OO and 301 PP of
Chapter 665 of the 2015 Acts of Assembly, which required the department to
develop and implement a care coordination model and make programmatic changes
in the provision of residential treatment for children. The action replaces
emergency regulations published in 33:13 VA.R. 1436-1469 February 20,
2017, and extended in 35:9 VA.R. 1130 December 24, 2018.
The amendments clarify policy interpretations and revise
program standards to allow for more evidence-based service delivery, allow the
department to implement more effective utilization management in collaboration
with the behavioral health service administrator, enhance individualized
coordination of care, implement standardized coordination of individualized
aftercare resources by ensuring access to medical and behavioral health service
providers in the individual's home community, and support department audit
practices. The action meets the requirements set forth by the Centers for
Medicare and Medicaid Services (CMS) in 42 CFR 441 Subpart D and 42 CFR
441.453.
The amendments include changes to the following areas: (i)
provider qualifications, including acceptable licensing standards; (ii)
preadmission assessment requirements; (iii) program requirements; (iv)
discharge planning and care coordination requirements; and (v) utilization
review requirements to clarify program requirements, ensure adequate
documentation of service delivery, and help providers avoid payment
retractions.
The action requires enhanced care coordination to provide
the necessary objective evaluations of treatment progress and to facilitate
evidence-based practices during the treatment to reduce the length of stay by
ensuring that medical necessity indicates the correct level of care, that
appropriate and effective care is delivered in a person centered manner, and
that service providers and local systems use standardized preadmission and
discharge processes to ensure effective services are delivered. The final
regulatory text is the same as the proposed regulatory text.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
12VAC30-10-540. Inspection of care in intermediate care
facilities for the mentally retarded persons with intellectual and
developmental disabilities, facilities providing inpatient psychiatric
services for individuals under younger than 21 years of age,
and mental hospitals.
All applicable requirements of 42 CFR 456, Subpart I,
are met with respect to periodic inspections of care and services.*
Inpatient psychiatric services for individuals under age
21 are not provided under this plan.
*Inspection of Care (IOC) in Intermediate Care Facilities
for the Mentally Retarded and Institutions for Mental Diseases are Inspection
of care in intermediate care facilities for persons with intellectual and
developmental disabilities is completed through contractual arrangements
with the Virginia Department of Health.
12VAC30-50-20. Services provided to the categorically needy
without limitation.
The following services as described in Part III
(12VAC30-50-100 et seq.) of this chapter are provided to the categorically
needy without limitation:
1. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
2. Services for individuals age 65 years of age
or over older in institutions for mental diseases: inpatient
hospital services; skilled nursing facility services; and services in an
intermediate care facility.
3. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined, in
accordance with § 1902(a)(31)(A) of the Social Security Act (the
Act), to be in need of such care, including such services in a public
institution (or distinct part thereof) for the mentally retarded or
persons with intellectual or developmental disability or related
conditions.
4. Hospice care (in accordance with § 1905(o) of the Act).
5. Any other medical care and any type of remedial care
recognized under state law, specified by the U.S. Secretary of Health
and Human Services: care and services provided in religious nonmedical
health care institutions;, nursing facility services for patients
under younger than 21 years of age;, or
emergency hospital services.
6. Private health insurance premiums, coinsurance, and
deductibles when cost effective (pursuant to Pub. L. P.L. No.
101-508 § 4402).
7. Program of All-Inclusive Care for the Elderly (PACE)
services are provided for eligible individuals as an optional State Plan
service for categorically needy individuals without limitation.
8. Pursuant to Pub. L. P.L. No. 111-148 § 4107,
counseling and pharmacotherapy for cessation of tobacco use by pregnant women
shall be covered.
a. Counseling and pharmacotherapy for cessation of tobacco use
by pregnant women means diagnostic, therapy, and counseling services and
pharmacotherapy (including the coverage of prescription and nonprescription
tobacco cessation agents approved by the U.S. Food and Drug
Administration) for cessation of tobacco use by pregnant women who use tobacco
products or who are being treated for tobacco use that is furnished (i) by or
under the supervision of a physician, (ii) by any other health care professional
who is legally authorized to provide tobacco cessation services under state law
and is authorized to provide Medicaid coverable services other than tobacco
cessation services, or (iii) by any other health care professional who is
legally authorized to provide tobacco cessation services under state law and
who is specifically designated by the U.S. Secretary of Health and Human
Services in federal regulations for this purpose.
b. No cost sharing shall be applied to these services. In
addition to other services that are covered for pregnant women, 12VAC30-50-510
also provides for other smoking cessation services that are covered for
pregnant women.
9. Inpatient psychiatric facility services and residential
psychiatric treatment services (including therapeutic group homes and
psychiatric residential treatment facilities) for individuals younger than 21
years of age.
12VAC30-50-30. Services not provided to the categorically
needy.
The following services and devices are not provided to the
categorically needy:
1. Chiropractors' Chiropractor services.
2. Private duty nursing services.
3. Dentures.
4. Other diagnostic and preventive services other than those
provided elsewhere in this plan: diagnostic services (see (12VAC30-50-95)
et seq.).
5. Inpatient psychiatric facility services for individuals
under 21 years of age, other than those covered under early and periodic
screening, diagnosis, and treatment (at 12VAC30-50-130). (Reserved.)
6. Special tuberculosis (TB) related services under § 1902(z)(2)(F)
of the Social Security Act (the Act).
7. Respiratory care services (in accordance with § 1920(e)(9)(A)
through (C) of the Act).
8. Ambulatory prenatal care for pregnant women furnished
during a presumptive eligibility period by a qualified provider (in accordance
with § 1920 of the Act).
9. Any other medical care and any type of remedial care
recognized under state law specified by the U.S. Secretary of Health
and Human Services: personal care services in recipient's home, prescribed
in accordance with a plan of treatment and provided by a qualified person under
supervision of a registered nurse.
12VAC30-50-60. Services provided to all medically needy groups
without limitations.
Services as described in Part III (12VAC30-50-100 et seq.) of
this chapter are provided to all medically needy groups without limitations.
1. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
2. Early and periodic screening and diagnosis of individuals under
younger than 21 years of age, and treatment of conditions found.
3. Pursuant to Pub. L. P.L. No. 111-148 § 4107,
counseling and pharmacotherapy for cessation of tobacco use by pregnant women
shall be covered.
a. Counseling and pharmacotherapy for cessation of tobacco use
by pregnant women means diagnostic, therapy, and counseling services and
pharmacotherapy (including the coverage of prescription and nonprescription
tobacco cessation agents approved by the U.S. Food and Drug
Administration) for cessation of tobacco use by pregnant women who use tobacco
products or who are being treated for tobacco use that is furnished (i) by or
under the supervision of a physician, (ii) by any other health care
professional who is legally authorized to provide tobacco cessation services
under state law and is authorized to provide Medicaid coverable services other
than tobacco cessation services, or (iii) by any other health care professional
who is legally authorized to provide tobacco cessation services under state law
and who is specifically designated by the U.S. Secretary of Health and Human
Services in federal regulations for this purpose.
b. No cost sharing shall be applied to these services. In
addition to other services that are covered for pregnant women, 12VAC30-50-510
also provides for other smoking cessation services that are covered for
pregnant women.
4. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined in
accordance with § 1905(a)(4)(A) of the Social Security Act (the
Act) to be in need of such care.
5. Hospice care (in accordance with § 1905(o) of the
Act).
6. Any other medical care or any other type of remedial care
recognized under state law, specified by the secretary U.S. Secretary
of Health and Human Services, including: care and services provided in
religious nonmedical health care institutions;, skilled nursing
facility services for patients under younger than 21 years of age;,
and emergency hospital services.
7. Private health insurance premiums, coinsurance and
deductibles when cost effective (pursuant to Pub. L. P.L. No.
101-508 § 4402).
8. Program of All-Inclusive Care for the Elderly (PACE)
services are provided for eligible individuals as an optional State Plan service
for medically needy individuals without limitation.
9. Inpatient psychiatric facility services and residential
psychiatric treatment services (including therapeutic group homes and
psychiatric residential treatment facilities) for individuals younger than 21
years of age.
12VAC30-50-70. Services or devices not provided to the
medically needy.
1. Chiropractors' Chiropractor services.
2. Private duty nursing services.
3. Dentures.
4. Diagnostic or preventive services other than those provided
elsewhere in the State Plan.
5. Inpatient hospital services, skilled nursing facility
services, and intermediate care facility services for individuals age 65
years of age or older in institutions for mental disease(s) diseases.
6. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined in
accordance with § 1905(a)(4)(A) of the Social Security Act (the Act),
to be in need of such care in a public institution, or a distinct part thereof,
for the mentally retarded or persons with intellectual or
developmental disability or related conditions.
7. Inpatient psychiatric facility services for individuals
under 21 years of age, other than those covered under early and periodic
screening, diagnosis, and treatment (at 12VAC30-50-130). (Reserved.)
8. Special tuberculosis (TB) services under §
1902(z)(2)(F) of the Act.
9. Respiratory care services (in accordance with § 1920(e)(9)(A)
through (C) of the Act).
10. Ambulatory prenatal care for pregnant women furnished
during a presumptive eligibility period by a qualified provider (in accordance
with § 1920 of the Act).
11. Personal care services in a recipient's home, prescribed
in accordance with a plan of treatment and provided by a qualified person under
supervision of a registered nurse.
12. Home and community care for functionally disabled elderly
individuals, as defined, described and limited in 12VAC30-50-460 and
12VAC30-50-470.
13. Personal care services furnished to an individual who is
not an inpatient or resident of a hospital, nursing facility, intermediate care
facility for the mentally retarded intellectually or developmentally
disabled persons, or institution for mental disease that are (i) authorized
for the individual by a physician in accordance with a plan of treatment, (ii)
provided by an individual who is qualified to provide such services and who is
not a member of the individual's family, and (iii) furnished in a home.
12VAC30-50-130. Nursing facility services, EPSDT, including
school health services, and family planning.
A. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
Service must be ordered or prescribed and directed or
performed within the scope of a license of the practitioner of the healing
arts.
B. Early General provisions for early and
periodic screening and, diagnosis, and treatment (EPSDT)
of individuals younger than 21 years of age, and treatment of conditions
found.
1. Payment of medical assistance services shall be made on
behalf of individuals younger than 21 years of age, who are Medicaid
eligible, for medically necessary stays in acute care facilities,
and the accompanying attendant physician care, in excess of 21 days per
admission when such services are rendered for the purpose of diagnosis and
treatment of health conditions identified through a physical examination.
2. Routine physicals and immunizations (except as provided
through EPSDT) are not covered except that well-child examinations in a private
physician's office are covered for foster children of the local departments
of social services departments on specific referral from those
departments.
3. Orthoptics services shall only be reimbursed if medically
necessary to correct a visual defect identified by an EPSDT examination or
evaluation. The department DMAS shall place appropriate
utilization controls upon this service.
4. Consistent with § 6403 of the Omnibus Budget
Reconciliation Act of 1989 § 6403, early and periodic screening, diagnostic,
and treatment services means the following services: screening services, vision
services, dental services, hearing services, and such other necessary health
care, diagnostic services, treatment, and other measures described in Social
Security Act § 1905(a) to correct or ameliorate defects and physical and
mental illnesses and conditions discovered by the screening services and that
are medically necessary, whether or not such services are covered under the
State Plan and notwithstanding the limitations, applicable to recipients ages
21 years of age and older, provided for by § 1905(a) of the Social
Security Act.
5. C. Community mental health services provided
through early and periodic screening diagnosis and treatment (EPSDT) for
individuals younger than 21 years of age. These services in order to be
covered (i) shall meet medical necessity criteria based upon diagnoses made by
LMHPs who are practicing within the scope of their licenses and (ii) are
shall be reflected in provider records and on providers' provider
claims for services by recognized diagnosis codes that support and are
consistent with the requested professional services.
a. 1. Definitions. The following words and terms
when used in this section shall have the following meanings unless the context
clearly indicates otherwise:
"Activities of daily living" means personal care
activities and includes bathing, dressing, transferring, toileting, feeding,
and eating.
"Adolescent or child" means the individual
receiving the services described in this section. For the purpose of the use of
these terms this term, adolescent means an individual 12 through
20 years of age; a child means an individual from birth up to 12 years of
age.
"Behavioral health service" means the same as
defined in 12VAC30-130-5160.
"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS.
"Care coordination" means the collaboration
and sharing of information among health care providers, who are involved
with an individual's health care, to improve the care.
"Caregiver" means the same as defined
in 12VAC30-130-5160.
"Certified prescreener" means an employee of the
local community services board or behavioral health authority, or its designee,
who is skilled in the assessment and treatment of mental illness and has
completed a certification program approved by the Department of Behavioral
Health and Developmental Services.
"Clinical experience" means providing direct
behavioral health services on a full-time basis or equivalent hours of
part-time work to children and adolescents who have diagnoses of mental illness
and includes supervised internships, supervised practicums, and supervised
field experience for the purpose of Medicaid reimbursement of (i) intensive
in-home services, (ii) day treatment for children and adolescents, (iii)
community-based residential services for children and adolescents who are
younger than 21 years of age (Level A), or (iv) therapeutic behavioral services
(Level B). Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be as
established by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.
"Child" means an individual ages birth through 11
years.
"DBHDS" means the Department of Behavioral Health
and Developmental Services.
"Direct supervisor" means the person who provides
direct supervision to the peer recovery specialist. The direct supervisor (i)
shall have two consecutive years of documented practical experience rendering
peer support services or family support services, have certification training
as a PRS under a certifying body approved by DBHDS, and have documented
completion of the DBHDS PRS supervisor training; (ii) shall be a qualified
mental health professional (QMHP-A, QMHP-C, or QMHP-E) as defined in 12VAC35-105-20
with at least two consecutive years of documented experience as a QMHP, and who
has documented completion of the DBHDS PRS supervisor training; or (iii) shall
be an LMHP who has documented completion of the DBHDS PRS supervisor training
who is acting within his scope of practice under state law. An LMHP providing
services before April 1, 2018, shall have until April 1, 2018, to complete the
DBHDS PRS supervisor training.
"DMAS" means the Department of Medical Assistance
Services and its contractors.
"EPSDT" means early and periodic screening,
diagnosis, and treatment.
"Family support partners" means the same as defined
in 12VAC30-130-5170.
"Human services field" means the same as the term is
defined by DBHDS the Department of Health Professions in the
document entitled Human Services and Related Fields Approved
Degrees/Experience, issued March 12, 2013, revised May 3, 2013 Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted
November 3, 2017, revised February 9, 2018.
"Individual service plan" or "ISP" means
the same as the term is defined in 12VAC30-50-226.
"Licensed mental health professional" or
"LMHP" means the same as defined in 12VAC35-105-20.
"LMHP-resident" or "LMHP-R" means the same
as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of
Counseling. For purposes of Medicaid reimbursement to their supervisors for
services provided by such residents, they shall use the title
"Resident" in connection with the applicable profession after their signatures
to indicate such status.
"LMHP-resident in psychology" or "LMHP-RP"
means the same as an individual in a residency, as that term is defined in
18VAC125-20-10, program for clinical psychologists. An LMHP-resident in
psychology shall be in continuous compliance with the regulatory requirements
for supervised experience as found in 18VAC125-20-65 and shall not perform the
functions of the LMHP-RP or be considered a "resident" until the
supervision for specific clinical duties at a specific site has been
preapproved in writing by the Virginia Board of Psychology. For purposes of
Medicaid reimbursement by supervisors for services provided by such residents,
they shall use the title "Resident in Psychology" after their
signatures to indicate such status.
"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" as defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be
considered a "supervisee" until the supervision for specific clinical
duties at a specific site is preapproved in writing by the Virginia Board of
Social Work. For purposes of Medicaid reimbursement to their supervisors for
services provided by supervisees, these persons shall use the title
"Supervisee in Social Work" after their signatures to indicate such
status.
"Peer recovery specialist" or "PRS" means
the same as defined in 12VAC30-130-5160.
"Person centered" means the same as defined in
12VAC30-130-5160.
"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized and member-specific progress notes are part of the
minimum documentation requirements and shall convey the individual's status,
staff interventions, and, as appropriate, the individual's progress, or lack of
progress, toward goals and objectives in the ISP. The progress notes shall also
include, at a minimum, the name of the service rendered, the date of the
service rendered, the signature and credentials of the person who rendered the
service, the setting in which the service was rendered, and the amount of time
or units/hours required to deliver the service. The content of each progress
note shall corroborate the time/units billed. Progress notes shall be
documented for each service that is billed.
"Psychoeducation" means (i) a specific form of
education aimed at helping individuals who have mental illness and their family
members or caregivers to access clear and concise information about mental
illness and (ii) a way of accessing and learning strategies to deal with mental
illness and its effects in order to design effective treatment plans and
strategies.
"Psychoeducational activities" means systematic
interventions based on supportive and cognitive behavior therapy that
emphasizes an individual's and his family's needs and focuses on increasing the
individual's and family's knowledge about mental disorders, adjusting to mental
illness, communicating and facilitating problem solving and increasing coping
skills.
"Qualified mental health professional-child" or
"QMHP-C" means the same as the term is defined in 12VAC35-105-20.
"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-590 including a
"QMHP-trainee" as defined by the Department of Health Professions.
"Qualified paraprofessional in mental health" or
"QPPMH" means the same as the term is defined in
12VAC35-105-20 and consistent with the requirements of 12VAC35-105-1370.
"Recovery-oriented services" means the same as
defined in 12VAC30-130-5160.
"Recovery, resiliency, and wellness plan" means the
same as defined in 12VAC30-130-5160.
"Resiliency" means the same as defined in
12VAC30-130-5160.
"Self-advocacy" means the same as defined in
12VAC30-130-5160.
"Service-specific provider intake" means the
face-to-face interaction in which the provider obtains information from the
child or adolescent, and parent or other family member as appropriate, about
the child's or adolescent's mental health status. It includes documented
history of the severity, intensity, and duration of mental health care problems
and issues and shall contain all of the following elements: (i) the presenting issue/reason
issue or reason for referral, (ii) mental health
history/hospitalizations, (iii) previous interventions by providers and
timeframes and response to treatment, (iv) medical profile, (v) developmental
history including history of abuse, if appropriate, (vi) educational/vocational
educational or vocational status, (vii) current living situation and
family history and relationships, (viii) legal status, (ix) drug and alcohol
profile, (x) resources and strengths, (xi) mental status exam and profile,
(xii) diagnosis, (xiii) professional summary and clinical formulation, (xiv)
recommended care and treatment goals, and (xv) the dated signature of the LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.
"Services provided under arrangement" means the
same as defined in 12VAC30-130-850.
"Strength-based" means the same as defined in
12VAC30-130-5160.
"Supervision" means the same as defined in
12VAC30-130-5160.
b. 2. Intensive in-home services (IIH) to
children and adolescents younger than 21 years of age shall be time-limited
interventions provided in the individual's residence and when clinically
necessary in community settings. All interventions and the settings of the
intervention shall be defined in the Individual Service Plan. All IIH services
shall be designed to specifically improve family dynamics, and
provide modeling, and the clinically necessary interventions that
increase functional and therapeutic interpersonal relations between family
members in the home. IIH services are designed to promote psychoeducational
benefits of psychoeducation in the home setting of an individual who is
at risk of being moved into an out-of-home placement or who is being
transitioned to home from an out-of-home placement due to a documented medical
need of the individual. These services provide crisis treatment; individual and
family counseling; communication skills (e.g., counseling to assist the
individual and his the individual's parents or guardians, as
appropriate, to understand and practice appropriate problem solving, anger
management, and interpersonal interaction, etc.); care coordination with other
required services; and 24-hour emergency response.
(1) a. Service authorization shall be required
for Medicaid reimbursement prior to the onset of services. Services rendered
before the date of authorization shall not be reimbursed.
(2) b. Service-specific provider intakes shall
be required prior to the start of services at the onset of services and
ISPs shall be required during the entire duration of services. Services based
upon incomplete, missing, or outdated service-specific provider intakes or ISPs
shall be denied reimbursement. Requirements for service-specific provider
intakes and ISPs are set out in this section.
(3) c. These services may shall
only be rendered by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C,
or a QMHP-E.
c. 3. Therapeutic day treatment (TDT) shall be
provided two or more hours per day in order to provide therapeutic
interventions (a unit is defined in 12VAC30-60-61 D 11). Day treatment
programs provide evaluation; medication education and management; opportunities
to learn and use daily living skills and to enhance social and interpersonal
skills (e.g., problem solving, anger management, community responsibility,
increased impulse control, and appropriate peer relations, etc.); and
individual, group, and family counseling.
(1) a. Service authorization shall be required
for Medicaid reimbursement.
(2) b. Service-specific provider intakes shall be
required at prior to the onset start of services,
and ISPs shall be required during the entire duration of services. Services
based upon incomplete, missing, or outdated service-specific provider intakes
or ISPs shall be denied reimbursement. Requirements for service-specific
provider intakes and ISPs are set out in this section.
(3) c. These services may shall be
rendered only by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or
a QMHP-E.
d. Community-based services for children and adolescents
younger than 21 years of age (Level A) pursuant to 42 CFR 440.031(d).
(1) Such services shall be a combination of therapeutic
services rendered in a residential setting. The residential services will
provide structure for daily activities, psychoeducation, therapeutic
supervision, care coordination, and psychiatric treatment to ensure the
attainment of therapeutic mental health goals as identified in the individual
service plan (plan of care). Individuals qualifying for this service must
demonstrate medical necessity for the service arising from a condition due to
mental, behavioral or emotional illness that results in significant functional
impairments in major life activities in the home, school, at work, or in the
community. The service must reasonably be expected to improve the child's
condition or prevent regression so that the services will no longer be needed.
The application of a national standardized set of medical necessity criteria in
use in the industry, such as McKesson InterQual® Criteria or an
equivalent standard authorized in advance by DMAS, shall be required for this
service.
(2) In addition to the residential services, the child must
receive, at least weekly, individual psychotherapy that is provided by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.
(3) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.
(4) Authorization shall be required for Medicaid
reimbursement. Services that were rendered before the date of service authorization
shall not be reimbursed.
(5) Room and board costs shall not be reimbursed. DMAS
shall reimburse only for services provided in facilities or programs with no
more than 16 beds.
(6) These residential providers must be licensed by the
Department of Social Services, Department of Juvenile Justice, or Department of
Behavioral Health and Developmental Services under the Standards for Licensed
Children's Residential Facilities (22VAC40-151), Regulation Governing Juvenile
Group Homes and Halfway Houses (6VAC35-41), or Regulations for Children's
Residential Facilities (12VAC35-46).
(7) Daily progress notes shall document a minimum of seven
psychoeducational activities per week. Psychoeducational programming must
include development or maintenance of daily living skills, anger management,
social skills, family living skills, communication skills, stress management,
and any care coordination activities.
(8) The facility/group home must coordinate services with
other providers. Such care coordination shall be documented in the individual's
medical record. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.
(9) Service-specific provider intakes shall be required at
the onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
intakes and ISPs are set out in 12VAC30-60-61.
(10) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.
D. Therapeutic group home services and psychiatric
residential treatment facility (PRTF) services for early and periodic screening
diagnosis and treatment (EPSDT) of individuals younger than 21 years of age.
1. Definitions. The following words and terms when used in
this subsection shall have the following meanings:
"Active treatment" means implementation of an
initial plan of care (IPOC) and comprehensive individual plan of care (CIPOC).
"Assessment" means the face-to-face interaction
by an LMHP, LMHP-R, LMHP-RP, or LMHP-S to obtain information from the child or
adolescent and parent, guardian, or other family member, as appropriate, utilizing
a tool or series of tools to provide a comprehensive evaluation and review of
the child's or adolescent's mental health status. The assessment shall include
a documented history of the severity, intensity, and duration of mental health
problems and behavioral and emotional issues.
"Certificate of need" or "CON" means a
written statement by an independent certification team that services in a
therapeutic group home or PRTF are or were needed.
"Combined treatment services" means a structured,
therapeutic milieu and planned interventions that promote (i) the development
or restoration of adaptive functioning, self-care, and social skills; (ii)
community integrated activities and community living skills that each
individual requires to live in less restrictive environments; (iii) behavioral
consultation; (iv) individual and group therapy; (v) skills restoration, the
restoration of coping skills, family living and health awareness, interpersonal
skills, communication skills, and stress management skills; (vi) family
education and family therapy; and (vii) individualized treatment planning.
"Comprehensive individual plan of care" or
"CIPOC" means a person centered plan of care that meets all of the
requirements of this subsection and is specific to the individual's unique
treatment needs and acuity levels as identified in the clinical assessment and
information gathered during the referral process.
"Crisis" means a deteriorating or unstable
situation that produces an acute, heightened emotional, mental, physical,
medical, or behavioral event.
"Crisis management" means immediately provided
activities and interventions designed to rapidly manage a crisis. The
activities and interventions include behavioral health care to provide
immediate assistance to individuals experiencing acute behavioral health
problems that require immediate intervention to stabilize and prevent harm and
higher level of acuity. Activities shall include assessment and short-term
counseling designed to stabilize the individual. Individuals are referred to
long-term services once the crisis has been stabilized.
"Daily supervision" means the supervision
provided in a PRTF through a resident-to-staff ratio approved by the Office of
Licensure at the Department of Behavioral Health and Developmental Services
with documented supervision checks every 15 minutes throughout a 24-hour
period.
"Discharge planning" means family and
locality-based care coordination that begins upon admission to a PRTF or
therapeutic group home with the goal of transitioning the individual out of the
PRTF or therapeutic group home to a less restrictive care setting with
continued, clinically-appropriate, and possibly intensive, services as soon as
possible upon discharge. Discharge plans shall be recommended by the treating physician,
psychiatrist, or treating LMHP responsible for the overall supervision of the
plan of care and shall be approved by the DMAS contractor.
"DSM-5" means the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition, copyright 2013, American Psychiatric
Association.
"Emergency admissions" means those admissions
that are made when, pending a review for the certificate of need, it appears
that the individual is in need of an immediate admission to a therapeutic group
home or PRTF and likely does not meet the medical necessity criteria to receive
crisis intervention, crisis stabilization, or acute psychiatric inpatient
services.
"Emergency services" means unscheduled and
sometimes scheduled crisis intervention, stabilization, acute psychiatric inpatient
services, and referral assistance provided over the telephone or face-to-face
if indicated, and available 24 hours a day, seven days per week.
"Family engagement" means a family-centered and
strengths-based approach to partnering with families in making decisions,
setting goals, achieving desired outcomes, and promoting safety, permanency,
and well-being for children, adolescents, and families. Family engagement
requires ongoing opportunities for an individual to build and maintain
meaningful relationships with family members, for example, frequent,
unscheduled, and noncontingent telephone calls and visits between an individual
and family members. Family engagement may also include enhancing or
facilitating the development of the individual's relationship with other family
members and supportive adults responsible for the individual's care and
well-being upon discharge.
"Family engagement activity" means an
intervention consisting of family psychoeducational training or coaching,
transition planning with the family, family and independent living skills, and
training on accessing community supports as identified in the plan of care.
Family engagement activity does not include and is not the same as family
therapy.
"Family therapy" means counseling services
involving the individual's family and significant others to advance the
treatment goals when (i) the counseling with the family member and significant
others is for the direct benefit of the individual, (ii) the counseling is not
aimed at addressing treatment needs of the individual's family or significant
others, and (iii) the individual is present except when it is clinically
appropriate for the individual to be absent in order to advance the
individual's treatment goals. Family therapy shall be aligned with the goals of
the individual's plan of care. All family therapy services furnished are for
the direct benefit of the individual, in accordance with the individual's needs
and treatment goals identified in the individual's plan of care, and for the
purpose of assisting in the individual's recovery.
"FAPT" means the family assessment and planning
team.
"ICD-10" means International Statistical
Classification of Diseases and Related Health Problems, 10th Revision,
published by the World Health Organization.
"Independent certification team" means a team
that has competence in diagnosis and treatment of mental illness, preferably in
child psychiatry; has knowledge of the individual's situation; and is composed
of at least one physician and one LMHP. The independent certification team
shall be a DMAS-authorized contractor with contractual or employment
relationships with the required team members.
"Individual" means the child or adolescent
younger than 21 years of age who is receiving therapeutic group home or PRTF
services.
"Individual and group therapy" means the
application of principles, standards, and methods of the counseling profession
in (i) conducting assessments and diagnosis for the purpose of establishing
treatment goals and objectives and (ii) planning, implementing, and evaluating
plans of care using treatment interventions to facilitate human development and
to identify and remediate mental, emotional, or behavioral disorders and
associated distresses that interfere with mental health.
"Initial plan of care" or "IPOC" means
a person centered plan of care established at admission that meets all of the
requirements of this subsection and is specific to the individual's unique
treatment needs and acuity levels as identified in the clinical assessment and
information gathered during the referral process.
"Intervention" means scheduled therapeutic
treatment such as individual or group psychoeducation; skills restoration;
structured behavior support and training activities; recreation, art, and music
therapies; community integration activities that promote or assist in the
child's or adolescent's ability to acquire coping and functional or
self-regulating behavior skills; day and overnight passes; and family
engagement activities. Interventions shall not include individual, group, and
family therapy; medical or dental appointments; or physician services,
medication evaluation, or management provided by a licensed clinician or
physician and shall not include school attendance. Interventions shall be provided
in the therapeutic group home or PRTF and, when clinically necessary, in a
community setting or as part of a therapeutic pass. All interventions and
settings of the intervention shall be established in the plan of care.
"Plan of care" means the initial plan of care
(IPOC) and the comprehensive individual plan of care (CIPOC).
"Physician" means an individual licensed to
practice medicine or osteopathic medicine in Virginia, as defined in § 54.1-2900
of the Code of Virginia.
"Psychiatric residential treatment facility" or
"PRTF" means the same as defined in 42 CFR 483.352 and is a 24-hour,
supervised, clinically and medically necessary, out-of-home active treatment
program designed to provide necessary support and address mental health,
behavioral, substance abuse, cognitive, and training needs of an individual
younger than 21 years of age in order to prevent or minimize the need for more
intensive treatment.
"Recertification" means a certification for each
applicant or recipient for whom therapeutic group home or PRTF services are
needed.
"Room and board" means a component of the total
daily cost for placement in a licensed PRTF. Residential room and board costs
are maintenance costs associated with placement in a licensed PRTF and include
a semi-private room, three meals and two snacks per day, and personal care
items. Room and board costs are reimbursed only for PRTF settings.
"Services provided under arrangement" means
services including physician and other health care services that are furnished
to children while they are in a freestanding psychiatric hospital or PRTF that
are billed by the arranged practitioners separately from the freestanding
psychiatric hospital's or PRTF's per diem.
"Skills restoration" means a face-to-face service
to assist individuals in the restoration of lost skills that are necessary to
achieve the goals established in the beneficiary's plan of care. Services
include assisting the individual in restoring self-management, interpersonal,
communication, and problem solving skills through modeling, coaching, and
cueing.
"Therapeutic group home" means a congregate
residential service providing 24-hour supervision in a community-based home
having eight or fewer residents.
"Therapeutic pass" means time at home or
time with family consisting of partial or entire days of time away from the
therapeutic group home or psychiatric residential treatment facility as
clinically indicated in the plan of care and as paired with facility-based and
community-based interventions to promote discharge planning, community
integration, and family engagement activities. Therapeutic passes are not
recreational but are a therapeutic component of the plan of care and are
designed for the direct benefit of the individual.
"Treatment planning" means development of a
person centered plan of care that is specific to the individual's unique
treatment needs and acuity levels.
e. 2. Therapeutic behavioral group
home services (Level B) pursuant to 42 CFR 440.130(d).
(1) Such services must be therapeutic services rendered in
a residential setting. The residential services will provide structure for
daily activities, psychoeducation, therapeutic supervision, care coordination,
and psychiatric treatment to ensure the attainment of therapeutic mental health
goals as identified in the individual service plan (plan of care). Individuals
qualifying for this service must demonstrate medical necessity for the service
arising from a condition due to mental, behavioral or emotional illness that
results in significant functional impairments in major life activities in the
home, school, at work, or in the community. The service must reasonably be
expected to improve the child's condition or prevent regression so that the
services will no longer be needed. The application of a national standardized
set of medical necessity criteria in use in the industry, such as McKesson
InterQual ® Criteria, or an equivalent standard authorized in advance by DMAS
shall be required for this service.
(2) Authorization is required for Medicaid reimbursement.
Services that are rendered before the date of service authorization shall not
be reimbursed.
(3) a. Therapeutic group home services for children
and adolescents younger than 21 years of age shall provide therapeutic services
to restore or maintain appropriate skills necessary to promote prosocial
behavior and healthy living, including skills restoration, family living and
health awareness, interpersonal skills, communication skills, and stress
management skills. Therapeutic services shall also engage families and reflect
family-driven practices that correlate to sustained positive outcomes
post-discharge for youth and their family members. Each component of
therapeutic group home services is provided for the direct benefit of the
individual, in accordance with the individual's needs and treatment goals
identified in the individual's plan of care, and for the purpose of assisting
in the individual's recovery. These services are provided under 42 CFR
440.130(d) in accordance with the rehabilitative services benefit.
b. The plan of care shall include individualized
activities, including a minimum of one intervention per 24-hour period in
addition to individual, group, and family therapies. Daily interventions are
not required when there is documentation to justify clinical or medical reasons
for the individual's deviations from the plan of care. Interventions shall be
documented on a progress note and shall be outlined in and aligned with the
treatment goals and objectives in the IPOC and CIPOC. Any deviation from the
plan of care shall be documented along with a clinical or medical justification
for the deviation.
c. Medical necessity criteria for admission to a
therapeutic group home. The following requirements for severity of need and
intensity and quality of service shall be met to satisfy the medical necessity
criteria for admission.
(1) Severity of need required for admission. All of the
following criteria shall be met to satisfy the criteria for severity of need:
(a) The individual's behavioral health condition can only
be safely and effectively treated in a 24-hour therapeutic milieu with onsite
behavioral health therapy due to significant impairments in home, school, and
community functioning caused by current mental health symptoms consistent with
a DSM-5 diagnosis.
(b) The certificate of need must demonstrate all of the
following: (i) ambulatory care resources (all available modalities of treatment
less restrictive than inpatient treatment) available in the community do not
meet the treatment needs of the individual; (ii) proper treatment of the
individual's psychiatric condition requires services on an inpatient basis
under the direction of a physician; and (iii) the services can reasonably be
expected to improve the individual's condition or prevent further regression so
that the services will no longer be needed.
(c) The state uniform assessment tool shall be completed.
The assessment shall demonstrate at least two areas of moderate impairment in
major life activities. A moderate impairment is defined as a major or
persistent disruption in major life activities. A moderate impairment is
evidenced by, but not limited to (i) frequent conflict in the family setting
such as credible threats of physical harm, where "frequent" means
more than expected for the individual's age and developmental level; (ii)
frequent inability to accept age-appropriate direction and supervision from
caretakers, from family members, at school, or in the home or community; (iii)
severely limited involvement in social support, which means significant
avoidance of appropriate social interaction, deterioration of existing
relationships, or refusal to participate in therapeutic interventions; (iv)
impaired ability to form a trusting relationship with at least one caretaker in
the home, school, or community; (v) limited ability to consider the effect of
one's inappropriate conduct on others; and (vi) interactions consistently
involving conflict, which may include impulsive or abusive behaviors.
(d) Less restrictive community-based services have been
given a fully adequate trial and were unsuccessful or, if not attempted, have
been considered, but in either situation were determined to be unable to meet
the individual's treatment needs and the reasons for that are discussed in the certificate
of need.
(e) The individual's symptoms, or the need for treatment in
a 24 hours a day, seven days a week level of care (LOC), are not primarily due
to any of the following: (i) intellectual disability, developmental disability,
or autistic spectrum disorder; (ii) organic mental disorders, traumatic brain
injury, or other medical condition; or (iii) the individual does not require a
more intensive level of care.
(f) The individual does not require primary medical or
surgical treatment.
(2) Intensity and quality of service necessary for
admission. All of the following criteria shall be met to satisfy the criteria
for intensity and quality of service:
(a) The therapeutic group home service has been prescribed
by a psychiatrist, psychologist, or other LMHP who has documented that a
residential setting is the least restrictive clinically appropriate service
that can meet the specifically identified treatment needs of the individual.
(b) The therapeutic group home is not being used for
clinically inappropriate reasons, including (i) an alternative to incarceration
or preventative detention; (ii) an alternative to a parent's, guardian's, or
agency's capacity to provide a place of residence for the individual; or (iii)
a treatment intervention when other less restrictive alternatives are
available.
(c) The individual's treatment goals are included in the
service specific provider intake and include behaviorally defined objectives
that require and can reasonably be achieved within a therapeutic group home setting.
(d) The therapeutic group home is required to coordinate
with the individual's community resources, including schools and FAPT as
appropriate, with the goal of transitioning the individual out of the program
to a less restrictive care setting for continued, sometimes intensive, services
as soon as possible and appropriate.
(e) The therapeutic group home program must incorporate
nationally established, evidence-based, trauma-informed services and supports
that promote recovery and resiliency.
(f) Discharge planning begins upon admission, with concrete
plans for the individual to transition back into the community beginning within
the first week of admission, with clear action steps and target dates outlined
in the plan of care.
(3) Continued stay criteria. The following criteria shall
be met in order to satisfy the criteria for continued stay:
(a) All of the admission guidelines continue to be met and
continue to be supported by the written clinical documentation.
(b) The individual shall meet one of the following
criteria: (i) the desired outcome or level of functioning has not been restored
or improved in the timeframe outlined in the individual's plan of care or the
individual continues to be at risk for relapse based on history or (ii) the
nature of the functional gains is tenuous and use of less intensive services
will not achieve stabilization.
(c) The individual shall meet one of the following
criteria: (i) the individual has achieved initial CIPOC goals, but additional
goals are indicated that cannot be met at a lower level of care; (ii) the
individual is making satisfactory progress toward meeting goals but has not
attained plan of care goals, and the goals cannot be addressed at a lower level
of care; (iii) the individual is not making progress, and the plan of care has
been modified to identify more effective interventions; or (iv) there are
current indications that the individual requires this level of treatment to
maintain level of functioning as evidenced by failure to achieve goals identified
for therapeutic visits or stays in a nontreatment residential setting or in a
lower level of residential treatment.
(d) There is a written, up-to-date discharge plan that (i)
identifies the custodial parent or custodial caregiver at discharge; (ii) identifies
the school the individual will attend at discharge, if applicable; (iii)
includes individualized education program (IEP) and FAPT recommendations, if
necessary; (iv) outlines the aftercare treatment plan (discharge to another
residential level of care is not an acceptable discharge goal); and (v) lists
barriers to community reintegration and progress made on resolving these
barriers since last review.
(e) The active plan of care includes structure for combined
treatment services and activities to ensure the attainment of therapeutic
mental health goals as identified in the plan of care. Combined treatment
services reinforce and practice skills learned in individual, group, and family
therapy such as community integration skills, coping skills, family living and
health awareness skills, interpersonal skills, and stress management skills.
Combined treatment services may occur in group settings, in one-on-one
interactions, or in the home setting during a therapeutic pass. In addition to
the combined treatment services, the child or adolescent must also receive
psychotherapy services, care coordination, family-based discharge planning, and
locality-based transition activities. The child or adolescent shall receive
intensive family interventions at least twice per month, although it is
recommended that the intensive family interventions be provided at a frequency
of one family therapy session per week. Family involvement begins immediately
upon admission to therapeutic group home. If the minimum requirement cannot be
met, the reasons must be reported, and continued efforts to involve family
members must also be documented. Other family members or supportive adults may
be included as indicated in the plan of care.
(f) Less restrictive treatment options have been considered
but cannot yet meet the individual's treatment needs. There is sufficient
current clinical documentation or evidence to show that therapeutic group home
level of care continues to be the least restrictive level of care that can meet
the individual's mental health treatment needs.
(4) Discharge shall occur if any of the following applies:
(i) the level of functioning has improved with respect to the goals outlined in
the plan of care, and the individual can reasonably be expected to maintain these
gains at a lower level of treatment; (ii) the individual no longer benefits
from service as evidenced by absence of progress toward plan of care goals for
a period of 60 days; or (iii) other less intensive services may achieve
stabilization.
d. The following clinical activities shall be required for
each therapeutic group home resident:
(1) An assessment be performed by an LMHP, LMHP-R, LMHP-RP,
or LMHP-S.
(2) A face-to-face evaluation shall be performed by an
LMHP, LMHP-R, LMHP-RP, or LMHP-S within 30 calendar days prior to admission
with a documented DSM-5 or ICD-10 diagnosis.
(3) A certificate of need shall be completed by an
independent certification team according to the requirements of subdivision D 4
of this section. Recertification shall occur at least every 60 calendar days by
an LMHP, LMHP-R, LMHP-RP, or LMHP-S acting within his scope of practice.
(4) An IPOC that is specific to the individual's unique
treatment needs and acuity levels. The IPOC shall be completed on the day of
admission by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be signed by the
LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual and a family member or
legally authorized representative. The IPOC shall include all of the following:
(a) Individual and family strengths and personal traits
that would facilitate recovery and opportunities to develop motivational
strategies and treatment alliance;
(b) Diagnoses, symptoms, complaints, and complications
indicating the need for admission;
(c) A description of the functional level of the
individual;
(d) Treatment objectives with short-term and long-term
goals;
(e) Orders for medications, psychiatric, medical, dental,
and any special health care needs whether or not provided in the facilities,
treatments, restorative and rehabilitative services, activities, therapies,
therapeutic passes, social services, community integration, diet, and special
procedures recommended for the health and safety of the individual;
(f) Plans for continuing care, including review and
modification to the plan of care; and
(g) Plans for discharge.
(5) A CIPOC shall be completed no later than 14 calendar
days after admission. The CIPOC shall meet all of the following criteria:
(a) Be based on a diagnostic evaluation that includes
examination of the medical, psychological, social, behavioral, and
developmental aspects of the individual's situation and shall reflect the need
for therapeutic group home care;
(b) Be based on input from school, home, other health care
providers, FAPT if necessary, the individual, and the family or legal guardian;
(c) Shall state treatment objectives that include
measurable short-term and long-term goals and objectives, with target dates for
achievement;
(d) Prescribe an integrated program of therapies,
activities, and experiences designed to meet the treatment objectives related
to the diagnosis; and
(e) Include a comprehensive discharge plan with necessary,
clinically appropriate community services to ensure continuity of care upon
discharge with the individual's family, school, and community.
(6) The CIPOC shall be reviewed, signed, and dated every 30
calendar days by the LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual or a
family member or primary caregiver. Updates shall be signed and dated by the
LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual or a family member or
legally authorized representative. The review shall include all of the
following:
(a) The individual's response to the services provided;
(b) Recommended changes in the plan as indicated by the
individual's overall response to the CIPOC interventions; and
(c) Determinations regarding whether the services being
provided continue to be required.
(7) Crisis management, clinical assessment, and
individualized therapy shall be provided to address both behavioral health and
substance use disorder needs as indicated in the plan of care to address
intermittent crises and challenges within the therapeutic group home setting or
community settings as defined in the plan of care and to avoid a higher level
of care.
(8) Care coordination shall be provided with medical,
educational, and other behavioral health providers and other entities involved
in the care and discharge planning for the individual as included in the plan
of care.
(9) Weekly individual therapy shall be provided in the
therapeutic group home, or other settings as appropriate for the individual's
needs, by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, which shall be documented in
progress notes in accordance with the requirements in 12VAC30-60-61.
(10) Weekly (or more frequently if clinically indicated)
group therapy shall be provided by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, which
shall be documented in progress notes in accordance with the requirements in
12VAC30-60-61 and as planned and documented in the plan of care.
(11) Family treatment shall be provided as clinically
indicated, provided by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, and documented in
progress notes in accordance with the requirements in 12VAC30-60-61 and as
planned and documented in the plan of care.
(12) Family engagement activities shall be provided in
addition to family therapy or counseling. Family engagement activities shall be
provided at least weekly as outlined in the plan of care, and daily
communication with the family or legally authorized representative shall be
part of the family engagement strategies in the plan of care. For each
service authorization period when family engagement is not possible, the
therapeutic group home shall identify and document the specific barriers to the
individual's engagement with the individual's family or legally authorized
representatives. The therapeutic group home shall document on a weekly basis
the reasons why family engagement is not occurring as required. The therapeutic
group home shall document alternative family engagement strategies to be used
as part of the interventions in the plan of care and request approval of the
revised plan of care by DMAS. When family engagement is not possible, the
therapeutic group home shall collaborate with DMAS on a weekly basis to develop
individualized family engagement strategies and document the revised strategies
in the plan of care.
(13) Therapeutic passes shall be provided as clinically
indicated in the plan of care and as paired with facility-based and community-based
interventions to promote discharge planning, community integration, and family
engagement activities.
(a) The provider shall document how the family was prepared
for the therapeutic pass to include a review of the plan of care goals and
objectives being addressed by the planned interventions and the safety and
crisis plan in effect during the therapeutic pass.
(b) If a facility staff member does not accompany the
individual on the therapeutic pass and the therapeutic pass exceeds 24 hours,
the provider shall make daily contacts with the family and be available 24
hours per day to address concerns, incidents, or crises that may arise during
the pass.
(c) Contact with the family shall occur within seven
calendar days of the therapeutic pass to discuss the accomplishments and
challenges of the therapeutic pass along with an update on progress toward plan
of care goals and any necessary changes to the plan of care.
(d) Twenty-four therapeutic passes shall be permitted per
individual, per admission, without authorization as approved by the treating
LMHP and documented in the plan of care. Additional therapeutic passes shall
require service authorization. Any unauthorized therapeutic passes shall result
in retraction for those days of service.
(14) Discharge planning shall begin at admission and
continue throughout the individual's stay at the therapeutic group home. The
family or guardian, the community services board (CSB), the family assessment
and planning team (FAPT) case manager, and the DMAS contracted care manager
shall be involved in treatment planning and shall identify the anticipated
needs of the individual and family upon discharge and available services in the
community. Prior to discharge, the therapeutic group home shall submit an active
and viable discharge plan to the DMAS contractor for review. Once the DMAS
contractor approves the discharge plan, the provider shall begin actively
collaborating with the family or legally authorized representative and the
treatment team to identify behavioral health and medical providers and schedule
appointments for service-specific provider intakes as needed. The therapeutic
group home shall request permission from the parent or legally authorized
representative to share treatment information with these providers and shall
share information pursuant to a valid release. The therapeutic group home shall
request information from post-discharge providers to establish that the
planning of pending services and transition planning activities has begun,
shall establish that the individual has been enrolled in school, and shall
provide individualized education program recommendations to the school if
necessary. The therapeutic group home shall inform the DMAS contractor of all
scheduled appointments within 30 calendar days of discharge and shall notify
the DMAS contractor within one business day of the individual's discharge date
from the therapeutic group home.
(15) Room and board costs shall not be reimbursed.
Facilities that only provide independent living services or nonclinical
services that do not meet the requirements of this subsection are not reimbursed
eligible for reimbursement. DMAS shall reimburse only for services
provided in facilities or programs with no more than 16 beds.
(4) These residential (16) Therapeutic group home
services providers must shall be licensed by the Department
of Behavioral Health and Developmental Services (DBHDS) under the Regulations
for Children's Residential Facilities (12VAC35-46).
(5) Daily progress notes shall document that a minimum of
seven psychoeducational activities per week occurs. Psychoeducational
programming must include development or maintenance of daily living skills,
anger management, social skills, family living skills, communication skills,
and stress management. This service may be provided in a program setting or a
community-based group home.
(6) The individual must receive, at least weekly,
individual psychotherapy and, at least weekly, group psychotherapy that is
provided as part of the program.
(7) (17) Individuals shall be discharged from
this service when treatment goals are met or other less intensive
services may achieve stabilization.
(8) Service-specific provider intakes shall be required at
the onset of services and ISPs shall be required during the entire duration of
services. (18) Services that are based upon incomplete, missing, or
outdated service-specific provider intakes or ISPs plans of care
shall be denied reimbursement. Requirements for intakes and ISPs are set out
in 12VAC30-60-61.
(9) These (19) Therapeutic group home services
may only be rendered by and within the scope of practice of an LMHP,
LMHP-supervisee, LMHP-resident,
LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH as defined in 12VAC35-105-20.
(10) (20) The facility/group psychiatric
residential treatment facility or therapeutic group home shall coordinate
necessary services and discharge planning with other providers as
medically and clinically necessary. Documentation of this care coordination
shall be maintained by the facility/group facility or group home
in the individual's record. The documentation shall include who was contacted,
when the contact occurred, and what information was transmitted, and
recommended next steps.
(21) Failure to perform any of the items described in this subsection
shall result in a retraction of the per diem for each day of noncompliance.
3. PRTF services are a 24-hour, supervised, clinically and
medically necessary out-of-home program designed to provide necessary support
and address mental health, behavioral, substance use, cognitive, or other
treatment needs of an individual younger than 21 years of age in order to
prevent or minimize the need for more inpatient treatment. Active treatment and
comprehensive discharge planning shall begin prior to admission. In order to be
covered for individuals younger than 21 years of age, these services shall (i)
meet DMAS-approved psychiatric medical necessity criteria or be approved as an
EPSDT service based upon a diagnosis made by an LMHP, LMHP-R, LMHP-RP, or LMHP-S
who is practicing within the scope of his license and (ii) be reflected in
provider records and on the provider's claims for services by recognized
diagnosis codes that support and are consistent with the requested professional
services.
a. PRTF services shall be covered for the purpose of
diagnosis and treatment of mental health and behavioral disorders when such
services are rendered by a psychiatric facility that is not a hospital and is
accredited by the Joint Commission on Accreditation of Healthcare
Organizations, the Commission on Accreditation of Rehabilitation Facilities,
the Council on Accreditation of Services for Families and Children, or by any
other accrediting organization with comparable standards that is recognized by
the state.
b. Providers of PRTF services shall be licensed by DBHDS.
c. PRTF services are reimbursable only when the treatment
program is fully in compliance with (i) 42 CFR Part 441 Subpart D, specifically
42 CFR 441.151 (a) and (b) and 42 CFR 441.152 through 42 CFR 441.156 and (ii)
the Conditions of Participation in 42 CFR Part 483 Subpart G. Each admission
must be service authorized, and the treatment must meet DMAS requirements for
clinical necessity.
d. The PRTF benefit for individuals younger than 21 years
of age shall include services defined at 42 CFR 440.160 that are provided
under the direction of a physician pursuant to a certification of medical
necessity and plan of care developed by an interdisciplinary team of
professionals and shall involve active treatment designed to achieve the
child's discharge from PRTF services at the earliest possible time. The PRTF
services benefit shall include services provided under arrangement furnished by
Medicaid enrolled providers other than the PRTF, as long as the PRTF (i) arranges
for and oversees the provision of all services, (ii) maintains all medical
records of care furnished to the individual, and (iii) ensures that the
services are furnished under the direction of a physician. Services provided
under arrangement shall be documented by a written referral from the PRTF. For
purposes of pharmacy services, a prescription ordered by an employee or
contractor of the facility who is licensed to prescribe drugs shall be
considered the referral.
e. PRTFs, as defined at 42 CFR 483.352, shall arrange
for, maintain records of, and ensure that physicians order these services: (i)
medical and psychological services, including those furnished by physicians,
licensed mental health professionals, and other licensed or certified health professionals
(i.e., nutritionists, podiatrists, respiratory therapists, and substance abuse
treatment practitioners); (ii) pharmacy services; (iii) outpatient hospital
services; (iv) physical therapy, occupational therapy, and therapy for
individuals with speech, hearing, or language disorders; (v) laboratory and
radiology services; (vi) durable medical equipment; (vii) vision services;
(viii) dental, oral surgery, and orthodontic services; (ix) nonemergency
transportation services; and (x) emergency services.
f. PRTF services shall include assessment and
reassessment; room and board; daily supervision; combined treatment services;
individual, family, and group therapy; care coordination; interventions;
general or special education; medical treatment (including medication,
coordination of necessary medical services, and 24-hour onsite nursing);
specialty services; and discharge planning that meets the medical and clinical
needs of the individual.
g. Medical necessity criteria for admission to a PRTF. The
following requirements for severity of need and intensity and quality of
service shall be met to satisfy the medical necessity criteria for admission:
(1) Severity of need required for admission. The following
criteria shall be met to satisfy the criteria for severity of need:
(a) There is clinical evidence that the individual has a
DSM-5 disorder that is amenable to active psychiatric treatment.
(b) There is a high degree of potential of the condition
leading to acute psychiatric hospitalization in the absence of residential
treatment.
(c) Either (i) there is clinical evidence that the
individual would be a risk to self or others if the individual were not in a
PRTF or (ii) as a result of the individual's mental disorder, there is an
inability for the individual to adequately care for his own physical needs, and
caretakers, guardians, or family members are unable to safely fulfill these
needs, representing potential serious harm to self.
(d) The individual requires supervision seven days per
week, 24 hours per day to develop skills necessary for daily living; to assist
with planning and arranging access to a range of educational, therapeutic, and
aftercare services; and to develop the adaptive and functional behavior that
will allow the individual to live outside of a PRTF setting.
(e) The individual's current living environment does not
provide the support and access to therapeutic services needed.
(f) The individual is medically stable and does not require
the 24-hour medical or nursing monitoring or procedures provided in a hospital
level of care.
(2) Intensity and quality of service necessary for
admission. The following criteria shall be met to satisfy the criteria for
intensity and quality of service:
(a) The evaluation and assignment of a DSM-5 diagnosis must
result from a face-to-face psychiatric evaluation.
(b) The program provides supervision seven days per week,
24 hours per day to assist with the development of skills necessary for daily
living; to assist with planning and arranging access to a range of educational,
therapeutic, and aftercare services; and to assist with the development of the
adaptive and functional behavior that will allow the individual to live outside
of a PRTF setting.
(c) An individualized plan of active psychiatric treatment
and residential living support is provided in a timely manner. This treatment
must be medically monitored, with 24-hour medical availability and 24-hour
nursing services availability. This plan includes (i) at least once-a-week
psychiatric reassessments; (ii) intensive family or support system involvement
occurring at least once per week or valid reasons identified as to why such a
plan is not clinically appropriate or feasible; (iii) psychotropic medications,
when used, are to be used with specific target symptoms identified; (iv)
evaluation for current medical problems; (v) evaluation for concomitant
substance use issues; and (vi) linkage or coordination with the individual's
community resources, including the local school division and FAPT case manager,
as appropriate, with the goal of returning the individual to his regular social
environment as soon as possible, unless contraindicated. School contact should
address an individualized educational plan as appropriate.
(d) A urine drug screen is considered at the time of
admission, when progress is not occurring, when substance misuse is suspected,
or when substance use and medications may have a potential adverse interaction.
After a positive screen, additional random screens are considered and referral
to a substance use disorder provider is considered.
(3) Criteria for continued stay. The following criteria
shall be met to satisfy the criteria for continued stay:
(a) Despite reasonable therapeutic efforts, clinical
evidence indicates at least one of the following: (i) the persistence of
problems that caused the admission to a degree that continues to meet the
admission criteria (both severity of need and intensity of service needs); (ii)
the emergence of additional problems that meet the admission criteria (both severity
of need and intensity of service needs); or (iii) that disposition planning or
attempts at therapeutic reentry into the community have resulted in or would
result in exacerbation of the psychiatric illness to the degree that would
necessitate continued PRTF treatment. Subjective opinions without objective
clinical information or evidence are not sufficient to meet severity of need
based on justifying the expectation that there would be a decompensation.
(b) There is evidence of objective, measurable, and
time-limited therapeutic clinical goals that must be met before the individual
can return to a new or previous living situation. There is evidence that
attempts are being made to secure timely access to treatment resources and
housing in anticipation of discharge, with alternative housing contingency
plans also being addressed.
(c) There is evidence that the plan of care is focused on
the alleviation of psychiatric symptoms and precipitating psychosocial
stressors that are interfering with the individual's ability to return to a
less-intensive level of care.
(d) The current or revised plan of care can be reasonably
expected to bring about significant improvement in the problems meeting the
criteria in subdivision 3 c (3) (a) of this subsection, and this is documented
in weekly progress notes written and signed by the provider.
(e) There is evidence of intensive family or support system
involvement occurring at least once per week, unless there is an identified
valid reason why it is not clinically appropriate or feasible.
(f) A discharge plan is formulated that is directly linked
to the behaviors or symptoms that resulted in admission and begins to identify
appropriate post-PRTF resources including the local school division and FAPT
case manager as appropriate.
(g) All applicable elements in admission-intensity and
quality of service criteria are applied as related to assessment and treatment
if clinically relevant and appropriate.
(4) Discharge criteria. Discharge shall occur if any of the
following applies: (i) the level of functioning has improved with respect to
the goals outlined in the plan of care, and the individual can reasonably be
expected to maintain these gains at a lower level of treatment; (ii) the
individual no longer benefits from service as evidenced by absence of progress
toward plan of care goals for a period of 30 days; or (iii) other less
intensive services may achieve stabilization.
h. The following clinical activities shall be required for
each PRTF resident:
(1) A face-to-face assessment shall be performed by an
LMHP, LMHP-R, LMHP-RS, or LMHP-S within 30 calendar days prior to admission and
weekly thereafter and shall document a DSM-5 or ICD-10 diagnosis.
(2) A certificate of need shall be completed by an
independent certification team according to the requirements of 12VAC30-50-130
D 4. Recertification shall occur at least every 30 calendar days by a physician
acting within his scope of practice.
(3) The initial plan of care (IPOC) shall be completed
within 24 hours of admission by the treatment team. The IPOC shall
include:
(a) Individual and family strengths and personal traits
that would facilitate recovery and opportunities to develop motivational
strategies and treatment alliance;
(b) Diagnoses, symptoms, complaints, and complications
indicating the need for admission;
(c) A description of the functional level of the
individual;
(d) Treatment objectives with short-term and long-term
goals;
(e) Any orders for medications, psychiatric, medical,
dental, and any special health care needs, whether or not provided in the
facility; education or special education; treatments; interventions; and
restorative and rehabilitative services, activities, therapies, social
services, diet, and special procedures recommended for the health and safety of
the individual;
(f) Plans for continuing care, including review and
modification to the plan of care;
(g) Plans for discharge; and
(h) Signature and date by the individual, parent, or
legally authorized representative, a physician, and treatment team members.
(4) The CIPOC shall be completed and signed no later than
14 calendar days after admission by the treatment team. The PRTF shall request
authorizations from families to release confidential information to collect
information from medical and behavioral health treatment providers, schools,
FAPT, social services, court services, and other relevant parties. This
information shall be used when considering changes and updating the CIPOC. The
CIPOC shall meet all of the following criteria:
(a) Be based on a diagnostic evaluation that includes
examination of the medical, psychological, social, behavioral, and
developmental aspects of the individual's situation and must reflect the need
for PRTF care;
(b) Be developed by an interdisciplinary team of physicians
and other personnel specified in subdivision 3 d 4 of this subsection who are
employed by or provide services to the individual in the facility in
consultation with the individual, family member, or legally authorized
representative, or appropriate others into whose care the individual will be
released after discharge;
(c) Shall state treatment objectives that shall include
measurable, evidence-based, and short-term and long-term goals and objectives;
family engagement activities; and the design of community-based aftercare with
target dates for achievement;
(d) Prescribe an integrated program of therapies,
interventions, activities, and experiences designed to meet the treatment
objectives related to the individual and family treatment needs; and
(e) Describe comprehensive transition plans and
coordination of current care and post-discharge plans with related community
services to ensure continuity of care upon discharge with the recipient's
family, school, and community.
(5) The CIPOC shall be reviewed every 30 calendar days by
the team specified in subdivision 3 d 4 of this subsection to determine that
services being provided are or were required from a PRTF and to recommend
changes in the plan as indicated by the individual's overall adjustment during
the time away from home. The CIPOC shall include the signature and date from
the individual, parent, or legally authorized representative, a physician, and
treatment team members.
(6) Individual therapy shall be provided three times
per week (or more frequently based upon the individual's needs) provided by an
LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the plan of care
and progress notes in accordance with the requirements in this subsection and
12VAC30-60-61.
(7) Group therapy shall be provided as clinically indicated
by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the plan of
care and progress notes in accordance with the requirements in this subsection.
(8) Family therapy shall be provided as clinically
indicated by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the
plan of care and progress notes in accordance with the individual and family or
legally authorized representative's goals and the requirements in this
subsection.
(9) Family engagement shall be provided in addition to
family therapy or counseling. Family engagement shall be provided at least
weekly as outlined in the plan of care and daily communication with the
treatment team representative and the treatment team representative and the family
or legally authorized representative shall be part of the family engagement
strategies in the plan of care. For each service authorization period when
family engagement is not possible, the PRTF shall identify and document the
specific barriers to the individual's engagement with his family or legally
authorized representatives. The PRTF shall document on a weekly basis the
reasons that family engagement is not occurring as required. The PRTF shall
document alternate family engagement strategies to be used as part of the
interventions in the plan of care and request approval of the revised plan of
care by DMAS. When family engagement is not possible, the PRTF shall
collaborate with DMAS on a weekly basis to develop individualized family
engagement strategies and document the revised strategies in the plan of care.
(10) Three interventions shall be provided per 24-hour
period including nights and weekends. Family engagement activities are
considered to be an intervention and shall occur based on the treatment and
visitation goals and scheduling needs of the family or legally authorized
representative. Interventions shall be documented on a progress note and shall
be outlined in and aligned with the treatment goals and objectives in the plan
of care. Any deviation from the plan of care shall be documented along with a
clinical or medical justification for the deviation based on the needs of the
individual.
(11) Therapeutic passes shall be provided as clinically
indicated in the plan of care and as paired with community-based and
facility-based interventions to promote discharge planning, community
integration, and family engagement. Therapeutic passes include activities as
listed in subdivision 2 d (13) of this section. Twenty-four therapeutic passes
shall be permitted per individual, per admission, without authorization as
approved by the treating physician and documented in the plan of care.
Additional therapeutic passes shall require service authorization from DMAS.
Any unauthorized therapeutic passes not approved by the provider or DMAS shall
result in retraction for those days of service.
(12) Discharge planning shall begin at admission and
continue throughout the individual's placement at the PRTF. The parent or
legally authorized representative, the community services board (CSB), the
family assessment planning team (FAPT) case manager, if appropriate, and the
DMAS contracted care manager shall be involved in treatment planning and shall
identify the anticipated needs of the individual and family upon discharge and
identify the available services in the community. Prior to discharge, the PRTF
shall submit an active discharge plan to the DMAS contractor for review. Once
the DMAS contractor approves the discharge plan, the provider shall begin
collaborating with the parent or legally authorized representative and the
treatment team to identify behavioral health and medical providers and schedule
appointments for service-specific provider intakes as needed. The PRTF shall
request written permission from the parent or legally authorized representative
to share treatment information with these providers and shall share information
pursuant to a valid release. The PRTF shall request information from
post-discharge providers to establish that the planning of services and
activities has begun, shall establish that the individual has been enrolled in
school, and shall provide individualized education program recommendations to
the school if necessary. The PRTF shall inform the DMAS contractor of all
scheduled appointments within 30 calendar days of discharge and shall notify
the DMAS contractor within one business day of the individual's discharge date
from the PRTF.
(13) Failure to perform any of the items as described in
subdivisions 3 h (1) through 3 h (12) of this subsection up until the discharge
of the individual shall result in a retraction of the per diem and all other
contracted and coordinated service payments for each day of noncompliance.
i. The team developing the CIPOC shall meet the following
requirements:
(1) At least one member of the team must have expertise in
pediatric behavioral health. Based on education and experience, preferably
including competence in child or adolescent psychiatry, the team must be
capable of all of the following: assessing the individual's immediate and
long-range therapeutic needs, developmental priorities, and personal strengths
and liabilities; assessing the potential resources of the individual's family
or legally authorized representative; setting treatment objectives; and
prescribing therapeutic modalities to achieve the CIPOC's objectives.
(2) The team shall include one of the following:
(a) A board-eligible or board-certified psychiatrist;
(b) A licensed clinical psychologist and a physician
licensed to practice medicine or osteopathy; or
(c) A physician licensed to practice medicine or osteopathy
with specialized training and experience in the diagnosis and treatment of
mental diseases and a licensed clinical psychologist.
(3) The team shall also include one of the following: an
LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP.
4. Requirements for independent certification teams
applicable to both therapeutic group homes and PRTFs:
a. The independent certification team shall certify the
need for PRTF or therapeutic group home services and issue a certificate of
need document within the process and timeliness standards as approved by DMAS
under contractual agreement with the DMAS contractor.
b. The independent certification team shall be approved by
DMAS through a memorandum of understanding with a locality or be approved under
contractual agreement with the DMAS contractor. The team shall initiate and
coordinate referral to the family assessment and planning team (FAPT) as
defined in §§ 2.2-5207 and 2.2-5208 of the Code of Virginia to facilitate care
coordination and for consideration of educational coverage and other supports
not covered by DMAS.
c. The independent certification team shall assess the
individual's and family's strengths and needs in addition to diagnoses,
behaviors, and symptoms that indicate the need for behavioral health treatment
and also consider whether local resources and community-based care are
sufficient to meet the individual's treatment needs, as presented within the
previous 30 calendar days, within the least restrictive environment.
d. The LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP, as
part of the independent certification team, shall meet with an individual and
the individual's parent or legally authorized representative within two business
days from a request to assess the individual's needs and begin the process to
certify the need for an out-of-home placement.
e. The independent certification team shall meet with an
individual and the individual's parent or legally authorized representative
within 10 business days from a request to certify the need for an out-of-home
placement.
f. The independent certification team shall assess the
treatment needs of the individual to issue a certificate of need (CON) for the
most appropriate medically necessary services. The certification shall include
the dated signature and credentials for each of the team members who rendered
the certification. Referring or treatment providers shall not actively
participate during the certification process but may provide supporting
clinical documentation to the certification team.
g. The CON shall be effective for 30 calendar days prior to
admission.
h. The independent certification team shall provide the
completed CON to the facility within one calendar day of completing the CON.
i. The individual and the individual's parent or legally
authorized representative shall have the right to freedom of choice of service
providers.
j. If the individual or the individual's parent or legally
authorized representative disagrees with the independent certification team's
recommendation, the parent or legally authorized representative may appeal the
recommendation in accordance with 12VAC30-110.
k. If the LMHP, as part of the independent certification
team, determines that the individual is in immediate need of treatment, the
LMHP shall refer the individual to an appropriate Medicaid-enrolled crisis
intervention provider, crisis stabilization provider, or inpatient psychiatric
provider in accordance with 12VAC30-50-226 or shall refer the individual for
emergency admission to a PRTF or therapeutic group home under subdivision 4 m
of this subsection and shall also alert the individual's managed care
organization.
l. For individuals who are already eligible for Medicaid at
the time of admission, the independent certification team shall be a
DMAS-authorized contractor with competence in the diagnosis and treatment of
mental illness, preferably in child psychiatry, and have knowledge of the
individual's situation and service availability in the individual's local
service area. The team shall be composed of at least one physician and one
LMHP, including LMHP-S, LMHP-R, and LMHP-RP. An individual's parent or legally
authorized representative shall be included in the certification process.
m. For emergency admissions, an assessment must be made by
the team responsible for the comprehensive individual plan of care (CIPOC).
Reimbursement shall only occur when a certificate of need is issued by the team
responsible for the CIPOC within 14 calendar days after admission. The
certification shall cover any period of time after admission and before claims
are made for reimbursement by Medicaid. After processing an emergency
admission, the therapeutic group home, PRTF, or institution for mental diseases
(IMD) shall notify the DMAS contractor within five calendar days of the
individual's status as being under the care of the facility.
n. For all individuals who apply and become eligible for
Medicaid while an inpatient in a facility or program, the certification team
shall refer the case to the DMAS contractor for referral to the local FAPT to
facilitate care coordination and consideration of educational coverage and
other supports not covered by DMAS.
o. For individuals who apply and become eligible for
Medicaid while an inpatient in the facility or program, the certification shall
be made by the team responsible for the CIPOC and shall cover any period of
time before the application for Medicaid eligibility for which claims are made
for reimbursement by Medicaid. Upon the individual's enrollment into the
Medicaid program, the therapeutic group home, PRTF, or IMD shall notify the
DMAS contractor of the individual's status as being under the care of the
facility within five calendar days of the individual becoming eligible for
Medicaid benefits.
5. Service authorization requirements applicable to both
therapeutic group homes and PRTFs:
a. Authorization shall be required and shall be conducted
by DMAS using medical necessity criteria specified in this subsection.
b. An individual shall have a valid psychiatric diagnosis
and meet the medical necessity criteria as defined in this subsection to
satisfy the criteria for admission. The diagnosis shall be current, as
documented within the past 12 months. If a current diagnosis is not available,
the individual will require a mental health evaluation prior to admission by an
LMHP affiliated with the independent certification team to establish a
diagnosis and recommend and coordinate referral to the available treatment
options.
c. At authorization, an initial length of stay shall be
agreed upon by the individual and parent or legally authorized representative
with the treating provider, and the treating provider shall be responsible for
evaluating and documenting evidence of treatment progress, assessing the need
for ongoing out-of-home placement, and obtaining authorization for continued
stay.
d. Information that is required to obtain authorization for
these services shall include:
(1) A completed state-designated uniform assessment
instrument approved by DMAS;
(2) A certificate of need completed by an independent
certification team specifying all of the following:
(a) The ambulatory care and Medicaid or FAPT-funded
services available in the community do not meet the specific treatment needs of
the individual;
(b) Alternative community-based care was not successful;
(c) Proper treatment of the individual's psychiatric
condition requires services in a 24-hour supervised setting under the direction
of a physician; and
(d) The services can reasonably be expected to improve the
individual's condition or prevent further regression so that a more intensive
level of care will not be needed;
(3) Diagnosis as defined in the DSM-5 and based on (i) an
evaluation by a psychiatrist or LMHP that has been completed within 30 calendar
days of admission or (ii) a diagnosis confirmed in writing by an LMHP after
review of a previous evaluation completed within one year of admission;
(4) A description of the individual's behavior during the
seven calendar days immediately prior to admission;
(5) A description of alternate placements and community
mental health and rehabilitation services and traditional behavioral health
services pursued and attempted and the outcomes of each service;
(6) The individual's level of functioning and clinical
stability;
(7) The level of family involvement and supports available;
and
(8) The initial plan of care (IPOC).
6. Continued stay criteria requirements applicable to both
therapeutic group homes and PRTFs. For a continued stay authorization or a
reauthorization to occur, the individual shall meet the medical necessity
criteria as defined in this subsection to satisfy the criteria for continuing
care. The length of the authorized stay shall be determined by DMAS. A current
plan of care and a current (within 30 calendar days) summary of progress
related to the goals and objectives of the plan of care shall be submitted to
DMAS for continuation of the service. The service provider shall also submit:
a. A state uniform assessment instrument, completed no more
than 30 business days prior to the date of submission;
b. Documentation that the required services have been
provided as defined in the plan of care;
c. Current (within the last 14 calendar days) information
on progress related to the achievement of all treatment and discharge-related
goals; and
d. A description of the individual's continued impairment
and treatment needs, problem behaviors, family engagement activities,
community-based discharge planning and care coordination, and need for a
residential level of care.
7. EPSDT services requirements applicable to therapeutic
group homes and PRTFs. Service limits may be exceeded based on medical
necessity for individuals eligible for EPSDT. EPSDT services may involve
service modalities not available to other individuals, such as applied
behavioral analysis and neuro-rehabilitative services. Individualized services
to address specific clinical needs identified in an EPSDT screening shall
require authorization by a DMAS contractor. In unique EPSDT cases, DMAS may
authorize specialized services beyond the standard therapeutic group home or
PRTF medical necessity criteria and program requirements, as medically and
clinically indicated to ensure the most appropriate treatment is available to
each individual. Treating service providers authorized to deliver medically
necessary EPSDT services in therapeutic group homes and PRTFs on behalf of a
Medicaid-enrolled individual shall adhere to the individualized interventions
and evidence-based progress measurement criteria described in the plan of care
and approved for reimbursement by DMAS. All documentation, independent
certification team, family engagement activity, therapeutic pass, and discharge
planning requirements shall apply to cases approved as EPSDT PRTF or
therapeutic group home service.
8. Inpatient psychiatric services shall be covered for
individuals younger than 21 years of age for medically necessary stays in
inpatient psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2)
for the purpose of diagnosis and treatment of mental health and behavioral
disorders identified under EPSDT when such services meet the requirements set
forth in subdivision 7 of this subsection.
a. Inpatient psychiatric services shall be provided under
the direction of a physician.
b. Inpatient psychiatric services shall be provided by (i)
a psychiatric hospital that undergoes a state survey to determine whether the
hospital meets the requirements for participation in Medicare as a psychiatric
hospital as specified in 42 CFR 482.60 or is accredited by a national
organization whose psychiatric hospital accrediting program has been approved
by the Centers for Medicare and Medicaid Services (CMS); or (ii) a hospital
with an inpatient psychiatric program that undergoes a state survey to
determine whether the hospital meets the requirements for participation in
Medicare as a hospital, as specified in 42 CFR part 482 or is accredited by a
national accrediting organization whose hospital accrediting program has been
approved by CMS.
c. Inpatient psychiatric admissions at general acute care
hospitals and freestanding psychiatric hospitals shall also be subject to the
requirements of 12VAC30-50-100, 12VAC30-50-105, and 12VAC30-60-25.
d. PRTF services are reimbursable only when the treatment
program is fully in compliance with (i) 42 CFR Part 441 Subpart D, specifically
42 CFR 441.151(a) and 42 CFR 441.151 (b) and 42 CFR 441.152 through 42 CFR
441.156 and (ii) the Conditions of Participation in 42 CFR Part 483 Subpart G.
Each admission must be service authorized and the treatment must meet DMAS
requirements for clinical necessity.
e. The inpatient psychiatric benefit for individuals
younger than 21 years of age shall include services that are provided pursuant
to a certification of medical necessity and plan of care developed by an
interdisciplinary team of professionals and shall involve active treatment
designed to achieve the individual's discharge from inpatient status at the
earliest possible time. The inpatient psychiatric benefit shall include
services provided under arrangement furnished by Medicaid enrolled providers
other than the inpatient psychiatric facility, as long as the inpatient
psychiatric facility (i) arranges for and oversees the provision of all
services, (ii) maintains all medical records of care furnished to the
individual, and (iii) ensures that the services are furnished under the
direction of a physician. Services provided under arrangement shall be
documented by a written referral from the inpatient psychiatric facility. For
purposes of pharmacy services, a prescription ordered by an employee or
contractor of the inpatient psychiatric facility who is licensed to prescribe
drugs shall be considered the referral.
f. State freestanding psychiatric hospitals shall arrange
for, maintain records of, and ensure that physicians order pharmacy services
and emergency services. Private freestanding psychiatric hospitals shall
arrange for, maintain records of, and ensure that physicians order the
following services: (i) medical and psychological services including those
furnished by physicians, licensed mental health professionals, and other
licensed or certified health professionals (i.e., nutritionists, podiatrists,
respiratory therapists, and substance abuse treatment practitioners); (ii)
outpatient hospital services; (iii) physical therapy, occupational therapy, and
therapy for individuals with speech, hearing, or language disorders; (iv)
laboratory and radiology services; (v) vision services; (vi) dental, oral
surgery, and orthodontic services; (vii) nonemergency transportation services;
and (viii) emergency services. (Emergency services means the same as is set
forth in 12VAC30-50-310 B.)
f. E. Mental health family support partners.
(1) 1. Mental health family support partners are
peer recovery support services and are nonclinical, peer-to-peer activities
that engage, educate, and support the caregiver and an individual's self-help
efforts to improve health recovery resiliency and wellness. Mental health
family support partners is a peer support service and is a strength-based,
individualized service provided to the caregiver of a Medicaid-eligible
individual younger than 21 years of age with a mental health disorder that is
the focus of support. The services provided to the caregiver and individual
must be directed exclusively toward the benefit of the Medicaid-eligible
individual. Services are expected to improve outcomes for individuals younger
than 21 years of age with complex needs who are involved with multiple systems
and increase the individual's and family's confidence and capacity to manage
their own services and supports while promoting recovery and healthy
relationships. These services are rendered by a PRS who is (i) a parent of a
minor or adult child with a similar mental health disorder or (ii) an adult
with personal experience with a family member with a similar mental health
disorder with experience navigating behavioral health care services. The PRS
shall perform the service within the scope of his knowledge, lived experience,
and education.
(2) 2. Under the clinical oversight of the LMHP
making the recommendation for mental health family support partners, the peer
recovery specialist in consultation with his direct supervisor shall develop a
recovery, resiliency, and wellness plan based on the LMHP's recommendation for
service, the individual's and the caregiver's perceived recovery needs, and any
clinical assessments or service specific provider intakes as defined in this
section within 30 calendar days of the initiation of service. Development of
the recovery, resiliency, and wellness plan shall include collaboration with
the individual and the individual's caregiver. Individualized goals and
strategies shall be focused on the individual's identified needs for
self-advocacy and recovery. The recovery, resiliency, and wellness plan shall
also include documentation of how many days per week and how many hours per
week are required to carry out the services in order to meet the goals of the
plan. The recovery, resiliency, and wellness plan shall be completed, signed,
and dated by the LMHP, the PRS, the direct supervisor, the individual, and the
individual's caregiver within 30 calendar days of the initiation of service.
The PRS shall act as an advocate for the individual, encouraging the individual
and the caregiver to take a proactive role in developing and updating goals and
objectives in the individualized recovery planning.
(3) 3. Documentation of required activities
shall be required as set forth in 12VAC30-130-5200 A, C, and E through J.
(4) 4. Limitations and exclusions to service
delivery shall be the same as set forth in 12VAC30-130-5210.
(5) 5. Caregivers of individuals younger than 21
years of age who qualify to receive mental health family support partners shall
(i) care for an individual with a mental health disorder who requires recovery
assistance and (ii) meet two or more of the following:
(a) a. Individual and his caregiver need
peer-based recovery-oriented services for the maintenance of wellness and the
acquisition of skills needed to support the individual.
(b) b. Individual and his caregiver need
assistance to develop self-advocacy skills to assist the individual in
achieving self-management of the individual's health status.
(c) c. Individual and his caregiver need
assistance and support to prepare the individual for a successful work or
school experience.
(d) d. Individual and his caregiver need
assistance to help the individual and caregiver assume responsibility for
recovery.
(6) 6. Individuals 18 through, 19, and
20 years of age who meet the medical necessity criteria in 12VAC30-50-226 B 7
e, who would benefit from receiving peer supports directly and who choose to
receive mental health peer support services directly instead of through their
caregiver, shall be permitted to receive mental health peer support services by
an appropriate PRS.
(7) 7. To qualify for continued mental health
family support partners, medical necessity criteria shall continue to be met,
and progress notes shall document the status of progress relative to the goals
identified in the recovery, resiliency, and wellness plan.
(8) 8. Discharge criteria from mental health
family support partners shall be the same as set forth in 12VAC30-130-5180 E.
(9) 9. Mental health family support partners
services shall be rendered on an individual basis or in a group.
(10) 10. Prior to service initiation, a
documented recommendation for mental health family support partners services shall
be made by a licensed mental health professional (LMHP) who is acting within
his scope of practice under state law. The recommendation shall verify that the
individual meets the medical necessity criteria set forth in subdivision 5 of
this subsection. The recommendation shall be valid for no longer than 30
calendar days.
(11) 11. Effective July 1, 2017, a peer recovery
specialist shall have the qualifications, education, experience, and
certification required by DBHDS in order to be eligible to register with the
Virginia Board of Counseling on or after July 1, 2018. Upon the promulgation of
regulations by the Board of Counseling, registration of peer recovery
specialists by the Board of Counseling shall be required. The PRS shall perform
mental health family support partners services under the oversight of the LMHP
making the recommendation for services and providing the clinical oversight of
the recovery, resiliency, and wellness plan.
(12) 12. The PRS shall be employed by or have a
contractual relationship with the enrolled provider licensed for one of the
following:
(a) a. Acute care general and emergency
department hospital services licensed by the Department of Health.
(b) b. Freestanding psychiatric hospital and
inpatient psychiatric unit licensed by the Department of Behavioral Health and
Developmental Services.
(c) c. Psychiatric residential treatment
facility licensed by the Department of Behavioral Health and Developmental
Services.
(d) d. Therapeutic group home licensed by the
Department of Behavioral Health and Developmental Services.
(e) e. Outpatient mental health clinic services
licensed by the Department of Behavioral Health and Developmental Services.
(f) f. Outpatient psychiatric services provider.
(g) g. A community mental health and rehabilitative
services provider licensed by the Department of Behavioral Health and
Developmental Services as a provider of one of the following community mental
health and rehabilitative services as defined in this section, 12VAC30-50-226,
12VAC30-50-420, or 12VAC30-50-430 for which the individual younger than 21
years meets medical necessity criteria: (i) intensive in home; (ii)
therapeutic day treatment; (iii) day treatment or partial hospitalization; (iv)
crisis intervention; (v) crisis stabilization; (vi) mental health skill
building; or (vii) mental health case management.
(13) 13. Only the licensed and enrolled provider
as referenced in subdivision 5 f (12) 12 of this subsection shall
be eligible to bill and receive reimbursement from DMAS or its contractor
for mental health family support partner services. Payments shall not be
permitted to providers that fail to enter into an enrollment agreement with
DMAS or its contractor. Reimbursement shall be subject to retraction for
any billed service that is determined not to be in compliance with DMAS
requirements.
(14) 14. Supervision of the PRS shall meet the
requirements set forth in 12VAC30-50-226 B 7 l.
6. Inpatient psychiatric services shall be covered for
individuals younger than age 21 for medically necessary stays in inpatient
psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2) for the
purpose of diagnosis and treatment of mental health and behavioral disorders
identified under EPSDT when such services are rendered by: (i) a psychiatric hospital
or an inpatient psychiatric program in a hospital accredited by the Joint
Commission on Accreditation of Healthcare Organizations or (ii) a psychiatric
facility that is accredited by the Joint Commission on Accreditation of
Healthcare Organizations or the Commission on Accreditation of Rehabilitation
Facilities. Inpatient psychiatric hospital admissions at general acute care
hospitals and freestanding psychiatric hospitals shall also be subject to the
requirements of 12VAC30-50-100, 12VAC30-50-105, and 12VAC30-60-25. Inpatient
psychiatric admissions to residential treatment facilities shall also be
subject to the requirements of Part XIV (12VAC30-130-850 et seq.) of Amount,
Duration and Scope of Selected Services.
a. The inpatient psychiatric services benefit for
individuals younger than 21 years of age shall include services defined at 42
CFR 440.160 that are provided under the direction of a physician pursuant to a
certification of medical necessity and plan of care developed by an
interdisciplinary team of professionals and shall involve active
treatment designed to achieve the child's discharge from inpatient status at
the earliest possible time. The inpatient psychiatric services benefit shall
include services provided under arrangement furnished by Medicaid enrolled
providers other than the inpatient psychiatric facility, as long as the
inpatient psychiatric facility (i) arranges for and oversees the provision of
all services, (ii) maintains all medical records of care furnished to the
individual, and (iii) ensures that the services are furnished under the
direction of a physician. Services provided under arrangement shall be
documented by a written referral from the inpatient psychiatric facility. For
purposes of pharmacy services, a prescription ordered by an employee or
contractor of the facility who is licensed to prescribe drugs shall be
considered the referral.
b. Eligible services provided under arrangement with the
inpatient psychiatric facility shall vary by provider type as described in this
subsection. For purposes of this section, emergency services means the same as
is set out in 12VAC30-50-310 B.
(1) State freestanding psychiatric hospitals shall arrange
for, maintain records of, and ensure that physicians order these services: (i)
pharmacy services and (ii) emergency services.
(2) Private freestanding psychiatric hospitals shall
arrange for, maintain records of, and ensure that physicians order these
services: (i) medical and psychological services including those furnished by
physicians, licensed mental health professionals, and other licensed or
certified health professionals (i.e., nutritionists, podiatrists, respiratory
therapists, and substance abuse treatment practitioners); (ii) outpatient
hospital services; (iii) physical therapy, occupational therapy, and therapy
for individuals with speech, hearing, or language disorders; (iv)
laboratory and radiology services; (v) vision services; (vi) dental, oral
surgery, and orthodontic services; (vii) transportation services; and (viii) emergency
services.
(3) Residential treatment facilities, as defined at 42 CFR
483.352, shall arrange for, maintain records of, and ensure that physicians
order these services: (i) medical and psychological services, including those
furnished by physicians, licensed mental health professionals, and other
licensed or certified health professionals (i.e., nutritionists, podiatrists,
respiratory therapists, and substance abuse treatment practitioners); (ii)
pharmacy services; (iii) outpatient hospital services; (iv) physical therapy,
occupational therapy, and therapy for individuals with speech, hearing, or
language disorders; (v) laboratory and radiology services; (vi) durable medical
equipment; (vii) vision services; (viii) dental, oral surgery, and orthodontic
services; (ix) transportation services; and (x) emergency services.
c. Inpatient psychiatric services are reimbursable only
when the treatment program is fully in compliance with (i) 42 CFR Part 441
Subpart D, specifically 42 CFR 441.151(a) and (b) and 42 CFR 441.152 through 42
CFR 441.156, and (ii) the conditions of participation in 42 CFR Part 483
Subpart G. Each admission must be preauthorized and the treatment must meet
DMAS requirements for clinical necessity.
d. Service limits may be exceeded based on medical
necessity for individuals eligible for EPSDT.
7. F. Hearing aids shall be reimbursed for
individuals younger than 21 years of age according to medical necessity when
provided by practitioners licensed to engage in the practice of fitting or dealing
in hearing aids under the Code of Virginia.
8. G. Addiction and recovery treatment services
shall be covered under EPSDT consistent with 12VAC30-130-5000 et seq.
9. H. Services facilitators shall be required
for all consumer-directed personal care services consistent with the
requirements set out in 12VAC30-120-935.
10. I. Behavioral therapy services shall be
covered for individuals younger than 21 years of age.
a. 1. Definitions. The following words and terms
when used in this subsection shall have the following meanings unless the
context clearly indicates otherwise:
"Behavioral therapy" means systematic interventions
provided by licensed practitioners acting within the scope of practice defined
under a Virginia Department of Health Professions regulatory board and covered
as remedial care under 42 CFR 440.130(d) to individuals younger than 21 years
of age. Behavioral therapy includes applied behavioral analysis. Family
training related to the implementation of the behavioral therapy shall be included
as part of the behavioral therapy service. Behavioral therapy services shall be
subject to clinical reviews and determined as medically necessary. Behavioral
therapy may be provided in the individual's home and community settings as
deemed by DMAS or its contractor as medically necessary treatment.
"Counseling" means a professional mental health
service that can only be provided by a person holding a license issued by a
health regulatory board at the Department of Health Professions, which includes
conducting assessments, making diagnoses of mental disorders and conditions,
establishing treatment plans, and determining treatment interventions.
"Individual" means the child or adolescent younger
than 21 years of age who is receiving behavioral therapy services.
"Primary care provider" means a licensed medical
practitioner who provides preventive and primary health care and is responsible
for providing routine EPSDT screening and referral and coordination of other
medical services needed by the individual.
b. 2. Behavioral therapy services shall be
designed to enhance communication skills and decrease maladaptive patterns of
behavior, which if left untreated, could lead to more complex problems and the
need for a greater or a more intensive level of care. The service goal shall be
to ensure the individual's family or caregiver is trained to effectively manage
the individual's behavior in the home using modification strategies. All
services shall be provided in accordance with the ISP and clinical assessment summary.
c. 3. Behavioral therapy services shall be
covered when recommended by the individual's primary care provider or other
licensed physician, licensed physician assistant, or licensed nurse
practitioner and determined by DMAS or its contractor to be medically
necessary to correct or ameliorate significant impairments in major life
activities that have resulted from either developmental, behavioral, or mental
disabilities. Criteria for medical necessity are set out in 12VAC30-60-61 H
F. Service-specific provider intakes shall be required at the onset of
these services in order to receive authorization for reimbursement. Individual
service plans (ISPs) shall be required throughout the entire duration of
services. The services shall be provided in accordance with the individual
service plan and clinical assessment summary. These services shall be provided
in settings that are natural or normal for a child or adolescent without a
disability, such as the individual's home, unless there is justification in the
ISP, which has been authorized for reimbursement, to include service settings
that promote a generalization of behaviors across different settings to
maintain the targeted functioning outside of the treatment setting in the
individual's home and the larger community within which the individual resides.
Covered behavioral therapy services shall include:
(1) a. Initial and periodic service-specific
provider intake as defined in 12VAC30-60-61 H F;
(2) b. Development of initial and updated ISPs
as established in 12VAC30-60-61 H F;
(3) c. Clinical supervision activities.
Requirements for clinical supervision are set out in 12VAC30-60-61 H F;
(4) d. Behavioral training to increase the
individual's adaptive functioning and communication skills;
(5) e. Training a family member in behavioral
modification methods as established in 12VAC30-60-61 H F;
(6) f. Documentation and analysis of
quantifiable behavioral data related to the treatment objectives; and
(7) g. Care coordination.
C. J. School health services.
1. School health assistant services are repealed effective
July 1, 2006.
2. School divisions may provide routine well-child screening
services under the State Plan. Diagnostic and treatment services that are
otherwise covered under early and periodic screening, diagnosis and treatment
services, shall not be covered for school divisions. School divisions to
receive reimbursement for the screenings shall be enrolled with DMAS as clinic
providers.
a. Children enrolled in managed care organizations shall
receive screenings from those organizations. School divisions shall not receive
reimbursement for screenings from DMAS for these children.
b. School-based services are listed in a recipient's
individualized education program (IEP) and covered under one or more of the
service categories described in § 1905(a) of the Social Security Act. These
services are necessary to correct or ameliorate defects of physical or mental
illnesses or conditions.
3. Providers shall be licensed under the applicable state
practice act or comparable licensing criteria by the Virginia Department of
Education, and shall meet applicable qualifications under 42 CFR Part 440.
Identification of defects, illnesses or conditions, and services
necessary to correct or ameliorate them shall be performed by practitioners
qualified to make those determinations within their licensed scope of practice,
either as a member of the IEP team or by a qualified practitioner outside the
IEP team.
a. Providers shall be employed by the school division or under
contract to the school division.
b. Supervision of services by providers recognized in
subdivision 4 of this subsection shall occur as allowed under federal
regulations and consistent with Virginia law, regulations, and DMAS provider
manuals.
c. The services described in subdivision 4 of this subsection
shall be delivered by school providers, but may also be available in the
community from other providers.
d. Services in this subsection are subject to utilization
control as provided under 42 CFR Parts 455 and 456.
e. The IEP shall determine whether or not the services
described in subdivision 4 of this subsection are medically necessary and that
the treatment prescribed is in accordance with standards of medical practice.
Medical necessity is defined as services ordered by IEP providers. The IEP
providers are qualified Medicaid providers to make the medical necessity
determination in accordance with their scope of practice. The services must be
described as to the amount, duration and scope.
4. Covered services include:
a. Physical therapy, and occupational therapy
and services for individuals with speech, hearing, and language disorders,
performed by, or under the direction of, providers who meet the qualifications
set forth at 42 CFR 440.110. This coverage includes audiology services.
b. Skilled nursing services are covered under 42 CFR
440.60. These services are to be rendered in accordance to the licensing
standards and criteria of the Virginia Board of Nursing. Nursing services are
to be provided by licensed registered nurses or licensed practical nurses but
may be delegated by licensed registered nurses in accordance with the
regulations of the Virginia Board of Nursing, especially the section on
delegation of nursing tasks and procedures. The licensed practical nurse is
under the supervision of a registered nurse.
(1) The coverage of skilled nursing services shall be of a
level of complexity and sophistication (based on assessment, planning,
implementation, and evaluation) that is consistent with skilled nursing
services when performed by a licensed registered nurse or a licensed practical
nurse. These skilled nursing services shall include dressing changes,
maintaining patent airways, medication administration/monitoring administration
or monitoring, and urinary catheterizations.
(2) Skilled nursing services shall be directly and
specifically related to an active, written plan of care developed by a
registered nurse that is based on a written order from a physician, physician
assistant, or nurse practitioner for skilled nursing services. This
order shall be recertified on an annual basis.
c. Psychiatric and psychological services performed by
licensed practitioners within the scope of practice are defined under state law
or regulations and covered as physicians' services under 42 CFR 440.50 or
medical or other remedial care under 42 CFR 440.60. These outpatient services
include individual medical psychotherapy, group medical psychotherapy coverage,
and family medical psychotherapy. Psychological and neuropsychological testing
are allowed when done for purposes other than educational diagnosis, school
admission, evaluation of an individual with intellectual or developmental
disability prior to admission to a nursing facility, or any placement issue.
These services are covered in the nonschool settings also. School providers who
may render these services when licensed by the state include psychiatrists,
licensed clinical psychologists, school psychologists, licensed clinical social
workers, professional counselors, psychiatric clinical nurse specialists,
marriage and family therapists, and school social workers.
d. Personal care services are covered under 42 CFR
440.167 and performed by persons qualified under this subsection. The personal
care assistant is supervised by a DMAS recognized school-based health
professional who is acting within the scope of licensure. This practitioner
professional develops a written plan for meeting the needs of the child
individual, which is implemented by the assistant. The assistant must
have qualifications comparable to those for other personal care aides
recognized by the Virginia Department of Medical Assistance Services. The
assistant performs services such as assisting with toileting, ambulation, and
eating. The assistant may serve as an aide on a specially adapted school
vehicle that enables transportation to or from the school or school contracted
provider on days when the student is receiving a Medicaid-covered service under
the IEP. Children Individuals requiring an aide during
transportation on a specially adapted vehicle shall have this stated in the
IEP.
e. Medical evaluation services are covered as physicians'
services under 42 CFR 440.50 or as medical or other remedial care under 42 CFR
440.60. Persons performing these services shall be licensed physicians,
physician assistants, or nurse practitioners. These practitioners shall
identify the nature or extent of a child's an individual's
medical or other health related condition.
f. Transportation is covered as allowed under 42 CFR
431.53 and described at State Plan Attachment 3.1-D (12VAC30-50-530).
Transportation shall be rendered only by school division personnel or
contractors. Transportation is covered for a child an individual
who requires transportation on a specially adapted school vehicle that enables
transportation to or from the school or school contracted provider on days when
the student individual is receiving a Medicaid-covered service
under the IEP. Transportation shall be listed in the child's individual's
IEP. Children Individuals requiring an aide during transportation
on a specially adapted vehicle shall have this stated in the IEP.
g. Assessments are covered as necessary to assess or reassess
the need for medical services in a child's an individual's IEP
and shall be performed by any of the above licensed practitioners within the
scope of practice. Assessments and reassessments not tied to medical needs of
the child individual shall not be covered.
5. DMAS will ensure through quality management review that
duplication of services will be monitored. School divisions have a
responsibility to ensure that if a child an individual is
receiving additional therapy outside of the school, that there will be
coordination of services to avoid duplication of service.
D. K. Family planning services and supplies for
individuals of child-bearing age.
1. Service must be ordered or prescribed and directed or
performed within the scope of the license of a practitioner of the healing
arts.
2. Family planning services shall be defined as those services
that delay or prevent pregnancy. Coverage of such services shall not include
services to treat infertility or services to promote fertility. Family planning
services shall not cover payment for abortion services and no funds shall be
used to perform, assist, encourage, or make direct referrals for abortions.
3. Family planning services as established by § 1905(a)(4)(C)
of the Social Security Act include annual family planning exams; cervical
cancer screening for women; sexually transmitted infection (STI) testing; lab
services for family planning and STI testing; family planning education,
counseling, and preconception health; sterilization procedures; nonemergency
transportation to a family planning service; and U.S. Food and Drug
Administration approved prescription and over-the-counter contraceptives,
subject to limits in 12VAC30-50-210.
12VAC30-50-226. Community mental health services.
A. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context clearly
indicates otherwise:
"Activities of daily living" or "ADLs"
means personal care tasks such as bathing, dressing, toileting, transferring,
and eating or feeding. An individual's degree of independence in performing
these activities is a part of determining appropriate level of care and service
needs.
"Affiliated" means any entity or property in which
a provider or facility has a direct or indirect ownership interest of 5.0% or
more, or any management, partnership, or control of an entity.
"Behavioral health service" means the same as
defined in 12VAC30-130-5160.
"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS. DMAS' designated BHSA shall be
authorized to constitute, oversee, enroll, and train a provider network;
perform service authorization; adjudicate claims; process claims; gather and
maintain data; reimburse providers; perform quality assessment and improvement;
conduct member outreach and education; resolve member and provider issues; and
perform utilization management including care coordination for the provision of
Medicaid-covered behavioral health services. Such authority shall include
entering into or terminating contracts with providers in accordance with DMAS
authority pursuant to 42 CFR Part 1002 and § 32.1-325 D and E of the Code
of Virginia. DMAS shall retain authority for and oversight of the BHSA entity
or entities.
"Certified prescreener" means an employee of either
the local community services board/behavioral board or behavioral
health authority or its designee who is skilled in the assessment and treatment
of mental illness and who has completed a certification program approved by
DBHDS.
"Clinical experience" means, for the purpose of
rendering (i) mental health day treatment/partial hospitalization, (ii)
intensive community treatment, (iii) psychosocial rehabilitation, (iv) mental
health skill building, (v) crisis stabilization, or (vi) crisis intervention
services, practical experience in providing direct services to individuals with
diagnoses of mental illness or intellectual disability or the provision of
direct geriatric services or special education services. Experience shall
include supervised internships, supervised practicums, or supervised field
experience. Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be
established by DBHDS in the document titled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.
"Code" means the Code of Virginia.
"DBHDS" means the Department of Behavioral Health
and Developmental Services consistent with Chapter 3 (§ 37.2-300 et seq.)
of Title 37.2 of the Code of Virginia.
"Direct supervisor" means the person who provides
direct supervision to the peer recovery specialist. The direct supervisor (i)
shall have two consecutive years of documented practical experience rendering
peer support services or family support services, have certification training
as a PRS under a certifying body approved by DBHDS, and have documented
completion of the DBHDS PRS supervisor training; (ii) shall be a qualified
mental health professional (QMHP-A, QMHP-C, or QMHP-E) as defined in
12VAC35-105-20 with at least two consecutive years of documented experience as
a QMHP, and who has documented completion of the DBHDS PRS supervisor training;
or (iii) shall be an LMHP who has documented completion of the DBHDS PRS
supervisor training who is acting within his scope of practice under state law.
An LMHP providing services before April 1, 2018, shall have until April 1,
2018, to complete the DBHDS PRS supervisor training.
"DMAS" means the Department of Medical Assistance
Services and its contractor or contractors consistent with Chapter 10 (§
32.1-323 et seq.) of Title 32.1 of the Code of Virginia.
"DSM-5" means the Diagnostic and Statistical Manual
of Mental Disorders, Fifth Edition, copyright 2013, American Psychiatric
Association.
"Human services field" means the same as the term
is defined by DBHDS the Department of Health Professions in the
guidance document entitled Human Services and Related Fields Approved
Degrees/Experience, issued March 12, 2013, revised May 3, 2013. Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted
November 3, 2017, revised February 9, 2018.
"Individual" means the patient, client, or
recipient of services described in this section.
"Individual service plan" or "ISP" means
a comprehensive and regularly updated treatment plan specific to the
individual's unique treatment needs as identified in the service-specific
provider intake. The ISP contains, but is not limited to, the individual's
treatment or training needs, the individual's goals and measurable objectives
to meet the identified needs, services to be provided with the recommended
frequency to accomplish the measurable goals and objectives, the estimated
timetable for achieving the goals and objectives, and an individualized
discharge plan that describes transition to other appropriate services. The
individual shall be included in the development of the ISP and the ISP shall be
signed by the individual. If the individual is a minor child, the ISP
shall also be signed by the individual's parent/legal parent or legal
guardian. Documentation shall be provided if the individual, who is a minor
child or an adult who lacks legal capacity, is unable or unwilling to sign the
ISP.
"Individualized training" means instruction and
practice in functional skills and appropriate behavior related to the
individual's health and safety, instrumental activities of daily living skills,
and use of community resources; assistance with medical management; and
monitoring health, nutrition, and physical condition. The training shall be
rehabilitative and based on a variety of incremental (or cumulative) approaches
or tools to organize and guide the individual's life planning and shall reflect
what is important to the individual in addition to all other factors that
affect his the individual's functioning, including effects of the
disability and issues of health and safety.
"Licensed mental health professional" or
"LMHP" means the same as defined in 12VAC35-105-20.
"LMHP-resident" or "LMHP-R" means the
same as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of
Counseling. For purposes of Medicaid reimbursement to their supervisors for
services provided by such residents, they shall use the title
"Resident" in connection with the applicable profession after their
signatures to indicate such status.
"LMHP-resident in psychology" or
"LMHP-RP" means the same as an individual in a residency, as that
term is defined in 18VAC125-20-10, program for clinical psychologists. An
LMHP-resident in psychology shall be in continuous compliance with the
regulatory requirements for supervised experience as found in 18VAC125-20-65
and shall not perform the functions of the LMHP-RP or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of
Psychology. For purposes of Medicaid reimbursement by supervisors for services
provided by such residents, they shall use the title "Resident in
Psychology" after their signatures to indicate such status.
"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" is defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be considered
a "supervisee" until the supervision for specific clinical duties at
a specific site is preapproved in writing by the Virginia Board of Social Work.
For purposes of Medicaid reimbursement to their supervisors for services
provided by supervisees, these persons shall use the title "Supervisee in
Social Work" after their signatures to indicate such status.
"Peer recovery specialist" or "PRS" means
the same as defined in 12VAC30-130-5160.
"Person centered" means the same as defined in
12VAC30-130-5160.
"Qualified mental health professional-adult" or
"QMHP-A" means the same as defined in 12VAC35-105-20.
"Qualified mental health professional-child" or
"QMHP-C" means the same as defined in 12VAC35-105-20.
"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in
12VAC35-105-20, including a "QMHP-trainee" as defined by the
Department of Health Professions.
"Qualified paraprofessional in mental health" or
"QPPMH" means the same as defined in 12VAC35-105-20.
"Recovery-oriented services" means the same as
defined in 12VAC30-130-5160.
"Recovery, resiliency, and wellness plan" means the
same as defined in 12VAC30-130-5160.
"Register" or "registration" means
notifying DMAS or its contractor that an individual will be receiving services
that do not require service authorization.
"Resiliency" means the same as defined in
12VAC30-130-5160.
"Review of ISP" means that the provider evaluates
and updates the individual's progress toward meeting the individualized service
plan objectives and documents the outcome of this review. For DMAS to determine
that these reviews are satisfactory and complete, the reviews shall (i) update
the goals, objectives, and strategies of the ISP to reflect any change in the
individual's progress and treatment needs as well as any newly identified
problems; (ii) be conducted in a manner that enables the individual to
participate in the process; and (iii) be documented in the individual's medical
record no later than 15 calendar days from the date of the review.
"Self-advocacy" means the same as defined in
12VAC30-130-5160.
"Service authorization" means the process to
approve specific services for an enrolled Medicaid, FAMIS Plus, or FAMIS
individual by a DMAS service authorization contractor prior to service delivery
and reimbursement in order to validate that the service requested is medically
necessary and meets DMAS and DMAS contractor criteria for reimbursement.
Service authorization does not guarantee payment for the service.
"Service-specific provider intake" means the same
as defined in 12VAC30-50-130 and also includes individuals who are older than
21 years of age.
"Strength-based" means the same as defined in
12VAC30-130-5160.
"Supervision" means the same as defined in
12VAC30-130-5160.
B. Mental health services. The following services, with their
definitions, shall be covered: day treatment/partial hospitalization,
psychosocial rehabilitation, crisis services, intensive community treatment
(ICT), and mental health skill building. Staff travel time shall not be
included in billable time for reimbursement. These services, in order to be
covered, shall meet medical necessity criteria based upon diagnoses made by
LMHPs who are practicing within the scope of their licenses and are reflected
in provider records and on providers' claims for services by recognized
diagnosis codes that support and are consistent with the requested professional
services. These services are intended to be delivered in a person-centered
person centered manner. The individuals who are receiving these services
shall be included in all service planning activities. All services which do not
require service authorization require registration. This registration shall
transmit service-specific information to DMAS or its contractor in accordance
with service authorization requirements.
1. Day treatment/partial hospitalization services shall be
provided in sessions of two or more consecutive hours per day, which may be
scheduled multiple times per week, to groups of individuals in a nonresidential
setting. These services, limited annually to 780 units, include the major
diagnostic, medical, psychiatric, psychosocial, and psychoeducational treatment
modalities designed for individuals who require coordinated, intensive,
comprehensive, and multidisciplinary treatment but who do not require inpatient
treatment. One unit of service shall be defined as a minimum of two but less
than four hours on a given day. Two units of service shall be defined as at
least four but less than seven hours in a given day. Three units of service
shall be defined as seven or more hours in a given day. Authorization is
required for Medicaid reimbursement.
a. Day treatment/partial hospitalization services shall be
time limited interventions that are more intensive than outpatient services and
are required to stabilize an individual's psychiatric condition. The services
are delivered when the individual is at risk of psychiatric hospitalization or
is transitioning from a psychiatric hospitalization to the community. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual is at risk of
psychiatric hospitalization or is transitioning from a psychiatric
hospitalization to the community.
b. Individuals qualifying for this service must demonstrate a
clinical necessity for the service arising from mental, behavioral, or
emotional illness that results in significant functional impairments in major
life activities. Individuals must meet at least two of the following criteria
on a continuing or intermittent basis:
(1) Experience difficulty in establishing or maintaining
normal interpersonal relationships to such a degree that they are at risk of
hospitalization or homelessness or isolation from social supports;
(2) Experience difficulty in activities of daily living such
as maintaining personal hygiene, preparing food and maintaining adequate
nutrition, or managing finances to such a degree that health or safety is
jeopardized;
(3) Exhibit such inappropriate behavior that the individual
requires repeated interventions or monitoring by the mental health, social
services, or judicial system that have been documented; or
(4) Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.
c. Individuals shall be discharged from this service when they
are no longer in an acute psychiatric state and other less intensive services
may achieve psychiatric stabilization.
d. Admission and services for time periods longer than 90
calendar days must be authorized based upon a face-to-face evaluation by a
physician, psychiatrist, licensed clinical psychologist, licensed professional
counselor, licensed clinical social worker, or psychiatric clinical nurse
specialist.
e. These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-A, QMHP-C, QMHP-E, or a QPPMH.
2. Psychosocial rehabilitation shall be provided at least two
or more hours per day to groups of individuals in a nonresidential setting.
These services, limited annually to 936 units, include assessment, education to
teach the patient about the diagnosed mental illness and appropriate
medications to avoid complication and relapse, and opportunities to learn and
use independent living skills and to enhance social and interpersonal skills
within a supportive and normalizing program structure and environment. One unit
of service is defined as a minimum of two but less than four hours on a given
day. Two units are defined as at least four but less than seven hours in a
given day. Three units of service shall be defined as seven or more hours in a
given day. Authorization is required for Medicaid reimbursement. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual meets criteria for
this service.
a. Individuals qualifying for this service must demonstrate a
clinical necessity for the service arising from mental, behavioral, or
emotional illness that results in significant functional impairments in major
life activities. Services are provided to individuals: (i) who without
these services would be unable to remain in the community or (ii) who meet at
least two of the following criteria on a continuing or intermittent basis:
(1) Experience difficulty in establishing or maintaining
normal interpersonal relationships to such a degree that they are at risk of
psychiatric hospitalization, homelessness, or isolation from social supports;
(2) Experience difficulty in activities of daily living such
as maintaining personal hygiene, preparing food and maintaining adequate
nutrition, or managing finances to such a degree that health or safety is
jeopardized;
(3) Exhibit such inappropriate behavior that repeated
interventions documented by the mental health, social services, or judicial
system are or have been necessary; or
(4) Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or significantly inappropriate social
behavior.
b. These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-A, QMHP-C, QMHP-E, or a QPPMH.
3. Crisis intervention shall provide immediate mental health
care, available 24 hours a day, seven days per week, to assist individuals who
are experiencing acute psychiatric dysfunction requiring immediate clinical
attention. This service's objectives shall be to prevent exacerbation of a
condition, to prevent injury to the client or others, and to provide treatment
in the context of the least restrictive setting. Crisis intervention activities
shall include assessing the crisis situation, providing short-term counseling
designed to stabilize the individual, providing access to further immediate
assessment and follow-up, and linking the individual and family with ongoing
care to prevent future crises. Crisis intervention services may include office
visits, home visits, preadmission screenings, telephone contacts, and other
client-related activities for the prevention of institutionalization. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual meets criteria for
this service. The provision of this service to an individual shall be
registered with either DMAS, DMAS contractors, or the BHSA within one
business day or the completion of the service-specific provider intake to avoid
duplication of services and to ensure informed care coordination.
a. Individuals qualifying for this service must demonstrate a
clinical necessity for the service arising from an acute crisis of a
psychiatric nature that puts the individual at risk of psychiatric
hospitalization. Individuals must meet at least two of the following criteria
at the time of admission to the service:
(1) Experience difficulty in establishing or maintaining
normal interpersonal relationships to such a degree that they are at risk of
psychiatric hospitalization, homelessness, or isolation from social supports;
(2) Experience difficulty in activities of daily living such
as maintaining personal hygiene, preparing food and maintaining adequate
nutrition, or managing finances to such a degree that health or safety is
jeopardized;
(3) Exhibit such inappropriate behavior that immediate
interventions documented by mental health, social services, or the judicial
system are or have been necessary; or
(4) Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or significantly inappropriate social
behavior.
b. The annual limit for crisis intervention is 720 units per
year. A unit shall equal 15 minutes.
c. These services may only be rendered by an LMHP, an
LMHP-supervisee, LMHP-resident, LMHP-RP, or a certified prescreener.
4. Intensive community treatment (ICT), initially covered for
a maximum of 26 weeks based on an initial service-specific provider intake and
may be reauthorized for up to an additional 26 weeks annually based on written
intake and certification of need by a licensed mental health provider (LMHP),
shall be defined by 12VAC35-105-20 or LMHP-S, LMHP-R, and LMHP-RP and shall
include medical psychotherapy, psychiatric assessment, medication management,
and care coordination activities offered to outpatients outside the clinic,
hospital, or office setting for individuals who are best served in the
community. Authorization is required for Medicaid reimbursement.
a. To qualify for ICT, the individual must meet at least one
of the following criteria:
(1) The individual must be at high risk for psychiatric
hospitalization or becoming or remaining homeless due to mental illness or
require intervention by the mental health or criminal justice system due to
inappropriate social behavior.
(2) The individual has a history (three months or more) of a
need for intensive mental health treatment or treatment for co-occurring
serious mental illness and substance use disorder and demonstrates a resistance
to seek out and utilize appropriate treatment options.
b. A written, service-specific provider intake, as defined at
12VAC30-50-130, that documents the individual's eligibility and the need for
this service must be completed prior to the initiation of services. This intake
must be maintained in the individual's records.
c. An individual service plan shall be initiated at the time
of admission and must be fully developed, as defined in this section, within 30
days of the initiation of services.
d. The annual unit limit shall be 130 units with a unit
equaling one hour.
e. These services may only be rendered by a team that meets
the requirements of 12VAC35-105-1370.
5. Crisis stabilization services for nonhospitalized
individuals shall provide direct mental health care to individuals experiencing
an acute psychiatric crisis which may jeopardize their current community living
situation. Services may be provided for up to a 15-day period per crisis
episode following a face-to-face service-specific provider intake by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP. Only one unit of service shall be
reimbursed for this intake. The provision of this service to an individual
shall be registered with either DMAS, DMAS contractors, or the BHSA
within one business day of the completion of the service-specific provider
intake to avoid duplication of services and to ensure informed care
coordination.
a. The goals of crisis stabilization programs shall be to
avert hospitalization or rehospitalization, provide normative environments with
a high assurance of safety and security for crisis intervention, stabilize
individuals in psychiatric crisis, and mobilize the resources of the community
support system and family members and others for on-going maintenance and
rehabilitation. The services must be documented in the individual's records as
having been provided consistent with the ISP in order to receive Medicaid
reimbursement.
b. The crisis stabilization program shall provide to
individuals, as appropriate, psychiatric assessment including medication
evaluation, treatment planning, symptom and behavior management, and individual
and group counseling.
c. This service may be provided in any of the following
settings, but shall not be limited to: (i) the home of an individual who lives
with family or other primary caregiver; (ii) the home of an individual who
lives independently; or (iii) community-based programs licensed by DBHDS to
provide residential services but which are not institutions for mental disease
(IMDs).
d. This service shall not be reimbursed for (i) individuals
with medical conditions that require hospital care; (ii) individuals with a
primary diagnosis of substance abuse; or (iii) individuals with psychiatric
conditions that cannot be managed in the community (i.e., individuals who are
of imminent danger to themselves or others).
e. The maximum limit on this service is 60 days annually.
f. Services must be documented through daily progress notes
and a daily log of times spent in the delivery of services. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual meets criteria for
this service. Individuals qualifying for this service must demonstrate a
clinical necessity for the service arising from an acute crisis of a
psychiatric nature that puts the individual at risk of psychiatric
hospitalization. Individuals must meet at least two of the following criteria
at the time of admission to the service:
(1) Experience difficulty in establishing and maintaining
normal interpersonal relationships to such a degree that the individual is at
risk of psychiatric hospitalization, homelessness, or isolation from social
supports;
(2) Experience difficulty in activities of daily living such
as maintaining personal hygiene, preparing food and maintaining adequate
nutrition, or managing finances to such a degree that health or safety is
jeopardized;
(3) Exhibit such inappropriate behavior that immediate
interventions documented by the mental health, social services, or judicial
system are or have been necessary; or
(4) Exhibit difficulty in cognitive ability such that the
individual is unable to recognize personal danger or significantly
inappropriate social behavior.
g. These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-A, QMHP-C, QMHP-E or a certified
prescreener.
6. Mental health skill-building services (MHSS) shall be
defined as goal-directed training to enable individuals to achieve and maintain
community stability and independence in the most appropriate, least restrictive
environment. Authorization is required for Medicaid reimbursement. Services
that are rendered before the date of service authorization shall not be
reimbursed. These services may be authorized up to six consecutive months as
long as the individual meets the coverage criteria for this service. The
service-specific provider intake, as defined at 12VAC30-50-130, shall document
the individual's behavior and describe how the individual meets criteria for
this service. These services shall provide goal-directed training in the
following areas in order to be reimbursed by Medicaid or the BHSA DMAS
contractor: (i) functional skills and appropriate behavior related to the
individual's health and safety, instrumental activities of daily living, and use
of community resources; (ii) assistance with medication management; and (iii)
monitoring of health, nutrition, and physical condition with goals towards
self-monitoring and self-regulation of all of these activities. Providers shall
be reimbursed only for training activities defined in the ISP and only where
services meet the service definition, eligibility, and service provision
criteria and this section. A review of MHSS services by an LMHP, LMHP-R,
LMHP-RP, or LMHP-S shall be repeated for all individuals who have received at
least six months of MHSS to determine the continued need for this service.
a. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from a condition due to mental,
behavioral, or emotional illness that results in significant functional
impairments in major life activities. Services are provided to individuals who
require individualized goal-directed training in order to achieve or maintain
stability and independence in the community.
b. Individuals ages 21 years of age and older
shall meet all of the following criteria in order to be eligible to receive
mental health skill-building services:
(1) The individual shall have one of the following as a
primary mental health diagnosis:
(a) Schizophrenia or other psychotic disorder as set out in
the DSM-5;
(b) Major depressive disorder;
(c) Recurrent Bipolar I or Bipolar II; or
(d) Any other serious mental health disorder that a physician
has documented specific to the identified individual within the past year and
that includes all of the following: (i) is a serious mental illness; (ii)
results in severe and recurrent disability; (iii) produces functional
limitations in the individual's major life activities that are documented in
the individual's medical record; and (iv) requires individualized training for
the individual in order to achieve or maintain independent living in the
community.
(2) The individual shall require individualized goal-directed
training in order to acquire or maintain self-regulation of basic living
skills, such as symptom management; adherence to psychiatric and physical
health medication treatment plans; appropriate use of social skills and
personal support systems; skills to manage personal hygiene, food preparation,
and the maintenance of personal adequate nutrition; money management; and use
of community resources.
(3) The individual shall have a prior history of any of the
following: (i) psychiatric hospitalization; (ii) either residential or
nonresidential crisis stabilization; (iii) intensive community treatment (ICT)
or program of assertive community treatment (PACT) services; (iv) placement in
a psychiatric residential treatment facility (RTC-Level C) (PRTF)
as a result of decompensation related to the individual's serious mental
illness; or (v) a temporary detention order (TDO) evaluation, pursuant to § 37.2-809
B of the Code of Virginia. This criterion shall be met in order to be initially
admitted to services and not for subsequent authorizations of service. Discharge
summaries from prior providers that clearly indicate (i) the type of treatment
provided, (ii) the dates of the treatment previously provided, and (iii) the
name of the treatment provider shall be sufficient to meet this requirement.
Family member statements shall not suffice to meet this requirement.
(4) The individual shall have had a prescription for
antipsychotic, mood stabilizing, or antidepressant medications within the 12
months prior to the service-specific provider intake date. If a physician or
other practitioner who is authorized by his license to prescribe medications
indicates that antipsychotic, mood stabilizing, or antidepressant medications
are medically contraindicated for the individual, the provider shall obtain
medical records signed by the physician or other licensed prescriber detailing
the contraindication. This documentation shall be maintained in the
individual's mental health skill-building services record, and the provider
shall document and describe how the individual will be able to actively
participate in and benefit from services without the assistance of medication.
This criterion shall be met upon admission to services and shall not be
required for subsequent authorizations of service. Discharge summaries from
prior providers that clearly indicate (i) the type of treatment provided, (ii)
the dates of the treatment previously provided, and (iii) the name of the
treatment provider shall be sufficient to meet this requirement. Family member
statements shall not suffice to meet this requirement.
c. Individuals aged 18 to 21 years of age shall
meet all of the following criteria in order to be eligible to receive mental
health skill-building services:
(1) The individual shall not be living in a supervised setting
as described in § 63.2-905.1 of the Code of Virginia. If the individual is
transitioning into an independent living situation, MHSS shall only be
authorized for up to six months prior to the date of transition.
(2) The individual shall have at least one of the following as
a primary mental health diagnosis.:
(a) Schizophrenia or other psychotic disorder as set out in
the DSM-5;
(b) Major depressive disorder;
(c) Recurrent Bipolar I or Bipolar II; or
(d) Any other serious mental health disorder that a physician
has documented specific to the identified individual within the past year and
that includes all of the following: (i) is a serious mental illness or serious
emotional disturbance; (ii) results in severe and recurrent disability; (iii)
produces functional limitations in the individual's major life activities that
are documented in the individual's medical record; and (iv) requires
individualized training for the individual in order to achieve or maintain
independent living in the community.
(3) The individual shall require individualized goal-directed
training in order to acquire or maintain self-regulation of basic living skills
such as symptom management; adherence to psychiatric and physical health
medication treatment plans; appropriate use of social skills and personal
support systems; skills to manage personal hygiene, food preparation, and the
maintenance of personal adequate nutrition; money management; and use of
community resources.
(4) The individual shall have a prior history of any of the
following: (i) psychiatric hospitalization; (ii) either residential or
nonresidential crisis stabilization; (iii) intensive community treatment (ICT)
or program of assertive community treatment (PACT) services; (iv) placement in
a psychiatric residential treatment facility (RTC-Level C) as a result
of decompensation related to the individual's serious mental illness; or (v)
temporary detention order (TDO) evaluation pursuant to § 37.2-809 B of the Code
of Virginia. This criterion shall be met in order to be initially admitted to
services and not for subsequent authorizations of service. Discharge summaries
from prior providers that clearly indicate (i) the type of treatment provided,
(ii) the dates of the treatment previously provided, and (iii) the name of the
treatment provider shall be sufficient to meet this requirement. Family member
statements shall not suffice to meet this requirement.
(5) The individual shall have had a prescription for
antipsychotic, mood stabilizing, or antidepressant medications, within the 12
months prior to the assessment date. If a physician or other practitioner who
is authorized by his license to prescribe medications indicates that
antipsychotic, mood stabilizing, or antidepressant medications are medically
contraindicated for the individual, the provider shall obtain medical records
signed by the physician or other licensed prescriber detailing the
contraindication. This documentation of medication management shall be
maintained in the individual's mental health skill-building services record. For
individuals not prescribed antipsychotic, mood stabilizing, or antidepressant
medications, the provider shall have documentation from the medication
management physician describing how the individual will be able to actively
participate in and benefit from services without the assistance of medication.
This criterion shall be met in order to be initially admitted to services and
not for subsequent authorizations of service. Discharge summaries from prior
providers that clearly indicate (i) the type of treatment provided, (ii) the
dates of the treatment previously provided, and (iii) the name of the treatment
provider shall be sufficient to meet this requirement. Family member statements
shall not suffice to meet this requirement.
(6) An independent clinical assessment, established in
12VAC30-130-3020, shall be completed for the individual.
d. Service-specific provider intakes shall be required at the
onset of services and individual service plans (ISPs) shall be required during
the entire duration of services. Services based upon incomplete, missing,
or outdated service-specific provider intakes or ISPs shall be denied
reimbursement. Requirements for service-specific provider intakes and ISPs are
set out in 12VAC30-50-130.
e. The yearly limit for mental health skill-building services
is 520 units. Only direct face-to-face contacts and services to the individual
shall be reimbursable. One unit is 1 to 2.99 hours per day, and two
units is 3 to 4.99 hours per day.
f. These services may only be rendered by an LMHP, LMHP-R,
LMHP-RP, LMHP-S, QMHP-A, QMHP-C, QMHP-E, or QPPMH.
g. The provider shall clearly document details of the services
provided during the entire amount of time billed.
h. The ISP shall not include activities that contradict or
duplicate those in the treatment plan established by the therapeutic
group home or assisted living facility. The provider shall coordinate mental
health skill-building services with the treatment plan established by the group
home or assisted living facility and shall document all coordination activities
in the medical record.
i. Limits and exclusions.
(1) Group Therapeutic group home (Level A or
B) and assisted living facility providers shall not serve as the mental
health skill-building services provider for individuals residing in the
provider's respective facility. Individuals residing in facilities may,
however, receive MHSS from another MHSS agency not affiliated with the owner of
the facility in which they reside.
(2) Mental health skill-building services shall not be reimbursed
for individuals who are receiving in-home residential services or congregate
residential services through the Intellectual Disability Waiver or Individual
and Family Developmental Disabilities Support Waiver.
(3) Mental health skill-building services shall not be
reimbursed for individuals who are also receiving services under the Department
of Social Services independent living program (22VAC40-151), independent living
services (22VAC40-131 and 22VAC40-151), or independent living arrangement (22VAC40-131)
or any Comprehensive Services Act-funded independent living skills programs.
(4) Mental health skill-building services shall not be
available to individuals who are receiving treatment foster care
(12VAC30-130-900 et seq.).
(5) Mental health skill-building services shall not be
available to individuals who reside in intermediate care facilities for
individuals with intellectual disabilities or hospitals.
(6) Mental health skill-building services shall not be
available to individuals who reside in nursing facilities, except for up to 60
days prior to discharge. If the individual has not been discharged from the
nursing facility during the 60-day period of services, mental health
skill-building services shall be terminated and no further service authorizations
shall be available to the individual unless a provider can demonstrate and
document that mental health skill-building services are necessary. Such
documentation shall include facts demonstrating a change in the individual's
circumstances and a new plan for discharge requiring up to 60 days of mental
health skill-building services.
(7) Mental health skill-building services shall not be
available for residents of psychiatric residential treatment centers (Level
C facilities) except for the intake code H0032 (modifier U8) in the seven
days immediately prior to discharge.
(8) Mental health skill-building services shall not be
reimbursed if personal care services or attendant care services are being
received simultaneously, unless justification is provided why this is necessary
in the individual's mental health skill-building services record. Medical
record documentation shall fully substantiate the need for services when
personal care or attendant care services are being provided. This applies to
individuals who are receiving additional services through the Intellectual
Disability Waiver (12VAC30-120-1000 et seq.), Individual and Family
Developmental Disabilities Support Waiver (12VAC30-120-700 et seq.), the
Elderly or Disabled with Consumer Direction Waiver (12VAC30-120-900 et seq.),
and EPSDT services (12VAC30-50-130).
(9) Mental health skill-building services shall not be
duplicative of other services. Providers shall be required to ensure that if an
individual is receiving additional therapeutic services that there will be
coordination of services by either the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A,
QMHP-C, QMHP-E, or QPPMH to avoid duplication of services.
(10) Individuals who have organic disorders, such as delirium,
dementia, or other cognitive disorders not elsewhere classified, will be
prohibited from receiving mental health skill-building services unless their
physicians issue signed and dated statements indicating that the individuals
can benefit from this service.
(11) Individuals who are not diagnosed with a serious mental
health disorder but who have personality disorders or other mental health
disorders, or both, that may lead to chronic disability shall not be excluded
from the mental health skill-building services eligibility criteria provided
that the individual has a primary mental health diagnosis from the list
included in subdivision B 6 b (1) or B 6 c (2) of this section and that the
provider can document and describe how the individual is expected to actively
participate in and benefit from mental health skill-building services.
7. Mental health peer support services.
a. Mental health peer support services are peer recovery
support services and are nonclinical, peer-to-peer activities that engage,
educate, and support an individual's self-help efforts to improve health
recovery, resiliency, and wellness. Mental health peer support services for
adults is a person centered, strength-based, and recovery-oriented
rehabilitative service for individuals 21 years of age or older provided
by a peer recovery specialist successful in the recovery process with lived
experience with a mental health disorder, who is trained to offer support and
assistance in helping others in the recovery to reduce the disabling effects of
a mental health disorder that is the focus of support. Services assist the
individual with developing and maintaining a path to recovery, resiliency, and
wellness. Specific peer support service activities shall emphasize the
acquisition, development, and enhancement of recovery, resiliency, and
wellness. Services are designed to promote empowerment, self-determination,
understanding, and coping skills through mentoring and service coordination
supports, as well as to assist individuals in achieving positive coping
mechanisms for the stressors and barriers encountered when recovering from
their illnesses or disorders.
b. Under the clinical oversight of the LMHP making the
recommendation for mental health support services, the peer recovery specialist
in consultation with his direct supervisor shall develop a recovery,
resiliency, and wellness plan based on the LMHP's recommendation for service,
the individual's perceived recovery needs, and any clinical assessments or
service specific provider intakes as defined in this section within 30 calendar
days of the initiation of service. Development of the recovery, resiliency, and
wellness plan shall include collaboration with the individual. Individualized
goals and strategies shall be focused on the individual's identified needs for
self-advocacy and recovery. The recovery, resiliency, and wellness plan shall
also include documentation of how many days per week and how many hours per
week are required to carry out the services in order to meet the goals of the
plan. The recovery, resiliency, and wellness plan shall be completed, signed,
and dated by the LMHP, the PRS, the direct supervisor, and the individual
within 30 calendar days of the initiation of service. The PRS shall act as an
advocate for the individual, encouraging the individual to take a proactive
role in developing and updating goals and objectives in the individualized
recovery planning.
c. Documentation of required activities shall be required as
set forth in 12VAC30-130-5200 A, C, and E through J.
d. Limitations and exclusions to service delivery shall be the
same as set forth in 12VAC30-130-5210.
e. Individuals 21 years of age or older qualifying for
mental health peer support services shall meet the following requirements:
(1) Require recovery-oriented assistance and support services
for the acquisition of skills needed to engage in and maintain recovery; for
the development of self-advocacy skills to achieve a decreasing dependency on
formalized treatment systems; and to increase responsibilities, wellness
potential, and shared accountability for the individual's own recovery.
(2) Have a documented mental health disorder diagnosis.
(3) Demonstrate moderate to severe functional impairment
because of a diagnosis that interferes with or limits performance in at least
one of the following domains: educational (e.g., obtaining a high school or
college degree); social (e.g., developing a social support system); vocational
(e.g., obtaining part-time or full-time employment); self-maintenance (e.g.,
managing symptoms, understanding his illness, living more independently).
f. To qualify for continued mental health peer support
services, medical necessity criteria shall continue to be met, and progress
notes shall document the status of progress relative to the goals identified in
the recovery, resiliency, and wellness plan.
g. Discharge criteria from mental health peer support services
is the same as set forth in 12VAC30-130-5180 E.
h. Mental health peer support services shall be rendered
on an individual basis or in a group.
i. Prior to service initiation, a documented recommendation
for mental health peer support services shall be made by a licensed mental
health professional acting within the scope of practice under state law The
recommendation shall verify that the individual meets the medical necessity
criteria set forth in subdivision 7 e of this subsection. The recommendation
shall be valid for no longer than 30 calendar days.
j. Effective July 1, 2017, a peer recovery specialist shall
have the qualifications, education, experience, and certification established
by DBHDS in order to be eligible to register with the Board of Counseling on or
after July 1, 2018. Upon the promulgation of regulations by the Board of
Counseling, registration of peer recovery specialists by the Board of Counseling
shall be required. The PRS shall perform mental health peer support services
under the oversight of the LMHP making the recommendation for services and
providing the clinical oversight of the recovery, resiliency, and wellness
plan. The PRS shall be employed by or have a contractual relationship with an
enrolled provider licensed for one of the following:
(1) Acute care general hospital licensed by the Department of
Health.
(2) Freestanding psychiatric hospital and inpatient
psychiatric unit licensed by the Department of Behavioral Health and
Developmental Services.
(3) Outpatient mental health clinic services licensed by the
Department of Behavioral Health and Developmental Services.
(4) Outpatient psychiatric services provider.
(5) Rural health clinics and federally qualified health
centers.
(6) Hospital emergency department services licensed by the
Department of Health.
(7) Community mental health and rehabilitative services
provider licensed by the Department of Behavioral Health and Developmental
Services as a provider of one of the following community mental health and
rehabilitative services defined in this section or 12VAC30-50-420 for which the
individual meets medical necessity criteria:
(a) Day treatment or partial hospitalization;
(b) Psychosocial rehabilitation;
(c) Crisis intervention;
(d) Intensive community treatment;
(e) Crisis stabilization;
(f) Mental health skill building; or
(g) Mental health case management.
k. Only the licensed and enrolled provider referenced in
subdivision 7 j of this subsection shall be eligible to bill mental health peer
support services. Payments shall not be permitted to providers that fail to
enter into an enrollment agreement with DMAS or its contractor.
Reimbursement shall be subject to retraction for any billed service that is
determined to not to be in compliance with DMAS requirements.
l. Supervision of the PRS shall be required as set forth in
the definition of "supervision" in 12VAC30-130-5160. Supervision of
the PRS shall also meet the following requirements: the supervisor shall be
under the clinical oversight of the LMHP making the recommendation for
services, and the peer recovery specialist in consultation with his direct
supervisor shall conduct and document a review of the recovery, resiliency, and
wellness plan every 90 calendar days with the individual and the caregiver, as
applicable. The review shall be signed by the PRS and the individual and, as
applicable, the identified family member or caregiver. Review of the recovery,
resiliency, and wellness plan means the PRS evaluates and updates the
individual's progress every 90 days toward meeting the plan's goals and
documents the outcome of this review in the individual's medical record. For
DMAS to determine that these reviews are complete, the reviews shall (i) update
the goals and objectives as needed to reflect any change in the individual's
recovery as well as any newly identified needs, (ii) be conducted in a manner
that enables the individual to actively participate in the process, and (iii)
be documented by the PRS in the individual's medical record no later than 15
calendar days from the date of the review.
DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-50)
Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition, DSM-5, 2013, American Psychiatric Association
Length of Stay by Diagnosis and Operation, Southern Region,
1996, HCIA, Inc.
Guidelines for Perinatal Care, 4th Edition, August 1997,
American Academy of Pediatrics and the American College of Obstetricians and
Gynecologists
Virginia Supplemental Drug Rebate Agreement Contract and
Addenda
Office Reference Manual (Smiles for Children), prepared by
DMAS' Dental Benefits Administrator, copyright 2010, dated March 13, 2014 (http://www.dmas.virginia.gov/Content_atchs/dnt/VA_SFC_ORM_140313.pdf)
Patient Placement Criteria for the Treatment of
Substance-Related Disorders ASAM PPC-2R, Second Edition, copyright 2001,
American Society of Addiction Medicine
Human Services and Related Fields Approved
Degrees/Experience, Department of Behavioral Health and Developmental Services
(rev. 5/13)
Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted on
November 3, 2017, revised on February 9, 2018
12VAC30-60-5. Applicability of utilization review requirements.
A. These utilization requirements shall apply to all Medicaid
covered services unless otherwise specified.
B. Some Medicaid covered services require an approved service
authorization prior to service delivery in order for reimbursement to occur.
1. To obtain service authorization, all providers' information
supplied to the Department of Medical Assistance Services (DMAS), service
authorization contractor, or the behavioral health service authorization
contractor or its contractor shall be fully substantiated throughout
individuals' medical records.
2. Providers shall be required to maintain documentation
detailing all relevant information about the Medicaid individuals who are in providers'
the provider's care. Such documentation shall fully disclose the extent
of services provided in order to support providers' the provider's
claims for reimbursement for services rendered. This documentation shall be
written, signed, and dated at the time the services are rendered unless
specified otherwise.
C. DMAS, or its designee contractor, shall
perform reviews of the utilization of all Medicaid covered services pursuant to
42 CFR 440.260 and 42 CFR Part 456.
D. DMAS shall recover expenditures made for covered services
when providers' documentation does not comport with standards specified in all
applicable regulations.
E. Providers who are determined not to be in compliance with
DMAS requirements shall be subject to 12VAC30-80-130 for the repayment of those
overpayments to DMAS.
F. Utilization review requirements specific to community
mental health services and residential treatment services, including
therapeutic group homes and psychiatric residential treatment facilities (PRTFs),
as set out in 12VAC30-50-130 and 12VAC30-50-226, shall be as follows:
1. To apply to be reimbursed as a Medicaid provider, the
required Department of Behavioral Health and Developmental Services (DBHDS)
license shall be either a full, annual, triennial, or conditional license.
Providers must be enrolled with DMAS or the BHSA its contractor
to be reimbursed. Once a health care entity has been enrolled as a provider, it
shall maintain, and update periodically as DMAS or its contractor
requires, a current Provider Enrollment Agreement for each Medicaid service
that the provider offers.
2. Health care entities with provisional licenses shall not be
reimbursed as Medicaid providers of community mental health services.
3. Payments shall not be permitted to health care entities
that either hold provisional licenses or fail to enter into a Medicaid
Provider Enrollment Agreement provider contract with DMAS or its
contractor for a service prior to rendering that service.
4. The behavioral health service authorization contractor
DMAS or its contractor shall apply a national standardized set of
medical necessity criteria in use in the industry, such as McKesson
InterQual Criteria, or an equivalent standard authorized in advance by
DMAS. Services that fail to meet medical necessity criteria shall be denied
service authorization.
5. For purposes of Medicaid reimbursement for services
provided by staff in residency, the following terms shall be used after their
signatures to indicate such status:
a. An LMHP-R shall use the term "Resident" after
his signature.
b. An LMHP-RP shall use the term "Resident in
Psychology" after his signature.
c. An LMHP-S shall use the term "Supervisee in Social
Work" after his signature.
12VAC30-60-50. Utilization control: Intermediate Care
Facilities care facilities for the Mentally Retarded (ICF/MR)
persons with intellectual and developmental disabilities and Institutions
institutions for Mental Disease (IMD) mental disease.
A. "Institution for mental disease" or
"IMD" means the same as that term is defined in § 1905(i) of the
Social Security Act.
B. With respect to each Medicaid-eligible resident in
an ICF/MR intermediate care facility for persons with intellectual
and developmental disabilities (ICF/ID) or an IMD in Virginia, a
written plan of care must be developed prior to admission to or authorization
of benefits in such facility, and a regular program of independent professional
review (including a medical evaluation) shall be completed periodically for
such services. The purpose of the review is to determine: the adequacy of the
services available to meet his the resident's current health
needs and promote his the resident's maximum physical well being;
the necessity and desirability of his the resident's continued
placement in the facility; and the feasibility of meeting his the
resident's health care needs through alternative institutional or
noninstitutional services. Long-term care of residents in such facilities will
be provided in accordance with federal law that is based on the resident's
medical and social needs and requirements.
B. C. With respect to each ICF/MR ICF/ID
or IMD, periodic on-site onsite inspections of the care being
provided to each person receiving medical assistance, by one or more
independent professional review teams (composed of a physician or registered
nurse and other appropriate health and social service personnel), shall be
conducted. The review shall include, with respect to each recipient, a
determination of the adequacy of the services available to meet his the
resident's current health needs and promote his the resident's
maximum physical well-being, the necessity and desirability of continued
placement in the facility, and the feasibility of meeting his the
resident's health care needs through alternative institutional or
noninstitutional services. Full reports shall be made to the state agency by
the review team of the findings of each inspection, together with any
recommendations.
C. D. In order for reimbursement to be made to
a facility for the mentally retarded persons with intellectual and
developmental disabilities, the resident must meet criteria for placement
in such facility as described in 12VAC30-60-360 and the facility must provide
active treatment for mental retardation intellectual or developmental
disabilities.
D. E. In each case for which payment for
nursing facility services for the mentally retarded persons with
intellectual or developmental disabilities or institution for mental
disease services is made under the State Plan:
1. A physician must certify for each applicant or recipient
that inpatient care is needed in a facility for the mentally retarded or an
institution for mental disease. A certificate of need shall be completed
by an independent certification team according to the requirements of
12VAC30-50-130 D 5. Recertification shall occur at least every 60 calendar days
by a physician, or by a physician assistant or nurse practitioner acting within
their scope of practice as defined by state law and under the supervision of a physician.
The certification must be made at the time of admission or, if an individual
applies for assistance while in the facility, before the Medicaid agency
authorizes payment; and
2. A physician, or physician assistant or nurse practitioner
acting within the scope of the practice as defined by state law and under the
supervision of a physician, must recertify for each applicant at least every 365
60 calendar days that services are needed in a facility for the
mentally retarded persons with intellectual and developmental
disabilities or an institution for mental disease.
E. F. When a resident no longer meets criteria
for facilities for the mentally retarded persons with intellectual
and developmental disabilities or for an institution for mental
disease, or no longer requires active treatment in a facility for the
mentally retarded persons with intellectual and developmental
disabilities then the resident must shall be discharged.
F. G. All services provided in an IMD and in
an ICF/MR ICF/ID shall be provided in accordance with guidelines
found in the Virginia Medicaid Nursing Home Manual.
H. All services provided in an IMD shall be provided with
the applicable provider agreement and all documents referenced therein.
I. Psychiatric services in IMDs shall only be covered for
eligible individuals younger than 21 years of age.
J. IMD services provided without service authorization
from DMAS or its contractor shall not be covered.
K. Absence of any of the required IMD documentation shall
result in denial or retraction of reimbursement.
L. In each case for which payment for IMD services is made
under the State Plan:
1. A physician shall certify at the time of admission, or
at the time the IMD is notified of an individual's retroactive eligibility
status, that the individual requires or required inpatient services in an IMD
consistent with 42 CFR 456.160.
2. The physician, or physician assistant or nurse
practitioner acting within the scope of practice as defined by state law and
under the supervision of a physician, shall recertify at least every 60
calendar days that the individual continues to require inpatient services in an
IMD.
3. Before admission to an IMD or before authorization
for payment, the attending physician or staff physician shall perform a medical
evaluation of the individual, and appropriate personnel shall complete a
psychiatric and social evaluation as described in 42 CFR 456.170.
4. Before admission to an IMD or before authorization for
payment, the attending physician or staff physician shall establish a written
plan of care for each individual as described in 42 CFR 441.155 and 42 CFR
456.180.
M. It shall be documented that the individual requiring
admission to an IMD who is younger than 21 years of age, that treatment is
medically necessary, and that the necessity was identified as a result of an
independent certification of need team review. Required documentation shall
include the following:
1. Diagnosis, as defined in the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition 2013, American Psychiatric
Association, and based on an evaluation by a psychiatrist completed within 30
calendar days of admission or if the diagnosis is confirmed, in writing, by a
previous evaluation completed within one year within admission.
2. A certification of the need for services as defined in
42 CFR 441.152 by an interdisciplinary team meeting the requirements of 42
CFR 441.153 or 42 CFR 441.156 and the Psychiatric Treatment of Minors Act (§
16.1-335 et seq. of the Code of Virginia).
N. The use of seclusion and restraint in an IMD shall be
in accordance with 42 CFR 483.350 through 42 CFR 483.376. Each use of a
seclusion or restraint, as defined in 42 CFR 483.350 through 42 CFR 483.376,
shall be reported by the service provider to DMAS or its contractor within one
calendar day of the incident.
12VAC30-60-61. Services related to the Early and Periodic
Screening, Diagnosis and Treatment Program (EPSDT); community mental health and
behavioral therapy services for children.
A. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context indicates
otherwise:
"At risk" means one or more of the following: (i)
within the two weeks before the intake, the individual shall be screened by an
LMHP for escalating behaviors that have put either the individual or others at
immediate risk of physical injury; (ii) the parent/guardian parent or
guardian is unable to manage the individual's mental, behavioral, or
emotional problems in the home and is actively, within the past two to four
weeks, seeking an out-of-home placement; (iii) a representative of either a
juvenile justice agency, a department of social services (either the state
agency or local agency), a community services board/behavioral health authority,
the Department of Education, or an LMHP, as defined in 12VAC35-105-20, and who
is neither an employee of nor consultant to the intensive in-home (IIH)
services or therapeutic day treatment (TDT) provider, has recommended an
out-of-home placement absent an immediate change of behaviors and when
unsuccessful mental health services are evident; (iv) the individual has a
history of unsuccessful services (either crisis intervention, crisis
stabilization, outpatient psychotherapy, outpatient substance abuse services,
or mental health support) within the past 30 calendar days; or
(v) the treatment team or family assessment planning team (FAPT) recommends IIH
services or TDT for an individual currently who is either: (a) transitioning
out of psychiatric residential treatment facility Level C (PRTF)
services, (b) transitioning out of a therapeutic group home Level A
or B services, (c) transitioning out of acute psychiatric hospitalization,
or (d) transitioning between foster homes, mental health case management,
crisis intervention, crisis stabilization, outpatient psychotherapy, or
outpatient substance abuse services.
"Failed services" or "unsuccessful
services" means, as measured by ongoing behavioral, mental, or physical
distress, that the services did not treat or resolve the individual's mental
health or behavioral issues.
"Individual" means the Medicaid-eligible person
receiving these services and for the purpose of this section includes children
from birth up to 12 years of age or and adolescents ages 12
through 20 years.
"Licensed assistant behavior analyst" means a
person who has met the licensing requirements of 18VAC85-150 and holds a valid
license issued by the Department of Health Professions.
"Licensed behavior analyst" means a person who has
met the licensing requirements of 18VAC85-150 and holds a valid license issued
by the Department of Health Professions.
"New service" means a community mental health
rehabilitation service for which the individual does not have a current service
authorization in effect as of July 17, 2011.
"Out-of-home placement" means placement in one or
more of the following: (i) either a Level A or Level B therapeutic
group home; (ii) regular foster home if the individual is currently residing
with his the individual's biological family and, due to his
behavior problems, is at risk of being placed in the custody of the local
department of social services; (iii) treatment foster care if the individual is
currently residing with his the individual's biological family or
a regular foster care family and, due to the individual's behavioral problems,
is at risk of removal to a higher level of care; (iv) Level C psychiatric
residential treatment facility; (v) emergency shelter for the individual
only due either to his mental health or behavior or both; (vi) psychiatric
hospitalization; or (vii) juvenile justice system or incarceration.
"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized progress notes are part of the minimum documentation
requirements and shall convey the individual's status, staff interventions,
and, as appropriate, the individual's progress or lack of progress toward goals
and objectives in the plan of care. The progress notes shall also include, at a
minimum, the name of the service rendered, the date of the service rendered, the
signature and credentials of the person who rendered the service, the setting
in which the service was rendered, and the amount of time or units required to
deliver the service. The content of each progress note shall corroborate the
time or units billed. Progress notes shall be documented for each service that
is billed.
"Service-specific provider intake" means the
evaluation that is conducted according to the Department of Medical Assistance
Services (DMAS) intake definition set out in 12VAC30-50-130.
B. Utilization review requirements for all services in this
section.
1. The services described in this section shall be rendered
consistent with the definitions, service limits, and requirements described in
this section and in 12VAC30-50-130.
2. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.
3. Individual service plans (ISPs) shall meet all of the
requirements set forth in 12VAC30-60-143 B 7.
C. Utilization review of intensive in-home (IIH) services for
children and adolescents.
1. The service definition for intensive in-home (IIH) services
is contained in 12VAC30-50-130.
2. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from mental, behavioral or emotional
illness that results in significant functional impairments in major life
activities. Individuals must meet at least two of the following criteria on a
continuing or intermittent basis to be authorized for these services:
a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.
b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services or judicial system
are or have been necessary.
c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.
3. Prior to admission, an appropriate service-specific
provider intake, as defined in 12VAC30-50-130, shall be conducted by the
licensed mental health professional (LMHP), LMHP-supervisee, LMHP-resident, or
LMHP-RP, documenting the individual's diagnosis and describing how service
needs can best be met through intervention provided typically but not solely in
the individual's residence. The service-specific provider intake shall describe
how the individual's clinical needs put the individual at risk of out-of-home
placement and shall be conducted face-to-face in the individual's residence.
Claims for services that are based upon service-specific provider intakes that
are incomplete, outdated (more than 12 months old), or missing shall not be
reimbursed.
4. An individual service plan (ISP) shall be fully completed,
signed, and dated by either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a
QMHP-C, or a QMHP-E and the individual and individual's parent/guardian parent
or guardian within 30 calendar days of initiation of services. The
ISP shall meet all of the requirements as defined in 12VAC30-50-226.
5. DMAS shall not reimburse for dates of services in which the
progress notes are not individualized and child-specific. Duplicated progress
notes shall not constitute the required child-specific individualized progress
notes. Each progress note shall demonstrate unique differences particular to
the individual's circumstances, treatment, and progress. Claim payments shall
be retracted for services that are supported by documentation that does not
demonstrate unique differences particular to the individual.
6. Services shall be directed toward the treatment of the
eligible individual and delivered primarily in the family's residence with the
individual present. As clinically indicated, the services may be rendered
in the community if there is documentation, on that date of service, of the
necessity of providing services in the community. The documentation shall describe
how the alternative community service location supports the identified clinical
needs of the individual and describe how it facilitates the implementation of
the ISP. For services provided outside of the home, there shall be
documentation reflecting therapeutic treatment as set forth in the ISP provided
for that date of service in the appropriately signed and dated progress notes.
7. These services shall be provided when the clinical needs of
the individual put him the individual at risk for out-of-home
placement, as these terms are defined in this section:
a. When services that are far more intensive than outpatient
clinic care are required to stabilize the individual in the family situation,;
or
b. When the individual's residence as the setting for services
is more likely to be successful than a clinic.
The service-specific provider intake shall describe how the
individual meets either subdivision 7 a or 7 b of this subdivision
7 subsection.
8. Services shall not be provided if the individual is no
longer a resident of the home.
9. Services shall also be used to facilitate the transition to
home from an out-of-home placement when services more intensive than outpatient
clinic care are required for the transition to be successful. The individual
and responsible parent/guardian parent or guardian shall be
available and in agreement to participate in the transition.
10. At least one parent/legal parent or legal
guardian or responsible adult with whom the individual is living must be
willing to participate in the intensive in-home services with the goal of
keeping the individual with the family. In the instance of this service, a
responsible adult shall be an adult who lives in the same household with the
child and is responsible for engaging in therapy and service-related activities
to benefit the individual.
11. The enrolled provider shall be licensed by the Department
of Behavioral Health and Developmental Services (DBHDS) as a provider of
intensive in-home services. The provider shall also have a provider enrollment
agreement with DMAS or its contractor in effect prior to the delivery of this
service that indicates that the provider will offer intensive in-home services.
12. Services must only be provided by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E. Reimbursement shall
not be provided for such services when they have been rendered by a QPPMH as
defined in 12VAC35-105-20.
13. The billing unit for intensive in-home service shall be
one hour. Although the pattern of service delivery may vary, intensive in-home
services is an intensive service provided to individuals for whom there is an
ISP in effect which demonstrates the need for a minimum of three hours a week
of intensive in-home service, and includes a plan for service provision of a
minimum of three hours of service delivery per individual/family individual
or family per week in the initial phase of treatment. It is expected that
the pattern of service provision may show more intensive services and more
frequent contact with the individual and family initially with a lessening or
tapering off of intensity toward the latter weeks of service. Service plans
shall incorporate an individualized discharge plan that describes transition
from intensive in-home to less intensive or nonhome based services.
14. The ISP, as defined in 12VAC30-50-226, shall be updated as
the individual's needs and progress changes and signed by either the parent or
legal guardian and the individual. Documentation shall be provided if the
individual, who is a minor child, is unable or unwilling to sign the ISP. If
there is a lapse in services that is greater than 31 consecutive calendar days
without any communications from family members/legal members or legal
guardian or the individual with the provider, the provider shall discharge the
individual. If the individual continues to need services, then a new intake/admission
intake or admission shall be documented and a new service authorization
shall be required.
15. The provider shall ensure that the maximum staff-to-caseload
ratio fully meets the needs of the individual.
16. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430,
the provider shall contact the case manager and provide notification of
the provision of services. In addition, the provider shall send monthly updates
to the case manager on the individual's status. A discharge summary shall be
sent to the case manager within 30 calendar days of the service
discontinuation date. Providers and case managers who are using the same
electronic health record for the individual shall meet requirements for
delivery of the notification, monthly updates, and discharge summary upon entry
of the information in the electronic health records.
17. Emergency assistance shall be available 24 hours per day,
seven days a week.
18. Providers shall comply with DMAS marketing requirements at
12VAC30-130-2000. Providers that DMAS determines violate these marketing
requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.
19. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or guardian, shall
inform him the primary care provider of the individual's receipt
of IIH services. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.
D. Utilization review of therapeutic day treatment for
children and adolescents.
1. The service definition for therapeutic day treatment (TDT)
for children and adolescents is contained in 12VAC30-50-130.
2. Therapeutic day treatment is appropriate for children and
adolescents who meet one of the following criteria:
a. Children and adolescents who require year-round treatment
in order to sustain behavior or emotional gains.
b. Children and adolescents whose behavior and emotional
problems are so severe they cannot be handled in self-contained or resource
emotionally disturbed (ED) classrooms without:
(1) This programming during the school day; or
(2) This programming to supplement the school day or school
year.
c. Children and adolescents who would otherwise be placed on
homebound instruction because of severe emotional/behavior problems that
interfere with learning.
d. Children and adolescents who (i) have deficits in social
skills, peer relations or dealing with authority; (ii) are hyperactive; (iii)
have poor impulse control; or (iv) are extremely depressed or marginally
connected with reality.
e. Children in preschool enrichment and early intervention
programs when the children's emotional/behavioral emotional or
behavioral problems are so severe that they the children
cannot function in these programs without additional services.
3. The service-specific provider intake shall document the
individual's behavior and describe how the individual meets these specific
service criteria in subdivision 2 of this subsection.
4. Prior to admission to this service, a service-specific
provider intake shall be conducted by the LMHP as defined in 12VAC35-105-20.
5. An ISP shall be fully completed, signed, and dated by an
LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or QMHP-E and by the
individual or the parent/guardian parent or guardian within 30 calendar
days of initiation of services and shall meet all requirements of an ISP as
defined in 12VAC30-50-226. Individual progress notes shall be required for each
contact with the individual and shall meet all of the requirements as defined
in 12VAC30-50-130 this section.
6. Such services shall not duplicate those services provided
by the school.
7. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from a condition due to mental,
behavioral, or emotional illness that results in significant functional
impairments in major life activities. Individuals shall meet at least two of
the following criteria on a continuing or intermittent basis:
a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.
b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services, or judicial
system are or have been necessary.
c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.
8. The enrolled provider of therapeutic day treatment for
child and adolescent services shall be licensed by DBHDS to provide day support
services. The provider shall also have a provider enrollment agreement in
effect with DMAS prior to the delivery of this service that indicates that the
provider offers therapeutic day treatment services for children and
adolescents.
9. Services shall be provided by an LMHP, LMHP-supervisee,
LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E.
10. The minimum staff-to-individual ratio as defined by DBHDS
licensing requirements shall ensure that adequate staff is available to meet
the needs of the individual identified on the ISP.
11. The program shall operate a minimum of two hours per day
and may offer flexible program hours (i.e., before or after school or during
the summer). One unit of service shall be defined as a minimum of two hours but
less than three hours in a given day. Two units of service shall be defined as
a minimum of three but less than five hours in a given day. Three units of
service shall be defined as five or more hours of service in a given day.
12. Time required for academic instruction when no treatment
activity is going on shall not be included in the billing unit.
13. Services shall be provided following a service-specific
provider intake that is conducted by an LMHP, LMHP-supervisee, LMHP-resident,
or LMHP-RP. An LMHP, LMHP-supervisee, or LMHP-resident shall make and document
the diagnosis. The service-specific provider intake shall include the elements
as defined in 12VAC30-50-130.
14. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider
shall collaborate with the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 calendar days of the service
discontinuation date. Providers and case managers using the same electronic
health record for the individual shall meet requirements for delivery of the
notification, monthly updates, and discharge summary upon entry of this
documentation into the electronic health record.
15. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
the individual's parent or legal guardian, shall inform the primary care
provider of the child's the individual's receipt of community
mental health rehabilitative services. The documentation shall include who was
contacted, when the contact occurred, and what information was transmitted. The
parent/legal parent or legal guardian shall be required to give
written consent that this provider has permission to inform the primary care
provider of the child's or adolescent's receipt of community mental health
rehabilitative services.
16. Providers shall comply with DMAS marketing requirements as
set out in 12VAC30-130-2000. Providers that DMAS determines have violated these
marketing requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.
17. If there is a lapse in services greater than 31
consecutive calendar days, the provider shall discharge the individual. If the
individual continues to need services, a new intake/admission intake
or admission documentation shall be prepared and a new service
authorization shall be required.
E. Utilization review of community-based services for
children and adolescents younger than 21 years of age (Level A).
1. The staff ratio must be at least one to six during the
day and at least one to 10 between 11 p.m. and 7 a.m. The program
director supervising the program/group home must be, at minimum, a QMHP-C or
QMHP-E (as defined in 12VAC35-105-20). The program director must be employed
full time.
2. In order for Medicaid reimbursement to be approved, at
least 50% of the provider's direct care staff at the group home must meet DBHDS
paraprofessional staff criteria, defined in 12VAC35-105-20.
3. Authorization is required for Medicaid reimbursement.
All community-based services for children and adolescents younger than 21
(Level A) require authorization prior to reimbursement for these services.
Reimbursement shall not be made for this service when other less intensive
services may achieve stabilization.
4. Services must be provided in accordance with an
individual service plan (ISP), which must be fully completed within 30 days of
authorization for Medicaid reimbursement.
5. Prior to admission, a service-specific provider intake
shall be conducted according to DMAS specifications described in
12VAC30-50-130.
6. Such service-specific provider intakes shall be
performed by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.
7. If an individual receiving community-based services for
children and adolescents younger than 21 years of age (Level A) is also
receiving case management services, the provider shall collaborate with the
case manager by notifying the case manager of the provision of Level A services
and shall send monthly updates on the individual's progress. When the
individual is discharged from Level A services, a discharge summary shall be
sent to the case manager within 30 days of the service discontinuation
date. Providers and case managers who are using the same electronic health
record for the individual shall meet requirements for the delivery of the
notification, monthly updates, and discharge summary upon entry of this
documentation into the electronic health record.
F. E. Utilization review of therapeutic behavioral
services group home for children and adolescents younger than 21
years of age (Level B).
1. The staff ratio must be at least one to four during the
day and at least one to eight between 11 p.m. and 7 a.m. approved
by the Office of Licensure at the Department of Behavioral Health and Developmental
Services. The clinical director must shall be a licensed
mental health professional. The caseload of the clinical director must not
exceed 16 individuals including all sites for which the same clinical director
is responsible.
2. The program director must shall be full time
and be a QMHP-C or QMHP-E with a bachelor's degree and at least one year's
clinical experience meet the requirements for a program director as
defined in 12VAC35-46-350.
3. For Medicaid reimbursement to be approved, at least 50% of
the provider's direct care staff at the therapeutic group home shall
meet DBHDS paraprofessional staff qualified paraprofessional in
mental health (QPPMH) criteria, as defined in 12VAC35-105-20. The program/group
therapeutic group home must shall coordinate services with
other providers.
4. All therapeutic behavioral group home
services (Level B) shall be authorized prior to reimbursement for these
services. Services rendered without such prior authorization shall not be
covered.
5. Services must be provided in accordance with an ISP a
comprehensive individual plan of care as defined in 12VAC30-50-130, which
shall be fully completed within 30 calendar days of authorization for
Medicaid reimbursement.
6. Prior to admission, a service-specific provider intake
an assessment shall be performed using all elements specified by DMAS in
12VAC30-50-130.
7. Such service-specific provider intakes assessments
shall be performed by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.
8. If an individual receiving therapeutic behavioral group
home services for children and adolescents younger than 21 years of age (Level
B) is also receiving case management services, the therapeutic behavioral
group home services provider must collaborate with the care coordinator/case
manager by notifying him of the provision of Level B therapeutic
group home services and the Level B therapeutic group home
services provider shall send monthly updates on the individual's treatment
status. When the individual is discharged from Level B services, a discharge
summary shall be sent to the care coordinator/case manager within 30 days of
the discontinuation date.
9. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian parent or legally authorized representative, shall inform
the primary care provider of the individual's receipt of these Level B therapeutic
group home services. The documentation shall include who was contacted,
when the contact occurred, and what information was transmitted. If these
individuals are children or adolescents, then the parent/legal guardian parent
or legally authorized representative shall be required to give written
consent that this provider has permission to inform the primary care provider
of the individual's receipt of community mental health rehabilitative services.
G. Utilization review. Utilization reviews for
community-based services for children and adolescents younger than 21 years of
age (Level A) and therapeutic behavioral services for children and adolescents
younger than 21 years of age (Level B) shall include determinations whether
providers meet all DMAS requirements, including compliance with DMAS marketing
requirements. Providers that DMAS determines have violated the DMAS marketing
requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.
H. F. Utilization review of behavioral therapy
services for children individuals younger than 21 years of age.
1. In order for Medicaid to cover behavioral therapy services,
the provider shall be enrolled with DMAS or its contractor as a Medicaid
provider. The provider enrollment agreement shall be in effect prior to the
delivery of services for Medicaid reimbursement.
2. Behavioral therapy services shall be covered for
individuals younger than 21 years of age when recommended by the individual's
primary care provider, licensed physician, licensed physician assistant, or
licensed nurse practitioner and determined by DMAS or its contractor to be
medically necessary to correct or ameliorate significant impairments in major
life activities that have resulted from either developmental, behavioral, or
mental disabilities.
3. Behavioral therapy services require service authorization.
Services shall be authorized only when eligibility and medical necessity
criteria are met.
4. Prior to treatment, an appropriate service-specific
provider intake shall be conducted, documented, signed, and dated by a licensed
behavior analyst (LBA), licensed assistant behavior analyst (LABA), LMHP,
LMHP-R, LMHP-RP, or LMHP-S, acting within the scope of his practice,
documenting the individual's diagnosis (including a description of the
behaviors targeted for treatment with their frequency, duration, and intensity)
and describing how service needs can best be met through behavioral therapy.
The service-specific provider intake shall be conducted face-to-face in the
individual's residence with the individual and parent or guardian.
5. The ISP shall be developed upon admission to the service
and reviewed within 30 days of admission to the service to ensure that all
treatment goals are reflective of the individual's clinical needs and shall
describe each treatment goal, targeted behavior, one or more measurable
objectives for each targeted behavior, the behavioral modification strategy to
be used to manage each targeted behavior, the plan for parent or caregiver
training, care coordination, and the measurement and data collection methods to
be used for each targeted behavior in the ISP. The ISP as defined in
12VAC30-50-130 shall be fully completed, signed, and dated by an LBA, LABA,
LMHP, LMHP-R, LMHP-RP, or LMHP-S. Every three months, the LBA, LABA, LMHP,
LMHP-R, LMHP-RP, or LMHP-S shall review the ISP, modify the ISP as appropriate,
and update the ISP, and all of these activities shall occur with the individual
in a manner in which the individual may participate in the process. The ISP
shall be rewritten at least annually.
6. Reimbursement for the initial service-specific provider
intake and the initial ISP shall be limited to five hours without service
authorization. If additional time is needed to complete these documents,
service authorization shall be required.
7. Clinical supervision shall be required for Medicaid reimbursement
of behavioral therapy services that are rendered by an LABA, LMHP-R, LMHP-RP,
or LMHP-S or unlicensed staff consistent with the scope of practice as
described by the applicable Virginia Department of Health Professions
regulatory board. Clinical supervision of unlicensed staff shall occur at least
weekly. As documented in the individual's medical record, clinical supervision
shall include a review of progress notes and data and dialogue with supervised
staff about the individual's progress and the effectiveness of the ISP.
Clinical supervision shall be documented by, at a minimum, the
contemporaneously dated signature of the clinical supervisor.
8. Family training involving the individual's family and
significant others to advance the treatment goals of the individual shall be
provided when (i) the training with the family member or significant other is
for the direct benefit of the individual, (ii) the training is not aimed at
addressing the treatment needs of the individual's family or significant
others, (iii) the individual is present except when it is clinically
appropriate for the individual to be absent in order to advance the
individual's treatment goals, and (iv) the training is aligned with the goals
of the individual's treatment plan.
9. The following shall not be covered under this service:
a. Screening to identify physical, mental, or developmental
conditions that may require evaluation or treatment. Screening is covered as an
EPSDT service provided by the primary care provider and is not covered as a
behavioral therapy service under this section.
b. Services other than the initial service-specific provider
intake that are provided but are not based upon the individual's ISP or linked
to a service in the ISP. Time not actively involved in providing services
directed by the ISP shall not be reimbursed.
c. Services that are based upon an incomplete, missing, or
outdated service-specific provider intake or ISP.
d. Sessions that are conducted for family support, education,
recreational, or custodial purposes, including respite or child care.
e. Services that are provided by a provider but are rendered
primarily by a relative or guardian who is legally responsible for the
individual's care.
f. Services that are provided in a clinic or provider's office
without documented justification for the location in the ISP.
g. Services that are provided in the absence of the individual
or a parent or other authorized caregiver identified in the ISP with the
exception of treatment review processes described in subdivision 12 e of this
subsection, care coordination, and clinical supervision.
h. Services provided by a local education agency.
i. Provider travel time.
10. Behavioral therapy services shall not be reimbursed
concurrently with community mental health services described in 12VAC30-50-130 B
5 C or 12VAC30-50-226, or behavioral, psychological, or psychiatric
therapeutic consultation described in 12VAC30-120-756, 12VAC30-120-1000,
or 12VAC30-135-320.
11. If the individual is receiving targeted case management
services under the Medicaid state plan State Plan (defined in
12VAC30-50-410 through 12VAC30-50-491 12VAC30-50-491), the
provider shall notify the case manager of the provision of behavioral therapy
services unless the parent or guardian requests that the information not be
released. In addition, the provider shall send monthly updates to the case
manager on the individual's status pursuant to a valid release of information.
A discharge summary shall be sent to the case manager within 30 days of the
service discontinuation date. A refusal of the parent or guardian to release
information shall be documented in the medical record for the date the request
was discussed.
12. Other standards to ensure quality of services:
a. Services shall be delivered only by an LBA, LABA, LMHP,
LMHP-R, LMHP-RP, LMHP-S, or clinically supervised unlicensed staff consistent
with the scope of practice as described by the applicable Virginia Department
of Health Professions regulatory board.
b. Individual-specific services shall be directed toward the
treatment of the eligible individual and delivered in the family's residence
unless an alternative location is justified and documented in the ISP.
c. Individual-specific progress notes shall be created
contemporaneously with the service activities and shall document the name and
Medicaid number of each individual; the provider's name, signature, and date;
and time of service. Documentation shall include activities provided, length of
services provided, the individual's reaction to that day's activity, and
documentation of the individual's and the parent or caregiver's progress toward
achieving each behavioral objective through analysis and reporting of
quantifiable behavioral data. Documentation shall be prepared to clearly demonstrate
efficacy using baseline and service-related data that shows clinical progress
and generalization for the child and family members toward the therapy goals as
defined in the service plan.
d. Documentation of all billed services shall include the amount
of time or billable units spent to deliver the service and shall be signed and
dated on the date of the service by the practitioner rendering the service.
e. Billable time is permitted for the LBA, LABA, LMHP, LMHP-R,
LMHP-RP, or LMHP-S to better define behaviors and develop documentation
strategies to measure treatment performance and the efficacy of the ISP
objectives, provided that these activities are documented in a progress note as
described in subdivision 12 c of this subsection.
13. Failure to comply with any of the requirements in
12VAC30-50-130 or in this section shall result in retraction.
DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-60)
Department of Medical Assistance Services Provider Manuals (https://www.virginiamedicaid.dmas.virginia.gov/wps/portal/ProviderManuals):
Virginia Medicaid Nursing Home Manual
Virginia Medicaid Rehabilitation Manual
Virginia Medicaid Hospice Manual
Virginia Medicaid School Division Manual
Development
of Special Criteria for the Purposes of Pre-Admission Screening, Medicaid Memo,
October 3, 2012, Department of Medical Assistance Services
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition (DSM-IV-TR), copyright 2000, American Psychiatric Association
Patient Placement Criteria for the Treatment of
Substance-Related Disorders (ASAM PPC-2R), Second Edition, copyright 2001,
American Society on Addiction Medicine, Inc.
Medicaid Memo, Reissuance of the Pre-Admission
Screening (PAS) Provider Manual, Chapter IV, November 22, 2016, Department of
Medical Assistance Services
Medicaid Special Memo, Subject: New Service
Authorization Requirement for an Independent Clinical Assessment for Medicaid
and FAMIS Children's Community Mental Health Rehabilitative Services, dated
June 16, 2011, Department of Medical Assistance Services
Medicaid Special Memo, Subject: Changes to
Children Community Mental Health Rehabilitative Services - Children's Services,
July 1, 2010 & September 1, 2010, dated July 23, 2010, Department of
Medical Assistance Services
Medicaid Special Memo, Subject: Changes to
Community Mental Health Rehabilitative Services - Adult-Oriented Services, July
1, 2010 & September 1, 2010, dated July 23, 2010, Department of Medical
Assistance Services
Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted
November 3, 2017, revised February 9, 2018
Part XIV
Residential Psychiatric Treatment for Children and Adolescents (Repealed)
12VAC30-130-850. Definitions. (Repealed.)
The following words and terms when used in this part shall
have the following meanings, unless the context clearly indicates otherwise:
"Active treatment" means implementation of a
professionally developed and supervised individual plan of care that must be
designed to achieve the recipient's discharge from inpatient status at the
earliest possible time.
"Certification" means a statement signed by a
physician that inpatient services in a residential treatment facility are or
were needed. The certification must be made at the time of admission, or, if an
individual applies for assistance while in a mental hospital or residential
treatment facility, before the Medicaid agency authorizes payment.
"Comprehensive individual plan of care" or
"CIPOC" means a written plan developed for each recipient in
accordance with 12VAC30-130-890 to improve his condition to the extent that
inpatient care is no longer necessary.
"Emergency services" means a medical condition
manifesting itself by acute symptoms of sufficient severity (including severe
pain) such that a prudent layperson, who possesses an average knowledge of
health and medicine, could reasonably expect the absence of immediate medical
attention to result in placing the health of the individual (or, with respect
to a pregnant woman, the health of the woman or her unborn child) in serious
jeopardy, serious impairment to bodily functions, or serious dysfunction of any
bodily organ or part.
"Individual" or "individuals" means a
child or adolescent younger than 21 years of age who is receiving a service
covered under this part of this chapter.
"Initial plan of care" means a plan of care
established at admission, signed by the attending physician or staff physician,
that meets the requirements in 12VAC30-130-890.
"Inpatient psychiatric facility" or
"IPF" means a private or state-run freestanding psychiatric hospital
or psychiatric residential treatment center.
"Recertification" means a certification for each
applicant or recipient that inpatient services in a residential treatment
facility are needed. Recertification must be made at least every 60 days by a
physician, or physician assistant or nurse practitioner acting within the scope
of practice as defined by state law and under the supervision of a physician.
"Recipient" or "recipients" means the
child or adolescent younger than 21 years of age receiving this covered
service.
"RTC-Level C" means a psychiatric residential
treatment facility (Level C).
"Services provided under arrangement" means services
including physician and other health care services that are furnished to
children while they are in an IPF that are billed by the arranged practitioners
separately from the IPF per diem.
12VAC30-130-860. Service coverage; eligible individuals;
service certification. (Repealed.)
A. Residential treatment programs (Level C) shall be
24-hour, supervised, medically necessary, out-of-home programs designed to
provide necessary support and address the special mental health and behavioral
needs of a child or adolescent in order to prevent or minimize the need for
more intensive inpatient treatment. Services must include, but shall not be
limited to, assessment and evaluation, medical treatment (including drugs),
individual and group counseling, and family therapy necessary to treat the
child.
B. Residential treatment programs (Level C) shall provide
a total, 24 hours per day, specialized form of highly organized, intensive and
planned therapeutic interventions that shall be utilized to treat some of the
most severe mental, emotional, and behavioral disorders. Residential treatment
is a definitive therapeutic modality designed to deliver specified results for
a defined group of problems for children or adolescents for whom outpatient day
treatment or other less intrusive levels of care are not appropriate, and for
whom a protected, structured milieu is medically necessary for an extended
period of time.
C. Therapeutic Behavioral Services for Children and
Adolescents under 21 (Level B) and Community-Based Services for Children and
Adolescents under 21 (Level A) must be therapeutic services rendered in a
residential type setting such as a group home or program that provides
structure for daily activities, psychoeducation, therapeutic supervision and
mental health care to ensure the attainment of therapeutic mental health goals
as identified in the individual service plan (plan of care). The child or
adolescent must have a medical need for the service arising from a condition
due to mental, behavioral or emotional illness that results in significant
functional impairments in major life activities.
D. Active treatment shall be required. Residential
Treatment, Therapeutic Behavioral and Community-Based Services for Children and
Adolescents under age 21 shall be designed to serve the mental health needs of
children. In order to be reimbursed for Residential Treatment (Level C),
Therapeutic Behavioral Services for Children and Adolescents under 21 (Level
B), and Community-Based Services for Children and Adolescents under 21 (Level
A), the facility must provide active mental health treatment beginning at
admission and it must be related to the recipient's principle diagnosis and
admitting symptoms. To the extent that any recipient needs mental health
treatment and his needs meet the medical necessity criteria for the service, he
will be approved for these services. These services do not include
interventions and activities designed only to meet the supportive nonmental
health special needs, including but not limited to personal care, habilitation
or academic educational needs of the recipients.
E. An individual eligible for Residential Treatment
Services (Level C) is a recipient under the age of 21 years whose treatment
needs cannot be met by ambulatory care resources available in the community,
for whom proper treatment of his psychiatric condition requires services on an
inpatient basis under the direction of a physician.
An individual eligible for Therapeutic Behavioral Services
for Children and Adolescents under 21 (Level B) is a child, under the age of 21
years, for whom proper treatment of his psychiatric condition requires less
intensive treatment in a structured, therapeutic residential program under the
direction of a Licensed Mental Health Professional.
An individual eligible for Community-Based Services for
Children and Adolescents under 21 (Level A) is a child, under the age of 21
years, for whom proper treatment of his psychiatric condition requires less
intensive treatment in a structured, therapeutic residential program under the
direction of a qualified mental health professional. The services for all three
levels can reasonably be expected to improve the child's or adolescent's
condition or prevent regression so that the services will no longer be needed.
F. In order for Medicaid to reimburse for Residential
Treatment (Level C), Therapeutic Behavioral Services for Children and
Adolescents under 21 (Level B), and Community-Based Services for Children and
Adolescents under 21 (Level A), the need for the service must be certified
according to the standards and requirements set forth in subdivisions 1 and 2
of this subsection. At least one member of the independent certifying team must
have pediatric mental health expertise.
1. For an individual who is already a Medicaid recipient
when he is admitted to a facility or program, certification must:
a. Be made by an independent certifying team that includes
a licensed physician who:
(1) Has competence in diagnosis and treatment of pediatric
mental illness; and
(2) Has knowledge of the recipient's mental health history
and current situation.
b. Be signed and dated by a physician and the team.
2. For a recipient who applies for Medicaid while an
inpatient in the facility or program, the certification must:
a. Be made by the team responsible for the plan of care;
b. Cover any period of time before the application for
Medicaid eligibility for which claims for reimbursement by Medicaid are made;
and
c. Be signed and dated by a physician and the team.
12VAC30-130-870. Preauthorization. (Repealed.)
A. Authorization for Residential Treatment (Level C) shall
be required within 24 hours of admission and shall be conducted by DMAS or its
utilization management contractor using medical necessity criteria specified by
DMAS. At preauthorization, an initial length of stay shall be assigned and the
residential treatment provider shall be responsible for obtaining authorization
for continued stay.
B. DMAS will not pay for admission to or continued stay in
residential facilities (Level C) that were not authorized by DMAS.
C. Information that is required in order to obtain
admission preauthorization for Medicaid payment shall include:
1. A completed state-designated uniform assessment
instrument approved by the department.
2. A certification of the need for this service by the team
described in 12VAC30-130-860 that:
a. The ambulatory care resources available in the community
do not meet the specific treatment needs of the recipient;
b. Proper treatment of the recipient's psychiatric
condition requires services on an inpatient basis under the direction of a
physician; and
c. The services can reasonably be expected to improve the
recipient's condition or prevent further regression so that the services will
not be needed.
3. Additional required written documentation shall include
all of the following:
a. Diagnosis, as defined in the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (DSM-IV, effective October 1, 1996),
including Axis I (Clinical Disorders), Axis II (Personality Disorders/Mental
Retardation, Axis III (General Medical Conditions), Axis IV (Psychosocial and
Environmental Problems), and Axis V (Global Assessment of Functioning);
b. A description of the child's behavior during the seven
days immediately prior to admission;
c. A description of alternative placements tried or
explored and the outcomes of each placement;
d. The child's functional level and clinical stability;
e. The level of family support available; and
f. The initial plan of care as defined and specified at
12VAC30-130-890.
D. Continued stay criteria for Residential Treatment
(Level C): information for continued stay authorization (Level C) for Medicaid
payment must include:
1. A state uniform assessment instrument, completed no more
than 90 days prior to the date of submission;
2. Documentation that the required services are provided as
indicated;
3. Current (within the last 30 days) information on
progress related to the achievement of treatment goals. The treatment goals
must address the reasons for admission, including a description of any new
symptoms amenable to treatment;
4. Description of continued impairment, problem behaviors,
and need for Residential Treatment level of care.
E. Denial of service may be appealed by the recipient
consistent with 12VAC30-110-10 et seq.; denial of reimbursement may be appealed
by the provider consistent with the Administrative Process Act (§ 2.2-4000 et
seq. of the Code of Virginia).
F. DMAS will not pay for services for Therapeutic Behavioral
Services for Children and Adolescents under 21 (Level B), and Community-Based
Services for Children and Adolescents under 21 (Level A) that are not prior
authorized by DMAS.
G. Authorization for Level A and Level B residential
treatment shall be required within three business days of admission.
Authorization for services shall be based upon the medical necessity criteria
described in 12VAC30-50-130. The authorized length of stay must not exceed six
months and may be reauthorized. The provider shall be responsible for
documenting the need for a continued stay and providing supporting
documentation.
H. Information that is required in order to obtain
admission authorization for Medicaid payment must include:
1. A current completed state-designated uniform assessment
instrument approved by the department. The state designated uniform assessment
instrument must indicate at least two areas of moderate impairment for Level B
and two areas of moderate impairment for Level A. A moderate impairment is
evidenced by, but not limited to:
a. Frequent conflict in the family setting, for example,
credible threats of physical harm.
b. Frequent inability to accept age appropriate direction
and supervision from caretakers, family members, at school, or in the home or community.
c. Severely limited involvement in social support; which
means significant avoidance of appropriate social interaction, deterioration of
existing relationships, or refusal to participate in therapeutic interventions.
d. Impaired ability to form a trusting relationship with at
least one caretaker in the home, school or community.
e. Limited ability to consider the effect of one's
inappropriate conduct on others, interactions consistently involving conflict,
which may include impulsive or abusive behaviors.
2. A certification of the need for the service by the team
described in 12VAC30-130-860 that:
a. The ambulatory care resources available in the community
do not meet the specific treatment needs of the child;
b. Proper treatment of the child's psychiatric condition
requires services in a community-based residential program; and
c. The services can reasonably be expected to improve the
child's condition or prevent regression so that the services will not be
needed.
3. Additional required written documentation must include
all of the following:
a. Diagnosis, as defined in the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (DSM-IV, effective October 1, 1996),
including Axis I (Clinical Disorders), Axis II (Personality Disorders/Mental
Retardation), Axis III (General Medical Conditions), Axis IV (Psychosocial and
Environmental Problems), and Axis V (Global Assessment of Functioning);
b. A description of the child's behavior during the 30 days
immediately prior to admission;
c. A description of alternative placements tried or
explored and the outcomes of each placement;
d. The child's functional level and clinical stability;
e. The level of family support available; and
f. The initial plan of care as defined and specified at
12VAC30-130-890.
I. Denial of service may be appealed by the child
consistent with 12VAC30-110; denial of reimbursement may be appealed by the
provider consistent with the Administrative Process Act (§ 2.2-4000 et seq. of
the Code of Virginia).
J. Continued stay criteria for Levels A and B:
1. The length of the authorized stay shall be determined by
DMAS or its contractor.
2. A current Individual Service Plan (ISP) (plan of care)
and a current (within 30 days) summary of progress related to the goals and
objectives on the ISP (plan of care) must be submitted for continuation of the
service.
3. For reauthorization to occur, the desired outcome or
level of functioning has not been restored or improved, over the time frame
outlined in the child's ISP (plan of care) or the child continues to be at risk
for relapse based on history or the tenuous nature of the functional gains and
use of less intensive services will not achieve stabilization. Any one of the
following must apply:
a. The child has achieved initial service plan (plan of
care) goals but additional goals are indicated that cannot be met at a lower
level of care.
b. The child is making satisfactory progress toward meeting
goals but has not attained ISP goals, and the goals cannot be addressed at a
lower level of care.
c. The child is not making progress, and the service plan
(plan of care) has been modified to identify more effective interventions.
d. There are current indications that the child requires
this level of treatment to maintain level of functioning as evidenced by
failure to achieve goals identified for therapeutic visits or stays in a
nontreatment residential setting or in a lower level of residential treatment.
K. Discharge criteria for Levels A and B.
1. Reimbursement shall not be made for this level of care
if either of the following applies:
a. The level of functioning has improved with respect to
the goals outlined in the service plan (plan of care) and the child can
reasonably be expected to maintain these gains at a lower level of treatment;
or
b. The child no longer benefits from service as evidenced
by absence of progress toward service plan goals for a period of 60 days.
12VAC30-130-880. Provider qualifications. (Repealed.)
A. Providers must provide all Residential Treatment
Services (Level C) as defined within this part and set forth in 42 CFR Part 441
Subpart D.
B. Providers of Residential Treatment Services (Level C)
must be:
1. A residential treatment program for children and
adolescents licensed by DMHMRSAS that is located in a psychiatric hospital
accredited by the Joint Commission on Accreditation of Healthcare
Organizations;
2. A residential treatment program for children and
adolescents licensed by DMHMRSAS that is located in a psychiatric unit of an
acute general hospital accredited by the Joint Commission on Accreditation of
Healthcare Organizations; or
3. A psychiatric facility that is (i) accredited by the
Joint Commission on Accreditation of Healthcare Organizations, the Commission
on Accreditation of Rehabilitation Facilities, the Council on Quality and
Leadership in Supports for People with Disabilities, or the Council on
Accreditation of Services for Families and Children and (ii) licensed by
DMHMRSAS as a residential treatment program for children and adolescents.
C. Providers of Community-Based Services for Children and
Adolescents under 21 (Level A) must be licensed by the Department of Social
Services, Department of Juvenile Justice, or Department of Education under the
Standards for Interdepartmental Regulation of Children's Residential Facilities
(22VAC42-10).
D. Providers of Therapeutic Behavioral Services (Level B)
must be licensed by the Department of Mental Health, Mental Retardation, and
Substance Abuse Services (DMHMRSAS) under the Standards for Interdepartmental
Regulation of Children's Residential Facilities (22VAC42-10).
12VAC30-130-890. Plans of care; review of plans of care.
(Repealed.)
A. All Medicaid services are subject to utilization review
and audit. The absence of any required documentation may result in denial or
retraction of any reimbursement.
B. For Residential Treatment Services (Level C) (RTS-Level
C), an initial plan of care must be completed at admission and a Comprehensive
Individual Plan of Care (CIPOC) must be completed no later than 14 days after
admission.
C. Initial plan of care
(Level C) must include:
1. Diagnoses, symptoms, complaints, and complications
indicating the need for admission;
2. A description of the functional level of the individual;
3. Treatment objectives with short-term and long-term
goals;
4. Any orders for medications, treatments, restorative and
rehabilitative services, activities, therapies, social services, diet, and
special procedures recommended for the health and safety of the individual and
a list of services provided under arrangement (see 12VAC30-50-130 for eligible
services provided under arrangement) that will be furnished to the individual
through the RTC-Level C's referral to an employed or a contracted provider of
services under arrangement, including the prescribed frequency of treatment and
the circumstances under which such treatment shall be sought;
5. Plans for continuing care, including review and
modification to the plan of care;
6. Plans for discharge; and
7. Signature and date by the physician.
D. The CIPOC for Level C
must meet all of the following criteria:
1. Be based on a diagnostic evaluation that includes
examination of the medical, psychological, social, behavioral, and
developmental aspects of the individual's situation and must reflect the need
for inpatient psychiatric care;
2. Be developed by an interdisciplinary team of physicians
and other personnel specified under subsection G of this section, who are
employed by, or provide services to, patients in the facility in consultation
with the individual and his parents, legal guardians, or appropriate others in
whose care he will be released after discharge;
3. State treatment objectives that must include measurable
short-term and long-term goals and objectives, with target dates for
achievement;
4. Prescribe an integrated program of therapies,
activities, and experiences designed to meet the treatment objectives related
to the diagnosis;
5. Include a list of services provided under arrangement
(described in 12VAC30-50-130) that will be furnished to the individual through
referral to an employee or a contracted provider of services under arrangement,
including the prescribed frequency of treatment and the circumstances under
which such treatment shall be sought; and
6. Describe comprehensive discharge plans and coordination
of inpatient services and post-discharge plans with related community services
to ensure continuity of care upon discharge with the individual's family,
school, and community.
E. Review of the CIPOC for Level C. The CIPOC must be
reviewed every 30 days by the team specified in subsection G of this section
to:
1. Determine that services being provided are or were
required on an inpatient basis; and
2. Recommend changes in the plan as indicated by the
individual's overall adjustment as an inpatient.
F. The development and review of the plan of care for
Level C as specified in this section satisfies the facility's utilization
control requirements for recertification and establishment and periodic review
of the plan of care, as required in 42 CFR 456.160 and 456.180.
G. Team developing the CIPOC for Level C. The following
requirements must be met:
1. At least one member of the team must have expertise in
pediatric mental health. Based on education and experience, preferably
including competence in child psychiatry, the team must be capable of all of
the following:
a. Assessing the individual's immediate and long-range
therapeutic needs, developmental priorities, and personal strengths and liabilities;
b. Assessing the potential resources of the individual's
family;
c. Setting treatment objectives; and
d. Prescribing therapeutic modalities to achieve the plan's
objectives.
2. The team must include, at a minimum, either:
a. A board-eligible or board-certified psychiatrist;
b. A clinical psychologist who has a doctoral degree and a
physician licensed to practice medicine or osteopathy; or
c. A physician licensed to practice medicine or osteopathy
with specialized training and experience in the diagnosis and treatment of
mental diseases, and a psychologist who has a master's degree in clinical
psychology or who has been certified by the state or by the state psychological
association.
3. The team must also include one of the following:
a. A psychiatric social worker;
b. A registered nurse with specialized training or one
year's experience in treating mentally ill individuals;
c. An occupational therapist who is licensed, if required
by the state, and who has specialized training or one year of experience in
treating mentally ill individuals; or
d. A psychologist who has a master's degree in clinical
psychology or who has been certified by the state or by the state psychological
association.
H. The RTC-Level C shall not receive a per diem
reimbursement for any day that:
1. The initial or comprehensive written plan of care fails
to include within three business days of the initiation of the service provided
under arrangement:
a. The prescribed frequency of treatment of such service,
or includes a frequency that was exceeded; or
b. All services that the individual needs while residing at
the RTC-Level C and that will be furnished to the individual through the
RTC-Level C referral to an employed or contracted provider of services under
arrangement;
2. The initial or comprehensive written plan of care fails
to list the circumstances under which the service provided under arrangement
shall be sought;
3. The referral to the service provided under arrangement
was not present in the individual's RTC-Level C record;
4. The service provided under arrangement was not supported
in that provider's records by a documented referral from the RTC-Level C;
5. The medical records from the provider of services under
arrangement (i.e., admission and discharge documents, treatment plans, progress
notes, treatment summaries, and documentation of medical results and findings)
(i) were not present in the individual's RTC-Level C record or had not been
requested in writing by the RTC-Level C within seven days of discharge from or
completion of the service or services provided under arrangement or (ii) had
been requested in writing within seven days of discharge from or completion of
the service or services provided under arrangement, but not received within 30
days of the request, and not re-requested;
6. The RTC-Level C did not have a fully executed contract
or employee relationship with an independent provider of services under
arrangement in advance of the provision of such services. For emergency
services, the RTC-Level C shall have a fully executed contract with the
emergency services provider prior to submission of the emergency service
provider's claim for payment;
7. A physician's order for the service under arrangement is
not present in the record; or
8. The service under arrangement is not included in the
individual's CIPOC within 30 calendar days of the physician's order.
I. The provider of services under arrangement shall be
required to reimburse DMAS for the cost of any such service provided under arrangement
that was (i) furnished prior to receiving a referral or (ii) in excess of the
amounts in the referral. Providers of services under arrangement shall be
required to reimburse DMAS for the cost of any such services provided under
arrangement that were rendered in the absence of an employment or contractual
relationship.
J. For therapeutic behavioral services for children and
adolescents under 21 (Level B), the initial plan of care must be completed at
admission by the licensed mental health professional (LMHP) and a CIPOC must be
completed by the LMHP no later than 30 days after admission. The assessment
must be signed and dated by the LMHP.
K. For community-based services for children and
adolescents under 21 (Level A), the initial plan of care must be completed at
admission by the QMHP and a CIPOC must be completed by the QMHP no later than
30 days after admission. The individualized plan of care must be signed and
dated by the program director.
L. Initial plan of care for Levels A and B must include:
1. Diagnoses, symptoms, complaints, and complications
indicating the need for admission;
2. A description of the functional level of the individual;
3. Treatment objectives with short-term and long-term
goals;
4. Any orders for medications, treatments, restorative and
rehabilitative services, activities, therapies, social services, diet, and
special procedures recommended for the health and safety of the patient;
5. Plans for continuing care, including review and
modification to the plan of care; and
6. Plans for discharge.
M. The CIPOC for Levels A and B must meet all of the
following criteria:
1. Be based on a diagnostic evaluation that includes
examination of the medical, psychological, social, behavioral, and
developmental aspects of the individual's situation and must reflect the need
for residential psychiatric care;
2. The CIPOC for both levels must be based on input from
school, home, other health care providers, the individual and family (or legal
guardian);
3. State treatment objectives that include measurable
short-term and long-term goals and objectives, with target dates for
achievement;
4. Prescribe an integrated program of therapies,
activities, and experiences designed to meet the treatment objectives related
to the diagnosis; and
5. Describe comprehensive discharge plans with related
community services to ensure continuity of care upon discharge with the
individual's family, school, and community.
N. Review of the CIPOC for Levels A and B. The CIPOC must
be reviewed, signed, and dated every 30 days by the QMHP for Level A and by the
LMHP for Level B. The review must include:
1. The response to services provided;
2. Recommended changes in the plan as indicated by the
individual's overall response to the plan of care interventions; and
3. Determinations regarding whether the services being
provided continue to be required.
Updates must be signed and dated by the service provider.
VA.R. Doc. No. R17-4495; Filed July 3, 2019, 8:58 a.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation
Titles of Regulations: 12VAC30-10. State Plan under
Title XIX of the Social Security Act Medical Assistance Program; General Provisions (amending 12VAC30-10-540).
12VAC30-50. Amount, Duration, and Scope of Medical and
Remedial Care Services (amending 12VAC30-50-20, 12VAC30-50-30,
12VAC30-50-60, 12VAC30-50-70, 12VAC30-50-130, 12VAC30-50-226).
12VAC30-60. Standards Established and Methods Used to Assure
High Quality Care (amending 12VAC30-60-5, 12VAC30-60-50,
12VAC30-60-61).
12VAC30-130. Amount, Duration and Scope of Selected Services (repealing 12VAC30-130-850 through
12VAC30-130-890).
Statutory Authority: § 32.1-325 of the Code of
Virginia, 42 USC § 1396 et seq.
Effective Date: August 22, 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.
Summary:
The regulatory action implements Items 301 OO and 301 PP of
Chapter 665 of the 2015 Acts of Assembly, which required the department to
develop and implement a care coordination model and make programmatic changes
in the provision of residential treatment for children. The action replaces
emergency regulations published in 33:13 VA.R. 1436-1469 February 20,
2017, and extended in 35:9 VA.R. 1130 December 24, 2018.
The amendments clarify policy interpretations and revise
program standards to allow for more evidence-based service delivery, allow the
department to implement more effective utilization management in collaboration
with the behavioral health service administrator, enhance individualized
coordination of care, implement standardized coordination of individualized
aftercare resources by ensuring access to medical and behavioral health service
providers in the individual's home community, and support department audit
practices. The action meets the requirements set forth by the Centers for
Medicare and Medicaid Services (CMS) in 42 CFR 441 Subpart D and 42 CFR
441.453.
The amendments include changes to the following areas: (i)
provider qualifications, including acceptable licensing standards; (ii)
preadmission assessment requirements; (iii) program requirements; (iv)
discharge planning and care coordination requirements; and (v) utilization
review requirements to clarify program requirements, ensure adequate
documentation of service delivery, and help providers avoid payment
retractions.
The action requires enhanced care coordination to provide
the necessary objective evaluations of treatment progress and to facilitate
evidence-based practices during the treatment to reduce the length of stay by
ensuring that medical necessity indicates the correct level of care, that
appropriate and effective care is delivered in a person centered manner, and
that service providers and local systems use standardized preadmission and
discharge processes to ensure effective services are delivered. The final
regulatory text is the same as the proposed regulatory text.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
12VAC30-10-540. Inspection of care in intermediate care
facilities for the mentally retarded persons with intellectual and
developmental disabilities, facilities providing inpatient psychiatric
services for individuals under younger than 21 years of age,
and mental hospitals.
All applicable requirements of 42 CFR 456, Subpart I,
are met with respect to periodic inspections of care and services.*
Inpatient psychiatric services for individuals under age
21 are not provided under this plan.
*Inspection of Care (IOC) in Intermediate Care Facilities
for the Mentally Retarded and Institutions for Mental Diseases are Inspection
of care in intermediate care facilities for persons with intellectual and
developmental disabilities is completed through contractual arrangements
with the Virginia Department of Health.
12VAC30-50-20. Services provided to the categorically needy
without limitation.
The following services as described in Part III
(12VAC30-50-100 et seq.) of this chapter are provided to the categorically
needy without limitation:
1. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
2. Services for individuals age 65 years of age
or over older in institutions for mental diseases: inpatient
hospital services; skilled nursing facility services; and services in an
intermediate care facility.
3. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined, in
accordance with § 1902(a)(31)(A) of the Social Security Act (the
Act), to be in need of such care, including such services in a public
institution (or distinct part thereof) for the mentally retarded or
persons with intellectual or developmental disability or related
conditions.
4. Hospice care (in accordance with § 1905(o) of the Act).
5. Any other medical care and any type of remedial care
recognized under state law, specified by the U.S. Secretary of Health
and Human Services: care and services provided in religious nonmedical
health care institutions;, nursing facility services for patients
under younger than 21 years of age;, or
emergency hospital services.
6. Private health insurance premiums, coinsurance, and
deductibles when cost effective (pursuant to Pub. L. P.L. No.
101-508 § 4402).
7. Program of All-Inclusive Care for the Elderly (PACE)
services are provided for eligible individuals as an optional State Plan
service for categorically needy individuals without limitation.
8. Pursuant to Pub. L. P.L. No. 111-148 § 4107,
counseling and pharmacotherapy for cessation of tobacco use by pregnant women
shall be covered.
a. Counseling and pharmacotherapy for cessation of tobacco use
by pregnant women means diagnostic, therapy, and counseling services and
pharmacotherapy (including the coverage of prescription and nonprescription
tobacco cessation agents approved by the U.S. Food and Drug
Administration) for cessation of tobacco use by pregnant women who use tobacco
products or who are being treated for tobacco use that is furnished (i) by or
under the supervision of a physician, (ii) by any other health care professional
who is legally authorized to provide tobacco cessation services under state law
and is authorized to provide Medicaid coverable services other than tobacco
cessation services, or (iii) by any other health care professional who is
legally authorized to provide tobacco cessation services under state law and
who is specifically designated by the U.S. Secretary of Health and Human
Services in federal regulations for this purpose.
b. No cost sharing shall be applied to these services. In
addition to other services that are covered for pregnant women, 12VAC30-50-510
also provides for other smoking cessation services that are covered for
pregnant women.
9. Inpatient psychiatric facility services and residential
psychiatric treatment services (including therapeutic group homes and
psychiatric residential treatment facilities) for individuals younger than 21
years of age.
12VAC30-50-30. Services not provided to the categorically
needy.
The following services and devices are not provided to the
categorically needy:
1. Chiropractors' Chiropractor services.
2. Private duty nursing services.
3. Dentures.
4. Other diagnostic and preventive services other than those
provided elsewhere in this plan: diagnostic services (see (12VAC30-50-95)
et seq.).
5. Inpatient psychiatric facility services for individuals
under 21 years of age, other than those covered under early and periodic
screening, diagnosis, and treatment (at 12VAC30-50-130). (Reserved.)
6. Special tuberculosis (TB) related services under § 1902(z)(2)(F)
of the Social Security Act (the Act).
7. Respiratory care services (in accordance with § 1920(e)(9)(A)
through (C) of the Act).
8. Ambulatory prenatal care for pregnant women furnished
during a presumptive eligibility period by a qualified provider (in accordance
with § 1920 of the Act).
9. Any other medical care and any type of remedial care
recognized under state law specified by the U.S. Secretary of Health
and Human Services: personal care services in recipient's home, prescribed
in accordance with a plan of treatment and provided by a qualified person under
supervision of a registered nurse.
12VAC30-50-60. Services provided to all medically needy groups
without limitations.
Services as described in Part III (12VAC30-50-100 et seq.) of
this chapter are provided to all medically needy groups without limitations.
1. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
2. Early and periodic screening and diagnosis of individuals under
younger than 21 years of age, and treatment of conditions found.
3. Pursuant to Pub. L. P.L. No. 111-148 § 4107,
counseling and pharmacotherapy for cessation of tobacco use by pregnant women
shall be covered.
a. Counseling and pharmacotherapy for cessation of tobacco use
by pregnant women means diagnostic, therapy, and counseling services and
pharmacotherapy (including the coverage of prescription and nonprescription
tobacco cessation agents approved by the U.S. Food and Drug
Administration) for cessation of tobacco use by pregnant women who use tobacco
products or who are being treated for tobacco use that is furnished (i) by or
under the supervision of a physician, (ii) by any other health care
professional who is legally authorized to provide tobacco cessation services
under state law and is authorized to provide Medicaid coverable services other
than tobacco cessation services, or (iii) by any other health care professional
who is legally authorized to provide tobacco cessation services under state law
and who is specifically designated by the U.S. Secretary of Health and Human
Services in federal regulations for this purpose.
b. No cost sharing shall be applied to these services. In
addition to other services that are covered for pregnant women, 12VAC30-50-510
also provides for other smoking cessation services that are covered for
pregnant women.
4. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined in
accordance with § 1905(a)(4)(A) of the Social Security Act (the
Act) to be in need of such care.
5. Hospice care (in accordance with § 1905(o) of the
Act).
6. Any other medical care or any other type of remedial care
recognized under state law, specified by the secretary U.S. Secretary
of Health and Human Services, including: care and services provided in
religious nonmedical health care institutions;, skilled nursing
facility services for patients under younger than 21 years of age;,
and emergency hospital services.
7. Private health insurance premiums, coinsurance and
deductibles when cost effective (pursuant to Pub. L. P.L. No.
101-508 § 4402).
8. Program of All-Inclusive Care for the Elderly (PACE)
services are provided for eligible individuals as an optional State Plan service
for medically needy individuals without limitation.
9. Inpatient psychiatric facility services and residential
psychiatric treatment services (including therapeutic group homes and
psychiatric residential treatment facilities) for individuals younger than 21
years of age.
12VAC30-50-70. Services or devices not provided to the
medically needy.
1. Chiropractors' Chiropractor services.
2. Private duty nursing services.
3. Dentures.
4. Diagnostic or preventive services other than those provided
elsewhere in the State Plan.
5. Inpatient hospital services, skilled nursing facility
services, and intermediate care facility services for individuals age 65
years of age or older in institutions for mental disease(s) diseases.
6. Intermediate care facility services (other than such
services in an institution for mental diseases) for persons determined in
accordance with § 1905(a)(4)(A) of the Social Security Act (the Act),
to be in need of such care in a public institution, or a distinct part thereof,
for the mentally retarded or persons with intellectual or
developmental disability or related conditions.
7. Inpatient psychiatric facility services for individuals
under 21 years of age, other than those covered under early and periodic
screening, diagnosis, and treatment (at 12VAC30-50-130). (Reserved.)
8. Special tuberculosis (TB) services under §
1902(z)(2)(F) of the Act.
9. Respiratory care services (in accordance with § 1920(e)(9)(A)
through (C) of the Act).
10. Ambulatory prenatal care for pregnant women furnished
during a presumptive eligibility period by a qualified provider (in accordance
with § 1920 of the Act).
11. Personal care services in a recipient's home, prescribed
in accordance with a plan of treatment and provided by a qualified person under
supervision of a registered nurse.
12. Home and community care for functionally disabled elderly
individuals, as defined, described and limited in 12VAC30-50-460 and
12VAC30-50-470.
13. Personal care services furnished to an individual who is
not an inpatient or resident of a hospital, nursing facility, intermediate care
facility for the mentally retarded intellectually or developmentally
disabled persons, or institution for mental disease that are (i) authorized
for the individual by a physician in accordance with a plan of treatment, (ii)
provided by an individual who is qualified to provide such services and who is
not a member of the individual's family, and (iii) furnished in a home.
12VAC30-50-130. Nursing facility services, EPSDT, including
school health services, and family planning.
A. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.
Service must be ordered or prescribed and directed or
performed within the scope of a license of the practitioner of the healing
arts.
B. Early General provisions for early and
periodic screening and, diagnosis, and treatment (EPSDT)
of individuals younger than 21 years of age, and treatment of conditions
found.
1. Payment of medical assistance services shall be made on
behalf of individuals younger than 21 years of age, who are Medicaid
eligible, for medically necessary stays in acute care facilities,
and the accompanying attendant physician care, in excess of 21 days per
admission when such services are rendered for the purpose of diagnosis and
treatment of health conditions identified through a physical examination.
2. Routine physicals and immunizations (except as provided
through EPSDT) are not covered except that well-child examinations in a private
physician's office are covered for foster children of the local departments
of social services departments on specific referral from those
departments.
3. Orthoptics services shall only be reimbursed if medically
necessary to correct a visual defect identified by an EPSDT examination or
evaluation. The department DMAS shall place appropriate
utilization controls upon this service.
4. Consistent with § 6403 of the Omnibus Budget
Reconciliation Act of 1989 § 6403, early and periodic screening, diagnostic,
and treatment services means the following services: screening services, vision
services, dental services, hearing services, and such other necessary health
care, diagnostic services, treatment, and other measures described in Social
Security Act § 1905(a) to correct or ameliorate defects and physical and
mental illnesses and conditions discovered by the screening services and that
are medically necessary, whether or not such services are covered under the
State Plan and notwithstanding the limitations, applicable to recipients ages
21 years of age and older, provided for by § 1905(a) of the Social
Security Act.
5. C. Community mental health services provided
through early and periodic screening diagnosis and treatment (EPSDT) for
individuals younger than 21 years of age. These services in order to be
covered (i) shall meet medical necessity criteria based upon diagnoses made by
LMHPs who are practicing within the scope of their licenses and (ii) are
shall be reflected in provider records and on providers' provider
claims for services by recognized diagnosis codes that support and are
consistent with the requested professional services.
a. 1. Definitions. The following words and terms
when used in this section shall have the following meanings unless the context
clearly indicates otherwise:
"Activities of daily living" means personal care
activities and includes bathing, dressing, transferring, toileting, feeding,
and eating.
"Adolescent or child" means the individual
receiving the services described in this section. For the purpose of the use of
these terms this term, adolescent means an individual 12 through
20 years of age; a child means an individual from birth up to 12 years of
age.
"Behavioral health service" means the same as
defined in 12VAC30-130-5160.
"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS.
"Care coordination" means the collaboration
and sharing of information among health care providers, who are involved
with an individual's health care, to improve the care.
"Caregiver" means the same as defined
in 12VAC30-130-5160.
"Certified prescreener" means an employee of the
local community services board or behavioral health authority, or its designee,
who is skilled in the assessment and treatment of mental illness and has
completed a certification program approved by the Department of Behavioral
Health and Developmental Services.
"Clinical experience" means providing direct
behavioral health services on a full-time basis or equivalent hours of
part-time work to children and adolescents who have diagnoses of mental illness
and includes supervised internships, supervised practicums, and supervised
field experience for the purpose of Medicaid reimbursement of (i) intensive
in-home services, (ii) day treatment for children and adolescents, (iii)
community-based residential services for children and adolescents who are
younger than 21 years of age (Level A), or (iv) therapeutic behavioral services
(Level B). Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be as
established by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.
"Child" means an individual ages birth through 11
years.
"DBHDS" means the Department of Behavioral Health
and Developmental Services.
"Direct supervisor" means the person who provides
direct supervision to the peer recovery specialist. The direct supervisor (i)
shall have two consecutive years of documented practical experience rendering
peer support services or family support services, have certification training
as a PRS under a certifying body approved by DBHDS, and have documented
completion of the DBHDS PRS supervisor training; (ii) shall be a qualified
mental health professional (QMHP-A, QMHP-C, or QMHP-E) as defined in 12VAC35-105-20
with at least two consecutive years of documented experience as a QMHP, and who
has documented completion of the DBHDS PRS supervisor training; or (iii) shall
be an LMHP who has documented completion of the DBHDS PRS supervisor training
who is acting within his scope of practice under state law. An LMHP providing
services before April 1, 2018, shall have until April 1, 2018, to complete the
DBHDS PRS supervisor training.
"DMAS" means the Department of Medical Assistance
Services and its contractors.
"EPSDT" means early and periodic screening,
diagnosis, and treatment.
"Family support partners" means the same as defined
in 12VAC30-130-5170.
"Human services field" means the same as the term is
defined by DBHDS the Department of Health Professions in the
document entitled Human Services and Related Fields Approved
Degrees/Experience, issued March 12, 2013, revised May 3, 2013 Approved
Degrees in Human Services and Related Fields for QMHP Registration, adopted
November 3, 2017, revised February 9, 2018.
"Individual service plan" or "ISP" means
the same as the term is defined in 12VAC30-50-226.
"Licensed mental health professional" or
"LMHP" means the same as defined in 12VAC35-105-20.
"LMHP-resident" or "LMHP-R" means the same
as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of
Counseling. For purposes of Medicaid reimbursement to their supervisors for
services provided by such residents, they shall use the title
"Resident" in connection with the applicable profession after their signatures
to indicate such status.
"LMHP-resident in psychology" or "LMHP-RP"
means the same as an individual in a residency, as that term is defined in
18VAC125-20-10, program for clinical psychologists. An LMHP-resident in
psychology shall be in continuous compliance with the regulatory requirements
for supervised experience as found in 18VAC125-20-65 and shall not perform the
functions of the LMHP-RP or be considered a "resident" until the
supervision for specific clinical duties at a specific site has been
preapproved in writing by the Virginia Board of Psychology. For purposes of
Medicaid reimbursement by supervisors for services provided by such residents,
they shall use the title "Resident in Psychology" after their
signatures to indicate such status.
"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" as defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be
considered a "supervisee" until the supervision for specific clinical
duties at a specific site is preapproved in writing by the Virginia Board of
Social Work. For purposes of Medicaid reimbursement to their supervisors for
services provided by supervisees, these persons shall use the title
"Supervisee in Social Work" after their signatures to indicate such
status.
"Peer recovery specialist" or "PRS" means
the same as defined in 12VAC30-130-5160.
"Person centered" means the same as defined in
12VAC30-130-5160.
"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized and member-specific progress notes are part of the
minimum documentation requirements and shall convey the individual's status,
staff interventions, and, as appropriate, the individual's progress, or lack of
progress, toward goals and objectives in the ISP. The progress notes shall also
include, at a minimum, the name of the service rendered, the date of the
service rendered, the signature and credentials of the person who rendered the
service, the setting in which the service was rendered, and the amount of time
or units/hours required to deliver the service. The content of each progress
note shall corroborate the time/units billed. Progress notes shall be
documented for each service that is billed.
"Psychoeducation" means (i) a specific form of
education aimed at helping individuals who have mental illness and their family
members or caregivers to access clear and concise information about mental
illness and (ii) a way of accessing and learning strategies to deal with mental
illness and its effects in order to design effective treatment plans and
strategies.
"Psychoeducational activities" means systematic
interventions based on supportive and cognitive behavior therapy that
emphasizes an individual's and his family's needs and focuses on increasing the
individual's and family's knowledge about mental disorders, adjusting to mental
illness, communicating and facilitating problem solving and increasing coping
skills.
"Qualified mental health professional-child" or
"QMHP-C" means the same as the term is defined in 12VAC35-105-20.
"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-590 including a
"QMHP-trainee" as defined by the Department of Health Professions.
"Qualified paraprofessional in mental health" or
"QPPMH" means the same as the term is defined in
12VAC35-105-20 and consistent with the requirements of 12VAC35-105-1370.
"Recovery-oriented services" means the same as
defined in 12VAC30-130-5160.
"Recovery, resiliency, and wellness plan" means the
same as defined in 12VAC30-130-5160.
"Resiliency" means the same as defined in
12VAC30-130-5160.
"Self-advocacy" means the same as defined in
12VAC30-130-5160.
"Service-specific provider intake" means the
face-to-face interaction in which the provider obtains information from the
child or adolescent, and parent or other family member as appropriate, about
the child's or adolescent's mental health status. It includes documented
history of the severity, intensity, and duration of mental health care problems
and issues and shall contain all of the following elements: (i) the presenting issue/reason
issue or reason for referral, (ii) mental health
history/hospitalizations, (iii) previous interventions by providers and
timeframes and response to treatment, (iv) medical profile, (v) developmental
history including history of abuse, if appropriate, (vi) educational/vocational
educational or vocational status, (vii) current living situation and
family history and relationships, (viii) legal status, (ix) drug and alcohol
profile, (x) resources and strengths, (xi) mental status exam and profile,
(xii) diagnosis, (xiii) professional summary and clinical formulation, (xiv)
recommended care and treatment goals, and (xv) the dated signature of the LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.
"Services provided under arrangement" means the
same as defined in 12VAC30-130-850.
"Strength-based" means the same as defined in
12VAC30-130-5160.
"Supervision" means the same as defined in
12VAC30-130-5160.
b. 2. Intensive in-home services (IIH) to
children and adolescents younger than 21 years of age shall be time-limited
interventions provided in the individual's residence and when clinically
necessary in community settings. All interventions and the settings of the
intervention shall be defined in the Individual Service Plan. All IIH services
shall be designed to specifically improve family dynamics, and
provide modeling, and the clinically necessary interventions that
increase functional and therapeutic interpersonal relations between family
members in the home. IIH services are designed to promote psychoeducational
benefits of psychoeducation in the home setting of an individual who is
at risk of being moved into an out-of-home placement or who is being
transitioned to home from an out-of-home placement due to a documented medical
need of the individual. These services provide crisis treatment; individual and
family counseling; communication skills (e.g., counseling to assist the
individual and his the individual's parents or guardians, as
appropriate, to understand and practice appropriate problem solving, anger
management, and interpersonal interaction, etc.); care coordination with other
required services; and 24-hour emergency response.
(1) a. Service authorization shall be required
for Medicaid reimbursement prior to the onset of services. Services rendered
before the date of authorization shall not be reimbursed.
(2) b. Service-specific provider intakes shall
be required prior to the start of services at the onset of services and
ISPs shall be required during the entire duration of services. Services based
upon incomplete, missing, or outdated service-specific provider intakes or ISPs
shall be denied reimbursement. Requirements for service-specific provider
intakes and ISPs are set out in this section.
(3) c. These services may shall
only be rendered by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C,
or a QMHP-E.
c. 3. Therapeutic day treatment (TDT) shall be
provided two or more hours per day in order to provide therapeutic
interventions (a unit is defined in 12VAC30-60-61 D 11). Day treatment
programs provide evaluation; medication education and management; opportunities
to learn and use daily living skills and to enhance social and interpersonal
skills (e.g., problem solving, anger management, community responsibility,
increased impulse control, and appropriate peer relations, etc.); and
individual, group, and family counseling.
(1) a. Service authorization shall be required
for Medicaid reimbursement.
(2) b. Service-specific provider intakes shall be
required at prior to the onset start of services,
and ISPs shall be required during the entire duration of services. Services
based upon incomplete, missing, or outdated service-specific provider intakes
or ISPs shall be denied reimbursement. Requirements for service-specific
provider intakes and ISPs are set out in this section.
(3) c. These services may shall be
rendered only by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or
a QMHP-E.
d. Community-based services for children and adolescents
younger than 21 years of age (Level A) pursuant to 42 CFR 440.031(d).
(1) Such services shall be a combination of therapeutic
services rendered in a residential setting. The residential services will
provide structure for daily activities, psychoeducation, therapeutic
supervision, care coordination, and psychiatric treatment to ensure the
attainment of therapeutic mental health goals as identified in the individual
service plan (plan of care). Individuals qualifying for this service must
demonstrate medical necessity for the service arising from a condition due to
mental, behavioral or emotional illness that results in significant functional
impairments in major life activities in the home, school, at work, or in the
community. The service must reasonably be expected to improve the child's
condition or prevent regression so that the services will no longer be needed.
The application of a national standardized set of medical necessity criteria in
use in the industry, such as McKesson InterQual® Criteria or an
equivalent standard authorized in advance by DMAS, shall be required for this
service.
(2) In addition to the residential services, the child must
receive, at least weekly, individual psychotherapy that is provided by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.
(3) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.
(4) Authorization shall be required for Medicaid
reimbursement. Services that were rendered before the date of service authorization
shall not be reimbursed.
(5) Room and board costs shall not be reimbursed. DMAS
shall reimburse only for services provided in facilities or programs with no
more than 16 beds.
(6) These residential providers must be licensed by the
Department of Social Services, Department of Juvenile Justice, or Department of
Behavioral Health and Developmental Services under the Standards for Licensed
Children's Residential Facilities (22VAC40-151), Regulation Governing Juvenile
Group Homes and Halfway Houses (6VAC35-41), or Regulations for Children's
Residential Facilities (12VAC35-46).
(7) Daily progress notes shall document a minimum of seven
psychoeducational activities per week. Psychoeducational programming must
include development or maintenance of daily living skills, anger management,
social skills, family living skills, communication skills, stress management,
and any care coordination activities.
(8) The facility/group home must coordinate services with
other providers. Such care coordination shall be documented in the individual's
medical record. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.