REGISTER INFORMATION PAGE
Vol. 36 Iss. 11 - January 20, 2020

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.

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. 36 Iss. 11 - January 20, 2020

February 2020 through December 2020

Volume: Issue

Material Submitted By Noon*

Will Be Published On

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

36:26

July 29, 2020

August 17, 2020

37:1

August 12, 2020

August 31, 2020

37:2

August 26, 2020

September 14, 2020

37:3

September 9, 2020

September 28, 2020

37:4

September 23, 2020

October 12, 2020

37:5

October 7, 2020

October 26, 2020

37:6

October 21, 2020

November 9, 2020

37:7

November 4, 2020

November 23, 2020

37:8

November 16, 2020 (Monday)

December 7, 2020

37:9

December 2, 2020

December 21, 2020

*Filing deadlines are Wednesdays unless otherwise specified.


PERIODIC REVIEWS AND SMALL BUSINESS IMPACT REVIEWS
Vol. 36 Iss. 11 - January 20, 2020

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a small business impact review of 2VAC5-20, Standards for Classification of Real Estate as Devoted to Agricultural Use and to Horticultural Use under the Virginia Land Use Assessment Law, and determined that this regulation should be amended.

The proposed regulatory action to amend 2VAC5-20, which is published in this issue of the Virginia Register, serves as the report of findings.

Agency Contact: Kevin Schmidt, Director, Office of Policy, Planning and Research, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1346, FAX (804) 371-7679, TTY (800) 828-1120, or email kevin.schmidt@vdacs.virginia.gov.

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TITLE 4. CONSERVATION AND NATURAL RESOURCES

BOARD OF CONSERVATION AND RECREATION

Agency Notice

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review: 4VAC3-11, Public Participation Guidelines. The review of this regulation will be guided by the principles in Executive Order 14 (as amended July 16, 2018).

The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Public comment period begins January 20, 2020, and ends February 10, 2020.

Comments may be submitted online to the Virginia Regulatory Town Hall at http://www.townhall.virginia.gov/L/Forums.cfm or sent to the agency contact.

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Town Hall and a report of the small business impact review will be published in the Virginia Register of Regulations.

Contact Information: Lisa McGee, Policy and Planning Director, Department of Conservation and Recreation, 600 East Main Street, 24th Floor, Richmond, VA 23219, telephone (804) 786-4378, FAX (804) 786-6141, or email lisa.mcgee@dcr.virginia.gov.

DEPARTMENT OF CONSERVATION AND RECREATION

Agency Notice

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review: 4VAC5-11, Public Participation Guidelines. The review of this regulation will be guided by the principles in Executive Order 14 (as amended July 16, 2018).

The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Public comment period begins January 20, 2020, and ends February 10, 2020.

Comments may be submitted online to the Virginia Regulatory Town Hall at http://www.townhall.virginia.gov/L/Forums.cfm or sent to the agency contact.

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Town Hall and a report of the small business impact review will be published in the Virginia Register of Regulations.

Contact Information: Lisa McGee, Policy and Planning Director, Department of Conservation and Recreation, 600 East Main Street, 24th Floor, Richmond, VA 23219, telephone (804) 786-4378, FAX (804) 786-6141, or email lisa.mcgee@dcr.virginia.gov.

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TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the State Board of Behavioral Health and Developmental Services conducted a small business impact review of 12VAC35-180, Regulations to Assure the Protection of Subjects in Human Research, and determined that this regulation should be amended.

The fast-track regulatory action to amend 12VAC35-180, which is published in this issue of the Virginia Register, serves as the report of findings.

Agency Contact: Ruth Anne Walker, Director of Regulatory Affairs, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 11th Floor, Richmond, VA 23219, telephone (804) 225-2252, FAX (804) 786-8623, TTY (804) 371-8977, or email ruthanne.walker@dbhds.virginia.gov.

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TITLE 22. SOCIAL SERVICES

DEPARTMENT FOR AGING AND REHABILITATIVE SERVICES

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Department for Aging and Rehabilitative Services conducted a small business impact review of 22VAC30-100, Adult Protective Services, and determined that this regulation should be amended.

The proposed regulatory action to amend 22VAC30-100, which is published in this issue of the Virginia Register, serves as the report of findings.

Agency Contact: Paige L. McCleary, Adult Services Program Consultant, Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive, Richmond, VA 23229, telephone (804) 662-7605, or email paige.mccleary@dars.virginia.gov.

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TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMONWEATH TRANSPORTATION BOARD

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Commonwealth Transportation Board conducted a small business impact review of 24VAC30-530, Roadway and Structure Lighting, and determined that this regulation should be repealed.

The final regulatory action to amend 24VAC30-530, which is published in this issue of the Virginia Register, serves as the report of findings.

Agency Contact: Jo Anne P. Maxwell, Regulatory Coordinator, Policy Division, Department of Transportation, 11th Floor, 1401 East Broad Street, Richmond, VA 23219, telephone (804) 786‑1830, or email joanne.maxwell@vdot.virginia.gov.

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Commonwealth Transportation Board conducted a small business impact review of 24VAC30-580, Guidelines for Considering Requests for Restricting Through Trucks on Primary and Secondary Highways, and determined that this regulation should be amended.

The final regulatory action to amend 24VAC30-580, which is published in this issue of the Virginia Register, serves as the report of findings.

Agency Contact: Jo Anne P. Maxwell, Regulatory Coordinator, Policy Division, Department of Transportation, 11th Floor, 1401 East Broad Street, Richmond, VA 23219, telephone (804) 786‑1830, or email joanne.maxwell@vdot.virginia.gov.

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Commonwealth Transportation Board conducted a small business impact review of 24VAC30-590, Policies and Procedures for Control of Residential and Non-Residential Cut-Through Traffic, and determined that this regulation should be repealed.

The final regulatory action to amend 24VAC30-590, which is published in this issue of the Virginia Register, serves as the report of findings.

Agency Contact: Jo Anne P. Maxwell, Regulatory Coordinator, Policy Division, Department of Transportation, 11th Floor, 1401 East Broad Street, Richmond, VA 23219, telephone (804) 786‑1830, or email joanne.maxwell@vdot.virginia.gov.

NOTICES OF INTENDED REGULATORY ACTION
Vol. 36 Iss. 11 - January 20, 2020

TITLE 1. ADMINISTRATION
Certification of Noncommercial Environmental Laboratories
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Department of General Services intends to consider amending 1VAC30-45, Certification of Noncommercial Environmental Laboratories and 1VAC30-46, Accreditation for Commercial Environmental Laboratories. 1VAC30-46 sets out the requirements to accredit commercial laboratories that analyze environmental samples used to determine compliance with State Water Control Law, Virginia Waste Management Act, and Virginia Pollution Control Law. 1VAC30-46 uses the National Environmental Laboratory Accreditation Conference (NELAC) Institute (TNI) standards for this accreditation. The TNI standards are revised every few years, and the proposed action replaces the 2009 TNI standards in the regulation with the 2016 TNI standards. Commercial environmental laboratories must meet these standards to remain accredited under the nationally-accepted TNI program. 1VAC30-45 sets out the requirements to certify noncommercial laboratories that analyze environmental samples used to determine compliance with the State Water Control Law, Virginia Waste Management Act, and the Virginia Air Pollution Control Law. The proposed action revises 1VAC30-45 to include proposed changes in the 2016 TNI Standards that provide more flexibility so that the standards for noncommercial environmental laboratories are no more stringent than the standards for commercial environmental laboratories.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 2.2-1105 of the Code of Virginia.

Public Comment Deadline: February 19, 2020.

Agency Contact: Rhonda Bishton, Director's Executive Administrative Assistant, Department of General Services, 1100 Bank Street, Suite 420, Richmond, VA 23219, telephone (804) 786-3311, FAX (804) 371-8305, or email rhonda.bishton@dgs.virginia.gov.

VA.R. Doc. No. R20-6196; Filed December 19, 2019, 9:02 a.m.
TITLE 1. ADMINISTRATION
Accreditation for Commercial Environmental Laboratories
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Department of General Services intends to consider amending 1VAC30-45, Certification of Noncommercial Environmental Laboratories and 1VAC30-46, Accreditation for Commercial Environmental Laboratories. 1VAC30-46 sets out the requirements to accredit commercial laboratories that analyze environmental samples used to determine compliance with State Water Control Law, Virginia Waste Management Act, and Virginia Pollution Control Law. 1VAC30-46 uses the National Environmental Laboratory Accreditation Conference (NELAC) Institute (TNI) standards for this accreditation. The TNI standards are revised every few years, and the proposed action replaces the 2009 TNI standards in the regulation with the 2016 TNI standards. Commercial environmental laboratories must meet these standards to remain accredited under the nationally-accepted TNI program. 1VAC30-45 sets out the requirements to certify noncommercial laboratories that analyze environmental samples used to determine compliance with the State Water Control Law, Virginia Waste Management Act, and the Virginia Air Pollution Control Law. The proposed action revises 1VAC30-45 to include proposed changes in the 2016 TNI Standards that provide more flexibility so that the standards for noncommercial environmental laboratories are no more stringent than the standards for commercial environmental laboratories.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 2.2-1105 of the Code of Virginia.

Public Comment Deadline: February 19, 2020.

Agency Contact: Rhonda Bishton, Director's Executive Administrative Assistant, Department of General Services, 1100 Bank Street, Suite 420, Richmond, VA 23219, telephone (804) 786-3311, FAX (804) 371-8305, or email rhonda.bishton@dgs.virginia.gov.

VA.R. Doc. No. R20-6196; Filed December 19, 2019, 9:02 a.m.
TITLE 8. EDUCATION
Regulations Governing the Review and Approval of Education Programs in Virginia
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Board of Education intends to consider amending 8VAC20-543, Regulations Governing the Review and Approval of Education Programs in Virginia. The purpose of the proposed action is to establish dual language endorsements for preK through grade 6 and an economics and personal finance add-on endorsement. Amendments to 8VAC20-23, Licensure Regulations for School Personnel, regarding these endorsements are proposed in a separate regulatory action; however, the endorsements also should be included in the Regulations Governing the Review and Approval of Education Programs in Virginia. The endorsement in dual language is required by Chapter 391 of the 2018 Acts of Assembly, and the endorsement in economics and personal finance will expand the number of teachers who may teach economics and personal finance.

The agency does not intend to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 22.1-298.2 of the Code of Virginia.

Public Comment Deadline: February 19, 2020.

Agency Contact: Patty Pitts, Assistant Superintendent for Teacher Education and Licensure, Department of Education, P.O. Box 2120, Richmond, VA 23219, telephone (804) 371-2522, or email patty.pitts@doe.virginia.gov.

VA.R. Doc. No. R20-6234; Filed December 23, 2019, 3:39 p.m.
TITLE 9. ENVIRONMENT
Water Quality Management Planning Regulation
Notice of Intended Regulatory Action

EDITOR'S NOTICE: The State Water Control Board has extended the public comment deadline until February 19, 2020, for the Notice of Intended Regulatory Action previously published in 36:7 VA.R. 986 November 25, 2019. The notice is republished here.

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Water Control Board intends to consider amending 9VAC25-720, Water Quality Management Planning Regulation and 9VAC25-820, General Virginia Pollutant Discharge Elimination System (VPDES) Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia. The Water Quality Management Planning Regulation (9VAC25-720) includes wasteload allocations for dischargers of pollutants to various river basins throughout the Commonwealth of Virginia including total nitrogen (TN) and total phosphorus (TP) wasteload allocations necessary for the restoration of water quality in the Chesapeake Bay and its tidal tributaries. The purpose of the proposed action is to amend 9VAC25-720-50 C (Potomac-Shenandoah River Basin), 9VAC25-720-60 C (James River Basin), 9VAC25-720-70 C (Rappahannock River Basin), 9VAC25-720-110 C (Chesapeake Bay – Small Coastal – Eastern Shore River Basin), and 9VAC25-720-120 C (York River Basin) to (i) establish TN and TP wasteload allocations to meet revised water quality criteria for Chlorophyll-a in the tidal James River Basin; (ii) reallocate any unneeded significant industrial discharger allocations to other facilities registered under the General Virginia Pollutant Discharge Elimination System Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia (9VAC25-820) or reserve any unneeded allocations for future use; and (iii) establish floating wasteload allocations for significant municipal dischargers based on the average daily flow treated by the facility in a given year and nutrient concentrations of 4.0 mg/l TN and 0.30 mg/l TP. Existing "primary" wasteload allocations will remain, and in any given year the facility will be required to meet the lesser of the primary or floating allocations. Facilities with special circumstances could be assigned alternative floating wasteload allocations or possibly no floating wasteload allocation. The board may consider exempting a subset of the smallest significant dischargers that in aggregate represent a minor percentage of the expected load reductions from this regulatory action. Special consideration may also be appropriate for treatment plants that reclaim and reuse a significant portion of their wastewater flow. The board may, if necessary to implement amendments to 9VAC25-720, also propose amendments to 9VAC25-820.

In addition, pursuant to Executive Order 14 (as amended, July 16, 2018) and § 2.2-4007.1 of the Code of Virginia, the agency is conducting a periodic review and small business impact review of 9VAC25-720 to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare; (ii) minimizes the economic impact on small businesses consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1313(e) of the Clean Water Act.

Public Comment Deadline: February 19, 2020.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 689-4103, FAX (804) 698-4319, or email gary.graham@deq.virginia.gov.

VA.R. Doc. No. R20-6191; Filed January 2, 2020, 9:53 a.m.
TITLE 9. ENVIRONMENT
General Virginia Pollutant Discharge Elimination System (VPDES) Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia
Notice of Intended Regulatory Action

EDITOR'S NOTICE: The State Water Control Board has extended the public comment deadline until February 19, 2020, for the Notice of Intended Regulatory Action previously published in 36:7 VA.R. 986 November 25, 2019. The notice is republished here.

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Water Control Board intends to consider amending 9VAC25-720, Water Quality Management Planning Regulation and 9VAC25-820, General Virginia Pollutant Discharge Elimination System (VPDES) Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia. The Water Quality Management Planning Regulation (9VAC25-720) includes wasteload allocations for dischargers of pollutants to various river basins throughout the Commonwealth of Virginia including total nitrogen (TN) and total phosphorus (TP) wasteload allocations necessary for the restoration of water quality in the Chesapeake Bay and its tidal tributaries. The purpose of the proposed action is to amend 9VAC25-720-50 C (Potomac-Shenandoah River Basin), 9VAC25-720-60 C (James River Basin), 9VAC25-720-70 C (Rappahannock River Basin), 9VAC25-720-110 C (Chesapeake Bay – Small Coastal – Eastern Shore River Basin), and 9VAC25-720-120 C (York River Basin) to (i) establish TN and TP wasteload allocations to meet revised water quality criteria for Chlorophyll-a in the tidal James River Basin; (ii) reallocate any unneeded significant industrial discharger allocations to other facilities registered under the General Virginia Pollutant Discharge Elimination System Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia (9VAC25-820) or reserve any unneeded allocations for future use; and (iii) establish floating wasteload allocations for significant municipal dischargers based on the average daily flow treated by the facility in a given year and nutrient concentrations of 4.0 mg/l TN and 0.30 mg/l TP. Existing "primary" wasteload allocations will remain, and in any given year the facility will be required to meet the lesser of the primary or floating allocations. Facilities with special circumstances could be assigned alternative floating wasteload allocations or possibly no floating wasteload allocation. The board may consider exempting a subset of the smallest significant dischargers that in aggregate represent a minor percentage of the expected load reductions from this regulatory action. Special consideration may also be appropriate for treatment plants that reclaim and reuse a significant portion of their wastewater flow. The board may, if necessary to implement amendments to 9VAC25-720, also propose amendments to 9VAC25-820.

In addition, pursuant to Executive Order 14 (as amended, July 16, 2018) and § 2.2-4007.1 of the Code of Virginia, the agency is conducting a periodic review and small business impact review of 9VAC25-720 to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare; (ii) minimizes the economic impact on small businesses consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1313(e) of the Clean Water Act.

Public Comment Deadline: February 19, 2020.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 689-4103, FAX (804) 698-4319, or email gary.graham@deq.virginia.gov.

VA.R. Doc. No. R20-6191; Filed January 2, 2020, 9:53 a.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
Hearing Aid Specialists Regulations
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Board for Hearing Aid Specialists and Opticians intends to consider amending 18VAC80-20, Hearing Aid Specialists Regulations. The purpose of the proposed action is to adjust hearing aid specialist licensing fees based on projected revenues and expenses to meet the requirements of § 54.1-113 of the Code of Virginia while being the least burdensome to the licensee population. The board must establish fees adequate to support the costs of board operations and a proportionate share of the Department of Professional and Occupational Regulation operations. By the close of the next biennium, current fees will not provide adequate revenue for those costs, and the board has no other source of revenue from which to fund its operations.

The agency does not intend to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Comment Deadline: February 19, 2020.

Agency Contact: Stephen Kirschner, Executive Director, Board for Hearing Aid Specialists and Opticians, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590 or email hearingaidspec@dpor.virginia.gov.

VA.R. Doc. No. R20-5959; Filed December 24, 2019, 9:36 a.m.
TITLE 22. SOCIAL SERVICES
Permanency Services - Prevention, Foster Care, Adoption, and Independent Living
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Board of Social Services intends to consider amending 22VAC40-201, Permanency Services - Prevention, Foster Care, Adoption, and Independent Living. The purpose of the proposed action is to (i) align the regulation with Chapters 282, 301, 437, 446, and 677 of the 2019 Acts of Assembly; (ii) align the regulation with changes in federal law resulting from the 2018 Family First Prevention Services Act; and (iii) make other changes the agency deems necessary after comments and review. The proposed action will include changes to regulations on credit freezes, notification of a child with a developmental disability, qualified residential treatment programs, relative search and notification, placement authority of the Commissioner of the Department of Social Services, a foster care complaint system, birth parent engagement, and caseload standard.

The agency does not intend to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 63.2-217 of the Code of Virginia.

Public Comment Deadline: February 19, 2020.

Agency Contact: Em Parente, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7895, FAX (804) 726-7538, or email em.parente@dss.virginia.gov.

VA.R. Doc. No. R20-6266; Filed December 18, 2019, 10:09 a.m.

REGULATIONS
Vol. 36 Iss. 11 - January 20, 2020

TITLE 1. ADMINISTRATION
STATE BOARD OF ELECTIONS
Fast-Track Regulation

Title of Regulation: 1VAC20-90. Campaign Finance and Political Advertisements (repealing 1VAC20-90-20).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 20, 2020.

Effective Date: April 1, 2020.

Agency Contact: Arielle Schneider, Policy Analyst, Department of Elections, 1100 Bank Street, Floor 1, Richmond, VA 23220, telephone (804) 864-8933, or email arielle.schneider@elections.virginia.gov.

Basis: The Virginia Department of Elections is promulgating this regulation on behalf of the State Board of Elections, which is authorized under the § 24.2-103 of the Code of Virginia, to make rules and regulations and issue instructions and provide information to promote the proper administration of election laws.

Purpose: The rationale for the regulatory change is compliance with the Campaign Finance Disclosure Act (§ 24.2-945 et seq.) of the Code of Virginia, in which the General Assembly has determined that the means by which campaign finance reports submitted to the State Board of Elections is electronic. The department's goal of protecting the health and safety of the public must be supported by its regulatory instructions to candidates and committees.

Rationale for Using Fast-Track Rulemaking Process: The State Board of Elections is the policy-making board responsible for election law regulations. This repeal is expected to be noncontroversial because the regulation under consideration applies to law that no longer exists.

Substance: The amendments repeal the obsolete filing provision and associated fee.

Issues: There are no primary advantages or disadvantages to the public. The primary advantage to the department is conformity with the Code of Virginia so that agency guidelines and regulations support existing law. There are no disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Elections (Board) seeks to eliminate section 1VAC20-90-20 (Filing Fee) for campaign finance reports that are not filed electronically. This section was promulgated when campaign committees had the option to file nonelectronic campaign finance reports, upon payment of a $25 administrative fee to the Department of Elections to have the report transcribed. However, the Board has since transitioned to using electronic submissions exclusively, making the fee redundant.

Background. Section 24.2-947.5 of the Code of Virginia contains the campaign finance reporting requirements, including electronic submissions. The language in 1VAC20-90-20 directs campaign committees that file a nonelectronic campaign finance report with the Board under § 24.2-947.5 to pay a $25 administrative fee per report to the Board. It further says that the fee shall be paid by the filing deadline or upon filing the report, whichever is later, and that committees that are indigent may request a waiver from the Board.

The 2018 Acts of Assembly (Chapter 538) revised the Code of Virginia such that all regulants who would be required to file the report with the Board would have to do so electronically. Specifically, § 24.2-947.5 now says that candidates for statewide office and the General Assembly, as well as candidates for a local or constitutional office in any locality whose population exceeds 70,000, shall file campaign finance reports with the Board electronically. Candidates for local or constitutional offices in localities with fewer than 70,000 people may file electronically with the Board or file paper reports with the general registrar of the locality in which the candidate resides. Since candidates no longer have the option to file paper copies of the required reports with the Board, any associated administrative fees no longer apply. Hence the Board seeks to repeal the fee.

Estimated Benefits and Costs. The proposed amendment appears to benefit the public by aligning the Virginia Administrative Code with the Code of Virginia, and potentially reducing confusion for readers of the regulation. The proposed amendment does not create any new initial or ongoing cost to the public.

Businesses and Other Entities Affected. The proposed amendment does not appear to particularly affect any business or other entities.

Localities2 Affected.3 The proposed amendment does not appear to affect particular localities or introduce new costs for local governments. Accordingly, no additional funds would be required.

Projected Impact on Employment. The proposed amendment does not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendment has no effect on the use and value of private property, nor does it affect real estate development costs.

Adverse Effect on Small Businesses:4 The proposed amendment does not adversely affect small businesses.

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2"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

3§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

4Pursuant 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."

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

Summary:

The action repeals a fee associated with staff transcribing any nonelectronic campaign finance report submitted to the State Board of Elections by a candidate who opted to use the paper filing provision during the years that submitting campaign finance reports electronically was optional. Chapter 538 of the 2018 Acts of Assembly made electronic filing with the board mandatory, making the fee unnecessary.

1VAC20-90-20. Filing fee. (Repealed.)

Any campaign committee that files a nonelectronic, campaign finance report with the State Board of Elections under § 24.2-947.5 of the Code of Virginia shall pay a $25 administrative fee per report to the State Board of Elections. Such payment shall be due by the filing deadline for the report or upon filing the report, whichever is later. Any committee that is indigent may request a waiver from the State Board of Elections.

VA.R. Doc. No. R20-6151; Filed December 31, 2019, 2:32 p.m.
TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Proposed Regulation

Title of Regulation: 2VAC5-20. Standards for Classification of Real Estate as Devoted to Agricultural Use and to Horticultural Use under the Virginia Land Use Assessment Law (amending 2VAC5-20-10 through 2VAC5-20-40).

Statutory Authority: § 58.1-3230 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 20, 2020.

Agency Contact: Kevin Schmidt, Director, Office of Policy, Planning and Research, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1346, FAX (804) 371-7679, TTY (800) 828-1120, or email kevin.schmidt@vdacs.virginia.gov.

Basis: Section 3.2-102 A of the Code of Virginia states that the Commissioner of the Department of Agriculture and Consumer Services (VDACS) shall be vested with the powers and duties set out in §§ 2.2-601 and 3.2-102 of the Code of Virginia and such other powers and duties as may be prescribed by law.

Section 58.1-3230 of the Code of Virginia requires that the commissioner prescribe uniform standards in accordance with the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) for "real estate devoted to agricultural use" and "real estate devoted to horticultural use," and Chapter 504 of the 2018 Acts of Assembly expands the scope of the standards in § 58.1-3230 requiring the commissioner revise 2VAC5-20.

Purpose: The proposed change will bring the regulation into compliance with the changes made to Article 4 (§ 58.1-3229 et seq.) of Chapter 32 of the Code of Virginia by Chapter 504 of the 2018 Acts of Assembly. Additionally, VDACS staff has identified parts of the regulation that needs clarifying so that the commissioner is better able to provide opinions upon request by commissioners of the revenue or local assessing officers. This regulatory action does not impact public health or safety; however, general public welfare is protected when regulations are in compliance with statutory requirements. Additionally, commissioners of the revenue, local assessing officers, and individual landowners will all benefit from standards that are clear and consistent.

Substance: The proposed amendments to the regulation include standards for determining whether real estate meets the expanded definition of real estate devoted to agricultural use or real estate devoted to horticultural use. Specifically, the amendments include standards for determining whether real estate is (i) devoted to the bona fide production for sale of plants and animals, or products made from such plants and animals on the real estate, that are useful to man; (ii) devoted to the bona fide production for sale of fruits of all kinds, including grapes, nuts, and berries; vegetables; nursery and floral products; and plants or products directly produced from fruits, vegetables, nursery and floral products, or plants on such real estate; or (iii) devoted to and meeting the requirements and qualifications for payments or other compensation pursuant to soil and water conservation programs under an agreement with an agency of the state or federal government under uniform standards prescribed by the commissioner in accordance with the Administrative Process Act. The proposed amendments also remove the existing requirement that real estate be used for a particular purpose for a minimum length of time before qualifying as real estate devoted to agricultural use or horticultural use.

Issues: As a result of recent requests from commissioners of the revenue and local assessing officers for the commissioner to issue opinions pursuant to 2VAC5-20-40, agency staff and legal counsel have identified language in the existing regulation that needs clarifying. The proposed amendments to this regulation provide that clarity. Landowners and other members of the public will also benefit from clarification as to what is required for a parcel of land to be considered real estate devoted to agricultural use or to horticultural use. The removal of the five-year previous use requirement may also encourage additional agricultural land that is not currently being farmed to be made available for agricultural use. There are no disadvantages to the public or the Commonwealth.

Small Business Impact Review Report of Findings: This proposed regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Commissioner of Agriculture and Consumer Services (Commissioner) proposes amendments to this regulation for consistency with changes to the Virginia Land Use Assessment Law (Law), § 58.1-3229 et seq., that occurred through Chapter 504 of the 2018 Acts of Assembly (Chapter 504).

Background. The regulation includes a preamble that states that the purpose of the regulation is to: 1) Encourage the proper use of real estate in order to assure a readily available source of agricultural, horticultural, and forest products, and of open space within reach of concentrations of population; 2) Conserve natural resources in forms that will prevent erosion; 3) Protect adequate and safe water supplies; 4) Preserve scenic natural beauties and open spaces; 5) Promote proper land-use planning and the orderly development of real estate for the accommodation of an expanding population; and 6) Promote a balanced economy and ease pressures that force the conversion of real estate to more intensive uses.

The Law authorizes localities that have adopted a land-use plan to adopt an ordinance to provide for the use value assessment and taxation of real estate classified in § 58.1-3230. Use value assessment is in contrast to fair market value assessment. Fair market value is essentially the amount one could expect to sell a parcel for if no further restrictions were placed on its use other than those placed on the parcel through the local political process. Use value is the amount that one would expect to sell the land for if it were restricted to a pre-defined use. For instance, agricultural use value is the amount one would expect to receive if the land were to be maintained solely in agricultural use. As the options for land use are restricted, one would typically find that use value is less than fair market value.2

In practice, localities often choose to have use value ordinances to discourage the conversion of land from a preferred purpose such as agriculture, to a less preferred purpose, such as an additional housing development. Since keeping real estate in agriculture may result in lower property value assessments with the use value, it may lower the real estate tax bill for the owner.

Section 58.1-3230 establishes four special classifications of real estate for the purposes of the Law, including "real estate devoted to agricultural use" and "real estate devoted to horticultural use." The definitions of both real estate devoted to agricultural use and real estate devoted to horticultural use in the Law require the Commissioner to prescribe uniform standards in accordance with the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). As directed by this requirement, the Commissioner promulgated thisregulation, which first became effective in 1988.

The regulation includes specified activities associated with agriculture or horticulture that must occur on the property for it to qualify as "real estate devoted to agricultural use" or "real estate devoted to horticultural use." In order for the property to qualify, the owner must certify that the real estate is being used in a planned program of practices that: 1) With respect to real estate devoted to a use that disturbs the soil or that affects water quality, is intended to (in the case of soil) reduce or prevent soil erosion and (in the case of water) improve water quality by best management practices, such as terracing, cover cropping, strip cropping, no-till planting, sodding waterways, diversions, water impoundments, and other best management practices, to the extent that best management practices exist for that use of the real estate; 2) With respect to real estate devoted to crops grown in the soil, is intended to maintain soil nutrients by the application of soil nutrients (organic and inorganic) needed to produce average yields of such crops or as recommended by soil tests; and 3) Is intended to control brush, woody growth, and noxious weeds on row crops, hay, and pasture by the use of herbicides, biological controls, cultivation, mowing, or other normal cultural practices.

Estimated Benefits and Costs. The Commissioner proposes several amendments to the regulation that mirror changes to the Law from Chapter 504. The changes generally expand the situations where real estate qualifies as "real estate devoted to agricultural use" or "real estate devoted to horticultural use." To the extent that local commissioners of revenue and landowners are already aware of the changes to the Law, these proposed changes to the regulation should not have a large impact. The changes would be beneficial in that they would reduce the likelihood of confusion as toward the law in effect for readers of the regulation.

The current regulation includes a requirement that for real estate to qualify for designation as "real estate devoted to agricultural use" or "real estate devoted to horticultural use," it must have been devoted, for at least five consecutive years previously, to specified activities associated with agriculture or horticulture. The current regulation also specifies minimum field crop production and minimum sales over the previous three years. Chapter 504 inserted the following statement into the Law:

If the uniform standards prescribed by the Commissioner of Agriculture and Consumer Services pursuant to § 58.1-3230 require real estate to have been used for a particular purpose for a minimum length of time before qualifying as real estate devoted to agricultural use or horticultural use, then (i) use of other similar property by a lessee of the owner shall be included in calculating such time and (ii) the Commissioner of Agriculture and Consumer Services shall include in the uniform standards a shorter minimum length of time for real estate with no prior qualifying use, provided that the owner submits a written document of the owner's intent regarding use of the real estate containing elements set out in the uniform standards. Localities are not required to maintain such written document.

The Commissioner proposes to eliminate the requirement that the land have been devoted, for at least five consecutive years previously, to specified activities associated with agriculture or horticulture and instead have the applicant certify that the real estate currently is devoted to the specified activities. Mirroring the Law, those activities are: 1) Be devoted to the bona fide production for sale of plants or animals that are useful to man; 2) Be devoted to the bona fide production for sale of products that are useful to man and that are made on the real estate from plants or animals produced on the real estate; 3) Be devoted to the bona fide production for sale of fruit of all kinds, including grapes, nuts, and berries; 4) Be devoted to the bona fide production for sale of vegetables; 5) Be devoted to the bona fide production for sale of nursery or floral products; 6) Be devoted to the bona fide production for sale of plants or products directly produced on such real estate from fruits, vegetables, nursery or floral products, or plants produced on such real estate; or 7) Be devoted to and meet the requirements and qualifications for payments or other compensation pursuant to a soil and water conservation program under an agreement with an agency of the state or federal government.

This proposed change would very likely increase the number of properties that qualify as "real estate devoted to agricultural use" or "real estate devoted to horticultural use," since meeting at least one of those activities in the present is substantially easier to achieve than to do so for five consecutive years. The Commissioner also proposes to remove the three-year requirements for minimum field crop production and minimum sales. These proposed amendments also make it easier for properties to qualify, and would likely increase the number of properties that are designated as "real estate devoted to agricultural use" or "real estate devoted to horticultural use." To the extent that the specified activities are preferable to alternative uses of the land such as building new houses or office buildings, and to the extent that the property owner maintains the best management practices required for qualification, the proposed amendments would be beneficial.

Since more properties would qualify, more real estate would be assessed at the typically lower use value rather than the fair market value. Owners of the qualified properties would often pay lower real estate taxes. Thus, localities that have ordinances for use value assessments for agricultural and/or horticultural real estate may receive lower revenue.

Businesses and Other Entities Affected. All owners of real estate in the Commonwealth that is not exempt from taxation are potentially affected. Owners of real estate located in a participating locality who would consider devoting the land to agriculture or horticulture use are particularly affected.

Localities3 Affected.4 Since all local governments may choose to have use value assessments for agricultural or horticultural real estate, all are potentially affected by the proposed amendments. As of 2017, the following local governments did have use value assessments for agricultural and/or horticultural real estate:5

Cities: Buena Vista, Chesapeake, Danville, Franklin, Fredericksburg, Hampton, Harrisonburg, Lynchburg, Petersburg, Radford, Roanoke, Staunton, Suffolk, Virginia Beach, Waynesboro, and Winchester.

Counties: Accomack, Albemarle, Alleghany, Amelia, Amherst, Appomattox, Augusta, Bath, Bedford, Bland, Botetourt, Campbell, Caroline, Carroll, Chesterfield, Clarke, Culpeper, Cumberland, Dinwiddie, Essex, Fairfax, Fauquier, Floyd, Fluvanna, Franklin, Frederick, Giles, Gloucester, Goochland, Greene, Greensville, Hanover, Henrico, Henry, Isle of Wight, James City, King George, King William, Lancaster, Loudoun, Louisa, Madison, Middlesex, Montgomery, Nelson, New Kent, Northampton, Northumberland, Nottoway, Orange, Page, Pittsylvania, Powhatan, Prince Edward, Prince George, Prince William, Pulaski, Rappahannock, Richmond, Roanoke, Rockbridge, Rockingham, Russel, Shenandoah, Smyth, Southampton, Spotsylvania, Stafford, Tazewell, Warren, Washington, Westmoreland, Wise, Wythe, and York.

Towns: Altavista, Amherst, Blacksburg, Bridgewater, Chilhowie, Christiansburg, Dayton, Front Royal, Hillsville, Lebanon, Leesburg, Louisa, Lovettsville, Montross, New Market, Pulaski, Remington, Windsor, and Wytheville.

Eliminating the five-year consecutive use requirement and the three-year requirements for minimum field crop production and minimum sales would likely increase the number of properties that qualify for use value assessments. Since use value assessments are typically lower than fair market value assessments, there would likely be reduced revenue for participating localities.

Projected Impact on Employment. The proposals to eliminate the five-year consecutive use requirement and the three-year requirements would likely increase the use of land for agricultural or horticultural purposes versus for other purposes. Consequently, employment in agricultural and horticultural activities may increase, and employment associated with alternative uses of the land may decrease. It is not clear whether there would be a net increase or decrease in total employment.

Effects on the Use and Value of Private Property. The proposals to eliminate the five-year consecutive use requirement and the three-year requirements would likely increase the use of land for agricultural or horticultural purposes. Since the real estate taxes would likely be lower for the affected properties, the cost of developing the land for agricultural or horticultural purposes would likely be lower.

Adverse Effect on Small Businesses:6 The proposed amendments do not directly adversely affect small businesses.

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2Source for "use value" and "fair market value" definitions: Lamie, Dave and Gordon Groover, "A Citizens' Guide to The Use Value Taxation Program in Virginia," 2009, Virginia Cooperative Extension Publication 448-037.

3"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

4§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

5Source: Kulp, Stephen C. "Virginia Local Tax Rates, 2017: Information for All Cities and Counties and Selected Incorporated Towns," Weldon Cooper Center for Public Service.

6Pursuant 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."

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

Summary:

In response to Chapter 504 of the 2018 Acts of Assembly, the proposed amendments (i) clarify requirements by listing the specified activities associated with agriculture or horticulture that must occur on a property for it to qualify as "real estate devoted to agricultural use" or "real estate devoted to horticultural use"; (ii) require that the owner must certify to such; and (iii) eliminate the requirement that the land must have been devoted for at least five consecutive years previously to specified activities associated with agriculture or horticulture.

2VAC5-20-10. Preamble Purpose.

The Commissioner of Agriculture and Consumer Services adopts these Standards for Classification of Real Estate As Devoted to Agricultural Use and to Horticultural Use Under the Virginia Land Use Assessment Law to:

1. Encourage the proper use of real estate in order to assure a readily available source of agricultural, horticultural, and forest products, and of open space within reach of concentrations of population.

2. Conserve natural resources in forms that will prevent erosion.

3. Protect adequate and safe water supplies.

4. Preserve scenic natural beauties and open spaces.

5. Promote proper land-use planning and the orderly development of real estate for the accommodation of an expanding population.

6. Promote a balanced economy and ease pressures which that force the conversion of real estate to more intensive uses.

The real estate must meet all of the following standards in this chapter to qualify for agricultural or for horticultural use.

2VAC5-20-20. Previous and current use, and exceptions Current use.

A. Previous use. The real estate sought to be qualified must have been devoted, for at least five consecutive years previous, to the production for sale of plants or animals, or to the production for sale of plant or animal products useful to man, or devoted to another qualifying use including, but not limited to:

1. Aquaculture

2. Forage crops

3. Commercial sod and seed

4. Grains and feed crops

5. Tobacco, cotton, and peanuts

6. Dairy animals and dairy products

7. Poultry and poultry products

8. Livestock, including beef cattle, sheep, swine, horses, ponies, mules, or goats, including the breeding and grazing of any or all such animals

9. Bees and apiary products

10. Commercial game animals or birds

11. Trees or timber products of such quantity and so spaced as to constitute a forest area meeting standards prescribed by the State Forester, if less than 20 acres, and produced incidental to other farm operations

12. Fruits and nuts

13. Vegetables

14. Nursery products and floral products.

If a tract of real estate is converted from nonproduction to agricultural or horticultural production, the tract may qualify without a five-year history of agricultural or horticultural use only if the change expands or replaces production enterprises existing on other tracts of real estate owned by the applicant.

B. Current use. The real estate sought to be qualified must currently be devoted to the production for sale of plants or animals, or to the production for sale of plant or animal products useful to man, or devoted to another qualifying use including, but not limited to, the items in subsection A of this section; except that no A. The applicant shall certify that the real estate sought to be qualified currently meets one or more of the following requirements:

1. Be devoted to the bona fide production for sale of plants or animals that are useful to man;

2. Be devoted to the bona fide production for sale of products that are useful to man and that are made on the real estate from plants or animals produced on the real estate;

3. Be devoted to the bona fide production for sale of fruit of all kinds, including grapes, nuts, and berries;

4. Be devoted to the bona fide production for sale of vegetables;

5. Be devoted to the bona fide production for sale of nursery or floral products;

6. Be devoted to the bona fide production for sale of plants or products directly produced on such real estate from fruits, vegetables, nursery or floral products, or plants produced on such real estate; or

7. Be devoted to and meet the requirements and qualifications for payments or other compensation pursuant to a soil and water conservation program under an agreement with an agency of the state or federal government.

B. No real estate devoted to the production of trees or timber products may qualify unless:

1. The real estate is less than 20 acres.;

2. The real estate meets the technical standards prescribed by the State Forester,; and

3. The real estate is producing tree or timber products incidental to other farm operations.

C. Exceptions.

1. Conversions by farm operator -- nonqualifying real estate. If a tract of real estate is converted from other uses or nonproduction to agricultural or horticultural production, the tract may qualify without the five-year history of agricultural or horticultural use when the change expands or replaces production enterprises existing on other tracts of real estate owned by the applicant, regardless of location.

2. Conversions by farm operator -- qualifying real estate. If a tract of real estate is converted from a qualifying use (forestry or open space) to agricultural or horticultural production, the tract may qualify without the five year history of agricultural or horticultural use.

3. Government action. If a tract of real estate which has previously qualified for agricultural use taxation is not devoted to agricultural or horticultural production because of governmental actions, the tract or portions shall be considered productive for that period of time.

4. Crops that require more than two years. The tract of real estate may qualify without the five-year history of agricultural or horticultural use if the tract of real estate is devoted to the production of any agricultural or horticultural crop that requires more than two years from initial planting until commercially feasible harvesting, and the locality in which the tract of real estate is located has waived with respect to such real estate the five-year-history-of-agricultural-or-horticultural-use requirement.

2VAC5-20-30. Conservation of land resources; management and production.

A. Conservation of land resources. The applicant shall certify that the real estate is being used in a planned program of practices that:

1. With respect to real estate devoted to a use that disturbs the soil or that affects water quality, is intended to (in the case of soil) reduce or prevent soil erosion and (in the case of water) improve water quality by best management practices such as terracing, cover cropping, strip cropping, no-till planting, sodding waterways, diversions, water impoundments, and other best management practices, to the extent that best management practices exist for that use of the real estate.

2. With respect to real estate devoted to crops grown in the soil, is intended to maintain soil nutrients by the application of soil nutrients (organic and inorganic) needed to produce average yields of such crops or as recommended by soil tests.

3. Is intended to control brush, woody growth, and noxious weeds on row crops, hay, and pasture by the use of herbicides, biological controls, cultivation, mowing, or other normal cultural practices.

B. Management and production. The applicant shall certify that the real estate is being used in a planned program of management and production for sale of plants or animals (or plant or animal products useful to man), which include, but are not limited to, field crops, livestock, livestock products, poultry, poultry products, dairy, dairy products, aquaculture products, and horticultural products; or that the real estate is being used for any other thing that is a qualifying use pursuant to 2VAC5-20-20 that corresponds with the demonstration of at least one of the requirements in 2VAC5-20-20 A 1 through A 6.

C. Field crop production shall be primarily for commercial uses and the average crop yield per acre on each crop grown on the real estate during the immediate three years previous, shall be equal to at least one-half of the county (city) average for the past three years; except that the local government may prescribe lesser requirements when unusual circumstances prevail and such requirements are not realistic.

Livestock, dairy, poultry, or aquaculture production shall be primarily for commercial sale of livestock, dairy, poultry, and aquaculture products. Livestock, dairy, and poultry shall have a minimum of 12 animal unit-months of commercial livestock or poultry per five acres of open land in the previous year. One animal unit to be one cow, one horse, five sheep, five swine, 100 chickens, 66 turkeys, or 100 other fowl. (An animal unit-month means one mature cow or the equivalent on five acres of land for one month; therefore, 12 animal unit-months means the maintenance of one mature cow or the equivalent on each five acres for 12 months, or any combination of mature cows or the equivalent and months that would equal 12 animal unit-months, such as three mature cows or the equivalent for four months, four mature cows or the equivalent for three months, two mature cows or the equivalent for six months, etc.).

Horticultural production includes nursery, greenhouse, cut flowers, plant materials, orchards, vineyards, and small fruit products.

Timber production, in addition to crop, livestock, dairy, poultry, aquaculture, and horticultural production on the real estate must meet the standards prescribed by the Department of Forestry for forest areas and will be assessed at use value for forestry purposes.

2VAC5-20-40. Certification procedures.

A. Documentation. The commissioner of the revenue or the local assessing officer may require the applicant to document what the applicant must certify pursuant to 2VAC5-20-20 and 2VAC5-20-30. The commissioner of the revenue or local assessing officer may find one of the following documents useful in making his determination:

1. The assigned USDA/Farm Service Agency farm number and evidence of participating in a federal farm program;

2. Federal tax forms (1040F) Farm Expenses and Income, (4835) Farm Rental Income and Expenses, or (1040E) Cash Rent for Agricultural Land;

3. A Conservation Farm Management Plan conservation farm management plan prepared by a professional; or

4. Gross sales averaging more than $1,000 annually over the previous three years Documentation demonstrating that the real estate sought to be qualified currently is devoted to the bona fide production for sale of one of the requirements in 2VAC5-20-20 A 1 through A 6; or

5. Documentation demonstrating that the real estate sought to be qualified currently is devoted to and meeting the requirements and qualifications for payments or other compensation pursuant to a soil and water conservation program under an agreement with a federal government or state government agency.

B. Interpretation of standards. In cases of uncertainty on the part of the commissioner of the revenue or the local assessing officer, the law authorizes him to request an opinion from the Commissioner of Agriculture and Consumer Services as to whether a particular property meets the criteria for agricultural or horticultural classification. The procedure for obtaining such an opinion is as follows:

1. The commissioner of the revenue or the local assessing officer shall address a letter to the Commissioner, Virginia Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, Virginia 23218, describing the use and situation, and requesting an opinion of whether the real estate qualifies as agricultural or horticultural real estate for the purpose of use-value taxation. The letter should include the following:

a. Owner's name and address.

b. Operator's name and address.

c. Total number of acres, acres in crops, acres in pastures, acres in a federal or state soil and water conservation programs (Farm Service Agency, Natural Resources Conservation Service, Virginia Department of Conservation and Recreation programs), program, and acres in forest.

d. If more than one tract of real estate, the number of acres in each tract and whether the tracts are contiguous.

e. A copy of the application for land use assessment taxation.

f. In any case involving a question about the applicability of the exception to the five-year-history-of-agricultural-or-horticultural-use requirement contained in 2VAC5-20-20 C 4 (relating to real estate devoted to the production of an agricultural or horticultural crop that requires more than two years from initial planting until commercially feasible harvesting), a statement as to whether the locality has waived with respect to such real estate, the five-year-history-of-agricultural-or-horticultural-use requirement.

2. The commissioner may request additional information, if needed, directly from the applicant; or he may hold a hearing at which the applicant and others may present additional information.

3. The commissioner will issue an opinion as soon as possible after all necessary information has been received.

VA.R. Doc. No. R19-5646; Filed December 17, 2019, 4:43 p.m.
TITLE 3. ALCOHOLIC BEVERAGES
ALCOHOLIC BEVERAGE CONTROL AUTHORITY
Proposed Regulation

Title of Regulation: 3VAC5-50. Retail Operations (adding 3VAC5-50-250).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 20, 2020.

Agency Contact: LaTonya D. Hucks-Watkins, Legal Liaison, Virginia Alcoholic Beverage Control Authority, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4698, or email latonya.hucks-watkins@abc.virginia.gov.

Basis: Section 4.1-101 of the Code of Virginia establishes the Virginia Alcoholic Beverage Control Authority, and § 4.1-101.01 of the Code of Virginia establishes the Board of Directors of the Authority. Section 4.1-103 of the Code of Virginia enumerates the powers of the board, which include the authority to adopt regulations and to do all acts necessary or advisable to carry out the purposes of The Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia). Subdivision 7 of § 4.1-103 of the Code of Virginia states that the board may delegate or assign any duty or task to be performed by the authority to any officer or employee of the authority. Subdivision 24 of § 4.1-103 permits the board to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and § 4.1-111 of the Code of Virginia, which provides the board with the authority to adopt regulations that it deems reasonable to carry out the provisions of the Alcoholic Beverage Control Act and to amend or repeal such regulations.

Purpose: The purpose of the regulation is to provide a definition of "confectionery" and to provide clarification as to the restrictions regarding the alcohol content, prohibition of sales to those younger than 21 years of age, and labeling requirements for confections containing alcohol.

Substance: The emergency regulation currently effective until June 29, 2020, reads:

3VAC5-50-250. Confectionery; definition; restrictions; labeling.

A. "Confectionery" means a general class of sweet foods and edibles, including baked goods and candies, having an alcohol content not more than 5.0% by volume.

B. Any alcohol contained in such confectionery shall not be in liquid form at the time such confectionery is sold. Such alcohol shall be fully integrated or blended into the confectionery product.

C. Any such confectionery shall only be sold to those individuals who can lawfully consume alcohol.

D. Any establishment licensed to sell confectioneries for off-premises consumption shall properly label the product with such label including:

1. Notice that the product contains alcohol;

2. Notice that the product can only be consumed off premises; and

3. Warning that the product should not be consumed by anyone under the age of 21.

The only difference between the emergency regulation and the proposed regulation is removal of the phrase "a general class of sweet foods and edibles including" in the definition of "confectionery." In the proposed regulation, "confectionery" is defined as "baked goods and candies having an alcohol content not more than 5.0% by volume."

Issues: The primary advantage to the public, the agency, and the Commonwealth is that the emergency regulation will be replaced with a permanent regulation. The permanent regulation is not confusing; the provisions are straightforward. The agency does not see any disadvantages to the public or the agency based on the proposed change.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to 2018 legislation, the Virginia Alcoholic Beverage Control Board of Directors (Board) proposes to establish a definition for "confectionery" and labeling requirements for such confectionery. This proposed permanent regulation replaces an emergency regulation that became effective on July 1, 2018 and expires on December 30, 2019.

Background. Chapters 1732 and 3343 of the 2018 Acts of Assembly created a confectionery license, which authorizes the licensee to prepare and sell on the licensed premises (for off-premises consumption) confectionery that contains five percent or less alcohol by volume. The Acts also stated that any alcohol contained in such confectionery shall not be in liquid form at the time such confectionery is sold.

An enactment clause in the legislation specified that the Board promulgate regulations to implement the provisions of the act, to include a definition of the term "confectionery" and labeling requirements for such confectionery. The Board proposes to define "confectionery" as "baked goods and candies, having an alcohol content not more than 5.0% by volume." Further, the Board proposes to require that the confectionaries be labeled with: 1) notice that the product contains alcohol, 2) notice that the product can only be consumed off premises, and 3) a warning that the product should not be consumed by anyone under the age of 21.

Estimated Benefits and Costs. Prior to the legislation and emergency regulation, it was illegal to sell confectioneries in the Commonwealth. Pursuant to Code of Virginia § 4.1-3024 and § 4.1-100,5 it would have been a Class 1 misdemeanor. Allowing the sale of confectionaries through licensure is beneficial in that consumers gain access to products that they may enjoy, and businesses gain the opportunity to sell potentially profitable additional products. The proposal to require that the labeling specify that the products contain alcohol is beneficial in that it greatly reduces the likelihood that people who would prefer to not consume alcohol-containing foods, or should not consume, would consume these products by mistake.

The legislation specified that the Board include labeling requirements. Given that labeling is required, the Board's proposed labeling requirements do not substantively add costs.

Businesses and Other Entities Affected. The proposal affects firms who may wish to produce and/or sell confectionaries, as well as consumers. Since the emergency regulation has been in effect (July 1, 2018), five firms have obtained confectionery licensure.

Localities6 Affected.7 The legislation and proposed regulation allow confectioneries to be prepared and sold with a license throughout the Commonwealth. Thus far, through the emergency regulation, there are five licensees. They are located in the Cities of Martinsville and Richmond (2), and the Counties of Henrico and York. The proposal does not produce costs for local governments.

Projected Impact on Employment. Allowing the sale of confectioneries through licensure may have a small positive impact on employment because more workers may be needed for the production and sale of the newly legal products.

Effects on the Use and Value of Private Property. Allowing the sale of confectioneries through licensure enables firms to gain the opportunity to sell potentially profitable additional products. This would likely increase the value of some such firms. The proposal does not appear to directly affect real estate development costs.

Adverse Effect on Small Businesses:8 The proposed regulation does not appear to adversely affect small businesses.

________________________________

2See http://leg1.state.va.us/cgi-bin/legp504.exe?181+ful+CHAP0173

3See http://leg1.state.va.us/cgi-bin/legp504.exe?181+ful+CHAP0334

4See https://law.lis.virginia.gov/vacode/title4.1/chapter3/section4.1-302/

5Definition of "Alcoholic beverages" includes solids containing one-half of one percent or more of alcohol by volume. See https://law.lis.virginia.gov/vacode/title4.1/chapter1/section4.1-100/

6"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

7§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

8Pursuant 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."

Agency's Response to Economic Impact Analysis: The Virginia Alcoholic Beverage Control Authority concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

The proposed action implements the confectionery license created by Chapters 173 and 334 of the 2018 Acts of Assembly, which authorizes the licensee to prepare and sell confectionery on the licensed premises for off-premises consumption. The proposed provisions require that the confectionery contain 5.0% or less alcohol by volume and that any alcohol contained in such confectionery shall not be in liquid form at the time such confectionery is sold. The regulation defines the term "confectionery" and includes labeling requirements for such confectionery.

3VAC5-50-250. Confectionery; definition; restrictions; labeling.

A. "Confectionery" means baked goods and candies having an alcohol content not more than 5.0% by volume.

B. Any alcohol contained in such confectionery shall not be in liquid form at the time such confectionery is sold. Such alcohol shall be fully integrated or blended into the confectionery product.

C. Any such confectionery shall only be sold to those individuals who can lawfully consume alcohol.

D. Any establishment licensed to sell confectioneries for off-premises consumption shall properly label the product with such label including:

1. Notice that the product contains alcohol;

2. Notice that the product can only be consumed off premises; and

3. Warning that the product should not be consumed by anyone younger than 21 years of age.

VA.R. Doc. No. R18-5486; Filed December 17, 2019, 4:41 p.m.
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Notice of Effective Date

Title of Regulation: 9VAC25-260. Water Quality Standards (amending 9VAC25-260-310).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq.; 40 CFR 131.

Effective Date: January 9, 2020.

On June 27, 2019, the State Water Control Board adopted revisions to the Water Quality Standards in 9VAC25-260-310. These revisions relate to numeric chlorophyll criteria for the tidal James River. The amendments were published as final regulations in 36:2 VA.R. 101-105 September 16, 2019, to be effective upon the board filing notice of U.S. Environmental Protection Agency (EPA) approval with the Registrar of Regulations. The State Water Control Board received a letter from Catherine Libertz, EPA Region III Regional Acting Director, Water Protection Division, dated January 6, 2020, that approved all of the amendments. Therefore, the amendments to 9VAC25-260-310 in this regulatory action are effective as regulation.

Agency Contact: Tish Robertson, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4309, FAX (804) 698-4116, or email tish.robertson@deq.virginia.gov.

VA.R. Doc. No. R12-2932; Filed January 9, 2020, 2:50 p.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Notice of Objection to Fast-Track Rulemaking Action

REGISTRAR'S NOTICE: Pursuant to § 2.2-4012.1 of the Code of Virginia, the State Board of Health has filed a notice of objection to the fast-track rulemaking action published in 36:6 VA.R. 453-474 November 11, 2019. The board intends to proceed with the standard promulgation process set out in Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia, with the initial publication of the fast-track regulation serving as the Notice of Intended Regulatory Action.

Title of Regulation: 12VAC5-90. Regulations for Disease Reporting and Control (amending 12VAC5-90-10, 12VAC5-90-80, 12VAC5-90-90, 12VAC5-90-103, 12VAC5-90-107, 12VAC5-90-140, 12VAC5-90-215, 12VAC5-90-225, 12VAC5-90-280, 12VAC5-90-370).

Statutory Authority: §§ 32.1-12, 32.1-35, and 32.1-42 of the Code of Virginia.

The State Board of Health has filed a notice of objection to the fast-track rulemaking action for 12VAC5-90, Regulations for Disease Reporting and Control. The fast-track regulation was published in Volume 36, Issue 6, pages 453 through 474 of the Virginia Register of Regulations, on November 11, 2019. A 30-day public comment period was provided, and public comment was received through December 11, 2019.

The board received more than the requisite 10 objections to the amendments. Due to the objections, the board has discontinued using the fast-track rulemaking process. The board will proceed with adoption of the amendments using the standard process under Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act, and the publication on November 11, 2019, will serve as the Notice of Intended Regulatory Action in accordance with § 2.2-4012.1 of the Code of Virginia.

Agency Contact: Kristin Collins, Policy Analyst, Office of Epidemiology, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7298, or email kristin.collins@vdh.virginia.gov.

VA.R. Doc. No. R20-5357; Filed December 20, 2019, 10:37 a.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Proposed Regulation

Titles of Regulations: 12VAC30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (amending 12VAC30-50-130).

12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (adding 12VAC30-60-65).

12VAC30-120. Waivered Services (amending 12VAC30-120-766, 12VAC30-120-924, 12VAC30-120-930).

12VAC30-122. Community Waiver Services for Individuals with Developmental Disabilities (adding 12VAC30-122-125).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 21, 2020.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 12006 of the 21st Century Cures Act (Public Law 114-255) mandates the adoption of electronic visit verification (EVV) technology applicable to personal care services (effective January 1, 2019) and home health care services (effective January 1, 2023) as provided by Medicaid without regard to whether the services are covered via a waiver or the State Plan for Medical Assistance. Section 1 of Public Law 115-222 delayed the onset of fiscal penalties and the adoption of EVV technologies for one year past the original statute (i.e., until January 1, 2020).

The Department of Medical Assistance Services (DMAS) covers personal care, respite care, and companion services under the authority of Social Security Act § 1915(b) and (c) managed care and home and community based care waivers. Due to the highly similar nature of waiver companion services and waiver respite services to personal care services, DMAS is also requiring the use of EVV for these services under the authority of Item 303 LLL of Chapter 2 of the 2018 Acts of Assembly, Special Session I. Personal care, respite care, and companion services are designed to provide services in support of activities of daily living (e.g., bathing, dressing, toileting, transferring, and feeding) in slightly different circumstances. The Commonwealth also covers instrumental activities of daily living (e.g., meal preparation, money management, shopping, and community activities) under personal care, respite care, and companion services for those individuals who require this type of assistance.

Home health care services are federally mandated services for Title XIX programs under the authority of § 1905(a)(7) of the Social Security Act. This service provides skilled nursing services, aide services, and medical supplies and equipment for individuals in their residences, without requiring that they be homebound, upon the order of the physicians for such individuals. The application of EVV to home health services takes effect January 1, 2023, and is not reflected in this regulatory action.

Purpose: The purpose of this action is to implement the mandates of § 1903(l) of the Social Security Act regarding EVV as applicable to personal care services across all the waivers and State Plan covered services. Absent the Commonwealth's adoption of this requirement, § 1903(l) also mandates the reduction of federal matching funds for expenditures for personal care services ($869 million). Reductions in Medicaid federal funds, in the absence of EVV, would be expected to exceed several millions of dollars thereby substantially affecting the health, safety, and welfare of Medicaid individuals by service reductions and loss.

Action by the General Assembly in Item 303 LLL of Chapter 2 of the 2018 Acts of Assembly, Special Session I, applies this EVV requirement also to companion services and respite. The action that will apply EVV requirements to home health services is to be addressed in the near future in a separate regulatory action because of the January 1, 2023, effective date set out in federal law.

Substance: The sections of the State Plan for Medical Assistance affected by this action are (i) Standards Established and Methods Used to Assure High Quality of Care (12VAC30-60) and Amount, Duration, and Scope of Medical and Remedial Care Services (12VAC30-50). The state-only regulations affected by this action are the Commonwealth Coordinated Care Plus and Commonwealth Coordinated Care Plus Programs in Waivered Services (12VAC30-120) and Community Waiver Services for Individuals with Developmental Disabilities (12VAC30-122).

Currently, there are no such requirements in either the State Plan for Medical Assistance or any related waiver programs because electronic visit verification has not applied to Title XIX prior to the passage of the Cures Act.

The 21st Century Cures Act (Cures Act) was designed to improve the quality of services and supports provided to individuals through research, enhancing quality control, and strengthening mental health parity. This regulatory action addresses enhancing quality control of services provided to individuals.

One of the federal purposes of electronic visit verification is the reduction of potential fraud, waste, and abuse through validating that billed services to make sure they comport with an individual's plan of care using EVV data. Such validation ensures appropriate payment based on actual service delivery. These systems will enable greater opportunities for enhanced care coordination, data sharing, and improved payment accuracy with the concomitant reduction of billing errors. The Department of Health and Human Services Office of the Inspector General has recognized EVV as a positive step toward safeguarding individuals.

Another federal purpose is the improvement of program efficiencies by reducing the need for paper documentation to verify services, speeding up provider electronic billing, and supporting individuals using self-direction services by permitting greater flexibility for appointments and services.

Analysis conducted by the Centers for Medicare and Medicaid Services (CMS) determined that the following system models exist:

• Provider choice model: major providers currently use different EVV systems that are Cures Act compliant.

• Managed care organization choice model: managed care organizations currently use different EVV systems that are Cures Act compliant.

• State mandated in-house model and state mandated external vendor model: providers not widely using EVV, or the EVV systems in use do not meet the state's needs, so the state intends to develop its own EVV system.

• Open vendor model: smaller providers are not widely using EVV but may have one or more larger providers using Cures Act compliant EVV system.

The Cures Act design of EVV requirements allows the states to select their design and implement quality control measures of their choosing. The states are required to consult with other affected entities, including (i) other state agencies providing personal care or home health care services and (ii) other stakeholders, such as family caregivers, individuals receiving and furnishing personal care and home health services, and providers of these services. EVV systems must be minimally burdensome and compliant with Health Insurance Portability and Accountability Act (HIPAA) privacy mandates. EVV systems are not intended to limit the services provided or provider selection, constrain individual caregiver choices, or impede the way care is rendered. EVV systems should accommodate personal care and home health care service delivery locations with limited or no internet access. EVV systems should allow individuals to schedule their services directly with their providers, allowing for last-minute changes based on individual needs. EVV systems should accommodate services at multiple approved locations, not just the individual's home, and allow for multiple service delivery locations in a single visit.

DMAS conducted a comprehensive review of the CMS alternatives permitted to meet the federal requirements and concluded that the open vendor model afforded the most provider flexibility for Virginia. The open vendor model allows providers that currently use EVV systems to maintain a working relationship with their claims processing vendors as well as permitting all providers to select a system that meets their business needs while being cost effective. In October 2017, DMAS issued a request for information (RFI) to learn more about EVV systems available in the marketplace. Several EVV vendors responded, providing information on their system capabilities. This was useful in identifying some of the system requirements included in this action.

DMAS recommends adoption of the open vendor model because it will enable providers, either large or small, to select the EVV system that best suits their business models and operational practices. Affected providers are expected to opt for EVV systems that will smoothly and efficiently link with the electronic billing systems they currently use in order to facilitate a quick, effective electronic billing process. DMAS is currently designing a computerized aggregator system to accept incoming data from multiple EVV systems and compile it into service utilization data in support of claims adjudication and payments processing. The DMAS EVV system regulatory requirements comport with § 12006(a)(5) of the Cures Act and do not exceed the minimum requirements contained in federal law. Implementing this system now for personal care services, respite care services, and companion services, as required by federal law, will facilitate the implementation of EVV applicable to home health services by 2023.

Issues: Providers are expected to experience faster claims processing with fewer denied claims and reduced numbers of post-payment review audit recoveries. The primary advantage to the agency and the Commonwealth is avoiding the reduction of federal matching funds for failure to comply. The advantage to Medicaid individuals is that the personal care services, respite care services, and companion care services that they receive will comport with their identified needs in their plans of care with few, if any, disruptions.

There are no disadvantages to the agency or the Commonwealth in this action. There are no advantages or disadvantages of this action to individual private citizens.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medical Assistance Services (Board) proposes to amend 12VAC30-60 Standards Established and Methods Used to Assure High Quality Care in order to implement electronic visit verification (EVV) for personal care services, companion services, and respite services that are provided to qualifying Medicaid beneficiaries. EVV is a telephone and computer-based system by which providers of these services create an electronic record of their arrival and departure times, location, and the services provided at each visit. The electronic record is transmitted to the provider organizations, who are required to submit the electronic records as part of the claim-filing process and then retain the records for a minimum of six years. EVV data can potentially be used to ascertain that every visit billed to Medicaid actually occurred and also validate that each visit conformed to the recipient's Plan of Care. The Board seeks to add a new section (65), which contains the specific requirements for the implementation of EVV, to 12VAC30-60. The bulk of the analysis presented here focuses on the proposed regulations put forth in this section.

In addition, the Board proposes multiple identical amendments to 12VAC30-50 Amount, Duration, and Scope of Medical and Remedial Care Services, 12VAC30-120 Waivered Services, and 12VAC30-122 Community Waiver Services for Individuals with Developmental Disabilities, each one being directed at a specific category of service providers. Each amendment instructs the relevant service providers to implement EVV and directs them to 12VAC30-60-65 for additional detail on the requirements. Specifically, these amendments apply to the following services:

• personal care for children receiving early preventative screening, diagnosis, and treatment (12VAC30-50-130);

• consumer-directed or agency-directed personal care or respite care specifically for activities of daily living (12VAC30-120-766);

• personal care or respite care for individuals under the Elderly or Disabled with Consumer-Direction Waiver, agency or consumer-directed companion services in the workplace or postsecondary school, and agency or consumer-directed respite services (12VAC30-120-924); and

• services for individuals with developmental disabilities receiving community waiver services (12VAC30-122-125).

Lastly, the Board seeks to include the amendment requiring EVV in 12VAC30-120-930, which provides general requirements for home and community-based providers, to clarify that all types of personal care providers are covered by the EVV requirements, without exception.

Background. The proposed action conforms the requirements of the Medicaid program with the federal 21st Century Cures Act as applicable to Title XIX concerning electronic visit verification. The 21st Century Cures Act was signed into law in December 2016 and added § 1903(1) to the Social Security Act (SSA). The Cures Act includes fiscal penalties for states that failed to implement the EVV requirement for personal care services by January 1, 2019. The 2018 Appropriation Act (2018 Special Session 1, Acts of Assembly Chapter 2, Item 303, LLL) gave the Department of Medical Assistance Services (DMAS) the authority to implement the EVV requirement prior to the completion of any regulatory process.

In July 2018, Congress enacted H.R. 6042 to delay the onset of the penalties until January 1, 2020; subsequently in January 2019, the Budget Bill was amended (2019 Acts of Assembly Chapter 854) to allow DMAS until October 1, 2019, to implement EVV for personal care services. DMAS expects to meet this deadline and has been working with various stakeholders, including service providers and vendors, to ensure that they implement EVV well in advance of the federal deadline, so as to not risk facing any fiscal penalties.

Estimated Benefits and Costs. Failure to comply with the requirements of the Cures Act would have resulted in a small reduction in the Federal Medical Assistance Percentage (FMAP) rate for personal care expenditures in the first year and larger reductions in subsequent years. Given DMAS expended a total of $868 million in 2017 for personal care services (both agency-directed and consumer-directed) even a small decrease in the FMAP would have cost several million dollars. By implementing EVV before the deadline, in compliance with all the requirements of the federal Centers for Medicare and Medicaid Services, DMAS benefits from avoiding any such penalty. Avoiding the penalty is possibly the most readily quantifiable benefit of implementing this regulation.

Other benefits may accrue to providers, beneficiaries, and DMAS. Provider organizations may use EVV to manage and monitor the delivery of care and services, reduce paper-based recordkeeping, and streamline their own documentation process for submitting insurance claims, which could also lead to faster claim payments as payers use the EVV data to more efficiently detect fraud or waste. Medicaid beneficiaries who utilize personal care services and may have been harmed, either directly or indirectly, by improper payments (fraud or abuse) in personal care provision are now benefited by the increased transparency and accountability provided by EVV. To the extent that improper payments in personal care provision increased DMAS expenditures, the implementation of EVV could reduce those losses.

However, greater transparency and fraud reduction also incurs certain costs. Providers have to contract with vendors to adopt appropriate EVV tools that support their operations. In areas with limited wireless internet connectivity, this could mean using landline telephones or installing devices at the consumer's home that can be used by the care providers. In areas where wireless connectivity is stronger, EVV vendors may provide mobile applications deployed on the provider's smartphone or on a tablet or similar device given to the provider. These mobile applications may combine web-based timesheets with GPS-based location services to collect and transmit very precise data. Depending on the size of the provider organization and the locations in which they operate, these costs could vary widely but would include both the one-time cost of deploying the technology and training users and any recurring costs such as technology refresh, network or connectivity charges, and charges for using a data clearinghouse to submit claims and receive remittances from the insurance companies.

Some small providers responded to queries by DPB staff saying that although EVV was not required for their customers with other insurance, they chose to implement it for all their clients so that each caregiver could use the same process for scheduling and entering visit data with all the individuals who they directly serve. These providers reported lower costs (less than $10 per member per month) and were located in areas with widespread wireless internet coverage and high rates of smartphone adoption. However, providers in areas without widespread internet coverage reported higher up-front costs of training staff in using multiple EVV tools (using landlines and Wi-Fi) as well as higher ongoing costs (approximately $20 per member per month) and said they could not afford to implement EVV for their non-Medicaid clients. None of the small providers who responded had adopted EVV as a business practice prior to the passage of the Cures Act. Furthermore, those who implemented it in time for the initial January 1, 2019, deadline expressed some frustration about the vendor fees that could have been avoided had they known that the deadline would be postponed to October 1, 2019.

In an effort to minimize costs to providers, DMAS convened an EVV Regulation Development Workgroup (Workgroup) and also issued a Request for Information (RFI) from service providers and EVV vendors seeking information on their capacity to implement EVV in the least disruptive manner. Based on the information received, DMAS chose to adopt an "open" model, in which they could parlay the requirements of the Cures Act to providers as a broad range of technical specifications, rather than a "closed" model in which providers would have to implement a specific system chosen by DMAS. Hence, providers were given the freedom to work with vendors of their choice, including vendors they were already using for scheduling or payroll.

Based on minutes from the Workgroup's deliberations, it appears that the fiscal/employers' agents (F/EA) for consumer-directed services have been able to transition their existing timesheets and payroll systems to one that meets EVV requirements. Given that DMAS contracted with an F/EA that for individuals covered by Medicaid fee-for-service receiving consumer-directed personal assistance, this might have set a precedent for other F/EAs acting on behalf of managed care organizations (MCOs). Finally, providers are incentivized to implement EVV simply because it is a required component of filing claims and receiving payments from DMAS. Providers who have been slow to implement EVV will not be paid until and unless they do so.

In the medium run to long run, regulatory requirements such as EVV could have consequences that may not be apparent in the short run. These requirements impose the greatest burden for the smallest provider groups who may have very minimal capacity for moving beyond the most basic payroll systems. Over time, regulatory requirements that involve significant technology upgrades can encourage market concentration in the industry because small providers eventually find it more cost effective to merge into larger organizations that can afford to have an in-house software development team or can contract with external vendors more competitively.

This process may be underway, as evidenced by the presence of groups such as the Partnership for Medicaid Home-Based Care, a consortium representing the largest home and personal care service providers, MCOs, and EVV vendors. The participating organizations are all corporations, some publicly-traded, that operate across multiple states. These groups, or their member organizations, are well-situated to participate in RFIs, such as the one conducted by DMAS, and submit compelling arguments in favor of the "open" model that promotes flexibility and efficiency for the providers.

Regulations targeting providers that require technology upgrades also create incentives for Managed Care Organizations (MCOs) to offer technology solutions to the providers in their network and absorb the up-front costs of developing and deploying the technology. Otherwise, they might face providers who want to be reimbursed for the additional costs accrued from complying with such regulations. This in turn will likely prompt MCOs to negotiate higher capitation rates or special payments that cover the cost of regulatory compliance. It would be impossible to isolate the effect of just the EVV requirement on any marginal increase to capitation rates in the future or determine whether any rate increases are offset by decreases in improper payments, but it offers an illustration of the process by which one technological upgrade, in this case through regulatory action, could lead to increases in health care costs.

Businesses and Other Entities Affected. The proposed amendments affect numerous organizations providing personal care or assistance as well as the individuals receiving these services and possibly their families. In state fiscal year 2017, DMAS estimates that about 68,000 people who used these services would be affected per year. This includes roughly 34,000 individuals in managed care who were eligible for personal care, respite care, and companion care services. (According to DMAS, managed care information is reported as encounter data, without user counts.) In the fee-for-service system, roughly 27,780 individuals used personal care services.

Based on the fee-for-service claims, DMAS estimates that about 600 provider organizations of agency-directed personal care would be affected. DMAS estimates that 90% of these are likely to be small businesses. Other private entities affected include Adult Rehabilitation Centers, Area Agencies on Aging, disability support organizations, and organizations with religious affiliations that provide support services, to the extent that the population they serve receives Medicaid coverage. The proposed amendments would also affect vendors that develop and provide software services.

Localities2 Affected.3 The proposed amendments do not immediately introduce new costs for local governments. However, these requirements would affect Community Services Boards and Area Agencies on Aging, which are administered by local governments in conjunction with the Department of Behavioral Health and Developmental Services and the Department for Aging and Rehabilitative Services respectively, to the extent that the population they serve receives Medicaid coverage. Localities with greater proportions of Medicaid recipients who utilize personal care services would be disproportionately affected by the proposed regulations.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment. In the short run, more jobs may have been created by the demand for new software solutions to meet the EVV requirements. This regulation is unlikely to affect the ongoing shortage of home health care and personal care workers.

Effects on the Use and Value of Private Property. The value of managed care organizations and information technology vendors that provide EVV solutions may increase. Real estate development costs are not affected.

Adverse Effect on Small Businesses:4

Types and Estimated Number of Small Businesses Affected. Based on the fee-for-service claims, DMAS estimates that about 600 provider organizations of agency-directed personal care will be affected. DMAS estimates that 90% of these are likely to be small businesses.

Costs and Other Effects. The EVV requirements impose the greatest burden for the smallest provider groups who may have very minimal capacity for engaging with more sophisticated software requirements moving beyond the most basic payroll systems. Over time, regulatory requirements that involve significant technology upgrades can encourage market concentration in the industry because small providers eventually find it more cost effective to merge into larger organizations that can afford to have an in-house software development team or can contract with external vendors more competitively.

Alternative Method that Minimizes Adverse Impact. Given the potential for millions of dollars in reduced federal funding for failing to require EVV, there are no clear alternative methods that would meet the requirements of the Cures Act. In the absence of the Cures Act, alternative systems to reduce fraud or waste such as random site audits, or automated random remote audits could have been considered.

_______________________________

2"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

3§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

4Pursuant 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."

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

For personal care, companion care, and respite care services, the proposed amendments establish the requirements for electronic visit verification (EVV), which is a telephone and computer-based system by which providers of services to qualifying Medicaid individuals create an electronic record of their arrival and departure times, locations, and services provided at each visit. Additional proposed amendments require the implementation of EVV for specific categories of service providers, including those providing (i) personal care services for children receiving early preventative screening, diagnosis, and treatment; (ii) consumer-directed or agency-directed personal care or respite care services specifically for activities of daily living; (iii) personal care or respite care services for individuals under the Elderly or Disabled with Consumer-Direction Waiver, agency-directed or consumer-directed companion services in the workplace or postsecondary school, and agency-directed or consumer-directed respite care services; and (iv) services for individuals with developmental disabilities receiving community waiver services. The proposed amendments are in conformance with the 21st Century Cures Act (Public Law 114-255), Public Law 115-222, and Item 303 LLL of Chapter 2 of the 2018 Acts of Assembly, Special Session I.

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. General provisions for early and periodic screening, 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 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. DMAS shall place appropriate utilization controls upon this service.

4. Consistent with § 6403 of the Omnibus Budget Reconciliation Act of 1989, 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 21 years of age and older, provided for by § 1905(a) of the Social Security Act.

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) shall be reflected in provider records and on provider claims for services by recognized diagnosis codes that support and are consistent with the requested professional services.

1. Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

"Adolescent" means the individual receiving the services described in this section. For the purpose of the use of this term, adolescent means an individual 12 through 20 years of age.

"Behavioral health service" means the same as defined in 12VAC30-130-5160.

"Care coordination" means the collaboration and sharing of information among health care providers involved with an individual's health care to improve the care.

"Caregiver" means the same as defined in 12VAC30-130-5160.

"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 the Department of Health Professions in the document entitled 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.

"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.

"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.

"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.

"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.

"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 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 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.

"Strength-based" means the same as defined in 12VAC30-130-5160.

"Supervision" means the same as defined in 12VAC30-130-5160.

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 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 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.

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.

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.

c. These services shall only be rendered by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

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.

a. Service authorization shall be required for Medicaid reimbursement.

b. Service-specific provider intakes shall be required prior to the 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.

c. These services shall be rendered only by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

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 familytherapy; 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.

2. Therapeutic group home services pursuant to 42 CFR 440.130(d).

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 eligible for reimbursement.

(16) Therapeutic group home services providers shall be licensed by the Department of Behavioral Health and Developmental Services (DBHDS) under the Regulations for Children's Residential Facilities (12VAC35-46).

(17) Individuals shall be discharged from this service when treatment goals are met or other less intensive services may achieve stabilization.

(18) Services that are based upon incomplete, missing, or outdated service-specific provider intakes or plans of care shall be denied reimbursement.

(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.

(20) The 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 or group home in the individual's record. The documentation shall include who was contacted, when the contact occurred, 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 subsection. 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.)

E. Mental health family support partners.

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. 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. Documentation of required activities shall be required as set forth in 12VAC30-130-5200 A, C, and E through J.

4. Limitations and exclusions to service delivery shall be the same as set forth in 12VAC30-130-5210.

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. 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. 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. Individual and his caregiver need assistance and support to prepare the individual for a successful work or school experience.

d. Individual and his caregiver need assistance to help the individual and caregiver assume responsibility for recovery.

6. Individuals 18, 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. 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. Discharge criteria from mental health family support partners shall be the same as set forth in 12VAC30-130-5180 E.

9. Mental health family support partners services shall be rendered on an individual basis or in a group.

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. 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. The PRS shall be employed by or have a contractual relationship with the enrolled provider licensed for one of the following:

a. Acute care general and emergency department hospital services licensed by the Department of Health.

b. Freestanding psychiatric hospital and inpatient psychiatric unit licensed by the Department of Behavioral Health and Developmental Services.

c. Psychiatric residential treatment facility licensed by the Department of Behavioral Health and Developmental Services.

d. Therapeutic group home licensed by the Department of Behavioral Health and Developmental Services.

e. Outpatient mental health clinic services licensed by the Department of Behavioral Health and Developmental Services.

f. Outpatient psychiatric services provider.

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. Only the licensed and enrolled provider as referenced in subdivision 12 of this subsection shall be eligible to bill and receive reimbursement from DMAS for mental health family support partner services. Payments shall not be permitted to providers that fail to enter into an enrollment agreement with DMAS. Reimbursement shall be subject to retraction for any billed service that is determined not to be in compliance with DMAS requirements.

14. Supervision of the PRS shall meet the requirements set forth in 12VAC30-50-226 B 7 l.

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.

G. Addiction and recovery treatment services shall be covered under EPSDT consistent with 12VAC30-130-5000 et seq.

H. Services facilitators shall be required for all consumer-directed personal care services consistent with the requirements set out in 12VAC30-120-935.

I. Behavioral therapy services shall be covered for individuals younger than 21 years of age.

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 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.

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.

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 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 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:

a. Initial and periodic service-specific provider intake as defined in 12VAC30-60-61 F;

b. Development of initial and updated ISPs as established in 12VAC30-60-61 F;

c. Clinical supervision activities. Requirements for clinical supervision are set out in 12VAC30-60-61 F;

d. Behavioral training to increase the individual's adaptive functioning and communication skills;

e. Training a family member in behavioral modification methods as established in 12VAC30-60-61 F;

f. Documentation and analysis of quantifiable behavioral data related to the treatment objectives; and

g. Care coordination.

4. All personal care services rendered to children under the authority of 42 CFR 440.40(b) shall comply with the requirements of 12VAC30-60-65 with regard to electronic visit verification.

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 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 professional develops a written plan for meeting the needs of the 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. 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 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 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 individual is receiving a Medicaid-covered service under the IEP. Transportation shall be listed in the individual's IEP. 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 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 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 an individual is receiving additional therapy outside of the school, that there will be coordination of services to avoid duplication of service.

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.

12VAC30-60-65. Electronic visit verification.

A. Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

"Aide" means the person who is employed by an agency to provide hands-on care.

"Agency-directed services" means a model of service delivery where an agency is responsible for providing direct support staff, for maintaining an individual's records, and for scheduling the dates and times of the direct support staff's presence in the individual's home for personal care services, respite care services, and companion services.

"Attendant" means the person who is hired by the individual consumer to provide hands-on care.

"Companion services" means nonmedical care, supervision, and socialization provided to an adult individual (ages 18 years and older). The provision of companion services shall not entail hands-on care but shall be provided in accordance with a therapeutic goal in the individual support plan and is not purely diversional in nature.

"Consumer-directed attendant" means a person who provides consumer-directed personal care services, respite care services, companion services, or any combination of these three services, who is also exempt from workers' compensation.

"Consumer-directed services" or "CD services" means the model of service delivery for which the individual enrolled in the waiver or the individual's employer of record, as appropriate, is responsible for hiring, training, supervising, and firing of an attendant who renders the services that are reimbursed by DMAS.

"DMAS" means the Department of Medical Assistance Services.

"Electronic visit verification" or "EVV" means a system by which personal care services, companion services, or respite care services home visits are electronically verified with respect to (i) the type of service performed, (ii) the individual receiving the service, (iii) the date of the service, (iv) the location of service delivery, (v) the individual providing the service, and (vi) the time the service begins and ends.

"Individual" means the person who has applied for and been approved to receive services for which EVV is required.

"Personal care services" means a range of support services that includes assistance with activities of daily living and instrumental activities of daily living, access to the community, and self-administration of medication or other medical needs and the monitoring of health status and physical condition provided through the agency-directed or consumer-directed model of service. Personal care services shall be provided by a personal care attendant or aide within the scope of the attendant's or aide's license or certification, as appropriate.

"Respite care services" means services provided to waiver individuals who are unable to care for themselves that are furnished on a short-term basis because of the absence of or need for the relief of the unpaid primary caregiver who normally provides the care.

B. Applicable services. All of the requirements for an electronic visit verification system shall apply to all providers, both agency-directed and consumer-directed, of personal care services, respite care services, and companion services.

1. Agency providers shall choose the EVV system that best suits the provider business model, meets regulatory requirements established in this section, and provides reliable functionality for the geographic area in which it is to be used.

2. For consumer-directed services, the DMAS designee (the fiscal employer agent) shall select and operate an EVV system to support an individual, or the employer of record, in managing the individual's care, meeting regulatory requirements established in this section, and providing reliable functionality for the geographic area in which it is to be used. 

3. Providers of consumer-directed personal care services, respite care services, and companionservices shall comply with all EVV requirements.

4. Providers of agency-directed personal care services, respite care services, and companion services shall comply with all EVV requirements.

5. Individuals shall not be restricted from receiving a combination of agency-directed and consumer-directed services. Nothing in this section shall be construed to limit personal care, respite care, or companion services; an individual's selection of a provider attendant or aide; or impede the manner or location in which services are delivered subject to subsection C of this section.

C. The following entities shall be exempt from EVV requirements:

1. A DBHDS-licensed provider in a DBHDS-licensed program site, such as a group home or sponsored residential home or a supervised living, supported living, or similar facility or location licensed to provide respite care services;

2. The Regional Educational Assessment Crisis Response and Habilitation (REACH) Program; and

3. Schools where personal care services are rendered under the authority of an individual education program.

D. System requirements.

1. The EVV system shall be capable of capturing required data in real time and producing such data as requested by DMAS in electronic format. The following information shall be retained:

a. The type of the service being performed;

b. The individual who receives the service;

c. The date of the service, including month, day, and year;

d. The time the service begins and ends;

e. The location of the service delivery at the beginning and the end of the service. EVV systems shall not restrict locations where individuals may receive services; and

f. The attendant or aide who provides the service.

2. In the event the time of service delivery needs to be adjusted, the start or end time may be modified by someone who has the provider's authority to adjust the aide's or attendant's hours.

a. For agency-directed providers, this may be a supervisor or the agency owner or a designee who has authority to make independent verifications. In no case shall workers be allowed to adjust a peer worker's reported time.

b. For consumer-directed attendants, the fiscal employer agent shall have this authority.

3. All EVV systems shall be compliant with the requirements of the American with Disabilities Act (42 USC § 12101 et seq.) and Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191).

4. All EVV systems shall employ electronic devices that are capable of recording the required data described in subdivision D 1 of this section, producing it upon demand, and safeguarding the data both physically and electronically.

5. All EVV systems shall be accessible for input or service delivery 24 hours per day, seven days per week.

6. All EVV systems shall provide for data backups in the event of emergencies; disasters, natural or otherwise; and system malfunctions, both in the location services are being delivered and the backup server location.

7. All EVV systems shall be capable of handling:

a. Multiple work shifts per day per individual or aide or attendant combination;

b. Aides or attendants who work for multiple individuals;

c. Individuals who use multiple aides or attendants;

d. Multiple individuals and multiple aides or attendants or both in the same location at the same time and date. In such situations, the EVV shall be capable of separately documenting the services, as well as the other elements set out in subdivision D 1 of this section, that are provided to each individual; and

e. At minimum, daily backups of the most recent data that has been entered.

8. All EVV systems shall be capable of electronically transmitting information to DMAS in the required format or electronically transferring it to the provider's billing system.

E. EVV data shall be submitted to DMAS with the provider's billing claim.

F. Agency-directed provider records, audits, and reports.

1. Providers shall select and obtain an EVV system that meets the functional requirements of DMAS or its designee.

2. All providers shall retain EVV data for at least six years from the last date of service or as provided by applicable federal and state laws, whichever period is longer. However, if an audit is initiated within the required retention period, the records shall be retained until the audit is completed and every exception is resolved. Policies regarding retention of records shall apply even if the provider discontinues operation.

a. In the event a provider discontinues services, DMAS shall be notified in writing of the storage location and procedures for obtaining records for review should the need arise.

b. The location, agent, or trustee shall be within the Commonwealth.

3. All providers shall retain records of minor individuals for at least six years after such minor individual has reached 18 years of age.

4. All providers shall produce their archived EVV data in a timely manner and in an electronic format when requested by DMAS or its designee.

5. In the event that a telephone or other verification option that the provider uses is not available or accessible in the individual's home or location, and delayed data input is utilized, the provider shall have information on file documenting the reason that the aide or attendant did not use EVV for the service delivered.

12VAC30-120-766. Personal care and respite care services.

A. Service description. Services may be provided either through an agency-directed or consumer-directed model.

1. Personal care services means services offered to individuals in their homes and communities to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. Personal care services substitute for the absence, loss, diminution, or impairment of a physical, behavioral, or cognitive function. This service shall provide care to individuals with activities of daily living (eating, drinking, personal hygiene, toileting, transferring, and bowel/bladder bowel or bladder control), instrumental activities of daily living (IADL), access to the community, monitoring of self-medication or other medical needs, and the monitoring of health status or physical condition. In order to receive personal care services, the individual must require assistance with their ADLs. When specified in the plan of care, personal care services may include assistance with IADL. Assistance with IADL must be essential to the health and welfare of the individual, rather than the individual's family/caregiver family or caregiver. An additional component to personal care is work or school-related personal care. This allows the personal care provider to provide assistance and supports for individuals in the workplace and for those individuals attending postsecondary educational institutions. Workplace or school supports through the IFDDS Waiver are not provided if they are services that should be provided by DARS, under IDEA, or if they are an employer's responsibility under the Americans with Disabilities Act, the Virginians with Disabilities Act, or § 504 of the Rehabilitation Act. Work-related personal care services cannot duplicate services provided under supported employment.

2. Respite care means services provided for unpaid caregivers of eligible individuals who are unable to care for themselves that are provided on an episodic or routine basis because of the absence of or need for relief of those unpaid persons who routinely provide the care.

3. Both agency-directed and consumer-directed personal care services and respite care services shall be subject to the requirements of electronic visit verification set out in 12VAC30-60-65.

B. Criteria.

1. In order to qualify for personal care services, the individual must demonstrate a need in activities of daily living, reminders to take medication, or other medical needs, or monitoring health status or physical condition.

2. In order to qualify for respite care, individuals must have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the individual.

3. Individuals choosing the consumer-directed option must receive support from a CD services facilitator and meet requirements for consumer direction as described in 12VAC30-120-770.

C. Service units and service limitations.

1. The unit of service is one hour.

2. Effective July 1, 2011, respite care services are limited to a maximum of 480 hours per year. Individuals who are receiving services through both the agency-directed and consumer-directed models cannot exceed 480 hours per year combined.

3. Individuals may have personal care, respite care, and in-home residential support services in their plan of care but cannot receive in-home residential supports and personal care or respite care services at the same time.

4. Each individual receiving personal care services must have a back-up plan in case the personal care aide or consumer-directed (CD) employee does not show up for work as expected or terminates employment without prior notice.

5. Individuals must need assistance with ADLs in order to receive IADL care through personal care services.

6. Individuals shall be permitted to share personal care service hours with one other individual (receiving waiver services) who lives in the same home.

7. This service does not include skilled nursing services with the exception of skilled nursing tasks that may be delegated in accordance with 18VAC90-20-420 through 18VAC90-20-460.

D. Provider requirements. In addition to meeting the general conditions and requirements for home and community-based care participating providers as specified in 12VAC30-120-730 and 12VAC30-120-740, personal and respite care providers must meet the following provider requirements:

1. Services shall be provided by:

a. For the agency-directed model, a DMAS enrolled personal care/respite care provider or by a DBHDS-licensed residential supportive in-home provider. All personal care aides must pass an objective standardized test of knowledge, skills, and abilities approved by DBHDS and administered according to DBHDS' defined procedures.

Providers must demonstrate a prior successful health care delivery business and operate from a business office.

b. For the consumer-directed model, a service facilitation provider meeting the requirements found in 12VAC30-120-770.

2. For DBHDS-licensed providers, a residential supervisor shall provide ongoing supervision for all personal care aides. For DMAS-enrolled personal care/respite care providers, the provider must employ or subcontract with and directly supervise an RN who will provide ongoing supervision of all aides. The supervising RN must be currently licensed to practice in the Commonwealth and have at least two years of related clinical nursing experience that may include work in an acute care hospital, public health clinic, home health agency, ICF/IID, or nursing facility.

3. The RN supervisor or case manager/services facilitator must make a home visit to conduct an initial assessment prior to the start of care for all individuals requesting services. The RN supervisor or case manager/service facilitator must also perform any subsequent reassessments or changes to the supporting documentation. Under the consumer-directed model, the initial comprehensive visit is done only once upon the individual's entry into the service. If an individual served under the waiver changes CD services facilitation agencies, the new CD services facilitation provider must bill for a reassessment in lieu of a comprehensive visit.

4. The RN supervisor or case manager/services facilitator must make supervisory visits as often as needed to ensure both quality and appropriateness of services.

a. For personal care the minimum frequency of these visits is every 30 to 90 calendar days depending on individual needs. For respite care offered on a routine basis, the minimum frequency of these visits is every 30 to 90 calendar days under the agency-directed model and every six months or upon the use of 240 respite care hours (whichever comes first) under the consumer-directed model.

b. Under the agency-directed model, when respite care services are not received on a routine basis, but are episodic in nature, the RN is not required to conduct a supervisory visit every 30 to 90 calendar days. Instead, the RN supervisor must conduct the initial home visit with the respite care aide immediately preceding the start of care and make a second home visit within the respite care period.

c. When respite care services are routine in nature and offered in conjunction with personal care, the 30-day to 90-day supervisory visit conducted for personal care may serve as the RN supervisor or case manager/service facilitator visit for respite care. However, the RN supervisor or case manager/services facilitator must document supervision of respite care separately. For this purpose, the same record can be used with a separate section for respite care documentation.

5. Under the agency-directed model, the supervisor shall identify any gaps in the aide's ability to provide services as identified in the individual's plan of care and provide training as indicated based on continuing evaluations of the aide's performance and the individual's needs.

6. The supervising RN or case manager/services facilitator must maintain current documentation. This may be done as a summary and must note:

a. Whether personal and respite care services continue to be appropriate;

b. Whether the supporting documentation is adequate to meet the individual's needs or if changes are indicated in the supporting documentation;

c. Any special tasks performed by the aide/CD employee and the aide's/CD employee's qualifications to perform these tasks;

d. Individual's satisfaction with the service;

e. Any hospitalization or change in the individual's medical condition or functioning status;

f. Other services received and their amount; and

g. The presence or absence of the aide in the home during the RN's visit.

7. Qualification of aides/CD employees. Each aide/CD employee must:

a. Be 18 years of age or older and possess a valid social security number;

b. For the agency-directed model, be able to read and write English to the degree necessary to perform the tasks required. For the consumer-directed model, possess basic math, reading and writing skills;

c. Have the required skills to perform services as specified in the individual's plan of care;

d. Not be the parents of individuals who are minors, or the individual's spouse. Payment will not be made for services furnished by other family members living under the same roof as the individual receiving services unless there is objective written documentation as to why there are no other providers available to provide the care. Family members who are approved to be reimbursed for providing this service must meet the qualifications. In addition, under the consumer-directed model, family/caregivers family or caregivers acting as the employer on behalf of the individual may not also be the CD employee;

e. Additional aide requirements under the agency-directed model:

(1) Complete an appropriate aide training curriculum consistent with DMAS standards. Prior to assigning an aide to an individual, the provider must ensure that the aide has satisfactorily completed a training program consistent with DMAS standards. DMAS requirements may be met in any of the following ways:

(a) Registration as a certified nurse aide (DMAS-enrolled personal care/respite care providers);

(b) Graduation from an approved educational curriculum that offers certificates qualifying the student as a nursing assistant, geriatric assistant or home health aide (DMAS-enrolled personal care/respite care providers);

(c) Completion of provider-offered training that is consistent with the basic course outline approved by DMAS (DMAS-enrolled personal care/respite care providers);

(d) Completion and passing of the DBHDS standardized test (DBHDS-licensed providers);

(2) Have a satisfactory work record as evidenced by two references from prior job experiences, including no evidence of possible abuse, neglect, or exploitation of aged or incapacitated adults or children; and

(3) Be evaluated in his job performance by the supervisor.

f. Additional CD employee requirements under the consumer-directed model:

(1) Submit to a criminal records check and, if the individual is a minor, the child protective services registry. The employee will not be compensated for services provided to the individual if the records check verifies the employee has been convicted of crimes described in § 37.2-314 of the Code of Virginia or if the employee has a complaint confirmed by the DSS child protective services registry;

(2) Be willing to attend training at the request of the individual or his family/caregivers family or caregiver, as appropriate;

(3) Understand and agree to comply with the DMAS consumer-directed services requirements; and

(4) Receive an annual TB screening.

8. Provider inability to render services and substitution of aides (agency-directed model). When an aide is absent, the provider may either obtain another aide, obtain a substitute aide from another provider if the lapse in coverage is to be less than two weeks in duration, or transfer the individual's services to another provider.

9. Retention, hiring, and substitution of employees (consumer-directed model). Upon the individual's request, the CD services facilitator shall provide the individual or his family/caregiver family or caregiver, as appropriate, with a list of consumer-directed employees on the consumer-directed employee registry that may provide temporary assistance until the employee returns or the individual or his family/caregiver family or caregiver, as appropriate, is able to select and hire a new employee. If an individual or his family/caregiver family or caregiver, as appropriate, is consistently unable to hire and retain an employee to provide consumer-directed services, the services facilitator must contact the case manager and DBHDS to transfer the individual, at the choice of the individual or his family/caregiver family or caregiver, as appropriate, to a provider that provides Medicaid-funded agency-directed personal care or respite care services. The CD services facilitator will make arrangements with the case manager to have the individual transferred.

10. Required documentation in individuals' records. The provider must maintain all records of each individual receiving services. Under the agency-directed model, these records must be separated from those of other nonwaiver services, such as home health services. At a minimum these records must contain:

a. The most recently updated plan of care and supporting documentation, all provider documentation, and all DMAS-225 forms;

b. Initial assessment by the RN supervisory nurse or case manager/services facilitator completed prior to or on the date services are initiated, subsequent reassessments, and changes to the supporting documentation by the RN supervisory nurse or case manager/services facilitator;

c. Nurses' or case manager/services facilitator summarizing notes recorded and dated during any contacts with the aide or CD employee and during supervisory visits to the individual's home;

d. All correspondence to the individual, to DBHDS, and to DMAS;

e. Contacts made with family, physicians, DBHDS, DMAS, formal and informal service providers, and all professionals concerning the individual;

f. Under the agency-directed model, all aide records. The aide record must contain:

(1) The specific services delivered to the individual by the aide and the individual's responses;

(2) The aide's arrival and departure times;

(3) The aide's weekly comments or observations about the individual to include observations of the individual's physical and emotional condition, daily activities, and responses to services rendered;

(4) The aide's and individual's weekly signatures to verify that services during that week have been rendered;

(5) Signatures, times, and dates; these signatures, times, and dates shall not be placed on the aide record prior to the last date of the week that the services are delivered; and

(6) Copies of all aide records; these records shall be subject to review by state and federal Medicaid representatives.

g. Additional documentation requirements under the consumer-directed model:

(1) All management training provided to the individuals or their family caregivers, as appropriate, including responsibility for the accuracy of the timesheets.

(2) All documents signed by the individual or his family/caregivers family or caregiver, as appropriate, that acknowledge the responsibilities of the services.

12VAC30-120-924. Covered services; limits on covered services.

A. Covered services in the EDCD Waiver shall include: adult day health care, personal care (both consumer-directed and agency-directed), respite services (both consumer-directed and agency-directed), PERS, PERS medication monitoring, limited assistive technology, limited environmental modifications, transition coordination, and transition services.

1. The services covered in this waiver shall be appropriate and medically necessary to maintain the individual in the community in order to prevent institutionalization and shall be cost effective in the aggregate as compared to the alternative NF placement.

2. EDCD services shall not be authorized if another entity is required to provide the services (e.g., schools, insurance). Waiver services shall not duplicate services available through other programs or funding streams.

3. Assistive technology and environmental modification services shall be available only to those EDCD Waiver individuals who are also participants in the Money Follows the Person (MFP) demonstration program pursuant to Part XX (12VAC30-120-2000 et seq.).

4. An individual receiving EDCD Waiver services who is also getting hospice care may receive Medicaid-covered personal care (agency-directed and consumer-directed), respite care (agency-directed and consumer-directed), adult day health care, transition services, transition coordination, and PERS services, regardless of whether the hospice provider receives reimbursement from Medicare or Medicaid for the services covered under the hospice benefit. Such dual waiver/hospice individuals shall only be able to receive assistive technology and environmental modifications if they are also participants in the MFP demonstration program.

5. Agency-directed and consumer-directed personal care services and respite care services shall be subject to the electronic visit verification requirements set out in 12VAC30-60-65.

B. Voluntary/involuntary Voluntary or involuntary disenrollment from consumer-directed services. In either voluntary or involuntary disenrollment situations, the waiver individual shall be permitted to select an agency from which to receive his agency-directed personal care and respite services.

1. A waiver individual may be found to be ineligible for CD services by either the Preadmission Screening Team, DMAS-enrolled hospital provider, DMAS, its designated agent, or the CD services facilitator. An individual may not begin or continue to receive CD services if there are circumstances where the waiver individual's health, safety, or welfare cannot be assured, including but not limited to:

a. It is determined that the waiver individual cannot be the EOR and no one else is able to assume this role;

b. The waiver individual cannot ensure his own health, safety, or welfare or develop an emergency backup plan that will ensure his health, safety, or welfare; or

c. The waiver individual has medication or skilled nursing needs or medical or behavioral conditions that cannot be met through CD services or other services.

2. The waiver individual may be involuntarily disenrolled from consumer direction if he or the EOR, as appropriate, is consistently unable to retain or manage the attendant as may be demonstrated by, but not necessarily limited to, a pattern of serious discrepancies with the attendant's timesheets.

3. In situations where either (i) the waiver individual's health, safety, or welfare cannot be assured or (ii) attendant timesheet discrepancies are known, the services facilitator shall assist as requested with the waiver individual's transfer to agency-directed services as follows:

a. Verify that essential training has been provided to the waiver individual or EOR;

b. Document, in the waiver individual's case record, the conditions creating the necessity for the involuntary disenrollment and actions taken by the services facilitator;

c. Discuss with the waiver individual or the EOR, as appropriate, the agency-directed option that is available and the actions needed to arrange for such services and offer choice of potential providers, and

d. Provide written notice to the waiver individual of the right to appeal such involuntary termination of consumer direction. Such notice shall be given at least 10 calendar days prior to the effective date of this change. In cases when the individual's or the provider personnel's safety may be jeopardy, the 10 calendar days notice shall not apply.

C. Adult day health care (ADHC) services. ADHC services shall only be offered to waiver individuals who meet preadmission screening criteria as established in 12VAC30-60-303 and 12VAC30-60-307 and for whom ADHC services shall be an appropriate and medically necessary alternative to institutional care. ADHC services may be offered to individuals in a VDSS-licensed adult day care center (ADCC) congregate setting. ADHC may be offered either as the sole home and community-based care service or in conjunction with personal care (either agency-directed or consumer-directed), respite care (either agency-directed or consumer-directed), or PERS. A multi-disciplinary approach to developing, implementing, and evaluating each waiver individual's POC shall be essential to quality ADHC services.

1. ADHC services shall be designed to prevent institutionalization by providing waiver individuals with health care services, maintenance of their physical and mental conditions, and coordination of rehabilitation services in a congregate daytime setting and shall be tailored to their unique needs. The minimum range of services that shall be made available to every waiver individual shall be: assistance with ADLs, nursing services, coordination of rehabilitation services, nutrition, social services, recreation, and socialization services.

a. Assistance with ADLs shall include supervision of the waiver individual and assistance with management of the individual's POC.

b. Nursing services shall include the periodic evaluation, at least every 90 days, of the waiver individual's nursing needs; provision of indicated nursing care and treatment; responsibility for monitoring, recording, and administering prescribed medications; supervision of the waiver individual in self-administered medication; support of families in their home care efforts for the waiver individuals through education and counseling; and helping families identify and appropriately utilize health care resources. Periodic evaluations may occur more frequently than every 90 days if indicated by the individual's changing condition. Nursing services shall also include the general supervision of provider staff, who are certified through the Board of Nursing, in medication management and administering medications.

c. Coordination and implementation of rehabilitation services to ensure the waiver individual receives all rehabilitative services deemed necessary to improve or maintain independent functioning, to include physical therapy, occupational therapy, and speech therapy.

d. Nutrition services shall be provided to include, but not necessarily be limited to, one meal per day that meets the daily nutritional requirements pursuant to 22VAC40-60-800. Special diets and nutrition counseling shall be provided as required by the waiver individuals.

e. Recreation and social activities shall be provided that are suited to the needs of the waiver individuals and shall be designed to encourage physical exercise, prevent physical and mental deterioration, and stimulate social interaction.

f. ADHC coordination shall involve implementing the waiver individuals' POCs, updating such plans, recording 30-day progress notes, and reviewing the waiver individuals' daily logs each week.

2. Limits on covered ADHC services.

a. A day of ADHC services shall be defined as a minimum of six hours.

b. ADCCs that do not employ professional nursing staff on site shall not be permitted to admit waiver individuals who require skilled nursing care to their centers. Examples of skilled nursing care may include: (i) tube feedings; (ii) Foley catheter irrigations; (iii) sterile dressing changing; or (iv) any other procedures that require sterile technique. The ADCC shall not permit its aide employees to perform skilled nursing procedures.

c. At any time that the center is no longer able to provide reliable, continuous care to any of the center's waiver individuals for the number of hours per day or days per week as contained in the individuals' POCs, then the center shall contact the waiver individuals or family/caregivers their family or caregivers, as appropriate, to initiate other care arrangements for these individuals. The center may either subcontract with another ADCC or may transfer the waiver individual to another ADCC. The center may discharge waiver individuals from the center's services but not from the waiver. Written notice of discharge shall be provided, with the specific reason or reasons for discharge, at least 10 calendar days prior to the effective date of the discharge. In cases when the individual's or the center personnel's safety may be jeopardy, the 10 calendar days notice shall not apply.

d. ADHC services shall not be provided, for the purpose of Medicaid reimbursement, to individuals who reside in NFs, ICFs/IID, hospitals, assisted living facilities that are licensed by VDSS, or group homes that are licensed by DBHDS.

D. Agency-directed personal care services. Agency-directed personal care services shall only be offered to persons who meet the preadmission screening criteria at 12VAC30-60-303 and 12VAC30-60-307 and for whom it shall be an appropriate alternative to institutional care. Agency-directed personal care services shall be comprised of hands-on care of either a supportive or health-related nature and shall include, but shall not necessarily be limited to, assistance with ADLs, access to the community, assistance with medications in accordance with VDH licensing requirements or other medical needs, supervision, and the monitoring of health status and physical condition. Where the individual requires assistance with ADLs, and when specified in the POC, such supportive services may include assistance with IADLs. This service shall not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to Part VIII (18VAC90-20-420 through 18VAC90-20-460) of 18VAC90-20. Agency-directed personal care services may be provided in a home or community setting to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. Personal care may be offered either as the sole home and community-based care service or in conjunction with adult day health care, respite care (agency-directed or consumer-directed), or PERS. The provider shall document, in the individual's medical record, the waiver individual's choice of the agency-directed model.

1. Criteria. In order to qualify for this service, the waiver individual shall have met the NF LOC criteria as set out in 12VAC30-60-303 and 12VAC30-60-307 as documented on the UAI assessment form, and for whom it shall be an appropriate alternative to institutional care.

a. A waiver individual may receive both CD and agency-directed personal care services if the individual meets the criteria. Hours received by the individual who is receiving both CD and agency-directed services shall not exceed the total number of hours that would be needed if the waiver individual were receiving personal care services through a single delivery model.

b. CD and agency-directed services shall not be simultaneously provided but may be provided sequentially or alternately from each other.

c. The individual or family/caregiver family or caregiver shall have a backup plan for the provision of services in the event the agency is unable to provide an aide.

2. Limits on covered agency-directed personal care services.

a. DMAS shall not duplicate services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973 (29 USC § 794).

b. DMAS shall reimburse for services delivered, consistent with the approved POC, for personal care that the personal care aide provides to the waiver individual to assist him while he is at work or postsecondary school.

(1) DMAS or the designated Srv Auth contractor shall review the waiver individual's needs and the complexity of the disability, as applicable, when determining the services that are provided to him in the workplace or postsecondary school or both.

(2) DMAS shall not pay for the personal care aide to assist the enrolled waiver individual with any functions or tasks related to the individual completing his job or postsecondary school functions or for supervision time during either work or postsecondary school or both.

c. Supervision services shall only be authorized to ensure the health, safety, or welfare of the waiver individual who cannot be left alone at any time or is unable to call for help in case of an emergency, and when there is no one else in the home competent and able to call for help in case of an emergency.

d. There shall be a maximum limit of eight hours per 24-hour day for supervision services. Supervision services shall be documented in the POC as needed by the individual.

e. Agency-directed personal care services shall be limited to 56 hours of services per week for 52 weeks per year. Individual exceptions may be granted based on criteria established by DMAS.

f. Electronic visit verification requirements set out in 12VAC30-60-65 shall apply to these agency-directed respite care services.

E. Agency-directed respite care services. Agency-directed respite care services shall only be offered to waiver individuals who meet the preadmission screening criteria at 12VAC30-60-303 and 12VAC30-60-307 and for whom it shall be an appropriate alternative to institutional care. Agency-directed respite care services may be either skilled nursing or unskilled care and shall be comprised of hands-on care of either a supportive or health-related nature and may include, but shall not be limited to, assistance with ADLs, access to the community, assistance with medications in accordance with VDH licensing requirements or other medical needs, supervision, and monitoring health status and physical condition.

1. Respite care shall only be offered to individuals who have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the waiver individual. Respite care services may be provided in the individual's home or other community settings.

2. When the individual requires assistance with ADLs, and where such assistance is specified in the waiver individual's POC, such supportive services may also include assistance with IADLs.

3. The unskilled care portion of this service shall not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to Part VIII (18VAC90-20-420 through 18VAC90-20-460) of 18VAC90-20.

4. Limits on service.

a. The unit of service shall be one hour. Respite care services shall be limited to 480 hours per individual per state fiscal year, to be service authorized. If an individual changes waiver programs, this same maximum number of respite hours shall apply. No additional respite hours beyond the 480 maximum limit shall be approved for payment for individuals who change waiver programs. Additionally, individuals who are receiving respite services in this waiver through both the agency-directed and CD models shall not exceed 480 hours per state fiscal year combined.

b. If agency-directed respite care service is the only service received by the waiver individual, it must be received at least as often as every 30 days. If this service is not required at this minimal level of frequency, then the provider agency shall notify the local department of social services for its redetermination of eligibility for the waiver individual.

c. The individual or family/caregiver family or caregiver shall have a backup plan for the provision of services in the event the agency is unable to provide an aide.

d. Electronic visit verification requirements set out in 12VAC30-60-65 shall apply to these agency-directed respite care services.

F. Services facilitation for consumer-directed services. Consumer-directed personal care and respite care services shall only be offered to persons who meet the preadmission screening criteria at 12VAC30-60-303 and 12VAC30-60-307 and for whom there shall be appropriate alternatives to institutional care.

1. Individuals who choose CD services shall receive support from a DMAS-enrolled CD services facilitator as required in conjunction with CD services. The services facilitator shall document the waiver individual's choice of the CD model and whether there is a need for another person to serve as the EOR on behalf of the individual. The CD services facilitator shall be responsible for assessing the waiver individual's particular needs for a requested CD service, assisting in the development of the POC, providing training to the EOR on his responsibilities as an employer, and for providing ongoing support of the CD services.

2. Individuals who are eligible for CD services shall have, or have an EOR who has, the capability to hire and train the personal care attendant or attendants and supervise the attendant's performance, including approving the attendant's timesheets.

a. If a waiver individual is unwilling or unable to direct his own care or is younger than 18 years of age, a family/caregiver/designated family, a caregiver, or a designated person shall serve as the EOR on behalf of the waiver individual in order to perform these supervisory and approval functions.

b. Specific employer duties shall include checking references of personal care attendants and determining that personal care attendants meet qualifications.

3. The individual or family/caregiver family or caregiver shall have a backup plan for the provision of services in case the attendant does not show up for work as scheduled or terminates employment without prior notice.

4. The CD services facilitator shall not be the waiver individual, a CD attendant, a provider of other Medicaid-covered services, spouse of the individual, parent of the individual who is a minor child, or the EOR who is employing the CD attendant.

5. DMAS shall either provide for fiscal employer/agent services or contract for the services of a fiscal employer/agent for CD services. The fiscal employer/agent shall be reimbursed by DMAS or DMAS contractor (if the fiscal/employer agent service is contracted) to perform certain tasks as an agent for the EOR. The fiscal employer/agent shall handle responsibilities for the waiver individual including, but not limited to, employment taxes and background checks for attendants. The fiscal employer/agent shall seek and obtain all necessary authorizations and approvals of the Internal Revenue Service in order to fulfill all of these duties.

G. Consumer-directed personal care services. CD personal care services shall be comprised of hands-on care of either a supportive or health-related nature and shall include assistance with ADLs and may include, but shall not be limited to, access to the community, monitoring of self-administered medications or other medical needs, supervision, and monitoring health status and physical condition. Where the waiver individual requires assistance with ADLs and when specified in the POC, such supportive services may include assistance with IADLs. This service shall not include skilled nursing services with the exception of skilled nursing tasks (e.g. catheterization) that may be delegated pursuant to Part VIII (18VAC90-20-420 through 18VAC90-20-460) of 18VAC 90-20 and as permitted by Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia. CD personal care services may be provided in a home or community setting to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. Personal care may be offered either as the sole home and community-based service or in conjunction with adult day health care, respite care (agency-directed or consumer-directed), or PERS.

1. In order to qualify for this service, the waiver individual shall have met the NF LOC criteria as set out in 12VAC30-60-303 and 12VAC30-60-307 as documented on the UAI assessment instrument, and for whom it shall be an appropriate alternative to institutional care.

a. A waiver individual may receive both CD and agency-directed personal care services if the individual meets the criteria. Hours received by the waiver individual who is receiving both CD and agency-directed services shall not exceed the total number of hours that would be otherwise authorized had the individual chosen to receive personal care services through a single delivery model.

b. CD and agency-directed services shall not be simultaneously provided but may be provided sequentially or alternately from each other.

2. Limits on covered CD personal care services.

a. DMAS shall not duplicate services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973 (29 USC § 794).

b. There shall be a limit of eight hours per 24-hour day for supervision services included in the POC. Supervision services shall be authorized to ensure the health, safety, or welfare of the waiver individual who cannot be left alone at any time or is unable to call for help in case of an emergency, and when there is no one else in the home who is competent and able to call for help in case of an emergency.

c. Consumer-directed personal care services shall be limited to 56 hours of services per week for 52 weeks per year. Individual exceptions may be granted based on criteria established by DMAS.

d. Electronic visit verification requirements as set out in 12VAC30-60-65 shall apply to these CD personal care services.

3. CD personal care services at work or school shall be limited as follows:

a. DMAS shall reimburse for services delivered, consistent with the approved POC, for CD personal care that the attendant provides to the waiver individual to assist him while he is at work or postsecondary school or both.

b. DMAS or the designated Srv Auth contractor shall review the waiver individual's needs and the complexity of the disability, as applicable, when determining the services that will be provided to him in the workplace or postsecondary school or both.

c. DMAS shall not pay for the personal care attendant to assist the waiver individual with any functions or tasks related to the individual completing his job or postsecondary school functions or for supervision time during work or postsecondary school or both.

H. Consumer-directed respite care services. CD respite care services are unskilled care and shall be comprised of hands-on care of either a supportive or health-related nature and may include, but shall not be limited to, assistance with ADLs, access to the community, monitoring of self-administration of medications or other medical needs, supervision, monitoring health status and physical condition, and personal care services in a work environment.

1. In order to qualify for this service, the waiver individual shall have met the NF LOC criteria as set out in 12VAC30-60-303 and 12VAC30-60-307 as documented on the UAI assessment instrument, and for whom it shall be an appropriate alternative to institutional care.

2. CD respite care services shall only be offered to individuals who have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the waiver individual. This service shall be provided in the waiver individual's home or other community settings.

3. When the waiver individual requires assistance with ADLs, and where such assistance is specified in the individual's POC, such supportive services may also include assistance with IADLs.

4. Electronic visit verification requirements as set out in 12VAC30-60-65 shall apply to these CD respite care services.

5. Limits on covered CD respite care services.

a. The unit of service shall be one hour. Respite care services shall be limited to 480 hours per waiver individual per state fiscal year. If a waiver individual changes waiver programs, this same maximum number of respite hours shall apply. No additional respite hours beyond the 480 maximum limit shall be approved for payment. Individuals who are receiving respite services in this waiver through both the agency-directed and CD models shall not exceed 480 hours per state fiscal year combined.

b. CD respite care services shall not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to Part VIII (18VAC90-20-420 through 18VAC90-20-460) of 18VAC90-20 and as permitted by Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia).

c. If consumer-directed respite care service is the only service received by the waiver individual, it shall be received at least as often as every 30 days. If this service is not required at this minimal level of frequency, then the services facilitator shall refer the waiver individual to the local department of social services for its redetermination of eligibility for the waiver individual.

I. Personal emergency response system (PERS).

1. Service description. PERS is a service that monitors waiver individual safety in the home and provides access to emergency assistance for medical or environmental emergencies through the provision of a two-way voice communication system that dials a 24-hour response or monitoring center upon activation and via the individual's home telephone line or system. PERS may also include medication monitoring devices.

a. PERS may be authorized only when there is no one else in the home with the waiver individual who is competent or continuously available to call for help in an emergency or when the individual is in imminent danger.

b. The use of PERS equipment shall not relieve the backup caregiver of his responsibilities.

c. Service units and service limitations.

(1) PERS shall be limited to waiver individuals who are ages 14 years and older who also either live alone or are alone for significant parts of the day and who have no regular caregiver for extended periods of time. PERS shall only be provided in conjunction with receipt of personal care services (either agency-directed or consumer-directed), respite services (either agency-directed or consumer-directed), or adult day health care. A waiver individual shall not receive PERS if he has a cognitive impairment as defined in 12VAC30-120-900.

(2) A unit of service shall include administrative costs, time, labor, and supplies associated with the installation, maintenance, monitoring, and adjustments of the PERS. A unit of service shall be the one-month rental price set by DMAS in its fee schedule. The one-time installation of the unit shall include installation, account activation, individual and family/caregiver family or caregiver instruction, and subsequent removal of PERS equipment when it is no longer needed.

(3) PERS services shall be capable of being activated by a remote wireless device and shall be connected to the waiver individual's telephone line or system. The PERS console unit must provide hands-free voice-to-voice communication with the response center. The activating device must be (i) waterproof, (ii) able to automatically transmit to the response center an activator low battery alert signal prior to the battery losing power, (iii) able to be worn by the waiver individual, and (iv) automatically reset by the response center after each activation, thereby ensuring that subsequent signals can be transmitted without requiring manual resetting by the waiver individual.

(4) All PERS equipment shall be approved by the Federal Communications Commission and meet the Underwriters' Laboratories, Inc. (UL) safety standard.

(5) Medication monitoring units shall be physician ordered. In order to be approved to receive the medication monitoring service, a waiver individual shall also receive PERS services. Physician orders shall be maintained in the waiver individual's record. In cases where the medical monitoring unit must be filled by the provider, the person who is filling the unit shall be either an RN or an LPN. The units may be filled as frequently as a minimum of every 14 days. There must be documentation of this action in the waiver individual's record.

J. Transition coordination and transition services. Transition coordination and transition services, as defined at 12VAC30-120-2000 and 12VAC30-120-2010, provide for applicants to move from institutional placements or licensed or certified provider-operated living arrangements to private homes or other qualified settings. The applicant's transition from an institution to the community shall be coordinated by the facility's discharge planning team. The discharge planner shall coordinate with the transition coordinator to ensure that EDCD Waiver eligibility criteria shall be met.

1. Transition coordination and transition services shall be authorized by DMAS or its designated agent in order for reimbursement to occur.

2. For the purposes of transition services, an institution must meet the requirements as specified by CMS in the Money Follows the Person demonstration program at http://www.ssa.gov/OP_Home/comp2/F109-171.html#ft 262.

3. Transition coordination shall be authorized for a maximum of 12 consecutive months upon discharge from an institutional placement and shall be initiated within 30 days of discharge from the institution.

4. Transition coordination and transition services shall be provided in conjunction with personal care (agency-directed or consumer-directed), respite care (agency-directed or consumer-directed), or adult day health care services.

K. Assistive technology (AT).

1. Service description. Assistive technology (AT), as defined in 12VAC30-120-900, shall only be available to waiver individuals who are participating in the MFP program pursuant to Part XX (12VAC30-120-2000 et seq.).

2. In order to qualify for these services, the individual shall have a demonstrated need for equipment for remedial or direct medical benefit primarily in an individual's primary home, primary vehicle used by the individual, community activity setting, or day program to specifically serve to improve the individual's personal functioning. This shall encompass those items not otherwise covered under the State Plan for Medical Assistance. AT shall be covered in the least expensive, most cost-effective manner.

3. Service units and service limitations.

a. All requests for AT shall be made by the transition coordinator to DMAS or the Srv Auth contractor.

b. The maximum funded expenditure per individual for all AT covered procedure codes (combined total of AT items and labor related to these items) shall be $5,000 per year for individuals regardless of waiver, or regardless of whether the individual changes waiver programs, for which AT is approved. The service unit shall always be one, for the total cost of all AT being requested for a specific timeframe.

c. AT may be provided in the individual's home or community setting.

d. AT shall not be approved for purposes of convenience of the caregiver/provider caregiver or provider or restraint of the individual.

e. An independent, professional consultation shall be obtained from a qualified professional who is knowledgeable of that item for each AT request prior to approval by the Srv Auth contractor and may include training on such AT by the qualified professional. The consultation shall not be performed by the provider of AT to the individual.

f. All AT shall be prior authorized by the Srv Auth contractor prior to billing.

g. Excluded shall be items that are reasonable accommodation requirements, for example, of the Americans with Disabilities Act, the Virginians with Disabilities Act (§ 51.5-1 et seq. of the Code of Virginia), or the Rehabilitation Act (20 USC § 794) or that are required to be provided through other funding sources.

h. AT services or equipment shall not be rented but shall be purchased.

L. Environmental modifications (EM).

1. Service description. Environmental modifications (EM), as defined herein, shall only be available to waiver individuals who are participating in the MFP program pursuant to Part XX (12VAC30-120-2000 et seq.). Adaptations shall be documented in the waiver individual's POC and may include, but shall not necessarily be limited to, the installation of ramps and grab-bars, widening of doorways, modification of bathroom facilities, or installation of specialized electrical and plumbing systems that are necessary to accommodate the medical equipment and supplies that are necessary for the welfare of the waiver individual. Excluded are those adaptations or improvements to the home that are of general utility and are not of direct medical or remedial benefit to the individual, such as carpeting, flooring, roof repairs, central air conditioning, or decks. Adaptations that add to the total square footage of the home shall be excluded from this benefit, except when necessary to complete an authorized adaptation, as determined by DMAS or its designated agent. All services shall be provided in the individual's primary home in accordance with applicable state or local building codes. All modifications must be prior authorized by the Srv Auth contractor. Modifications may only be made to a vehicle if it is the primary vehicle being used by the waiver individual. This service does not include the purchase or lease of vehicles.

2. In order to qualify for these services, the waiver individual shall have a demonstrated need for modifications of a remedial or medical benefit offered in his primary home or primary vehicle used by the waiver individual to ensure his health, welfare, or safety or specifically to improve the individual's personal functioning. This service shall encompass those items not otherwise covered in the State Plan for Medical Assistance or through another program. EM shall be covered in the least expensive, most cost-effective manner.

3. Service units and service limitations.

a. All requests for EM shall be made by the MFP transition coordinator to DMAS or the Srv Auth contractor.

b. The maximum funded expenditure per individual for all EM covered procedure codes (combined total of EM items and labor related to these items) shall be $5,000 per year for individuals regardless of waiver, or regardless of whether the individual changes waiver programs, for which EM is approved. The service unit shall always be one, for the total cost of all EM being requested for a specific timeframe.

c. All EM shall be authorized by the Srv Auth contractor prior to billing.

d. Modifications shall not be used to bring a substandard dwelling up to minimum habitation standards. Also excluded shall be modifications that are reasonable accommodation requirements of the Americans with Disabilities Act, the Virginians with Disabilities Act (§ 51.5-1 et seq. of the Code of Virginia), and the Rehabilitation Act (20 USC§ § 794).

e. Transition coordinators shall, upon completion of each modification, meet face-to-face with the waiver individual and his family/caregiver family or caregiver, as appropriate, to ensure that the modification is completed satisfactorily and is able to be used by the individual.

f. EM shall not be approved for purposes of convenience of the caregiver/provider caregiver or provider or restraint of the waiver individual.

12VAC30-120-930. General requirements for home and community-based participating providers.

A. Requests for participation shall be screened by DMAS or the designated DMAS contractor to determine whether the provider applicant meets the requirements for participation, as set out in the provider agreement, and demonstrates the abilities to perform, at a minimum, the following activities:

1. Screen all new and existing employees and contractors to determine whether any are excluded from eligibility for payment from federal health care programs, including Medicaid (i.e., via the United States Department of Health and Human Services Office of Inspector General List of Excluded Individuals or Entities (LEIE) website). Immediately report in writing to DMAS any exclusion information discovered to: DMAS, ATTN: Program Integrity/Exclusions, 600 East Broad Street, Suite 1300, Richmond, VA 23219, or email to providerexclusions@dmas.virginia.gov;

2. Immediately notify DMAS in writing of any change in the information that the provider previously submitted to DMAS;

3. Except for waiver individuals who are subject to the DMAS Client Medical Management program Part VIII (12VAC30-130-800 et seq.) of 12VAC30-130 or are enrolled in a Medicaid managed care program, ensure freedom of choice to individuals in seeking services from any institution, pharmacy, practitioner, or other provider qualified to perform the service or services required and participating in the Medicaid Program at the time the service or services are performed;

4. Ensure the individual's freedom to refuse medical care, treatment, and services;

5. Accept referrals for services only when staff is available to initiate and perform such services on an ongoing basis;

6. Provide services and supplies to individuals in full compliance with Title VI (42 USC § 2000d et seq.) of the Civil Rights Act of 1964 which prohibits discrimination on the grounds of race, color, religion, or national origin; the Virginians with Disabilities Act (§ 51.5-1 et seq. of the Code of Virginia); § 504 of the Rehabilitation Act of 1973 (29 USC § 794), which prohibits discrimination on the basis of a disability; and the Americans with Disabilities Act of 1990 (42 USC § 12101 et seq.), which provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications;

7. Provide services and supplies to individuals of the same quality and in the same mode of delivery as are provided to the general public;

8. Submit charges to DMAS for the provision of services and supplies to individuals in amounts not to exceed the provider's usual and customary charges to the general public and accept as payment in full the amount established by DMAS payment methodology beginning with the individual's authorization date for the waiver services;

9. Use only DMAS-designated forms for service documentation. The provider shall not alter the DMAS forms in any manner without prior written approval from DMAS;

10. Use DMAS-designated billing forms for submission of charges;

11. Perform no type of direct marketing activities to Medicaid individuals;

12. Maintain and retain business and professional records sufficient to document fully and accurately the nature, scope, and details of the services provided.

a. In general, such records shall be retained for a period of at least six years from the last date of service or as provided by applicable federal and state laws, whichever period is longer. However, if an audit is initiated within the required retention period, the records shall be retained until the audit is completed and every exception resolved. Records of minors shall be kept for a period of at least six years after such minor has reached 18 years of age.

b. Policies regarding retention of records shall apply even if the provider discontinues operation. DMAS shall be notified in writing of the storage location and procedures for obtaining records for review should the need arise. The location, agent, or trustee shall be within the Commonwealth;

13. Furnish information on the request of and in the form requested to DMAS, the Attorney General of Virginia or their authorized representatives, federal personnel, and the state Medicaid Fraud Control Unit. The Commonwealth's right of access to provider agencies and records shall survive any termination of the provider agreement;

14. Disclose, as requested by DMAS, all financial, beneficial, ownership, equity, surety, or other interests in any and all firms, corporations, partnerships, associations, business enterprises, joint ventures, agencies, institutions, or other legal entities providing any form of health care services to recipients of Medicaid;

15. Pursuant to 42 CFR 431.300 et seq., § 32.1-325.3 of the Code of Virginia, and the Health Insurance Portability and Accountability Act (HIPAA), safeguard and hold confidential all information associated with an applicant or enrollee or individual that could disclose the applicant's/enrollee's/individual's applicant's, enrollee's, or individiual's identity. Access to information concerning the applicant/enrollee/individual applicant, enrollee, or individual shall be restricted to persons or agency representatives who are subject to the standards of confidentiality that are consistent with that of the agency and any such access must be in accordance with the provisions found in 12VAC30-20-90;

16. When ownership of the provider changes, notify DMAS in writing at least 15 calendar days before the date of change;

17. Pursuant to §§ 63.2-100, 63.2-1509, and 63.2-1606 of the Code of Virginia, if a participating provider or the provider's staff knows or suspects that a home and community-based waiver services individual is being abused, neglected, or exploited, the party having knowledge or suspicion of the abuse, neglect, or exploitation shall report this immediately from first knowledge or suspicion of such knowledge to the local department of social services adult or child protective services worker as applicable or to the toll-free, 24-hour hotline as described on the local department of social services' website. Employers shall ensure and document that their staff is aware of this requirement;

18. In addition to compliance with the general conditions and requirements, adhere to the conditions of participation outlined in the individual provider's participation agreements, in the applicable DMAS provider manual, and in other DMAS laws, regulations, and policies. DMAS shall conduct ongoing monitoring of compliance with provider participation standards and DMAS policies. A provider's noncompliance with DMAS policies and procedures may result in a retraction of Medicaid payment or termination of the provider agreement, or both;

19. Meet minimum qualifications of staff.

a. For reasons of Medicaid individuals' safety and welfare, all employees shall have a satisfactory work record, as evidenced by at least two references from prior job experience, including no evidence of abuse, neglect, or exploitation of incapacitated or older adults or children. In instances of employees who have worked for only one employer, such employees shall be permitted to provide one appropriate employment reference and one appropriate personal reference including no evidence of abuse, neglect, or exploitation of incapacitated or older adults or children.

b. Criminal record checks for both employees and volunteers conducted by the Virginia State Police. Proof that these checks were performed with satisfactory results shall be available for review by DMAS staff or its designated agent who are authorized by the agency to review these files. DMAS shall not reimburse the provider for any services provided by an employee or volunteer who has been convicted of committing a barrier crime as defined in § 32.1-162.9:1 of the Code of Virginia. Providers shall be responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. Provider staff shall not be reimbursed for services provided to the waiver individual effective on the date and thereafter that the criminal record check confirms the provider's staff person or volunteer was convicted of a barrier crime.

c. Provider staff and volunteers who serve waiver individuals who are minor children shall also be screened through the VDSS Child Protective Services (CPS) Central Registry. Provider staff and volunteers shall not be reimbursed for services provided to the waiver individual effective on the date and thereafter that the VDSS CPS Central Registry check confirms the provider's staff person or volunteer has a finding.

20. Comply with the electronic visit verification requirements set out in 12VAC30-60-65.

B. DMAS shall terminate the provider's Medicaid provider agreement pursuant to § 32.1-325 of the Code of Virginia and as may be required for federal financial participation. A provider who has been convicted of a felony, or who has otherwise pled guilty to a felony, in Virginia or in any other of the 50 states, the District of Columbia, or the U.S. territories shall within 30 days of such conviction notify DMAS of this conviction and relinquish its provider agreement. Such provider agreement terminations, subject to applicable appeal rights, shall conform to § 32.1-325 D and E of the Code of Virginia and Part XII (12VAC30-20-500 et seq.) of 12VAC30-20.

C. For DMAS to approve provider agreements with home and community-based waiver providers, the following standards shall be met:

1. Staffing, financial solvency, disclosure of ownership, and ensuring comparability of services requirements as specified in the applicable provider manual;

2. The ability to document and maintain waiver individuals' case records in accordance with state and federal requirements;

3. Compliance with all applicable laws, regulations, and policies pertaining to EDCD Waiver services.

D. The waiver individual shall have the option of selecting the provider of his choice from among those providers who are approved and who can appropriately meet his needs.

E. A participating provider may voluntarily terminate his participation in Medicaid by providing 30 days' written notification to DMAS.

F. DMAS may terminate at will a provider's participation agreement on 30 days' written notice as specified in the DMAS participation agreement. DMAS may immediately terminate a provider's participation agreement if the provider is no longer eligible to participate in the Medicaid program. Such action precludes further payment by DMAS for services provided to individuals on or after the date specified in the termination notice.

G. The provider shall be responsible for completing the DMAS-225 form. The provider shall notify the designated Srv Auth contractor, as appropriate, and the local department of social services, in writing, when any of the following events occur. Furthermore, it shall be the responsibility of the designated Srv Auth contractor to also update DMAS, as requested, when any of the following events occur:

1. Home and community-based waiver services are implemented;

2. A waiver individual dies;

3. A waiver individual is discharged from the provider's EDCD Waiver services;

4. Any other events (including hospitalization) that cause home and community-based waiver services to cease or be interrupted for more than 30 consecutive calendar days; or

5. The initial selection by the waiver individual or family/caregiver family or caregiver of a provider to provide services, or a change by the waiver individual or family/caregiver family or caregiver of a provider, if it affects the individual's patient pay amount.

H. Changes or termination of services.

1. The provider may decrease the amount of authorized care if the revised POC is appropriate and based on the medical needs of the waiver individual. The participating provider shall collaborate with the waiver individual or the family/caregiver/EOR family, caregiver, or EOR, or both as appropriate, to develop the new POC and calculate the new hours of service delivery. The provider shall discuss the decrease in care with the waiver individual or family/caregiver/EOR family, caregiver, or EOR, document the conversation in the waiver individual's record, and notify the designated Srv Auth contractor. The Srv Auth contractor shall process the decrease request and the waiver individual shall be notified of the change by letter. This letter shall clearly state the waiver individual's right to appeal this change.

2. If a change in the waiver individual's condition necessitates an increase in care, the participating provider shall assess the need for the increase and, collaborate with the waiver individual and family/caregiver/EOR family, caregiver, or EOR, as appropriate, to develop a POC for services to meet the changed needs. The provider may implement the increase in personal/respite personal care or respite care hours without approval from DMAS, or the designated Srv Auth contractor, if the amount of services does not exceed the total amount established by DMAS as the maximum for the level of care designated for that individual on the plan of care.

3. Any increase to a waiver individual's POC that exceeds the number of hours allowed for that individual's level of care or any change in the waiver individual's level of care shall be authorized by DMAS or the designated Srv Auth contractor prior to the increase and be accompanied by adequate documentation justifying the increase.

4. In an emergency situation when either the health, safety, or welfare of the waiver individual or provider personnel is endangered, or both, DMAS, or the designated Srv Auth contractor, shall be notified prior to discontinuing services. The written notification period set out below shall not be required. If appropriate, local department of social services adult or child protective services, as may be appropriate, shall be notified immediately. Appeal rights shall be afforded to the waiver individual.

5. In a nonemergency situation, when neither the health, safety, nor welfare of the waiver individual or provider personnel is endangered, the participating provider shall give the waiver individual at least 10 calendar days' written notification (plus three days for mail transit for a total of 13 calendar days from the letter's date) of the intent to discontinue services. The notification letter shall provide the reasons for and the effective date the provider will be discontinuing services. Appeal rights shall be afforded to the waiver individual.

I. Staff education and training requirements.

1. RNs shall (i) be currently licensed to practice in the Commonwealth as an RN, or shall hold multi-state licensure privilege pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia; (ii) have at least one year of related clinical nursing experience, which may include work in an acute care hospital, public health clinic, home health agency, rehabilitation hospital, or NF, or as an LPN who worked for at least one year in one of these settings; and (iii) submit to a criminal records check and consent to a search of the VDSS Child Protective Services Central Registry if the waiver individual is a minor child. The RN shall not be compensated for services provided to the waiver individual if this record check verifies that the RN has been convicted of a barrier crime described in § 32.1-162.9:1 of the Code of Virginia or if the RN has a founded complaint confirmed by the VDSS Child Protective Services Central Registry.

2. LPNs shall work under supervision as set out in 18VAC90-20-37. LPNs shall (i) be currently licensed to practice in the Commonwealth as an LPN, or shall hold multi-state licensure privilege pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia; (ii) shall have at least one year of related clinical nursing experience, which may include work in an acute care hospital, public health clinic, home health agency, rehabilitation hospital, or NF. The LPN shall meet the qualifications and skills, prior to being assigned to care for the waiver individual, that are required by the individual's POC; and (iii) submit to a criminal records check and consent to a search of the VDSS Child Protective Services Central Registry if the waiver individual is a minor child. The LPN shall not be compensated for services provided to the waiver individual if this record check verifies that the LPN has been convicted of a barrier crime described in § 32.1-162.9:1 of the Code of Virginia or if the LPN has a founded complaint confirmed by the VDSS Child Protective Services Central Registry.

3. Personal care aides who are employed by personal care agencies that are licensed by VDH shall meet the requirements of 12VAC5-381. In addition, personal care aides shall also receive annually a minimum of 12 documented hours of agency-provided training in the performance of these services.

4. Personal care aides who are employed by personal care agencies that are not licensed by the VDH shall have completed an educational curriculum of at least 40 hours of study related to the needs of individuals who are either elderly or who have disabilities, as ensured by the provider prior to being assigned to the care of an individual, and shall have the required skills and training to perform the services as specified in the waiver individual's POC and related supporting documentation.

a. Personal care aides' required initial (that is, at the onset of employment) training, as further detailed in the applicable provider manual, shall be met in one of the following ways: (i) registration with the Board of Nursing as a certified nurse aide; (ii) graduation from an approved educational curriculum as listed by the Board of Nursing; or (iii) completion of the provider's educational curriculum, which must be a minimum of 40 hours in duration, as taught by an RN who meets the same requirements as the RN listed in subdivision 1 of this subsection.

b. In addition, personal care aides shall also be required to receive annually a minimum of 12 documented hours of agency-provided training in the performance of these services.

5. Personal care aides shall:

a. Be at least 18 years of age or older;

b. Be able to read and write English to the degree necessary to perform the expected tasks and create and maintain the required documentation;

c. Be physically able to perform the required tasks and have the required skills to perform services as specified in the waiver individual's supporting documentation;

d. Have a valid social security number that has been issued to the personal care aide by the Social Security Administration;

e. Submit to a criminal records check and, if the waiver individual is a minor, consent to a search of the VDSS Child Protective Services Central Registry. The aide shall not be compensated for services provided to the waiver individual effective the date in which the record check verifies that the aide has been convicted of barrier crimes described in § 32.1-162.9:1 of the Code of Virginia or if the aide has a founded complaint confirmed by the VDSS Child Protective Services Central Registry;

f. Understand and agree to comply with the DMAS EDCD Waiver requirements; and

g. Receive tuberculosis (TB) screening as specified in the criteria used by the VDH.

6. Consumer-directed personal care attendants shall:

a. Be 18 years of age or older;

b. Be able to read and write in English to the degree necessary to perform the tasks expected and create and maintain the required documentation;

c. Be physically able to perform the required tasks and have the required skills to perform consumer-directed services as specified in the waiver individual's supporting documentation;

d. Have a valid social security number that has been issued to the personal care attendant by the Social Security Administration;

e. Submit to a criminal records check and, if the waiver individual is a minor, consent to a search of the VDSS Child Protective Services Central Registry. The attendant shall not be compensated for services provided to the waiver individual effective the date in which the record check verifies that the attendant has been convicted of barrier crimes described in § 32.1-162.9:1 of the Code of Virginia or if the attendant has a founded complaint confirmed by the VDSS Child Protective Services Central Registry;

f. Understand and agree to comply with the DMAS EDCD Waiver requirements;

g. Receive tuberculosis (TB) screening as specified in the criteria used by the VDH; and

h. Be willing to attend training at the individual's or family/caregiver's family or caregiver's request.

12VAC30-122-125. Electronic visit verification.

A. Except as specified in subsection B of this section, the requirements of 12VAC30-60-65 shall apply for personal care services, respite care services, and companion services.

B. EVV requirements shall not apply to respite care services provided by a DBHDS-licensed provider in a DBHDS-licensed program site, such as a group home or sponsored residential home or a supervised living, supported living, or similar facility or location licensed to provide respite care services as permitted by the Centers for Medicare and Medicaid Services.

VA.R. Doc. No. R19-5467; Filed December 18, 2019, 10:31 a.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Proposed Regulation

Titles of Regulations: 12VAC30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (amending 12VAC30-50-130).

12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (adding 12VAC30-60-65).

12VAC30-120. Waivered Services (amending 12VAC30-120-766, 12VAC30-120-924, 12VAC30-120-930).

12VAC30-122. Community Waiver Services for Individuals with Developmental Disabilities (adding 12VAC30-122-125).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 21, 2020.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 12006 of the 21st Century Cures Act (Public Law 114-255) mandates the adoption of electronic visit verification (EVV) technology applicable to personal care services (effective January 1, 2019) and home health care services (effective January 1, 2023) as provided by Medicaid without regard to whether the services are covered via a waiver or the State Plan for Medical Assistance. Section 1 of Public Law 115-222 delayed the onset of fiscal penalties and the adoption of EVV technologies for one year past the original statute (i.e., until January 1, 2020).

The Department of Medical Assistance Services (DMAS) covers personal care, respite care, and companion services under the authority of Social Security Act § 1915(b) and (c) managed care and home and community based care waivers. Due to the highly similar nature of waiver companion services and waiver respite services to personal care services, DMAS is also requiring the use of EVV for these services under the authority of Item 303 LLL of Chapter 2 of the 2018 Acts of Assembly, Special Session I. Personal care, respite care, and companion services are designed to provide services in support of activities of daily living (e.g., bathing, dressing, toileting, transferring, and feeding) in slightly different circumstances. The Commonwealth also covers instrumental activities of daily living (e.g., meal preparation, money management, shopping, and community activities) under personal care, respite care, and companion services for those individuals who require this type of assistance.

Home health care services are federally mandated services for Title XIX programs under the authority of § 1905(a)(7) of the Social Security Act. This service provides skilled nursing services, aide services, and medical supplies and equipment for individuals in their residences, without requiring that they be homebound, upon the order of the physicians for such individuals. The application of EVV to home health services takes effect January 1, 2023, and is not reflected in this regulatory action.

Purpose: The purpose of this action is to implement the mandates of § 1903(l) of the Social Security Act regarding EVV as applicable to personal care services across all the waivers and State Plan covered services. Absent the Commonwealth's adoption of this requirement, § 1903(l) also mandates the reduction of federal matching funds for expenditures for personal care services ($869 million). Reductions in Medicaid federal funds, in the absence of EVV, would be expected to exceed several millions of dollars thereby substantially affecting the health, safety, and welfare of Medicaid individuals by service reductions and loss.

Action by the General Assembly in Item 303 LLL of Chapter 2 of the 2018 Acts of Assembly, Special Session I, applies this EVV requirement also to companion services and respite. The action that will apply EVV requirements to home health services is to be addressed in the near future in a separate regulatory action because of the January 1, 2023, effective date set out in federal law.

Substance: The sections of the State Plan for Medical Assistance affected by this action are (i) Standards Established and Methods Used to Assure High Quality of Care (12VAC30-60) and Amount, Duration, and Scope of Medical and Remedial Care Services (12VAC30-50). The state-only regulations affected by this action are the Commonwealth Coordinated Care Plus and Commonwealth Coordinated Care Plus Programs in Waivered Services (12VAC30-120) and Community Waiver Services for Individuals with Developmental Disabilities (12VAC30-122).

Currently, there are no such requirements in either the State Plan for Medical Assistance or any related waiver programs because electronic visit verification has not applied to Title XIX prior to the passage of the Cures Act.

The 21st Century Cures Act (Cures Act) was designed to improve the quality of services and supports provided to individuals through research, enhancing quality control, and strengthening mental health parity. This regulatory action addresses enhancing quality control of services provided to individuals.

One of the federal purposes of electronic visit verification is the reduction of potential fraud, waste, and abuse through validating that billed services to make sure they comport with an individual's plan of care using EVV data. Such validation ensures appropriate payment based on actual service delivery. These systems will enable greater opportunities for enhanced care coordination, data sharing, and improved payment accuracy with the concomitant reduction of billing errors. The Department of Health and Human Services Office of the Inspector General has recognized EVV as a positive step toward safeguarding individuals.

Another federal purpose is the improvement of program efficiencies by reducing the need for paper documentation to verify services, speeding up provider electronic billing, and supporting individuals using self-direction services by permitting greater flexibility for appointments and services.

Analysis conducted by the Centers for Medicare and Medicaid Services (CMS) determined that the following system models exist:

• Provider choice model: major providers currently use different EVV systems that are Cures Act compliant.

• Managed care organization choice model: managed care organizations currently use different EVV systems that are Cures Act compliant.

• State mandated in-house model and state mandated external vendor model: providers not widely using EVV, or the EVV systems in use do not meet the state's needs, so the state intends to develop its own EVV system.

• Open vendor model: smaller providers are not widely using EVV but may have one or more larger providers using Cures Act compliant EVV system.

The Cures Act design of EVV requirements allows the states to select their design and implement quality control measures of their choosing. The states are required to consult with other affected entities, including (i) other state agencies providing personal care or home health care services and (ii) other stakeholders, such as family caregivers, individuals receiving and furnishing personal care and home health services, and providers of these services. EVV systems must be minimally burdensome and compliant with Health Insurance Portability and Accountability Act (HIPAA) privacy mandates. EVV systems are not intended to limit the services provided or provider selection, constrain individual caregiver choices, or impede the way care is rendered. EVV systems should accommodate personal care and home health care service delivery locations with limited or no internet access. EVV systems should allow individuals to schedule their services directly with their providers, allowing for last-minute changes based on individual needs. EVV systems should accommodate services at multiple approved locations, not just the individual's home, and allow for multiple service delivery locations in a single visit.

DMAS conducted a comprehensive review of the CMS alternatives permitted to meet the federal requirements and concluded that the open vendor model afforded the most provider flexibility for Virginia. The open vendor model allows providers that currently use EVV systems to maintain a working relationship with their claims processing vendors as well as permitting all providers to select a system that meets their business needs while being cost effective. In October 2017, DMAS issued a request for information (RFI) to learn more about EVV systems available in the marketplace. Several EVV vendors responded, providing information on their system capabilities. This was useful in identifying some of the system requirements included in this action.

DMAS recommends adoption of the open vendor model because it will enable providers, either large or small, to select the EVV system that best suits their business models and operational practices. Affected providers are expected to opt for EVV systems that will smoothly and efficiently link with the electronic billing systems they currently use in order to facilitate a quick, effective electronic billing process. DMAS is currently designing a computerized aggregator system to accept incoming data from multiple EVV systems and compile it into service utilization data in support of claims adjudication and payments processing. The DMAS EVV system regulatory requirements comport with § 12006(a)(5) of the Cures Act and do not exceed the minimum requirements contained in federal law. Implementing this system now for personal care services, respite care services, and companion services, as required by federal law, will facilitate the implementation of EVV applicable to home health services by 2023.

Issues: Providers are expected to experience faster claims processing with fewer denied claims and reduced numbers of post-payment review audit recoveries. The primary advantage to the agency and the Commonwealth is avoiding the reduction of federal matching funds for failure to comply. The advantage to Medicaid individuals is that the personal care services, respite care services, and companion care services that they receive will comport with their identified needs in their plans of care with few, if any, disruptions.

There are no disadvantages to the agency or the Commonwealth in this action. There are no advantages or disadvantages of this action to individual private citizens.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medical Assistance Services (Board) proposes to amend 12VAC30-60 Standards Established and Methods Used to Assure High Quality Care in order to implement electronic visit verification (EVV) for personal care services, companion services, and respite services that are provided to qualifying Medicaid beneficiaries. EVV is a telephone and computer-based system by which providers of these services create an electronic record of their arrival and departure times, location, and the services provided at each visit. The electronic record is transmitted to the provider organizations, who are required to submit the electronic records as part of the claim-filing process and then retain the records for a minimum of six years. EVV data can potentially be used to ascertain that every visit billed to Medicaid actually occurred and also validate that each visit conformed to the recipient's Plan of Care. The Board seeks to add a new section (65), which contains the specific requirements for the implementation of EVV, to 12VAC30-60. The bulk of the analysis presented here focuses on the proposed regulations put forth in this section.

In addition, the Board proposes multiple identical amendments to 12VAC30-50 Amount, Duration, and Scope of Medical and Remedial Care Services, 12VAC30-120 Waivered Services, and 12VAC30-122 Community Waiver Services for Individuals with Developmental Disabilities, each one being directed at a specific category of service providers. Each amendment instructs the relevant service providers to implement EVV and directs them to 12VAC30-60-65 for additional detail on the requirements. Specifically, these amendments apply to the following services:

• personal care for children receiving early preventative screening, diagnosis, and treatment (12VAC30-50-130);

• consumer-directed or agency-directed personal care or respite care specifically for activities of daily living (12VAC30-120-766);

• personal care or respite care for individuals under the Elderly or Disabled with Consumer-Direction Waiver, agency or consumer-directed companion services in the workplace or postsecondary school, and agency or consumer-directed respite services (12VAC30-120-924); and

• services for individuals with developmental disabilities receiving community waiver services (12VAC30-122-125).

Lastly, the Board seeks to include the amendment requiring EVV in 12VAC30-120-930, which provides general requirements for home and community-based providers, to clarify that all types of personal care providers are covered by the EVV requirements, without exception.

Background. The proposed action conforms the requirements of the Medicaid program with the federal 21st Century Cures Act as applicable to Title XIX concerning electronic visit verification. The 21st Century Cures Act was signed into law in December 2016 and added § 1903(1) to the Social Security Act (SSA). The Cures Act includes fiscal penalties for states that failed to implement the EVV requirement for personal care services by January 1, 2019. The 2018 Appropriation Act (2018 Special Session 1, Acts of Assembly Chapter 2, Item 303, LLL) gave the Department of Medical Assistance Services (DMAS) the authority to implement the EVV requirement prior to the completion of any regulatory process.

In July 2018, Congress enacted H.R. 6042 to delay the onset of the penalties until January 1, 2020; subsequently in January 2019, the Budget Bill was amended (2019 Acts of Assembly Chapter 854) to allow DMAS until October 1, 2019, to implement EVV for personal care services. DMAS expects to meet this deadline and has been working with various stakeholders, including service providers and vendors, to ensure that they implement EVV well in advance of the federal deadline, so as to not risk facing any fiscal penalties.

Estimated Benefits and Costs. Failure to comply with the requirements of the Cures Act would have resulted in a small reduction in the Federal Medical Assistance Percentage (FMAP) rate for personal care expenditures in the first year and larger reductions in subsequent years. Given DMAS expended a total of $868 million in 2017 for personal care services (both agency-directed and consumer-directed) even a small decrease in the FMAP would have cost several million dollars. By implementing EVV before the deadline, in compliance with all the requirements of the federal Centers for Medicare and Medicaid Services, DMAS benefits from avoiding any such penalty. Avoiding the penalty is possibly the most readily quantifiable benefit of implementing this regulation.

Other benefits may accrue to providers, beneficiaries, and DMAS. Provider organizations may use EVV to manage and monitor the delivery of care and services, reduce paper-based recordkeeping, and streamline their own documentation process for submitting insurance claims, which could also lead to faster claim payments as payers use the EVV data to more efficiently detect fraud or waste. Medicaid beneficiaries who utilize personal care services and may have been harmed, either directly or indirectly, by improper payments (fraud or abuse) in personal care provision are now benefited by the increased transparency and accountability provided by EVV. To the extent that improper payments in personal care provision increased DMAS expenditures, the implementation of EVV could reduce those losses.

However, greater transparency and fraud reduction also incurs certain costs. Providers have to contract with vendors to adopt appropriate EVV tools that support their operations. In areas with limited wireless internet connectivity, this could mean using landline telephones or installing devices at the consumer's home that can be used by the care providers. In areas where wireless connectivity is stronger, EVV vendors may provide mobile applications deployed on the provider's smartphone or on a tablet or similar device given to the provider. These mobile applications may combine web-based timesheets with GPS-based location services to collect and transmit very precise data. Depending on the size of the provider organization and the locations in which they operate, these costs could vary widely but would include both the one-time cost of deploying the technology and training users and any recurring costs such as technology refresh, network or connectivity charges, and charges for using a data clearinghouse to submit claims and receive remittances from the insurance companies.

Some small providers responded to queries by DPB staff saying that although EVV was not required for their customers with other insurance, they chose to implement it for all their clients so that each caregiver could use the same process for scheduling and entering visit data with all the individuals who they directly serve. These providers reported lower costs (less than $10 per member per month) and were located in areas with widespread wireless internet coverage and high rates of smartphone adoption. However, providers in areas without widespread internet coverage reported higher up-front costs of training staff in using multiple EVV tools (using landlines and Wi-Fi) as well as higher ongoing costs (approximately $20 per member per month) and said they could not afford to implement EVV for their non-Medicaid clients. None of the small providers who responded had adopted EVV as a business practice prior to the passage of the Cures Act. Furthermore, those who implemented it in time for the initial January 1, 2019, deadline expressed some frustration about the vendor fees that could have been avoided had they known that the deadline would be postponed to October 1, 2019.

In an effort to minimize costs to providers, DMAS convened an EVV Regulation Development Workgroup (Workgroup) and also issued a Request for Information (RFI) from service providers and EVV vendors seeking information on their capacity to implement EVV in the least disruptive manner. Based on the information received, DMAS chose to adopt an "open" model, in which they could parlay the requirements of the Cures Act to providers as a broad range of technical specifications, rather than a "closed" model in which providers would have to implement a specific system chosen by DMAS. Hence, providers were given the freedom to work with vendors of their choice, including vendors they were already using for scheduling or payroll.

Based on minutes from the Workgroup's deliberations, it appears that the fiscal/employers' agents (F/EA) for consumer-directed services have been able to transition their existing timesheets and payroll systems to one that meets EVV requirements. Given that DMAS contracted with an F/EA that for individuals covered by Medicaid fee-for-service receiving consumer-directed personal assistance, this might have set a precedent for other F/EAs acting on behalf of managed care organizations (MCOs). Finally, providers are incentivized to implement EVV simply because it is a required component of filing claims and receiving payments from DMAS. Providers who have been slow to implement EVV will not be paid until and unless they do so.

In the medium run to long run, regulatory requirements such as EVV could have consequences that may not be apparent in the short run. These requirements impose the greatest burden for the smallest provider groups who may have very minimal capacity for moving beyond the most basic payroll systems. Over time, regulatory requirements that involve significant technology upgrades can encourage market concentration in the industry because small providers eventually find it more cost effective to merge into larger organizations that can afford to have an in-house software development team or can contract with external vendors more competitively.

This process may be underway, as evidenced by the presence of groups such as the Partnership for Medicaid Home-Based Care, a consortium representing the largest home and personal care service providers, MCOs, and EVV vendors. The participating organizations are all corporations, some publicly-traded, that operate across multiple states. These groups, or their member organizations, are well-situated to participate in RFIs, such as the one conducted by DMAS, and submit compelling arguments in favor of the "open" model that promotes flexibility and efficiency for the providers.

Regulations targeting providers that require technology upgrades also create incentives for Managed Care Organizations (MCOs) to offer technology solutions to the providers in their network and absorb the up-front costs of developing and deploying the technology. Otherwise, they might face providers who want to be reimbursed for the additional costs accrued from complying with such regulations. This in turn will likely prompt MCOs to negotiate higher capitation rates or special payments that cover the cost of regulatory compliance. It would be impossible to isolate the effect of just the EVV requirement on any marginal increase to capitation rates in the future or determine whether any rate increases are offset by decreases in improper payments, but it offers an illustration of the process by which one technological upgrade, in this case through regulatory action, could lead to increases in health care costs.

Businesses and Other Entities Affected. The proposed amendments affect numerous organizations providing personal care or assistance as well as the individuals receiving these services and possibly their families. In state fiscal year 2017, DMAS estimates that about 68,000 people who used these services would be affected per year. This includes roughly 34,000 individuals in managed care who were eligible for personal care, respite care, and companion care services. (According to DMAS, managed care information is reported as encounter data, without user counts.) In the fee-for-service system, roughly 27,780 individuals used personal care services.

Based on the fee-for-service claims, DMAS estimates that about 600 provider organizations of agency-directed personal care would be affected. DMAS estimates that 90% of these are likely to be small businesses. Other private entities affected include Adult Rehabilitation Centers, Area Agencies on Aging, disability support organizations, and organizations with religious affiliations that provide support services, to the extent that the population they serve receives Medicaid coverage. The proposed amendments would also affect vendors that develop and provide software services.

Localities2 Affected.3 The proposed amendments do not immediately introduce new costs for local governments. However, these requirements would affect Community Services Boards and Area Agencies on Aging, which are administered by local governments in conjunction with the Department of Behavioral Health and Developmental Services and the Department for Aging and Rehabilitative Services respectively, to the extent that the population they serve receives Medicaid coverage. Localities with greater proportions of Medicaid recipients who utilize personal care services would be disproportionately affected by the proposed regulations.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment. In the short run, more jobs may have been created by the demand for new software solutions to meet the EVV requirements. This regulation is unlikely to affect the ongoing shortage of home health care and personal care workers.

Effects on the Use and Value of Private Property. The value of managed care organizations and information technology vendors that provide EVV solutions may increase. Real estate development costs are not affected.

Adverse Effect on Small Businesses:4

Types and Estimated Number of Small Businesses Affected. Based on the fee-for-service claims, DMAS estimates that about 600 provider organizations of agency-directed personal care will be affected. DMAS estimates that 90% of these are likely to be small businesses.

Costs and Other Effects. The EVV requirements impose the greatest burden for the smallest provider groups who may have very minimal capacity for engaging with more sophisticated software requirements moving beyond the most basic payroll systems. Over time, regulatory requirements that involve significant technology upgrades can encourage market concentration in the industry because small providers eventually find it more cost effective to merge into larger organizations that can afford to have an in-house software development team or can contract with external vendors more competitively.

Alternative Method that Minimizes Adverse Impact. Given the potential for millions of dollars in reduced federal funding for failing to require EVV, there are no clear alternative methods that would meet the requirements of the Cures Act. In the absence of the Cures Act, alternative systems to reduce fraud or waste such as random site audits, or automated random remote audits could have been considered.

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2"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

3§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

4Pursuant 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."

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

For personal care, companion care, and respite care services, the proposed amendments establish the requirements for electronic visit verification (EVV), which is a telephone and computer-based system by which providers of services to qualifying Medicaid individuals create an electronic record of their arrival and departure times, locations, and services provided at each visit. Additional proposed amendments require the implementation of EVV for specific categories of service providers, including those providing (i) personal care services for children receiving early preventative screening, diagnosis, and treatment; (ii) consumer-directed or agency-directed personal care or respite care services specifically for activities of daily living; (iii) personal care or respite care services for individuals under the Elderly or Disabled with Consumer-Direction Waiver, agency-directed or consumer-directed companion services in the workplace or postsecondary school, and agency-directed or consumer-directed respite care services; and (iv) services for individuals with developmental disabilities receiving community waiver services. The proposed amendments are in conformance with the 21st Century Cures Act (Public Law 114-255), Public Law 115-222, and Item 303 LLL of Chapter 2 of the 2018 Acts of Assembly, Special Session I.

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. General provisions for early and periodic screening, 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 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. DMAS shall place appropriate utilization controls upon this service.

4. Consistent with § 6403 of the Omnibus Budget Reconciliation Act of 1989, 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 21 years of age and older, provided for by § 1905(a) of the Social Security Act.

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) shall be reflected in provider records and on provider claims for services by recognized diagnosis codes that support and are consistent with the requested professional services.

1. Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

"Adolescent" means the individual receiving the services described in this section. For the purpose of the use of this term, adolescent means an individual 12 through 20 years of age.

"Behavioral health service" means the same as defined in 12VAC30-130-5160.

"Care coordination" means the collaboration and sharing of information among health care providers involved with an individual's health care to improve the care.

"Caregiver" means the same as defined in 12VAC30-130-5160.

"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 the Department of Health Professions in the document entitled 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.

"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.

"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.

"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.

"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.

"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 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 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.

"Strength-based" means the same as defined in 12VAC30-130-5160.

"Supervision" means the same as defined in 12VAC30-130-5160.

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 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 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.

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.

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.

c. These services shall only be rendered by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

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.

a. Service authorization shall be required for Medicaid reimbursement.

b. Service-specific provider intakes shall be required prior to the 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.

c. These services shall be rendered only by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

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 familytherapy; 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.

2. Therapeutic group home services pursuant to 42 CFR 440.130(d).

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 eligible for reimbursement.

(16) Therapeutic group home services providers shall be licensed by the Department of Behavioral Health and Developmental Services (DBHDS) under the Regulations for Children's Residential Facilities (12VAC35-46).

(17) Individuals shall be discharged from this service when treatment goals are met or other less intensive services may achieve stabilization.

(18) Services that are based upon incomplete, missing, or outdated service-specific provider intakes or plans of care shall be denied reimbursement.

(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.

(20) The 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 or group home in the individual's record. The documentation shall include who was contacted, when the contact occurred, 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 subsection. 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.)

E. Mental health family support partners.

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. 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. Documentation of required activities shall be required as set forth in 12VAC30-130-5200 A, C, and E through J.

4. Limitations and exclusions to service delivery shall be the same as set forth in 12VAC30-130-5210.

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. 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. 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. Individual and his caregiver need assistance and support to prepare the individual for a successful work or school experience.

d. Individual and his caregiver need assistance to help the individual and caregiver assume responsibility for recovery.

6. Individuals 18, 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. 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. Discharge criteria from mental health family support partners shall be the same as set forth in 12VAC30-130-5180 E.

9. Mental health family support partners services shall be rendered on an individual basis or in a group.

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. 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. The PRS shall be employed by or have a contractual relationship with the enrolled provider licensed for one of the following:

a. Acute care general and emergency department hospital services licensed by the Department of Health.

b. Freestanding psychiatric hospital and inpatient psychiatric unit licensed by the Department of Behavioral Health and Developmental Services.

c. Psychiatric residential treatment facility licensed by the Department of Behavioral Health and Developmental Services.

d. Therapeutic group home licensed by the Department of Behavioral Health and Developmental Services.

e. Outpatient mental health clinic services licensed by the Department of Behavioral Health and Developmental Services.

f. Outpatient psychiatric services provider.

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. Only the licensed and enrolled provider as referenced in subdivision 12 of this subsection shall be eligible to bill and receive reimbursement from DMAS for mental health family support partner services. Payments shall not be permitted to providers that fail to enter into an enrollment agreement with DMAS. Reimbursement shall be subject to retraction for any billed service that is determined not to be in compliance with DMAS requirements.

14. Supervision of the PRS shall meet the requirements set forth in 12VAC30-50-226 B 7 l.

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.

G. Addiction and recovery treatment services shall be covered under EPSDT consistent with 12VAC30-130-5000 et seq.

H. Services facilitators shall be required for all consumer-directed personal care services consistent with the requirements set out in 12VAC30-120-935.

I. Behavioral therapy services shall be covered for individuals younger than 21 years of age.

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 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.

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.

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 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 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:

a. Initial and periodic service-specific provider intake as defined in 12VAC30-60-61 F;

b. Development of initial and updated ISPs as established in 12VAC30-60-61 F;

c. Clinical supervision activities. Requirements for clinical supervision are set out in 12VAC30-60-61 F;

d. Behavioral training to increase the individual's adaptive functioning and communication skills;

e. Training a family member in behavioral modification methods as established in 12VAC30-60-61 F;

f. Documentation and analysis of quantifiable behavioral data related to the treatment objectives; and

g. Care coordination.

4. All personal care services rendered to children under the authority of 42 CFR 440.40(b) shall comply with the requirements of 12VAC30-60-65 with regard to electronic visit verification.

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 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 professional develops a written plan for meeting the needs of the 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. 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 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 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 individual is receiving a Medicaid-covered service under the IEP. Transportation shall be listed in the individual's IEP. 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 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 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 an individual is receiving additional therapy outside of the school, that there will be coordination of services to avoid duplication of service.

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.

12VAC30-60-65. Electronic visit verification.

A. Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

"Aide" means the person who is employed by an agency to provide hands-on care.

"Agency-directed services" means a model of service delivery where an agency is responsible for providing direct support staff, for maintaining an individual's records, and for scheduling the dates and times of the direct support staff's presence in the individual's home for personal care services, respite care services, and companion services.

"Attendant" means the person who is hired by the individual consumer to provide hands-on care.

"Companion services" means nonmedical care, supervision, and socialization provided to an adult individual (ages 18 years and older). The provision of companion services shall not entail hands-on care but shall be provided in accordance with a therapeutic goal in the individual support plan and is not purely diversional in nature.

"Consumer-directed attendant" means a person who provides consumer-directed personal care services, respite care services, companion services, or any combination of these three services, who is also exempt from workers' compensation.

"Consumer-directed services" or "CD services" means the model of service delivery for which the individual enrolled in the waiver or the individual's employer of record, as appropriate, is responsible for hiring, training, supervising, and firing of an attendant who renders the services that are reimbursed by DMAS.

"DMAS" means the Department of Medical Assistance Services.

"Electronic visit verification" or "EVV" means a system by which personal care services, companion services, or respite care services home visits are electronically verified with respect to (i) the type of service performed, (ii) the individual receiving the service, (iii) the date of the service, (iv) the location of service delivery, (v) the individual providing the service, and (vi) the time the service begins and ends.

"Individual" means the person who has applied for and been approved to receive services for which EVV is required.

"Personal care services" means a range of support services that includes assistance with activities of daily living and instrumental activities of daily living, access to the community, and self-administration of medication or other medical needs and the monitoring of health status and physical condition provided through the agency-directed or consumer-directed model of service. Personal care services shall be provided by a personal care attendant or aide within the scope of the attendant's or aide's license or certification, as appropriate.

"Respite care services" means services provided to waiver individuals who are unable to care for themselves that are furnished on a short-term basis because of the absence of or need for the relief of the unpaid primary caregiver who normally provides the care.

B. Applicable services. All of the requirements for an electronic visit verification system shall apply to all providers, both agency-directed and consumer-directed, of personal care services, respite care services, and companion services.

1. Agency providers shall choose the EVV system that best suits the provider business model, meets regulatory requirements established in this section, and provides reliable functionality for the geographic area in which it is to be used.

2. For consumer-directed services, the DMAS designee (the fiscal employer agent) shall select and operate an EVV system to support an individual, or the employer of record, in managing the individual's care, meeting regulatory requirements established in this section, and providing reliable functionality for the geographic area in which it is to be used. 

3. Providers of consumer-directed personal care services, respite care services, and companionservices shall comply with all EVV requirements.

4. Providers of agency-directed personal care services, respite care services, and companion services shall comply with all EVV requirements.

5. Individuals shall not be restricted from receiving a combination of agency-directed and consumer-directed services. Nothing in this section shall be construed to limit personal care, respite care, or companion services; an individual's selection of a provider attendant or aide; or impede the manner or location in which services are delivered subject to subsection C of this section.

C. The following entities shall be exempt from EVV requirements:

1. A DBHDS-licensed provider in a DBHDS-licensed program site, such as a group home or sponsored residential home or a supervised living, supported living, or similar facility or location licensed to provide respite care services;

2. The Regional Educational Assessment Crisis Response and Habilitation (REACH) Program; and

3. Schools where personal care services are rendered under the authority of an individual education program.

D. System requirements.

1. The EVV system shall be capable of capturing required data in real time and producing such data as requested by DMAS in electronic format. The following information shall be retained:

a. The type of the service being performed;

b. The individual who receives the service;

c. The date of the service, including month, day, and year;

d. The time the service begins and ends;

e. The location of the service delivery at the beginning and the end of the service. EVV systems shall not restrict locations where individuals may receive services; and

f. The attendant or aide who provides the service.

2. In the event the time of service delivery needs to be adjusted, the start or end time may be modified by someone who has the provider's authority to adjust the aide's or attendant's hours.

a. For agency-directed providers, this may be a supervisor or the agency owner or a designee who has authority to make independent verifications. In no case shall workers be allowed to adjust a peer worker's reported time.

b. For consumer-directed attendants, the fiscal employer agent shall have this authority.

3. All EVV systems shall be compliant with the requirements of the American with Disabilities Act (42 USC § 12101 et seq.) and Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191).

4. All EVV systems shall employ electronic devices that are capable of recording the required data described in subdivision D 1 of this section, producing it upon demand, and safeguarding the data both physically and electronically.

5. All EVV systems shall be accessible for input or service delivery 24 hours per day, seven days per week.

6. All EVV systems shall provide for data backups in the event of emergencies; disasters, natural or otherwise; and system malfunctions, both in the location services are being delivered and the backup server location.

7. All EVV systems shall be capable of handling:

a. Multiple work shifts per day per individual or aide or attendant combination;

b. Aides or attendants who work for multiple individuals;

c. Individuals who use multiple aides or attendants;

d. Multiple individuals and multiple aides or attendants or both in the same location at the same time and date. In such situations, the EVV shall be capable of separately documenting the services, as well as the other elements set out in subdivision D 1 of this section, that are provided to each individual; and

e. At minimum, daily backups of the most recent data that has been entered.

8. All EVV systems shall be capable of electronically transmitting information to DMAS in the required format or electronically transferring it to the provider's billing system.

E. EVV data shall be submitted to DMAS with the provider's billing claim.

F. Agency-directed provider records, audits, and reports.

1. Providers shall select and obtain an EVV system that meets the functional requirements of DMAS or its designee.

2. All providers shall retain EVV data for at least six years from the last date of service or as provided by applicable federal and state laws, whichever period is longer. However, if an audit is initiated within the required retention period, the records shall be retained until the audit is completed and every exception is resolved. Policies regarding retention of records shall apply even if the provider discontinues operation.

a. In the event a provider discontinues services, DMAS shall be notified in writing of the storage location and procedures for obtaining records for review should the need arise.

b. The location, agent, or trustee shall be within the Commonwealth.

3. All providers shall retain records of minor individuals for at least six years after such minor individual has reached 18 years of age.

4. All providers shall produce their archived EVV data in a timely manner and in an electronic format when requested by DMAS or its designee.

5. In the event that a telephone or other verification option that the provider uses is not available or accessible in the individual's home or location, and delayed data input is utilized, the provider shall have information on file documenting the reason that the aide or attendant did not use EVV for the service delivered.

12VAC30-120-766. Personal care and respite care services.

A. Service description. Services may be provided either through an agency-directed or consumer-directed model.

1. Personal care services means services offered to individuals in their homes and communities to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. Personal care services substitute for the absence, loss, diminution, or impairment of a physical, behavioral, or cognitive function. This service shall provide care to individuals with activities of daily living (eating, drinking, personal hygiene, toileting, transferring, and bowel/bladder bowel or bladder control), instrumental activities of daily living (IADL), access to the community, monitoring of self-medication or other medical needs, and the monitoring of health status or physical condition. In order to receive personal care services, the individual must require assistance with their ADLs. When specified in the plan of care, personal care services may include assistance with IADL. Assistance with IADL must be essential to the health and welfare of the individual, rather than the individual's family/caregiver family or caregiver. An additional component to personal care is work or school-related personal care. This allows the personal care provider to provide assistance and supports for individuals in the workplace and for those individuals attending postsecondary educational institutions. Workplace or school supports through the IFDDS Waiver are not provided if they are services that should be provided by DARS, under IDEA, or if they are an employer's responsibility under the Americans with Disabilities Act, the Virginians with Disabilities Act, or § 504 of the Rehabilitation Act. Work-related personal care services cannot duplicate services provided under supported employment.

2. Respite care means services provided for unpaid caregivers of eligible individuals who are unable to care for themselves that are provided on an episodic or routine basis because of the absence of or need for relief of those unpaid persons who routinely provide the care.

3. Both agency-directed and consumer-directed personal care services and respite care services shall be subject to the requirements of electronic visit verification set out in 12VAC30-60-65.

B. Criteria.

1. In order to qualify for personal care services, the individual must demonstrate a need in activities of daily living, reminders to take medication, or other medical needs, or monitoring health status or physical condition.

2. In order to qualify for respite care, individuals must have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the individual.

3. Individuals choosing the consumer-directed option must receive support from a CD services facilitator and meet requirements for consumer direction as described in 12VAC30-120-770.

C. Service units and service limitations.

1. The unit of service is one hour.

2. Effective July 1, 2011, respite care services are limited to a maximum of 480 hours per year. Individuals who are receiving services through both the agency-directed and consumer-directed models cannot exceed 480 hours per year combined.

3. Individuals may have personal care, respite care, and in-home residential support services in their plan of care but cannot receive in-home residential supports and personal care or respite care services at the same time.

4. Each individual receiving personal care services must have a back-up plan in case the personal care aide or consumer-directed (CD) employee does not show up for work as expected or terminates employment without prior notice.

5. Individuals must need assistance with ADLs in order to receive IADL care through personal care services.

6. Individuals shall be permitted to share personal care service hours with one other individual (receiving waiver services) who lives in the same home.

7. This service does not include skilled nursing services with the exception of skilled nursing tasks that may be delegated in accordance with 18VAC90-20-420 through 18VAC90-20-460.

D. Provider requirements. In addition to meeting the general conditions and requirements for home and community-based care participating providers as specified in 12VAC30-120-730 and 12VAC30-120-740, personal and respite care providers must meet the following provider requirements:

1. Services shall be provided by:

a. For the agency-directed model, a DMAS enrolled personal care/respite care provider or by a DBHDS-licensed residential supportive in-home provider. All personal care aides must pass an objective standardized test of knowledge, skills, and abilities approved by DBHDS and administered according to DBHDS' defined procedures.

Providers must demonstrate a prior successful health care delivery business and operate from a business office.

b. For the consumer-directed model, a service facilitation provider meeting the requirements found in 12VAC30-120-770.

2. For DBHDS-licensed providers, a residential supervisor shall provide ongoing supervision for all personal care aides. For DMAS-enrolled personal care/respite care providers, the provider must employ or subcontract with and directly supervise an RN who will provide ongoing supervision of all aides. The supervising RN must be currently licensed to practice in the Commonwealth and have at least two years of related clinical nursing experience that may include work in an acute care hospital, public health clinic, home health agency, ICF/IID, or nursing facility.

3. The RN supervisor or case manager/services facilitator must make a home visit to conduct an initial assessment prior to the start of care for all individuals requesting services. The RN supervisor or case manager/service facilitator must also perform any subsequent reassessments or changes to the supporting documentation. Under the consumer-directed model, the initial comprehensive visit is done only once upon the individual's entry into the service. If an individual served under the waiver changes CD services facilitation agencies, the new CD services facilitation provider must bill for a reassessment in lieu of a comprehensive visit.

4. The RN supervisor or case manager/services facilitator must make supervisory visits as often as needed to ensure both quality and appropriateness of services.

a. For personal care the minimum frequency of these visits is every 30 to 90 calendar days depending on individual needs. For respite care offered on a routine basis, the minimum frequency of these visits is every 30 to 90 calendar days under the agency-directed model and every six months or upon the use of 240 respite care hours (whichever comes first) under the consumer-directed model.

b. Under the agency-directed model, when respite care services are not received on a routine basis, but are episodic in nature, the RN is not required to conduct a supervisory visit every 30 to 90 calendar days. Instead, the RN supervisor must conduct the initial home visit with the respite care aide immediately preceding the start of care and make a second home visit within the respite care period.

c. When respite care services are routine in nature and offered in conjunction with personal care, the 30-day to 90-day supervisory visit conducted for personal care may serve as the RN supervisor or case manager/service facilitator visit for respite care. However, the RN supervisor or case manager/services facilitator must document supervision of respite care separately. For this purpose, the same record can be used with a separate section for respite care documentation.

5. Under the agency-directed model, the supervisor shall identify any gaps in the aide's ability to provide services as identified in the individual's plan of care and provide training as indicated based on continuing evaluations of the aide's performance and the individual's needs.

6. The supervising RN or case manager/services facilitator must maintain current documentation. This may be done as a summary and must note:

a. Whether personal and respite care services continue to be appropriate;

b. Whether the supporting documentation is adequate to meet the individual's needs or if changes are indicated in the supporting documentation;

c. Any special tasks performed by the aide/CD employee and the aide's/CD employee's qualifications to perform these tasks;

d. Individual's satisfaction with the service;

e. Any hospitalization or change in the individual's medical condition or functioning status;

f. Other services received and their amount; and

g. The presence or absence of the aide in the home during the RN's visit.

7. Qualification of aides/CD employees. Each aide/CD employee must:

a. Be 18 years of age or older and possess a valid social security number;

b. For the agency-directed model, be able to read and write English to the degree necessary to perform the tasks required. For the consumer-directed model, possess basic math, reading and writing skills;

c. Have the required skills to perform services as specified in the individual's plan of care;

d. Not be the parents of individuals who are minors, or the individual's spouse. Payment will not be made for services furnished by other family members living under the same roof as the individual receiving services unless there is objective written documentation as to why there are no other providers available to provide the care. Family members who are approved to be reimbursed for providing this service must meet the qualifications. In addition, under the consumer-directed model, family/caregivers family or caregivers acting as the employer on behalf of the individual may not also be the CD employee;

e. Additional aide requirements under the agency-directed model:

(1) Complete an appropriate aide training curriculum consistent with DMAS standards. Prior to assigning an aide to an individual, the provider must ensure that the aide has satisfactorily completed a training program consistent with DMAS standards. DMAS requirements may be met in any of the following ways:

(a) Registration as a certified nurse aide (DMAS-enrolled personal care/respite care providers);

(b) Graduation from an approved educational curriculum that offers certificates qualifying the student as a nursing assistant, geriatric assistant or home health aide (DMAS-enrolled personal care/respite care providers);

(c) Completion of provider-offered training that is consistent with the basic course outline approved by DMAS (DMAS-enrolled personal care/respite care providers);

(d) Completion and passing of the DBHDS standardized test (DBHDS-licensed providers);

(2) Have a satisfactory work record as evidenced by two references from prior job experiences, including no evidence of possible abuse, neglect, or exploitation of aged or incapacitated adults or children; and

(3) Be evaluated in his job performance by the supervisor.

f. Additional CD employee requirements under the consumer-directed model:

(1) Submit to a criminal records check and, if the individual is a minor, the child protective services registry. The employee will not be compensated for services provided to the individual if the records check verifies the employee has been convicted of crimes described in § 37.2-314 of the Code of Virginia or if the employee has a complaint confirmed by the DSS child protective services registry;

(2) Be willing to attend training at the request of the individual or his family/caregivers family or caregiver, as appropriate;

(3) Understand and agree to comply with the DMAS consumer-directed services requirements; and

(4) Receive an annual TB screening.

8. Provider inability to render services and substitution of aides (agency-directed model). When an aide is absent, the provider may either obtain another aide, obtain a substitute aide from another provider if the lapse in coverage is to be less than two weeks in duration, or transfer the individual's services to another provider.

9. Retention, hiring, and substitution of employees (consumer-directed model). Upon the individual's request, the CD services facilitator shall provide the individual or his family/caregiver family or caregiver, as appropriate, with a list of consumer-directed employees on the consumer-directed employee registry that may provide temporary assistance until the employee returns or the individual or his family/caregiver family or caregiver, as appropriate, is able to select and hire a new employee. If an individual or his family/caregiver family or caregiver, as appropriate, is consistently unable to hire and retain an employee to provide consumer-directed services, the services facilitator must contact the case manager and DBHDS to transfer the individual, at the choice of the individual or his family/caregiver family or caregiver, as appropriate, to a provider that provides Medicaid-funded agency-directed personal care or respite care services. The CD services facilitator will make arrangements with the case manager to have the individual transferred.

10. Required documentation in individuals' records. The provider must maintain all records of each individual receiving services. Under the agency-directed model, these records must be separated from those of other nonwaiver services, such as home health services. At a minimum these records must contain:

a. The most recently updated plan of care and supporting documentation, all provider documentation, and all DMAS-225 forms;

b. Initial assessment by the RN supervisory nurse or case manager/services facilitator completed prior to or on the date services are initiated, subsequent reassessments, and changes to the supporting documentation by the RN supervisory nurse or case manager/services facilitator;

c. Nurses' or case manager/services facilitator summarizing notes recorded and dated during any contacts with the aide or CD employee and during supervisory visits to the individual's home;

d. All correspondence to the individual, to DBHDS, and to DMAS;

e. Contacts made with family, physicians, DBHDS, DMAS, formal and informal service providers, and all professionals concerning the individual;

f. Under the agency-directed model, all aide records. The aide record must contain:

(1) The specific services delivered to the individual by the aide and the individual's responses;

(2) The aide's arrival and departure times;

(3) The aide's weekly comments or observations about the individual to include observations of the individual's physical and emotional condition, daily activities, and responses to services rendered;

(4) The aide's and individual's weekly signatures to verify that services during that week have been rendered;

(5) Signatures, times, and dates; these signatures, times, and dates shall not be placed on the aide record prior to the last date of the week that the services are delivered; and

(6) Copies of all aide records; these records shall be subject to review by state and federal Medicaid representatives.

g. Additional documentation requirements under the consumer-directed model:

(1) All management training provided to the individuals or their family caregivers, as appropriate, including responsibility for the accuracy of the timesheets.

(2) All documents signed by the individual or his family/caregivers family or caregiver, as appropriate, that acknowledge the responsibilities of the services.

12VAC30-120-924. Covered services; limits on covered services.

A. Covered services in the EDCD Waiver shall include: adult day health care, personal care (both consumer-directed and agency-directed), respite services (both consumer-directed and agency-directed), PERS, PERS medication monitoring, limited assistive technology, limited environmental modifications, transition coordination, and transition services.

1. The services covered in this waiver shall be appropriate and medically necessary to maintain the individual in the community in order to prevent institutionalization and shall be cost effective in the aggregate as compared to the alternative NF placement.

2. EDCD services shall not be authorized if another entity is required to provide the services (e.g., schools, insurance). Waiver services shall not duplicate services available through other programs or funding streams.

3. Assistive technology and environmental modification services shall be available only to those EDCD Waiver individuals who are also participants in the Money Follows the Person (MFP) demonstration program pursuant to Part XX (12VAC30-120-2000 et seq.).

4. An individual receiving EDCD Waiver services who is also getting hospice care may receive Medicaid-covered personal care (agency-directed and consumer-directed), respite care (agency-directed and consumer-directed), adult day health care, transition services, transition coordination, and PERS services, regardless of whether the hospice provider receives reimbursement from Medicare or Medicaid for the services covered under the hospice benefit. Such dual waiver/hospice individuals shall only be able to receive assistive technology and environmental modifications if they are also participants in the MFP demonstration program.

5. Agency-directed and consumer-directed personal care services and respite care services shall be subject to the electronic visit verification requirements set out in 12VAC30-60-65.

B. Voluntary/involuntary Voluntary or involuntary disenrollment from consumer-directed services. In either voluntary or involuntary disenrollment situations, the waiver individual shall be permitted to select an agency from which to receive his agency-directed personal care and respite services.

1. A waiver individual may be found to be ineligible for CD services by either the Preadmission Screening Team, DMAS-enrolled hospital provider, DMAS, its designated agent, or the CD services facilitator. An individual may not begin or continue to receive CD services if there are circumstances where the waiver individual's health, safety, or welfare cannot be assured, including but not limited to:

a. It is determined that the waiver individual cannot be the EOR and no one else is able to assume this role;

b. The waiver individual cannot ensure his own health, safety, or welfare or develop an emergency backup plan that will ensure his health, safety, or welfare; or

c. The waiver individual has medication or skilled nursing needs or medical or behavioral conditions that cannot be met through CD services or other services.

2. The waiver individual may be involuntarily disenrolled from consumer direction if he or the EOR, as appropriate, is consistently unable to retain or manage the attendant as may be demonstrated by, but not necessarily limited to, a pattern of serious discrepancies with the attendant's timesheets.

3. In situations where either (i) the waiver individual's health, safety, or welfare cannot be assured or (ii) attendant timesheet discrepancies are known, the services facilitator shall assist as requested with the waiver individual's transfer to agency-directed services as follows:

a. Verify that essential training has been provided to the waiver individual or EOR;

b. Document, in the waiver individual's case record, the conditions creating the necessity for the involuntary disenrollment and actions taken by the services facilitator;

c. Discuss with the waiver individual or the EOR, as appropriate, the agency-directed option that is available and the actions needed to arrange for such services and offer choice of potential providers, and

d. Provide written notice to the waiver individual of the right to appeal such involuntary termination of consumer direction. Such notice shall be given at least 10 calendar days prior to the effective date of this change. In cases when the individual's or the provider personnel's safety may be jeopardy, the 10 calendar days notice shall not apply.

C. Adult day health care (ADHC) services. ADHC services shall only be offered to waiver individuals who meet preadmission screening criteria as established in 12VAC30-60-303 and 12VAC30-60-307 and for whom ADHC services shall be an appropriate and medically necessary alternative to institutional care. ADHC services may be offered to individuals in a VDSS-licensed adult day care center (ADCC) congregate setting. ADHC may be offered either as the sole home and community-based care service or in conjunction with personal care (either agency-directed or consumer-directed), respite care (either agency-directed or consumer-directed), or PERS. A multi-disciplinary approach to developing, implementing, and evaluating each waiver individual's POC shall be essential to quality ADHC services.

1. ADHC services shall be designed to prevent institutionalization by providing waiver individuals with health care services, maintenance of their physical and mental conditions, and coordination of rehabilitation services in a congregate daytime setting and shall be tailored to their unique needs. The minimum range of services that shall be made available to every waiver individual shall be: assistance with ADLs, nursing services, coordination of rehabilitation services, nutrition, social services, recreation, and socialization services.

a. Assistance with ADLs shall include supervision of the waiver individual and assistance with management of the individual's POC.

b. Nursing services shall include the periodic evaluation, at least every 90 days, of the waiver individual's nursing needs; provision of indicated nursing care and treatment; responsibility for monitoring, recording, and administering prescribed medications; supervision of the waiver individual in self-administered medication; support of families in their home care efforts for the waiver individuals through education and counseling; and helping families identify and appropriately utilize health care resources. Periodic evaluations may occur more frequently than every 90 days if indicated by the individual's changing condition. Nursing services shall also include the general supervision of provider staff, who are certified through the Board of Nursing, in medication management and administering medications.

c. Coordination and implementation of rehabilitation services to ensure the waiver individual receives all rehabilitative services deemed necessary to improve or maintain independent functioning, to include physical therapy, occupational therapy, and speech therapy.

d. Nutrition services shall be provided to include, but not necessarily be limited to, one meal per day that meets the daily nutritional requirements pursuant to 22VAC40-60-800. Special diets and nutrition counseling shall be provided as required by the waiver individuals.

e. Recreation and social activities shall be provided that are suited to the needs of the waiver individuals and shall be designed to encourage physical exercise, prevent physical and mental deterioration, and stimulate social interaction.

f. ADHC coordination shall involve implementing the waiver individuals' POCs, updating such plans, recording 30-day progress notes, and reviewing the waiver individuals' daily logs each week.

2. Limits on covered ADHC services.

a. A day of ADHC services shall be defined as a minimum of six hours.

b. ADCCs that do not employ professional nursing staff on site shall not be permitted to admit waiver individuals who require skilled nursing care to their centers. Examples of skilled nursing care may include: (i) tube feedings; (ii) Foley catheter irrigations; (iii) sterile dressing changing; or (iv) any other procedures that require sterile technique. The ADCC shall not permit its aide employees to perform skilled nursing procedures.

c. At any time that the center is no longer able to provide reliable, continuous care to any of the center's waiver individuals for the number of hours per day or days per week as contained in the individuals' POCs, then the center shall contact the waiver individuals or family/caregivers their family or caregivers, as appropriate, to initiate other care arrangements for these individuals. The center may either subcontract with another ADCC or may transfer the waiver individual to another ADCC. The center may discharge waiver individuals from the center's services but not from the waiver. Written notice of discharge shall be provided, with the specific reason or reasons for discharge, at least 10 calendar days prior to the effective date of the discharge. In cases when the individual's or the center personnel's safety may be jeopardy, the 10 calendar days notice shall not apply.

d. ADHC services shall not be provided, for the purpose of Medicaid reimbursement, to individuals who reside in NFs, ICFs/IID, hospitals, assisted living facilities that are licensed by VDSS, or group homes that are licensed by DBHDS.

D. Agency-directed personal care services. Agency-directed personal care services shall only be offered to persons who meet the preadmission screening criteria at 12VAC30-60-303 and 12VAC30-60-307 and for whom it shall be an appropriate alternative to institutional care. Agency-directed personal care services shall be comprised of hands-on care of either a supportive or health-related nature and shall include, but shall not necessarily be limited to, assistance with ADLs, access to the community, assistance with medications in accordance with VDH licensing requirements or other medical needs, supervision, and the monitoring of health status and physical condition. Where the individual requires assistance with ADLs, and when specified in the POC, such supportive services may include assistance with IADLs. This service shall not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to Part VIII (18VAC90-20-420 through 18VAC90-20-460) of 18VAC90-20. Agency-directed personal care services may be provided in a home or community setting to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. Personal care may be offered either as the sole home and community-based care service or in conjunction with adult day health care, respite care (agency-directed or consumer-directed), or PERS. The provider shall document, in the individual's medical record, the waiver individual's choice of the agency-directed model.

1. Criteria. In order to qualify for this service, the waiver individual shall have met the NF LOC criteria as set out in 12VAC30-60-303 and 12VAC30-60-307 as documented on the UAI assessment form, and for whom it shall be an appropriate alternative to institutional care.

a. A waiver individual may receive both CD and agency-directed personal care services if the individual meets the criteria. Hours received by the individual who is receiving both CD and agency-directed services shall not exceed the total number of hours that would be needed if the waiver individual were receiving personal care services through a single delivery model.

b. CD and agency-directed services shall not be simultaneously provided but may be provided sequentially or alternately from each other.

c. The individual or family/caregiver family or caregiver shall have a backup plan for the provision of services in the event the agency is unable to provide an aide.

2. Limits on covered agency-directed personal care services.

a. DMAS shall not duplicate services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973 (29 USC § 794).

b. DMAS shall reimburse for services delivered, consistent with the approved POC, for personal care that the personal care aide provides to the waiver individual to assist him while he is at work or postsecondary school.

(1) DMAS or the designated Srv Auth contractor shall review the waiver individual's needs and the complexity of the disability, as applicable, when determining the services that are provided to him in the workplace or postsecondary school or both.

(2) DMAS shall not pay for the personal care aide to assist the enrolled waiver individual with any functions or tasks related to the individual completing his job or postsecondary school functions or for supervision time during either work or postsecondary school or both.

c. Supervision services shall only be authorized to ensure the health, safety, or welfare of the waiver individual who cannot be left alone at any time or is unable to call for help in case of an emergency, and when there is no one else in the home competent and able to call for help in case of an emergency.

d. There shall be a maximum limit of eight hours per 24-hour day for supervision services. Supervision services shall be documented in the POC as needed by the individual.

e. Agency-directed personal care services shall be limited to 56 hours of services per week for 52 weeks per year. Individual exceptions may be granted based on criteria established by DMAS.

f. Electronic visit verification requirements set out in 12VAC30-60-65 shall apply to these agency-directed respite care services.

E. Agency-directed respite care services. Agency-directed respite care services shall only be offered to waiver individuals who meet the preadmission screening criteria at 12VAC30-60-303 and 12VAC30-60-307 and for whom it shall be an appropriate alternative to institutional care. Agency-directed respite care services may be either skilled nursing or unskilled care and shall be comprised of hands-on care of either a supportive or health-related nature and may include, but shall not be limited to, assistance with ADLs, access to the community, assistance with medications in accordance with VDH licensing requirements or other medical needs, supervision, and monitoring health status and physical condition.

1. Respite care shall only be offered to individuals who have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the waiver individual. Respite care services may be provided in the individual's home or other community settings.

2. When the individual requires assistance with ADLs, and where such assistance is specified in the waiver individual's POC, such supportive services may also include assistance with IADLs.

3. The unskilled care portion of this service shall not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to Part VIII (18VAC90-20-420 through 18VAC90-20-460) of 18VAC90-20.

4. Limits on service.

a. The unit of service shall be one hour. Respite care services shall be limited to 480 hours per individual per state fiscal year, to be service authorized. If an individual changes waiver programs, this same maximum number of respite hours shall apply. No additional respite hours beyond the 480 maximum limit shall be approved for payment for individuals who change waiver programs. Additionally, individuals who are receiving respite services in this waiver through both the agency-directed and CD models shall not exceed 480 hours per state fiscal year combined.

b. If agency-directed respite care service is the only service received by the waiver individual, it must be received at least as often as every 30 days. If this service is not required at this minimal level of frequency, then the provider agency shall notify the local department of social services for its redetermination of eligibility for the waiver individual.

c. The individual or family/caregiver family or caregiver shall have a backup plan for the provision of services in the event the agency is unable to provide an aide.

d. Electronic visit verification requirements set out in 12VAC30-60-65 shall apply to these agency-directed respite care services.

F. Services facilitation for consumer-directed services. Consumer-directed personal care and respite care services shall only be offered to persons who meet the preadmission screening criteria at 12VAC30-60-303 and 12VAC30-60-307 and for whom there shall be appropriate alternatives to institutional care.

1. Individuals who choose CD services shall receive support from a DMAS-enrolled CD services facilitator as required in conjunction with CD services. The services facilitator shall document the waiver individual's choice of the CD model and whether there is a need for another person to serve as the EOR on behalf of the individual. The CD services facilitator shall be responsible for assessing the waiver individual's particular needs for a requested CD service, assisting in the development of the POC, providing training to the EOR on his responsibilities as an employer, and for providing ongoing support of the CD services.

2. Individuals who are eligible for CD services shall have, or have an EOR who has, the capability to hire and train the personal care attendant or attendants and supervise the attendant's performance, including approving the attendant's timesheets.

a. If a waiver individual is unwilling or unable to direct his own care or is younger than 18 years of age, a family/caregiver/designated family, a caregiver, or a designated person shall serve as the EOR on behalf of the waiver individual in order to perform these supervisory and approval functions.

b. Specific employer duties shall include checking references of personal care attendants and determining that personal care attendants meet qualifications.

3. The individual or family/caregiver family or caregiver shall have a backup plan for the provision of services in case the attendant does not show up for work as scheduled or terminates employment without prior notice.

4. The CD services facilitator shall not be the waiver individual, a CD attendant, a provider of other Medicaid-covered services, spouse of the individual, parent of the individual who is a minor child, or the EOR who is employing the CD attendant.

5. DMAS shall either provide for fiscal employer/agent services or contract for the services of a fiscal employer/agent for CD services. The fiscal employer/agent shall be reimbursed by DMAS or DMAS contractor (if the fiscal/employer agent service is contracted) to perform certain tasks as an agent for the EOR. The fiscal employer/agent shall handle responsibilities for the waiver individual including, but not limited to, employment taxes and background checks for attendants. The fiscal employer/agent shall seek and obtain all necessary authorizations and approvals of the Internal Revenue Service in order to fulfill all of these duties.

G. Consumer-directed personal care services. CD personal care services shall be comprised of hands-on care of either a supportive or health-related nature and shall include assistance with ADLs and may include, but shall not be limited to, access to the community, monitoring of self-administered medications or other medical needs, supervision, and monitoring health status and physical condition. Where the waiver individual requires assistance with ADLs and when specified in the POC, such supportive services may include assistance with IADLs. This service shall not include skilled nursing services with the exception of skilled nursing tasks (e.g. catheterization) that may be delegated pursuant to Part VIII (18VAC90-20-420 through 18VAC90-20-460) of 18VAC 90-20 and as permitted by Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia. CD personal care services may be provided in a home or community setting to enable an individual to maintain the health status and functional skills necessary to live in the community or participate in community activities. Personal care may be offered either as the sole home and community-based service or in conjunction with adult day health care, respite care (agency-directed or consumer-directed), or PERS.

1. In order to qualify for this service, the waiver individual shall have met the NF LOC criteria as set out in 12VAC30-60-303 and 12VAC30-60-307 as documented on the UAI assessment instrument, and for whom it shall be an appropriate alternative to institutional care.

a. A waiver individual may receive both CD and agency-directed personal care services if the individual meets the criteria. Hours received by the waiver individual who is receiving both CD and agency-directed services shall not exceed the total number of hours that would be otherwise authorized had the individual chosen to receive personal care services through a single delivery model.

b. CD and agency-directed services shall not be simultaneously provided but may be provided sequentially or alternately from each other.

2. Limits on covered CD personal care services.

a. DMAS shall not duplicate services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973 (29 USC § 794).

b. There shall be a limit of eight hours per 24-hour day for supervision services included in the POC. Supervision services shall be authorized to ensure the health, safety, or welfare of the waiver individual who cannot be left alone at any time or is unable to call for help in case of an emergency, and when there is no one else in the home who is competent and able to call for help in case of an emergency.

c. Consumer-directed personal care services shall be limited to 56 hours of services per week for 52 weeks per year. Individual exceptions may be granted based on criteria established by DMAS.

d. Electronic visit verification requirements as set out in 12VAC30-60-65 shall apply to these CD personal care services.

3. CD personal care services at work or school shall be limited as follows:

a. DMAS shall reimburse for services delivered, consistent with the approved POC, for CD personal care that the attendant provides to the waiver individual to assist him while he is at work or postsecondary school or both.

b. DMAS or the designated Srv Auth contractor shall review the waiver individual's needs and the complexity of the disability, as applicable, when determining the services that will be provided to him in the workplace or postsecondary school or both.

c. DMAS shall not pay for the personal care attendant to assist the waiver individual with any functions or tasks related to the individual completing his job or postsecondary school functions or for supervision time during work or postsecondary school or both.

H. Consumer-directed respite care services. CD respite care services are unskilled care and shall be comprised of hands-on care of either a supportive or health-related nature and may include, but shall not be limited to, assistance with ADLs, access to the community, monitoring of self-administration of medications or other medical needs, supervision, monitoring health status and physical condition, and personal care services in a work environment.

1. In order to qualify for this service, the waiver individual shall have met the NF LOC criteria as set out in 12VAC30-60-303 and 12VAC30-60-307 as documented on the UAI assessment instrument, and for whom it shall be an appropriate alternative to institutional care.

2. CD respite care services shall only be offered to individuals who have an unpaid primary caregiver who requires temporary relief to avoid institutionalization of the waiver individual. This service shall be provided in the waiver individual's home or other community settings.

3. When the waiver individual requires assistance with ADLs, and where such assistance is specified in the individual's POC, such supportive services may also include assistance with IADLs.

4. Electronic visit verification requirements as set out in 12VAC30-60-65 shall apply to these CD respite care services.

5. Limits on covered CD respite care services.

a. The unit of service shall be one hour. Respite care services shall be limited to 480 hours per waiver individual per state fiscal year. If a waiver individual changes waiver programs, this same maximum number of respite hours shall apply. No additional respite hours beyond the 480 maximum limit shall be approved for payment. Individuals who are receiving respite services in this waiver through both the agency-directed and CD models shall not exceed 480 hours per state fiscal year combined.

b. CD respite care services shall not include skilled nursing services with the exception of skilled nursing tasks (e.g., catheterization) that may be delegated pursuant to Part VIII (18VAC90-20-420 through 18VAC90-20-460) of 18VAC90-20 and as permitted by Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia).

c. If consumer-directed respite care service is the only service received by the waiver individual, it shall be received at least as often as every 30 days. If this service is not required at this minimal level of frequency, then the services facilitator shall refer the waiver individual to the local department of social services for its redetermination of eligibility for the waiver individual.

I. Personal emergency response system (PERS).

1. Service description. PERS is a service that monitors waiver individual safety in the home and provides access to emergency assistance for medical or environmental emergencies through the provision of a two-way voice communication system that dials a 24-hour response or monitoring center upon activation and via the individual's home telephone line or system. PERS may also include medication monitoring devices.

a. PERS may be authorized only when there is no one else in the home with the waiver individual who is competent or continuously available to call for help in an emergency or when the individual is in imminent danger.

b. The use of PERS equipment shall not relieve the backup caregiver of his responsibilities.

c. Service units and service limitations.

(1) PERS shall be limited to waiver individuals who are ages 14 years and older who also either live alone or are alone for significant parts of the day and who have no regular caregiver for extended periods of time. PERS shall only be provided in conjunction with receipt of personal care services (either agency-directed or consumer-directed), respite services (either agency-directed or consumer-directed), or adult day health care. A waiver individual shall not receive PERS if he has a cognitive impairment as defined in 12VAC30-120-900.

(2) A unit of service shall include administrative costs, time, labor, and supplies associated with the installation, maintenance, monitoring, and adjustments of the PERS. A unit of service shall be the one-month rental price set by DMAS in its fee schedule. The one-time installation of the unit shall include installation, account activation, individual and family/caregiver family or caregiver instruction, and subsequent removal of PERS equipment when it is no longer needed.

(3) PERS services shall be capable of being activated by a remote wireless device and shall be connected to the waiver individual's telephone line or system. The PERS console unit must provide hands-free voice-to-voice communication with the response center. The activating device must be (i) waterproof, (ii) able to automatically transmit to the response center an activator low battery alert signal prior to the battery losing power, (iii) able to be worn by the waiver individual, and (iv) automatically reset by the response center after each activation, thereby ensuring that subsequent signals can be transmitted without requiring manual resetting by the waiver individual.

(4) All PERS equipment shall be approved by the Federal Communications Commission and meet the Underwriters' Laboratories, Inc. (UL) safety standard.

(5) Medication monitoring units shall be physician ordered. In order to be approved to receive the medication monitoring service, a waiver individual shall also receive PERS services. Physician orders shall be maintained in the waiver individual's record. In cases where the medical monitoring unit must be filled by the provider, the person who is filling the unit shall be either an RN or an LPN. The units may be filled as frequently as a minimum of every 14 days. There must be documentation of this action in the waiver individual's record.

J. Transition coordination and transition services. Transition coordination and transition services, as defined at 12VAC30-120-2000 and 12VAC30-120-2010, provide for applicants to move from institutional placements or licensed or certified provider-operated living arrangements to private homes or other qualified settings. The applicant's transition from an institution to the community shall be coordinated by the facility's discharge planning team. The discharge planner shall coordinate with the transition coordinator to ensure that EDCD Waiver eligibility criteria shall be met.

1. Transition coordination and transition services shall be authorized by DMAS or its designated agent in order for reimbursement to occur.

2. For the purposes of transition services, an institution must meet the requirements as specified by CMS in the Money Follows the Person demonstration program at http://www.ssa.gov/OP_Home/comp2/F109-171.html#ft 262.

3. Transition coordination shall be authorized for a maximum of 12 consecutive months upon discharge from an institutional placement and shall be initiated within 30 days of discharge from the institution.

4. Transition coordination and transition services shall be provided in conjunction with personal care (agency-directed or consumer-directed), respite care (agency-directed or consumer-directed), or adult day health care services.

K. Assistive technology (AT).

1. Service description. Assistive technology (AT), as defined in 12VAC30-120-900, shall only be available to waiver individuals who are participating in the MFP program pursuant to Part XX (12VAC30-120-2000 et seq.).

2. In order to qualify for these services, the individual shall have a demonstrated need for equipment for remedial or direct medical benefit primarily in an individual's primary home, primary vehicle used by the individual, community activity setting, or day program to specifically serve to improve the individual's personal functioning. This shall encompass those items not otherwise covered under the State Plan for Medical Assistance. AT shall be covered in the least expensive, most cost-effective manner.

3. Service units and service limitations.

a. All requests for AT shall be made by the transition coordinator to DMAS or the Srv Auth contractor.

b. The maximum funded expenditure per individual for all AT covered procedure codes (combined total of AT items and labor related to these items) shall be $5,000 per year for individuals regardless of waiver, or regardless of whether the individual changes waiver programs, for which AT is approved. The service unit shall always be one, for the total cost of all AT being requested for a specific timeframe.

c. AT may be provided in the individual's home or community setting.

d. AT shall not be approved for purposes of convenience of the caregiver/provider caregiver or provider or restraint of the individual.

e. An independent, professional consultation shall be obtained from a qualified professional who is knowledgeable of that item for each AT request prior to approval by the Srv Auth contractor and may include training on such AT by the qualified professional. The consultation shall not be performed by the provider of AT to the individual.

f. All AT shall be prior authorized by the Srv Auth contractor prior to billing.

g. Excluded shall be items that are reasonable accommodation requirements, for example, of the Americans with Disabilities Act, the Virginians with Disabilities Act (§ 51.5-1 et seq. of the Code of Virginia), or the Rehabilitation Act (20 USC § 794) or that are required to be provided through other funding sources.

h. AT services or equipment shall not be rented but shall be purchased.

L. Environmental modifications (EM).

1. Service description. Environmental modifications (EM), as defined herein, shall only be available to waiver individuals who are participating in the MFP program pursuant to Part XX (12VAC30-120-2000 et seq.). Adaptations shall be documented in the waiver individual's POC and may include, but shall not necessarily be limited to, the installation of ramps and grab-bars, widening of doorways, modification of bathroom facilities, or installation of specialized electrical and plumbing systems that are necessary to accommodate the medical equipment and supplies that are necessary for the welfare of the waiver individual. Excluded are those adaptations or improvements to the home that are of general utility and are not of direct medical or remedial benefit to the individual, such as carpeting, flooring, roof repairs, central air conditioning, or decks. Adaptations that add to the total square footage of the home shall be excluded from this benefit, except when necessary to complete an authorized adaptation, as determined by DMAS or its designated agent. All services shall be provided in the individual's primary home in accordance with applicable state or local building codes. All modifications must be prior authorized by the Srv Auth contractor. Modifications may only be made to a vehicle if it is the primary vehicle being used by the waiver individual. This service does not include the purchase or lease of vehicles.

2. In order to qualify for these services, the waiver individual shall have a demonstrated need for modifications of a remedial or medical benefit offered in his primary home or primary vehicle used by the waiver individual to ensure his health, welfare, or safety or specifically to improve the individual's personal functioning. This service shall encompass those items not otherwise covered in the State Plan for Medical Assistance or through another program. EM shall be covered in the least expensive, most cost-effective manner.

3. Service units and service limitations.

a. All requests for EM shall be made by the MFP transition coordinator to DMAS or the Srv Auth contractor.

b. The maximum funded expenditure per individual for all EM covered procedure codes (combined total of EM items and labor related to these items) shall be $5,000 per year for individuals regardless of waiver, or regardless of whether the individual changes waiver programs, for which EM is approved. The service unit shall always be one, for the total cost of all EM being requested for a specific timeframe.

c. All EM shall be authorized by the Srv Auth contractor prior to billing.

d. Modifications shall not be used to bring a substandard dwelling up to minimum habitation standards. Also excluded shall be modifications that are reasonable accommodation requirements of the Americans with Disabilities Act, the Virginians with Disabilities Act (§ 51.5-1 et seq. of the Code of Virginia), and the Rehabilitation Act (20 USC§ § 794).

e. Transition coordinators shall, upon completion of each modification, meet face-to-face with the waiver individual and his family/caregiver family or caregiver, as appropriate, to ensure that the modification is completed satisfactorily and is able to be used by the individual.

f. EM shall not be approved for purposes of convenience of the caregiver/provider caregiver or provider or restraint of the waiver individual.

12VAC30-120-930. General requirements for home and community-based participating providers.

A. Requests for participation shall be screened by DMAS or the designated DMAS contractor to determine whether the provider applicant meets the requirements for participation, as set out in the provider agreement, and demonstrates the abilities to perform, at a minimum, the following activities:

1. Screen all new and existing employees and contractors to determine whether any are excluded from eligibility for payment from federal health care programs, including Medicaid (i.e., via the United States Department of Health and Human Services Office of Inspector General List of Excluded Individuals or Entities (LEIE) website). Immediately report in writing to DMAS any exclusion information discovered to: DMAS, ATTN: Program Integrity/Exclusions, 600 East Broad Street, Suite 1300, Richmond, VA 23219, or email to providerexclusions@dmas.virginia.gov;

2. Immediately notify DMAS in writing of any change in the information that the provider previously submitted to DMAS;

3. Except for waiver individuals who are subject to the DMAS Client Medical Management program Part VIII (12VAC30-130-800 et seq.) of 12VAC30-130 or are enrolled in a Medicaid managed care program, ensure freedom of choice to individuals in seeking services from any institution, pharmacy, practitioner, or other provider qualified to perform the service or services required and participating in the Medicaid Program at the time the service or services are performed;

4. Ensure the individual's freedom to refuse medical care, treatment, and services;

5. Accept referrals for services only when staff is available to initiate and perform such services on an ongoing basis;

6. Provide services and supplies to individuals in full compliance with Title VI (42 USC § 2000d et seq.) of the Civil Rights Act of 1964 which prohibits discrimination on the grounds of race, color, religion, or national origin; the Virginians with Disabilities Act (§ 51.5-1 et seq. of the Code of Virginia); § 504 of the Rehabilitation Act of 1973 (29 USC § 794), which prohibits discrimination on the basis of a disability; and the Americans with Disabilities Act of 1990 (42 USC § 12101 et seq.), which provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications;

7. Provide services and supplies to individuals of the same quality and in the same mode of delivery as are provided to the general public;

8. Submit charges to DMAS for the provision of services and supplies to individuals in amounts not to exceed the provider's usual and customary charges to the general public and accept as payment in full the amount established by DMAS payment methodology beginning with the individual's authorization date for the waiver services;

9. Use only DMAS-designated forms for service documentation. The provider shall not alter the DMAS forms in any manner without prior written approval from DMAS;

10. Use DMAS-designated billing forms for submission of charges;

11. Perform no type of direct marketing activities to Medicaid individuals;

12. Maintain and retain business and professional records sufficient to document fully and accurately the nature, scope, and details of the services provided.

a. In general, such records shall be retained for a period of at least six years from the last date of service or as provided by applicable federal and state laws, whichever period is longer. However, if an audit is initiated within the required retention period, the records shall be retained until the audit is completed and every exception resolved. Records of minors shall be kept for a period of at least six years after such minor has reached 18 years of age.

b. Policies regarding retention of records shall apply even if the provider discontinues operation. DMAS shall be notified in writing of the storage location and procedures for obtaining records for review should the need arise. The location, agent, or trustee shall be within the Commonwealth;

13. Furnish information on the request of and in the form requested to DMAS, the Attorney General of Virginia or their authorized representatives, federal personnel, and the state Medicaid Fraud Control Unit. The Commonwealth's right of access to provider agencies and records shall survive any termination of the provider agreement;

14. Disclose, as requested by DMAS, all financial, beneficial, ownership, equity, surety, or other interests in any and all firms, corporations, partnerships, associations, business enterprises, joint ventures, agencies, institutions, or other legal entities providing any form of health care services to recipients of Medicaid;

15. Pursuant to 42 CFR 431.300 et seq., § 32.1-325.3 of the Code of Virginia, and the Health Insurance Portability and Accountability Act (HIPAA), safeguard and hold confidential all information associated with an applicant or enrollee or individual that could disclose the applicant's/enrollee's/individual's applicant's, enrollee's, or individiual's identity. Access to information concerning the applicant/enrollee/individual applicant, enrollee, or individual shall be restricted to persons or agency representatives who are subject to the standards of confidentiality that are consistent with that of the agency and any such access must be in accordance with the provisions found in 12VAC30-20-90;

16. When ownership of the provider changes, notify DMAS in writing at least 15 calendar days before the date of change;

17. Pursuant to §§ 63.2-100, 63.2-1509, and 63.2-1606 of the Code of Virginia, if a participating provider or the provider's staff knows or suspects that a home and community-based waiver services individual is being abused, neglected, or exploited, the party having knowledge or suspicion of the abuse, neglect, or exploitation shall report this immediately from first knowledge or suspicion of such knowledge to the local department of social services adult or child protective services worker as applicable or to the toll-free, 24-hour hotline as described on the local department of social services' website. Employers shall ensure and document that their staff is aware of this requirement;

18. In addition to compliance with the general conditions and requirements, adhere to the conditions of participation outlined in the individual provider's participation agreements, in the applicable DMAS provider manual, and in other DMAS laws, regulations, and policies. DMAS shall conduct ongoing monitoring of compliance with provider participation standards and DMAS policies. A provider's noncompliance with DMAS policies and procedures may result in a retraction of Medicaid payment or termination of the provider agreement, or both;

19. Meet minimum qualifications of staff.

a. For reasons of Medicaid individuals' safety and welfare, all employees shall have a satisfactory work record, as evidenced by at least two references from prior job experience, including no evidence of abuse, neglect, or exploitation of incapacitated or older adults or children. In instances of employees who have worked for only one employer, such employees shall be permitted to provide one appropriate employment reference and one appropriate personal reference including no evidence of abuse, neglect, or exploitation of incapacitated or older adults or children.

b. Criminal record checks for both employees and volunteers conducted by the Virginia State Police. Proof that these checks were performed with satisfactory results shall be available for review by DMAS staff or its designated agent who are authorized by the agency to review these files. DMAS shall not reimburse the provider for any services provided by an employee or volunteer who has been convicted of committing a barrier crime as defined in § 32.1-162.9:1 of the Code of Virginia. Providers shall be responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding criminal record checks. Provider staff shall not be reimbursed for services provided to the waiver individual effective on the date and thereafter that the criminal record check confirms the provider's staff person or volunteer was convicted of a barrier crime.

c. Provider staff and volunteers who serve waiver individuals who are minor children shall also be screened through the VDSS Child Protective Services (CPS) Central Registry. Provider staff and volunteers shall not be reimbursed for services provided to the waiver individual effective on the date and thereafter that the VDSS CPS Central Registry check confirms the provider's staff person or volunteer has a finding.

20. Comply with the electronic visit verification requirements set out in 12VAC30-60-65.

B. DMAS shall terminate the provider's Medicaid provider agreement pursuant to § 32.1-325 of the Code of Virginia and as may be required for federal financial participation. A provider who has been convicted of a felony, or who has otherwise pled guilty to a felony, in Virginia or in any other of the 50 states, the District of Columbia, or the U.S. territories shall within 30 days of such conviction notify DMAS of this conviction and relinquish its provider agreement. Such provider agreement terminations, subject to applicable appeal rights, shall conform to § 32.1-325 D and E of the Code of Virginia and Part XII (12VAC30-20-500 et seq.) of 12VAC30-20.

C. For DMAS to approve provider agreements with home and community-based waiver providers, the following standards shall be met:

1. Staffing, financial solvency, disclosure of ownership, and ensuring comparability of services requirements as specified in the applicable provider manual;

2. The ability to document and maintain waiver individuals' case records in accordance with state and federal requirements;

3. Compliance with all applicable laws, regulations, and policies pertaining to EDCD Waiver services.

D. The waiver individual shall have the option of selecting the provider of his choice from among those providers who are approved and who can appropriately meet his needs.

E. A participating provider may voluntarily terminate his participation in Medicaid by providing 30 days' written notification to DMAS.

F. DMAS may terminate at will a provider's participation agreement on 30 days' written notice as specified in the DMAS participation agreement. DMAS may immediately terminate a provider's participation agreement if the provider is no longer eligible to participate in the Medicaid program. Such action precludes further payment by DMAS for services provided to individuals on or after the date specified in the termination notice.

G. The provider shall be responsible for completing the DMAS-225 form. The provider shall notify the designated Srv Auth contractor, as appropriate, and the local department of social services, in writing, when any of the following events occur. Furthermore, it shall be the responsibility of the designated Srv Auth contractor to also update DMAS, as requested, when any of the following events occur:

1. Home and community-based waiver services are implemented;

2. A waiver individual dies;

3. A waiver individual is discharged from the provider's EDCD Waiver services;

4. Any other events (including hospitalization) that cause home and community-based waiver services to cease or be interrupted for more than 30 consecutive calendar days; or

5. The initial selection by the waiver individual or family/caregiver family or caregiver of a provider to provide services, or a change by the waiver individual or family/caregiver family or caregiver of a provider, if it affects the individual's patient pay amount.

H. Changes or termination of services.

1. The provider may decrease the amount of authorized care if the revised POC is appropriate and based on the medical needs of the waiver individual. The participating provider shall collaborate with the waiver individual or the family/caregiver/EOR family, caregiver, or EOR, or both as appropriate, to develop the new POC and calculate the new hours of service delivery. The provider shall discuss the decrease in care with the waiver individual or family/caregiver/EOR family, caregiver, or EOR, document the conversation in the waiver individual's record, and notify the designated Srv Auth contractor. The Srv Auth contractor shall process the decrease request and the waiver individual shall be notified of the change by letter. This letter shall clearly state the waiver individual's right to appeal this change.

2. If a change in the waiver individual's condition necessitates an increase in care, the participating provider shall assess the need for the increase and, collaborate with the waiver individual and family/caregiver/EOR family, caregiver, or EOR, as appropriate, to develop a POC for services to meet the changed needs. The provider may implement the increase in personal/respite personal care or respite care hours without approval from DMAS, or the designated Srv Auth contractor, if the amount of services does not exceed the total amount established by DMAS as the maximum for the level of care designated for that individual on the plan of care.

3. Any increase to a waiver individual's POC that exceeds the number of hours allowed for that individual's level of care or any change in the waiver individual's level of care shall be authorized by DMAS or the designated Srv Auth contractor prior to the increase and be accompanied by adequate documentation justifying the increase.

4. In an emergency situation when either the health, safety, or welfare of the waiver individual or provider personnel is endangered, or both, DMAS, or the designated Srv Auth contractor, shall be notified prior to discontinuing services. The written notification period set out below shall not be required. If appropriate, local department of social services adult or child protective services, as may be appropriate, shall be notified immediately. Appeal rights shall be afforded to the waiver individual.

5. In a nonemergency situation, when neither the health, safety, nor welfare of the waiver individual or provider personnel is endangered, the participating provider shall give the waiver individual at least 10 calendar days' written notification (plus three days for mail transit for a total of 13 calendar days from the letter's date) of the intent to discontinue services. The notification letter shall provide the reasons for and the effective date the provider will be discontinuing services. Appeal rights shall be afforded to the waiver individual.

I. Staff education and training requirements.

1. RNs shall (i) be currently licensed to practice in the Commonwealth as an RN, or shall hold multi-state licensure privilege pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia; (ii) have at least one year of related clinical nursing experience, which may include work in an acute care hospital, public health clinic, home health agency, rehabilitation hospital, or NF, or as an LPN who worked for at least one year in one of these settings; and (iii) submit to a criminal records check and consent to a search of the VDSS Child Protective Services Central Registry if the waiver individual is a minor child. The RN shall not be compensated for services provided to the waiver individual if this record check verifies that the RN has been convicted of a barrier crime described in § 32.1-162.9:1 of the Code of Virginia or if the RN has a founded complaint confirmed by the VDSS Child Protective Services Central Registry.

2. LPNs shall work under supervision as set out in 18VAC90-20-37. LPNs shall (i) be currently licensed to practice in the Commonwealth as an LPN, or shall hold multi-state licensure privilege pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia; (ii) shall have at least one year of related clinical nursing experience, which may include work in an acute care hospital, public health clinic, home health agency, rehabilitation hospital, or NF. The LPN shall meet the qualifications and skills, prior to being assigned to care for the waiver individual, that are required by the individual's POC; and (iii) submit to a criminal records check and consent to a search of the VDSS Child Protective Services Central Registry if the waiver individual is a minor child. The LPN shall not be compensated for services provided to the waiver individual if this record check verifies that the LPN has been convicted of a barrier crime described in § 32.1-162.9:1 of the Code of Virginia or if the LPN has a founded complaint confirmed by the VDSS Child Protective Services Central Registry.

3. Personal care aides who are employed by personal care agencies that are licensed by VDH shall meet the requirements of 12VAC5-381. In addition, personal care aides shall also receive annually a minimum of 12 documented hours of agency-provided training in the performance of these services.

4. Personal care aides who are employed by personal care agencies that are not licensed by the VDH shall have completed an educational curriculum of at least 40 hours of study related to the needs of individuals who are either elderly or who have disabilities, as ensured by the provider prior to being assigned to the care of an individual, and shall have the required skills and training to perform the services as specified in the waiver individual's POC and related supporting documentation.

a. Personal care aides' required initial (that is, at the onset of employment) training, as further detailed in the applicable provider manual, shall be met in one of the following ways: (i) registration with the Board of Nursing as a certified nurse aide; (ii) graduation from an approved educational curriculum as listed by the Board of Nursing; or (iii) completion of the provider's educational curriculum, which must be a minimum of 40 hours in duration, as taught by an RN who meets the same requirements as the RN listed in subdivision 1 of this subsection.

b. In addition, personal care aides shall also be required to receive annually a minimum of 12 documented hours of agency-provided training in the performance of these services.

5. Personal care aides shall:

a. Be at least 18 years of age or older;

b. Be able to read and write English to the degree necessary to perform the expected tasks and create and maintain the required documentation;

c. Be physically able to perform the required tasks and have the required skills to perform services as specified in the waiver individual's supporting documentation;

d. Have a valid social security number that has been issued to the personal care aide by the Social Security Administration;

e. Submit to a criminal records check and, if the waiver individual is a minor, consent to a search of the VDSS Child Protective Services Central Registry. The aide shall not be compensated for services provided to the waiver individual effective the date in which the record check verifies that the aide has been convicted of barrier crimes described in § 32.1-162.9:1 of the Code of Virginia or if the aide has a founded complaint confirmed by the VDSS Child Protective Services Central Registry;

f. Understand and agree to comply with the DMAS EDCD Waiver requirements; and

g. Receive tuberculosis (TB) screening as specified in the criteria used by the VDH.

6. Consumer-directed personal care attendants shall:

a. Be 18 years of age or older;

b. Be able to read and write in English to the degree necessary to perform the tasks expected and create and maintain the required documentation;

c. Be physically able to perform the required tasks and have the required skills to perform consumer-directed services as specified in the waiver individual's supporting documentation;

d. Have a valid social security number that has been issued to the personal care attendant by the Social Security Administration;

e. Submit to a criminal records check and, if the waiver individual is a minor, consent to a search of the VDSS Child Protective Services Central Registry. The attendant shall not be compensated for services provided to the waiver individual effective the date in which the record check verifies that the attendant has been convicted of barrier crimes described in § 32.1-162.9:1 of the Code of Virginia or if the attendant has a founded complaint confirmed by the VDSS Child Protective Services Central Registry;

f. Understand and agree to comply with the DMAS EDCD Waiver requirements;

g. Receive tuberculosis (TB) screening as specified in the criteria used by the VDH; and

h. Be willing to attend training at the individual's or family/caregiver's family or caregiver's request.

12VAC30-122-125. Electronic visit verification.

A. Except as specified in subsection B of this section, the requirements of 12VAC30-60-65 shall apply for personal care services, respite care services, and companion services.

B. EVV requirements shall not apply to respite care services provided by a DBHDS-licensed provider in a DBHDS-licensed program site, such as a group home or sponsored residential home or a supervised living, supported living, or similar facility or location licensed to provide respite care services as permitted by the Centers for Medicare and Medicaid Services.

VA.R. Doc. No. R19-5467; Filed December 18, 2019, 10:31 a.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Fast-Track Regulation

Titles of Regulations: 12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-181, 12VAC30-60-185).

12VAC30-70. Methods and Standards for Establishing Payment Rates - Inpatient Hospital Services (adding 12VAC30-70-418).

12VAC30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-32).

12VAC30-130. Amount, Duration and Scope of Selected Services (amending 12VAC30-130-5010 through 12VAC30-130-5150).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 19, 2020.

Effective Date: March 5, 2020.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia authorizes the Board of Medical Assistance Services to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia grants the Director of the Department of Medical Assistance Services (DMAS) the authority of the board when it is not in session. The Medicaid authority established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Purpose: These changes are essential to protect the health, safety, and welfare of citizens because they clarify existing rules for the addiction and recovery treatment services (ARTS) program to make it easier for providers to understand program rules and to make these services more accessible to Medicaid members.

Rationale for Using Fast-Track Rulemaking Process: These regulations are expected to be noncontroversial. The initial ARTS regulations were noncontroversial, and they implemented new substance use programs. These updates do not restrict services or negatively impact providers or Medicaid members. Instead, these updates provide clarification to answer questions raised by providers since the initial ARTS implementation.

Substance: The changes in this regulatory package streamline, simplify, and clarify existing requirements for ARTS services and ARTS providers. The changes include:

1. Changing references from "the BHSA," which means the behavioral health services administrator, to "DMAS or its contractor" because the BHSA contract will be ending.

2. Correcting outdated citations.

3. Clarifying the roles and responsibilities of credentialed addiction treatment professionals (CATPs), certified substance abuse counselors (CSACs), certified substance abuse counselor-assistants (CSAC-As), and certified substance abuse counselor-supervisees (CSAC-supervisees). CATPs are licensed or registered with various boards through the Department of Health Professions, while CSACs, CSAC-As, and CSAC-supervisees are lower-level staff who are certified through the Board of Counseling. Defining these roles allows lower-level staff to perform tasks appropriate to their skill level, which frees up CATPs to perform higher-level skills. The Board of Counseling recently posted a guidance document that reflects this change, and DMAS seeks to match its requirements to the requirements of the Board of Counseling.

4. Providing additional clarity on substance use disorder counseling, psychotherapy, and counseling. Substance use disorder counseling can be provided by a CSAC as part of a CSAC's scope of practice as defined by the Board of Counseling, while psychotherapy and counseling may only be provided by licensed staff.

5. Providing additional clarity about medication assisted treatment (MAT). The Centers for Medicare and Medicaid Services (CMS) requires Medicaid agencies to assess members to determine if they need MAT, and requires MAT to be provided onsite or through referral in intensive outpatient, partial hospitalization, and residential levels of care. "States Shall Demonstrate Sufficient Provider Capacity at Critical Levels of Care including for Medication Assisted Treatment for OUD," a CMS guidance document explaining this requirement, can be accessed at https://www.medicaid.gov/federal-policy-guidance
/downloads/smd17003.pdf
.

6. Clarifying the telemedicine definition to include the requirements of a 2014 Medicaid memo to providers. The definition of "face-to-face" was broadened to include the use of telemedicine so that telemedicine can be used to provide ARTS services. The 2014 memo can be accessed at https://www.virginiamedicaid.dmas.virginia.gov/wps/portal/MedicaidMemostoProviders and searching for the memo dated May 13, 2014.

7. Removing the hard limits on intensive outpatient treatment in compliance with the Mental Health Parity and Addiction Equity Act (Public Law 110-343).

8. In response to a public comment received during the original implementation of the ARTS program, clarifying that drug screening may be conducted using urine or blood serums.

Issues: The primary advantage of these regulatory changes to the public and the agency is that they streamline and simplify existing requirements for ARTS services and provide additional clarity to ARTS providers. There are no disadvantages to the public, the agency, or the Commonwealth as a result of these changes.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Director of the Department of Medical Assistance Services (DMAS) proposes to update this regulation to reflect the changes that have already occurred in the provision of Addiction and Recovery Treatment Services (ARTS).

Background. The ARTS program provides a comprehensive continuum of addiction and recovery treatment services, including inpatient withdrawal management services, residential treatment services, partial hospitalization, intensive outpatient treatment, outpatient treatment, and peer recovery supports.

According to DMAS, in the last several years there have been changes in a number of laws, regulations, and guidance from other entities that have affected how the ARTS program operates. For example, the Board of Counseling and the Board of Medicine have amended the scope of practice for the professions they regulate who provide services to ARTS recipients. Similarly, the federal Centers for Medicare and Medicaid Services has issued a Parity Rule that affected the service limits in this program and guidance on certain terms used in this regulation.

Estimated Benefits and Costs. The proposed amendments update the regulation to reflect the changes that have occurred in this program due to external laws, regulations, and guidance.2 The proposed amendments also make clarifying changes to language that has prompted questions from providers of addiction and recovery treatment services.

Since the proposed amendments simply reflect the changes on how the ARTS program currently operates, no significant economic effect is expected other than improving the clarity of the rules this program currently operates under.

Businesses and Other Entities Affected. This regulation primarily applies to 3,465 ARTS providers and the Medicaid clients they serve.

Localities3 Affected.4 The proposed amendments should not affect any locality more than others. The proposed amendments do not appear to introduce costs for local governments.

Projected Impact on Employment. The proposed amendments would not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments would not affect the use and value of private property.

Adverse Effect on Small Businesses.5 The proposed amendments do not adversely affect small businesses.

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2The references to external laws, regulations, and guidance can be found at https://townhall.virginia.gov/L/GetFile.cfm?File=64\5229\8540\AgencyStatement_DMAS_8540_vA.pdf

3"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

4§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

5Pursuant 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."

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

The amendments clarify and update the requirements for providers of Addiction and Recovery Treatment Services (ARTS) Program services to Medicaid members, including (i) updating citations and terminology; (ii) clarifying roles for professionals who provide various addiction treatments; (iii) specifying that medical assisted treatment must be provided onsite or through referral in intensive outpatient, partial hospitalization, and residential levels of care pursuant to the Centers for Medicare and Medicaid Services requirements; (iv) including telemedicine in the definition of "face-to-face" for purposes of providing ARTS services; (v) removing hard limits on intensive outpatient treatment; and (vi) clarifying that drug screening can be done by testing urine or blood serums.

12VAC30-60-181. Utilization review of addiction, and recovery, and treatment services.

A. Providers shall be required to maintain documentation detailing all relevant information about the Medicaid individuals who are in the provider's care. Such documentation shall fully disclose the extent of services provided in order to support provider's claims for reimbursement for services rendered. This documentation shall be written and dated at the time the services are rendered. Claims that are not adequately supported by appropriate up-to-date documentation may be subject to recovery of expenditures.

B. Utilization reviews shall be conducted by the Department of Medical Assistance Services or its designated contractor.

C. Service authorizations shall be required for American Society of Addiction Medicine (ASAM) Levels 2.1, 2.5, 3.1, 3.3, 3.5, 3.7, and 4.0.

D. A multidimensional assessment by a credentialed addiction treatment professional (CATP), as defined in 12VAC30-130-5020, shall be required for ASAM Levels 1.0 through 4.0. Certified substance abuse counselors (CSACs) are able to complete a multidimensional assessment to make recommendations for an ASAM level of care, which shall be signed and dated by a CATP within one business day. The multidimensional assessment shall be maintained in the individual's record by the provider. Medical necessity for all ASAM levels of care shall be based on the outcome of the individual's multidimensional assessment.

E. Individual service plans (ISPs) and treatment plans shall be developed upon admission to medically managed intensive inpatient services (ASAM Level 4.0), substance use residential and inpatient services (ASAM Levels 3.1, 3.3, 3.5, and 3,7) 3.7), and substance use intensive outpatient and partial hospitalization programs (ASAM Levels 2.1 and 2.5). ISPs or treatment plans shall be developed upon initiation of opioid treatment services (OTP) and, office-based opioid treatment (OBOT);, and substance use outpatient services (ASAM Level 1.0).

1. The provider shall include the individual and the family or caregiver, as may be appropriate, in the development of the ISP or treatment plan. To the extent that the individual's condition requires assistance for participation, assistance shall be provided. The ISP shall be updated at least annually and as the individual's needs and progress change. An ISP that is not updated either annually or as the individual's needs and progress change shall be considered outdated.

2. All ISPs shall be completed and contemporaneously signed and dated by the credentialed addiction treatment professional CATP preparing the ISP. For ASAM Levels 3.1, 3.3, and 3.5, the ISP may be completed by a CSAC if the CATP signs and dates the ISP within one business day.

3. The child's or adolescent's ISP shall also be signed by the parent or legal guardian, and the adult individual shall sign his own ISP. If the individual, whether a child, adolescent, or adult, is unwilling or unable to sign the ISP, then the service provider shall document the reasons why the individual was not able or willing to sign the ISP.

F. A comprehensive ISP, as defined in 12VAC30-50-226 12VAC30-130-5020, shall be fully developed within 30 calendar days of the initiation of services. The comprehensive ISP shall be developed with the individual, in consultation with the individual's family, as appropriate, and shall address (i) a summary or reference to the individual's identified needs; (ii) short-term and long-term goals and measurable objectives for addressing each identified individually specific need; (iii) services and supports and frequency of services to accomplish the goals and objectives; (iv) target dates for accomplishment of goals and objectives; (v) estimated duration of service; (vi) medication assisted treatment assessment, which shall be provided onsite or through referral; and (vi) (vii) the role or roles of other agencies if the plan is a shared responsibility and the staff designated as responsible for the coordination and integration of services. The ISP shall be reviewed at least every 90 calendar days and shall be modified as the needs and progress of the individual changes change. Documentation of the ISP review shall include the dated signatures of the credentialed addiction treatment professional CATP and the individual. CSACs may perform the ISP reviews in ASAM Levels 3.1, 3.3, and 3.5 if a CATP signs and dates the ISP review within one business day.

G. Progress notes, as defined in 12VAC30-50-130 12VAC30-60-185, shall disclose the extent of services provided and corroborate the units billed. Claims not supported by corroborating progress notes may be subject to recovery of expenditures. Each progress note shall be individualized to the member to demonstrate the individual member's particular circumstances, treatment, and progress. Claim payments shall be retracted for services that are not supported by documentation that is individualized to the member.

H. Documentation shall include assessment and referral for medication assisted treatment as medically indicated.

12VAC30-60-185. Utilization review of substance use case management.

A. Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

"Face-to-face" means the same as that term is defined in 12VAC30-130-5020.

"Individual service plan" or "ISP" means the same as the term is defined in 12VAC30-50-226 12VAC30-130-5020.

"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 and are part of the minimum documentation requirements that convey the individual's status, staff intervention, 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 units or hours required to deliver the service. The content of each progress note shall corroborate the time/units time or units billed for each rendered service. Progress notes shall be documented for each service that is billed.

"Register" or "registration" means notifying the Department of Medical Assistance Services or its contractor that an individual will be receiving services that do not require service authorization, such as outpatient services for substance use disorders or substance use case management.

B. Utilization review: substance use case management services.

1. The Medicaid enrolled individual shall meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for a substance use disorder. Tobacco-related disorders or caffeine-related disorders and nonsubstance-related non-substance-related disorders shall not be covered.

2. Reimbursement shall be provided only for "active" case management. An active client for substance use case management shall mean an individual for whom there is a current substance use individual service plan (ISP) in effect that requires a minimum of two distinct substance use case management activities being performed each calendar month and at a minimum one face-to-face client contact at least every 90-calendar-day period.

3. Billing can be submitted for an active recipient only for months in which a minimum of two distinct substance use case management activities are performed.

4. An ISP shall be completed within 30 calendar days of initiation of this service with the individual in a person-centered manner and shall document the need for active substance use case management before such case management services can be billed. The ISP shall require a minimum of two distinct substance use case management activities being performed each calendar month and a minimum of one face-to-face client contact at least every 90 calendar days. The substance use case manager shall review the ISP with the individual at least every 90 calendar days for the purpose of evaluating and updating the individual's progress toward meeting the individualized service plan objectives.

5. The ISP shall be reviewed with the individual present, and the outcome of the review shall be documented in the individual's medical record.

C. Utilization review: substance use case management services.

1. Utilization review general requirements. Utilization reviews shall be conducted by DMAS or its designated contractor. Reimbursement shall be provided only when there is an active ISP and, a minimum of two distinct substance use case management activities are performed each calendar month, and there is a minimum of one face-to-face client contact at least every 90-calendar-day period. Billing can be submitted only for months in which a minimum of two distinct substance use case management activities are performed within the calendar month.

2. In order to receive reimbursement, providers shall register this service with the managed care organization or the behavioral health services administration DMAS contractor, as required, within one business day of service initiation to avoid duplication of services and to ensure informed and seamless care coordination between substance use treatment and substance use case management providers.

3. The Medicaid eligible individual shall meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for a substance use disorder with the exception of tobacco-related disorders or caffeine-related disorders and nonsubstance-related non-substance-related disorders.

4. Substance use case management shall not be billed for individuals in institutions for mental disease, except during the month prior to discharge to allow for discharge planning, limited to two months within a 12-month period. Substance use case management shall not be billed concurrently with any other type of Medicaid reimbursed case management and care coordination.

5. The ISP, as defined in 12VAC30-50-226 12VAC30-130-5020, shall document the need for substance use case management and be fully completed within 30 calendar days of initiation of the service, and the substance use case manager shall review the ISP at least every 90 calendar days. Such reviews shall be documented in the individual's medical record. If needed, a grace period will be granted following the date of the last review. When the review is completed in a grace period, the next subsequent review shall be scheduled 90 calendar days from the date the review was initially due and not the date of actual review.

6. The ISP shall be updated and documented in the individual's medical record at least annually and as an individual's needs change.

7. The provider of substance use case management services shall be licensed by the Department of Behavioral Health and Developmental Services as a provider of substance use case management and credentialed by the behavioral health services administration DMAS contractor or the managed care organization as a provider of substance use case management services.

8. Progress notes, as defined in subsection A of this section, shall be required to disclose the extent of services provided and corroborate the units billed.

12VAC30-70-418. Reimbursement for residential and inpatient substance use treatment services.

A. The following substance use disorder treatment services for adults and adolescents are provided in a residential or inpatient setting: (i) clinically managed population-specific high intensity residential service (ASAM Level 3.3); (ii) clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5); (iii) medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7); and (iv) medically managed intensive inpatient services (ASAM Level 4.0).

B. If one of the services in subsection A of this section is furnished to an individual in a freestanding psychiatric hospital or inpatient psychiatric unit of an acute care hospital, reimbursement shall be based on the hospital reimbursement described in 12VAC30-70-241 and the reimbursement of services provided under the arrangement described in 12VAC30-80.

C. If one of the services in subsection A of this section is furnished to an individual in an appropriately licensed residential setting, reimbursement shall be based on the psychiatric residential treatment facility (Level C) reimbursement described in 12VAC30-70-417.

12VAC30-80-32. Reimbursement for substance use disorder services.

A. Physician services described in 12VAC30-50-140, other licensed practitioner services described in 12VAC30-50-150, and clinic services described in 12VAC30-50-180 for assessment and evaluation or treatment of substance use disorders shall be reimbursed using the methodology in 12VAC30-80-30 and 12VAC30-80-190 subject to the following reductions for psychotherapy services for other licensed practitioners.

1. Psychotherapy and substance use disorder counseling services of licensed clinical psychologists shall be reimbursed at 90% of the reimbursement rate for psychiatrists.

2. Psychotherapy and substance use disorder counseling services provided by independently enrolled licensed clinical social workers, licensed professional counselors, licensed marriage and family therapists, licensed psychiatric nurse practitioners, licensed substance abuse treatment practitioners, or licensed registered clinical nurse specialists-psychiatric shall be reimbursed at 75% of the reimbursement rate for licensed clinical psychologists.

3. The same rates shall be paid to governmental and private providers. These services are reimbursed based on the Common Procedural Terminology codes and Healthcare Common Procedure Coding System codes. The agency's rates were set as of July 1, 2007, and are updated as described in 12VAC30-80-190. All rates are published on the Department of Medical Assistance Services (DMAS) website at www.dmas.virginia.gov http://www.dmas.virginia.gov.

B. Rates for the following addiction and recovery treatment services (ARTS) physician and clinic services preferred office-based opioid treatment (OBOT) services and opioid treatment programs shall be based on the agency fee schedule: (i) initiation of medication assisted treatment induction with a visit unit of service; (ii) individual and group opioid treatment service substance use disorder counseling and psychotherapy with a 15-minute unit of service; and (iii) substance use care coordination with a monthly unit of service. The agency's rates shall be set as of April 1, 2017. The Medicaid and commercial rates for similar services as well as the cost for providing services shall be considered when establishing the fee schedules so that payments shall be consistent with economy, efficiency, and quality of care. The same rates shall be paid to public and private providers. All rates are published on the DMAS website at www.dmas.virginia.gov http://www.dmas.virginia.gov.

C. Community ARTS rehabilitation services. Per diem rates for clinically managed low intensity residential services (ASAM Level 3.1), partial hospitalization (ASAM Level 2.5), and intensive outpatient services (ASAM Level 2.1) for ARTS shall be based on the agency fee schedule. The Medicaid and commercial rates for similar services as well as the cost for providing services shall be considered when establishing the fee schedules so that payments shall be consistent with economy, efficiency, and quality of care. The same rates shall be paid to governmental and private providers. The agency's rates shall be set as of April 1, 2017, and are effective for services on or after that date. All rates are published on the DMAS website at: www.dmas.virginia.gov http://www.dmas.virginia.gov.

D. Reimbursement for all clinically managed low intensity residential (ASAM Level 3.1) services shall be based on the therapeutic group home (Level B) reimbursement described in 12VAC30-80-30.

E. ARTS federally qualified health center or rural health clinic services (ASAM Level 1.0) for assessment and evaluation or treatment of substance use disorder, as described in 12VAC30-130-5000 et seq., shall be reimbursed using the methodology described in 12VAC30-80-25.

E. F. Substance use case management services. Substance use case management services, as described in 12VAC30-50-491, shall be reimbursed a monthly rate based on the agency fee schedule. The Medicaid and commercial rates for similar services as well as the cost for providing services shall be considered when establishing the fee schedules so that payment shall be consistent with economy, efficiency, and quality of care. The same rates shall be paid to governmental and private providers. The agency's rates shall be set as of April 1, 2017, and are effective for services on or after that date. All rates are published on the DMAS website at www.dmas.virginia.gov http://www.dmas.virginia.gov.

F. G. Peer support services. Peer support services as described in 12VAC30-130-5160 through 12VAC30-130-5210 furnished by enrolled providers or provider agencies as described in 12VAC30-130-5190 shall be reimbursed based on the agency fee schedule for 15-minute units of service. The agency's rates set as of July 1, 2017, are effective for services on or after that date. All rates are published on the DMAS website at: www.dmas.virginia.gov http://www.dmas.virginia.gov.

12VAC30-130-5010. Addiction and recovery treatment services; purpose.

The purpose of this part shall be to establish coverage of treatment for substance use disorders as defined in the American Society of Addiction Medicine (ASAM) Criteria: Treatment Criteria for Addictive, Substance-Related and Co-Occurring Conditions, Third Edition, as published by the American Society of Addiction Medicine including outpatient physician, nurse practitioner, and clinic services, that include evidence-based medication assisted treatment, intensive outpatient services, partial hospitalization services, residential treatment services, and inpatient withdrawal management services as defined in 12VAC30-130-5040 through 12VAC30-130-5150.

12VAC30-130-5020. Definitions.

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

"Abstinence" means the intentional and consistent restraint from the pathological pursuit of reward or relief, or both, that involves the use of substances.

"Addiction" means a primary, chronic disease of brain reward, motivation, memory, and related circuitry. Addiction is defined as the inability to consistently abstain, impairment in behavioral control, persistence of cravings, diminished recognition of significant problems with one's behaviors and interpersonal relationships, and a dysfunctional emotional response. Like other chronic diseases, addiction often involves cycles of relapse and remission. Without treatment or engagement in recovery activities, addiction is progressive and can result in disability or premature death.

"Addiction-credentialed physician" means a physician who holds a board certification in addiction medicine from the American Board of Addiction Medicine, a subspecialty board certification in addition to certification in psychiatry from the American Board of Psychiatry and Neurology, or subspecialty board certification in addiction medicine from the American Osteopathic Association. DMAS also recognizes physicians with the DATA 2000 buprenorphine waiver and physicians treating addiction who have specialty training or experience in addiction medicine or addiction psychiatry. If treating adolescents, "addiction-credentialed physician" means an addiction-credentialed physician who also has experience and specialty training with adolescent medicine.

"Adherence" means the individual receiving treatment has demonstrated his ability to cooperate with, follow, and take personal responsibility for the implementation of his treatment plans.

"Adolescent" means an individual from 12 years of age to 20 years of age.

"Allied health professional" means counselor aides or group living workers who meet the DBHDS licensing requirements for unlicensed staff in residential settings.

"ARTS" means addiction and recovery treatment services.

"ARTS care coordinator" means an employee of DMAS, its contractor, or an MCO who is a licensed practitioner of the healing arts, including a physician or medical director, licensed clinical psychologist, licensed clinical social worker, licensed professional counselor, licensed substance abuse treatment practitioner, licensed marriage and family therapist, nurse practitioner, or registered nurse with two years of clinical experience in the treatment of substance use disorders. The ARTS care coordinator performs independent assessments of requests for all ARTS intensive outpatient programs (ASAM Level 2.1); partial hospitalization programs (ASAM Level 2.5); residential treatment services (ASAM Levels 3.1, 3.3, 3.5, and 3.7); and inpatient services (ASAM Level 3.7 and 4.0).

"ASAM" means the American Society of Addiction Medicine.

"ASAM criteria" means the six different life areas used by the ASAM Patient Placement Criteria to develop a holistic biopsychosocial assessment of an individual that is used for service planning, level of care, and length of stay treatment decisions.

"Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS. The 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. DMAS shall retain authority for and oversight of the BHSA entity or entities.

"BHA" means behavioral health authority.

"Biomedical" means biological or physical aspects of a member's condition that require assessment and services that are delivered by appropriately credentialed medical staff, who are available to assess and treat co-occurring biomedical disorders that may be the result of, or independent of, a substance use disorder.

"Buprenorphine-waivered practitioners" practitioner" means a health care providers provider licensed under Virginia law and registered with the Drug Enforcement Administration (DEA) to prescribe Schedule III, IV, or V medications for treatment of pain. Physicians shall have completed the buprenorphine waiver training course and obtained the waiver to prescribe or dispense buprenorphine for opioid use disorder required under More specifically, a buprenorphine-waivered physician has obtained the buprenorphine waiver through the Drug Addiction Treatment Act of 2000 (DATA 2000). They shall have been issued a DEA-X number by the DEA to prescribe buprenorphine for the treatment of opioid use disorder. Practitioners who are not physicians must meet, while a buprenorphine-waivered nurse practitioner or physician assistant has obtained the buprenorphine waiver through DATA 2000. A buprenorphine-waivered practitioner meets all federal and state requirements and be is supervised by or work works in collaboration with a qualifying physician who is buprenorphine waivered. in accordance with the applicable regulatory board. In accordance with § 54.1-2957 of the Code of Virginia, a nurse practitioner may practice without a written or electronic practice agreement with a qualifying physician. All buprenorphine-waivered practitioners have a DEA-X number to prescribe buprenorphine for the treatment of opioid use disorder.

"Care coordination" means collaboration and sharing of information among health care providers who are involved with an individual's health care to improve assist in improving the care of the individual. This includes e-consultations from primary care providers to specialists.

"Certified substance abuse counselor" or "CSAC" means the same as that term is defined in § 54.1-3507.1 of the Code of Virginia.

"Certified substance abuse counseling assistant" or "CSAC-A" means the same as that term is defined in § 54.1-3507.2 of the Code of Virginia.

"Certified substance abuse counselor-supervisee" means an individual who has completed the educational requirements described in clause (i) of § 54.1-3507.1 C of the Code of Virginia, but who has not completed the practice hours described in clause (ii) of § 54.1-3507.1 C of the Code of Virginia.

"Child" means an individual from birth up to 12 years of age.

"Clinical experience" means, for the purpose of these ARTS requirements, practical experience in providing direct services to individuals with diagnoses of substance use disorder. Clinical experience shall include supervised internships, supervised practicums, or supervised field experience. Clinical experience shall not include unsupervised internships, unsupervised practicums, and unsupervised field experience.

"Co-occurring disorders" means the presence of concurrent substance use disorder and mental illness without implication as to which disorder is primary and which secondary, which disorder occurred first, or whether one disorder caused the other. Other terms used to describe co-occurring disorders include "dual diagnosis,'' "dual disorders,'' "mentally ill chemically addicted (MICA)," "chemically addicted mentally ill (CAMI),'' "mentally ill substance abusers (MISA),'' "mentally ill chemically dependent (MICD),'' "concurrent disorders,'' "coexisting disorders,'' "comorbid disorders,'' and "individuals with co-occurring psychiatric and substance symptomatology (ICOPSS)."

"Counseling" means the same as that term is defined in § 54.1-3500 of the Code of Virginia.

"Credentialed addiction treatment professionals" professional" or "CATP" means an individual licensed or registered with the appropriate board in the following roles: (i) an addiction-credentialed physician or physician with experience or training in addiction medicine; (ii) physician extenders with experience or training in addiction medicine; (iii) a licensed psychiatrist; (iii) (iv) a licensed clinical psychologist; (iv) (v) a licensed clinical social worker; (v) (vi) a licensed professional counselor; (vi) (vii) a licensed certified psychiatric clinical nurse specialist; (vii) (viii) a licensed psychiatric nurse practitioner; (viii) (ix) a licensed marriage and family therapist; (ix) (x) a licensed substance abuse treatment practitioner; (x) residents (xi) a resident who is under the supervision of a licensed professional counselor (18VAC115-20-10), licensed marriage and family therapist (18VAC115-50-10), or licensed substance abuse treatment practitioner (18VAC115-60-10) and in a residency approved by is registered with the Virginia Board of Counseling; (xi) residents (xii) a resident in psychology who is under supervision of a licensed clinical psychologist and in a residency approved by is registered with the Virginia Board of Psychology (18VAC125-20-10); (xii) supervisees or (xiii) a supervisee in social work who is under the supervision of a licensed clinical social worker approved by and is registered with the Virginia Board of Social Work (18VAC140-20-10); or (xiii) an individual with certification as a substance abuse counselor (CSAC) (18VAC115-30-10) or certification as a substance abuse counseling-assistant (CSAC-A) (18VAC115-30-10) under supervision of licensed provider and within his scope of practice, as described in §§ 54.1-3507.1 and 54.1-3507.2 of the Code of Virginia.

"CSB" means community services board.

"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.

"DHP" means the Department of Health Professions.

"DMAS" or "the department" 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.

"Evidence-based" means an empirically-supported clinical practice or intervention with a proven ability to produce positive outcomes.

"Face-to-face" means encounters that occur in person or through telemedicine.

"FAMIS" means the Family Access to Medical Insurance Security Plan as set out in 12VAC30-141.

"FQHC" means federally qualified health center.

"Individual" means the patient, client, beneficiary, or member who receives services set out in 12VAC30-130-5000 et seq. These terms are used interchangeably.

"Individual service plan" or "ISP" means the same as the term is defined in 12VAC30-50-226. an initial and comprehensive treatment plan that is regularly updated and specific to an individual's unique treatment needs as identified in the assessment. An ISP contains an individual's treatment or training needs, the individual's goals and measureable objectives to meet the identified needs, services to be provided with the recommended frequency to accomplish the measurable goals and objectives, and an individualized discharge plan that describes transition to other appropriate services. An individual is included in the development of the ISP, and the ISP is signed by the individual. If the individual is a minor, the ISP is also signed by the individual's parent or legal guardian. An ISP includes documentation if the individual is a minor child or an adult who lacks legal capacity and is unable or unwilling to sign the ISP.

"Induction phase" means the medically monitored initiation of buprenorphine, buprenorphine and naloxone, naltrexone, or methadone treatment performed in a qualified practitioner's office or licensed OTP. The goal of the induction phase is to find the individual's ideal dose of buprenorphine, buprenorphine and naloxone, naltrexone, or methadone. The ideal dose minimizes both side effects and drug craving.

"Licensed practical nurse" means a professional who is licensed by the Commonwealth as a practical nurse or holds a multistate licensure privilege to practice practical nursing according to 18VAC90-19-80.

"Managed care organization" or "MCO" meansan organization that offers managed care health insurance plans (MCHIP), as defined by § 38.2-5800 of the Code of Virginia, which means an arrangement for the delivery of health care in which a health carrier undertakes to provide, arrange for, pay for, or reimburse any of the costs of health care services for a covered person on a prepaid or insured basis that (i) contains one or more incentive arrangements, including any credentialing requirements intended to influence the cost or level of health care services between the health carrier and one or more providers with respect to the delivery of health care services and (ii) requires or creates benefit payment differential incentives for covered persons to use providers that are directly or indirectly managed, owned, under contract with, or employed by the health carrier.

"Medication assisted treatment" or "MAT" means the same as that term is defined in 42 CFR 8.2.

"Multidimensional assessment" or "assessment" means the individualized, person-centered biopsychosocial assessment performed face-to-face, in which the provider obtains comprehensive information from the individual (including, and family members and significant others as needed) needed, including history of the present illness; family history; developmental history; alcohol, tobacco, and other drug use or addictive behavior history; personal/social personal or social history; legal history; psychiatric history; medical history; spiritual history as appropriate; review of systems; mental status exam; physical examination; formulation and diagnoses; survey of assets, vulnerabilities and supports; and treatment recommendations. The ASAM multidimensional assessment is a theoretical framework for this individualized, person-centered assessment that includes the following six dimensions: (i) acute intoxication or likelihood of withdrawal potential, or both; (ii) biomedical medical conditions and complications, both historical and current; (iii) emotional, behavioral, or cognitive conditions status and complications any identified issues; (iv) an individual's readiness to change; (v) risks for relapse, or continued use, or continued problem potential; and (vi) recovery or living home environment. The level of care determination, ISP, and recovery strategies development may be based upon this multidimensional assessment.

"Office-based opioid treatment" or "OBOT" means addiction treatment services for individuals with moderate to severe opioid use disorder provided by buprenorphine-waivered practitioners working in collaboration with credentialed addiction treatment practitioners providing psychosocial counseling in public and private practice settings.

"Opiate" means one of a group of alkaloids derived from the opium poppy (Papaver somniferum) that has the ability to induce analgesia, euphoria, and, in higher doses, stupor, coma, and respiratory depression but excludes synthetic opioids.

"Opioid" means any psychoactive chemical that resembles morphine in pharmacological effects, including opiates and synthetic/semisynthetic synthetic or semisynthetic agents that exert their effects by binding to highly selective receptors in the brain where morphine and endogenous opioids affect their actions.

"Opioid treatment program" or "OTP" means a program certified by the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) that engages in supervised assessment and treatment, using methadone, buprenorphine, L-alpha acetyl methadol, or naltrexone, of individuals who are addicted to opioids the same as that term is defined in 42 CFR 8.2.

"Opioid treatment services" or "OTS" means preferred office-based opioid treatment (OBOT) and opioid treatment programs OTPs that encompass a variety of pharmacological and nonpharmacological treatment modalities, including substance use disorder counseling and psychotherapy.

"Overdose" means the inadvertent or deliberate consumption of a dose of a chemical substance much larger than either habitually used by the individual or ordinarily used for treatment of an illness that is likely to result in a serious toxic reaction or death.

"Physician extenders" means licensed nurse practitioners as defined in 18VAC90-30-10 § 54.1-3000 of the Code of Virginia and licensed physician assistants as defined in § 54.1-2900 of the Code of Virginia.

"Practitioner" means a provider who is permitted to prescribe buprenorphine by the scope of his licenses under federal and state law.

"Preferred office-based opioid treatment" or "preferred OBOT" means addiction treatment services for individuals with a primary opioid use disorder provided by buprenorphine-waivered practitioners working in collaboration with CATPs providing psychotherapy and substance use disorder counseling in public and private practice settings.

"Program of assertive community treatment" or "PACT" means the same as that term is defined in 12VAC35-105-20.

"Psychoeducation" means (i) a specific form of education aimed at helping individuals who have a substance use disorder or mental illness and their family members or caregivers to access clear and concise information about substance use disorders or mental illness and (ii) a way of accessing and learning strategies to deal with substance use disorders or mental illness and its effects in order to design effective treatment plans and strategies.

"Psychotherapy" or "therapy" means the use of psychological methods in a professional relationship to assist a person to acquire great human effectiveness or to modify feelings, conditions, attitudes, and behaviors that are emotionally, intellectually, or socially ineffectual or maladaptive.

"Recovery" means a process of sustained effort that addresses the biological, psychological, social, and spiritual disturbances inherent in addiction and consistently pursues abstinence, behavior control, dealing with cravings, recognizing problems in one's behaviors and interpersonal relationships, and more effective coping with emotional responses leading to reversal of negative, self-defeating internal processes and behaviors and allowing healing of relationships with self and others. The concepts of humility, acceptance, and surrender are useful in this process.

"Registered nurse" or "RN" means a professional who is either licensed by the Commonwealth or who holds a multi-state licensure privilege to practice nursing the same as "professional nurse" is defined in § 54.1-3000 of the Code of Virginia.

"Relapse" means a process in which an individual who has established abstinence or sobriety experiences recurrence of signs and symptoms of active addiction, often including resumption of the pathological pursuit of reward or relief through the use of substances and other behaviors often leading to disengagement from recovery activities. Relapse can be triggered by exposure to (i) rewarding substances and behaviors, (ii) environmental cues to use, and (iii) emotional stressors that trigger heightened activity in brain stress circuits. The event of using or acting out is the latter part of the process, which can be prevented by early intervention.

"RHC" means rural health clinic.

"SBIRT" means screening, brief intervention, and referral to treatment. SBIRT services are an evidence-based and community-based practice designed to identify, reduce, and prevent problematic substance use disorders.

"Service authorization" means the process to approve specific services for an enrolled Medicaid, FAMIS Plus, or FAMIS individual by a DMAS service authorization or its contractor, BHSA, or an MCO 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.

"Substance use care coordinator" means staff in an OTP or preferred OBOT setting who have:

1. At least a bachelor's degree in one of the following fields: social work, psychology, psychiatric rehabilitation, sociology, counseling, vocational rehabilitation, or human services counseling, and at least either (i) one year of substance use disorder related direct experience or training or a combination of experience or training in providing services to individuals with a diagnosis of substance use disorder or (ii) a minimum of one year of clinical experience or training in working with individuals with co-occurring diagnoses of substance use disorder and mental illness; or

2. Licensure by the Commonwealth as a registered nurse with at least either (i) one year of direct experience or training or a combination of experience and training in providing services to individuals with a diagnosis of substance use disorder or (ii) a minimum of one year of clinical experience or training or a combination of experience and training in working with individuals with co-occurring diagnoses of substance use disorder and mental illness; or

3. Certification as a CSAC or a CSAC-A.

"Substance use case management" means the same as set out in 12VAC30-50-491.

"Substance use disorder" or "SUD" means a substance-related addictive disorder, as defined in the DSM-5 with the exception of tobacco-related disorders and non-substance-related disorders, marked by a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues to use, is seeking treatment for the use of, or is in active recovery from the use of alcohol, tobacco, or other drugs despite significant related problems.

"Substance use disorder counseling" means the same as "substance abuse counseling" is defined in 18VAC115-30-10.

"Telemedicine" means the practice of the medical arts via electronic means rather than face-to-face the real-time, two-way transfer of medical data and information using an interactive audio-video connection for the purposes of medical diagnosis and treatment. The member is located at the originating site, while the provider renders services from a remote location via the audio-video connection. Equipment utilized for telemedicine shall be of sufficient audio quality and visual clarity as to be functionally equivalent to a face-to-face encounter for professional medical services.

"Tolerance" or "tolerate" means a state of adaptation in which exposure to a drug induces changes that result in diminution of one or more of the drug's effects over time.

"Withdrawal management" means services to assist an individual's withdrawal from the use of substances.

12VAC30-130-5030. Eligible individuals.

Children and adults who participate in Medicaid managed care plans and Medicaid fee for service and meet ASAM medical necessity criteria shall be eligible for ARTS. Notwithstanding the coverage limitations set forth in the Governor's Access Plan for the Seriously Mental Ill (GAP SMI), GAP-SMI enrollees who meet ASAM medical necessity criteria shall be eligible for ARTS with the exception of inpatient detoxification services (ASAM Level 4.0) and substance use case management.

12VAC30-130-5040. Covered services: requirements; limits; standards.

A. Addiction and recovery and treatment services.

1. In order to be covered, ARTS shall (i) meet medical necessity criteria based upon the multidimensional assessment completed by a credentialed addiction treatment professional within the scope of their practice CATP or a CSAC under the supervision of a CATP and (ii) be accurately reflected in provider medical record documentation and on providers' provider claims for services by recognized diagnosis codes that support and are consistent with the requested professional services. ARTS services require a primary substance use diagnosis, and the purpose for treatment shall be related to the substance use disorder. Individuals may have a secondary, co-occurring diagnosis. A CATP or a CSAC under the supervision of a CATP shall complete the multidimensional assessments. A CATP must sign and date assessments performed by a CSAC within one business day.

2. These ARTS services, with their service definitions, shall be covered in all levels of care: (i) medically managed intensive inpatient services (ASAM Level 4); (ii) substance use residential/inpatient residential or inpatient services (ASAM Levels 3.1, 3.3, 3.5, and 3.7); (iii) substance use intensive outpatient and partial hospitalization programs (ASAM Levels 2.1 and 2.5); (iv) opioid treatment services, (opioid treatment programs and preferred office-based opioid treatment); (v) substance use outpatient services (ASAM Level 1.0); (vi) early intervention services (ASAM Level 0.5); (vii) substance use care coordination, (viii) substance use case management services; and (ix) withdrawal management services, which shall be provided when medically necessary, as a component of the medically managed inpatient services (ASAM Level 4.0), substance use residential/inpatient services (ASAM Levels 3.3, 3.5, and 3.7), substance use intensive outpatient and partial hospitalization programs (ASAM Levels 2.1 and 2.5), opioid treatment services, opioid treatment programs and office-based opioid treatment, and substance use outpatient services (ASAM Level 1.0).

B. ARTS services shall be fully integrated with all physical health and behavioral health services for a complete continuum of care for all Medicaid individuals meeting the medical necessity criteria. In order to receive reimbursement for ARTS services, the individual shall be enrolled in Virginia Medicaid and shall meet the following medical necessity criteria:

1. The individual shall demonstrate at least one diagnosis from the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) for Substance-Related substance-related and Addictive Disorders addictive disorders, with the exception of tobacco-related disorders or caffeine-related disorders or dependence and nonsubstance-related and non-substance-related addictive disorders or be, marked by a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues to use, is seeking treatment for the use of, or is in active recovery from the use of alcohol or other drugs despite significant related problems. Individuals younger than 21 years of age may also qualify if they are assessed to be at risk for developing a substance use disorder, for youth younger than 21 years of age using the ASAM multidimensional assessment.

2. The individual shall be assessed by a certified addiction treatment professional CATP or a CSAC under the supervision of a CATP who will determine if he the individual meets the severity and intensity of treatment requirements for each service level defined by the most current version of the American Society of Addiction Medicine (ASAM) Treatment Criteria for Addictive, Substance-Related and Co-Occurring Conditions (Third Edition, 2013). Medical necessity for ASAM levels of care shall be based on the outcome of the individual's documented multidimensional assessment. The following outpatient ASAM levels of care do not require a complete multidimensional assessment using the ASAM theoretical framework to determine medical necessity but do require an assessment by a certified addiction treatment professional: opioid treatment programs, office-based opioid treatment, and substance use outpatient services (ASAM Level 1.0).

3. For individuals younger than 21 years of age who do not meet the ASAM medical necessity criteria upon initial review, a second individualized review shall be conducted to determine if the individual needs medically necessary treatment under the early periodic screening diagnosis and treatment (EPSDT) benefit described in § 1905(a) of the Social Security Act to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening.

C. Determination of medical necessity based on ASAM criteria for addiction and recovery treatment services.

1. DMAS contracted managed care organizations and the BHSA or its contractor shall employ or contract with licensed treatment professionals to apply the ASAM criteria to review and coordinate service needs when administering ARTS benefits.

2. The ARTS care coordinator or a licensed physician or medical director employed by the DMAS or its contractor or an MCO or BHSA shall perform an independent assessment of requests for all ARTS intensive outpatient services (ASAM Level 2.1), partial hospitalization services (ASAM Level 2.5), residential treatment services (ASAM Levels 3.1, 3.3, 3.5, and 3.7), and ARTS inpatient treatment services (ASAM Level Levels 3.7 and 4.0).

3. Length of treatment and service limits shall be determined by the ARTS care coordinator or a licensed physician or medical director employed by the BHSA DMAS or its contractor or an MCO who is applying the ASAM criteria.

4. "ARTS care coordinator" means a licensed practitioner of the healing arts, including a physician or medical director, licensed clinical psychologist, licensed clinical social worker, licensed professional counselor, or nurse practitioner or registered nurse with clinical experience in substance use disorders, who is employed by the BHSA or MCO to perform an independent assessment of requests for all ARTS residential treatment services and inpatient services (ASAM Levels 3.1, 3.3, 3.5, 3.7, and 4.0).

12VAC30-130-5050. Covered services: clinic services - opioid treatment program services.

A. Settings for opioid treatment program (OTP) services. The agency-based OTP provider shall be licensed by DBHDS and contracted by the BHSA DMAS or its contractor or an MCO. Opioid treatment services The staffing requirements for OTP providers shall follow the DBHDS licensing requirements set forth in 12VAC35-105-925 and in the DBHDS guidance document entitled "Opioid Medication Assisted Treatment License and Oversight" (March, 2017). The interdisciplinary team shall include CATPs acting within the scope of practice in accordance to their professional regulatory board and state and federal requirements, including an addiction-credentialed physician as defined in 12VAC30-130-5020. OTP services are allowable in allowed simultaneously for members in other ASAM Levels, including 1.0 through 3.7 (excluding inpatient services). OTP's OTPs shall meet the service components, staff requirements, and risk management requirements.

B. OTP service components.

1. Linking the individual to psychological, medical, and psychiatric consultation as necessary to meet the individual's needs.

2. Access to emergency medical and psychiatric care through connections with more intensive levels of care.

3. Access to evaluation and ongoing primary care.

4. Ability to conduct or arrange for appropriate laboratory and toxicology tests including urine drug screenings, using either urine or blood serums.

5. Licensed physicians Physicians who are available to evaluate and monitor (i) use of methadone, buprenorphine products, or naltrexone products and (ii) pharmacists and nurses to dispense and administer these medications and who follow the Board of Medicine guidance for treatment of individuals with buprenorphine for addiction.

6. Individualized, patient-centered assessment and treatment.

7. Ability to assess, order, administer, reassess, and regulate medication and dose levels appropriate to the individual; supervise withdrawal management from opioid analgesics, including methadone, buprenorphine products, or naltrexone products; and oversee and facilitate access to appropriate treatment for opioid use disorder.

8. Medication for other physical and mental health illness is provided as needed either on site onsite or through collaboration with other providers.

9. Cognitive, behavioral, and other substance use disorder-focused therapies, psychotherapies and substance use disorder counseling by a CATP reflecting a variety of treatment approaches, provided to the individual on an individual, group, or family basis. CSACs and CSAC-supervisees are recognized to provide substance use disorder counseling in these settings as allowed within scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

10. Optional substance use care coordination that includes integrating behavioral health into primary care and specialty medical settings through interdisciplinary care planning and monitoring individual progress and tracking individual outcomes; supporting conversations between buprenorphine-waivered practitioners and behavioral health professionals to develop and monitor individualized treatment plans; linking individuals with community resources to facilitate referrals and respond to social service needs; and tracking and supporting individuals when they obtain medical, behavioral health, or social services outside the practice.

11. Ability Provision of onsite screening or the ability to refer for screening for infectious diseases such as human immunodeficiency virus, hepatitis B and C, and tuberculosis at treatment initiation and then at least annually or more often based on risk factors and the ability to provide or refer for treatment of infectious diseases as necessary.

12. Onsite medication administration treatment during the induction phase, which must be provided by a physician, nurse practitioner, physician assistant, or registered nurse. Medication administration during the maintenance phase may be provided either by a registered nurse or licensed practical nurse.

13. Prescription of naloxone for each member receiving methadone, buprenorphine products, or naltrexone products.

14. Ability to provide pregnancy testing for women of childbearing age.

15. For individuals of childbearing age, the ability to provide family planning services or to refer the individual for family planning services.

C. OTP staff requirements.

1. Staff requirements shall meet the licensing requirements of 12VAC35-105-925. The interdisciplinary team shall include credentialed addiction professionals CATPs trained in the treatment of opioid use disorder, including an addiction credentialed physician or physician extender and credentialed addiction treatment professionals CATPs as defined in 12VAC30-130-5020. "Addiction-credentialed physician" means a physician who holds a board certification in addiction medicine from the American Board of Addiction Medicine, a subspecialty board certification in addiction psychiatry from the American Board of Psychiatry and Neurology, or subspecialty board certification in addiction medicine from the American Osteopathic Association. In situations where a certified addiction physician is not available, physicians treating addiction should have some specialty training or experience in addiction medicine or addiction psychiatry. If treating adolescents, they should have experience with adolescent medicine. OTPs may utilize CSACs and CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia. OTPs may also utilize CSAC-As pursuant to § 54.1-3507.2 of the Code of Virginia as well as registered peer recovery specialists within their scopes of practice. A registered peer recovery specialist shall meet the definition in § 54.1-3500 of the Code of Virginia.

2. Staff shall be knowledgeable in the assessment, interpretation, and treatment of the biopsychosocial dimensions of alcohol or other substance use disorders.

3. A physician or physician extender as defined in 12VAC30-130-5020, shall be available during medication dispensing and clinical operating hours, in person or by telephone.

D. OTP risk management shall be clearly and adequately documented in each individual's record and shall include:

1. Random urine drug screening, using either urine or blood serums, for all individuals, conducted at least eight times during a 12-month period as described in 12VAC35-105-980. Definitive screenings shall only be utilized when clinically indicated. Outcomes of the drug screening shall be used to support positive patient outcomes and recovery.

2. A check of the Virginia Prescription Monitoring Program prior to initiation of buprenorphine products or naltrexone products and at least quarterly for all individuals.

3. Prescription of naloxone.

4. Opioid overdose prevention education, including the prescribing purpose of and the administration of naloxone and the impact of polysubstance use. Education shall include discussion of the role of medication assisted treatment and the opportunity to reduce harm associated with polysubstance use. The goal is to help individuals remain in treatment to reduce the risk for harm.

5. Clinically indicated infectious disease testing for diseases such as HIV; hepatitis A, B, and C; syphilis; and tuberculosis at treatment initiation and then annually or more frequently, depending on the clinical scenario and the patient's risk. Those who test positive shall be treated either onsite or through referral.

6. For individuals without immunity to the hepatitis B virus, vaccination, either onsite or through referral, shall be offered.

7. For individuals without HIV infection, pre-exposure prophylaxis to prevent HIV infection, either onsite or through referral, shall be offered.

8. Pregnancy testing for women of childbearing age, and contraceptive services, either onsite or through referral, shall be offered.

12VAC30-130-5060. Covered services: clinic services - preferred office-based opioid treatment.

A. Office-based Preferred office-based opioid treatment (OBOT) shall be provided by a buprenorphine-waivered practitioner and may be provided in a variety of practice settings, including primary care clinics, outpatient health system clinics, psychiatry clinics, federally qualified health centers FQHCs, CSBs/BHAs CSBs, BHAs, local health department clinics, and physician offices. The practitioner shall be contracted by the BHSA DMAS or its contractor or an MCO to perform OBOT services. OBOT services shall meet the following criteria: established in this section.

1. B. OBOT service components.

a. 1. Access to emergency medical and psychiatric care.

b. 2. Affiliations with more intensive levels of care such as intensive outpatient programs and partial hospitalization programs that unstable to which individuals can be referred to when clinically indicated.

c. 3. Individualized, patient-centered multidimensional assessment and treatment.

d. 4. Assessing, ordering, administering, reassessing, and regulating medication and dose levels appropriate to the individual; supervising withdrawal management from opioid analgesics; and overseeing and facilitating access to appropriate treatment for opioid use disorder and alcohol use disorder.

e. 5. Medication for other physical and mental illnesses health disorders shall be provided as needed either on site onsite or through collaboration with other providers.

f. 6. Assurance that buprenorphine products are only dispensed onsite during the induction phase. After the induction phase, buprenorphine products shall be prescribed to the member.

7. Assurance that buprenorphine monoproduct is only prescribed in accordance with Board of Medicine rules related to the prescribing of buprenorphine for addiction.

8. Cognitive, behavioral, and other substance use disorder-focused therapies counseling and psychotherapies, reflecting a variety of treatment approaches, shall be provided to the individual on an individual, group, or family basis and shall be provided by credentialed addiction treatment professionals CATPs working in collaboration with the buprenorphine-waivered practitioner who is prescribing buprenorphine products or naltrexone products to individuals with moderate to severe a primary opioid use disorder. These therapies can be provided via telemedicine as long as they meet the department's DMAS requirements for an OBOT and for the use of telemedicine. (See the Medicaid Memo entitled "Updates to Telemedicine Coverage" dated May 13, 2014.) Preferred OBOTs may utilize CSACs and CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scope of practice as defined in § 54.1-3507.1 of the Code of Virginia.

g. 9. Substance use care coordination provided, including interdisciplinary care planning between the buprenorphine-waivered physician practitioner and the licensed behavioral health provider treatment team to develop and monitor individualized and personalized treatment plans focused on the best outcomes for the individual. This care coordination includes monitoring individual progress, tracking individual outcomes, linking the individual with community resources to facilitate referrals and respond to social service needs, and tracking and supporting the individual's medical, behavioral health, or social services received outside the practice.

h. Referral 10. Provision of onsite screening or referral for screening for clinically indicated infectious diseases such as human immunodeficiency virus, hepatitis B and C, and tuberculosis disease testing for diseases such as HIV; hepatitis A, B, and C; syphilis; and tuberculosis at treatment initiation and then at least annually or more often based on risk factors and the ability to provide or refer for treatment of infectious diseases as necessary.

11. Onsite medication administration treatment during the induction phase, which shall be provided by a physician, nurse practitioner, physician assistant, or registered nurse.

12. Ability to provide pregnancy testing for women of childbearing age.

13. For individuals of childbearing age, the ability to provide family planning services or to refer the individual for family planning services.

B. C. OBOT staff requirements.

1. Buprenorphine-waivered practitioner licensed under Virginia law who has completed one of the continuing medical education courses approved by the federal Center for Substance Abuse Treatment and obtained the waiver to prescribe or dispense buprenorphine for opioid use disorder required under the Drug Addiction Treatment Act of 2000 (21 USC § 800 et seq.). The practitioner must have a DEA-X number issued by the U.S. Drug Enforcement Agency that is included on all buprenorphine prescriptions for treatment of opioid use disorder practitioners are required.

2. Credentialed addiction treatment professionals CATPs are required and shall work in collaboration with the buprenorphine-waivered practitioner who is prescribing buprenorphine products or naltrexone products to individuals with moderate to severe a primary opioid use disorder. This collaboration can be in person or via telemedicine as long as it meets the department's requirements for the OBOT setting and for telemedicine. CSACs, CSAC-supervisees, and CSAC-As are also recognized in the preferred OBOT setting as well as registered peer recovery specialists. A registered peer recovery specialist shall meet the definition in § 54.1-3500 of the Code of Virginia.

C. D. OBOT risk management shall be documented in each individual's record and shall include:

1. Random urine drug screening, using either urine or blood serums, for all individuals, conducted at a minimum of eight times per year. Drug screenings include presumptive and definitive screenings and shall be accurately interpreted. Definitive screenings shall only be utilized when clinically indicated. Outcomes of the drug screening shall be used to support positive patient outcomes and recovery.

2. A check of the Virginia Prescription Monitoring Program prior to initiation of buprenorphine products or naltrexone products and at least quarterly for all individuals thereafter.

3. Prescription of naloxone.

4. Opioid overdose prevention education, including the prescribing purpose of and the administration of naloxone and the impact of polysubstance use. Education shall include discussion of the role of medication assisted treatment and the opportunity to reduce harm associated with polysubstance use. The goal is to help individuals remain in treatment to reduce the risk for harm.

5. Periodic monitoring of unused medication and opened medication wrapper counts when clinically indicated.

6. Clinically indicated infectious disease testing for diseases such as HIV; hepatitis A, B, and C; syphilis; and tuberculosis at treatment initiation and then annually or more frequently, depending on the clinical scenario and the patient's risk. Those individuals who test positive shall be treated either onsite or through referral.

7. For individuals without immunity to the hepatitis B virus, vaccination either onsite or through referral.

8. For patients without HIV infection, pre-exposure prophylaxis to prevent HIV infection shall be offered either onsite or through referral.

9. Women of child-bearing age shall be tested for pregnancy and shall be offered contraceptive services either onsite or through referral.

12VAC30-130-5070. Covered services: practitioner services - early intervention/screening brief intervention and referral to treatment (ASAM Level 0.5).

A. Early intervention (ASAM Level 0.5) settings for screening, brief intervention, and referral to treatment (SBIRT) services shall include health care settings, including local health departments, federally qualified health centers FQHCs, rural health clinics RHCs, CSBs/BHAs CSBs, BHAs, health systems, emergency departments, pharmacies, physician offices, and outpatient clinics. These providers Providers shall be licensed by DHP the Department of Health Professions and either directly contracted by the BHSA DMAS or its contractor or an MCO to perform the interpretation and intervention for this level of care, or shall be employed by organizations that are contracted by the BHSA DMAS or its contractor or an MCO.

B. Early intervention/SBIRT intervention or SBIRT (ASAM Level 0.5) service components shall include:

1. Identifying individuals who may have alcohol or other substance use problems using an evidence-based screening tool.

2. Following administration of the evidence-based screening tool, a brief intervention by a licensed clinician CATP acting within the scope of the CATP's practice shall be provided to educate individuals about substance use, alert these individuals to possible consequences, and, if needed, begin to motivate individuals to take steps to change their behaviors. Billing shall occur through the licensed provider or agency.

C. Early intervention/SBIRT intervention or SBIRT (ASAM Level 0.5) staff requirements. Physicians, pharmacists, and other credentialed addiction treatment professionals CATPs shall administer the evidence-based screening tool with the individual and provide the counseling and intervention. Licensed providers may delegate administration of the evidence-based screening tool to other clinical staff as allowed by their scope of practice, such as physicians delegating administration of the tool to a CSAC, a CSAC-supervisee, a licensed registered nurse, or a licensed practical nurse, but the licensed provider shall review the tool with the individual and provide the counseling and intervention. The physician may delegate the counseling and intervention but shall be available for review as needed. Billing for SBIRT shall occur through the licensed provider or agency.

12VAC30-130-5080. Covered services: outpatient services - physician services (ASAM Level 1.0).

A. Outpatient services (ASAM Level 1.0) shall be provided by a credentialed addiction treatment professional, psychiatrist, or physician CATP contracted by the BHSA DMAS or its contractor or an MCO to perform the services in the following community based settings: primary care clinics, outpatient health system clinics, psychiatry clinics, federally qualified health centers (FQHCs) FQHCs, community service boards/BHAs RHCs, CSBs, BHAs, local health departments, and physician and provider offices. Reimbursement for substance use outpatient services shall be made for medically necessary services provided in accordance with an ISP or the treatment plan and include withdrawal management as necessary. Services can be provided face-to-face in person or by telemedicine. Outpatient services shall meet the ASAM Level 1.0 service components and staff requirements as follows:

1. Outpatient services (ASAM Level 1.0) service components.

a. Substance use outpatient services shall be provided fewer than nine hours per week and may be delivered in the following health care settings: local health departments, FQHCs, rural health clinics, CSBs/BHAs CSBs, BHAs, health systems, emergency departments, physician and provider offices, and outpatient clinics. Provision of services in a setting other than the office or a clinic, as defined in this subsection shall be documented. Services shall include professionally directed screening, evaluation, treatment, and ongoing recovery and disease management services.

b. A multidimensional assessment shall (i) be used, (ii) be documented to determine that an individual meets the medical necessity criteria, and (iii) include the evaluation or analysis of substance use disorders, the diagnosis of substance use disorder, and the assessment of treatment needs to provide medically necessary services. The multidimensional assessment shall include a physical examination and laboratory testing necessary for substance use disorder treatment as necessary.

c. Individual psychotherapy or substance use disorder counseling between the individual and shall be provided by a credentialed addiction treatment professional shall be provided CATP. Services shall be provided face to face in person or by telemedicine shall qualify as reimbursable.

d. Group psychotherapy or substance use disorder counseling shall be provided by a credentialed addiction treatment professional, CATP with a maximum of 10 individuals in the group shall be provided. Such counseling and shall focus on the needs of the individuals served.

e. Family therapy psychotherapy or substance use disorder counseling shall be provided by a CATP to facilitate the individual's recovery and support for the family's recovery.

f. Evidenced-based patient education on addiction, treatment, recovery, and associated health risks shall be provided.

g. Medication services shall be provided, including the prescription of or administration of medication related to substance use treatment, or the assessment of the side effects or results of that medication. Medication services shall be provided by staff lawfully authorized to provide such services who shall order laboratory testing within their scope of practice or licensure.

h. Collateral services shall be provided. "Collateral services" means services provided by therapists or counselors for the purpose of engaging persons who are significant to the individual receiving SUD services. The services are focused on the individual's treatment needs and support achievement of his recovery goals.

2. Outpatient services (ASAM Level 1.0) staff requirements shall include:

a. Credentialed addiction treatment professional A CATP; or

b. A registered nurse or a practical nurse who is licensed by the Commonwealth with at least one year of clinical experience involving medication management.

B. Outpatient services (ASAM Level 1.0) co-occurring enhanced programs shall include:

1. Ongoing substance use case management for highly crisis prone individuals with co-occurring disorders.

2. Credentialed addiction treatment professionals CATPs who are trained in severe and chronic mental health and psychiatric disorders and are able to assess, monitor, and manage individuals who have a co-occurring mental health disorder. "Co-occurring disorders" means the presence of concurrent substance use disorder and mental illness without implication as to which disorder is primary and which is secondary, which disorder occurred first, or whether one disorder caused the other.

12VAC30-130-5090. Covered services: community based services - intensive outpatient services (ASAM Level 2.1).

A. Intensive outpatient services (ASAM Level 2.1) shall be a structured program of skilled treatment services for adults, children, and adolescents delivering a minimum of three service hours per service day for adults to achieve an average of nine to 19 hours of services per week for adults and a minimum of two service hours per service day for children and adolescents to achieve an average of six to 19 hours of services per week for children and adolescents. Withdrawal management services may be provided as necessary. The following service components shall be provided weekly as directed by the ISP for reimbursement:

1. Medical, psychological, psychiatric, laboratory, and toxicology services, which are available through consultation or referral.

2. Psychiatric and other individualized treatment planning.

3. Individual, family, and group psychotherapy, substance use disorder counseling, medication management, family therapy, and psychoeducation. "Psychoeducation" means (i) a specific form of education aimed at helping individuals who have a substance use disorder or mental illness and their family members or caregivers to access clear and concise information about substance use disorders or mental illness and (ii) a way of accessing and learning strategies to deal with substance use disorders or mental illness and its effects in order to design effective treatment plans and strategies.

4. Medication assisted treatment that is provided onsite or through referral.

5. Occupational and recreational therapies, motivational interviewing, enhancement, and engagement strategies to inspire an individual's motivation to change behaviors.

5. 6. Psychiatric and medical consultation, which shall be available within 24 hours of the requested consult by telephone and preferably within 72 hours of the requested consult in person or via telemedicine.

6. 7. Psychopharmacological consultation.

7. 8. Addiction medication management and 24-hour crisis services.

8. 9. Medical, psychological, psychiatric, laboratory, and toxicology services.

B. Intensive outpatient services (ASAM Level 2.1) shall be provided by agency-based providers that shall be licensed by DBHDS as a substance abuse intensive outpatient service for adults, children, and adolescents and contracted with the BHSA DMAS or its contractor or an MCO to provide this service. Intensive outpatient service providers shall meet the ASAM Level 2.1 service components and staff requirements as follows:

1. Interdisciplinary team of credentialed addiction treatment professionals CATPs shall be required. ASAM Level 2.1 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Generalist physicians or physicians with experience in addiction medicine are permitted to provide general medical evaluations and concurrent/integrated concurrent or integrated general medical care.

3. Physicians and physician extenders who are either employed by or contracted with the agency or through referral arrangements with the agency and who shall have a DEA-X number to prescribe buprenorphine.

4. Staff who shall be cross-trained to understand signs and symptoms of psychiatric disorders and be able to understand and explain the uses of psychotropic medications and understand interactions with substance use and other addictive disorders.

4. 5. Emergency services, which shall be available, when necessary, by telephone 24 hours per day and seven days per week when the treatment program is not in session.

5. 6. Direct affiliation with, or close coordination through referrals to, higher and lower levels of care and supportive housing services.

C. Intensive outpatient services (ASAM Level 2.1) co-occurring enhanced programs.

1. Co-occurring capable programs offer these therapies and support systems in intensive outpatient services described in this section to individuals with co-occurring addictive and psychiatric disorders who are able to tolerate and benefit from a planned program of therapies.

2. Individuals who are not able to benefit from a full program of therapies will be offered enhanced program services to match the intensity of hours in ASAM Level 2.1, including substance use case management, program of assertive community treatment (PACT), medication management, and psychotherapy. "Program of assertive community treatment" or "PACT" means the same as defined in 12VAC30-105-20.

12VAC30-130-5100. Covered services: community based care - partial hospitalization services (ASAM Level 2.5).

A. Partial hospitalization services (ASAM Level 2.5) components. Partial hospitalization services components shall include the following, as defined in the ISP and provided on a weekly basis:

1. Individualized treatment planning.

2. A minimum of 20 hours per week and at least five service hours per service day of skilled treatment services with a planned format, including individual and group psychotherapy, substance use disorder counseling, medication management, family therapy, education groups, occupational and recreational therapy, and other therapies. Withdrawal management services may be provided as necessary. Time not spent in skilled, clinically intensive treatment is not billable.

3. Family therapies psychotherapy and substance use disorder counseling involving family members, guardians, or significant other others in the assessment, treatment, and continuing care of the individual.

4. A planned format of therapies, delivered in individual or group settings.

5. 4. Motivational interviewing, enhancement, and engagement strategies.

5. Medication assisted treatment that is provided onsite or through referral.

B. Partial hospitalization services (ASAM Level 2.5). The substance use partial hospitalization service provider shall be licensed by DBHDS as a substance abuse partial hospitalization program or substance abuse/mental abuse or mental health partial hospitalization program and contracted with the BHSA DMAS or its contractor or an MCO. Partial hospitalization service providers shall meet the ASAM Level 2.5 support systems and staff requirements as follows:

1. Interdisciplinary team comprised of credentialed addiction treatment professionals and CATPs, which shall include an addiction-credentialed physician, or physician with experience in addiction medicine, or physician extenders as defined in 12VAC30-130-5020, shall be required. ASAM Level 2.5 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Physicians shall have specialty training or experience, or both, in addiction medicine or addiction psychiatry. Physicians who treat adolescents shall have experience with adolescent medicine.

3. Physicians and physician extenders who are either employed by or contracted with the agency and who shall have a DEA-X number to prescribe buprenorphine.

4. Program staff shall be cross-trained to understand signs and symptoms of mental illness and be able to understand and explain the uses of psychotropic medications and understand interactions with substance use and other addictive disorders.

4. 5. Medical, psychological, psychiatric, laboratory, and toxicology services that are available by consult or referral.

5. 6. Psychiatric and medical formal agreements to provide medical consult within eight hours of the requested consult by telephone or within 48 hours in person or via telemedicine.

6. 7. Emergency services are available 24-hours a day and seven days a week.

7. 8. Direct affiliation with or close coordination through referrals to higher and lower levels of care and supportive housing services.

C. Partial hospitalization services (ASAM Level 2.5) co-occurring enhanced programs shall offer:

1. Therapies and support systems as described in this section to individuals with co-occurring addictive and psychiatric disorders who are able to tolerate and benefit from a full program of therapies. Other individuals who are not able to benefit from a full program of therapies (who are severely or chronically mentally ill) will be offered enhanced program services to constitute intensity of hours in ASAM Level 2.5, including substance use case management, assertive community treatment PACT, medication management, and psychotherapy.

2. Psychiatric services as appropriate to meet the individual's mental health condition. Services may be available by telephone and on site onsite, or closely coordinated off site offsite, or via telemedicine within a shorter time than in a co-occurring capable program.

3. Clinical leadership and oversight and, at a minimum, capacity to consult with an addiction psychiatrist via telephone, via telemedicine, or in person.

4. Credentialed addiction treatment professionals CATPs with experience assessing and treating co-occurring mental illness.

12VAC30-130-5110. Covered services: clinically managed low intensity residential services (ASAM Level 3.1).

A. Clinically managed low intensity residential services (ASAM Level 3.1). The agency-based residential group home services (ASAM Level 3.1) shall be licensed by DBHDS as a mental health and substance abuse group home service for adults or children or licensed by DBHDS as a substance abuse halfway house supervised living residence for adults and contracted by the BHSA DMAS or its contractor or an MCO. Clinically directed program activities constituting at least five hours per week of professionally directed treatment shall be designed to stabilize and maintain substance use disorder symptoms and to develop and apply recovery skills. Activities shall include relapse prevention, interpersonal choice exploration, and development of social networks in support of recovery. This service shall not include settings where clinical treatment services are not provided. ASAM Level 3.1 clinically managed low intensity residential service providers shall meet the service components and staff requirements of this section.

B. Clinically managed low intensity residential services (ASAM Level 3.1) service components.

1. Physician consultation and emergency services, which shall be available 24 hours a day and seven days per week.

2. Arrangements for medically necessary procedures including laboratory and toxicology tests that are appropriate to the severity and urgency of an individual's condition.

3. Arrangements for pharmacotherapy for psychiatric or anti-addiction medications needs.

4. Medication assisted treatment that is provided onsite or through referral.

5. Arrangements for higher and lower levels of care and other services.

C. The following services shall be provided as directed by the ISP:

1. Clinically-directed treatment to facilitate recovery skills, relapse prevention, and emotional coping strategies. Services shall promote personal responsibility and reintegration of the individual into the network systems of work, education, and family life;

2. Addiction pharmacotherapy and drug screening;

3. Motivational enhancement and engagement strategies;

4. Counseling Substance use disorder counseling and clinical monitoring;

5. Regular monitoring of the individual's medication adherence;

6. Recovery support services;

7. Services for the individual's family and significant others, as appropriate to advance the individual's treatment goals and objectives identified in the ISP; and

8. Education on benefits of medication assisted treatment and referral to treatment as necessary.

D. Clinically managed low intensity residential services (ASAM Level 3.1) staff requirements.

1. Staff shall provide awake 24-hour onsite supervision. The provider's staffing plan must be in compliance with DBHDS licensing regulations for staffing plans set forth in 12VAC35-46-870 and 12VAC35-105-590.

2. Clinical staff who are experienced and knowledgeable about the biopsychosocial and psychosocial dimensions and treatment of substance use disorders. Clinical staff shall be able to identify the signs and symptoms of acute psychiatric conditions and decompensation.

3. An addiction-credentialed physician or physician with experience in addiction medicine or a physician extender acting within his scope of practice shall review the residential group home admission if the multidimensional assessment indicates medical concerns or systems in ASAM Dimensions 1 or 2, to confirm medical necessity for services, and a team of credentialed addiction treatment professionals CATPs who shall develop and shall ensure delivery of the ISP. For ASAM Level 3.1, the ISP may be completed by a CSAC or CSAC-supervisee if the CATP signs and dates the ISP within one business day.

4. Coordination with community physicians to review treatment as needed.

5. Appropriately credentialed medical staff shall be available to assess and treat co-occurring biomedical disorders and to monitor the individual's administration of prescribed medications.

E. Clinically managed low intensity residential services (ASAM Level 3.1) co-occurring enhanced programs as required by ASAM.

1. In addition to the ASAM Level 3.1 service components listed in this section, programs for individuals with both unstable substance use and psychiatric disorders shall offer appropriate psychiatric services, including medication evaluation and laboratory services. Such services are provided either on site onsite, via telemedicine, or closely coordinated with an off-site offsite provider, as appropriate to the severity and urgency of the individual's mental health condition.

2. Certified addiction treatment professionals shall be cross-trained in addiction and mental health to (i) understand the signs and symptoms of mental illness and (ii) understand and be able to explain to the individual the purpose of psychotropic medications and interactions with substance use.

3. The therapies described in this section shall be offered as well as planned clinical activities (either on site onsite or with an off-site offsite provider) that are designed to stabilize and maintain the individual's mental health program and psychiatric symptoms.

4. Goals of therapy shall apply to both the substance use disorder and any co-occurring mental illness.

5. Medication education and management shall be provided.

12VAC30-130-5120. Covered services: clinically managed population - specific high intensity residential service (ASAM Level 3.3).

A. Clinically managed population-specific high intensity residential service (ASAM Level 3.3). The facility-based provider shall be licensed by DBHDS to provide as (i) a supervised residential treatment services service for adults or licensed by DBHDS to provide; (ii) a substance abuse residential treatment service for adults, supervised residential treatment services for adults, or; (iii) a substance abuse residential treatment service for women with children; (iv) a substance abuse and mental health residential treatment services service for adults, and that has substance abuse listed on its license or within the "licensed as" statement or be a Level C (psychiatric residential treatment facility) service provider; or (v) a "mental health residential-children" provider that has substance abuse listed on its license or within the "licensed as" statements. All providers shall be contracted by the BHSA DMAS or its contractor or an MCO. ASAM Level 3.3 settings do not include sober houses, boarding houses, or group homes where treatment services are not provided. Residential treatment service providers for clinically managed population-specific high intensity residential service (ASAM Level 3.3) shall meet the service components and staff requirements in this section.

B. Clinically managed population-specific high intensity residential service (ASAM Level 3.3) service components.

1. Clinically managed population-specific high intensity residential service components shall include:

a. Access to a consulting physician or physician extender who is either employed by or contracted with the agency or through referral arrangements with the agency and who has a DEA-X number to prescribe buprenorphine and emergency services 24 hours a day and seven days a week;

b. Arrangements for higher and lower levels of care;

c. Arrangements for laboratory and toxicology services appropriate to the severity of need; and

d. Arrangements for addiction pharmacotherapy, including medication assisted treatment that is provided onsite or through referral.

2. The following therapies shall be provided as directed by the ISP for reimbursement:

a. Clinically-directed treatment to facilitate recovery skills, relapse prevention, and emotional coping strategies. Services shall promote personal responsibility and reintegration of the individual into the network systems of work, education, and family life;

b. Addiction pharmacotherapy and drug screening, including medication assisted treatment that is provided onsite or through referral;

c. Range Drug screening, using either urine or blood serums;

d. A range of cognitive and behavioral therapies psychotherapies administered individually and in family and group settings as appropriate to the individual's needs to assist the individual in initial involvement or re-engagement in regular productive daily activity;

e. Substance use disorder counseling and psychoeducation activities provided individually or in family and group settings to promote recovery;

d. f. Recreational therapy, art, music, physical therapy, and vocational rehabilitation;

e. g. Motivational enhancement and engagement strategies;

f. h. Regular monitoring of the individual's medication adherence;

g. i. Recovery support services;

h. j. Services for the individual's family and significant others, as appropriate to advance the individual's treatment goals and objectives identified in the ISP;

i. k. Education on benefits of medication assisted treatment and referral to treatment as necessary; and

j. l. Withdrawal management services may be provided as necessary.

C. Clinically managed population-specific high intensity residential service (ASAM Level 3.3) staff requirements.

1. The interdisciplinary team shall include credentialed addiction treatment professionals, physicians, or physician extenders CATPs and allied health professionals in an interdisciplinary team. ASAM Level 3.3 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Staff shall provide awake 24-hour onsite supervision. The provider's staffing plan must be in compliance with DBHDS licensing regulations for staffing plans set forth in 12VAC35-46-870 and 12VAC35-105-590.

3. Clinical or credentialed staff who are shall be experienced and knowledgeable about the biopsychosocial dimensions and treatment of substance use disorders and who are available on site onsite or by telephone 24 hours per day. Clinical Licensed clinical staff shall be able to identify acute psychiatric conditions and decompensation.

4. Substance use case management is included in this level of care.

5. Appropriately credentialed medical staff shall be available to assess and treat co-occurring biomedical disorders and to monitor the individual's administration of prescribed medications.

D. Clinically managed population-specific high intensity residential service co-occurring enhanced programs, as required by ASAM.

1. Appropriate psychiatric services, including medication evaluation and laboratory services, shall be provided on site onsite or through a closely coordinated off-site offsite provider, as appropriate to the severity and urgency of the individual's mental condition.

2. Psychiatrists and credentialed addiction treatment professionals CATPs shall be available to assess and treat co-occurring substance use and mental illness using specialized training in behavior management techniques.

3. Credentialed addiction treatment professionals shall be cross-trained in addiction and mental health to understand the signs and symptoms of mental illness and be able to provide education to the individual on the interactions with substance use and psychotropic medications.

12VAC30-130-5130. Covered services: clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5).

A. Clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5) settings for services. The facility based residential treatment service provider (ASAM Level 3.5) shall be licensed by DBHDS as (i) a substance abuse residential treatment services service for adults or children, (ii) a psychiatric unit that has substance abuse listed on its license or within the "licensed as" statements, (iii) a substance abuse residential treatment service for women with children, or (iv) a substance abuse and mental health residential treatment services service for adults and children that has substance abuse listed on its license or within the "licensed as" statements, (v) a Level C (psychiatric residential treatment facility) provider, or (vi) a "mental health residential-children" provider that has substance abuse on its license or within the "licensed as" statements and shall be contracted by the BHSA DMAS or its contractor or an MCO. Residential treatment providers (ASAM Level 3.5) shall meet the service components and staff requirements in this section.

B. Clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5) service components.

1. These residential treatment services, as required by ASAM, include:

a. Telephone or in-person consultation with a physician or physician extender who shall be available to perform required physician services. Emergency services shall be available 24 hours per day and seven days per week;

b. Arrangements for more and less intensive levels of care and other services such as sheltered workshops, literacy training, and adult education;

c. Arrangements for needed procedures, including medical, psychiatric, psychological, laboratory, and toxicology services appropriate to the severity of need; and

d. Arrangements for addiction pharmacotherapy, including medication assisted treatment that is provided onsite or through referral.

2. The following therapies shall be provided as directed by the ISP for reimbursement:

a. Clinically directed treatment to facilitate recovery skills, relapse prevention, and emotional coping strategies. Services shall promote personal responsibility and reintegration of the individual into the network systems of work, education, and family life. Activities shall be designed to stabilize and maintain substance use disorder symptoms and apply recovery skills and may include relapse prevention, interpersonal choice exploration, and development of social networks in support of recovery.

b. Range of cognitive and, behavioral therapies psychotherapies, and substance use disorder counseling administered individually and in family and group settings to assist the individual in initial involvement or re-engagement in regular productive daily activities, including education on medication management, addiction pharmacotherapy, and education skill building groups to enhance the individual's understanding of substance use and mental illness.

c. Psychoeducational activities.

d. Addiction pharmacotherapy and drug screening.

d. e. Recreational therapy, art, music, physical therapy, and vocational rehabilitation.

e. f. Motivational enhancements and engagement strategies.

f. g. Monitoring of the adherence to prescribed medications and over-the-counter medications and supplements.

g. h. Daily scheduled professional services and interdisciplinary assessments and treatment designed to develop and apply recovery skills.

h. i. Services for family and significant others, as appropriate, to advance the individual's treatment goals and objectives identified in the ISP.

i. Education on benefits of medication assisted treatment and referral to treatment as necessary.

j. Withdrawal management services may be provided as necessary.

C. Clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5) staff requirements.

1. The interdisciplinary team shall include credentialed addiction treatment professionals CATPs, physicians, or physician extenders and allied health professionals. Physicians and physician extenders who are either employed by or contracted with the agency or through referral arrangements with the agency and who shall have a DEA-X number to prescribe buprenorphine. ASAM Level 3.5 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Staff shall provide awake 24-hour onsite supervision. The provider's staffing plan must be in compliance with DBHDS licensing regulations for staffing plans set forth in 12VAC35-46-870 and 12VAC35-105-590.

3. Clinical staff who are experienced in and knowledgeable about the biopsychosocial dimensions and treatment of substance use disorders. Clinical staff shall be able to identify acute psychiatric conditions and decompensations.

4. Substance use case management shall be provided in this level of care.

5. Appropriately credentialed medical staff shall be available   on site onsite or by telephone 24 hours per day, seven days per week to assess and treat co-occurring biological and physiological disorders and to monitor the individual's administration of medications in accordance with a physician's prescription.

D. Clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5) co-occurring enhanced programs as required by ASAM.

1. Psychiatric services, medication evaluation, and laboratory services shall be provided. Such services shall be available by telephone within eight hours of requested service and on site onsite or via telemedicine, or closely coordinated with an off-site offsite provider within 24 hours of requested service, as appropriate to the severity and urgency of the individual's mental and physical condition.

2. Staff shall be credentialed addiction treatment professionals CATPs who are able to assess and treat co-occurring substance use and psychiatric disorders.

3. Planned clinical activities shall be required and shall be designed to stabilize and maintain the individual's mental health problems and psychiatric symptoms.

4. Medication education and management shall be provided.

12VAC30-130-5140. Covered services: medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7).

A. Medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7) settings for services. The facility-based providers provider of ASAM Level 3.7 services shall be licensed by DBHDS as an inpatient psychiatric unit with a DBHDS medical detoxification license, (i) a freestanding psychiatric hospital or inpatient psychiatric unit with a DBHDS medical detoxification license or managed withdrawal license; (ii) a residential crisis stabilization unit with a DBHDS medical detoxification license or managed withdrawal license; (iii) a substance abuse residential treatment services (RTS) for adults/children service for women with children with a DBHDS medical detoxification managed withdrawal license or a residential crisis stabilization unit with DBHDS medical detoxification license; (iv) a Level C (psychiatric residential treatment facility) provider; (v) a "mental health residential-children" provider with a substance abuse residential license and a DBHDS managed withdrawal license; (vi) a "managed withdrawal-medical detox adult residential treatment" provider; or (vii) a "medical detox-chemical dependency unit" for adults and shall be contracted by the BHSA DMAS or its contractor or the MCO. ASAM Level 3.7 providers shall meet the service components and staff requirements in this section.

B. Medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7) service components. The following therapies shall be provided as directed by the ISP for reimbursement:

1. Daily clinical services provided by an interdisciplinary team to involve appropriate medical and nursing services, as well as individual, group, and family activity services. Activities may include pharmacological, including medication assisted treatment that is provided onsite or through referral; withdrawal management,; cognitive-behavioral,; and other therapies psychotherapies and substance use disorder counseling administered on an individual or group basis and modified to meet the individual's level of understanding and assist in the individual's recovery.

2. Counseling and clinical monitoring to facilitate re-involvement in regular productive daily activities and successful re-integration into family living if applicable.

3. Psychoeducational activities.

4. Random drug screens to monitor use and strengthen recovery and treatment gains.

4. 5. Regular medication monitoring.

5. 6. Planned clinical activities to enhance understanding of substance use disorders.

6. 7. Health education associated with the course of addiction and other potential health related risk factors, including tuberculosis, human immunodeficiency virus, hepatitis B and C, and other sexually transmitted infections.

7. 8. Evidence based practices, such as motivational interviewing to address the individuals an individual's readiness to change, designed to facilitate understanding of the relationship of the substance use disorder and life impacts.

8. 9. Daily treatments to manage acute symptoms of biomedical substance use or mental illness.

9. 10. Services to family and significant others as appropriate to advance the individual's treatment goals and objectives identified in the ISP.

10. 11. Physician monitoring, nursing care, and observation shall be available. A physician shall be available to assess the individual in person or via telemedicine within 24 hours of admission and thereafter as medically necessary.

11. 12. A licensed and registered nurse who shall conduct an alcohol or other drug-focused nursing assessment upon admission. A licensed registered nurse or licensed practical nurse shall be responsible for monitoring the individual's progress and for medication administration duties.

12. 13. Additional medical specialty consultation,; psychological, laboratory, and toxicology services shall be available on site onsite, either through consultation or referral.

13. 14. Coordination of necessary services shall be available on site onsite or through referral to a closely coordinated off-site offsite provider to transition the individual to lower levels of care.

14. 15. Psychiatric services shall be available on site onsite or through consultation or referral to a closely coordinated off-site offsite provider when a presenting problem could be attended to at a later time. Such services shall be available within eight hours of requested service by telephone or within 24 hours of requested service in person or via telemedicine.

C. Medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7) staff requirements.

1. The interdisciplinary team shall include credentialed addiction treatment professionals CATPs and addiction-credentialed physicians or physicians with experience in addiction medicine to assess, treat, and obtain and interpret information regarding the individual's psychiatric and substance use disorders. Physicians and physician extenders who are either employed by or contracted with the agency or through referral arrangements with the agency and who shall have a DEA-X number for prescribing buprenorphine. ASAM Level 3.7 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Clinical staff shall be knowledgeable about the biological and psychosocial dimensions of substance use disorders and mental illnesses and their treatment. Clinical staff shall be able to identify acute psychiatric conditions, symptom increase or escalation, and decompensation.

3. Clinical staff shall be able to provide a planned regimen of 24-hour professionally directed evaluation, care, and treatment, including the administration of prescribed medications.

4. Addiction-credentialed An addiction-credentialed physician or physician with experience in addiction medicine shall oversee the treatment process and assure quality of care. Licensed physicians shall perform physical examinations for all individuals who are admitted. Staff shall supervise addiction pharmacotherapy integrated with psychosocial therapies. The professional may be a physician or a psychiatrist, or a physician extender as defined in 12VAC30-130-5020 if knowledgeable about addiction treatment.

D. Medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7) co-occurring enhanced programs as required by ASAM.

1. Appropriate psychiatric services, medication evaluation, and laboratory services shall be available.

2. A psychiatrist assessment of the individual shall occur within four hours of admission by telephone and within 24 hours following admission in person or via telemedicine, or sooner, as appropriate to the individual's behavioral health condition, and thereafter as medically necessary.

3. A behavioral health-focused assessment at the time of admission shall be performed by a registered nurse or licensed mental health clinician. A licensed registered nurse or licensed practical nurse supervised by a registered nurse shall be responsible for monitoring the individual's progress and administering or monitoring the individual's self-administration of medications.

4. Psychiatrists and credentialed addiction treatment professionals CATPs who are able to assess and treat co-occurring psychiatric disorders and who have specialized training in the behavior management techniques and evidenced-based practices shall be available.

5. Access to an addiction-credentialed physician shall be available along with access to either a psychiatrist, a certified addiction psychiatrist, or a psychiatrist with experience in addiction medicine.

6. Credentialed addiction treatment professionals CATPs shall have experience and training in addiction and mental health to understand the signs and symptoms of mental illness and be able to provide education to the individual on the interaction of substance use and psychotropic medications.

7. Planned clinical activities shall be offered and designed to promote stabilization and maintenance of the individual's behavioral health needs, recovery, and psychiatric symptoms.

8. Medication education and management shall be offered.

12VAC30-130-5150. Covered services: medically managed intensive inpatient services (ASAM Level 4.0).

A. Medically managed intensive inpatient services (ASAM Level 4.0) settings for services. Acute care hospitals licensed by the Virginia Department of Health shall be the designated setting for medically managed intensive inpatient treatment and shall offer medically directed acute withdrawal management and related treatment designed to alleviate acute emotional, behavioral, cognitive, or biomedical distress resulting from, or occurring with, an individual's use of alcohol and other drugs. Such service settings shall offer medically directed acute withdrawal management and related treatment designed to alleviate acute emotional, behavioral, cognitive, or biomedical distress, or all of these, resulting from, or co-occurring with, an individual's use of alcohol or other drugs, with the exception of tobacco-related disorders, caffeine-related disorders or dependence or nonsubstance-related non-substance-related disorders.

B. Medically managed intensive inpatient services (ASAM Level 4.0) service components.

1. The service components of medically managed intensive inpatient services shall be:

a. An evaluation or analysis of substance use disorders shall be provided, including the diagnosis of substance use disorders and the assessment of treatment needs for medically necessary services.

b. Observation and monitoring the individual's course of withdrawal shall be provided. This shall be conducted as frequently as deemed appropriate for the individual and the level of care the individual is receiving. This may include, for example, observation of the individual's health status.

c. Medication services, including the prescription or administration related to substance use disorder treatment services or the assessment of the side effects or results of that medication, conducted by appropriate licensed staff who provide such services within their scope of practice or license.

2. The following therapies shall be provided for reimbursement:

a. Daily clinical services provided by an interdisciplinary team to stabilize acute addictive or psychiatric symptoms. Activities shall include pharmacological, cognitive-behavioral, and other therapies psychotherapies or substance use disorder counseling administered on an individual or group basis and modified to meet the individual's level of understanding. For individuals with a severe biomedical disorder, physical health interventions are available to supplement addiction treatment. For the individual who has less stable psychiatric symptoms, ASAM Level 4.0 co-occurring capable programs offer individualized treatment activities designed to monitor the individual's mental health and to address the interaction of the mental health programs and substance use disorders.

b. Health education services.

c. Planned clinical interventions that are designed to enhance the individual's understanding and acceptance of illness of addiction and the recovery process.

d. Services for the individual's family, guardian, or significant other, as appropriate, to advance the individual's treatment and recovery goals and objectives identified in the ISP.

e. This level of care offers 24-hour nursing care and daily physician care for severe, unstable problems in any of the following ASAM dimensions: (i) acute intoxication or withdrawal potential; (ii) biomedical conditions and complications; and (iii) emotional, behavioral, or cognitive conditions and complications.

f. Discharge services shall be the process to prepare the individual for referral into another level of care, post treatment return or reentry into the community, or the linkage of the individual to essential community treatment, housing, recovery, and human services.

C. Medically managed intensive inpatient services (ASAM Level 4.0) staff requirements.

1. An interdisciplinary staff of appropriately credentialed clinical staff including, for example, addiction-credentialed physicians or physicians with experience in addiction medicine, licensed nurse practitioners, licensed physician assistants, registered nurses, licensed professional counselors, licensed clinical psychologists, or licensed clinical social workers who assess and treat individuals with severe substance use disorders or addicted individuals with concomitant acute biomedical, emotional, or behavioral disorders. Physicians and physician extenders who are either employed by or contracted through the agency or through referral arrangements with the agency and who shall have a DEA-X number to prescribe buprenorphine.

2. Medical management by physicians and primary nursing care shall be available 24 hours per day and counseling services shall be available 16 hours per day.

D. Medically managed intensive inpatient services (ASAM Level 4.0) co-occurring enhanced programs. These programs shall be provided by appropriately licensed or registered credentialed mental health professionals who assess and treat the individual's co-occurring mental illness and are knowledgeable about the biological and psychosocial dimensions of psychiatric disorders and his treatment.

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.

FORMS (12VAC30-130)

Forms accompanying Part II of this chapter:

Virginia Uniform Assessment Instrument (eff. 1994)

Forms accompanying Part III of this chapter:

MI/IDD Supplement, DMAS-95, Level I PASRR Form and Instructions (rev 4/2019)

MI/IDD/Related Conditions Supplement Level II, DMAS-95 MI/IDD/RC Supplement (rev. 12/2015)

Forms accompanying Part VII of this chapter:

Request for Hospice Benefits DMAS-420, Revised 5/91

Request for Hospice Benefits, DMAS-420 (rev. 9/2019)

Forms accompanying Part VIII of this chapter:

Inventory for Client and Agency Planning (ICAP) Response Booklet, D9200/D9210, 1986

Forms accompanying Part IX of this chapter:

Patient Information Form Medicaid LTC Communication Form, DMAS-122, 225 (eff. 10/2011)

Instructions for Completion DMAS-122 form

Forms accompanying Part XII of this chapter:

Health Insurance Premium Payment (HIPP) Program Insurance Information Request Form

Health Insurance Premium Payment (HIPP) Program Medical History Form (HIPP Form-7, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Employers Insurance Verification Form (HIPP Form-2, Rev. 11/92)

Health Insurance Premium Payment (HIPP) Program Employer Agreement (HIPP Form-3, Rev. 11/92)

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Determination (HIPP Form-4, Rev. 11/92)

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Approval

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Status (HIPP Form-6, Rev. 11/92)

Inventory for Client and Agency Planning (ICAP) Response Booklet, D9200/D9210, 1986

Forms accompanying Part XIV of this chapter:

Residential Psychiatric Treatment for Children and Adolescents, FH/REV (eff. 10/99)

Forms accompanying Part XV of this chapter:

Treatment Foster Care Case Management Agreement, TFC CM Provider Agreement DMAS-345, FH/REV (eff. 10/99)

Forms accompanying Part XVIII of this chapter:

Virginia Independent Clinical Assessment Program (VICAP) (eff. 6/11)

DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-130)

Virginia Medicaid Nursing Home Manual, Department of Medical Assistance Services.

Virginia Medicaid Rehabilitation Manual, Department of Medical Assistance Services.

Virginia Medicaid Hospice Manual, Department of Medical Assistance Services.

Virginia Medicaid School Division Manual, Department of Medical Assistance Services.

Policy Manual: Definitions of Priority Mental Health Populations, POLICY 1029(SYS)90 - 2

The ASAM Criteria: Treatment Criteria for Addictive, Substance-Related, and Co-Occurring Conditions, Third Edition, American Society of Addiction Medicine, Inc., 4601 North Park Avenue, Upper Arcade, Suite 101 Chevy Chase, Maryland 20815, www.asam.org

Diagnostic and Statistical Manual of Mental Disorders: DSM-5, Fifth Edition, 2013, American Psychiatric Association, 1000 Wilson Boulevard, Arlington, Virginia 22209, www.psych.org

Medicaid Memo: Updates to Telemedicine Coverage, May 13, 2014, Department of Medical Assistance Services

Department of Behavioral Health and Developmental Services Opioid Medication Assisted Treatment License and Oversight (eff. 3/2017)

VA.R. Doc. No. R20-5749; Filed December 18, 2019, 12:24 p.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Fast-Track Regulation

Titles of Regulations: 12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-181, 12VAC30-60-185).

12VAC30-70. Methods and Standards for Establishing Payment Rates - Inpatient Hospital Services (adding 12VAC30-70-418).

12VAC30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-32).

12VAC30-130. Amount, Duration and Scope of Selected Services (amending 12VAC30-130-5010 through 12VAC30-130-5150).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 19, 2020.

Effective Date: March 5, 2020.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia authorizes the Board of Medical Assistance Services to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia grants the Director of the Department of Medical Assistance Services (DMAS) the authority of the board when it is not in session. The Medicaid authority established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Purpose: These changes are essential to protect the health, safety, and welfare of citizens because they clarify existing rules for the addiction and recovery treatment services (ARTS) program to make it easier for providers to understand program rules and to make these services more accessible to Medicaid members.

Rationale for Using Fast-Track Rulemaking Process: These regulations are expected to be noncontroversial. The initial ARTS regulations were noncontroversial, and they implemented new substance use programs. These updates do not restrict services or negatively impact providers or Medicaid members. Instead, these updates provide clarification to answer questions raised by providers since the initial ARTS implementation.

Substance: The changes in this regulatory package streamline, simplify, and clarify existing requirements for ARTS services and ARTS providers. The changes include:

1. Changing references from "the BHSA," which means the behavioral health services administrator, to "DMAS or its contractor" because the BHSA contract will be ending.

2. Correcting outdated citations.

3. Clarifying the roles and responsibilities of credentialed addiction treatment professionals (CATPs), certified substance abuse counselors (CSACs), certified substance abuse counselor-assistants (CSAC-As), and certified substance abuse counselor-supervisees (CSAC-supervisees). CATPs are licensed or registered with various boards through the Department of Health Professions, while CSACs, CSAC-As, and CSAC-supervisees are lower-level staff who are certified through the Board of Counseling. Defining these roles allows lower-level staff to perform tasks appropriate to their skill level, which frees up CATPs to perform higher-level skills. The Board of Counseling recently posted a guidance document that reflects this change, and DMAS seeks to match its requirements to the requirements of the Board of Counseling.

4. Providing additional clarity on substance use disorder counseling, psychotherapy, and counseling. Substance use disorder counseling can be provided by a CSAC as part of a CSAC's scope of practice as defined by the Board of Counseling, while psychotherapy and counseling may only be provided by licensed staff.

5. Providing additional clarity about medication assisted treatment (MAT). The Centers for Medicare and Medicaid Services (CMS) requires Medicaid agencies to assess members to determine if they need MAT, and requires MAT to be provided onsite or through referral in intensive outpatient, partial hospitalization, and residential levels of care. "States Shall Demonstrate Sufficient Provider Capacity at Critical Levels of Care including for Medication Assisted Treatment for OUD," a CMS guidance document explaining this requirement, can be accessed at https://www.medicaid.gov/federal-policy-guidance
/downloads/smd17003.pdf
.

6. Clarifying the telemedicine definition to include the requirements of a 2014 Medicaid memo to providers. The definition of "face-to-face" was broadened to include the use of telemedicine so that telemedicine can be used to provide ARTS services. The 2014 memo can be accessed at https://www.virginiamedicaid.dmas.virginia.gov/wps/portal/MedicaidMemostoProviders and searching for the memo dated May 13, 2014.

7. Removing the hard limits on intensive outpatient treatment in compliance with the Mental Health Parity and Addiction Equity Act (Public Law 110-343).

8. In response to a public comment received during the original implementation of the ARTS program, clarifying that drug screening may be conducted using urine or blood serums.

Issues: The primary advantage of these regulatory changes to the public and the agency is that they streamline and simplify existing requirements for ARTS services and provide additional clarity to ARTS providers. There are no disadvantages to the public, the agency, or the Commonwealth as a result of these changes.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Director of the Department of Medical Assistance Services (DMAS) proposes to update this regulation to reflect the changes that have already occurred in the provision of Addiction and Recovery Treatment Services (ARTS).

Background. The ARTS program provides a comprehensive continuum of addiction and recovery treatment services, including inpatient withdrawal management services, residential treatment services, partial hospitalization, intensive outpatient treatment, outpatient treatment, and peer recovery supports.

According to DMAS, in the last several years there have been changes in a number of laws, regulations, and guidance from other entities that have affected how the ARTS program operates. For example, the Board of Counseling and the Board of Medicine have amended the scope of practice for the professions they regulate who provide services to ARTS recipients. Similarly, the federal Centers for Medicare and Medicaid Services has issued a Parity Rule that affected the service limits in this program and guidance on certain terms used in this regulation.

Estimated Benefits and Costs. The proposed amendments update the regulation to reflect the changes that have occurred in this program due to external laws, regulations, and guidance.2 The proposed amendments also make clarifying changes to language that has prompted questions from providers of addiction and recovery treatment services.

Since the proposed amendments simply reflect the changes on how the ARTS program currently operates, no significant economic effect is expected other than improving the clarity of the rules this program currently operates under.

Businesses and Other Entities Affected. This regulation primarily applies to 3,465 ARTS providers and the Medicaid clients they serve.

Localities3 Affected.4 The proposed amendments should not affect any locality more than others. The proposed amendments do not appear to introduce costs for local governments.

Projected Impact on Employment. The proposed amendments would not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments would not affect the use and value of private property.

Adverse Effect on Small Businesses.5 The proposed amendments do not adversely affect small businesses.

______________________________

2The references to external laws, regulations, and guidance can be found at https://townhall.virginia.gov/L/GetFile.cfm?File=64\5229\8540\AgencyStatement_DMAS_8540_vA.pdf

3"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

4§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

5Pursuant 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."

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

The amendments clarify and update the requirements for providers of Addiction and Recovery Treatment Services (ARTS) Program services to Medicaid members, including (i) updating citations and terminology; (ii) clarifying roles for professionals who provide various addiction treatments; (iii) specifying that medical assisted treatment must be provided onsite or through referral in intensive outpatient, partial hospitalization, and residential levels of care pursuant to the Centers for Medicare and Medicaid Services requirements; (iv) including telemedicine in the definition of "face-to-face" for purposes of providing ARTS services; (v) removing hard limits on intensive outpatient treatment; and (vi) clarifying that drug screening can be done by testing urine or blood serums.

12VAC30-60-181. Utilization review of addiction, and recovery, and treatment services.

A. Providers shall be required to maintain documentation detailing all relevant information about the Medicaid individuals who are in the provider's care. Such documentation shall fully disclose the extent of services provided in order to support provider's claims for reimbursement for services rendered. This documentation shall be written and dated at the time the services are rendered. Claims that are not adequately supported by appropriate up-to-date documentation may be subject to recovery of expenditures.

B. Utilization reviews shall be conducted by the Department of Medical Assistance Services or its designated contractor.

C. Service authorizations shall be required for American Society of Addiction Medicine (ASAM) Levels 2.1, 2.5, 3.1, 3.3, 3.5, 3.7, and 4.0.

D. A multidimensional assessment by a credentialed addiction treatment professional (CATP), as defined in 12VAC30-130-5020, shall be required for ASAM Levels 1.0 through 4.0. Certified substance abuse counselors (CSACs) are able to complete a multidimensional assessment to make recommendations for an ASAM level of care, which shall be signed and dated by a CATP within one business day. The multidimensional assessment shall be maintained in the individual's record by the provider. Medical necessity for all ASAM levels of care shall be based on the outcome of the individual's multidimensional assessment.

E. Individual service plans (ISPs) and treatment plans shall be developed upon admission to medically managed intensive inpatient services (ASAM Level 4.0), substance use residential and inpatient services (ASAM Levels 3.1, 3.3, 3.5, and 3,7) 3.7), and substance use intensive outpatient and partial hospitalization programs (ASAM Levels 2.1 and 2.5). ISPs or treatment plans shall be developed upon initiation of opioid treatment services (OTP) and, office-based opioid treatment (OBOT);, and substance use outpatient services (ASAM Level 1.0).

1. The provider shall include the individual and the family or caregiver, as may be appropriate, in the development of the ISP or treatment plan. To the extent that the individual's condition requires assistance for participation, assistance shall be provided. The ISP shall be updated at least annually and as the individual's needs and progress change. An ISP that is not updated either annually or as the individual's needs and progress change shall be considered outdated.

2. All ISPs shall be completed and contemporaneously signed and dated by the credentialed addiction treatment professional CATP preparing the ISP. For ASAM Levels 3.1, 3.3, and 3.5, the ISP may be completed by a CSAC if the CATP signs and dates the ISP within one business day.

3. The child's or adolescent's ISP shall also be signed by the parent or legal guardian, and the adult individual shall sign his own ISP. If the individual, whether a child, adolescent, or adult, is unwilling or unable to sign the ISP, then the service provider shall document the reasons why the individual was not able or willing to sign the ISP.

F. A comprehensive ISP, as defined in 12VAC30-50-226 12VAC30-130-5020, shall be fully developed within 30 calendar days of the initiation of services. The comprehensive ISP shall be developed with the individual, in consultation with the individual's family, as appropriate, and shall address (i) a summary or reference to the individual's identified needs; (ii) short-term and long-term goals and measurable objectives for addressing each identified individually specific need; (iii) services and supports and frequency of services to accomplish the goals and objectives; (iv) target dates for accomplishment of goals and objectives; (v) estimated duration of service; (vi) medication assisted treatment assessment, which shall be provided onsite or through referral; and (vi) (vii) the role or roles of other agencies if the plan is a shared responsibility and the staff designated as responsible for the coordination and integration of services. The ISP shall be reviewed at least every 90 calendar days and shall be modified as the needs and progress of the individual changes change. Documentation of the ISP review shall include the dated signatures of the credentialed addiction treatment professional CATP and the individual. CSACs may perform the ISP reviews in ASAM Levels 3.1, 3.3, and 3.5 if a CATP signs and dates the ISP review within one business day.

G. Progress notes, as defined in 12VAC30-50-130 12VAC30-60-185, shall disclose the extent of services provided and corroborate the units billed. Claims not supported by corroborating progress notes may be subject to recovery of expenditures. Each progress note shall be individualized to the member to demonstrate the individual member's particular circumstances, treatment, and progress. Claim payments shall be retracted for services that are not supported by documentation that is individualized to the member.

H. Documentation shall include assessment and referral for medication assisted treatment as medically indicated.

12VAC30-60-185. Utilization review of substance use case management.

A. Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

"Face-to-face" means the same as that term is defined in 12VAC30-130-5020.

"Individual service plan" or "ISP" means the same as the term is defined in 12VAC30-50-226 12VAC30-130-5020.

"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 and are part of the minimum documentation requirements that convey the individual's status, staff intervention, 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 units or hours required to deliver the service. The content of each progress note shall corroborate the time/units time or units billed for each rendered service. Progress notes shall be documented for each service that is billed.

"Register" or "registration" means notifying the Department of Medical Assistance Services or its contractor that an individual will be receiving services that do not require service authorization, such as outpatient services for substance use disorders or substance use case management.

B. Utilization review: substance use case management services.

1. The Medicaid enrolled individual shall meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for a substance use disorder. Tobacco-related disorders or caffeine-related disorders and nonsubstance-related non-substance-related disorders shall not be covered.

2. Reimbursement shall be provided only for "active" case management. An active client for substance use case management shall mean an individual for whom there is a current substance use individual service plan (ISP) in effect that requires a minimum of two distinct substance use case management activities being performed each calendar month and at a minimum one face-to-face client contact at least every 90-calendar-day period.

3. Billing can be submitted for an active recipient only for months in which a minimum of two distinct substance use case management activities are performed.

4. An ISP shall be completed within 30 calendar days of initiation of this service with the individual in a person-centered manner and shall document the need for active substance use case management before such case management services can be billed. The ISP shall require a minimum of two distinct substance use case management activities being performed each calendar month and a minimum of one face-to-face client contact at least every 90 calendar days. The substance use case manager shall review the ISP with the individual at least every 90 calendar days for the purpose of evaluating and updating the individual's progress toward meeting the individualized service plan objectives.

5. The ISP shall be reviewed with the individual present, and the outcome of the review shall be documented in the individual's medical record.

C. Utilization review: substance use case management services.

1. Utilization review general requirements. Utilization reviews shall be conducted by DMAS or its designated contractor. Reimbursement shall be provided only when there is an active ISP and, a minimum of two distinct substance use case management activities are performed each calendar month, and there is a minimum of one face-to-face client contact at least every 90-calendar-day period. Billing can be submitted only for months in which a minimum of two distinct substance use case management activities are performed within the calendar month.

2. In order to receive reimbursement, providers shall register this service with the managed care organization or the behavioral health services administration DMAS contractor, as required, within one business day of service initiation to avoid duplication of services and to ensure informed and seamless care coordination between substance use treatment and substance use case management providers.

3. The Medicaid eligible individual shall meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for a substance use disorder with the exception of tobacco-related disorders or caffeine-related disorders and nonsubstance-related non-substance-related disorders.

4. Substance use case management shall not be billed for individuals in institutions for mental disease, except during the month prior to discharge to allow for discharge planning, limited to two months within a 12-month period. Substance use case management shall not be billed concurrently with any other type of Medicaid reimbursed case management and care coordination.

5. The ISP, as defined in 12VAC30-50-226 12VAC30-130-5020, shall document the need for substance use case management and be fully completed within 30 calendar days of initiation of the service, and the substance use case manager shall review the ISP at least every 90 calendar days. Such reviews shall be documented in the individual's medical record. If needed, a grace period will be granted following the date of the last review. When the review is completed in a grace period, the next subsequent review shall be scheduled 90 calendar days from the date the review was initially due and not the date of actual review.

6. The ISP shall be updated and documented in the individual's medical record at least annually and as an individual's needs change.

7. The provider of substance use case management services shall be licensed by the Department of Behavioral Health and Developmental Services as a provider of substance use case management and credentialed by the behavioral health services administration DMAS contractor or the managed care organization as a provider of substance use case management services.

8. Progress notes, as defined in subsection A of this section, shall be required to disclose the extent of services provided and corroborate the units billed.

12VAC30-70-418. Reimbursement for residential and inpatient substance use treatment services.

A. The following substance use disorder treatment services for adults and adolescents are provided in a residential or inpatient setting: (i) clinically managed population-specific high intensity residential service (ASAM Level 3.3); (ii) clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5); (iii) medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7); and (iv) medically managed intensive inpatient services (ASAM Level 4.0).

B. If one of the services in subsection A of this section is furnished to an individual in a freestanding psychiatric hospital or inpatient psychiatric unit of an acute care hospital, reimbursement shall be based on the hospital reimbursement described in 12VAC30-70-241 and the reimbursement of services provided under the arrangement described in 12VAC30-80.

C. If one of the services in subsection A of this section is furnished to an individual in an appropriately licensed residential setting, reimbursement shall be based on the psychiatric residential treatment facility (Level C) reimbursement described in 12VAC30-70-417.

12VAC30-80-32. Reimbursement for substance use disorder services.

A. Physician services described in 12VAC30-50-140, other licensed practitioner services described in 12VAC30-50-150, and clinic services described in 12VAC30-50-180 for assessment and evaluation or treatment of substance use disorders shall be reimbursed using the methodology in 12VAC30-80-30 and 12VAC30-80-190 subject to the following reductions for psychotherapy services for other licensed practitioners.

1. Psychotherapy and substance use disorder counseling services of licensed clinical psychologists shall be reimbursed at 90% of the reimbursement rate for psychiatrists.

2. Psychotherapy and substance use disorder counseling services provided by independently enrolled licensed clinical social workers, licensed professional counselors, licensed marriage and family therapists, licensed psychiatric nurse practitioners, licensed substance abuse treatment practitioners, or licensed registered clinical nurse specialists-psychiatric shall be reimbursed at 75% of the reimbursement rate for licensed clinical psychologists.

3. The same rates shall be paid to governmental and private providers. These services are reimbursed based on the Common Procedural Terminology codes and Healthcare Common Procedure Coding System codes. The agency's rates were set as of July 1, 2007, and are updated as described in 12VAC30-80-190. All rates are published on the Department of Medical Assistance Services (DMAS) website at www.dmas.virginia.gov http://www.dmas.virginia.gov.

B. Rates for the following addiction and recovery treatment services (ARTS) physician and clinic services preferred office-based opioid treatment (OBOT) services and opioid treatment programs shall be based on the agency fee schedule: (i) initiation of medication assisted treatment induction with a visit unit of service; (ii) individual and group opioid treatment service substance use disorder counseling and psychotherapy with a 15-minute unit of service; and (iii) substance use care coordination with a monthly unit of service. The agency's rates shall be set as of April 1, 2017. The Medicaid and commercial rates for similar services as well as the cost for providing services shall be considered when establishing the fee schedules so that payments shall be consistent with economy, efficiency, and quality of care. The same rates shall be paid to public and private providers. All rates are published on the DMAS website at www.dmas.virginia.gov http://www.dmas.virginia.gov.

C. Community ARTS rehabilitation services. Per diem rates for clinically managed low intensity residential services (ASAM Level 3.1), partial hospitalization (ASAM Level 2.5), and intensive outpatient services (ASAM Level 2.1) for ARTS shall be based on the agency fee schedule. The Medicaid and commercial rates for similar services as well as the cost for providing services shall be considered when establishing the fee schedules so that payments shall be consistent with economy, efficiency, and quality of care. The same rates shall be paid to governmental and private providers. The agency's rates shall be set as of April 1, 2017, and are effective for services on or after that date. All rates are published on the DMAS website at: www.dmas.virginia.gov http://www.dmas.virginia.gov.

D. Reimbursement for all clinically managed low intensity residential (ASAM Level 3.1) services shall be based on the therapeutic group home (Level B) reimbursement described in 12VAC30-80-30.

E. ARTS federally qualified health center or rural health clinic services (ASAM Level 1.0) for assessment and evaluation or treatment of substance use disorder, as described in 12VAC30-130-5000 et seq., shall be reimbursed using the methodology described in 12VAC30-80-25.

E. F. Substance use case management services. Substance use case management services, as described in 12VAC30-50-491, shall be reimbursed a monthly rate based on the agency fee schedule. The Medicaid and commercial rates for similar services as well as the cost for providing services shall be considered when establishing the fee schedules so that payment shall be consistent with economy, efficiency, and quality of care. The same rates shall be paid to governmental and private providers. The agency's rates shall be set as of April 1, 2017, and are effective for services on or after that date. All rates are published on the DMAS website at www.dmas.virginia.gov http://www.dmas.virginia.gov.

F. G. Peer support services. Peer support services as described in 12VAC30-130-5160 through 12VAC30-130-5210 furnished by enrolled providers or provider agencies as described in 12VAC30-130-5190 shall be reimbursed based on the agency fee schedule for 15-minute units of service. The agency's rates set as of July 1, 2017, are effective for services on or after that date. All rates are published on the DMAS website at: www.dmas.virginia.gov http://www.dmas.virginia.gov.

12VAC30-130-5010. Addiction and recovery treatment services; purpose.

The purpose of this part shall be to establish coverage of treatment for substance use disorders as defined in the American Society of Addiction Medicine (ASAM) Criteria: Treatment Criteria for Addictive, Substance-Related and Co-Occurring Conditions, Third Edition, as published by the American Society of Addiction Medicine including outpatient physician, nurse practitioner, and clinic services, that include evidence-based medication assisted treatment, intensive outpatient services, partial hospitalization services, residential treatment services, and inpatient withdrawal management services as defined in 12VAC30-130-5040 through 12VAC30-130-5150.

12VAC30-130-5020. Definitions.

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

"Abstinence" means the intentional and consistent restraint from the pathological pursuit of reward or relief, or both, that involves the use of substances.

"Addiction" means a primary, chronic disease of brain reward, motivation, memory, and related circuitry. Addiction is defined as the inability to consistently abstain, impairment in behavioral control, persistence of cravings, diminished recognition of significant problems with one's behaviors and interpersonal relationships, and a dysfunctional emotional response. Like other chronic diseases, addiction often involves cycles of relapse and remission. Without treatment or engagement in recovery activities, addiction is progressive and can result in disability or premature death.

"Addiction-credentialed physician" means a physician who holds a board certification in addiction medicine from the American Board of Addiction Medicine, a subspecialty board certification in addition to certification in psychiatry from the American Board of Psychiatry and Neurology, or subspecialty board certification in addiction medicine from the American Osteopathic Association. DMAS also recognizes physicians with the DATA 2000 buprenorphine waiver and physicians treating addiction who have specialty training or experience in addiction medicine or addiction psychiatry. If treating adolescents, "addiction-credentialed physician" means an addiction-credentialed physician who also has experience and specialty training with adolescent medicine.

"Adherence" means the individual receiving treatment has demonstrated his ability to cooperate with, follow, and take personal responsibility for the implementation of his treatment plans.

"Adolescent" means an individual from 12 years of age to 20 years of age.

"Allied health professional" means counselor aides or group living workers who meet the DBHDS licensing requirements for unlicensed staff in residential settings.

"ARTS" means addiction and recovery treatment services.

"ARTS care coordinator" means an employee of DMAS, its contractor, or an MCO who is a licensed practitioner of the healing arts, including a physician or medical director, licensed clinical psychologist, licensed clinical social worker, licensed professional counselor, licensed substance abuse treatment practitioner, licensed marriage and family therapist, nurse practitioner, or registered nurse with two years of clinical experience in the treatment of substance use disorders. The ARTS care coordinator performs independent assessments of requests for all ARTS intensive outpatient programs (ASAM Level 2.1); partial hospitalization programs (ASAM Level 2.5); residential treatment services (ASAM Levels 3.1, 3.3, 3.5, and 3.7); and inpatient services (ASAM Level 3.7 and 4.0).

"ASAM" means the American Society of Addiction Medicine.

"ASAM criteria" means the six different life areas used by the ASAM Patient Placement Criteria to develop a holistic biopsychosocial assessment of an individual that is used for service planning, level of care, and length of stay treatment decisions.

"Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS. The 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. DMAS shall retain authority for and oversight of the BHSA entity or entities.

"BHA" means behavioral health authority.

"Biomedical" means biological or physical aspects of a member's condition that require assessment and services that are delivered by appropriately credentialed medical staff, who are available to assess and treat co-occurring biomedical disorders that may be the result of, or independent of, a substance use disorder.

"Buprenorphine-waivered practitioners" practitioner" means a health care providers provider licensed under Virginia law and registered with the Drug Enforcement Administration (DEA) to prescribe Schedule III, IV, or V medications for treatment of pain. Physicians shall have completed the buprenorphine waiver training course and obtained the waiver to prescribe or dispense buprenorphine for opioid use disorder required under More specifically, a buprenorphine-waivered physician has obtained the buprenorphine waiver through the Drug Addiction Treatment Act of 2000 (DATA 2000). They shall have been issued a DEA-X number by the DEA to prescribe buprenorphine for the treatment of opioid use disorder. Practitioners who are not physicians must meet, while a buprenorphine-waivered nurse practitioner or physician assistant has obtained the buprenorphine waiver through DATA 2000. A buprenorphine-waivered practitioner meets all federal and state requirements and be is supervised by or work works in collaboration with a qualifying physician who is buprenorphine waivered. in accordance with the applicable regulatory board. In accordance with § 54.1-2957 of the Code of Virginia, a nurse practitioner may practice without a written or electronic practice agreement with a qualifying physician. All buprenorphine-waivered practitioners have a DEA-X number to prescribe buprenorphine for the treatment of opioid use disorder.

"Care coordination" means collaboration and sharing of information among health care providers who are involved with an individual's health care to improve assist in improving the care of the individual. This includes e-consultations from primary care providers to specialists.

"Certified substance abuse counselor" or "CSAC" means the same as that term is defined in § 54.1-3507.1 of the Code of Virginia.

"Certified substance abuse counseling assistant" or "CSAC-A" means the same as that term is defined in § 54.1-3507.2 of the Code of Virginia.

"Certified substance abuse counselor-supervisee" means an individual who has completed the educational requirements described in clause (i) of § 54.1-3507.1 C of the Code of Virginia, but who has not completed the practice hours described in clause (ii) of § 54.1-3507.1 C of the Code of Virginia.

"Child" means an individual from birth up to 12 years of age.

"Clinical experience" means, for the purpose of these ARTS requirements, practical experience in providing direct services to individuals with diagnoses of substance use disorder. Clinical experience shall include supervised internships, supervised practicums, or supervised field experience. Clinical experience shall not include unsupervised internships, unsupervised practicums, and unsupervised field experience.

"Co-occurring disorders" means the presence of concurrent substance use disorder and mental illness without implication as to which disorder is primary and which secondary, which disorder occurred first, or whether one disorder caused the other. Other terms used to describe co-occurring disorders include "dual diagnosis,'' "dual disorders,'' "mentally ill chemically addicted (MICA)," "chemically addicted mentally ill (CAMI),'' "mentally ill substance abusers (MISA),'' "mentally ill chemically dependent (MICD),'' "concurrent disorders,'' "coexisting disorders,'' "comorbid disorders,'' and "individuals with co-occurring psychiatric and substance symptomatology (ICOPSS)."

"Counseling" means the same as that term is defined in § 54.1-3500 of the Code of Virginia.

"Credentialed addiction treatment professionals" professional" or "CATP" means an individual licensed or registered with the appropriate board in the following roles: (i) an addiction-credentialed physician or physician with experience or training in addiction medicine; (ii) physician extenders with experience or training in addiction medicine; (iii) a licensed psychiatrist; (iii) (iv) a licensed clinical psychologist; (iv) (v) a licensed clinical social worker; (v) (vi) a licensed professional counselor; (vi) (vii) a licensed certified psychiatric clinical nurse specialist; (vii) (viii) a licensed psychiatric nurse practitioner; (viii) (ix) a licensed marriage and family therapist; (ix) (x) a licensed substance abuse treatment practitioner; (x) residents (xi) a resident who is under the supervision of a licensed professional counselor (18VAC115-20-10), licensed marriage and family therapist (18VAC115-50-10), or licensed substance abuse treatment practitioner (18VAC115-60-10) and in a residency approved by is registered with the Virginia Board of Counseling; (xi) residents (xii) a resident in psychology who is under supervision of a licensed clinical psychologist and in a residency approved by is registered with the Virginia Board of Psychology (18VAC125-20-10); (xii) supervisees or (xiii) a supervisee in social work who is under the supervision of a licensed clinical social worker approved by and is registered with the Virginia Board of Social Work (18VAC140-20-10); or (xiii) an individual with certification as a substance abuse counselor (CSAC) (18VAC115-30-10) or certification as a substance abuse counseling-assistant (CSAC-A) (18VAC115-30-10) under supervision of licensed provider and within his scope of practice, as described in §§ 54.1-3507.1 and 54.1-3507.2 of the Code of Virginia.

"CSB" means community services board.

"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.

"DHP" means the Department of Health Professions.

"DMAS" or "the department" 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.

"Evidence-based" means an empirically-supported clinical practice or intervention with a proven ability to produce positive outcomes.

"Face-to-face" means encounters that occur in person or through telemedicine.

"FAMIS" means the Family Access to Medical Insurance Security Plan as set out in 12VAC30-141.

"FQHC" means federally qualified health center.

"Individual" means the patient, client, beneficiary, or member who receives services set out in 12VAC30-130-5000 et seq. These terms are used interchangeably.

"Individual service plan" or "ISP" means the same as the term is defined in 12VAC30-50-226. an initial and comprehensive treatment plan that is regularly updated and specific to an individual's unique treatment needs as identified in the assessment. An ISP contains an individual's treatment or training needs, the individual's goals and measureable objectives to meet the identified needs, services to be provided with the recommended frequency to accomplish the measurable goals and objectives, and an individualized discharge plan that describes transition to other appropriate services. An individual is included in the development of the ISP, and the ISP is signed by the individual. If the individual is a minor, the ISP is also signed by the individual's parent or legal guardian. An ISP includes documentation if the individual is a minor child or an adult who lacks legal capacity and is unable or unwilling to sign the ISP.

"Induction phase" means the medically monitored initiation of buprenorphine, buprenorphine and naloxone, naltrexone, or methadone treatment performed in a qualified practitioner's office or licensed OTP. The goal of the induction phase is to find the individual's ideal dose of buprenorphine, buprenorphine and naloxone, naltrexone, or methadone. The ideal dose minimizes both side effects and drug craving.

"Licensed practical nurse" means a professional who is licensed by the Commonwealth as a practical nurse or holds a multistate licensure privilege to practice practical nursing according to 18VAC90-19-80.

"Managed care organization" or "MCO" meansan organization that offers managed care health insurance plans (MCHIP), as defined by § 38.2-5800 of the Code of Virginia, which means an arrangement for the delivery of health care in which a health carrier undertakes to provide, arrange for, pay for, or reimburse any of the costs of health care services for a covered person on a prepaid or insured basis that (i) contains one or more incentive arrangements, including any credentialing requirements intended to influence the cost or level of health care services between the health carrier and one or more providers with respect to the delivery of health care services and (ii) requires or creates benefit payment differential incentives for covered persons to use providers that are directly or indirectly managed, owned, under contract with, or employed by the health carrier.

"Medication assisted treatment" or "MAT" means the same as that term is defined in 42 CFR 8.2.

"Multidimensional assessment" or "assessment" means the individualized, person-centered biopsychosocial assessment performed face-to-face, in which the provider obtains comprehensive information from the individual (including, and family members and significant others as needed) needed, including history of the present illness; family history; developmental history; alcohol, tobacco, and other drug use or addictive behavior history; personal/social personal or social history; legal history; psychiatric history; medical history; spiritual history as appropriate; review of systems; mental status exam; physical examination; formulation and diagnoses; survey of assets, vulnerabilities and supports; and treatment recommendations. The ASAM multidimensional assessment is a theoretical framework for this individualized, person-centered assessment that includes the following six dimensions: (i) acute intoxication or likelihood of withdrawal potential, or both; (ii) biomedical medical conditions and complications, both historical and current; (iii) emotional, behavioral, or cognitive conditions status and complications any identified issues; (iv) an individual's readiness to change; (v) risks for relapse, or continued use, or continued problem potential; and (vi) recovery or living home environment. The level of care determination, ISP, and recovery strategies development may be based upon this multidimensional assessment.

"Office-based opioid treatment" or "OBOT" means addiction treatment services for individuals with moderate to severe opioid use disorder provided by buprenorphine-waivered practitioners working in collaboration with credentialed addiction treatment practitioners providing psychosocial counseling in public and private practice settings.

"Opiate" means one of a group of alkaloids derived from the opium poppy (Papaver somniferum) that has the ability to induce analgesia, euphoria, and, in higher doses, stupor, coma, and respiratory depression but excludes synthetic opioids.

"Opioid" means any psychoactive chemical that resembles morphine in pharmacological effects, including opiates and synthetic/semisynthetic synthetic or semisynthetic agents that exert their effects by binding to highly selective receptors in the brain where morphine and endogenous opioids affect their actions.

"Opioid treatment program" or "OTP" means a program certified by the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) that engages in supervised assessment and treatment, using methadone, buprenorphine, L-alpha acetyl methadol, or naltrexone, of individuals who are addicted to opioids the same as that term is defined in 42 CFR 8.2.

"Opioid treatment services" or "OTS" means preferred office-based opioid treatment (OBOT) and opioid treatment programs OTPs that encompass a variety of pharmacological and nonpharmacological treatment modalities, including substance use disorder counseling and psychotherapy.

"Overdose" means the inadvertent or deliberate consumption of a dose of a chemical substance much larger than either habitually used by the individual or ordinarily used for treatment of an illness that is likely to result in a serious toxic reaction or death.

"Physician extenders" means licensed nurse practitioners as defined in 18VAC90-30-10 § 54.1-3000 of the Code of Virginia and licensed physician assistants as defined in § 54.1-2900 of the Code of Virginia.

"Practitioner" means a provider who is permitted to prescribe buprenorphine by the scope of his licenses under federal and state law.

"Preferred office-based opioid treatment" or "preferred OBOT" means addiction treatment services for individuals with a primary opioid use disorder provided by buprenorphine-waivered practitioners working in collaboration with CATPs providing psychotherapy and substance use disorder counseling in public and private practice settings.

"Program of assertive community treatment" or "PACT" means the same as that term is defined in 12VAC35-105-20.

"Psychoeducation" means (i) a specific form of education aimed at helping individuals who have a substance use disorder or mental illness and their family members or caregivers to access clear and concise information about substance use disorders or mental illness and (ii) a way of accessing and learning strategies to deal with substance use disorders or mental illness and its effects in order to design effective treatment plans and strategies.

"Psychotherapy" or "therapy" means the use of psychological methods in a professional relationship to assist a person to acquire great human effectiveness or to modify feelings, conditions, attitudes, and behaviors that are emotionally, intellectually, or socially ineffectual or maladaptive.

"Recovery" means a process of sustained effort that addresses the biological, psychological, social, and spiritual disturbances inherent in addiction and consistently pursues abstinence, behavior control, dealing with cravings, recognizing problems in one's behaviors and interpersonal relationships, and more effective coping with emotional responses leading to reversal of negative, self-defeating internal processes and behaviors and allowing healing of relationships with self and others. The concepts of humility, acceptance, and surrender are useful in this process.

"Registered nurse" or "RN" means a professional who is either licensed by the Commonwealth or who holds a multi-state licensure privilege to practice nursing the same as "professional nurse" is defined in § 54.1-3000 of the Code of Virginia.

"Relapse" means a process in which an individual who has established abstinence or sobriety experiences recurrence of signs and symptoms of active addiction, often including resumption of the pathological pursuit of reward or relief through the use of substances and other behaviors often leading to disengagement from recovery activities. Relapse can be triggered by exposure to (i) rewarding substances and behaviors, (ii) environmental cues to use, and (iii) emotional stressors that trigger heightened activity in brain stress circuits. The event of using or acting out is the latter part of the process, which can be prevented by early intervention.

"RHC" means rural health clinic.

"SBIRT" means screening, brief intervention, and referral to treatment. SBIRT services are an evidence-based and community-based practice designed to identify, reduce, and prevent problematic substance use disorders.

"Service authorization" means the process to approve specific services for an enrolled Medicaid, FAMIS Plus, or FAMIS individual by a DMAS service authorization or its contractor, BHSA, or an MCO 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.

"Substance use care coordinator" means staff in an OTP or preferred OBOT setting who have:

1. At least a bachelor's degree in one of the following fields: social work, psychology, psychiatric rehabilitation, sociology, counseling, vocational rehabilitation, or human services counseling, and at least either (i) one year of substance use disorder related direct experience or training or a combination of experience or training in providing services to individuals with a diagnosis of substance use disorder or (ii) a minimum of one year of clinical experience or training in working with individuals with co-occurring diagnoses of substance use disorder and mental illness; or

2. Licensure by the Commonwealth as a registered nurse with at least either (i) one year of direct experience or training or a combination of experience and training in providing services to individuals with a diagnosis of substance use disorder or (ii) a minimum of one year of clinical experience or training or a combination of experience and training in working with individuals with co-occurring diagnoses of substance use disorder and mental illness; or

3. Certification as a CSAC or a CSAC-A.

"Substance use case management" means the same as set out in 12VAC30-50-491.

"Substance use disorder" or "SUD" means a substance-related addictive disorder, as defined in the DSM-5 with the exception of tobacco-related disorders and non-substance-related disorders, marked by a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues to use, is seeking treatment for the use of, or is in active recovery from the use of alcohol, tobacco, or other drugs despite significant related problems.

"Substance use disorder counseling" means the same as "substance abuse counseling" is defined in 18VAC115-30-10.

"Telemedicine" means the practice of the medical arts via electronic means rather than face-to-face the real-time, two-way transfer of medical data and information using an interactive audio-video connection for the purposes of medical diagnosis and treatment. The member is located at the originating site, while the provider renders services from a remote location via the audio-video connection. Equipment utilized for telemedicine shall be of sufficient audio quality and visual clarity as to be functionally equivalent to a face-to-face encounter for professional medical services.

"Tolerance" or "tolerate" means a state of adaptation in which exposure to a drug induces changes that result in diminution of one or more of the drug's effects over time.

"Withdrawal management" means services to assist an individual's withdrawal from the use of substances.

12VAC30-130-5030. Eligible individuals.

Children and adults who participate in Medicaid managed care plans and Medicaid fee for service and meet ASAM medical necessity criteria shall be eligible for ARTS. Notwithstanding the coverage limitations set forth in the Governor's Access Plan for the Seriously Mental Ill (GAP SMI), GAP-SMI enrollees who meet ASAM medical necessity criteria shall be eligible for ARTS with the exception of inpatient detoxification services (ASAM Level 4.0) and substance use case management.

12VAC30-130-5040. Covered services: requirements; limits; standards.

A. Addiction and recovery and treatment services.

1. In order to be covered, ARTS shall (i) meet medical necessity criteria based upon the multidimensional assessment completed by a credentialed addiction treatment professional within the scope of their practice CATP or a CSAC under the supervision of a CATP and (ii) be accurately reflected in provider medical record documentation and on providers' provider claims for services by recognized diagnosis codes that support and are consistent with the requested professional services. ARTS services require a primary substance use diagnosis, and the purpose for treatment shall be related to the substance use disorder. Individuals may have a secondary, co-occurring diagnosis. A CATP or a CSAC under the supervision of a CATP shall complete the multidimensional assessments. A CATP must sign and date assessments performed by a CSAC within one business day.

2. These ARTS services, with their service definitions, shall be covered in all levels of care: (i) medically managed intensive inpatient services (ASAM Level 4); (ii) substance use residential/inpatient residential or inpatient services (ASAM Levels 3.1, 3.3, 3.5, and 3.7); (iii) substance use intensive outpatient and partial hospitalization programs (ASAM Levels 2.1 and 2.5); (iv) opioid treatment services, (opioid treatment programs and preferred office-based opioid treatment); (v) substance use outpatient services (ASAM Level 1.0); (vi) early intervention services (ASAM Level 0.5); (vii) substance use care coordination, (viii) substance use case management services; and (ix) withdrawal management services, which shall be provided when medically necessary, as a component of the medically managed inpatient services (ASAM Level 4.0), substance use residential/inpatient services (ASAM Levels 3.3, 3.5, and 3.7), substance use intensive outpatient and partial hospitalization programs (ASAM Levels 2.1 and 2.5), opioid treatment services, opioid treatment programs and office-based opioid treatment, and substance use outpatient services (ASAM Level 1.0).

B. ARTS services shall be fully integrated with all physical health and behavioral health services for a complete continuum of care for all Medicaid individuals meeting the medical necessity criteria. In order to receive reimbursement for ARTS services, the individual shall be enrolled in Virginia Medicaid and shall meet the following medical necessity criteria:

1. The individual shall demonstrate at least one diagnosis from the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) for Substance-Related substance-related and Addictive Disorders addictive disorders, with the exception of tobacco-related disorders or caffeine-related disorders or dependence and nonsubstance-related and non-substance-related addictive disorders or be, marked by a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues to use, is seeking treatment for the use of, or is in active recovery from the use of alcohol or other drugs despite significant related problems. Individuals younger than 21 years of age may also qualify if they are assessed to be at risk for developing a substance use disorder, for youth younger than 21 years of age using the ASAM multidimensional assessment.

2. The individual shall be assessed by a certified addiction treatment professional CATP or a CSAC under the supervision of a CATP who will determine if he the individual meets the severity and intensity of treatment requirements for each service level defined by the most current version of the American Society of Addiction Medicine (ASAM) Treatment Criteria for Addictive, Substance-Related and Co-Occurring Conditions (Third Edition, 2013). Medical necessity for ASAM levels of care shall be based on the outcome of the individual's documented multidimensional assessment. The following outpatient ASAM levels of care do not require a complete multidimensional assessment using the ASAM theoretical framework to determine medical necessity but do require an assessment by a certified addiction treatment professional: opioid treatment programs, office-based opioid treatment, and substance use outpatient services (ASAM Level 1.0).

3. For individuals younger than 21 years of age who do not meet the ASAM medical necessity criteria upon initial review, a second individualized review shall be conducted to determine if the individual needs medically necessary treatment under the early periodic screening diagnosis and treatment (EPSDT) benefit described in § 1905(a) of the Social Security Act to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening.

C. Determination of medical necessity based on ASAM criteria for addiction and recovery treatment services.

1. DMAS contracted managed care organizations and the BHSA or its contractor shall employ or contract with licensed treatment professionals to apply the ASAM criteria to review and coordinate service needs when administering ARTS benefits.

2. The ARTS care coordinator or a licensed physician or medical director employed by the DMAS or its contractor or an MCO or BHSA shall perform an independent assessment of requests for all ARTS intensive outpatient services (ASAM Level 2.1), partial hospitalization services (ASAM Level 2.5), residential treatment services (ASAM Levels 3.1, 3.3, 3.5, and 3.7), and ARTS inpatient treatment services (ASAM Level Levels 3.7 and 4.0).

3. Length of treatment and service limits shall be determined by the ARTS care coordinator or a licensed physician or medical director employed by the BHSA DMAS or its contractor or an MCO who is applying the ASAM criteria.

4. "ARTS care coordinator" means a licensed practitioner of the healing arts, including a physician or medical director, licensed clinical psychologist, licensed clinical social worker, licensed professional counselor, or nurse practitioner or registered nurse with clinical experience in substance use disorders, who is employed by the BHSA or MCO to perform an independent assessment of requests for all ARTS residential treatment services and inpatient services (ASAM Levels 3.1, 3.3, 3.5, 3.7, and 4.0).

12VAC30-130-5050. Covered services: clinic services - opioid treatment program services.

A. Settings for opioid treatment program (OTP) services. The agency-based OTP provider shall be licensed by DBHDS and contracted by the BHSA DMAS or its contractor or an MCO. Opioid treatment services The staffing requirements for OTP providers shall follow the DBHDS licensing requirements set forth in 12VAC35-105-925 and in the DBHDS guidance document entitled "Opioid Medication Assisted Treatment License and Oversight" (March, 2017). The interdisciplinary team shall include CATPs acting within the scope of practice in accordance to their professional regulatory board and state and federal requirements, including an addiction-credentialed physician as defined in 12VAC30-130-5020. OTP services are allowable in allowed simultaneously for members in other ASAM Levels, including 1.0 through 3.7 (excluding inpatient services). OTP's OTPs shall meet the service components, staff requirements, and risk management requirements.

B. OTP service components.

1. Linking the individual to psychological, medical, and psychiatric consultation as necessary to meet the individual's needs.

2. Access to emergency medical and psychiatric care through connections with more intensive levels of care.

3. Access to evaluation and ongoing primary care.

4. Ability to conduct or arrange for appropriate laboratory and toxicology tests including urine drug screenings, using either urine or blood serums.

5. Licensed physicians Physicians who are available to evaluate and monitor (i) use of methadone, buprenorphine products, or naltrexone products and (ii) pharmacists and nurses to dispense and administer these medications and who follow the Board of Medicine guidance for treatment of individuals with buprenorphine for addiction.

6. Individualized, patient-centered assessment and treatment.

7. Ability to assess, order, administer, reassess, and regulate medication and dose levels appropriate to the individual; supervise withdrawal management from opioid analgesics, including methadone, buprenorphine products, or naltrexone products; and oversee and facilitate access to appropriate treatment for opioid use disorder.

8. Medication for other physical and mental health illness is provided as needed either on site onsite or through collaboration with other providers.

9. Cognitive, behavioral, and other substance use disorder-focused therapies, psychotherapies and substance use disorder counseling by a CATP reflecting a variety of treatment approaches, provided to the individual on an individual, group, or family basis. CSACs and CSAC-supervisees are recognized to provide substance use disorder counseling in these settings as allowed within scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

10. Optional substance use care coordination that includes integrating behavioral health into primary care and specialty medical settings through interdisciplinary care planning and monitoring individual progress and tracking individual outcomes; supporting conversations between buprenorphine-waivered practitioners and behavioral health professionals to develop and monitor individualized treatment plans; linking individuals with community resources to facilitate referrals and respond to social service needs; and tracking and supporting individuals when they obtain medical, behavioral health, or social services outside the practice.

11. Ability Provision of onsite screening or the ability to refer for screening for infectious diseases such as human immunodeficiency virus, hepatitis B and C, and tuberculosis at treatment initiation and then at least annually or more often based on risk factors and the ability to provide or refer for treatment of infectious diseases as necessary.

12. Onsite medication administration treatment during the induction phase, which must be provided by a physician, nurse practitioner, physician assistant, or registered nurse. Medication administration during the maintenance phase may be provided either by a registered nurse or licensed practical nurse.

13. Prescription of naloxone for each member receiving methadone, buprenorphine products, or naltrexone products.

14. Ability to provide pregnancy testing for women of childbearing age.

15. For individuals of childbearing age, the ability to provide family planning services or to refer the individual for family planning services.

C. OTP staff requirements.

1. Staff requirements shall meet the licensing requirements of 12VAC35-105-925. The interdisciplinary team shall include credentialed addiction professionals CATPs trained in the treatment of opioid use disorder, including an addiction credentialed physician or physician extender and credentialed addiction treatment professionals CATPs as defined in 12VAC30-130-5020. "Addiction-credentialed physician" means a physician who holds a board certification in addiction medicine from the American Board of Addiction Medicine, a subspecialty board certification in addiction psychiatry from the American Board of Psychiatry and Neurology, or subspecialty board certification in addiction medicine from the American Osteopathic Association. In situations where a certified addiction physician is not available, physicians treating addiction should have some specialty training or experience in addiction medicine or addiction psychiatry. If treating adolescents, they should have experience with adolescent medicine. OTPs may utilize CSACs and CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia. OTPs may also utilize CSAC-As pursuant to § 54.1-3507.2 of the Code of Virginia as well as registered peer recovery specialists within their scopes of practice. A registered peer recovery specialist shall meet the definition in § 54.1-3500 of the Code of Virginia.

2. Staff shall be knowledgeable in the assessment, interpretation, and treatment of the biopsychosocial dimensions of alcohol or other substance use disorders.

3. A physician or physician extender as defined in 12VAC30-130-5020, shall be available during medication dispensing and clinical operating hours, in person or by telephone.

D. OTP risk management shall be clearly and adequately documented in each individual's record and shall include:

1. Random urine drug screening, using either urine or blood serums, for all individuals, conducted at least eight times during a 12-month period as described in 12VAC35-105-980. Definitive screenings shall only be utilized when clinically indicated. Outcomes of the drug screening shall be used to support positive patient outcomes and recovery.

2. A check of the Virginia Prescription Monitoring Program prior to initiation of buprenorphine products or naltrexone products and at least quarterly for all individuals.

3. Prescription of naloxone.

4. Opioid overdose prevention education, including the prescribing purpose of and the administration of naloxone and the impact of polysubstance use. Education shall include discussion of the role of medication assisted treatment and the opportunity to reduce harm associated with polysubstance use. The goal is to help individuals remain in treatment to reduce the risk for harm.

5. Clinically indicated infectious disease testing for diseases such as HIV; hepatitis A, B, and C; syphilis; and tuberculosis at treatment initiation and then annually or more frequently, depending on the clinical scenario and the patient's risk. Those who test positive shall be treated either onsite or through referral.

6. For individuals without immunity to the hepatitis B virus, vaccination, either onsite or through referral, shall be offered.

7. For individuals without HIV infection, pre-exposure prophylaxis to prevent HIV infection, either onsite or through referral, shall be offered.

8. Pregnancy testing for women of childbearing age, and contraceptive services, either onsite or through referral, shall be offered.

12VAC30-130-5060. Covered services: clinic services - preferred office-based opioid treatment.

A. Office-based Preferred office-based opioid treatment (OBOT) shall be provided by a buprenorphine-waivered practitioner and may be provided in a variety of practice settings, including primary care clinics, outpatient health system clinics, psychiatry clinics, federally qualified health centers FQHCs, CSBs/BHAs CSBs, BHAs, local health department clinics, and physician offices. The practitioner shall be contracted by the BHSA DMAS or its contractor or an MCO to perform OBOT services. OBOT services shall meet the following criteria: established in this section.

1. B. OBOT service components.

a. 1. Access to emergency medical and psychiatric care.

b. 2. Affiliations with more intensive levels of care such as intensive outpatient programs and partial hospitalization programs that unstable to which individuals can be referred to when clinically indicated.

c. 3. Individualized, patient-centered multidimensional assessment and treatment.

d. 4. Assessing, ordering, administering, reassessing, and regulating medication and dose levels appropriate to the individual; supervising withdrawal management from opioid analgesics; and overseeing and facilitating access to appropriate treatment for opioid use disorder and alcohol use disorder.

e. 5. Medication for other physical and mental illnesses health disorders shall be provided as needed either on site onsite or through collaboration with other providers.

f. 6. Assurance that buprenorphine products are only dispensed onsite during the induction phase. After the induction phase, buprenorphine products shall be prescribed to the member.

7. Assurance that buprenorphine monoproduct is only prescribed in accordance with Board of Medicine rules related to the prescribing of buprenorphine for addiction.

8. Cognitive, behavioral, and other substance use disorder-focused therapies counseling and psychotherapies, reflecting a variety of treatment approaches, shall be provided to the individual on an individual, group, or family basis and shall be provided by credentialed addiction treatment professionals CATPs working in collaboration with the buprenorphine-waivered practitioner who is prescribing buprenorphine products or naltrexone products to individuals with moderate to severe a primary opioid use disorder. These therapies can be provided via telemedicine as long as they meet the department's DMAS requirements for an OBOT and for the use of telemedicine. (See the Medicaid Memo entitled "Updates to Telemedicine Coverage" dated May 13, 2014.) Preferred OBOTs may utilize CSACs and CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scope of practice as defined in § 54.1-3507.1 of the Code of Virginia.

g. 9. Substance use care coordination provided, including interdisciplinary care planning between the buprenorphine-waivered physician practitioner and the licensed behavioral health provider treatment team to develop and monitor individualized and personalized treatment plans focused on the best outcomes for the individual. This care coordination includes monitoring individual progress, tracking individual outcomes, linking the individual with community resources to facilitate referrals and respond to social service needs, and tracking and supporting the individual's medical, behavioral health, or social services received outside the practice.

h. Referral 10. Provision of onsite screening or referral for screening for clinically indicated infectious diseases such as human immunodeficiency virus, hepatitis B and C, and tuberculosis disease testing for diseases such as HIV; hepatitis A, B, and C; syphilis; and tuberculosis at treatment initiation and then at least annually or more often based on risk factors and the ability to provide or refer for treatment of infectious diseases as necessary.

11. Onsite medication administration treatment during the induction phase, which shall be provided by a physician, nurse practitioner, physician assistant, or registered nurse.

12. Ability to provide pregnancy testing for women of childbearing age.

13. For individuals of childbearing age, the ability to provide family planning services or to refer the individual for family planning services.

B. C. OBOT staff requirements.

1. Buprenorphine-waivered practitioner licensed under Virginia law who has completed one of the continuing medical education courses approved by the federal Center for Substance Abuse Treatment and obtained the waiver to prescribe or dispense buprenorphine for opioid use disorder required under the Drug Addiction Treatment Act of 2000 (21 USC § 800 et seq.). The practitioner must have a DEA-X number issued by the U.S. Drug Enforcement Agency that is included on all buprenorphine prescriptions for treatment of opioid use disorder practitioners are required.

2. Credentialed addiction treatment professionals CATPs are required and shall work in collaboration with the buprenorphine-waivered practitioner who is prescribing buprenorphine products or naltrexone products to individuals with moderate to severe a primary opioid use disorder. This collaboration can be in person or via telemedicine as long as it meets the department's requirements for the OBOT setting and for telemedicine. CSACs, CSAC-supervisees, and CSAC-As are also recognized in the preferred OBOT setting as well as registered peer recovery specialists. A registered peer recovery specialist shall meet the definition in § 54.1-3500 of the Code of Virginia.

C. D. OBOT risk management shall be documented in each individual's record and shall include:

1. Random urine drug screening, using either urine or blood serums, for all individuals, conducted at a minimum of eight times per year. Drug screenings include presumptive and definitive screenings and shall be accurately interpreted. Definitive screenings shall only be utilized when clinically indicated. Outcomes of the drug screening shall be used to support positive patient outcomes and recovery.

2. A check of the Virginia Prescription Monitoring Program prior to initiation of buprenorphine products or naltrexone products and at least quarterly for all individuals thereafter.

3. Prescription of naloxone.

4. Opioid overdose prevention education, including the prescribing purpose of and the administration of naloxone and the impact of polysubstance use. Education shall include discussion of the role of medication assisted treatment and the opportunity to reduce harm associated with polysubstance use. The goal is to help individuals remain in treatment to reduce the risk for harm.

5. Periodic monitoring of unused medication and opened medication wrapper counts when clinically indicated.

6. Clinically indicated infectious disease testing for diseases such as HIV; hepatitis A, B, and C; syphilis; and tuberculosis at treatment initiation and then annually or more frequently, depending on the clinical scenario and the patient's risk. Those individuals who test positive shall be treated either onsite or through referral.

7. For individuals without immunity to the hepatitis B virus, vaccination either onsite or through referral.

8. For patients without HIV infection, pre-exposure prophylaxis to prevent HIV infection shall be offered either onsite or through referral.

9. Women of child-bearing age shall be tested for pregnancy and shall be offered contraceptive services either onsite or through referral.

12VAC30-130-5070. Covered services: practitioner services - early intervention/screening brief intervention and referral to treatment (ASAM Level 0.5).

A. Early intervention (ASAM Level 0.5) settings for screening, brief intervention, and referral to treatment (SBIRT) services shall include health care settings, including local health departments, federally qualified health centers FQHCs, rural health clinics RHCs, CSBs/BHAs CSBs, BHAs, health systems, emergency departments, pharmacies, physician offices, and outpatient clinics. These providers Providers shall be licensed by DHP the Department of Health Professions and either directly contracted by the BHSA DMAS or its contractor or an MCO to perform the interpretation and intervention for this level of care, or shall be employed by organizations that are contracted by the BHSA DMAS or its contractor or an MCO.

B. Early intervention/SBIRT intervention or SBIRT (ASAM Level 0.5) service components shall include:

1. Identifying individuals who may have alcohol or other substance use problems using an evidence-based screening tool.

2. Following administration of the evidence-based screening tool, a brief intervention by a licensed clinician CATP acting within the scope of the CATP's practice shall be provided to educate individuals about substance use, alert these individuals to possible consequences, and, if needed, begin to motivate individuals to take steps to change their behaviors. Billing shall occur through the licensed provider or agency.

C. Early intervention/SBIRT intervention or SBIRT (ASAM Level 0.5) staff requirements. Physicians, pharmacists, and other credentialed addiction treatment professionals CATPs shall administer the evidence-based screening tool with the individual and provide the counseling and intervention. Licensed providers may delegate administration of the evidence-based screening tool to other clinical staff as allowed by their scope of practice, such as physicians delegating administration of the tool to a CSAC, a CSAC-supervisee, a licensed registered nurse, or a licensed practical nurse, but the licensed provider shall review the tool with the individual and provide the counseling and intervention. The physician may delegate the counseling and intervention but shall be available for review as needed. Billing for SBIRT shall occur through the licensed provider or agency.

12VAC30-130-5080. Covered services: outpatient services - physician services (ASAM Level 1.0).

A. Outpatient services (ASAM Level 1.0) shall be provided by a credentialed addiction treatment professional, psychiatrist, or physician CATP contracted by the BHSA DMAS or its contractor or an MCO to perform the services in the following community based settings: primary care clinics, outpatient health system clinics, psychiatry clinics, federally qualified health centers (FQHCs) FQHCs, community service boards/BHAs RHCs, CSBs, BHAs, local health departments, and physician and provider offices. Reimbursement for substance use outpatient services shall be made for medically necessary services provided in accordance with an ISP or the treatment plan and include withdrawal management as necessary. Services can be provided face-to-face in person or by telemedicine. Outpatient services shall meet the ASAM Level 1.0 service components and staff requirements as follows:

1. Outpatient services (ASAM Level 1.0) service components.

a. Substance use outpatient services shall be provided fewer than nine hours per week and may be delivered in the following health care settings: local health departments, FQHCs, rural health clinics, CSBs/BHAs CSBs, BHAs, health systems, emergency departments, physician and provider offices, and outpatient clinics. Provision of services in a setting other than the office or a clinic, as defined in this subsection shall be documented. Services shall include professionally directed screening, evaluation, treatment, and ongoing recovery and disease management services.

b. A multidimensional assessment shall (i) be used, (ii) be documented to determine that an individual meets the medical necessity criteria, and (iii) include the evaluation or analysis of substance use disorders, the diagnosis of substance use disorder, and the assessment of treatment needs to provide medically necessary services. The multidimensional assessment shall include a physical examination and laboratory testing necessary for substance use disorder treatment as necessary.

c. Individual psychotherapy or substance use disorder counseling between the individual and shall be provided by a credentialed addiction treatment professional shall be provided CATP. Services shall be provided face to face in person or by telemedicine shall qualify as reimbursable.

d. Group psychotherapy or substance use disorder counseling shall be provided by a credentialed addiction treatment professional, CATP with a maximum of 10 individuals in the group shall be provided. Such counseling and shall focus on the needs of the individuals served.

e. Family therapy psychotherapy or substance use disorder counseling shall be provided by a CATP to facilitate the individual's recovery and support for the family's recovery.

f. Evidenced-based patient education on addiction, treatment, recovery, and associated health risks shall be provided.

g. Medication services shall be provided, including the prescription of or administration of medication related to substance use treatment, or the assessment of the side effects or results of that medication. Medication services shall be provided by staff lawfully authorized to provide such services who shall order laboratory testing within their scope of practice or licensure.

h. Collateral services shall be provided. "Collateral services" means services provided by therapists or counselors for the purpose of engaging persons who are significant to the individual receiving SUD services. The services are focused on the individual's treatment needs and support achievement of his recovery goals.

2. Outpatient services (ASAM Level 1.0) staff requirements shall include:

a. Credentialed addiction treatment professional A CATP; or

b. A registered nurse or a practical nurse who is licensed by the Commonwealth with at least one year of clinical experience involving medication management.

B. Outpatient services (ASAM Level 1.0) co-occurring enhanced programs shall include:

1. Ongoing substance use case management for highly crisis prone individuals with co-occurring disorders.

2. Credentialed addiction treatment professionals CATPs who are trained in severe and chronic mental health and psychiatric disorders and are able to assess, monitor, and manage individuals who have a co-occurring mental health disorder. "Co-occurring disorders" means the presence of concurrent substance use disorder and mental illness without implication as to which disorder is primary and which is secondary, which disorder occurred first, or whether one disorder caused the other.

12VAC30-130-5090. Covered services: community based services - intensive outpatient services (ASAM Level 2.1).

A. Intensive outpatient services (ASAM Level 2.1) shall be a structured program of skilled treatment services for adults, children, and adolescents delivering a minimum of three service hours per service day for adults to achieve an average of nine to 19 hours of services per week for adults and a minimum of two service hours per service day for children and adolescents to achieve an average of six to 19 hours of services per week for children and adolescents. Withdrawal management services may be provided as necessary. The following service components shall be provided weekly as directed by the ISP for reimbursement:

1. Medical, psychological, psychiatric, laboratory, and toxicology services, which are available through consultation or referral.

2. Psychiatric and other individualized treatment planning.

3. Individual, family, and group psychotherapy, substance use disorder counseling, medication management, family therapy, and psychoeducation. "Psychoeducation" means (i) a specific form of education aimed at helping individuals who have a substance use disorder or mental illness and their family members or caregivers to access clear and concise information about substance use disorders or mental illness and (ii) a way of accessing and learning strategies to deal with substance use disorders or mental illness and its effects in order to design effective treatment plans and strategies.

4. Medication assisted treatment that is provided onsite or through referral.

5. Occupational and recreational therapies, motivational interviewing, enhancement, and engagement strategies to inspire an individual's motivation to change behaviors.

5. 6. Psychiatric and medical consultation, which shall be available within 24 hours of the requested consult by telephone and preferably within 72 hours of the requested consult in person or via telemedicine.

6. 7. Psychopharmacological consultation.

7. 8. Addiction medication management and 24-hour crisis services.

8. 9. Medical, psychological, psychiatric, laboratory, and toxicology services.

B. Intensive outpatient services (ASAM Level 2.1) shall be provided by agency-based providers that shall be licensed by DBHDS as a substance abuse intensive outpatient service for adults, children, and adolescents and contracted with the BHSA DMAS or its contractor or an MCO to provide this service. Intensive outpatient service providers shall meet the ASAM Level 2.1 service components and staff requirements as follows:

1. Interdisciplinary team of credentialed addiction treatment professionals CATPs shall be required. ASAM Level 2.1 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Generalist physicians or physicians with experience in addiction medicine are permitted to provide general medical evaluations and concurrent/integrated concurrent or integrated general medical care.

3. Physicians and physician extenders who are either employed by or contracted with the agency or through referral arrangements with the agency and who shall have a DEA-X number to prescribe buprenorphine.

4. Staff who shall be cross-trained to understand signs and symptoms of psychiatric disorders and be able to understand and explain the uses of psychotropic medications and understand interactions with substance use and other addictive disorders.

4. 5. Emergency services, which shall be available, when necessary, by telephone 24 hours per day and seven days per week when the treatment program is not in session.

5. 6. Direct affiliation with, or close coordination through referrals to, higher and lower levels of care and supportive housing services.

C. Intensive outpatient services (ASAM Level 2.1) co-occurring enhanced programs.

1. Co-occurring capable programs offer these therapies and support systems in intensive outpatient services described in this section to individuals with co-occurring addictive and psychiatric disorders who are able to tolerate and benefit from a planned program of therapies.

2. Individuals who are not able to benefit from a full program of therapies will be offered enhanced program services to match the intensity of hours in ASAM Level 2.1, including substance use case management, program of assertive community treatment (PACT), medication management, and psychotherapy. "Program of assertive community treatment" or "PACT" means the same as defined in 12VAC30-105-20.

12VAC30-130-5100. Covered services: community based care - partial hospitalization services (ASAM Level 2.5).

A. Partial hospitalization services (ASAM Level 2.5) components. Partial hospitalization services components shall include the following, as defined in the ISP and provided on a weekly basis:

1. Individualized treatment planning.

2. A minimum of 20 hours per week and at least five service hours per service day of skilled treatment services with a planned format, including individual and group psychotherapy, substance use disorder counseling, medication management, family therapy, education groups, occupational and recreational therapy, and other therapies. Withdrawal management services may be provided as necessary. Time not spent in skilled, clinically intensive treatment is not billable.

3. Family therapies psychotherapy and substance use disorder counseling involving family members, guardians, or significant other others in the assessment, treatment, and continuing care of the individual.

4. A planned format of therapies, delivered in individual or group settings.

5. 4. Motivational interviewing, enhancement, and engagement strategies.

5. Medication assisted treatment that is provided onsite or through referral.

B. Partial hospitalization services (ASAM Level 2.5). The substance use partial hospitalization service provider shall be licensed by DBHDS as a substance abuse partial hospitalization program or substance abuse/mental abuse or mental health partial hospitalization program and contracted with the BHSA DMAS or its contractor or an MCO. Partial hospitalization service providers shall meet the ASAM Level 2.5 support systems and staff requirements as follows:

1. Interdisciplinary team comprised of credentialed addiction treatment professionals and CATPs, which shall include an addiction-credentialed physician, or physician with experience in addiction medicine, or physician extenders as defined in 12VAC30-130-5020, shall be required. ASAM Level 2.5 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Physicians shall have specialty training or experience, or both, in addiction medicine or addiction psychiatry. Physicians who treat adolescents shall have experience with adolescent medicine.

3. Physicians and physician extenders who are either employed by or contracted with the agency and who shall have a DEA-X number to prescribe buprenorphine.

4. Program staff shall be cross-trained to understand signs and symptoms of mental illness and be able to understand and explain the uses of psychotropic medications and understand interactions with substance use and other addictive disorders.

4. 5. Medical, psychological, psychiatric, laboratory, and toxicology services that are available by consult or referral.

5. 6. Psychiatric and medical formal agreements to provide medical consult within eight hours of the requested consult by telephone or within 48 hours in person or via telemedicine.

6. 7. Emergency services are available 24-hours a day and seven days a week.

7. 8. Direct affiliation with or close coordination through referrals to higher and lower levels of care and supportive housing services.

C. Partial hospitalization services (ASAM Level 2.5) co-occurring enhanced programs shall offer:

1. Therapies and support systems as described in this section to individuals with co-occurring addictive and psychiatric disorders who are able to tolerate and benefit from a full program of therapies. Other individuals who are not able to benefit from a full program of therapies (who are severely or chronically mentally ill) will be offered enhanced program services to constitute intensity of hours in ASAM Level 2.5, including substance use case management, assertive community treatment PACT, medication management, and psychotherapy.

2. Psychiatric services as appropriate to meet the individual's mental health condition. Services may be available by telephone and on site onsite, or closely coordinated off site offsite, or via telemedicine within a shorter time than in a co-occurring capable program.

3. Clinical leadership and oversight and, at a minimum, capacity to consult with an addiction psychiatrist via telephone, via telemedicine, or in person.

4. Credentialed addiction treatment professionals CATPs with experience assessing and treating co-occurring mental illness.

12VAC30-130-5110. Covered services: clinically managed low intensity residential services (ASAM Level 3.1).

A. Clinically managed low intensity residential services (ASAM Level 3.1). The agency-based residential group home services (ASAM Level 3.1) shall be licensed by DBHDS as a mental health and substance abuse group home service for adults or children or licensed by DBHDS as a substance abuse halfway house supervised living residence for adults and contracted by the BHSA DMAS or its contractor or an MCO. Clinically directed program activities constituting at least five hours per week of professionally directed treatment shall be designed to stabilize and maintain substance use disorder symptoms and to develop and apply recovery skills. Activities shall include relapse prevention, interpersonal choice exploration, and development of social networks in support of recovery. This service shall not include settings where clinical treatment services are not provided. ASAM Level 3.1 clinically managed low intensity residential service providers shall meet the service components and staff requirements of this section.

B. Clinically managed low intensity residential services (ASAM Level 3.1) service components.

1. Physician consultation and emergency services, which shall be available 24 hours a day and seven days per week.

2. Arrangements for medically necessary procedures including laboratory and toxicology tests that are appropriate to the severity and urgency of an individual's condition.

3. Arrangements for pharmacotherapy for psychiatric or anti-addiction medications needs.

4. Medication assisted treatment that is provided onsite or through referral.

5. Arrangements for higher and lower levels of care and other services.

C. The following services shall be provided as directed by the ISP:

1. Clinically-directed treatment to facilitate recovery skills, relapse prevention, and emotional coping strategies. Services shall promote personal responsibility and reintegration of the individual into the network systems of work, education, and family life;

2. Addiction pharmacotherapy and drug screening;

3. Motivational enhancement and engagement strategies;

4. Counseling Substance use disorder counseling and clinical monitoring;

5. Regular monitoring of the individual's medication adherence;

6. Recovery support services;

7. Services for the individual's family and significant others, as appropriate to advance the individual's treatment goals and objectives identified in the ISP; and

8. Education on benefits of medication assisted treatment and referral to treatment as necessary.

D. Clinically managed low intensity residential services (ASAM Level 3.1) staff requirements.

1. Staff shall provide awake 24-hour onsite supervision. The provider's staffing plan must be in compliance with DBHDS licensing regulations for staffing plans set forth in 12VAC35-46-870 and 12VAC35-105-590.

2. Clinical staff who are experienced and knowledgeable about the biopsychosocial and psychosocial dimensions and treatment of substance use disorders. Clinical staff shall be able to identify the signs and symptoms of acute psychiatric conditions and decompensation.

3. An addiction-credentialed physician or physician with experience in addiction medicine or a physician extender acting within his scope of practice shall review the residential group home admission if the multidimensional assessment indicates medical concerns or systems in ASAM Dimensions 1 or 2, to confirm medical necessity for services, and a team of credentialed addiction treatment professionals CATPs who shall develop and shall ensure delivery of the ISP. For ASAM Level 3.1, the ISP may be completed by a CSAC or CSAC-supervisee if the CATP signs and dates the ISP within one business day.

4. Coordination with community physicians to review treatment as needed.

5. Appropriately credentialed medical staff shall be available to assess and treat co-occurring biomedical disorders and to monitor the individual's administration of prescribed medications.

E. Clinically managed low intensity residential services (ASAM Level 3.1) co-occurring enhanced programs as required by ASAM.

1. In addition to the ASAM Level 3.1 service components listed in this section, programs for individuals with both unstable substance use and psychiatric disorders shall offer appropriate psychiatric services, including medication evaluation and laboratory services. Such services are provided either on site onsite, via telemedicine, or closely coordinated with an off-site offsite provider, as appropriate to the severity and urgency of the individual's mental health condition.

2. Certified addiction treatment professionals shall be cross-trained in addiction and mental health to (i) understand the signs and symptoms of mental illness and (ii) understand and be able to explain to the individual the purpose of psychotropic medications and interactions with substance use.

3. The therapies described in this section shall be offered as well as planned clinical activities (either on site onsite or with an off-site offsite provider) that are designed to stabilize and maintain the individual's mental health program and psychiatric symptoms.

4. Goals of therapy shall apply to both the substance use disorder and any co-occurring mental illness.

5. Medication education and management shall be provided.

12VAC30-130-5120. Covered services: clinically managed population - specific high intensity residential service (ASAM Level 3.3).

A. Clinically managed population-specific high intensity residential service (ASAM Level 3.3). The facility-based provider shall be licensed by DBHDS to provide as (i) a supervised residential treatment services service for adults or licensed by DBHDS to provide; (ii) a substance abuse residential treatment service for adults, supervised residential treatment services for adults, or; (iii) a substance abuse residential treatment service for women with children; (iv) a substance abuse and mental health residential treatment services service for adults, and that has substance abuse listed on its license or within the "licensed as" statement or be a Level C (psychiatric residential treatment facility) service provider; or (v) a "mental health residential-children" provider that has substance abuse listed on its license or within the "licensed as" statements. All providers shall be contracted by the BHSA DMAS or its contractor or an MCO. ASAM Level 3.3 settings do not include sober houses, boarding houses, or group homes where treatment services are not provided. Residential treatment service providers for clinically managed population-specific high intensity residential service (ASAM Level 3.3) shall meet the service components and staff requirements in this section.

B. Clinically managed population-specific high intensity residential service (ASAM Level 3.3) service components.

1. Clinically managed population-specific high intensity residential service components shall include:

a. Access to a consulting physician or physician extender who is either employed by or contracted with the agency or through referral arrangements with the agency and who has a DEA-X number to prescribe buprenorphine and emergency services 24 hours a day and seven days a week;

b. Arrangements for higher and lower levels of care;

c. Arrangements for laboratory and toxicology services appropriate to the severity of need; and

d. Arrangements for addiction pharmacotherapy, including medication assisted treatment that is provided onsite or through referral.

2. The following therapies shall be provided as directed by the ISP for reimbursement:

a. Clinically-directed treatment to facilitate recovery skills, relapse prevention, and emotional coping strategies. Services shall promote personal responsibility and reintegration of the individual into the network systems of work, education, and family life;

b. Addiction pharmacotherapy and drug screening, including medication assisted treatment that is provided onsite or through referral;

c. Range Drug screening, using either urine or blood serums;

d. A range of cognitive and behavioral therapies psychotherapies administered individually and in family and group settings as appropriate to the individual's needs to assist the individual in initial involvement or re-engagement in regular productive daily activity;

e. Substance use disorder counseling and psychoeducation activities provided individually or in family and group settings to promote recovery;

d. f. Recreational therapy, art, music, physical therapy, and vocational rehabilitation;

e. g. Motivational enhancement and engagement strategies;

f. h. Regular monitoring of the individual's medication adherence;

g. i. Recovery support services;

h. j. Services for the individual's family and significant others, as appropriate to advance the individual's treatment goals and objectives identified in the ISP;

i. k. Education on benefits of medication assisted treatment and referral to treatment as necessary; and

j. l. Withdrawal management services may be provided as necessary.

C. Clinically managed population-specific high intensity residential service (ASAM Level 3.3) staff requirements.

1. The interdisciplinary team shall include credentialed addiction treatment professionals, physicians, or physician extenders CATPs and allied health professionals in an interdisciplinary team. ASAM Level 3.3 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Staff shall provide awake 24-hour onsite supervision. The provider's staffing plan must be in compliance with DBHDS licensing regulations for staffing plans set forth in 12VAC35-46-870 and 12VAC35-105-590.

3. Clinical or credentialed staff who are shall be experienced and knowledgeable about the biopsychosocial dimensions and treatment of substance use disorders and who are available on site onsite or by telephone 24 hours per day. Clinical Licensed clinical staff shall be able to identify acute psychiatric conditions and decompensation.

4. Substance use case management is included in this level of care.

5. Appropriately credentialed medical staff shall be available to assess and treat co-occurring biomedical disorders and to monitor the individual's administration of prescribed medications.

D. Clinically managed population-specific high intensity residential service co-occurring enhanced programs, as required by ASAM.

1. Appropriate psychiatric services, including medication evaluation and laboratory services, shall be provided on site onsite or through a closely coordinated off-site offsite provider, as appropriate to the severity and urgency of the individual's mental condition.

2. Psychiatrists and credentialed addiction treatment professionals CATPs shall be available to assess and treat co-occurring substance use and mental illness using specialized training in behavior management techniques.

3. Credentialed addiction treatment professionals shall be cross-trained in addiction and mental health to understand the signs and symptoms of mental illness and be able to provide education to the individual on the interactions with substance use and psychotropic medications.

12VAC30-130-5130. Covered services: clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5).

A. Clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5) settings for services. The facility based residential treatment service provider (ASAM Level 3.5) shall be licensed by DBHDS as (i) a substance abuse residential treatment services service for adults or children, (ii) a psychiatric unit that has substance abuse listed on its license or within the "licensed as" statements, (iii) a substance abuse residential treatment service for women with children, or (iv) a substance abuse and mental health residential treatment services service for adults and children that has substance abuse listed on its license or within the "licensed as" statements, (v) a Level C (psychiatric residential treatment facility) provider, or (vi) a "mental health residential-children" provider that has substance abuse on its license or within the "licensed as" statements and shall be contracted by the BHSA DMAS or its contractor or an MCO. Residential treatment providers (ASAM Level 3.5) shall meet the service components and staff requirements in this section.

B. Clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5) service components.

1. These residential treatment services, as required by ASAM, include:

a. Telephone or in-person consultation with a physician or physician extender who shall be available to perform required physician services. Emergency services shall be available 24 hours per day and seven days per week;

b. Arrangements for more and less intensive levels of care and other services such as sheltered workshops, literacy training, and adult education;

c. Arrangements for needed procedures, including medical, psychiatric, psychological, laboratory, and toxicology services appropriate to the severity of need; and

d. Arrangements for addiction pharmacotherapy, including medication assisted treatment that is provided onsite or through referral.

2. The following therapies shall be provided as directed by the ISP for reimbursement:

a. Clinically directed treatment to facilitate recovery skills, relapse prevention, and emotional coping strategies. Services shall promote personal responsibility and reintegration of the individual into the network systems of work, education, and family life. Activities shall be designed to stabilize and maintain substance use disorder symptoms and apply recovery skills and may include relapse prevention, interpersonal choice exploration, and development of social networks in support of recovery.

b. Range of cognitive and, behavioral therapies psychotherapies, and substance use disorder counseling administered individually and in family and group settings to assist the individual in initial involvement or re-engagement in regular productive daily activities, including education on medication management, addiction pharmacotherapy, and education skill building groups to enhance the individual's understanding of substance use and mental illness.

c. Psychoeducational activities.

d. Addiction pharmacotherapy and drug screening.

d. e. Recreational therapy, art, music, physical therapy, and vocational rehabilitation.

e. f. Motivational enhancements and engagement strategies.

f. g. Monitoring of the adherence to prescribed medications and over-the-counter medications and supplements.

g. h. Daily scheduled professional services and interdisciplinary assessments and treatment designed to develop and apply recovery skills.

h. i. Services for family and significant others, as appropriate, to advance the individual's treatment goals and objectives identified in the ISP.

i. Education on benefits of medication assisted treatment and referral to treatment as necessary.

j. Withdrawal management services may be provided as necessary.

C. Clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5) staff requirements.

1. The interdisciplinary team shall include credentialed addiction treatment professionals CATPs, physicians, or physician extenders and allied health professionals. Physicians and physician extenders who are either employed by or contracted with the agency or through referral arrangements with the agency and who shall have a DEA-X number to prescribe buprenorphine. ASAM Level 3.5 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Staff shall provide awake 24-hour onsite supervision. The provider's staffing plan must be in compliance with DBHDS licensing regulations for staffing plans set forth in 12VAC35-46-870 and 12VAC35-105-590.

3. Clinical staff who are experienced in and knowledgeable about the biopsychosocial dimensions and treatment of substance use disorders. Clinical staff shall be able to identify acute psychiatric conditions and decompensations.

4. Substance use case management shall be provided in this level of care.

5. Appropriately credentialed medical staff shall be available   on site onsite or by telephone 24 hours per day, seven days per week to assess and treat co-occurring biological and physiological disorders and to monitor the individual's administration of medications in accordance with a physician's prescription.

D. Clinically managed high intensity residential services (adult) and clinically managed medium intensity residential services (adolescent) (ASAM Level 3.5) co-occurring enhanced programs as required by ASAM.

1. Psychiatric services, medication evaluation, and laboratory services shall be provided. Such services shall be available by telephone within eight hours of requested service and on site onsite or via telemedicine, or closely coordinated with an off-site offsite provider within 24 hours of requested service, as appropriate to the severity and urgency of the individual's mental and physical condition.

2. Staff shall be credentialed addiction treatment professionals CATPs who are able to assess and treat co-occurring substance use and psychiatric disorders.

3. Planned clinical activities shall be required and shall be designed to stabilize and maintain the individual's mental health problems and psychiatric symptoms.

4. Medication education and management shall be provided.

12VAC30-130-5140. Covered services: medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7).

A. Medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7) settings for services. The facility-based providers provider of ASAM Level 3.7 services shall be licensed by DBHDS as an inpatient psychiatric unit with a DBHDS medical detoxification license, (i) a freestanding psychiatric hospital or inpatient psychiatric unit with a DBHDS medical detoxification license or managed withdrawal license; (ii) a residential crisis stabilization unit with a DBHDS medical detoxification license or managed withdrawal license; (iii) a substance abuse residential treatment services (RTS) for adults/children service for women with children with a DBHDS medical detoxification managed withdrawal license or a residential crisis stabilization unit with DBHDS medical detoxification license; (iv) a Level C (psychiatric residential treatment facility) provider; (v) a "mental health residential-children" provider with a substance abuse residential license and a DBHDS managed withdrawal license; (vi) a "managed withdrawal-medical detox adult residential treatment" provider; or (vii) a "medical detox-chemical dependency unit" for adults and shall be contracted by the BHSA DMAS or its contractor or the MCO. ASAM Level 3.7 providers shall meet the service components and staff requirements in this section.

B. Medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7) service components. The following therapies shall be provided as directed by the ISP for reimbursement:

1. Daily clinical services provided by an interdisciplinary team to involve appropriate medical and nursing services, as well as individual, group, and family activity services. Activities may include pharmacological, including medication assisted treatment that is provided onsite or through referral; withdrawal management,; cognitive-behavioral,; and other therapies psychotherapies and substance use disorder counseling administered on an individual or group basis and modified to meet the individual's level of understanding and assist in the individual's recovery.

2. Counseling and clinical monitoring to facilitate re-involvement in regular productive daily activities and successful re-integration into family living if applicable.

3. Psychoeducational activities.

4. Random drug screens to monitor use and strengthen recovery and treatment gains.

4. 5. Regular medication monitoring.

5. 6. Planned clinical activities to enhance understanding of substance use disorders.

6. 7. Health education associated with the course of addiction and other potential health related risk factors, including tuberculosis, human immunodeficiency virus, hepatitis B and C, and other sexually transmitted infections.

7. 8. Evidence based practices, such as motivational interviewing to address the individuals an individual's readiness to change, designed to facilitate understanding of the relationship of the substance use disorder and life impacts.

8. 9. Daily treatments to manage acute symptoms of biomedical substance use or mental illness.

9. 10. Services to family and significant others as appropriate to advance the individual's treatment goals and objectives identified in the ISP.

10. 11. Physician monitoring, nursing care, and observation shall be available. A physician shall be available to assess the individual in person or via telemedicine within 24 hours of admission and thereafter as medically necessary.

11. 12. A licensed and registered nurse who shall conduct an alcohol or other drug-focused nursing assessment upon admission. A licensed registered nurse or licensed practical nurse shall be responsible for monitoring the individual's progress and for medication administration duties.

12. 13. Additional medical specialty consultation,; psychological, laboratory, and toxicology services shall be available on site onsite, either through consultation or referral.

13. 14. Coordination of necessary services shall be available on site onsite or through referral to a closely coordinated off-site offsite provider to transition the individual to lower levels of care.

14. 15. Psychiatric services shall be available on site onsite or through consultation or referral to a closely coordinated off-site offsite provider when a presenting problem could be attended to at a later time. Such services shall be available within eight hours of requested service by telephone or within 24 hours of requested service in person or via telemedicine.

C. Medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7) staff requirements.

1. The interdisciplinary team shall include credentialed addiction treatment professionals CATPs and addiction-credentialed physicians or physicians with experience in addiction medicine to assess, treat, and obtain and interpret information regarding the individual's psychiatric and substance use disorders. Physicians and physician extenders who are either employed by or contracted with the agency or through referral arrangements with the agency and who shall have a DEA-X number for prescribing buprenorphine. ASAM Level 3.7 may utilize CSACs or CSAC-supervisees to provide substance use disorder counseling and psychoeducational services within their scopes of practice as defined in § 54.1-3507.1 of the Code of Virginia.

2. Clinical staff shall be knowledgeable about the biological and psychosocial dimensions of substance use disorders and mental illnesses and their treatment. Clinical staff shall be able to identify acute psychiatric conditions, symptom increase or escalation, and decompensation.

3. Clinical staff shall be able to provide a planned regimen of 24-hour professionally directed evaluation, care, and treatment, including the administration of prescribed medications.

4. Addiction-credentialed An addiction-credentialed physician or physician with experience in addiction medicine shall oversee the treatment process and assure quality of care. Licensed physicians shall perform physical examinations for all individuals who are admitted. Staff shall supervise addiction pharmacotherapy integrated with psychosocial therapies. The professional may be a physician or a psychiatrist, or a physician extender as defined in 12VAC30-130-5020 if knowledgeable about addiction treatment.

D. Medically monitored intensive inpatient services (adult) and medically monitored high intensity inpatient services (adolescent) (ASAM Level 3.7) co-occurring enhanced programs as required by ASAM.

1. Appropriate psychiatric services, medication evaluation, and laboratory services shall be available.

2. A psychiatrist assessment of the individual shall occur within four hours of admission by telephone and within 24 hours following admission in person or via telemedicine, or sooner, as appropriate to the individual's behavioral health condition, and thereafter as medically necessary.

3. A behavioral health-focused assessment at the time of admission shall be performed by a registered nurse or licensed mental health clinician. A licensed registered nurse or licensed practical nurse supervised by a registered nurse shall be responsible for monitoring the individual's progress and administering or monitoring the individual's self-administration of medications.

4. Psychiatrists and credentialed addiction treatment professionals CATPs who are able to assess and treat co-occurring psychiatric disorders and who have specialized training in the behavior management techniques and evidenced-based practices shall be available.

5. Access to an addiction-credentialed physician shall be available along with access to either a psychiatrist, a certified addiction psychiatrist, or a psychiatrist with experience in addiction medicine.

6. Credentialed addiction treatment professionals CATPs shall have experience and training in addiction and mental health to understand the signs and symptoms of mental illness and be able to provide education to the individual on the interaction of substance use and psychotropic medications.

7. Planned clinical activities shall be offered and designed to promote stabilization and maintenance of the individual's behavioral health needs, recovery, and psychiatric symptoms.

8. Medication education and management shall be offered.

12VAC30-130-5150. Covered services: medically managed intensive inpatient services (ASAM Level 4.0).

A. Medically managed intensive inpatient services (ASAM Level 4.0) settings for services. Acute care hospitals licensed by the Virginia Department of Health shall be the designated setting for medically managed intensive inpatient treatment and shall offer medically directed acute withdrawal management and related treatment designed to alleviate acute emotional, behavioral, cognitive, or biomedical distress resulting from, or occurring with, an individual's use of alcohol and other drugs. Such service settings shall offer medically directed acute withdrawal management and related treatment designed to alleviate acute emotional, behavioral, cognitive, or biomedical distress, or all of these, resulting from, or co-occurring with, an individual's use of alcohol or other drugs, with the exception of tobacco-related disorders, caffeine-related disorders or dependence or nonsubstance-related non-substance-related disorders.

B. Medically managed intensive inpatient services (ASAM Level 4.0) service components.

1. The service components of medically managed intensive inpatient services shall be:

a. An evaluation or analysis of substance use disorders shall be provided, including the diagnosis of substance use disorders and the assessment of treatment needs for medically necessary services.

b. Observation and monitoring the individual's course of withdrawal shall be provided. This shall be conducted as frequently as deemed appropriate for the individual and the level of care the individual is receiving. This may include, for example, observation of the individual's health status.

c. Medication services, including the prescription or administration related to substance use disorder treatment services or the assessment of the side effects or results of that medication, conducted by appropriate licensed staff who provide such services within their scope of practice or license.

2. The following therapies shall be provided for reimbursement:

a. Daily clinical services provided by an interdisciplinary team to stabilize acute addictive or psychiatric symptoms. Activities shall include pharmacological, cognitive-behavioral, and other therapies psychotherapies or substance use disorder counseling administered on an individual or group basis and modified to meet the individual's level of understanding. For individuals with a severe biomedical disorder, physical health interventions are available to supplement addiction treatment. For the individual who has less stable psychiatric symptoms, ASAM Level 4.0 co-occurring capable programs offer individualized treatment activities designed to monitor the individual's mental health and to address the interaction of the mental health programs and substance use disorders.

b. Health education services.

c. Planned clinical interventions that are designed to enhance the individual's understanding and acceptance of illness of addiction and the recovery process.

d. Services for the individual's family, guardian, or significant other, as appropriate, to advance the individual's treatment and recovery goals and objectives identified in the ISP.

e. This level of care offers 24-hour nursing care and daily physician care for severe, unstable problems in any of the following ASAM dimensions: (i) acute intoxication or withdrawal potential; (ii) biomedical conditions and complications; and (iii) emotional, behavioral, or cognitive conditions and complications.

f. Discharge services shall be the process to prepare the individual for referral into another level of care, post treatment return or reentry into the community, or the linkage of the individual to essential community treatment, housing, recovery, and human services.

C. Medically managed intensive inpatient services (ASAM Level 4.0) staff requirements.

1. An interdisciplinary staff of appropriately credentialed clinical staff including, for example, addiction-credentialed physicians or physicians with experience in addiction medicine, licensed nurse practitioners, licensed physician assistants, registered nurses, licensed professional counselors, licensed clinical psychologists, or licensed clinical social workers who assess and treat individuals with severe substance use disorders or addicted individuals with concomitant acute biomedical, emotional, or behavioral disorders. Physicians and physician extenders who are either employed by or contracted through the agency or through referral arrangements with the agency and who shall have a DEA-X number to prescribe buprenorphine.

2. Medical management by physicians and primary nursing care shall be available 24 hours per day and counseling services shall be available 16 hours per day.

D. Medically managed intensive inpatient services (ASAM Level 4.0) co-occurring enhanced programs. These programs shall be provided by appropriately licensed or registered credentialed mental health professionals who assess and treat the individual's co-occurring mental illness and are knowledgeable about the biological and psychosocial dimensions of psychiatric disorders and his treatment.

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.

FORMS (12VAC30-130)

Forms accompanying Part II of this chapter:

Virginia Uniform Assessment Instrument (eff. 1994)

Forms accompanying Part III of this chapter:

MI/IDD Supplement, DMAS-95, Level I PASRR Form and Instructions (rev 4/2019)

MI/IDD/Related Conditions Supplement Level II, DMAS-95 MI/IDD/RC Supplement (rev. 12/2015)

Forms accompanying Part VII of this chapter:

Request for Hospice Benefits DMAS-420, Revised 5/91

Request for Hospice Benefits, DMAS-420 (rev. 9/2019)

Forms accompanying Part VIII of this chapter:

Inventory for Client and Agency Planning (ICAP) Response Booklet, D9200/D9210, 1986

Forms accompanying Part IX of this chapter:

Patient Information Form Medicaid LTC Communication Form, DMAS-122, 225 (eff. 10/2011)

Instructions for Completion DMAS-122 form

Forms accompanying Part XII of this chapter:

Health Insurance Premium Payment (HIPP) Program Insurance Information Request Form

Health Insurance Premium Payment (HIPP) Program Medical History Form (HIPP Form-7, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Employers Insurance Verification Form (HIPP Form-2, Rev. 11/92)

Health Insurance Premium Payment (HIPP) Program Employer Agreement (HIPP Form-3, Rev. 11/92)

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Determination (HIPP Form-4, Rev. 11/92)

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Approval

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Status (HIPP Form-6, Rev. 11/92)

Inventory for Client and Agency Planning (ICAP) Response Booklet, D9200/D9210, 1986

Forms accompanying Part XIV of this chapter:

Residential Psychiatric Treatment for Children and Adolescents, FH/REV (eff. 10/99)

Forms accompanying Part XV of this chapter:

Treatment Foster Care Case Management Agreement, TFC CM Provider Agreement DMAS-345, FH/REV (eff. 10/99)

Forms accompanying Part XVIII of this chapter:

Virginia Independent Clinical Assessment Program (VICAP) (eff. 6/11)

DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-130)

Virginia Medicaid Nursing Home Manual, Department of Medical Assistance Services.

Virginia Medicaid Rehabilitation Manual, Department of Medical Assistance Services.

Virginia Medicaid Hospice Manual, Department of Medical Assistance Services.

Virginia Medicaid School Division Manual, Department of Medical Assistance Services.

Policy Manual: Definitions of Priority Mental Health Populations, POLICY 1029(SYS)90 - 2

The ASAM Criteria: Treatment Criteria for Addictive, Substance-Related, and Co-Occurring Conditions, Third Edition, American Society of Addiction Medicine, Inc., 4601 North Park Avenue, Upper Arcade, Suite 101 Chevy Chase, Maryland 20815, www.asam.org

Diagnostic and Statistical Manual of Mental Disorders: DSM-5, Fifth Edition, 2013, American Psychiatric Association, 1000 Wilson Boulevard, Arlington, Virginia 22209, www.psych.org

Medicaid Memo: Updates to Telemedicine Coverage, May 13, 2014, Department of Medical Assistance Services

Department of Behavioral Health and Developmental Services Opioid Medication Assisted Treatment License and Oversight (eff. 3/2017)

VA.R. Doc. No. R20-5749; Filed December 18, 2019, 12:24 p.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Fast-Track Regulation

Titles of Regulations: 12VAC30-70. Methods and Standards for Establishing Payment Rates - Inpatient Hospital Services (amending 12VAC30-70-291, 12VAC30-70-301, 12VAC30-70-425).

12VAC30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-20).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 19, 2020.

Effective Date: March 5, 2020.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia authorizes the Board of Medical Assistance Services to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia authorizes the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the State Plan for Medical Assistance and to promulgate regulations according to the board's requirements. The Medicaid authority as established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Purpose: The amendments are required to conform regulation to items of the 2018 state budget. This action is necessary for the public health, safety, and welfare in that it ensures appropriate funding for Medicaid services provided by hospitals and thereby ensures that hospitals can continue to provide services to Medicaid members.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendments at 12VAC30-70-291 and 12VAC30-70-301 are required by Item 303 SSS of Chapter 2 of the 2018 Acts of Assembly, Special Session I. The proposed amendment at 12VAC30-70-425 and 12VAC30-80-20 are required by Item 303 XX 7 of Chapter 2 of the 2018 Acts of Assembly, Special Session I. DMAS attained the approval from the Centers for Medicare and Medicaid Services that was required prior to implementation of the new reimbursement rates as of October 25, 2018.

Substance: The proposed amendment to 12VAC30-70-291 updates the section to indicate an additional indirect medical education (IME) payment for freestanding children's hospitals in the District of Columbia. The proposed amendment to 12VAC30-70-301 eliminates disproportionate share hospital (DSH) payments to out-of-state children's hospitals, to include freestanding children's hospitals in the District of Columbia. The proposed amendments to 12VAC30-70-425 and 12VAC30-80-20 update existing regulations to allow additional supplemental payments to be issued to each non-state-government-owned acute care hospital for inpatient services provided to Medicaid patients.

Currently, DSH payments are being made to out-of-state children's hospitals to include freestanding children's hospitals located in the District of Columbia. The proposed regulations eliminate these DSH payments in 12VAC30-70-301 and increase the IME payments to freestanding children's hospitals in the District of Columbia by the amount of DSH payments that the hospital was eligible for in state fiscal year (SFY) 2018 in 12VAC30-70-291. The total Type Two hospital DSH allocation is reduced by the total amount paid to freestanding children's hospitals in the District of Columbia in SFY 2018. All changes to these two sections are effective as of July 1, 2018.

Unreimbursed Medicaid cost payments are currently made to non-state-government-owned hospitals as certified through provider cost reports and meeting other criteria as outlined in regulation. Beginning July 1, 2018, additional supplemental payments shall be made to non-state-government-owned acute care hospitals for inpatient and outpatient services. The supplemental payments will be made quarterly for inpatient and outpatient services that were provided in the prior quarter. The quarterly payments shall begin with the first quarter in SFY 2019 and will be calculated by multiplying the Medicaid inpatient and outpatient hospital payments paid in that quarter by the inpatient and outpatient upper payment level (UPL) gap percentages for each hospital. UPL gap percentages are calculated annually for hospitals using the most recent year in which the data is available and inflated to the SFY in which the payments are being made. These updates are being made in 12VAC30-70-425 and 12VAC30-80-20.

Issues: The primary advantages to the Commonwealth and the public from these regulatory changes are the provision of additional reimbursement for certain hospitals. There are no disadvantages to the Commonwealth or the public as a result of this regulatory action.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medical Assistance Services (Board) proposes to revise the current regulations to (1) reclassify certain payments made to a freestanding children's hospital in the District of Columbia and (2) allow additional supplemental payments to be issued to non-state-government-owned2 acute care hospitals in order to increase the reimbursement for inpatient services provided to Medicaid patients; the supplemental payments are related to another regulatory action currently underway.

The 2018 Appropriation Act contained budget language in two items that directed DMAS to amend the State Plan for Medical Assistance (state plan). The first Item, 303 SSS, authorized the Department of Medical Assistance Services (DMAS) to amend the state plan such that Disproportionate Share Hospital (DSH) payments for the Children's National Medical Center (CNMC) are discontinued and replaced with an indirect medical education (IME) payment. DSH payments take into account the financial situation of hospitals that serve a disproportionate number of low income patients with special needs. IME payments recognize the higher operating costs at hospitals with teaching programs (the increased diagnostic and treatment costs related to their educational mission).3

Specifically, the proposed amendment would: (i) make CNMC no longer eligible to receive DSH payments, (ii) increase the annual IME payments made to CNMC by the amount of DSH the hospital was eligible for in state fiscal year 2018 (12VAC30-70-291), and (iii) reduce the Type 2 DSH allocation by the same amount (12VAC30-70-301). The Act authorized DMAS to implement these changes effective July 1, 2018, prior to the completion of any regulatory action to effect this change. The rationale provided for this budget amendment states that the hospital was at their federal cap, thereby preventing the hospital from being able to accept DSH funding from the Commonwealth. Because the hospital recently met the state threshold to receive IME payments from the Commonwealth, the budget was amended to allow the continuation of such payments in lieu of any future DSH payments.4

The second Item, 303.XX.7, directs DMAS to make supplemental payments to Chesapeake Regional Hospital, which is operated by the Chesapeake Hospital Authority.5 DMAS is implementing this by amending 12VAC30-70-425, which involves non-state-government-owned hospitals such as Chesapeake Regional. This item is related to two separate items in the same Act (3-5.15 and 3-5.16) that affect private acute care hospitals and instruct DMAS to levy a provider coverage assessment and a provider payment rate assessment, in addition to implementing a statewide supplemental payment. These items are being addressed through a different regulatory action that is currently in place as an emergency regulation (Action number 5100).6 The proposed amendment in this Action regarding the calculation of this supplemental payment is identical to the language pertaining to supplemental payments in the emergency regulation. Item 303.XX.7 required that DMAS secure approval from the Centers for Medicare and Medicaid Services prior to implementation; this approval was obtained as of October 25, 2018.

Estimated Benefits and Costs. CNMC would benefit by qualifying to receive IME payments from the state, thereby allowing them to continue receiving funds amount despite having met the federal cap for DSH payments. Because the amount being paid to CNMC would be staying the same, it is unlikely that any other benefits or costs would accrue.

Chesapeake Regional would benefit from receiving any supplemental payments, which should be substantially less than the cost incurred by the hospital to receive them. As described by the budget amendment for this Item, the hospital will make an intergovernmental transfer to DMAS to be used as the state share for the supplemental Medicaid payments to the hospital. In exchange, the hospital will receive a substantially larger amount of federal funds, and the general fund will not be impacted.

Businesses and Other Entities Affected. No other entities are likely to be affected, besides CNMC and Chesapeake Regional as described above.

Localities7 Affected.8 The proposed amendment does not introduce new costs for local governments. Chesapeake Regional is located in Chesapeake; hence the locality may be affected depending on the overall impact of the supplemental payments on the hospital and the number of Medicaid-insured individuals it serves.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendment has no effect on the use and value of private property, nor does it affect real estate development costs.

Adverse Effect on Small Businesses.9 The proposed amendment does not adversely affect small businesses.

______________________

2A non-state-government-owned hospital is owned or operated by a unit of government other than a state.

3http://sfc.virginia.gov/pdf/health/2010%20Session/062110%20DMAS%20-%20Crawford.pdf

4https://budget.lis.virginia.gov/amendment/2018/2/HB5002/Introduced/SE/303/3s/

5https://law.lis.virginia.gov/authorities/chesapeake-hospital-authority/

6http://townhall.virginia.gov/L/ViewAction.cfm?actionid=5100 The proposed stage of this action is currently at the Office of the Attorney General.

7"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

8§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

9Pursuant 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. "

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and raises no issues with this analysis.

Summary:

The amendments contain three provider reimbursement updates as required by Chapter 2 of the 2018 Acts of Assembly, Special Session I. The amendments (i) add an indirect medical education payment for freestanding children's hospitals in the District of Columbia; (ii) eliminate disproportionate share hospital payments to out-of-state children's hospitals, to include freestanding children's hospitals in the District of Columbia; and (iii) allow additional supplemental payments to be issued to each non-state-government-owned acute care hospital for inpatient services provided to Medicaid patients. 

12VAC30-70-291. Payment for indirect medical education costs.

A. Hospitals shall be eligible to receive payments for indirect medical education (IME). Out-of-state cost reporting hospitals are eligible for this payment only if they have Virginia Medicaid utilization in the base year of at least 12% of total Medicaid days. These payments recognize the increased use of ancillary services associated with the educational process and the higher case-mix intensity of teaching hospitals. The payments for indirect medical education shall be made in estimated quarterly lump sum amounts and settled at the hospital's fiscal year end.

B. Final payment for IME shall be determined as follows:

1. Type One hospitals shall receive an IME payment equal to the hospital's Medicaid operating reimbursement times an IME percentage determined as follows (this formula also applies to Children's Hospital of the King's Daughters effective July 1, 2013):

IME Percentage for Type One Hospitals = [1.89 X ((1 + r)0.405-1)] X (IME Factor)

An IME factor shall be calculated for each Type One hospital and shall equal a factor that, when used in the calculation of the IME percentage, shall cause the resulting IME payments to equal what the IME payments would be with an IME factor of one, plus an amount equal to the difference between operating payments using the adjustment factor specified in subdivision B 1 of 12VAC30-70-331 and operating payments using an adjustment factor of one in place of the adjustment factor specified in subdivision B 1 of 12VAC30-70-331.

2. Type Two hospitals shall receive an IME payment equal to the hospital's Medicaid operating reimbursement times an IME percentage determined as follows (excluding Children's Hospital of the King's Daughters):

IME Percentage for Type Two Hospitals = [1.89 X ((1 + r)0.405-1)] X 0.5695

In both equations, r is the ratio of full-time equivalent residents to staffed beds, excluding nursery beds. The IME payment shall be calculated each year using the most recent reliable data regarding the number of full-time equivalent residents and the number of staffed beds, excluding nursery beds.

C. An additional IME payment shall be made for inpatient hospital services provided to Medicaid patients but reimbursed by capitated managed care providers.

1. For Type Two hospitals, this payment shall be equal to the hospital's hospital specific operating rate per case, as determined in 12VAC30-70-311, times the hospital's HMO paid discharges times the hospital's IME percentage, as determined in subsection B of this section.

2. For Type One hospitals, this payment shall be equal to the hospital's hospital-specific operating rate per case, as determined in 12VAC30-70-311, times the hospital's HMO paid discharges times the hospital's IME percentage, as determined in subsection B of this section. Effective April 1, 2012, the operating rate per case used in the formula shall be revised to reflect an adjustment factor of one and case-mix adjusted by multiplying the operating rate per case in this subsection by the weight per case for FFS discharges that is determined during rebasing. This formula applies to Children's Hospital of the King's Daughters effective July 1, 2017.

D. An additional IME payment not to exceed $200,000 in total shall be apportioned among Type Two hospitals, excluding freestanding children's hospitals, with Medicaid NICU utilization in excess of 50% as reported to the Department of Medical Assistance Services as of March 1, 2004. These payments shall be apportioned based on each eligible hospital's percentage of Medicaid NICU patient days relative to the total of these days among eligible hospitals as reported by March 1, 2004.

E. An additional IME payment not to exceed $500,000 in total shall be apportioned among Type Two hospitals, excluding freestanding children's hospitals, with Medicaid NICU days in excess of 4,500 as reported to the Department of Medical Assistance Services as of March 1, 2005, that do not otherwise receive an additional IME payment under subsection D of this section. These payments shall be apportioned based on each eligible hospital's percentage of Medicaid NICU patient days relative to the total of these days among eligible hospitals as reported by March 1, 2003.

F. Effective July 1, 2013, total payments for IME in combination with other payments for freestanding children's hospitals with greater than 50% Medicaid utilization in 2009 shall not exceed the federal uncompensated care cost limit to which disproportionate share hospital payments are subject. Effective July 1, 2017, IME payments cannot exceed the federal uncompensated care cost limit to which disproportionate share hospital payments are subject, excluding third-party reimbursement for Medicaid eligible patients.

G. Effective July 1, 2018, an additional $362,360 IME payment shall be added to the IME payment calculated in subdivision B 2 of this section for freestanding children's hospitals located in the District of Columbia.

12VAC30-70-301. Payment to disproportionate share hospitals.

A. Payments to disproportionate share hospitals (DSH) shall be prospectively determined in advance of the state fiscal year to which they apply. The payments shall be made on a quarterly basis and shall be final subject to subsections E and K of this section.

B. Effective July 1, 2014, in order to qualify for DSH payments, DSH eligible hospitals shall have a total Medicaid inpatient utilization rate equal to 14% or higher in the base year using Medicaid days eligible for Medicare DSH defined in 42 USC § 1396r-4(b)(2) or a low income utilization rate defined in 42 USC § 1396r-4(b)(3) in excess of 25%. Eligibility for out-of-state cost reporting hospitals shall be based on total Medicaid utilization or on total Medicaid neonatal intensive care unit (NICU) utilization equal to 14% or higher. Effective July 1, 2018, freestanding children's hospitals located in the District of Columbia shall not be eligible for DSH payments.

C. Effective July 1, 2014, the DSH reimbursement methodology for all hospitals except Type One hospitals is the following:

1. Each hospital's DSH payment shall be equal to the DSH per diem multiplied by each hospital's eligible DSH days in a base year. Days reported in provider fiscal years in state fiscal year (FY) 2011 (available from the Medicaid cost report through the Hospital Cost Report Information System (HCRIS) as of July 30, 2013) will be the base year for FY 2015 prospective DSH payments. DSH shall be recalculated annually with an updated base year. Future base year data shall be extracted from Medicare cost report summary statistics available through HCRIS as of October 1 prior to next year's effective date.

2. Eligible DSH days are the sum of all Medicaid inpatient acute, psychiatric, and rehabilitation days above 14% for each DSH hospital subject to special rules for out-of-state cost reporting hospitals. Eligible DSH days for out-of-state cost reporting hospitals shall be the higher of the number of eligible days based on the calculation in the first sentence of this subdivision times Virginia Medicaid utilization (Virginia Medicaid days as a percent of total Medicaid days) or the Medicaid NICU days above 14% times Virginia NICU Medicaid utilization (Virginia NICU Medicaid days as a percent of total NICU Medicaid days). Eligible DSH days for out-of-state cost reporting hospitals that qualify for DSH but that have less than 12% Virginia Medicaid utilization shall be 50% of the days that would have otherwise been eligible DSH days.

3. Additional eligible DSH days are days that exceed 28% Medicaid utilization for Virginia Type Two hospitals, excluding Children's Hospital of the Kings Daughters (CHKD).

4. The DSH per diem shall be calculated in the following manner:

a. The DSH per diem for Type Two hospitals is calculated by dividing the total Type Two DSH allocation by the sum of eligible DSH days for all Type Two DSH hospitals. For purposes of DSH, Type Two hospitals do not include CHKD or any hospital whose reimbursement exceeds its federal uncompensated care cost limit. The Type Two hospital DSH allocation shall equal the amount of DSH paid to Type Two hospitals in state FY 2014 increased annually by the percent change in the federal allotment, including any reductions as a result of the Patient Protection and Affordable Care Act (Affordable Care Act), P.L. Public Law 111-148, adjusted for the state fiscal year. Effective July 1, 2018, the Type Two hospital DSH allocation shall be reduced by the amount of DSH allocated to freestanding children's hospitals located in the District of Columbia.

b. The DSH per diem for state inpatient psychiatric hospitals is calculated by dividing the total state inpatient psychiatric hospital DSH allocation by the sum of eligible DSH days. The state inpatient psychiatric hospital DSH allocation shall equal the amount of DSH paid in state FY 2013 increased annually by the percent change in the federal allotment, including any reductions as a result of the Affordable Care Act, adjusted for the state fiscal year.

c. Effective July 1, 2017, the annual DSH payment shall be calculated separately for each eligible hospital by multiplying each year's state inpatient psychiatric hospital DSH allocation described in subdivision C 4 b of this section by the ratio of each hospital's uncompensated care cost for the most recent DSH audited year completed prior to the DSH payment year to the uncompensated care cost of all state inpatient psychiatric hospitals for the same audited year.

d. The DSH per diem for CHKD shall be three times the DSH per diem for Type Two hospitals.

5. Each year, the department shall determine how much Type Two DSH has been reduced as a result of the Affordable Care Act and adjust the percent of cost reimbursed for outpatient hospital reimbursement.

D. Effective July 1, 2014, the DSH reimbursement methodology for Type One hospitals shall be to pay its uncompensated care costs up to the available allotment. Interim payments shall be made based on estimates of the uncompensated care costs and allotment. Payments shall be settled at cost report settlement and at the conclusion of the DSH audit.

E. Prior to July 1, 2014, hospitals qualifying under the 14% inpatient Medicaid utilization percentage shall receive a DSH payment based on the hospital's type and the hospital's Medicaid utilization percentage.

1. Type One hospitals shall receive a DSH payment equal to:

a. The sum of (i) the hospital's Medicaid utilization percentage in excess of 10.5%, times 17, times the hospital's Medicaid operating reimbursement, times 1.4433 and (ii) the hospital's Medicaid utilization percentage in excess of 21%, times 17, times the hospital's Medicaid operating reimbursement, times 1.4433.

b. Multiplied by the Type One hospital DSH Factor factor. The Type One hospital DSH factor shall equal a percentage that when applied to the DSH payment calculation yields a DSH payment equal to the total calculated using the methodology outlined in subdivision 1 a of this subsection using an adjustment factor of one in the calculation of operating payments rather than the adjustment factor specified in subdivision B 1 of 12VAC30-70-331.

2. Type Two hospitals shall receive a DSH payment equal to the sum of (i) the hospital's Medicaid utilization percentage in excess of 10.5%, times the hospital's Medicaid operating reimbursement, times 1.2074 and (ii) the hospital's Medicaid utilization percentage in excess of 21%, times the hospital's Medicaid operating reimbursement, times 1.2074. Out-of-state cost reporting hospitals with Virginia utilization in the base year of less than 12% of total Medicaid days shall receive 50% of the payment described in this subsection.

F. Hospitals qualifying under the 25% low-income patient utilization rate shall receive a DSH payment based on the hospital's type and the hospital's low-income utilization rate.

1. Type One hospitals shall receive a DSH payment equal to the product of the hospital's low-income utilization in excess of 25%, times 17, times the hospital's Medicaid operating reimbursement.

2. Type Two hospitals shall receive a DSH payment equal to the product of the hospital's low-income utilization in excess of 25%, times the hospital's Medicaid operating reimbursement.

3. Calculation of a hospital's low-income patient utilization percentage is defined in 42 USC § 1396r-4(b)(3).

G. Each hospital's eligibility for DSH payment and the amount of the DSH payment shall be calculated at the time of each rebasing using the most recent reliable utilization data and projected operating reimbursement data available. The utilization data used to determine eligibility for DSH payment and the amount of the DSH payment shall include days for Medicaid recipients enrolled in capitated managed care programs. In years when DSH payments are not rebased in the way described in this section, the previous year's amounts shall be adjusted for inflation.

For freestanding psychiatric facilities licensed as hospitals, DSH payment shall be based on the most recently settled Medicare cost report available before the beginning of the state fiscal year for which a payment is being calculated.

H. Effective July 1, 2010, DSH payments shall be rebased for all hospitals with the final calculation reduced by a uniform percentage such that the expenditures in FY 2011 do not exceed expenditures in FY 2010 separately for Type One and Type Two hospitals. The reduction shall be calculated after determination of eligibility. Payments determined in FY 2011 shall not be adjusted for inflation in FY 2012.

I. Effective July 1, 2013, DSH payments shall not be rebased for all hospitals in FY 2014 and shall be frozen at the payment levels for FY 2013 eligible providers.

J. To be eligible for DSH, a hospital shall also meet the requirements in 42 USC § 1396r-4(d). No DSH payment shall exceed any applicable limitations upon such payment established by 42 USC § 1396r-4(g).

K. If making the DSH payments prescribed in this chapter would exceed the DSH allotment, DMAS shall adjust DSH payments to Type One hospitals. Any DSH payment not made as prescribed in the State Plan as a result of the DSH allotment shall be made upon a determination that an available allotment exists.

12VAC30-70-425. Certified public expenditures Supplemental payments for nonstate non-state-government-owned hospitals for inpatient services.

A. In addition to payments made elsewhere, effective July 1, 2005, DMAS shall draw down federal funds to cover unreimbursed Medicaid costs for inpatient services provided by nonstate non-state-government-owned hospitals as certified by the provider through cost reports.

B. A nonstate non-state-government-owned hospital is owned or operated by a unit of government other than a state.

C. Effective July 1, 2018, additional supplemental payments will be issued to each non-state-government-owned acute care hospital for inpatient services provided to Medicaid patients.

1. The supplemental payment shall equal inpatient hospital clam payments times the upper payment limit (UPL) gap percentage.

a. The annual UPL gap percentage is the percentage calculated where the numerator is the difference for each non-state-government-owned acute care hospital between a reasonable estimate of the amount that would be paid under Medicare payment principles for inpatient hospital services provided to Medicaid patients, as calculated in accordance with 42 CFR 447.272, and what Medicaid paid for such services, and the denominator is Medicaid claim payments to each hospital for inpatient hospital services provided to Medicaid patients in the same years used in the numerator.

b. The UPL gap percentage will be calculated annually for each hospital using data for the most recent year for which comprehensive annual data are available and inflated to the state fiscal year for which payments are to be made.

c. Maximum aggregate payments to all qualifying hospitals shall not exceed the available upper payment limit. If inpatient payments for non-state-government-owned hospitals would exceed the upper payment limit, the numerator in the calculation of the UPL gap percentage shall be reduced proportionately.

2. After the close of each quarter, beginning with the July 1, 2018, to September 30, 2018, quarter, each qualifying hospital shall receive supplemental payments for the inpatient services paid during the prior quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated by multiplying the Medicaid inpatient hospital payments paid in that quarter by the annual UPL gap percentage for each hospital.

12VAC30-80-20. Services that are reimbursed on a cost basis.

A. Payments for services listed in this section shall be on the basis of reasonable cost following the standards and principles applicable to the Title XVIII Program with the exception provided for in subdivision D 1 e of this section. The upper limit for reimbursement shall be no higher than payments for Medicare patients in accordance with 42 CFR 447.321. In no instance, however, shall charges for beneficiaries of the program be in excess of charges for private patients receiving services from the provider. The professional component for emergency room physicians shall continue to be uncovered as a component of the payment to the facility.

B. Reasonable costs will be determined from the filing of a uniform Centers for Medicare and Medicaid Services-approved cost report by participating providers. The cost reports are due not later than 150 days after the provider's fiscal year end. If a complete cost report is not received within 150 days after the end of the provider's fiscal year, DMAS or its designee shall take action in accordance with its policies to assure that an overpayment is not being made. All cost reports shall be reviewed and reconciled to final costs within 180 days of the receipt of a completed cost report. The cost report will be judged complete when DMAS has all of the following:

1. Completed cost reporting form provided by DMAS, with signed certification;

2. The provider's trial balance showing adjusted journal entries;

3. The provider's financial statements including a balance sheet, a statement of income and expenses, a statement of retained earnings (or fund balance), and a statement of changes in financial position;

4. Schedules that reconcile financial statements and trial balance to expenses claimed in the cost report;

5. Depreciation schedule or summary;

6. Home office cost report, if applicable; and

7. Such other analytical information or supporting documents requested by DMAS when the cost reporting forms are sent to the provider.

C. Item 398 D of the 1987 Appropriation Act (as amended), effective April 8, 1987, eliminated reimbursement of return on equity capital to proprietary providers.

D. The services that are cost reimbursed are:

1. For dates of service prior to January 1, 2014, outpatient hospital services, including rehabilitation hospital outpatient services and excluding laboratory services.

a. Definitions. The following words and terms when used in this section shall have the following meanings when applied to emergency services unless the context clearly indicates otherwise:

"All-inclusive" means all emergency department and ancillary service charges claimed in association with the emergency room visit, with the exception of laboratory services.

"DMAS" means the Department of Medical Assistance Services consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"Emergency hospital services" means services that are necessary to prevent the death or serious impairment of the health of the recipient. The threat to the life or health of the recipient necessitates the use of the most accessible hospital available that is equipped to furnish the services.

"Recent injury" means an injury that has occurred less than 72 hours prior to the emergency department visit.

b. Scope. DMAS shall differentiate, as determined by the attending physician's diagnosis, the kinds of care routinely rendered in emergency departments and reimburse for nonemergency care rendered in emergency departments at a reduced rate.

(1) With the exception of laboratory services, DMAS shall reimburse at a reduced and all-inclusive reimbursement rate for all services rendered in emergency departments that DMAS determines were nonemergency care.

(2) Services determined by the attending physician to be emergencies shall be reimbursed under the existing methodologies and at the existing rates.

(3) Services performed by the attending physician that may be emergencies shall be manually reviewed. If such services meet certain criteria, they shall be paid under the methodology for subdivision 1 b (2) of this subsection. Services not meeting certain criteria shall be paid under the methodology of subdivision 1 b (1) of this subsection. Such criteria shall include:

(a) The initial treatment following a recent obvious injury.

(b) Treatment related to an injury sustained more than 72 hours prior to the visit with the deterioration of the symptoms to the point of requiring medical treatment for stabilization.

(c) The initial treatment for medical emergencies including indications of severe chest pain, dyspnea, gastrointestinal hemorrhage, spontaneous abortion, loss of consciousness, status epilepticus, or other conditions considered life threatening.

(d) A visit in which the recipient's condition requires immediate hospital admission or the transfer to another facility for further treatment or a visit in which the recipient dies.

(e) Services provided for acute vital sign changes as specified in the provider manual.

(f) Services provided for severe pain when combined with one or more of the other guidelines.

(4) Payment shall be determined based on ICD diagnosis codes and necessary supporting documentation. As used here, the term "ICD" is defined in 12VAC30-95-5.

(5) DMAS shall review on an ongoing basis the effectiveness of this program in achieving its objectives and for its effect on recipients, physicians, and hospitals. Program components may be revised subject to achieving program intent, the accuracy and effectiveness of the ICD code designations, and the impact on recipients and providers. As used here, the term "ICD" is defined in 12VAC30-95-5.

c. Limitation of allowable cost. Effective for services on and after July 1, 2003, reimbursement of Type Two hospitals for outpatient services shall be at various percentages as noted in subdivisions 1 c (1) and 1 c (2) of this subsection of allowable cost, with cost to be determined as provided in subsections A, B, and C of this section. For hospitals with fiscal years that do not begin on July 1, outpatient costs, both operating and capital, for the fiscal year in progress on that date shall be apportioned between the time period before and the time period after that date, based on the number of calendar months in the cost reporting period, falling before and after that date.

(1) Type One hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating reimbursement shall be at 91.2% of allowable cost and capital reimbursement shall be at 87% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating reimbursement shall be at 90.2% of allowable cost and capital reimbursement shall be at 86% of allowable cost.

(2) Type Two hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating and capital reimbursement shall be 77% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating and capital reimbursement shall be 76% of allowable cost.

d. The last cost report with a fiscal year end on or after December 31, 2013, shall be used for reimbursement for dates of service through December 31, 2013, based on this section. Reimbursement shall be based on charges reported for dates of service prior to January 1, 2014. Settlement will be based on four months of runout from the end of the provider's fiscal year. Claims for services paid after the cost report runout period will not be settled.

e. Payment for direct medical education costs of nursing schools, paramedical programs, and graduate medical education for interns and residents.

(1) Direct medical education costs of nursing schools and paramedical programs shall continue to be paid on an allowable cost basis.

(2) Effective with cost reporting periods beginning on or after July 1, 2002, direct graduate medical education (GME) costs for interns and residents shall be reimbursed on a per-resident prospective basis. See 12VAC30-70-281 for prospective payment methodology for graduate medical education for interns and residents.

2. Rehabilitation agencies or comprehensive outpatient rehabilitation.

a. Effective July 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities that are operated by community services boards or state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

b. Effective October 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities operated by state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

3. Supplement payments to Type One hospitals for outpatient services.

a. In addition to payments for services set forth elsewhere in the State Plan, DMAS makes supplemental payments to qualifying state government owned or operated hospitals for outpatient services furnished to Medicare members on or after July 1, 2010. To qualify for a supplement payment, the hospital must be part of the state academic health system or part of an academic health system that operates under a state authority.

b. The amount of the supplemental payment made to each qualifying hospital shall be equal to the difference between the total allowable cost and the amount otherwise actually paid for the services by the Medicaid program based on cost settlement.

c. Payment for furnished services under this section shall be paid at settlement of the cost report.

4. Supplemental payments for private hospital partners of Type One hospitals. Effective for dates of service on or after October 25, 2011, quarterly supplemental payments shall be issued to qualifying private hospitals for outpatient services rendered during the quarter. These quarterly supplemental payments will cease for dates of service on or after the effective date of State Plan amendments authorizing increased payments to qualifying hospitals from the Health Care Provider Rate Assessment Fund established pursuant to § 32.1-331.02 of the Code of Virginia and approved by the Centers for Medicare and Medicaid Services.

a. In order to qualify for the supplemental payment, the hospital shall be enrolled currently as a Virginia Medicaid provider and shall be owned or operated by a private entity in which a Type One hospital has a nonmajority interest.

b. Reimbursement methodology.

(1) Hospitals notparticipating in the Medicaid disproportionate share hospital (DSH) program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year; or

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department.

(2) Hospitals participating in the DSH program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year;

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department; or

(c) The difference between the limit calculated under § 1923(g) of the Social Security Act and the hospital's DSH payments for the applicable payment period.

c. Limit. Maximum aggregate payments to all qualifying hospitals in this group shall not exceed the available upper payment limit per state fiscal year.

5. Supplemental outpatient payments for non-state-government-owned hospitals. Effective July 1, 2018, supplemental payments will be issued to qualifying non-state-government-owned hospitals for outpatient services provided to Medicaid patients.

a. Qualifying hospitals are all non-state-government-owned acute care hospitals.

b. The supplemental payment shall equal outpatient hospital claim payments times the upper payment limit (UPL) gap percentage.

(1) The annual UPL gap percentage is the percentage calculated where the numerator is the difference for each qualifying hospital between a reasonable estimate of the amount that would be paid under Medicare payment principles for outpatient hospital services provided to Medicaid patients, as calculated in accordance with 42 CFR 447.321, and what Medicaid paid for such services, and the denominator is Medicaid claim payments to all qualifying hospitals for outpatient hospital services provided to Medicaid patients in the same year used in the numerator.

(2) The annual UPL gap percentage will be calculated annually for each hospital using the most recent year for which comprehensive annual data are available and inflated to the state fiscal year for which payments are to be made.

6. Quarterly payments. After the close of each quarter, beginning with the July 1, 2018, to September 30, 2018, quarter, each qualifying hospital shall receive supplemental payments for the outpatient services paid during the prior quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated by multiplying the Medicaid outpatient hospital payments paid in that quarter by the annual UPL gap percentage for each hospital.

VA.R. Doc. No. R20-6018; Filed December 18, 2019, 8:33 a.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Fast-Track Regulation

Titles of Regulations: 12VAC30-70. Methods and Standards for Establishing Payment Rates - Inpatient Hospital Services (amending 12VAC30-70-291, 12VAC30-70-301, 12VAC30-70-425).

12VAC30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-20).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 19, 2020.

Effective Date: March 5, 2020.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia authorizes the Board of Medical Assistance Services to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia authorizes the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the State Plan for Medical Assistance and to promulgate regulations according to the board's requirements. The Medicaid authority as established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Purpose: The amendments are required to conform regulation to items of the 2018 state budget. This action is necessary for the public health, safety, and welfare in that it ensures appropriate funding for Medicaid services provided by hospitals and thereby ensures that hospitals can continue to provide services to Medicaid members.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendments at 12VAC30-70-291 and 12VAC30-70-301 are required by Item 303 SSS of Chapter 2 of the 2018 Acts of Assembly, Special Session I. The proposed amendment at 12VAC30-70-425 and 12VAC30-80-20 are required by Item 303 XX 7 of Chapter 2 of the 2018 Acts of Assembly, Special Session I. DMAS attained the approval from the Centers for Medicare and Medicaid Services that was required prior to implementation of the new reimbursement rates as of October 25, 2018.

Substance: The proposed amendment to 12VAC30-70-291 updates the section to indicate an additional indirect medical education (IME) payment for freestanding children's hospitals in the District of Columbia. The proposed amendment to 12VAC30-70-301 eliminates disproportionate share hospital (DSH) payments to out-of-state children's hospitals, to include freestanding children's hospitals in the District of Columbia. The proposed amendments to 12VAC30-70-425 and 12VAC30-80-20 update existing regulations to allow additional supplemental payments to be issued to each non-state-government-owned acute care hospital for inpatient services provided to Medicaid patients.

Currently, DSH payments are being made to out-of-state children's hospitals to include freestanding children's hospitals located in the District of Columbia. The proposed regulations eliminate these DSH payments in 12VAC30-70-301 and increase the IME payments to freestanding children's hospitals in the District of Columbia by the amount of DSH payments that the hospital was eligible for in state fiscal year (SFY) 2018 in 12VAC30-70-291. The total Type Two hospital DSH allocation is reduced by the total amount paid to freestanding children's hospitals in the District of Columbia in SFY 2018. All changes to these two sections are effective as of July 1, 2018.

Unreimbursed Medicaid cost payments are currently made to non-state-government-owned hospitals as certified through provider cost reports and meeting other criteria as outlined in regulation. Beginning July 1, 2018, additional supplemental payments shall be made to non-state-government-owned acute care hospitals for inpatient and outpatient services. The supplemental payments will be made quarterly for inpatient and outpatient services that were provided in the prior quarter. The quarterly payments shall begin with the first quarter in SFY 2019 and will be calculated by multiplying the Medicaid inpatient and outpatient hospital payments paid in that quarter by the inpatient and outpatient upper payment level (UPL) gap percentages for each hospital. UPL gap percentages are calculated annually for hospitals using the most recent year in which the data is available and inflated to the SFY in which the payments are being made. These updates are being made in 12VAC30-70-425 and 12VAC30-80-20.

Issues: The primary advantages to the Commonwealth and the public from these regulatory changes are the provision of additional reimbursement for certain hospitals. There are no disadvantages to the Commonwealth or the public as a result of this regulatory action.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medical Assistance Services (Board) proposes to revise the current regulations to (1) reclassify certain payments made to a freestanding children's hospital in the District of Columbia and (2) allow additional supplemental payments to be issued to non-state-government-owned2 acute care hospitals in order to increase the reimbursement for inpatient services provided to Medicaid patients; the supplemental payments are related to another regulatory action currently underway.

The 2018 Appropriation Act contained budget language in two items that directed DMAS to amend the State Plan for Medical Assistance (state plan). The first Item, 303 SSS, authorized the Department of Medical Assistance Services (DMAS) to amend the state plan such that Disproportionate Share Hospital (DSH) payments for the Children's National Medical Center (CNMC) are discontinued and replaced with an indirect medical education (IME) payment. DSH payments take into account the financial situation of hospitals that serve a disproportionate number of low income patients with special needs. IME payments recognize the higher operating costs at hospitals with teaching programs (the increased diagnostic and treatment costs related to their educational mission).3

Specifically, the proposed amendment would: (i) make CNMC no longer eligible to receive DSH payments, (ii) increase the annual IME payments made to CNMC by the amount of DSH the hospital was eligible for in state fiscal year 2018 (12VAC30-70-291), and (iii) reduce the Type 2 DSH allocation by the same amount (12VAC30-70-301). The Act authorized DMAS to implement these changes effective July 1, 2018, prior to the completion of any regulatory action to effect this change. The rationale provided for this budget amendment states that the hospital was at their federal cap, thereby preventing the hospital from being able to accept DSH funding from the Commonwealth. Because the hospital recently met the state threshold to receive IME payments from the Commonwealth, the budget was amended to allow the continuation of such payments in lieu of any future DSH payments.4

The second Item, 303.XX.7, directs DMAS to make supplemental payments to Chesapeake Regional Hospital, which is operated by the Chesapeake Hospital Authority.5 DMAS is implementing this by amending 12VAC30-70-425, which involves non-state-government-owned hospitals such as Chesapeake Regional. This item is related to two separate items in the same Act (3-5.15 and 3-5.16) that affect private acute care hospitals and instruct DMAS to levy a provider coverage assessment and a provider payment rate assessment, in addition to implementing a statewide supplemental payment. These items are being addressed through a different regulatory action that is currently in place as an emergency regulation (Action number 5100).6 The proposed amendment in this Action regarding the calculation of this supplemental payment is identical to the language pertaining to supplemental payments in the emergency regulation. Item 303.XX.7 required that DMAS secure approval from the Centers for Medicare and Medicaid Services prior to implementation; this approval was obtained as of October 25, 2018.

Estimated Benefits and Costs. CNMC would benefit by qualifying to receive IME payments from the state, thereby allowing them to continue receiving funds amount despite having met the federal cap for DSH payments. Because the amount being paid to CNMC would be staying the same, it is unlikely that any other benefits or costs would accrue.

Chesapeake Regional would benefit from receiving any supplemental payments, which should be substantially less than the cost incurred by the hospital to receive them. As described by the budget amendment for this Item, the hospital will make an intergovernmental transfer to DMAS to be used as the state share for the supplemental Medicaid payments to the hospital. In exchange, the hospital will receive a substantially larger amount of federal funds, and the general fund will not be impacted.

Businesses and Other Entities Affected. No other entities are likely to be affected, besides CNMC and Chesapeake Regional as described above.

Localities7 Affected.8 The proposed amendment does not introduce new costs for local governments. Chesapeake Regional is located in Chesapeake; hence the locality may be affected depending on the overall impact of the supplemental payments on the hospital and the number of Medicaid-insured individuals it serves.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendment has no effect on the use and value of private property, nor does it affect real estate development costs.

Adverse Effect on Small Businesses.9 The proposed amendment does not adversely affect small businesses.

______________________

2A non-state-government-owned hospital is owned or operated by a unit of government other than a state.

3http://sfc.virginia.gov/pdf/health/2010%20Session/062110%20DMAS%20-%20Crawford.pdf

4https://budget.lis.virginia.gov/amendment/2018/2/HB5002/Introduced/SE/303/3s/

5https://law.lis.virginia.gov/authorities/chesapeake-hospital-authority/

6http://townhall.virginia.gov/L/ViewAction.cfm?actionid=5100 The proposed stage of this action is currently at the Office of the Attorney General.

7"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

8§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

9Pursuant 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. "

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and raises no issues with this analysis.

Summary:

The amendments contain three provider reimbursement updates as required by Chapter 2 of the 2018 Acts of Assembly, Special Session I. The amendments (i) add an indirect medical education payment for freestanding children's hospitals in the District of Columbia; (ii) eliminate disproportionate share hospital payments to out-of-state children's hospitals, to include freestanding children's hospitals in the District of Columbia; and (iii) allow additional supplemental payments to be issued to each non-state-government-owned acute care hospital for inpatient services provided to Medicaid patients. 

12VAC30-70-291. Payment for indirect medical education costs.

A. Hospitals shall be eligible to receive payments for indirect medical education (IME). Out-of-state cost reporting hospitals are eligible for this payment only if they have Virginia Medicaid utilization in the base year of at least 12% of total Medicaid days. These payments recognize the increased use of ancillary services associated with the educational process and the higher case-mix intensity of teaching hospitals. The payments for indirect medical education shall be made in estimated quarterly lump sum amounts and settled at the hospital's fiscal year end.

B. Final payment for IME shall be determined as follows:

1. Type One hospitals shall receive an IME payment equal to the hospital's Medicaid operating reimbursement times an IME percentage determined as follows (this formula also applies to Children's Hospital of the King's Daughters effective July 1, 2013):

IME Percentage for Type One Hospitals = [1.89 X ((1 + r)0.405-1)] X (IME Factor)

An IME factor shall be calculated for each Type One hospital and shall equal a factor that, when used in the calculation of the IME percentage, shall cause the resulting IME payments to equal what the IME payments would be with an IME factor of one, plus an amount equal to the difference between operating payments using the adjustment factor specified in subdivision B 1 of 12VAC30-70-331 and operating payments using an adjustment factor of one in place of the adjustment factor specified in subdivision B 1 of 12VAC30-70-331.

2. Type Two hospitals shall receive an IME payment equal to the hospital's Medicaid operating reimbursement times an IME percentage determined as follows (excluding Children's Hospital of the King's Daughters):

IME Percentage for Type Two Hospitals = [1.89 X ((1 + r)0.405-1)] X 0.5695

In both equations, r is the ratio of full-time equivalent residents to staffed beds, excluding nursery beds. The IME payment shall be calculated each year using the most recent reliable data regarding the number of full-time equivalent residents and the number of staffed beds, excluding nursery beds.

C. An additional IME payment shall be made for inpatient hospital services provided to Medicaid patients but reimbursed by capitated managed care providers.

1. For Type Two hospitals, this payment shall be equal to the hospital's hospital specific operating rate per case, as determined in 12VAC30-70-311, times the hospital's HMO paid discharges times the hospital's IME percentage, as determined in subsection B of this section.

2. For Type One hospitals, this payment shall be equal to the hospital's hospital-specific operating rate per case, as determined in 12VAC30-70-311, times the hospital's HMO paid discharges times the hospital's IME percentage, as determined in subsection B of this section. Effective April 1, 2012, the operating rate per case used in the formula shall be revised to reflect an adjustment factor of one and case-mix adjusted by multiplying the operating rate per case in this subsection by the weight per case for FFS discharges that is determined during rebasing. This formula applies to Children's Hospital of the King's Daughters effective July 1, 2017.

D. An additional IME payment not to exceed $200,000 in total shall be apportioned among Type Two hospitals, excluding freestanding children's hospitals, with Medicaid NICU utilization in excess of 50% as reported to the Department of Medical Assistance Services as of March 1, 2004. These payments shall be apportioned based on each eligible hospital's percentage of Medicaid NICU patient days relative to the total of these days among eligible hospitals as reported by March 1, 2004.

E. An additional IME payment not to exceed $500,000 in total shall be apportioned among Type Two hospitals, excluding freestanding children's hospitals, with Medicaid NICU days in excess of 4,500 as reported to the Department of Medical Assistance Services as of March 1, 2005, that do not otherwise receive an additional IME payment under subsection D of this section. These payments shall be apportioned based on each eligible hospital's percentage of Medicaid NICU patient days relative to the total of these days among eligible hospitals as reported by March 1, 2003.

F. Effective July 1, 2013, total payments for IME in combination with other payments for freestanding children's hospitals with greater than 50% Medicaid utilization in 2009 shall not exceed the federal uncompensated care cost limit to which disproportionate share hospital payments are subject. Effective July 1, 2017, IME payments cannot exceed the federal uncompensated care cost limit to which disproportionate share hospital payments are subject, excluding third-party reimbursement for Medicaid eligible patients.

G. Effective July 1, 2018, an additional $362,360 IME payment shall be added to the IME payment calculated in subdivision B 2 of this section for freestanding children's hospitals located in the District of Columbia.

12VAC30-70-301. Payment to disproportionate share hospitals.

A. Payments to disproportionate share hospitals (DSH) shall be prospectively determined in advance of the state fiscal year to which they apply. The payments shall be made on a quarterly basis and shall be final subject to subsections E and K of this section.

B. Effective July 1, 2014, in order to qualify for DSH payments, DSH eligible hospitals shall have a total Medicaid inpatient utilization rate equal to 14% or higher in the base year using Medicaid days eligible for Medicare DSH defined in 42 USC § 1396r-4(b)(2) or a low income utilization rate defined in 42 USC § 1396r-4(b)(3) in excess of 25%. Eligibility for out-of-state cost reporting hospitals shall be based on total Medicaid utilization or on total Medicaid neonatal intensive care unit (NICU) utilization equal to 14% or higher. Effective July 1, 2018, freestanding children's hospitals located in the District of Columbia shall not be eligible for DSH payments.

C. Effective July 1, 2014, the DSH reimbursement methodology for all hospitals except Type One hospitals is the following:

1. Each hospital's DSH payment shall be equal to the DSH per diem multiplied by each hospital's eligible DSH days in a base year. Days reported in provider fiscal years in state fiscal year (FY) 2011 (available from the Medicaid cost report through the Hospital Cost Report Information System (HCRIS) as of July 30, 2013) will be the base year for FY 2015 prospective DSH payments. DSH shall be recalculated annually with an updated base year. Future base year data shall be extracted from Medicare cost report summary statistics available through HCRIS as of October 1 prior to next year's effective date.

2. Eligible DSH days are the sum of all Medicaid inpatient acute, psychiatric, and rehabilitation days above 14% for each DSH hospital subject to special rules for out-of-state cost reporting hospitals. Eligible DSH days for out-of-state cost reporting hospitals shall be the higher of the number of eligible days based on the calculation in the first sentence of this subdivision times Virginia Medicaid utilization (Virginia Medicaid days as a percent of total Medicaid days) or the Medicaid NICU days above 14% times Virginia NICU Medicaid utilization (Virginia NICU Medicaid days as a percent of total NICU Medicaid days). Eligible DSH days for out-of-state cost reporting hospitals that qualify for DSH but that have less than 12% Virginia Medicaid utilization shall be 50% of the days that would have otherwise been eligible DSH days.

3. Additional eligible DSH days are days that exceed 28% Medicaid utilization for Virginia Type Two hospitals, excluding Children's Hospital of the Kings Daughters (CHKD).

4. The DSH per diem shall be calculated in the following manner:

a. The DSH per diem for Type Two hospitals is calculated by dividing the total Type Two DSH allocation by the sum of eligible DSH days for all Type Two DSH hospitals. For purposes of DSH, Type Two hospitals do not include CHKD or any hospital whose reimbursement exceeds its federal uncompensated care cost limit. The Type Two hospital DSH allocation shall equal the amount of DSH paid to Type Two hospitals in state FY 2014 increased annually by the percent change in the federal allotment, including any reductions as a result of the Patient Protection and Affordable Care Act (Affordable Care Act), P.L. Public Law 111-148, adjusted for the state fiscal year. Effective July 1, 2018, the Type Two hospital DSH allocation shall be reduced by the amount of DSH allocated to freestanding children's hospitals located in the District of Columbia.

b. The DSH per diem for state inpatient psychiatric hospitals is calculated by dividing the total state inpatient psychiatric hospital DSH allocation by the sum of eligible DSH days. The state inpatient psychiatric hospital DSH allocation shall equal the amount of DSH paid in state FY 2013 increased annually by the percent change in the federal allotment, including any reductions as a result of the Affordable Care Act, adjusted for the state fiscal year.

c. Effective July 1, 2017, the annual DSH payment shall be calculated separately for each eligible hospital by multiplying each year's state inpatient psychiatric hospital DSH allocation described in subdivision C 4 b of this section by the ratio of each hospital's uncompensated care cost for the most recent DSH audited year completed prior to the DSH payment year to the uncompensated care cost of all state inpatient psychiatric hospitals for the same audited year.

d. The DSH per diem for CHKD shall be three times the DSH per diem for Type Two hospitals.

5. Each year, the department shall determine how much Type Two DSH has been reduced as a result of the Affordable Care Act and adjust the percent of cost reimbursed for outpatient hospital reimbursement.

D. Effective July 1, 2014, the DSH reimbursement methodology for Type One hospitals shall be to pay its uncompensated care costs up to the available allotment. Interim payments shall be made based on estimates of the uncompensated care costs and allotment. Payments shall be settled at cost report settlement and at the conclusion of the DSH audit.

E. Prior to July 1, 2014, hospitals qualifying under the 14% inpatient Medicaid utilization percentage shall receive a DSH payment based on the hospital's type and the hospital's Medicaid utilization percentage.

1. Type One hospitals shall receive a DSH payment equal to:

a. The sum of (i) the hospital's Medicaid utilization percentage in excess of 10.5%, times 17, times the hospital's Medicaid operating reimbursement, times 1.4433 and (ii) the hospital's Medicaid utilization percentage in excess of 21%, times 17, times the hospital's Medicaid operating reimbursement, times 1.4433.

b. Multiplied by the Type One hospital DSH Factor factor. The Type One hospital DSH factor shall equal a percentage that when applied to the DSH payment calculation yields a DSH payment equal to the total calculated using the methodology outlined in subdivision 1 a of this subsection using an adjustment factor of one in the calculation of operating payments rather than the adjustment factor specified in subdivision B 1 of 12VAC30-70-331.

2. Type Two hospitals shall receive a DSH payment equal to the sum of (i) the hospital's Medicaid utilization percentage in excess of 10.5%, times the hospital's Medicaid operating reimbursement, times 1.2074 and (ii) the hospital's Medicaid utilization percentage in excess of 21%, times the hospital's Medicaid operating reimbursement, times 1.2074. Out-of-state cost reporting hospitals with Virginia utilization in the base year of less than 12% of total Medicaid days shall receive 50% of the payment described in this subsection.

F. Hospitals qualifying under the 25% low-income patient utilization rate shall receive a DSH payment based on the hospital's type and the hospital's low-income utilization rate.

1. Type One hospitals shall receive a DSH payment equal to the product of the hospital's low-income utilization in excess of 25%, times 17, times the hospital's Medicaid operating reimbursement.

2. Type Two hospitals shall receive a DSH payment equal to the product of the hospital's low-income utilization in excess of 25%, times the hospital's Medicaid operating reimbursement.

3. Calculation of a hospital's low-income patient utilization percentage is defined in 42 USC § 1396r-4(b)(3).

G. Each hospital's eligibility for DSH payment and the amount of the DSH payment shall be calculated at the time of each rebasing using the most recent reliable utilization data and projected operating reimbursement data available. The utilization data used to determine eligibility for DSH payment and the amount of the DSH payment shall include days for Medicaid recipients enrolled in capitated managed care programs. In years when DSH payments are not rebased in the way described in this section, the previous year's amounts shall be adjusted for inflation.

For freestanding psychiatric facilities licensed as hospitals, DSH payment shall be based on the most recently settled Medicare cost report available before the beginning of the state fiscal year for which a payment is being calculated.

H. Effective July 1, 2010, DSH payments shall be rebased for all hospitals with the final calculation reduced by a uniform percentage such that the expenditures in FY 2011 do not exceed expenditures in FY 2010 separately for Type One and Type Two hospitals. The reduction shall be calculated after determination of eligibility. Payments determined in FY 2011 shall not be adjusted for inflation in FY 2012.

I. Effective July 1, 2013, DSH payments shall not be rebased for all hospitals in FY 2014 and shall be frozen at the payment levels for FY 2013 eligible providers.

J. To be eligible for DSH, a hospital shall also meet the requirements in 42 USC § 1396r-4(d). No DSH payment shall exceed any applicable limitations upon such payment established by 42 USC § 1396r-4(g).

K. If making the DSH payments prescribed in this chapter would exceed the DSH allotment, DMAS shall adjust DSH payments to Type One hospitals. Any DSH payment not made as prescribed in the State Plan as a result of the DSH allotment shall be made upon a determination that an available allotment exists.

12VAC30-70-425. Certified public expenditures Supplemental payments for nonstate non-state-government-owned hospitals for inpatient services.

A. In addition to payments made elsewhere, effective July 1, 2005, DMAS shall draw down federal funds to cover unreimbursed Medicaid costs for inpatient services provided by nonstate non-state-government-owned hospitals as certified by the provider through cost reports.

B. A nonstate non-state-government-owned hospital is owned or operated by a unit of government other than a state.

C. Effective July 1, 2018, additional supplemental payments will be issued to each non-state-government-owned acute care hospital for inpatient services provided to Medicaid patients.

1. The supplemental payment shall equal inpatient hospital clam payments times the upper payment limit (UPL) gap percentage.

a. The annual UPL gap percentage is the percentage calculated where the numerator is the difference for each non-state-government-owned acute care hospital between a reasonable estimate of the amount that would be paid under Medicare payment principles for inpatient hospital services provided to Medicaid patients, as calculated in accordance with 42 CFR 447.272, and what Medicaid paid for such services, and the denominator is Medicaid claim payments to each hospital for inpatient hospital services provided to Medicaid patients in the same years used in the numerator.

b. The UPL gap percentage will be calculated annually for each hospital using data for the most recent year for which comprehensive annual data are available and inflated to the state fiscal year for which payments are to be made.

c. Maximum aggregate payments to all qualifying hospitals shall not exceed the available upper payment limit. If inpatient payments for non-state-government-owned hospitals would exceed the upper payment limit, the numerator in the calculation of the UPL gap percentage shall be reduced proportionately.

2. After the close of each quarter, beginning with the July 1, 2018, to September 30, 2018, quarter, each qualifying hospital shall receive supplemental payments for the inpatient services paid during the prior quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated by multiplying the Medicaid inpatient hospital payments paid in that quarter by the annual UPL gap percentage for each hospital.

12VAC30-80-20. Services that are reimbursed on a cost basis.

A. Payments for services listed in this section shall be on the basis of reasonable cost following the standards and principles applicable to the Title XVIII Program with the exception provided for in subdivision D 1 e of this section. The upper limit for reimbursement shall be no higher than payments for Medicare patients in accordance with 42 CFR 447.321. In no instance, however, shall charges for beneficiaries of the program be in excess of charges for private patients receiving services from the provider. The professional component for emergency room physicians shall continue to be uncovered as a component of the payment to the facility.

B. Reasonable costs will be determined from the filing of a uniform Centers for Medicare and Medicaid Services-approved cost report by participating providers. The cost reports are due not later than 150 days after the provider's fiscal year end. If a complete cost report is not received within 150 days after the end of the provider's fiscal year, DMAS or its designee shall take action in accordance with its policies to assure that an overpayment is not being made. All cost reports shall be reviewed and reconciled to final costs within 180 days of the receipt of a completed cost report. The cost report will be judged complete when DMAS has all of the following:

1. Completed cost reporting form provided by DMAS, with signed certification;

2. The provider's trial balance showing adjusted journal entries;

3. The provider's financial statements including a balance sheet, a statement of income and expenses, a statement of retained earnings (or fund balance), and a statement of changes in financial position;

4. Schedules that reconcile financial statements and trial balance to expenses claimed in the cost report;

5. Depreciation schedule or summary;

6. Home office cost report, if applicable; and

7. Such other analytical information or supporting documents requested by DMAS when the cost reporting forms are sent to the provider.

C. Item 398 D of the 1987 Appropriation Act (as amended), effective April 8, 1987, eliminated reimbursement of return on equity capital to proprietary providers.

D. The services that are cost reimbursed are:

1. For dates of service prior to January 1, 2014, outpatient hospital services, including rehabilitation hospital outpatient services and excluding laboratory services.

a. Definitions. The following words and terms when used in this section shall have the following meanings when applied to emergency services unless the context clearly indicates otherwise:

"All-inclusive" means all emergency department and ancillary service charges claimed in association with the emergency room visit, with the exception of laboratory services.

"DMAS" means the Department of Medical Assistance Services consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"Emergency hospital services" means services that are necessary to prevent the death or serious impairment of the health of the recipient. The threat to the life or health of the recipient necessitates the use of the most accessible hospital available that is equipped to furnish the services.

"Recent injury" means an injury that has occurred less than 72 hours prior to the emergency department visit.

b. Scope. DMAS shall differentiate, as determined by the attending physician's diagnosis, the kinds of care routinely rendered in emergency departments and reimburse for nonemergency care rendered in emergency departments at a reduced rate.

(1) With the exception of laboratory services, DMAS shall reimburse at a reduced and all-inclusive reimbursement rate for all services rendered in emergency departments that DMAS determines were nonemergency care.

(2) Services determined by the attending physician to be emergencies shall be reimbursed under the existing methodologies and at the existing rates.

(3) Services performed by the attending physician that may be emergencies shall be manually reviewed. If such services meet certain criteria, they shall be paid under the methodology for subdivision 1 b (2) of this subsection. Services not meeting certain criteria shall be paid under the methodology of subdivision 1 b (1) of this subsection. Such criteria shall include:

(a) The initial treatment following a recent obvious injury.

(b) Treatment related to an injury sustained more than 72 hours prior to the visit with the deterioration of the symptoms to the point of requiring medical treatment for stabilization.

(c) The initial treatment for medical emergencies including indications of severe chest pain, dyspnea, gastrointestinal hemorrhage, spontaneous abortion, loss of consciousness, status epilepticus, or other conditions considered life threatening.

(d) A visit in which the recipient's condition requires immediate hospital admission or the transfer to another facility for further treatment or a visit in which the recipient dies.

(e) Services provided for acute vital sign changes as specified in the provider manual.

(f) Services provided for severe pain when combined with one or more of the other guidelines.

(4) Payment shall be determined based on ICD diagnosis codes and necessary supporting documentation. As used here, the term "ICD" is defined in 12VAC30-95-5.

(5) DMAS shall review on an ongoing basis the effectiveness of this program in achieving its objectives and for its effect on recipients, physicians, and hospitals. Program components may be revised subject to achieving program intent, the accuracy and effectiveness of the ICD code designations, and the impact on recipients and providers. As used here, the term "ICD" is defined in 12VAC30-95-5.

c. Limitation of allowable cost. Effective for services on and after July 1, 2003, reimbursement of Type Two hospitals for outpatient services shall be at various percentages as noted in subdivisions 1 c (1) and 1 c (2) of this subsection of allowable cost, with cost to be determined as provided in subsections A, B, and C of this section. For hospitals with fiscal years that do not begin on July 1, outpatient costs, both operating and capital, for the fiscal year in progress on that date shall be apportioned between the time period before and the time period after that date, based on the number of calendar months in the cost reporting period, falling before and after that date.

(1) Type One hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating reimbursement shall be at 91.2% of allowable cost and capital reimbursement shall be at 87% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating reimbursement shall be at 90.2% of allowable cost and capital reimbursement shall be at 86% of allowable cost.

(2) Type Two hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating and capital reimbursement shall be 77% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating and capital reimbursement shall be 76% of allowable cost.

d. The last cost report with a fiscal year end on or after December 31, 2013, shall be used for reimbursement for dates of service through December 31, 2013, based on this section. Reimbursement shall be based on charges reported for dates of service prior to January 1, 2014. Settlement will be based on four months of runout from the end of the provider's fiscal year. Claims for services paid after the cost report runout period will not be settled.

e. Payment for direct medical education costs of nursing schools, paramedical programs, and graduate medical education for interns and residents.

(1) Direct medical education costs of nursing schools and paramedical programs shall continue to be paid on an allowable cost basis.

(2) Effective with cost reporting periods beginning on or after July 1, 2002, direct graduate medical education (GME) costs for interns and residents shall be reimbursed on a per-resident prospective basis. See 12VAC30-70-281 for prospective payment methodology for graduate medical education for interns and residents.

2. Rehabilitation agencies or comprehensive outpatient rehabilitation.

a. Effective July 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities that are operated by community services boards or state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

b. Effective October 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities operated by state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

3. Supplement payments to Type One hospitals for outpatient services.

a. In addition to payments for services set forth elsewhere in the State Plan, DMAS makes supplemental payments to qualifying state government owned or operated hospitals for outpatient services furnished to Medicare members on or after July 1, 2010. To qualify for a supplement payment, the hospital must be part of the state academic health system or part of an academic health system that operates under a state authority.

b. The amount of the supplemental payment made to each qualifying hospital shall be equal to the difference between the total allowable cost and the amount otherwise actually paid for the services by the Medicaid program based on cost settlement.

c. Payment for furnished services under this section shall be paid at settlement of the cost report.

4. Supplemental payments for private hospital partners of Type One hospitals. Effective for dates of service on or after October 25, 2011, quarterly supplemental payments shall be issued to qualifying private hospitals for outpatient services rendered during the quarter. These quarterly supplemental payments will cease for dates of service on or after the effective date of State Plan amendments authorizing increased payments to qualifying hospitals from the Health Care Provider Rate Assessment Fund established pursuant to § 32.1-331.02 of the Code of Virginia and approved by the Centers for Medicare and Medicaid Services.

a. In order to qualify for the supplemental payment, the hospital shall be enrolled currently as a Virginia Medicaid provider and shall be owned or operated by a private entity in which a Type One hospital has a nonmajority interest.

b. Reimbursement methodology.

(1) Hospitals notparticipating in the Medicaid disproportionate share hospital (DSH) program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year; or

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department.

(2) Hospitals participating in the DSH program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year;

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department; or

(c) The difference between the limit calculated under § 1923(g) of the Social Security Act and the hospital's DSH payments for the applicable payment period.

c. Limit. Maximum aggregate payments to all qualifying hospitals in this group shall not exceed the available upper payment limit per state fiscal year.

5. Supplemental outpatient payments for non-state-government-owned hospitals. Effective July 1, 2018, supplemental payments will be issued to qualifying non-state-government-owned hospitals for outpatient services provided to Medicaid patients.

a. Qualifying hospitals are all non-state-government-owned acute care hospitals.

b. The supplemental payment shall equal outpatient hospital claim payments times the upper payment limit (UPL) gap percentage.

(1) The annual UPL gap percentage is the percentage calculated where the numerator is the difference for each qualifying hospital between a reasonable estimate of the amount that would be paid under Medicare payment principles for outpatient hospital services provided to Medicaid patients, as calculated in accordance with 42 CFR 447.321, and what Medicaid paid for such services, and the denominator is Medicaid claim payments to all qualifying hospitals for outpatient hospital services provided to Medicaid patients in the same year used in the numerator.

(2) The annual UPL gap percentage will be calculated annually for each hospital using the most recent year for which comprehensive annual data are available and inflated to the state fiscal year for which payments are to be made.

6. Quarterly payments. After the close of each quarter, beginning with the July 1, 2018, to September 30, 2018, quarter, each qualifying hospital shall receive supplemental payments for the outpatient services paid during the prior quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated by multiplying the Medicaid outpatient hospital payments paid in that quarter by the annual UPL gap percentage for each hospital.

VA.R. Doc. No. R20-6018; Filed December 18, 2019, 8:33 a.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Fast-Track Regulation

Titles of Regulations: 12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-181, 12VAC30-60-185).

12VAC30-70. Methods and Standards for Establishing Payment Rates - Inpatient Hospital Services (adding 12VAC30-70-418).

12VAC30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-32).

12VAC30-130. Amount, Duration and Scope of Selected Services (amending 12VAC30-130-5010 through 12VAC30-130-5150).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 19, 2020.

Effective Date: March 5, 2020.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia authorizes the Board of Medical Assistance Services to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia grants the Director of the Department of Medical Assistance Services (DMAS) the authority of the board when it is not in session. The Medicaid authority established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Purpose: These changes are essential to protect the health, safety, and welfare of citizens because they clarify existing rules for the addiction and recovery treatment services (ARTS) program to make it easier for providers to understand program rules and to make these services more accessible to Medicaid members.

Rationale for Using Fast-Track Rulemaking Process: These regulations are expected to be noncontroversial. The initial ARTS regulations were noncontroversial, and they implemented new substance use programs. These updates do not restrict services or negatively impact providers or Medicaid members. Instead, these updates provide clarification to answer questions raised by providers since the initial ARTS implementation.

Substance: The changes in this regulatory package streamline, simplify, and clarify existing requirements for ARTS services and ARTS providers. The changes include:

1. Changing references from "the BHSA," which means the behavioral health services administrator, to "DMAS or its contractor" because the BHSA contract will be ending.

2. Correcting outdated citations.

3. Clarifying the roles and responsibilities of credentialed addiction treatment professionals (CATPs), certified substance abuse counselors (CSACs), certified substance abuse counselor-assistants (CSAC-As), and certified substance abuse counselor-supervisees (CSAC-supervisees). CATPs are licensed or registered with various boards through the Department of Health Professions, while CSACs, CSAC-As, and CSAC-supervisees are lower-level staff who are certified through the Board of Counseling. Defining these roles allows lower-level staff to perform tasks appropriate to their skill level, which frees up CATPs to perform higher-level skills. The Board of Counseling recently posted a guidance document that reflects this change, and DMAS seeks to match its requirements to the requirements of the Board of Counseling.

4. Providing additional clarity on substance use disorder counseling, psychotherapy, and counseling. Substance use disorder counseling can be provided by a CSAC as part of a CSAC's scope of practice as defined by the Board of Counseling, while psychotherapy and counseling may only be provided by licensed staff.

5. Providing additional clarity about medication assisted treatment (MAT). The Centers for Medicare and Medicaid Services (CMS) requires Medicaid agencies to assess members to determine if they need MAT, and requires MAT to be provided onsite or through referral in intensive outpatient, partial hospitalization, and residential levels of care. "States Shall Demonstrate Sufficient Provider Capacity at Critical Levels of Care including for Medication Assisted Treatment for OUD," a CMS guidance document explaining this requirement, can be accessed at https://www.medicaid.gov/federal-policy-guidance
/downloads/smd17003.pdf
.

6. Clarifying the telemedicine definition to include the requirements of a 2014 Medicaid memo to providers. The definition of "face-to-face" was broadened to include the use of telemedicine so that telemedicine can be used to provide ARTS services. The 2014 memo can be accessed at https://www.virginiamedicaid.dmas.virginia.gov/wps/portal/MedicaidMemostoProviders and searching for the memo dated May 13, 2014.

7. Removing the hard limits on intensive outpatient treatment in compliance with the Mental Health Parity and Addiction Equity Act (Public Law 110-343).

8. In response to a public comment received during the original implementation of the ARTS program, clarifying that drug screening may be conducted using urine or blood serums.

Issues: The primary advantage of these regulatory changes to the public and the agency is that they streamline and simplify existing requirements for ARTS services and provide additional clarity to ARTS providers. There are no disadvantages to the public, the agency, or the Commonwealth as a result of these changes.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Director of the Department of Medical Assistance Services (DMAS) proposes to update this regulation to reflect the changes that have already occurred in the provision of Addiction and Recovery Treatment Services (ARTS).

Background. The ARTS program provides a comprehensive continuum of addiction and recovery treatment services, including inpatient withdrawal management services, residential treatment services, partial hospitalization, intensive outpatient treatment, outpatient treatment, and peer recovery supports.

According to DMAS, in the last several years there have been changes in a number of laws, regulations, and guidance from other entities that have affected how the ARTS program operates. For example, the Board of Counseling and the Board of Medicine have amended the scope of practice for the professions they regulate who provide services to ARTS recipients. Similarly, the federal Centers for Medicare and Medicaid Services has issued a Parity Rule that affected the service limits in this program and guidance on certain terms used in this regulation.

Estimated Benefits and Costs. The proposed amendments update the regulation to reflect the changes that have occurred in this program due to external laws, regulations, and guidance.2 The proposed amendments also make clarifying changes to language that has prompted questions from providers of addiction and recovery treatment services.

Since the proposed amendments simply reflect the changes on how the ARTS program currently operates, no significant economic effect is expected other than improving the clarity of the rules this program currently operates under.

Businesses and Other Entities Affected. This regulation primarily applies to 3,465 ARTS providers and the Medicaid clients they serve.

Localities3 Affected.4 The proposed amendments should not affect any locality more than others. The proposed amendments do not appear to introduce costs for local governments.

Projected Impact on Employment. The proposed amendments would not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments would not affect the use and value of private property.

Adverse Effect on Small Businesses.5 The proposed amendments do not adversely affect small businesses.

______________________________

2The references to external laws, regulations, and guidance can be found at https://townhall.virginia.gov/L/GetFile.cfm?File=64\5229\8540\AgencyStatement_DMAS_8540_vA.pdf

3"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

4§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

5Pursuant 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."

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

The amendments clarify and update the requirements for providers of Addiction and Recovery Treatment Services (ARTS) Program services to Medicaid members, including (i) updating citations and terminology; (ii) clarifying roles for professionals who provide various addiction treatments; (iii) specifying that medical assisted treatment must be provided onsite or through referral in intensive outpatient, partial hospitalization, and residential levels of care pursuant to the Centers for Medicare and Medicaid Services requirements; (iv) including telemedicine in the definition of "face-to-face" for purposes of providing ARTS services; (v) removing hard limits on intensive outpatient treatment; and (vi) clarifying that drug screening can be done by testing urine or blood serums.

12VAC30-60-181. Utilization review of addiction, and recovery, and treatment services.

A. Providers shall be required to maintain documentation detailing all relevant information about the Medicaid individuals who are in the provider's care. Such documentation shall fully disclose the extent of services provided in order to support provider's claims for reimbursement for services rendered. This documentation shall be written and dated at the time the services are rendered. Claims that are not adequately supported by appropriate up-to-date documentation may be subject to recovery of expenditures.

B. Utilization reviews shall be conducted by the Department of Medical Assistance Services or its designated contractor.

C. Service authorizations shall be required for American Society of Addiction Medicine (ASAM) Levels 2.1, 2.5, 3.1, 3.3, 3.5, 3.7, and 4.0.

D. A multidimensional assessment by a credentialed addiction treatment professional (CATP), as defined in 12VAC30-130-5020, shall be required for ASAM Levels 1.0 through 4.0. Certified substance abuse counselors (CSACs) are able to complete a multidimensional assessment to make recommendations for an ASAM level of care, which shall be signed and dated by a CATP within one business day. The multidimensional assessment shall be maintained in the individual's record by the provider. Medical necessity for all ASAM levels of care shall be based on the outcome of the individual's multidimensional assessment.

E. Individual service plans (ISPs) and treatment plans shall be developed upon admission to medically managed intensive inpatient services (ASAM Level 4.0), substance use residential and inpatient services (ASAM Levels 3.1, 3.3, 3.5, and 3,7) 3.7), and substance use intensive outpatient and partial hospitalization programs (ASAM Levels 2.1 and 2.5). ISPs or treatment plans shall be developed upon initiation of opioid treatment services (OTP) and, office-based opioid treatment (OBOT);, and substance use outpatient services (ASAM Level 1.0).

1. The provider shall include the individual and the family or ca