REGULATIONS
TITLE 4. CONSERVATION
AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
REGISTRAR'S NOTICE:
The following regulations filed by the Marine Resources Commission are exempt
from the Administrative Process Act in accordance with § 2.2-4006 A 11 of
the Code of Virginia; however, the commission is required to publish the full
text of final regulations.
Final Regulation
Title of Regulation: 4VAC20-620. Pertaining to Summer
Flounder (amending 4VAC20-620-40).
Statutory Authority: § 28.2-201 of the Code of
Virginia.
Effective Date: April 30, 2011.
Agency Contact: Jane Warren, Agency Regulatory
Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor,
Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email
betty.warren@mrc.virginia.gov.
Summary:
The amendment changes the times that it is unlawful to
offload Summer Flounder for commercial purposes to 9 p.m. through
7 a.m.
4VAC20-620-40. Commercial vessel possession and landing
limitations.
A. It shall be unlawful for any person harvesting Summer
Flounder outside of Virginia's waters to do any of the following, except as
described in subsections B, C, and D of this section:
1. Possess aboard any vessel in Virginia waters any amount of
Summer Flounder in excess of 10% by weight of Atlantic croaker or the combined
landings, on board a vessel, of black sea bass, scup, squid, scallops and
Atlantic mackerel.
2. Possess aboard any vessel in Virginia waters any amount of
Summer Flounder in excess of 1,500 pounds landed in combination with Atlantic
croaker.
3. Fail to sell the vessel's entire harvest of all species at
the point of landing.
B. From the first Monday in March through the day preceding
the last Monday in November, or until it has been projected and announced that
85% of the allowable landings have been taken, it shall be unlawful for any
person harvesting Summer Flounder outside of Virginia waters to do any of the
following:
1. Possess aboard any vessel in Virginia waters any amount of
Summer Flounder in excess of 20,000 pounds.
2. Land Summer Flounder in Virginia for commercial purposes
more than twice during each consecutive 15-day period, with the first 15-day
period beginning on the first Monday in March.
3. Land in Virginia more than 10,000 pounds of Summer Flounder
during each consecutive 15-day period, with the first 15-day period beginning
on the first Monday in March.
4. Land in Virginia any amount of Summer Flounder more than
once in any consecutive five-day period.
C. From the last Monday in November through December 31
of each year, or until it has been projected and announced that 85% of the
allowable landings have been taken, it shall be unlawful for any person
harvesting Summer Flounder outside of Virginia waters to do any of the
following:
1. Possess aboard any vessel in Virginia waters any amount of
Summer Flounder in excess of 15,000 pounds.
2. Land Summer Flounder in Virginia for commercial purposes
more than twice during each consecutive 12-day period, with the first 12-day
period beginning on the last Monday in November.
3. Land in Virginia more than a total of 7,500 pounds of
Summer Flounder during each consecutive 12-day period, with the first 12-day
period beginning on the last Monday in November.
4. Land in Virginia any amount of Summer Flounder more than
once in any consecutive five-day period.
D. From January 1 through December 31 of each year, any boat
or vessel issued a valid federal Summer Flounder moratorium permit and owned
and operated by a legal Virginia Commercial Hook-and-Line Licensee that
possesses a Restricted Summer Flounder Endorsement shall be restricted to a
possession and landing limit of 200 pounds of Summer Flounder, except as
described in 4VAC20-620-30 F.
E. Upon request by a marine police officer, the seafood buyer
or processor shall offload and accurately determine the total weight of all
Summer Flounder aboard any vessel landing Summer Flounder in Virginia.
F. Any possession limit described in this section shall be
determined by the weight in pounds of Summer Flounder as customarily packed,
boxed and weighed by the seafood buyer or processor. The weight of any Summer
Flounder in pounds found in excess of any possession limit described in this
section shall be prima facie evidence of violation of this chapter. Persons in
possession of Summer Flounder aboard any vessel in excess of the possession
limit shall be in violation of this chapter unless that vessel has requested
and been granted safe harbor. Any buyer or processor offloading or accepting
any quantity of Summer Flounder from any vessel in excess of the possession
limit shall be in violation of this chapter, except as described by subsection
I of this section. A buyer or processor may accept or buy Summer Flounder from
a vessel that has secured safe harbor, provided that vessel has satisfied the
requirements described in subsection I of this section.
G. If a person violates the possession limits described in
this section, the entire amount of Summer Flounder in that person's possession
shall be confiscated. Any confiscated Summer Flounder shall be considered as a
removal from the appropriate commercial harvest or landings quota. Upon
confiscation, the marine police officer shall inventory the confiscated Summer
Flounder and, at a minimum, secure two bids for purchase of the confiscated
Summer Flounder from approved and licensed seafood buyers. The confiscated fish
will be sold to the highest bidder and all funds derived from such sale shall
be deposited for the Commonwealth pending court resolution of the charge of
violating the possession limits established by this chapter. All of the
collected funds will be returned to the accused upon a finding of innocence or
forfeited to the Commonwealth upon a finding of guilty.
H. It shall be unlawful for a licensed seafood buyer or federally
permitted seafood buyer to fail to contact the Marine Resources Commission
Operation Station prior to a vessel offloading Summer Flounder harvested
outside of Virginia. The buyer shall provide to the Marine Resources Commission
the name of the vessel, its captain, an estimate of the amount in pounds of
Summer Flounder on board that vessel, and the anticipated or approximate
offloading time. Once offloading of any vessel is complete and the weight of
the landed Summer Flounder has been determined, the buyer shall contact the
Marine Resources Commission Operations Station and report the vessel name and
corresponding weight of Summer Flounder landed. It shall be unlawful for any
person to offload from a boat or vessel for commercial purposes any Summer Flounder
during the period of 6 p.m. 9 p.m. to 7 a.m.
I. Any boat or vessel that has entered Virginia waters for
safe harbor shall only offload Summer Flounder when the state that licenses
that vessel requests to transfer quota to Virginia, in the amount that
corresponds to that vessel's possession limit, and the commissioner agrees to
accept that transfer of quota.
J. After any commercial harvest or landing quota as described
in 4VAC20-620-30 has been attained and announced as such, any boat or vessel
possessing Summer Flounder on board may enter Virginia waters for safe harbor
but shall contact the Marine Resources Commission Operation Center in advance
of such entry into Virginia waters.
K. It shall be unlawful for any person harvesting Summer
Flounder outside of Virginia waters to possess aboard any vessel, in Virginia,
any amount of Summer Flounder, once it has been projected and announced that
100% of the quota described in 4VAC20-620-30 A has been taken.
VA.R. Doc. No. R11-2831; Filed April 29, 2011, 8:39 a.m.
Final Regulation
Title of Regulation: 4VAC20-752. Pertaining to Blue
Crab Sanctuaries (amending 4VAC20-752-20, 4VAC20-752-30).
Statutory Authority: § 28.2-201 of the Code of
Virginia.
Effective Date: April 30, 2011.
Agency Contact: Jane Warren, Agency Regulatory
Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor,
Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email
betty.warren@mrc.virginia.gov.
Summary:
The amendments (i) modify the boundary line of area 1 of
the Virginia Blue Crab Sanctuary that extends offshore from Smith Point to the
Great Wicomico River and (ii) change the start date of the sanctuary closure
from May 1 to May 16.
4VAC20-752-20. Definitions.
"COLREGS Line" means the COLREGS Demarcation lines,
as specified in Coastal Pilot, 35th and 36th editions by Lighthouse Press.
"Three Nautical Mile Limit Line" means the outer
limit of the area extending three miles out to sea from the coast as depicted
on NOAA nautical charts.
"Virginia Blue Crab Sanctuary" means two distinct
sanctuary areas, Area 1 and Area 2, with Area 1 consisting of all tidal waters
that are bounded by a line beginning at a point, near the western shore of
Fisherman's Island, being on a line from the Cape Charles Lighthouse to the
Thimble Shoal Light; thence southwesterly to Thimble Shoal Light; thence
southwesterly to the offshore end of Ocean View Fishing Pier (formerly
Harrison's Fishing Pier); thence north to Flashing Green Buoy "9" on
the York River Entrance Channel; thence northeasterly to Wolf Trap Light;
thence northwesterly to a point, northeast of Windmill Point, 37° 38' 23.13"
N, 76° 15' 59.54" W; thence northerly to a point, due east
of Great Wicomico Light at 37° 48' 15.72" N, 76° 14' 33.15" W; thence
northeasterly to a point, 37° 49' 18.10" N, 76° 13' 06.00" W; thence northerly
northeasterly to Smith Point Lighthouse, 37° 52' 47.55" N, 76° 11'
01.50" W; thence northwesterly to a point on the Virginia-Maryland
state line, 37° 54' 04.00 04.99" N, 76° 11' 49.15 44.96"
W; thence northeasterly following the Virginia-Maryland state line to a
point on the Virginia-Maryland state line on that line, 37° 55' 44.82
43.79" N, 76° 07' 13.41 12.87" W; thence
southeasterly to a point, southwest of Tangier Island, 37° 44' 59.85" N,
76° 01' 34.31" W; thence southeasterly to a point, southeast of Tangier
Island, 37° 43' 41.05" N, 75° 57' 51.84" W; thence northeasterly to a
point, south of Watts Island, 37° 45' 36.95" N, 75° 52' 53.87" W;
thence southeasterly to a point, 37° 44' 56.15" N, 75° 51' 33.18" W;
thence southwesterly to a point, west of Parkers Marsh, 37° 42' 41.49" N,
75° 55' 06.31" W; thence southwesterly to a point, west of Cape Charles
Harbor, 37° 15' 37.23" N, 76° 04' 13.79" W; thence southeasterly to a
point near the western shore of Fisherman's Island, on the line from Cape
Charles Lighthouse to Thimble Shoal Light, said point being the point of
beginning, and a continuation of Area 1, consisting of all tidal waters that
are bounded by a line beginning at Cape Charles Lighthouse; thence
southwesterly to Cape Henry Lighthouse; thence southeasterly to a point, 36°
54' 42.39" N, 75° 56' 44.23" W; thence northeasterly to a point, east
of Cape Charles Lighthouse 37° 06' 45" N, 75° 52' 05" W; thence
westerly to the Cape Charles Lighthouse, said point being the point of
beginning and a second area, Area 2, beginning at a point, 37° 06' 45.00"
N, 75° 52' 05.00" W; thence southwesterly to a point, 37° 03' 11.49"
N, 75° 53' 27.02" W, said point being a point on the Three Nautical Mile
Limit Line; thence southerly following the Three Nautical Mile Limit Line to a
point on the Virginia – North Carolina state boundary, 36° 33' 02.59" N,
75° 48' 16.21" W; thence westerly to a point, along the Virginia – North
Carolina state boundary to its intersection with the mean low water line, 36°
33' 01.34" N, 75° 52' 03.06" W; thence northerly, following the mean
low water line to the Rudee Inlet weir; thence easterly along the weir to the
stone breakwater; thence following the stone breakwater to its northernmost
point; thence northerly to the mean low water line at the easternmost point of
the stone jetty; thence northerly following the mean low water line to its
intersection with the COLREG Line, 36° 55' 38.50" N, 76° 00' 20.32"
W; thence southeasterly to a point, 36° 54' 42.39" N, 75° 56' 44.23"
W, thence northeasterly to a point, 37° 06' 45.00" N, 75° 52' 05.00"
W, said point being the point of beginning of this second area.
4VAC20-752-30. Harvest restrictions.
A. It shall be unlawful for any person to conduct commercial
or recreational crabbing within Area 1 of the Virginia Blue Crab Sanctuary from
May 1 16 through September 15.
B. It shall be unlawful for any person to take, harvest or
possess crabs for commercial purposes from Area 2 from May 1 16
through September 15.
VA.R. Doc. No. R11-2832; Filed April 29, 2011, 9:22 a.m.
Final Regulation
Title of Regulation: 4VAC20-900. Pertaining to
Horseshoe Crab (amending 4VAC20-900-25, 4VAC20-900-30,
4VAC20-900-35, 4VAC20-900-40; adding 4VAC20-900-36, 4VAC20-900-37,
4VAC20-900-38).
Statutory Authority: § 28.2-201 of the Code of
Virginia.
Effective Date: May 1, 2011.
Agency Contact: Jane Warren, Agency Regulatory
Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor,
Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email
betty.warren@mrc.virginia.gov.
Summary:
The amendments reduce the 2011 harvest quota to 130,933
horseshoe crabs and enhance harvest control measures and quota allocations by
(i) requiring that all horseshoe crab harvesters call in daily harvest amounts;
(ii) reducing initial landing limits for both the restricted and unrestricted
horseshoe crab endorsement licenses by 50%; (iii) adjusting the landing limit
triggers from 50% to 80%; (iv) initiating a license and permit moratorium for
new entrants; (v) establishing a control date of December 31, 2010, to serve as
a basis for the future development of horseshoe crab regulations; and (vi)
suballocating the annual quota by gear types.
4VAC20-900-25. Commercial fisheries management measures.
A. It shall be unlawful for any person to harvest horseshoe
crabs from any shore or tidal waters of Virginia within 1,000 feet in any
direction of the mean low water line from May 1 through June 7. The harvests of
horseshoe crabs for biomedical use shall not be subject to this limitation.
B. From January 1 through June 7 of each year, it shall be
unlawful for any person to land, in Virginia, any horseshoe crab harvested from
federal waters.
C. Harvests for biomedical purposes shall require a special
permit issued by the Commissioner of Marine Resources, and all crabs taken
pursuant to such permit shall be returned to the same waters from which they
were collected.
D. The commercial quota of horseshoe crab for 2010 2011
shall be 137,168 130,933 horseshoe crabs. Additional quantities
of horseshoe crab may be transferred to Virginia by other jurisdictions in
accordance with the provisions of Addendum I to the Atlantic States Marine
Fisheries Commission Fishery Management Plan for Horseshoe Crab, April 2000,
provided that the combined total of the commercial quota and transfer from
other jurisdictions shall not exceed 355,000 horseshoe crabs. It shall be
unlawful for any person to harvest from Virginia waters, or to land in
Virginia, any horseshoe crab for commercial purposes after any calendar-year
commercial quota of horseshoe crab has been attained and announced as such.
E. During each calendar year no more than 40% of the commercial
horseshoe crab quota and any and all transfers of quota from other
jurisdictions shall be harvested from waters east of the COLREGS Line. It shall
be unlawful for any person to harvest horseshoe crabs from waters east of the
COLREGS Line, or to land horseshoe crabs, in Virginia, that are harvested east
of the COLREGS Line, after 40% of Virginia's horseshoe crab quota and any and
all transfers of quota have been attained for this designated area and
announced as such.
F. It shall be unlawful for any person whose harvest of
horseshoe crabs is from waters east of the COLREGS Line to possess aboard a
vessel or to land in Virginia any quantity of horseshoe crabs that, in
aggregate, is not comprised of at least a minimum ratio of two male horseshoe
crabs to one female horseshoe crab. For the purposes of this regulation, no
horseshoe crab shall be considered a male horseshoe crab unless it possesses at
least one modified, hook-like appendage as its first pair of walking legs.
G. Limitations on the daily harvest and possession of
horseshoe crabs for any vessel described below are as follows:
1. It shall be unlawful for any person who meets the
requirements of 4VAC20-900-30 D and holds a valid unrestricted
horseshoe crab endorsement license, as described in 4VAC20-900-30 D, to
possess aboard any vessel or to land any number of horseshoe crabs in excess of
5,000 2,500, except that when it is projected and announced that 50%
80% of the commercial quota is taken, it shall be unlawful for any
person who meets the requirements of 4VAC20-900-30 D and holds a valid
horseshoe crab endorsement license to possess aboard any vessel in Virginia any
number of horseshoe crabs in excess of 2,500 1,250.
2. It shall be unlawful for any person who meets the
requirements of 4VAC20-900-30 E and holds a valid restricted
horseshoe crab endorsement license, as described in 4VAC20-900-30 E, to
possess aboard any vessel or to land any number of horseshoe crabs in excess of
2,000 1,000, except that when it is projected and announced that 50%
80% of the commercial quota is taken, it shall be unlawful for any
person who meets the requirements of 4VAC20-900-30 E and holds a valid
horseshoe crab endorsement license to possess aboard any vessel in Virginia any
number of horseshoe crabs in excess of 1,000 500. The harvest of
horseshoe crabs, described in this subdivision, shall be restricted to using
only crab dredge.
3. It shall be unlawful for any registered commercial
fisherman or seafood landing licensee who does not possess a valid
horseshoe crab endorsement license to possess horseshoe crabs, without first
obtaining a valid horseshoe crab bycatch permit from the Marine
Resources Commission. It shall be unlawful for a horseshoe crab bycatch
permittee to possess aboard any vessel more than 500 horseshoe crabs or for any
vessel to land any number of horseshoe crabs in excess of 500, per day except
as described in subdivision 4 of this subsection. When it is projected and
announced that 50% 80% of the commercial quota is taken, it shall
be unlawful for any person with a horseshoe crab bycatch permit to possess
aboard any vessel more than 250 horseshoe crabs or for any vessel to land any
number of horseshoe crabs in excess of 250 per day except as described in
subdivision 4 of this subsection.
4. It shall be unlawful for any two horseshoe crab bycatch
permittees fishing from the same boat or vessel to possess or land more than
1,000 horseshoe crabs per day. When it is projected and announced that 80% of
the commercial quota is taken, it shall be unlawful for any two horseshoe crab
bycatch permittees fishing from the same boat or vessel to possess or land more
than 500 horseshoe crabs per day.
5. It shall be unlawful for any registered commercial
fisherman or seafood landing licensee who does not possess a horseshoe crab
endorsement license or a horseshoe crab bycatch permit to possess any horseshoe
crabs.
H. It shall be unlawful for any fisherman issued a horseshoe
crab endorsement license to offload any horseshoe crabs between the hours of 10
p.m. and 7 a.m.
I. When it is projected and announced that 20% 32%
of the commercial quota, as described in 4 VAC20-900-25D subsection D
of this section, has been taken from waters east of the COLREGS line, the
limitations on the possession and landing of horseshoe crabs are as follows:
1. It shall be unlawful for any person who possesses a valid unrestricted
horseshoe crab endorsement license to possess aboard any vessel in waters east
of the COLREGS Line or to land more than 2,500 1,250 horseshoe
crabs per day.
2. It shall be unlawful for any person who possesses a valid
restricted horseshoe crab endorsement license to possess aboard any vessel in
waters east of the COLREGS Line or to land more than 1,000 500
horseshoe crabs per day.
3. It shall be unlawful for any person who possesses a valid
horseshoe crab bycatch permit to possess aboard any vessel east of the COLREGS
Line or to land more than 250 horseshoe crabs per day.
4. It shall be unlawful for any two horseshoe crab bycatch
permittees fishing from the same boat or vessel, east of the COLREGS Line, to
possess or land more than 500 horseshoe crabs per day.
4VAC20-900-30. License requirements and exemption.
A. It shall be unlawful for any person to harvest horseshoe crabs
by hand for commercial purposes without first obtaining a commercial fisherman
registration license and a horseshoe crab hand harvester license.
B. The taking by hand of as many as five horseshoe crabs in
any one day for personal use only shall be exempt from the above licensing
requirement.
C. Except as provided for in 4VAC20-900-25 G 3, it shall be
unlawful for any boat or vessel to land horseshoe crabs in Virginia for
commercial purposes without first obtaining a horseshoe crab endorsement license
as described in this section. The horseshoe crab endorsement license shall be
required of each boat or vessel used to land horseshoe crabs for commercial
purposes. Possession of any quantity of horseshoe crabs that exceeds the limit
described in subsection B of this section shall be presumed for commercial
purposes. There shall be no fee for the license.
D. To be eligible for an unrestricted horseshoe crab
endorsement license, the boat or vessel shall have landed and sold at least 500
horseshoe crabs in Virginia in at least one year during the period 1998-2000,
except as described in subsection E of this section.
1. The owner shall complete an application for each boat or
vessel by providing to the Marine Resources Commission a notarized and signed
statement of applicant's name, address, telephone number, boat or vessel name
and its registration or documentation number.
2. The owner shall complete a notarized authorization to allow
the Marine Resources Commission to obtain copies of landings data from the
National Marine Fisheries Service.
E. Any Virginia registered commercial fisherman is
eligible for a horseshoe crab endorsement license that is restricted to using a
crab dredge to harvest horseshoe crabs provided his To be eligible for a
restricted horseshoe crab endorsement license that is limited to using a crab
dredge to harvest horseshoe crabs, a Virginia registered commercial fisherman's
boat or vessel shall have landed at least 10,000 pounds of whelk in any one
year from 2002 through 2005.
1. The Virginia registered commercial fisherman shall complete
an application for each boat or vessel by providing to the Marine Resources
Commission a notarized and signed statement of the applicant's name, address,
telephone number, boat or vessel name and its registration or documentation
number.
2. The Virginia registered commercial fisherman shall complete
a notarized authorization to allow the Marine Resources Commission to obtain
copies of whelk landings data from the National Marine Fisheries Service.
4VAC20-900-35. Monitoring requirements.
A. Any person harvesting or landing horseshoe crabs in
Virginia shall report monthly on forms provided by the Marine Resources
Commission all harvests of horseshoe crabs including, but not limited to, bait
fisheries, bycatch, biomedical industry, and scientific and educational
research harvests. Reporting requirements shall consist of numbers and pounds
landed by sex, harvest method and harvest location.
B. It shall be unlawful for a restricted or unrestricted
horseshoe crab endorsement license holder to fail to contact the Marine
Resources Operations Station prior to the vessel issued a horseshoe crab
endorsement license offloading horseshoe crabs. The horseshoe crab endorsement
license holder shall provide the Marine Resources Commission the name of the
vessel and its captain and the anticipated or approximate offloading time and
site. Following offloading, the horseshoe crab endorsement license holder shall
contact the Virginia Marine Resources Commission Interactive-Voice-Response
(IVR) System within 24 hours of landing and provide his horseshoe crab
endorsement license number; the time, date and location of offloading; and the
number of horseshoe crabs landed Marine Resources Operation Station and
provide the total number of horseshoe crabs landed, gear type, and location of
harvest.
C. It shall be unlawful for any horseshoe crab bycatch
permittee to fail to contact the Virginia Marine Resources Commission
Interactive-Voice-Response (IVR) System within 24 hours of landing and provide
his Commercial Fisherman Registration License number, and the time, date,
number of horseshoe crabs landed, gear type, and location of harvest.
D. It shall be unlawful for any person, firm or
corporation to buy any horseshoe crabs from any lawful harvester on or after
July 1, 2007, without first having obtained a Horseshoe Crab Buying Permit from
the Marine Resources Commission. The permit application shall be completed in
full by the licensed seafood buyer, and a copy of the permit shall be kept in
possession of the licensed buyer while buying or possessing horseshoe crabs.
D. E. Any licensed seafood buyer permitted to
purchase horseshoe crabs shall provide written reports to the commission
Marine Resources Commission of daily purchases and harvest information
on forms provided by the commission Marine Resources Commission.
Such information shall include the date of the purchase, the buyer's horseshoe
crab permit number and harvester's Commercial Fisherman Registration License
number, gear type used, water area fished, city or county of landing, and
number of female horseshoe crabs and male horseshoe crabs purchased. These
reports of any current weekly purchases shall be completed in full and
submitted to the commission Marine Resources Commission no later
than Thursday of the following week. In addition, once it has been projected
and announced that 85% of the commercial quota of horseshoe crab has been
landed or 34% of the commercial quota of horseshoe crab established for the
horseshoe crab harvest east of the COLREGS Line has been landed each permitted
buyer shall call the commission's interactive voice recording system Marine
Resources Commission's IVR on a daily basis to report his name and permit
number, date, number of female horseshoe crabs and number of male horseshoe
crabs purchased, gear used and water area fished by the harvester.
E. F. Persons harvesting horseshoe crabs for
biomedical use and owners of facilities using horseshoe crabs for biomedical
purposes shall monitor and report monthly to the commission Marine
Resources Commission all harvests or purchases of horseshoe crabs and the
percentage of mortality up to the point of release including that mortality
which occurs during harvest, shipping, handling, and bleeding.
F. G. Owners of biomedical facilities using
horseshoe crabs shall participate in the tagging program of the commission
Marine Resources Commission to evaluate the post-release mortality of
horseshoe crabs.
G. H. Monthly reports shall be due to the commission
Marine Resources Commission no later than the fifth day of the following
month.
4VAC20-900-36. Quota allocation.
A. When it has been projected and announced that 42% of
the commercial quota, as described in 4VAC20-900-25 D, has been landed by
dredge gears, it shall be unlawful for any person to harvest or land horseshoe
crabs by dredge gears.
B. When it has been projected and announced that 13% of
the commercial quota, as described in 4VAC20-900-25 D, has been landed by trawl
gears, it shall be unlawful for any person to harvest or land horseshoe crabs
by trawl gears.
C. When it has been projected and announced that 23% of
the commercial quota, as described in 4VAC20-900-25 D, has been landed by hand
harvesting, it shall be unlawful for any person to harvest or land horseshoe
crabs by hand harvesting.
D. When it has been projected and announced that 22% of
the commercial quota, as described in 4VAC20-900-25 D, has been landed by gears
not described in subsections A through C of this section, it shall be unlawful
for any person to harvest or land horseshoe crabs by gears not described in
subsections A through C of this section.
4VAC20-900-37. License moratorium.
As of May 1, 2011, the issuance of commercial licenses or
permits for horseshoe crab hand harvest, horseshoe crab bycatch, unrestricted
horseshoe crab endorsement, and restricted horseshoe crab endorsement shall be
prohibited except as described in this section. Only those registered
commercial fisherman who have been determined by the Marine Resources
Commission to have been issued a license or permit prior to May 1, 2011, for
horseshoe crab hand harvest, horseshoe crab bycatch, unrestricted horseshoe
crab endorsement, or restricted horseshoe crab endorsement shall be eligible to
purchase that license or permit after May 1, 2011.
4VAC20-900-38. Control date.
The Marine Resources Commission hereby establishes
December 31, 2010, as the control date for management of all horseshoe crab
licenses and fisheries in Virginia. Participation by any individual in a
horseshoe crab fishery after the control date will not be considered in the
calculation of horseshoe crabbing rights should further entry limitations be
established. Any individual entering the horseshoe crab fishery after the
control date will forfeit any right to future participation in the horseshoe
crab fishery should further entry limitation be established.
4VAC20-900-40. Penalty.
As set forth in § 28.2-903 of the Code of Virginia, any
person violating any provision of this regulation chapter shall
be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any
provision of this regulation chapter committed by the same person
within 12 months of a prior violation is a Class I 1 misdemeanor.
VA.R. Doc. No. R11-2830; Filed April 29, 2011, 11:11 a.m.
Final Regulation
Title of Regulation:
4VAC20-1230. Pertaining to Restrictions on Shellfish (amending 4VAC20-1230-10, 4VAC20-1230-20, 4VAC20-1230-30;
repealing 4VAC20-1230-35).
Statutory Authority: § 28.2-201 of the Code of
Virginia.
Effective Date: May 1, 2011.
Agency Contact: Jane Warren, Agency Regulatory
Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport
News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email
betty.warren@mrc.virginia.gov.
Summary:
The amendments (i) require shellfish to be completely
covered with a layer of ice; (ii) define a "layer" as a single
thickness or coating spread out and covering a surface; and (iii) delete
provisions regarding the identification of shellfish as those provisions have
been adopted as 4VAC20-1250, Pertaining to the Tagging of Shellfish.
4VAC20-1230-10. Purpose.
The purpose of this chapter is to establish a method of
identifying the original Virginia harvest area of any shellfish at any time of
the year. In addition, harvest times and handling procedures for shellfish
harvested during the months of May through September, in order to
protect the health of the public are described herein.
4VAC20-1230-20. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Container" means any bag, sack, tote, or conveyance,
such as a boat or truck, or other receptacle that contains shellfish to be held
or transported.
"Harvest" means the act of removing any shellfish
from a designated harvest area and placing that shellfish on or in a man-made
conveyance or other means of transport.
"Layer" means a single thickness or coating
spread out and covering a surface.
"Mechanical refrigeration" means storage in a
container that is approved by the Virginia Department of Health Division of
Shellfish Sanitation and capable of cooling to and maintaining an ambient
temperature of 45°F or less.
"Oysters" mean means those oysters greater
than 2-1/2 inches or greater in shell length.
"Seed clams" means those clams less than 30 mm
in shell length and more than six months from harvest for human consumption.
"Seed oysters" mean those oysters less than
2-1/2 inches in shell length and more than six months from harvest for human
consumption.
"Shading" means to shelter by intercepting the
direct rays of the sun to protect the shellfish from heat using a tarp or
cover.
"Shellfish" means all species of bivalve molluscan
shellfish.
"Temperature control" means management of the
environmental temperature, by means of ice or mechanical refrigeration, which
is capable of lowering the temperature of the shellstock and maintaining it at
50°F (10°C) or less, as approved by the Virginia Department of Health (VDH),
Division of Shellfish Sanitation.
4VAC20-1230-30. Public health and warm water harvest
restrictions.
A. No provisions in this chapter shall apply to seed clams
or seed oysters.
B. It shall be unlawful for any person to have any
cat, dog, or other animal on board a vessel during the harvest of shellfish.
B. C. From May 1 through September 30, any
vessel used for the harvest of shellfish, from either public or private
grounds, shall provide adequate air flow through and shading over the
area that serves as storage for the shellfish when the shellfish are on
board that vessel. All shellfish in the vessel shall be offloaded every
day. Shading shall not be required for vessels transporting clam seed or
seed oysters for replanting.
D. From May 1 through September 30, all shellfish shall be
shaded during land-based deliveries.
C. E. From May 1 through September 30, all
land-based deliveries of shellfish requiring more than 30 60
minutes from landing that shellfish after offloading is complete
shall be made aboard trucks or conveyances equipped with mechanical
refrigeration having an ambient temperature of capable of maintaining
45°F or less before loading begins, except that shellfish may be thoroughly
iced completely covered by a layer of ice, according to procedures
approved by the Virginia Department of Health (VDH) VDH Division
of Shellfish Sanitation. Mechanically refrigerated containers of shellfish
shall be in operation from the time of loading to the time of offloading
during transport. Any operator of a truck that is delivering shellfish
using a truck not owned by a certified shellfish dealer shall possess a truck
refrigeration certificate issued by the VDH Division of Shellfish Sanitation.
Upon receipt of any shellfish at the shore-based plant, certified shellfish
dealers must immediately place any shellfish received from the harvester under mechanical
refrigeration temperature control.
D. F. From June 15 through August 31, it shall
be unlawful for any person or person aboard a vessel to leave the dock
or shore, prior to one hour before sunrise, to harvest or attempt
to harvest oysters from private grounds.
E. G. From May 1 through June 14, it shall be
unlawful for any person or person aboard a vessel to harvest oysters
from public or private grounds after 11 a.m., and oysters harvested before 11
a.m. shall be offloaded and placed in VDH Division of Shellfish Sanitation-approved
mechanical refrigeration or storage containers with ice and
completely covered by a layer of ice by 11 a.m. that same day.
F. H. From June 15 through August 31, it shall
be unlawful for any person or person aboard a vessel to harvest oysters
from public or private grounds after 10 a.m., and oysters harvested before 10
a.m. shall be offloaded and placed in VDH Division of Shellfish
Sanitation-approved mechanical refrigeration or storage containers with ice
and completely covered by a layer of ice by 10 a.m. that same day.
G. I. From September 1 through September 30, it
shall be unlawful for any person or person aboard a vessel to harvest
oysters from public or private grounds after noon, and oysters harvested before
noon shall be offloaded and placed in VDH Division of Shellfish
Sanitation-approved mechanical refrigeration or storage containers with ice
and completely covered by a layer of ice by noon that same day.
H. J. Except as described in subsections K
L and L M of this section, oysters may be harvested after
the designated harvesting time described in subsections E, F, and
G, H, and I of this section, provided (i) the total time, from the time
the vessel or harvester leaves the dock or shore until the oysters are offloaded
from the vessel and placed in VDH Division of Shellfish Sanitation-approved
mechanical refrigeration or storage containers with ice completely
covered by a layer of ice in a storage container, shall not exceed five
hours; (ii) there is a Virginia Marine Resources Commission-approved Global
Positioning System tracking device on board the harvest vessel or with the
harvester that is in continuous operation, from the time that vessel
or harvester leaves the dock or shore until the vessel or harvester
returns to the dock or shore and the oysters are offloaded from that
vessel or onto the shore; and (iii) the harvester has applied for and
been granted a permit by the Virginia Marine Resources Commission to harvest
oysters after these designated harvesting times, and the that harvester
has designated a single landing site for that permit.
I. K. From May 1 through September 30, a Bulk
Seed Permit shall be obtained from the Virginia Marine Resources Commission for
the harvest of any natural (wild) seed oysters that are include
oysters greater than 2-1/2 inches. Any person who harvests any natural
(wild) seed oysters that include oysters greater than 2-1/2 inches
and is not in possession of a Bulk Seed Permit issued by the Virginia Marine
Resources Commission shall be in violation of this chapter.
J. L. Any person may handle oysters as part of
a cage aquaculture operation for husbandry purposes after the designated
harvesting times described in subsections E, F, and G, H, and I of
this section, provided that person possesses a valid Cage Aquaculture Husbandry
Permit from the Virginia Marine Resources Commission. Any person who handles
oysters in cage oyster aquaculture operations after the designated harvesting
times described in subsections E, F, and G, H, and I of this
section and does not possess a Cage Oyster Aquaculture Husbandry Permit issued
by the Virginia Marine Resources Commission shall be in violation of this
chapter.
K. M. Oysters may be harvested in open areas of
the James River and its adjacent tributaries, upstream from the Monitor
Merrimac Memorial Bridge Tunnel, in addition to the designated harvesting times
in subsections E, F, and G, H, and I of this section, provided
(i) there is a VDH Division of Shellfish Sanitation-approved mechanical
refrigeration unit or ice storage area container on board
the harvesting vessel; (ii) the harvester has applied for and been issued a VDH
Division of Shellfish Sanitation Vessel approval certificate that is required
to be on board the vessel at all times during the harvest of oysters and has
designated a single landing site for that permit; and (iii) the oysters
are placed in an operating refrigeration unit or the VDH Division of
Shellfish Sanitation-approved mechanical refrigeration in operation or an ice
storage container with a layer of ice is applied to that
completely covers the oysters from the start of harvest and throughout the
harvest period until the oysters are offloaded.
4VAC20-1230-35. Shellfish identification. (Repealed.)
A. Any person harvesting shellfish for commercial purposes
shall affix a tag to each container of shellfish before the shellfish are
removed from that harvester's boat. The shellfish tag shall remain in place
while the shellfish are transported to a certified dealer and shall remain
affixed to each container of shellfish until the container is emptied or
shipped and retagged by a dealer. For any quantities of harvested shellfish
sold in bulk that are loose and not containerized aboard a boat, the harvester
shall prepare a single tag for that quantity of shellfish that shall accompany
that quantity of shellfish during transport, from the landing site to the
dealer facilities.
B. The shellfish tag shall be durable, waterproof, and
approved by the Marine Resources Commission, prior to use, and shall be at
least 13.8 square inches in size.
C. The shellfish tag shall contain all of the following
indelible and legible information, in the following order:
1. The harvester's VMRC identification number (last four
digits) or VMRC oyster aquaculture harvester permit number or clam aquaculture
harvester permit number;
2. The date of harvest;
3. The most accurate identification of the harvest location
or aquaculture site, including the abbreviated name of the state of harvest and
the commission's designation of the growing area by indexing, administrative,
or geographic designation;
4. The type and quantity of harvested shellfish; and
5. The following statement, in bold capitalized letters:
"THIS TAG IS REQUIRED TO BE ATTACHED UNTIL THE CONTAINER IS EMPTY OR IS
RETAGGED AND THEREAFTER KEPT ON FILE FOR 90 DAYS."
D. When multiple containers of shellfish are harvested
from a single harvest area in any one day and placed in a bulk container, the
lot may be tagged with a single bulk tag that shall accompany the shellfish
during transport from the landing site to the dealer facility. In addition to
the information required in subsection C of this section, the bulk tag shall
also include:
1. The following statement in bold capitalized letters:
"ALL SHELLFISH CONTAINERS IN THIS LOT HAVE THE SAME HARVEST DATE AND AREA
OF HARVEST" and
2. The number of individual containers in the lot.
VA.R. Doc. No. R11-2828; Filed April 29, 2011, 10:36 a.m.
Final Regulation
Title of Regulation: 4VAC20-1250. Pertaining to the
Tagging of Shellfish (adding 4VAC20-1250-10 through
4VAC20-1250-40).
Statutory Authority: §§ 28.2-201 and 28.2-801 of
the Code of Virginia.
Effective Date: May 1, 2011.
Agency Contact: Jane Warren, Agency Regulatory
Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor,
Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email
betty.warren@mrc.virginia.gov.
Summary:
The amendments establish the use and assorted requirements
for identification tags for tracking shellfish from point of origin to the
final destination.
CHAPTER 1250
PERTAINING TO THE TAGGING OF SHELLFISH
4VAC20-1250-10. Purpose.
The purpose of this chapter is to establish a method of
identifying harvested shellfish according to its original Virginia harvest area
at any time of the year.
4VAC20-1250-20. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Container" means any bag, sack, tote, or
conveyance, such as a boat or truck, or other receptacle that contains
shellfish to be held or transported.
"Harvest" means the act of removing any
shellfish from a designated harvest area and placing that shellfish on or in a
man-made conveyance or other means of transport.
"Oysters" means those oysters 2-1/2 inches or greater
in shell length.
"Shellfish" means all species of bivalve
molluscan shellfish.
4VAC20-1250-30. Shellfish identification.
A. Any person harvesting shellfish for commercial purposes
shall affix a tag to each container of shellfish as soon as possible after
leaving any harvest area but before harvesting shellfish from another harvest
area or offloading the shellfish. The shellfish tag shall remain in place while
the shellfish are transported to a certified dealer and shall remain affixed to
each container of shellfish until the container is emptied or shipped and
re-tagged by a dealer. For any quantities of harvested shellfish sold in bulk
that are loose and not containerized aboard a boat, the harvester shall prepare
a single tag, for that quantity of shellfish, which shall accompany that
quantity of shellfish during transport from the landing site to the dealer
facilities.
B. The shellfish tag shall be durable, waterproof, and
approved by the Marine Resources Commission (VMRC) or the Virginia Department
of Health (VDH) prior to use, and shall be at least 13.8 square inches in size.
C. The shellfish tag shall contain all of the following
indelible and legible information, in the following order:
1. The harvester's VMRC identification number (last four digits)
or VMRC oyster aquaculture harvester permit number or clam aquaculture
harvester permit number or VDH Certificate of Inspection number;
2. The date of harvest;
3. The most accurate identification of the harvest location
or aquaculture site, including the abbreviated name of the state of harvest and
the commission's designation of the growing area by indexing, administrative,
or geographic designation;
4. The type and quantity of harvested shellfish; and
5. The following statement, in bold capitalized letters:
"THIS TAG IS REQUIRED TO BE ATTACHED, UNTIL THE CONTAINER IS EMPTY OR IS
RE-TAGGED, AND THEREAFTER KEPT ON FILE FOR 90 DAYS."
D. When multiple containers of shellfish are harvested
from a single harvest area, in any one day, and placed in a bulk container, the
lot may be tagged with a single bulk tag that shall accompany the shellfish
during transport from the landing site to the dealer facility. In addition to
the information required in subsection C of this section, the bulk tag shall
also include:
1. The following statement in bold capitalized letters:
"ALL SHELLFISH CONTAINERS IN THIS LOT HAVE THE SAME HARVEST DATE AND AREA
OF HARVEST"; and
2. The number of individual containers in the lot.
E. Whenever any shellfish are harvested, whether loose, in
bulk, or in containers, and are not tagged as required by subsection C of this
section, this shall constitute a violation of this chapter, and the entire
quantity of untagged shellfish shall be subject to seizure and disposed of in
accordance with 4VAC20-1250-40.
4VAC20-1250-40. Penalty.
A. In addition to the penalty prescribed by law, any
person violating any provision of this chapter shall destroy, in the presence
of a marine police officer, all shellfish in his possession, or, at the
direction of the marine police officer, shall place the shellfish overboard on
the nearest oyster sanctuary or closed shellfish area and shall cease
harvesting on that day. All harvesting apparatus may be subject to seizure,
and, pursuant to § 28.2-232 of the Code of Virginia, all licenses and permits
may be subject to revocation, following a hearing before the Virginia Marine
Resources Commission.
B. As set forth in § 28.2-903 of the Code of Virginia, any
person violating any provision of this chapter shall be guilty of a Class 3
misdemeanor, and a second or subsequent violation of any provision of this
chapter committed by the same person, within 12 months of a prior violation, is
a Class 1 misdemeanor.
VA.R. Doc. No. R11-2726; Filed April 29, 2011, 10:22 a.m.
w –––––––––––––––––– w
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Proposed Regulation
REGISTRAR'S NOTICE:
The following regulation filed by the State Water Control Board is exempt from
the Administrative Process Act in accordance with § 2.2-4006 A 8 of the Code
of Virginia, which exempts general permits issued by the State Water Control
Board pursuant to the State Water Control Law (§ 62.1-44.2 et seq.), Chapter 24
(§ 62.1-242 et seq.) of Title 62.1, and Chapter 25 (§ 62.1-254 et seq.) of
Title 62.1 if the board (i) provides a Notice of Intended Regulatory Action in
conformance with the provisions of § 2.2-4007.01; (ii) following the
passage of 30 days from the publication of the Notice of Intended Regulatory
Action forms a technical advisory committee composed of relevant stakeholders,
including potentially affected citizens groups, to assist in the development of
the general permit; (iii) provides notice and receives oral and written comment
as provided in § 2.2-4007.03; and (iv) conducts at least one public hearing
on the proposed general permit.
Title of Regulation: 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 (amending 9VAC25-820-10, 9VAC25-820-40,
9VAC25-820-70; adding 9VAC25-820-80).
Statutory Authority: § 62.1-44.15 of the Code of
Virginia.
Public Hearing Information:
July 6, 2011 - 3 p.m. - Department of Environmental Quality,
Piedmont Regional Office, 4949-A Cox Road, Glen Allen, VA
Public Comment Deadline: July 22, 2011.
Agency Contact: Allan Brockenbrough, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4147, FAX (804) 698-4032, or email
allan.brockenbrough@deq.virginia.gov.
Summary:
This action amends and reissues the existing general permit
for total nitrogen (TN) and total phosphorus (TP) discharges and nutrient
trading in the Chesapeake Bay watershed in Virginia. The regulation provides
for the permitting of TN and TP discharges in the Chesapeake Bay watershed and
allows for trading of nutrient credits to minimize costs to the regulated
facilities and allow for future growth.
In accordance with § 62.1-44.19:14 of the Code of
Virginia, the general permit includes (i) waste load allocations for TN and TP
for each permitted facility expressed as annual mass loads; (ii) a schedule
requiring compliance with the waste load allocations as soon as possible for
any facility whose waste load allocation was reduced by the December 29, 2010,
Chesapeake Bay total maximum daily load (TMDL); (iii) monitoring and reporting
requirements; (iv) a procedure requiring affected owners or operators to secure
general permit coverage; (v) a procedure for efficiently modifying the list of
facilities covered by the general permit; and (vi) such other conditions as the
board deems necessary to carry out the provisions of state and federal law.
Changes made to the existing regulation include (i) reduced
TN and TP waste load allocations for the Hampton Roads Sanitation District
facilities on the James River and reduced TP allocations for all facilities in
the York Basin along with appropriate schedules of compliance; (ii) a new aggregate,
Chlorophyl a-based TN and TP waste load allocation for the significant James
River dischargers with a compliance deadline of January 1, 2023; (iii)
extending the registration deadline one month to November 1, 2011; (iv)
allowing for coverage under the general permit to be administratively
continued, if necessary; (v) correcting inaccuracies introduced by previous
requirements to calculate loads based on flows expressed to the nearest 0.01
MGD and to round nutrient loads to the nearest whole pound on a daily basis;
(vi) establishing a baseline condition for offsets generated by new stormwater
best management practices; (vii) updated prices of TN and TP credit purchases
from the Water Quality Improvement Fund based on the cost of projects financed
by the fund over the previous permit cycle; (viii) requiring that offsets
required for the full five-year term of the permit be provided at the time of
registration; (ix) provisions to implement a number of laws addressing nutrient
trading that have become effective since the original regulation was adopted;
and (x) updated TN and TP delivery factors.
9VAC25-820-10. Definitions.
Except as defined below, the words and terms used in this
chapter shall have the meanings defined in the Virginia Pollution Discharge Elimination
System (VPDES) Permit Regulation (9VAC25-31).
"Annual mass load of total nitrogen" (expressed in
pounds per year) means the daily total nitrogen concentration (expressed as
mg/l to the nearest 0.01 mg/l) multiplied by the flow volume of effluent
discharged during the 24-hour period (expressed as MGD to the nearest 0.01
MGD), multiplied by 8.3438 and rounded to the nearest whole number to convert
to pounds per day (lbs/day) units, then totaled for the calendar month to
convert to pounds per month (lbs/mo) units, and then totaled for the calendar
year to convert to pounds per year (lbs/yr) units the sum of the total
monthly loads for all of the months in one calendar year. See Part I E 4 of the
general permit in 9VAC25-820-70 for calculating total monthly load.
"Annual mass load of total phosphorus" (expressed
in pounds per year) means the daily total phosphorus concentration
(expressed as mg/l to the nearest 0.01mg/l) multiplied by the flow volume of
effluent discharged during the 24-hour period (expressed as MGD to the nearest
0.01 MGD) multiplied by 8.3438 and rounded to the nearest whole number to
convert to pounds per day (lbs/day) units, then totaled for the calendar month
to convert to pounds per month (lbs/mo) units, and then totaled for the calendar
year to convert to pounds per year (lbs/yr) units the sum of the total
monthly loads for all of the months in one calendar year. See Part I E 4 of the
general permit in 9VAC25-820-70 for calculating total monthly load.
"Association" means the Virginia Nutrient Credit
Exchange Association authorized by § 62.1-44.19:17 of the Code of Virginia.
"Attenuation" means the rate at which nutrients are
reduced through natural processes during transport in water.
"Biological nutrient removal technology" means (i)
technology that will achieve an annual average total nitrogen effluent
concentration of eight milligrams per liter and an annual average total
phosphorus effluent concentration of one milligram per liter, or (ii)
equivalent reductions in loads of total nitrogen and total phosphorus through
the recycle or reuse of wastewater as determined by the department.
"Board" means the Virginia State Water Control
Board or State Water Control Board.
"Delivered total nitrogen load" means the
discharged mass load of total nitrogen from a point source that is adjusted by
the delivery factor for that point source.
"Delivered total phosphorus load" means the
discharged mass load of total phosphorus from a point source that is adjusted
by the delivery factor for that point source.
"Delivery factor" means an estimate of the number
of pounds of total nitrogen or total phosphorus delivered to tidal waters for
every pound discharged from a permitted facility, as determined by the specific
geographic location of the permitted facility, to account for attenuation that
occurs during riverine transport between the permitted facility and tidal
waters. Delivery factors shall be calculated using the Chesapeake Bay Program
watershed model. For the purpose of this regulation, delivery factors with a
value greater than 1.00 in the Chesapeake Bay Program watershed model shall be
considered to be equal to 1.00.
"Department" means the Department of Environmental
Quality.
"Eastern Shore trading ratio" means the number
of point source credits from another tributary that can be used to compensate
for excessive loads from a facility in the Eastern Shore Basin. Trading ratios
are expressed in the form "credits supplied: credits received."
"Equivalent load" means:
2,300 pounds per year of total nitrogen or 300 pounds per year
of total phosphorus discharged by an industrial facility are considered
equivalent to the load discharged from sewage treatment works with a design
capacity of 0.04 million gallons per day,
5,700 pounds per year of total nitrogen or 760 pounds per year
of total phosphorus discharged by an industrial facility are considered
equivalent to the load discharged from sewage treatment works with a design
capacity of 0.1 million gallons per day, and
28,500 pounds per year of total nitrogen or 3,800 pounds per
year of total phosphorus discharged by an industrial facility are considered
equivalent to the load discharged from sewage treatment works with a design
capacity of 0.05 million gallons per day.
"Existing facility" means a facility holding a
current individual VPDES permit that has either commenced discharge from, or
has received a Certificate to Construct (for sewage treatment works, or
equivalent DEQ approval for discharges from industrial facilities) the
treatment works used to derive its waste load waste load allocation on or
before July 1, 2005, or has a wasteload waste load allocation
listed in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C,
and 9VAC25-720-120 C of the Water Quality Management Planning Regulation.
Existing facility shall also mean and include any facility, without an
individual VPDES permit, which holds a separate waste load allocation in
9VAC25-720-120 C of the Water Quality Management Planning Regulation.
"Expansion" or "expands" means (i)
initiating construction at an existing treatment works after July 1, 2005, to
increase design flow capacity, except that the term does not apply in those
cases where a Certificate to Construct (for sewage treatment works, or
equivalent DEQ approval for discharges from industrial facilities) was issued
on or before July 1, 2005, or (ii) industrial production process changes or
the use of new treatment products at industrial facilities that increase the
annual mass load of total nitrogen or total phosphorus.
"Facility" means a point source discharging or
proposing to discharge total nitrogen or total phosphorus to the Chesapeake Bay
or its tributaries. This term does not include confined animal feeding
operations, discharges of storm water, return flows from irrigated agriculture,
or vessels.
"General permit" means this general permit
authorized by § 62.1-44.19:14 of the Code of Virginia.
"Industrial facility" means any facility (as
defined above) other than sewage treatment works.
"New discharge" means any discharge from a facility
that did not commence the discharge of pollutants prior to July 1, 2005, except
that the term does not apply in those cases where a Certificate to Construct
(for sewage treatment works, or equivalent DEQ approval for discharges from
industrial facilities) was issued to the facility on or before July 1, 2005.
"Local water quality-based limitations" means
limitations intended to protect local water quality including applicable total
maximum daily load (TMDL) allocations, applicable Virginia Pollution Discharge
Elimination System (VPDES) permit limits, applicable limitations set forth in
water quality standards established under § 62.1-44.15 (3a) of the Code of
Virginia, or other limitations as established by the State Water Control Board.
"Nonsignificant discharger" means (i) a sewage
treatment works discharging to the Chesapeake Bay watershed downstream of the
fall line with a design capacity of less than 0.1 million gallons per day, or
less than an equivalent load discharged from industrial facilities, or (ii) a
sewage treatment works discharging to the Chesapeake Bay watershed upstream of
the fall line with a design capacity of less than 0.5 million gallons per day,
or less than an equivalent load discharged from industrial facilities.
"Offset" means to acquire an annual waste load
allocation of total nitrogen or total phosphorus by a new or expanding facility
to ensure that there is no net increase of nutrients into the affected
tributary of the Chesapeake Bay.
"Permitted facility" means a facility authorized
by this general permit to discharge total nitrogen or total phosphorus. For the
sole purpose of generating point source nitrogen credits or point source
phosphorus credits, "permitted facility" shall also mean the Blue Plains
wastewater treatment facility operated by the District of Columbia Water and
Sewer Authority.
"Permitted design capacity" or "permitted
capacity" means the allowable load (pounds per year) assigned to an
existing facility that is a nonsignificant discharger, that does not have a wasteload
waste load allocation listed in 9VAC25-720-50 C, 9VAC25-720-60 C,
9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality
Management Planning Regulation. The permitted design capacity is calculated
based on the design flow and installed nutrient removal technology (for sewage
treatment works, or equivalent discharge from industrial facilities) at a
facility that has either commenced discharge, or has received a Certificate to
Construct (for sewage treatment works, or equivalent DEQ approval for
discharges from industrial facilities) prior to July 1, 2005. This mass load is
used for (i) determining whether the expanding facility must offset additional
mass loading of nitrogen and phosphorus and (ii) determining whether the
facility must acquire credits at the end of a calendar year. For the purpose of
this regulation, facilities that have installed secondary wastewater treatment
(intended to achieve BOD and TSS monthly average concentrations equal to or
less than 30 milligrams per liter) are assumed to achieve an annual average
total nitrogen effluent concentration of 18.7 milligrams per liter and an
annual average total phosphorus effluent concentration of 2.5 milligrams per
liter. Permitted design capacities for facilities that, before July 1, 2005,
were required to comply with more stringent nutrient limits shall be calculated
using the more stringent values.
"Permitted facility" means a facility authorized
by this general permit to discharge total nitrogen or total phosphorus. For the
sole purpose of generating point source nitrogen credits or point source
phosphorus credits, "permitted facility" shall also mean the Blue
Plains wastewater treatment facility operated by the District of Columbia Water
and Sewer Authority.
"Permittee" means a person authorized by this
general permit to discharge total nitrogen or total phosphorus.
"Point source nitrogen credit" means the difference
between (i) the waste load allocation for a permitted facility specified as an
annual mass load of total nitrogen and (ii) the monitored annual mass load of
total nitrogen discharged by that facility, that clause (ii) is less than
clause (i), and where the difference is adjusted by the applicable delivery
factor and expressed as pounds per year of delivered total nitrogen load.
"Point source phosphorus credit" means the
difference between (i) the waste load allocation for a permitted facility
specified as an annual mass load of total phosphorus and (ii) the monitored
annual mass load of total phosphorus discharged by that facility, where clause
(ii) is less than clause (i), and where the difference is adjusted by the
applicable delivery factor and expressed as pounds per year of delivered total
phosphorus load.
"Quantification level (QL)" means the lowest
standard in the calibration curve for a given analyte. The QL must have a value
greater than zero and be verified each day of analysis by analyzing a sample of
known concentration at the selected QL with a recovery range of 70% - 130% minimum
levels, concentrations, or quantities of a target variable (e.g., target
analyte) that can be reported with a specified degree of confidence in
accordance with 1VAC30-45, Certification for Noncommercial Environmental
Laboratories, or 1VAC30-46, Accreditation for Commercial Environmental
Laboratories.
"Registration list" means a list maintained by the
department indicating all facilities that have registered for coverage under
this general permit, by tributary, including their waste load allocations,
permitted design capacities and delivery factors as appropriate.
"Significant discharger" means (i) a sewage
treatment works discharging to the Chesapeake Bay watershed upstream of the
fall line with a design capacity of 0.5 million gallons per day or greater, or
an equivalent load discharged from industrial facilities; (ii) a sewage
treatment works discharging to the Chesapeake Bay watershed downstream of the
fall line with a design capacity of 0.1 million gallons per day or greater, or
an equivalent load discharged from industrial facilities; (iii) a planned or
newly expanding sewage treatment works discharging to the Chesapeake Bay
watershed upstream of the fall line that is expected to be in operation by
December 31, 2010, with a permitted design of 0.5 million gallons per day or
greater, or an equivalent load to be discharged from industrial facilities; or
(iv) a planned or newly expanding sewage treatment works discharging to the
Chesapeake Bay watershed downstream of the fall line that is expected to be in
operation by December 31, 2010, with a design capacity of 0.1 million gallons
per day or greater, or an equivalent load to be discharged from industrial
facilities.
"State-of-the-art nutrient removal technology"
means (i) technology that will achieve an annual average total nitrogen
effluent concentration of three milligrams per liter and an annual average
total phosphorus effluent concentration of 0.3 milligrams per liter or (ii)
equivalent load reductions in total nitrogen and total phosphorus through
recycle or reuse of wastewater as determined by the department.
"Tributaries" means those river basins for which
separate tributary strategies were prepared pursuant to § 2.2-218 of the Code
of Virginia and includes the Potomac, Rappahannock, York, and James River
Basins, and the Eastern Coastal Basin, which encompasses the creeks and rivers
of the Eastern Shore of Virginia that are west of Route 13 and drain into the
Chesapeake Bay.
"Waste load allocation" means (i) the water
quality-based annual mass load of total nitrogen or annual mass load of total
phosphorus allocated to individual facilities pursuant to 9VAC25-720-50 C,
9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the
Water Quality Management Planning Regulation or its successor, (ii) the water
quality-based annual mass load of total nitrogen or annual mass load of total
phosphorus acquired pursuant to § 62.1-44.19:15 of the Code of Virginia
for new or expanded facilities, or (iii) applicable total nitrogen or total
phosphorus total maximum daily loads to restore or protect the water quality
and beneficial uses of the Chesapeake Bay or its tidal tributaries.
9VAC25-820-40. Compliance plans.
A. Within nine months of the effective date of this
regulation, every owner or operator of a facility required to submit a
registration statement to the department by January 1, 2007, By July 1,
2012, every owner or operator of a facility subject to reduced individual total
nitrogen or total phosphorus waste load allocations in the Chesapeake Bay Total
Maximum Daily Load for Nitrogen, Phosphorus and Sediment dated December 29,
2010, (as identified in 9VAC25-820-80) shall either individually or through
the Virginia Nutrient Credit Exchange Association submit compliance plans to
the department for approval.
1. The compliance plans shall contain any capital projects and
implementation schedules needed to achieve total nitrogen and phosphorus
reductions sufficient to comply with the individual and combined waste load
allocations of all the permittees in the tributary as soon as possible.
Permittees submitting individual plans are not required to account for other
facilities' activities.
2. As part of the compliance plan development, permittees whose
facilities would have complied with their individual waste load allocations for
calendar year 2005, had the allocations been effective in that year, shall
either:
a. Demonstrate that the additional capital projects in
subdivision 1 of this subsection are necessary to ensure continued compliance
with these allocations through the applicable deadline for the tributary to
which the facility discharges (Part I C of the permit), or
b. Request that their individual waste load allocations become
effective on January 1, 2007 2012. Permittees selecting this
option shall be entitled to trade nutrient credits generated by their
facilities and to acquire nutrient credits.
3. The compliance plans may rely on the exchange of point
source credits in accordance with this general permit, but not the acquisition
of credits through payments into the Water Quality Improvement Fund
(§ 10.1-2128 et seq. of the Code of Virginia), to achieve compliance with
the individual and combined waste load allocations in each tributary.
B. Every owner or operator of a facility required to submit a
registration statement shall either individually or through the Virginia
Nutrient Credit Exchange Association submit annual compliance plan updates to
the department for approval as required by Part I D of this general permit.
9VAC25-820-70. General permit.
Any owner whose registration statement is accepted by the
board will receive the following general permit and shall comply with the
requirements therein.
General Permit No.: VAN000000
Effective Date: January 1, 2007 2012
Expiration Date: December 31, 2011 2016
GENERAL PERMIT FOR TOTAL NITROGEN AND TOTAL PHOSPHORUS
DISCHARGES AND NUTRIENT TRADING IN THE CHESAPEAKE WATERSHED IN VIRGINIA
AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT
DISCHARGE ELIMINATION SYSTEM AND THE VIRGINIA STATE WATER CONTROL LAW
In compliance with the provisions of the Clean Water Act, as
amended, and pursuant to the State Water Control Law and regulations adopted
pursuant thereto, owners of facilities holding a VPDES individual permit or owners
of facilities that otherwise meet the definition of an existing facility, with
total nitrogen and/or total phosphorus discharges to the Chesapeake Bay or its
tributaries, are authorized to discharge to surface waters and exchange credits
for total nitrogen and/or total phosphorus.
The authorized discharge shall be in accordance with the
registration statement filed with DEQ, this cover page, Part I-Special
Conditions Applicable to All Facilities, Part II-Special Conditions Applicable
to New and Expanded Facilities, and Part III-Conditions Applicable to All VPDES
Permits, as set forth herein.
Part I
Special Conditions Applicable To All Facilities
A. Authorized activities.
1. Authorization to discharge for facilities required to
register.
a. Every owner or operator of a facility required to submit a
registration statement to the department by January 1, 2007 November
1, 2011, and thereafter upon the reissuance of this general permit, shall
be authorized to discharge total nitrogen and total phosphorus subject to the
requirements of this general permit upon the department's approval of the
registration statement.
b. Any owner or operator of a facility required to submit a
registration statement with the department at the time he makes application
with the department for a new discharge or expansion that is subject to an
offset or technology-based requirement in Part II of this general permit, shall
be authorized to discharge total nitrogen and total phosphorus subject to the
requirements of this general permit upon the department's approval of the
registration statement.
c. Upon the department's approval of the registration
statement, a facility will be included in the registration list maintained by
the department.
2. Authorization to discharge for facilities not required to
register. Any facility authorized by a Virginia Pollutant Discharge Elimination
System permit and not required by this general permit to submit a registration
statement shall be deemed to be authorized to discharge total nitrogen and total
phosphorus under this general permit at the time it is issued. Owners or
operators of facilities that are deemed to be permitted under this subsection
shall have no obligation under this general permit prior to submitting a
registration statement and securing coverage under this general permit based
upon such registration statement.
3. Continuation of permit coverage.
a. Any owner authorized to discharge under this general
permit and who submits a complete registration statement for the reissued
general permit by November 1, 2016, in accordance with Part III A or who is not
required to register in accordance with Part I A 2 is authorized to continue to
discharge under the terms of this general permit until such time as the board
either:
(1) Issues coverage to the owner under the reissued general
permit, or
(2) Notifies the owner that coverage under the reissued
permit is denied.
b. When the owner that was covered under the expiring or
expired general permit has violated or is violating the conditions of that
permit, the board may choose to do any or all of the following:
(1) Initiate enforcement action based upon the general
permit that has been continued,
(2) Issue a notice of intent to deny coverage under the
amended general permit if the general permit coverage is denied the owner would
then be required to cease the activities authorized by the continued general
permit or be subject to enforcement action for operating without a permit, or
(3) Take other actions authorized by the State Water
Control Law.
B. Waste load allocations.
1. Waste load allocations allocated to permitted facilities
pursuant to 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110
C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation, or
applicable total maximum daily loads, or waste load allocations acquired by new
and expanding facilities to offset new or increased delivered total nitrogen
and delivered total phosphorus loads from a new discharge or expansion under
Part II B of this general permit, and existing loads calculated from the
permitted design capacity of expanding facilities not previously covered by
this general permit, shall be incorporated into the registration list
maintained by the department. The waste load allocations contained in this list
shall be enforceable as annual mass load limits in this general permit. Credits
shall not be generated by facilities whose mass loads are derived from
permitted design capacities, or from facilities whose operations were
previously authorized by a Virginia Pollution Abatement (VPA) permit that was
issued before July 1, 2005.
2. Except as described in subdivision subdivisions
2 d and 2 e of this subsection, an owner or operator of two or more
facilities covered by this general permit and located in the same tributary may
apply for and receive an aggregated mass load limit for delivered total
nitrogen and an aggregated mass load limit for delivered total phosphorus
reflecting the total of the water quality-based total nitrogen and total
phosphorus waste load allocations or permitted design capacities established
for such facilities individually.
a. The permittee (and all of the individual facilities covered
under a single registration) shall be deemed to be in compliance when the
aggregate mass load discharged by the facilities is less than the aggregate
load limit.
b. The permittee will be eligible to generate credits only if
the aggregate mass load discharged by the facilities is less than the total of
the waste load allocations assigned to any of the affected facilities in
9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C and
9VAC25-720-120 C of the Water Quality Management Planning Regulation.
c. Credits shall not be generated by permittees whose
aggregated mass load limit is derived entirely from permitted design
capacities.
d. The aggregation of mass load limits shall not affect any
requirement to comply with local water quality-based limitations.
e. Facilities whose operations were previously authorized by
a Virginia Pollution Abatement (VPA) permit that was issued before July 1,
2005, cannot be aggregated with other facilities under common ownership or
operation.
f. Operation under an aggregated mass load limit in
accordance with this section shall not be deemed credit acquisition as
described in Part I J 2 of this general permit.
3. An owner who consolidates two or more facilities located in
the same tributary into a single regional facility may apply for and receive an
aggregated mass load limit for delivered total nitrogen and an aggregated mass
load limit for delivered total phosphorus, subject to the following conditions:
a. If all of the affected facilities have waste load
allocations in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110
C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation,
the aggregate mass load limit shall be calculated by adding the waste load
allocations of the affected facilities. The regional facility shall be eligible
to generate credits.
b. If any, but not all, of the affected facilities has a waste
load allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C,
9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning
Regulation, the aggregate mass load limit shall be calculated by adding:
(1) Waste load allocations of those facilities that have wasteload
waste load allocations in 9VAC25-720-50 C, 9VAC25-720-60 C,
9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality
Management Planning Regulation;
(2) Permitted design capacities assigned to affected
industrial facilities; and
(3) Loads from affected sewage treatment works that do not
have a waste load allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70
C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management
Planning Regulation, defined as the lesser of a previously calculated
permitted design capacity, or the values calculated by the following
formulae:
Nitrogen Load (lbs/day) = flow (expressed as MGD to the
nearest 0.01 MGD) x 8.0 mg/l x 8.3438 8.345 x 365 days/year
Phosphorus Load (lbs/day) = flow (expressed as MGD to the
nearest 0.01 MGD) x 1.0 mg/l x 8.3438 8.345 x 365 days/year
Flows used in the preceding formulae shall be the design flow
of the treatment works from which the affected facility currently discharges.
The regional facility shall be eligible to generate credits.
c. If none of the affected facilities have a waste load
allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110
C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation,
the aggregate mass load limit shall be calculated by adding the respective
permitted design capacities for the affected facilities. The regional facility
shall not be eligible to generate credits.
d. Facilities whose operations were previously authorized
by a Virginia Pollution Abatement (VPA) permit that was issued before July 1,
2005, may be consolidated with other facilities under common ownership or
operation, but their allocations cannot be transferred to the regional
facility.
e. Facilities whose operations were previously authorized
by a VPA permit that was issued before July 1, 2005, can become regional
facilities, but they cannot receive additional allocations beyond those permitted
in Part II B 1 d of this general permit.
4. Unless otherwise noted, the nitrogen and phosphorus waste
load allocations assigned to permitted facilities are considered total loads
including nutrients present in the intake water from the river, as applicable.
On a case-by-case basis, an industrial discharger may demonstrate to the
satisfaction of the board that a portion of the nutrient load originates in its
intake water. This demonstration shall be consistent with the assumptions and
methods used to derive the allocations through the Chesapeake Bay models. In
these cases, the board may limit the permitted discharge to the net nutrient
load portion of the assigned waste load allocation.
5. Bioavailability. Unless otherwise noted, the entire
nitrogen and phosphorus waste load allocations assigned to permitted facilities
are considered to be bioavailable to organisms in the receiving stream. On a
case-by-case basis, a discharger may demonstrate to the satisfaction of the
board that a portion of the nutrient load is not bioavailable; this
demonstration shall not be based on the ability of the nutrient to resist
degradation at the wastewater treatment plant, but instead, on the ability of
the nutrient to resist degradation within a natural environment for the amount
of time that it is expected to remain in the bay watershed. This demonstration
shall also be consistent with the assumptions and methods used to derive the
allocations through the Chesapeake Bay models. In these cases, the board may
limit the permitted discharge to the bioavailable portion of the assigned waste
load allocation.
C. Schedule of compliance.
1. The following schedule of compliance pertaining to the load
allocations for total nitrogen and total phosphorus applies to the facilities listed
in each tributary, as listed 9VAC25-820-80.
a. Compliance shall be achieved as soon as possible, but no
later than the following dates, subject to any compliance plan-based adjustment
by the board pursuant to subdivision 1 b of this subsection, for each
parameter:
|
Tributary
|
Parameter
|
Final Effluent Limits Effective Date
|
|
James River
|
Nitrogen
Phosphorus
|
January 1, 2011 January 1, 2017
January 1, 2011
|
|
Shenandoah and Potomac Rivers
|
Nitrogen
Phosphorus
|
January 1, 2011
January 1, 2011
|
|
Rappahannock River
|
Nitrogen
Phosphorus
|
January 1, 2011
January 1, 2011
|
|
York River
|
Nitrogen
Phosphorus
|
January 1, 2011
January 1, 2011 January 1, 2016
|
|
Eastern Shore
|
Nitrogen
Phosphorus
|
January 1, 2011
January 1, 2011
|
b. Following submission of compliance plans and compliance
plan updates required by 9VAC25-820-40, the board shall reevaluate the schedule
of compliance in subdivision 1 a of this subsection, taking into account the
information in the compliance plans and the factors in § 62.1-44.19:14 C 2
of the Code of Virginia. When warranted based on such information and factors,
the board shall adjust the schedule in subdivision 1 a of this subsection as
appropriate by modification or reissuance of this general permit.
2. The registration list shall contain individual dates for
compliance (as defined in Part I J 1 a-b of this general permit) for
dischargers, as follows:
a. Facilities that were required to submit a registration
statement with the department by January 1, 2007, listed in
9VAC25-820-80 will have individual dates for compliance based on their
respective compliance plans, that may be earlier than the basin schedule listed
in subdivision 1 of this subsection.
b. Facilities listed in 9VAC25-820-70 that have waived
waive their compliance schedules in accordance with 9VAC25-820-40 A 2 b
shall have an individual compliance date of January 1, 2007 2012.
c. Upon completion of the projects contained in their
compliance plans, facilities listed in 9VAC25-820-80 may receive a
revised individual compliance date of January 1 for the calendar year
immediately following the year in which a Certificate to Operate was issued for
the capital projects, but not later than the basin schedule listed in
subdivision 1 of this subsection.
d. New and expanded facilities will have individual dates for
compliance corresponding to the date that coverage under this general permit
was extended to the facility.
3. The 39 significant dischargers in the James River Basin
shall meet aggregate delivered waste load allocations of 8,163,209 lbs/yr TN
and 457,384 lbs/yr TP by January 1, 2023.
D. Annual update of compliance plan. Every owner or operator
of a facility required to submit a registration statement shall either
individually or through the Virginia Nutrient Credit Exchange Association
submit updated compliance plans to the department no later than February 1 of
each year. The compliance plans shall contain, at a minimum, any capital
projects and implementation schedules needed to achieve total nitrogen and
phosphorus reductions sufficient to comply with the individual waste load
allocations on the registration list and combined aggregate
waste load allocations of all the permittees in the tributary Part
I C 3. Compliance plans for facilities that were required to submit a
registration statement with the department by January 1, 2007, under
Part I G 1 a may rely on the acquisition of point source credits in
accordance with Part I J of this general permit, but not the acquisition of
credits through payments into the Water Quality Improvement Fund, to achieve
compliance with the individual and combined waste load allocations in each
tributary. Compliance plans for expansions or new discharges for facilities
that are required to submit a registration statement with the department under
Part I G 1 b and c may rely on the acquisition of allocation in accordance
with Part II B of this general permit to achieve compliance with the individual
and combined waste load allocations in each tributary.
E. Monitoring requirements.
1. Discharges shall be monitored by the permittee during
weekdays as specified below unless the department determines that weekday
only sampling results in a non-representative load. Weekend monitoring and/or
alternative monthly load calculations to address production schedules or
seasonal flows shall be submitted to the department for review and approval on
a case-by-case basis:
2. Monitoring for compliance with effluent limitations shall
be performed in a manner identical to that used to determine compliance with
effluent limitations established in the individual VPDES permit and
monitoring. Monitoring or sampling shall be conducted according to
analytical laboratory methods approved under 40 CFR Part 136 (2006),
unless other test or sample collection procedures have been requested by the
permittee and approved by the department in writing. All analysis for
compliance with effluent limitations shall be in accordance with 1VAC30-45,
Certification for Noncommercial Environmental Laboratories, or 1VAC30-46,
Accreditation for Commercial Environmental Laboratories. Monitoring may be
performed by the permittee at frequencies more stringent than listed above;
however, the permittee shall report all results of such monitoring.
3. Loading values greater than or equal to 10 pounds
reported in accordance with Part I E and F of this general permit shall be calculated
and reported to the nearest pound without regard to mathematical rules of
precision. Loading values of less than 10 pounds reported in accordance with
Part I E and F of this general permit shall be calculated and reported to at
least two significant digits with the exception that all complete calendar year
annual loads shall be reported to the nearest pound.
4. Data shall be reported on a form provided by the
department, by the same date each month as is required by the facility's
individual permit. The total monthly load shall be calculated in accordance
with the following formula:
ML = MLavg * d
where:
ML = total monthly load (lb/mo)
MLavg = monthly average load as reported on DMR
(lb/d)
d = number of discharge days in the calendar month
MLavg = 
where:
ML = total monthly load (lb/mo) = average daily load for
the calendar month multiplied by the number of days of the calendar month
DL = daily load = daily concentration (expressed as mg/l to
the nearest 0.01 mg/l) multiplied by the flow volume of effluent discharged during
the 24-hour period (expressed as MGD to at least the nearest 0.01 MGD)
MGD and in no case less than two significant digits), multiplied by 8.3438
and 8.345. Daily loads greater than or equal to 10 pounds may be
rounded to the nearest whole number to convert to pounds per day (lbs/day).
Daily loads less than or equal to 10 pounds may be rounded to no fewer than two
significant fiqures.
s = number of days in the calendar month in which a sample was
collected and analyzed
d = number of discharge days in the calendar month
All For total phosphorus, all daily
concentration data below the quantification level (QL) for the analytical
method used should be treated as half the QL. All daily concentration data equal
to or above the QL for the analytical method used shall be treated as it is
reported. If all data are below the QL, then the average shall be reported
as half the QL.
For total nitrogen (TN), if none of the daily concentration
data for the respective species (i.e., TKN, nitrates/nitrites) are equal to or
above the QL for the respective analytical methods used, the daily TN
concentration value reported shall equal one half of the largest QL used for
the respective species. If one of the data is equal to or above the QL,
the daily TN concentration value shall be treated as that data point as
reported. If more than one of the data is above the QL, the daily TN
concentration value shall equal the sum of the data points as reported.
The total year-to-date mass load shall be calculated in
accordance with the following formula:
AL-YTD = 
where:
AL-YTD = calendar year-to-date annual load (lb/yr)
ML = total monthly load (lb/mo) as reported on DMR
F. Annual reporting.
1. Annually, on or before February 1, the permittee shall
either individually or through the Virginia Nutrient Credit Exchange
Association file a report with the department, using a reporting form supplied
by the department. The report shall identify:
a. The annual mass load of total nitrogen and the annual mass
load of total phosphorus discharged by each of its permitted facilities during
the previous calendar year;
b. The delivered total nitrogen load and delivered total
phosphorus load discharged by each of its permitted facilities during the
previous year; and
c. The number of total nitrogen and total phosphorus credits
for the previous calendar year to be acquired or eligible for exchange by the
permittee.
The total annual mass load shall be calculated in accordance
with the following formula:
AL = 
where:
AL = calendar year annual load (lb/yr)
ML = total monthly load (lb/mo) as reported on DMR
G. Requirement to register; exclusions.
1. The following owners or operators are required to register
for coverage under this general permit:
a. Every owner or operator of an existing facility authorized
by a Virginia Pollutant Discharge Elimination System permit to discharge
100,000 gallons or more per day from a sewage treatment work, or an equivalent
load from an industrial facility, directly into tidal waters, or 500,000
gallons or more per day from a sewage treatment work, or an equivalent load
from an industrial facility, directly into nontidal waters, shall submit a
registration statement to the department by January 1, 2007 November
1, 2011, and thereafter upon the reissuance of this general permit in
accordance with Part III B. The conditions of this general permit will apply to
such owner and operator upon approval of a registration statement.
b. Any owner or operator of a facility authorized by a
Virginia Pollutant Discharge Elimination System permit to discharge 40,000
gallons or more per day from a sewage treatment work, or an equivalent load
from an industrial facility, directly into tidal or nontidal waters shall
submit a registration statement with the department at the time he makes application
for an individual permit with the department for a new discharge or expansion
that is subject to an offset requirement in Part II of this general permit
or technology-based requirement in Part II of this general permit 9VAC25-40-70,
and thereafter upon the reissuance of this general permit in accordance with
Part III B. The conditions of this general permit will apply to such owner or
operator beginning on the start of the calendar year immediately following submittal
approval of a registration statement and issuance or modification of the
individual permit.
c. Any owner or operator of a facility treating domestic
sewage authorized by a Virginia Pollutant Discharge Elimination System permit
with a discharge greater than 1,000 gallons per day up to and including 39,999
gallons per day that has not commenced the discharge of pollutants prior to
January 1, 2011, shall submit a registration statement with the department at
the time he makes application for an individual permit with the department or
prior to commencing a discharge, which ever occurs first, and thereafter upon
the reissuance of this general permit in accordance with Part III B.
2. All other categories of discharges are excluded from
registration under this general permit.
H. Registration statement.
1. The registration statement shall contain the following
information:
a. Name, mailing address and telephone number, e-mail address
and fax number of the owner (and facility operator, if different from the
owner) applying for permit coverage;
b. Name (or other identifier), address, city or county,
contact name, phone number, e-mail address and fax number for the facility for
which the registration statement is submitted;
c. VPDES permit numbers for all permits assigned to the
facility, or pursuant to which the discharge is authorized;
d. If applying for an aggregated waste load allocation in
accordance with Part I B 2 of this permit, list all affected facilities and the
VPDES permit numbers assigned to these facilities;
e. For new and expanded facilities, a plan to offset new or
increased delivered total nitrogen and delivered total phosphorus loads,
including the amount of waste load allocation acquired. Waste load
allocations sufficient to offset projected nutrient loads must be provided for
period of at least five years; and
f. For existing facilities, the amount of a facility's waste
load allocation transferred to or from another facility to offset new or
increased delivered total nitrogen and delivered total phosphorus loads from a
new discharge or expansion.
2. The registration statement shall be submitted to the DEQ
Central Office, Office of Water Permit Programs Permits and
Compliance Assistance.
3. An amended registration statement shall be submitted upon
the acquisition or transfer of a facility's waste load allocation to offset new
or increased delivered total nitrogen and delivered total phosphorus loads from
a new discharge or expansion.
I. Public notice for registration statements proposing
modifications or incorporations of new waste load allocations or delivery
factors.
1. All public notices issued pursuant to a proposed
modification or incorporation of a (i) new waste load allocation to offset new
or increased delivered total nitrogen and delivered total phosphorus loads from
a new discharge or expansion, or (ii) delivery factor, shall be published once
a week for two consecutive weeks in a major local newspaper of general
circulation serving the locality where the facility is located informing the
public that the facility intends to apply for coverage under this general
permit. At a minimum, the notice shall include:
a. A statement of the owner or operator's intent to register
for coverage under this general permit;
b. A brief description of the facility and its location;
c. The amount of waste load allocation that will be acquired
or transferred if applicable;
d. The delivery factor for a new discharge or expansion;
e. A statement that the purpose of the public participation is
to acquaint the public with the technical aspects of the facility and how the
standards and the requirements of this chapter will be met, to identify issues
of concern, to facilitate communication and to establish a dialogue between the
owner or operator and persons who may be affected by the facility;
f. An announcement of a 30-day comment period, in
accordance with 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C,
9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning
Regulation, and the name, telephone number, and address of the owner's or
operator's representative who can be contacted by the interested persons to
answer questions;
g. The name, telephone number, and address of the DEQ
representative who can be contacted by the interested persons to answer
questions, or where comments shall be sent; and
h. The location where copies of the documentation to be
submitted to the department in support of this general permit notification and
any supporting documents can be viewed and copied.
2. The owner or operator shall place a copy of the
documentation and support documents in a location accessible to the public in
the vicinity of the proposed facility.
3. The public shall be provided 30 days to comment on the
technical and the regulatory aspects of the proposal. The comment period will
begin on the date the notice is published in the local newspaper.
J. Compliance with waste load allocations.
1. Methods of compliance. The permitted facility shall comply
with its waste load allocation contained in the registration list maintained by
the department. The permitted facility shall be in compliance with its waste
load allocation if:
a. The annual mass load is less than or equal to the
applicable waste load allocation assigned to the facility in this general permit
(or permitted design capacity for expanded facilities without allocations);
b. The permitted facility acquires sufficient point source
nitrogen or phosphorus credits in accordance with subdivision 2 of this
subsection; provided, however, that the acquisition of nitrogen or phosphorus
credits pursuant to this section shall not alter or otherwise affect the
individual waste load allocations for each permitted facility; or
c. In the event it is unable to meet the individual waste load
allocation pursuant to subdivision 1 a or 1 b of this subsection, the permitted
facility acquires sufficient nitrogen or phosphorus credits through payments
made into the Water Quality Improvement Fund pursuant to subdivision 3 of this
subsection; provided, however, that the acquisition of nitrogen or phosphorus
credits pursuant to this section shall not alter or otherwise affect the
individual waste load allocations for each permitted facility.
2. Credit acquisition from permitted facilities. A permittee
may acquire point source nitrogen credits or point source phosphorus credits
from one or more permitted facilities with waste load allocations in
9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C and
9VAC25-720-120 C of the Water Quality Management Planning Regulation, including
the Blue Plains wastewater treatment facility operated by the District of
Columbia Water and Sewer Authority, only if:
a. The credits are generated and applied to a compliance
obligation in the same calendar year;
b. The credits are generated by one or more permitted
facilities in the same tributary, except that permitted facilities in the
Eastern Shore basin may also acquire credits from permitted facilities in the
Potomac and Rappahannock tributaries. Eastern shore facilities may acquire
credits from the Potomac tributary at a trading ratio of 1:1. A trading ratio
of 1.3:1 shall apply to the acquisition of credits from the Rappahannock
tributary by an Eastern Shore facility;
c. The exchange or acquisition of credits does not affect any
requirement to comply with local water quality-based limitations as determined
by the board;
d. The credits are acquired no later than June 1 immediately
following the calendar year in which the credits are applied;
e. The credits are generated by a facility that has been
constructed, and has discharged from treatment works whose design flow or
equivalent industrial activity is the basis for the facility's waste load
allocations (until a facility is constructed and has commenced operation, such
credits are held, and may be sold, by the Water Quality Improvement Fund; and
f. No later than June 1 immediately following the calendar
year in which the credits are applied, the permittee certifies on a credit exchange
notification form supplied by the department that he has acquired sufficient
credits to satisfy his compliance obligations. The permittee shall comply with
the terms and conditions contained in the credit exchange notification form
submitted to the department.
3. Credit acquisitions from the Water Quality Improvement
Fund. Until such time as the board finds that no allocations are reasonably
available in an individual tributary, permittees that cannot meet their total
nitrogen or total phosphorus effluent limit may acquire nitrogen or phosphorus
credits through payments made into the Virginia Water Quality Improvement Fund
established in § 10.1-2128 of the Code of Virginia only if, no later than
June 1 immediately following the calendar year in which the credits are to be
applied, the permittee certifies on a form supplied by the department that he
has diligently sought, but has been unable to acquire, sufficient credits to
satisfy his compliance obligations through the acquisition of point source nitrogen
or phosphorus credits with other permitted facilities in the same tributary,
and that he has acquired sufficient credits to satisfy his compliance
obligations through one or more payments made in accordance with the terms of
this general permit. Such certification may include, but not be limited to,
providing a record of solicitation or demonstration that point source
allocations are not available for sale in the tributary in which the permittee
is located. Payments to the Water Quality Improvement Fund shall be in the
amount of $11.06 $6.04 for each pound of nitrogen and $5.04
$15.08 for each pound of phosphorus and shall be subject to the
following requirements:
a. The credits are generated and applied to a compliance
obligation in the same calendar year,
b. The credits are generated in the same tributary, except
that permitted facilities in the Eastern Shore basin may also acquire credits
from the Potomac and Rappahannock tributaries. Eastern shore facilities may
acquire credits from the Potomac tributary at a trading ratio of 1:1. A trading
ratio of 1.3:1 shall apply to the acquisition of credits from the Rappahannock
tributary by an Eastern Shore facility.
c. The acquisition of credits does not affect any requirement
to comply with local water quality-based limitations, as determined by the
board.
4. This general permit neither requires, nor prohibits a
municipality or regional sewerage authority's development and implementation of
trading programs among industrial users, which are consistent with the
pretreatment regulatory requirements at 40 CFR Part 403 and the municipality's
or authority's individual VPDES permit.
Part II
Special Conditions Applicable To New And Expanded Facilities
A. Offsetting mass loads discharged by new and expanded facilities.
1. An owner or operator of a new or expanded facility shall
comply with the applicable requirements of this section as a condition of the
facility's coverage under this general permit.
a. An owner or operator of a facility authorized by a Virginia
Pollutant Discharge Elimination System permit first issued before July 1, 2005,
that expands his facility to discharge 40,000 gallons or more per day, or an
equivalent load, shall demonstrate to the department that he has acquired waste
load allocations sufficient to offset any increase in his delivered total
nitrogen and delivered total phosphorus loads resulting from any expansion
beyond his permitted capacity as of July 1, 2005.
b. An owner or operator of a facility authorized by a Virginia
Pollutant Discharge Elimination System permit first issued on or after July 1,
2005, to discharge 40,000 gallons or more per day, or an equivalent load, shall
demonstrate to the department that he has acquired waste load allocations
sufficient to offset his delivered total nitrogen and delivered total
phosphorus loads.
c. An owner or operator of a facility treating domestic
sewage authorized by a Virginia Pollutant Discharge Elimination System permit
with a discharge greater than 1,000 gallons per day up to and including 39,999
gallons per day that has not commenced the discharge of pollutants prior to
January 1, 2011, shall demonstrate to the department that he has acquired waste
load allocations sufficient to offset his delivered total nitrogen and
delivered phosphorus loads prior to commencing the discharge, except when the
facility is for short-term temporary use only or when treatment of domestic
sewage is not the primary purpose of the facility.
2. Offset calculations shall address the proposed discharge
that exceeds:
a. The applicable waste load allocation assigned to the
facility in this general permit, for expanding significant dischargers with a wasteload
waste load allocation listed in 9VAC25-720-50 C, 9VAC25-720-60 C,
9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality
Management Planning Regulation;
b. The permitted design capacity, for all other expanding
dischargers; and
c. Zero, for facilities with a new discharge.
3. An owner or operator of multiple facilities located in the
same tributary, and assigned an aggregate mass load limit in accordance with
Part I B 2 of this general permit, that undertakes construction of new or
expanded facilities, shall be required to acquire waste load allocations
sufficient to offset any increase in delivered total nitrogen and delivered
total phosphorus loads resulting from any expansion beyond the aggregate mass
load limit assigned these facilities.
B. Acquisition of waste load allocations. Waste load
allocations required by this section to offset new or increased delivered total
nitrogen and delivered total phosphorus loads shall be acquired in accordance
with this section.
1. Such allocations may be acquired from one or a combination
of the following:
a. Acquisition of all or a portion of the waste load
allocations from one or more permitted facilities, based on delivered pounds by
the respective trading parties as listed by the department;
b. Acquisition of nonpoint source load allocations, using a
trading ratio of two pounds reduced for every pound to be discharged, through
the use of best management practices that are:
(1) Acquired through a public or private entity acting on
behalf of the land owner;
(2) Calculated using best management practices efficiency
rates and attenuation rates, as established by the latest science and relevant
technical information, and approved by the board;
(3) Based on appropriate delivery factors, as established by
the latest science and relevant technical information, and approved by the
board;
(4) Demonstrated to have achieved reductions beyond those
already required by or funded under federal or state law, or by the Virginia
tributaries strategies plans; and
(5) Included as conditions of the facility's individual
Virginia Pollutant Discharge Elimination System permit; and
(6) In the case of allocations generated by land use
conversions and stormwater retention projects, represent controls beyond those
in place as of July 1, 2005 unless the project was specifically designed and
approved for use in a stormwater trading program prior to July 1, 2005;
c. Until such time as the board finds that no allocations are
reasonably available in an individual tributary, acquisition of allocations
through payments made into the Virginia Water Quality Improvement Fund
established in § 10.1-2128 of the Code of Virginia; or
d. Acquisition of allocations through such other means as may
be approved by the department on a case-by-case basis. This includes allocations
granted by the board to an owner or operator of a facility that is authorized
by a VPA permit to land apply domestic sewage if:
(1) The VPA permit was issued before July 1, 2005;
(2) The allocation does not exceed the facility’s permitted
design capacity as of July 1, 2005;
(3) The waste treated by the facility that is covered under
the VPA permit will be treated and discharged pursuant to a VPDES permit for a
new discharge; and
(4) The owner or operator installs state-of-the-art
nutrient removal technology at such a facility.
2. Acquisition of allocations is subject to the following
conditions:
a. The allocations shall be generated and applied to an offset
obligation in the same calendar year;
b. The allocations shall be generated in the same tributary;
c. Such acquisition does not affect any requirement to comply
with local water quality-based limitations, as determined by the board;
d. The allocations are authenticated (i.e., verified to have
been generated) by the permittee as required by the facility's individual
Virginia Pollutant Discharge Elimination permit, utilizing procedures approved
by the board, no later than February 1 immediately following the calendar year
in which the allocations are applied; and
e. If obtained from a permitted point source, the allocations
shall be generated by a facility that has been constructed, and has discharged
from treatment works whose design flow or equivalent industrial activity is the
basis for the facility's waste load allocations; and.
f. No later than June 1 in the year prior to the calendar
year in which the allocations are to be applied, the permittee shall certify on
an exchange notification form supplied by the department that he has acquired
sufficient allocations to satisfy his compliance obligations. The permittee
shall comply with the terms and conditions contained in the exchange
notification form submitted to the department.
3. Priority of options. The board shall give priority to
allocations acquired in accordance with subdivisions 1 a and 1 b of this
subsection. The board shall approve allocations acquired in accordance with
subdivisions 1 c and 1 d of this subsection only after the owner or operator
has demonstrated that he has made a good faith effort to acquire sufficient
allocations in accordance with subdivisions 1 a and 1 b of this subsection, and
that such allocations are not reasonably available taking into account timing,
cost and other relevant factors. Such demonstration may include, but not be
limited to, providing a record of solicitation, or other demonstration that
point source allocations or nonpoint source allocations are not available for
sale in the tributary in which the permittee is located.
4. Annual allocation acquisitions from the Water Quality
Improvement Fund. The cost for each pound of nitrogen and each pound of
phosphorus shall be determined at the time payment is made to the WQIF, based
on the higher of (i) the estimated cost of achieving a reduction of one pound
of nitrogen or phosphorus at the facility that is securing the allocation, or
comparable facility, for each pound of allocation acquired; or (ii) the average
cost, as determined by the Department of Conservation and Recreation on an
annual basis, of reducing two pounds of nitrogen or phosphorus from nonpoint
sources in the same tributary for each pound of allocation acquired.
Part III
Conditions Applicable To All VPDES Permits
A. Duty to comply. The permittee must comply with all
conditions of the permit. Any permit noncompliance constitutes a violation of
the law and the Clean Water Act, except that noncompliance with certain
provisions of the permit may constitute a violation of the law but not the
Clean Water Act. Permit noncompliance is grounds for enforcement action; for
permit termination, revocation and reissuance, or modification; or denial of a
permit renewal application.
B. Duty to register for reissued general permit. If the
permittee wishes to continue an activity regulated by the general permit after
its expiration date, the permittee must register for coverage under the new
general permit, when it is reissued by the department.
C. Need to halt or reduce activity not a defense. It shall
not be a defense for a permittee in an enforcement action that it would have
been necessary to halt or reduce the permitted activity in order to maintain
compliance with the conditions of the permit.
D. Duty to mitigate. The permittee shall take all reasonable
steps to minimize or prevent any discharge in violation of the permit that has
a reasonable likelihood of adversely affecting human health or the environment.
E. Proper operation and maintenance. The permittee shall at
all times properly operate and maintain all facilities and systems of treatment
and control (and related appurtenances) that are installed or used by the
permittee to achieve compliance with the conditions of the permit. Proper
operation and maintenance also includes adequate laboratory controls and
appropriate quality assurance procedures. This provision requires the operation
of back-up or auxiliary facilities or similar systems that are installed by a
permittee only when the operation is necessary to achieve compliance with the
conditions of the permit.
F. Permit actions. Permits may be modified, revoked and
reissued, or terminated for cause. The filing of a request by the permittee for
a permit modification, revocation and reissuance, or termination, or a
notification of planned changes or anticipated noncompliance does not stay any
permit condition.
G. Property rights. Permits do not convey any property rights
of any sort, or any exclusive privilege.
H. Duty to provide information. The permittee shall furnish
to the department, within a reasonable time, any information that the board may
request to determine whether cause exists for modifying, revoking and
reissuing, or terminating the permit or to determine compliance with the
permit. The board may require the permittee to furnish, upon request, such
plans, specifications, and other pertinent information as may be necessary to
determine the effect of the wastes from his discharge on the quality of state
waters, or such other information as may be necessary to accomplish the
purposes of the law. The permittee shall also furnish to the department upon
request, copies of records required to be kept by the permit, pertaining to
activities related to the permitted facility.
I. Inspection and entry. The permittee shall allow the
director, or an authorized representative (including an authorized contractor
acting as a representative of the administrator), upon presentation of
credentials and other documents as may be required by law, to:
1. Enter upon the permittee's premises where a regulated
facility or activity is located or conducted, or where records must be kept
under the conditions of the permit;
2. Have access to and copy, at reasonable times, any records
that must be kept under the conditions of the permit;
3. Inspect at reasonable times any facilities, equipment
(including monitoring and control equipment), practices, or operations regulated
or required under the permit; and
4. Sample or monitor at reasonable times, for the purposes of
assuring permit compliance or as otherwise authorized by the Clean Water Act
and the law, any substances or parameters at any location.
J. Monitoring and records.
1. Samples and measurements taken for the purpose of
monitoring shall be representative of the monitored activity.
2. The permittee shall retain records of all monitoring
information, including all calibration and maintenance records and all original
strip chart recordings for continuous monitoring instrumentation, copies of all
reports required by the permit, and records of all data used to complete the
application for the permit, for a period of at least three years from the date
of the sample, measurement, report or application. This period of retention
shall be extended automatically during the course of any unresolved litigation
regarding the regulated activity or regarding control standards applicable to
the permittee, or as requested by the board.
3. Records of monitoring information shall include:
a. The date, exact place, and time of sampling or
measurements;
b. The individual(s) who performed the sampling or
measurements;
c. The date(s) analyses were performed;
d. The individual(s) who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
4. Monitoring results must be conducted according to test
procedures approved under 40 CFR Part 136 (2006) or alternative EPA-approved
methods, unless other test procedures have been specified in the permit.
K. Signatory requirements. All applications, reports, or
information submitted to the department shall be signed and certified as
required by 9VAC25-31-110.
L. Reporting requirements.
1. The permittee shall give notice to the department as soon
as possible of any planned physical alterations or additions to the permitted
facility. Notice is required only when:
a. The alteration or addition to a permitted facility may meet
one of the criteria for determining whether a facility is a new source in
9VAC25-31-180 A; or
b. The alteration or addition could significantly change the
nature or increase the quantity of pollutants discharged. This notification
applies to pollutants that are subject neither to effluent limitations in the
permit, nor to notification requirements under 9VAC25-31-200 A 1.
2. The permittee shall give advance notice to the department
of any planned changes in the permitted facility or activity that may result in
noncompliance with permit requirements.
3. Permits are not transferable to any person except after
notice to the department. The board may require modification or revocation and
reissuance of permits to change the name of the permittee and incorporate such
other requirements as may be necessary under the law or the Clean Water Act.
4. Monitoring results shall be reported at the intervals
specified in the permit.
a. Monitoring results must be reported on a Discharge
Monitoring Report (DMR).
b. If the permittee monitors any pollutant specifically
addressed by the permit more frequently than required by the permit using test
procedures approved under 40 CFR Part 136 (2006), or as specified in the
permit, the results of this monitoring shall be included in the calculation and
reporting of the data submitted in the DMR specified by the department.
c. Calculations for all limitations that require averaging of
measurements shall utilize an arithmetic mean unless otherwise specified in the
permit.
5. Reports of compliance or noncompliance with, or any
progress reports on, interim and final requirements contained in any compliance
schedule of the permit shall be submitted no later than 14 days following each
schedule date.
6. If any unusual or extraordinary discharge including a
bypass or upset should occur from a facility and such discharge enters or could
be expected to enter state waters, the owner shall promptly notify, in no case
later than 24 hours, the department by telephone after the discovery of such
discharge. This notification shall provide all available details of the
incident, including any adverse affects on aquatic life and the known number of
fish killed. The permittee shall reduce the report to writing and shall submit
it to the department within five days of discovery of the discharge in
accordance with subdivision 7 a of this subsection. Unusual and extraordinary
discharges include but are not limited to any discharge resulting from:
a. Unusual spillage of materials resulting directly or
indirectly from processing operations;
b. Breakdown of processing or accessory equipment;
c. Failure or taking out of service of the treatment work or
auxiliary facilities (such as sewer lines or wastewater pump stations); and
d. Flooding or other acts of nature.
7. Twenty-four-hour reporting.
a. The permittee shall report any noncompliance that may
endanger health or the environment. Any information shall be provided orally
within 24 hours from the time the permittee becomes aware of the circumstances.
A written submission shall also be provided within five days of the time the
permittee becomes aware of the circumstances. The written submission shall
contain a description of the noncompliance and its cause; the period of
noncompliance, including exact dates and times, and if the noncompliance has
not been corrected, the anticipated time it is expected to continue; and steps
taken or planned to reduce, eliminate, and prevent reoccurrence of the
noncompliance.
b. The following shall be included as information that must be
reported within 24 hours under this subdivision.
(1) Any unanticipated bypass that exceeds any effluent
limitation in the permit.
(2) Any upset that exceeds any effluent limitation in the
permit.
(3) Violation of a maximum daily discharge limitation for any
of the pollutants listed in the permit to be reported within 24 hours.
c. The board may waive the written report on a case-by-case
basis for reports under this subdivision if the oral report has been received
within 24 hours.
8. The permittee shall report all instances of noncompliance
not reported under subdivisions 4, 5, 6, and 7 of this subsection, in writing
at the time the next monitoring reports are submitted. The reports shall
contain the information listed in subdivision 7 of this subsection.
9. Where the permittee becomes aware that it failed to submit
any relevant facts in a permit application, or submitted incorrect information
in a permit application or in any report to the department, it shall promptly
submit such facts or information.
M. Bypass.
1. The permittee may allow any bypass to occur that does not
cause effluent limitations to be exceeded, but only if it also is for essential
maintenance to assure efficient operation. These bypasses are not subject to
the provisions of subdivisions 2 and 3 of this subsection.
2. Notice.
a. Anticipated bypass. If the permittee knows in advance of
the need for a bypass, it shall submit prior notice, if possible at least 10
days before the date of the bypass.
b. Unanticipated bypass. The permittee shall submit notice of
an unanticipated bypass as required in subdivision L 7 of this section (24-hour
notice).
3. Prohibition of bypass.
a. Bypass is prohibited, and the board may take enforcement
action against a permittee for bypass, unless:
(1) Bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as
the use of auxiliary treatment facilities, retention of untreated wastes, or
maintenance during normal periods of equipment downtime. This condition is not
satisfied if adequate back-up equipment should have been installed in the
exercise of reasonable engineering judgment to prevent a bypass that occurred
during normal periods of equipment downtime or preventive maintenance; and
(3) The permittee submitted notices as required under
subdivision 2 of this subsection.
b. The board may approve an anticipated bypass, after
considering its adverse effects, if the board determines that it will meet the
three conditions listed above in subdivision 3 a of this subsection.
N. Upset.
1. An upset constitutes an affirmative defense to an action
brought for noncompliance with such technology-based permit effluent
limitations if the requirements of subdivision 2 of this subsection are met. No
determination made during administrative review of claims that noncompliance
was caused by upset, and before an action for noncompliance, is final
administrative action subject to judicial review.
2. A permittee who wishes to establish the affirmative defense
of upset shall demonstrate, through properly signed, contemporaneous operating
logs, or other relevant evidence that:
a. An upset occurred and that the permittee can identify the
cause(s) of the upset;
b. The permitted facility was at the time being properly
operated;
c. The permittee submitted notice of the upset as required in
subdivision L 7 b (2) of this section (24-hour notice); and
d. The permittee complied with any remedial measures required
under subsection D of this section.
3. In any enforcement proceeding, the permittee seeking to
establish the occurrence of an upset has the burden of proof.
9VAC25-820-80. Facilities subject to reduced individual
total nitrogen and total phosphorus waste load allocations.
The facilities identified in this section are subject to
reduced individual total nitrogen and total phosphorus waste load allocations
as indicated.
|
Facility
|
Registration No.
|
Basin
|
Parameter
|
|
Caroline Co. Regional STP
|
VAN030045
|
York
|
TP
|
|
Gordonsville STP
|
VAN030046
|
York
|
TP
|
|
Hanover County Aggregate
|
VAN030051
|
York
|
TP
|
|
White Birch Paper - Bear Island LLC Division
|
VAN030133
|
York
|
TP
|
|
Western Refinery - Yorktown
|
VAN030047
|
York
|
TP
|
|
HRSD York River Aggregate
|
VAN030052
|
York
|
TP
|
|
Parham Landing WWTP
|
VAN030048
|
York
|
TP
|
|
Smurfit Stone
|
VAN030049
|
York
|
TP
|
|
HRSD James River Aggregate
|
VAN040090
|
James
|
TN
|
VA.R. Doc. No. R10-2123; Filed May 4, 2011, 10:05 a.m.
w –––––––––––––––––– w
TITLE 10. FINANCE AND FINANCIAL INSTITUTIONS
STATE CORPORATION COMMISSION
Proposed Regulation
REGISTRAR'S NOTICE:
The State Corporation Commission is exempt from the Administrative Process Act
in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts
courts, any agency of the Supreme Court, and any agency that by the
Constitution is expressly granted any of the powers of a court of record.
Title of Regulation: 10VAC5-210. Motor Vehicle Title
Lending (amending 10VAC5-210-30, 10VAC5-210-50,
10VAC5-210-60, 10VAC5-210-90; adding 10VAC5-210-95).
Statutory Authority: §§ 6.2-2214 and 12.1-13 of the
Code of Virginia.
Public Hearing Information: A public hearing will be
held upon request.
Public Comment Deadline: June 6, 2011.
Agency Contact: Gerald Fallen, Deputy Commissoner,
Bureau of Financial Institutions, State Corporation Commission, P.O. Box 640,
Richmond, VA 23218, telephone (804) 371-9699, FAX (804) 371-9416, or email
gerald.fallen@scc.virginia.gov.
Summary:
The State Corporation Commission is proposing changes to
10VAC5-210, which apply to motor vehicle title lenders licensed under Chapter
22 (§ 6.2-2200 et seq.) of Title 6.2 of the Code of Virginia. Effective
July 1, 2011, Chapter 418 of the 2011 Acts of Assembly eliminates various
provisions in Chapter 22 that currently prohibit motor vehicle title lenders
from making loans secured by motor vehicles registered outside of Virginia. Accordingly,
the commission is proposing conforming amendments. The commission is also
proposing a regulation prescribing the annual fees to be paid by motor vehicle
title lenders licensed under Chapter 22 that will defray the costs of the
examination, supervision, and regulation of licensees. Lastly, the commission
is proposing to add clarification regarding motor vehicle title loans that have
been arranged or brokered by another person. The proposed regulations have a
proposed effective date of July 1, 2011, to coincide with the effective date of
Chapter 418.
AT RICHMOND, APRIL 29, 2011
COMMONWEALTH OF VIRGINIA, ex rel.
STATE CORPORATION COMMISSION
CASE NO. BFI-2011-00025
Ex Parte: In re: amendments to
motor vehicle title lending regulations
ORDER TO TAKE NOTICE
Section 6.2-2214 of the Code of Virginia provides that the
State Corporation Commission ("Commission") shall adopt such
regulations as it deems appropriate to effect the purposes of Chapter 22
(§ 6.2-2200 et seq.) of Title 6.2 of the Code of Virginia ("Chapter
22"). The Commission's motor vehicle title lending regulations are set
forth in Title 10 of the Virginia Administrative Code.
The Bureau of Financial Institutions ("Bureau") has
submitted to the Commission proposed amendments to 10 VAC 5-210-10 et
seq. of the Virginia Administrative Code ("Chapter 210"). The
primary impetus for the proposed amendments is Chapter 418 of the
2011 Virginia Acts of Assembly ("Chapter 418"), which
becomes effective on July 1, 2011. Chapter 418 amends Chapter 22 by eliminating
provisions that currently prohibit motor vehicle title lenders from making
loans secured by motor vehicles that are registered outside of Virginia.
The Bureau is also proposing to add a new section to Chapter
210 based on § 6.2-2213 of the Code of Virginia, which requires licensed
motor vehicle title lenders to pay an annual fee calculated in accordance with
a schedule set by the Commission. The annual fee will defray the costs of the
examination, supervision, and regulation of licensees under Chapter 22. The
schedule is required to bear a reasonable relationship to the business volume
of such licensees, the actual costs of their examinations, and other factors
relating to their supervision and regulation.
Lastly, the Bureau is proposing to add a clarification to 10
VAC 5-210-50 regarding motor vehicle title loans that have been arranged or
brokered by another person.
NOW THE COMMISSION, based on the information supplied by the
Bureau, is of the opinion and finds that the proposed regulations should be
considered for adoption with a proposed effective date of July 1, 2011, in
order to coincide with the effective date of Chapter 418.
Accordingly, IT IS ORDERED THAT:
(1) The proposed regulations are appended hereto and
made a part of the record herein.
(2) Comments or requests for a hearing on the proposed
regulations must be submitted in writing to Joel H. Peck, Clerk, State
Corporation Commission, c/o Document Control Center, P.O. Box 2118,
Richmond, Virginia 23218, on or before June 6, 2011. Requests for a hearing
shall state why a hearing is necessary and why the issues cannot be adequately
addressed in written comments. All correspondence shall contain a reference to
Case No. BFI-2011-00025. Interested persons desiring to submit comments or request
a hearing electronically may do so by following the instructions available at
the Commission's website: http://www.scc.virginia.gov/case.
(3) This Order and the attached proposed regulations
shall be posted on the Commission's website at http://www.scc.virginia.gov/case.
(4) The Commission's Division of Information Resources
shall send a copy of this Order, including a copy of the attached proposed
regulations, to the Virginia Registrar of Regulations for publication in the Virginia
Register of Regulations.
AN ATTESTED COPY hereof, together with a copy of the proposed
regulations, shall be sent by the Clerk of the Commission to the Commission's
Office of General Counsel and the Commissioner of Financial Institutions, who
shall send a copy of this Order, together with a copy of the proposed
regulations, to all licensed motor vehicle title lenders and other interested
parties designated by the Bureau.
10VAC5-210-30. Notice and pamphlet.
A. Prior to furnishing a prospective borrower with a loan
application or receiving any information relating to loan qualification, a
licensee shall provide the prospective borrower with (i) a written notice that
complies with subsection B of this section; and (ii) a borrower rights and
responsibilities pamphlet that complies with subsections C and D of this
section.
B. 1. The required text of the written notice shall be as
follows: "WARNING: A motor vehicle title loan is not intended to meet your
long-term financial needs. The interest rate on a motor vehicle title loan is
high and you are pledging your motor vehicle as collateral for the loan. If you
fail to repay your loan in accordance with your loan agreement, we may
repossess and sell your motor vehicle. You should consider whether there are other
lower cost loans available to you. If you obtain a motor vehicle title loan,
you should request the minimum loan amount required to meet your immediate
needs." A licensee shall not modify or supplement the required text of the
written notice.
2. The written notice shall be printed on a single 8-1/2 x 11
sheet of paper and be separate from all other papers, documents, or notices
obtained or furnished by the licensee. The notice shall be printed in at least
24-point bold type and contain an acknowledgment that is signed and dated by
each prospective borrower. The acknowledgement shall state the following:
"I acknowledge that I have received a copy of this notice and the pamphlet
entitled "Motor Vehicle Title Lending in the Commonwealth of Virginia -
Borrower Rights and Responsibilities."
3. A duplicate original of the acknowledged notice shall be
kept by a licensee in the separate file maintained with respect to the loan for
the period specified in § 6.2-2209 of the Code of Virginia.
C. The borrower rights and responsibilities pamphlet shall be
printed in at least 12-point type and be separate from all other papers,
documents, or notices obtained or furnished by the licensee. The pamphlet shall
contain the exact language prescribed in subsection D of this section. A
licensee shall not modify or supplement the required text of the pamphlet. The
title of the pamphlet ("Motor Vehicle Title Lending in the Commonwealth of
Virginia - Borrower Rights and Responsibilities") and the headings for the
individual sections of the pamphlet (e.g., "In General," "Notice
from Lender," etc.) shall be printed in bold type.
D. The required text of the borrower rights and
responsibilities pamphlet shall be as follows:
MOTOR VEHICLE TITLE LENDING IN THE COMMONWEALTH OF VIRGINIA
BORROWER RIGHTS AND RESPONSIBILITIES
Please take the time to carefully review the information
contained in this pamphlet. It is designed to advise you of your rights and
responsibilities in connection with obtaining a motor vehicle title loan in
Virginia under Chapter 22 (§ 6.2-2200 et seq.) of Title 6.2 of the Code of
Virginia.
If you have any questions about motor vehicle title lending
or want additional information, you may contact the Virginia State Corporation
Commission's Bureau of Financial Institutions toll-free at (800) 552-7945 or on
the Internet at http://www.scc.virginia.gov/bfi.
In General: You are responsible for evaluating whether
a motor vehicle title loan is right for you. Alternatives may include among other
things less expensive short-term financing from another financial institution,
family, or friends, a cash advance on a credit card, or an account with
overdraft protection.
Notice from Lender: A motor vehicle title lender is
required to provide you with a clear and conspicuous printed notice advising
you that a motor vehicle title loan is not intended to meet your long-term
financial needs; that the interest rate on a motor vehicle title loan is high;
and that if you fail to repay your loan in accordance with your loan agreement,
the motor vehicle title lender may repossess and sell your motor vehicle.
Prohibition on Obtaining Loan if Motor Vehicle has
Existing Lien / One Loan at a Time: Virginia law prohibits a motor vehicle
title lender from making a motor vehicle title loan to you if (i) your
certificate of title indicates that your motor vehicle is security for another
loan or has an existing lien; or (ii) you currently have another motor vehicle
title loan from either the same motor vehicle title lender or any other motor
vehicle title lender conducting a motor vehicle title lending business in
Virginia.
Prohibition on Obtaining Loan on Same Day Another Loan was
Repaid: Virginia law prohibits a motor vehicle title lender from making a
motor vehicle title loan to you on the same day that you repaid or satisfied in
full a motor vehicle title loan from either the same motor vehicle title lender
or any other motor vehicle title lender conducting a motor vehicle title
lending business in Virginia.
Prohibition on Loans to Covered Members of the Armed
Forces and their Dependents: Virginia law prohibits a motor vehicle title
lender from making motor vehicle title loans to covered members of the armed
forces and their dependents. If you are (i) on active duty under a call or
order that does not specify a period of 30 days or less; or (ii) on active
guard and reserve duty, then you are a covered member of the armed forces and a
motor vehicle title lender is prohibited from making a motor vehicle title loan
to you. A motor vehicle title lender is also prohibited from making a motor
vehicle title loan to you if (i) you are married to a covered member of the
armed forces; (ii) you are the child, as defined in 38 USC § 101(4), of a
covered member of the armed forces; or (iii) more than one-half of your support
during the past 180 days was provided by a covered member of the armed forces.
Certificate of Title / Other Security Interests: Prior
to obtaining a motor vehicle title loan, you will be required to give a motor
vehicle title lender the certificate of title for your motor vehicle. The motor
vehicle title lender is required to record its lien with the Virginia
Department of Motor Vehicles motor vehicle department in the state where
your motor vehicle is registered and hold the certificate of title until
your loan is repaid or satisfied in full. The motor vehicle title lender cannot
take an interest in more than one motor vehicle as security for a motor vehicle
title loan. Apart from your motor vehicle and any accessories that are attached
to it, the motor vehicle title lender cannot take an interest in any other
property you own as security for a motor vehicle title loan.
Maximum Loan Amount: A motor vehicle title lender
cannot loan you more than 50% of the fair market value of your motor vehicle.
The fair market value is generally based on the loan value for your motor
vehicle according to a recognized pricing guide.
Minimum and Maximum Loan Term / Monthly Payments:
Under Virginia law, your loan term cannot be either less than 120 days or more
than 12 months. Your motor vehicle title loan will be repayable in
substantially equal monthly installments of principal and interest. However, if
you have a longer first payment period, your first monthly payment may be larger
than your remaining monthly payments.
Interest and Other Loan Costs: The following are the
maximum interest rates that a motor vehicle title lender is permitted to charge
you PER MONTH on the principal amount of your loan that remains outstanding:
(i) 22% per month on the portion of the outstanding balance up to and including
$700; (ii) 18% per month on the portion of the outstanding balance between $701
$700.01 and $1,400; and (iii) 15% per month on the portion of the
outstanding balance of $1,401 $1,400.01 and higher. As long as
these maximum rates are not exceeded, a motor vehicle title lender is allowed
to accrue interest using a single blended interest rate if the initial
principal is higher than $700. In addition to interest, a motor vehicle title lender
may charge you for the actual cost of recording its lien with the Virginia
Department of Motor Vehicles motor vehicle department in the state where
your motor vehicle is registered.
If you make a payment more than seven calendar days after its
due date, a motor vehicle title lender may impose a late charge of up to five
percent of the amount of the payment.
A motor vehicle title lender is prohibited from accruing or
charging you interest on or after (i) the date the motor vehicle title lender
repossesses your motor vehicle; or (ii) 60 days after you fail to make a
monthly payment on your loan, unless you are hiding your motor vehicle.
Other than interest and the costs specifically mentioned in
this section and the section below ("Costs of Repossession and
Sale"), no additional amounts may be directly or indirectly charged,
contracted for, collected, received, or recovered by a motor vehicle title
lender.
Costs of Repossession and Sale: A motor vehicle title
lender may charge you for any reasonable costs that it incurs in repossessing,
preparing for sale, and selling your motor vehicle if (i) you default on your
motor vehicle title loan; (ii) the motor vehicle title lender sends you a
written notice at least 10 days prior to repossession advising you that your
motor vehicle title loan is in default and that your motor vehicle may be
repossessed unless you pay the outstanding principal and interest; and (iii)
you fail to pay the amount owed prior to the date of repossession. A motor
vehicle title lender is prohibited from charging you for any storage costs if
the motor vehicle title lender takes possession of your motor vehicle.
Written Loan Agreement: A motor vehicle title lender
must provide you with a written loan agreement, which must be signed by both you
and an authorized representative of the motor vehicle title lender. Your motor
vehicle title loan agreement is a binding, legal document that requires you to
repay your loan. Make sure you read the entire loan agreement carefully before
signing and dating it. A motor vehicle title lender must provide you with a
duplicate original of your loan agreement at the time you sign it. If any
provision of your loan agreement violates Chapter 22 (§ 6.2-2200 et seq.)
of Title 6.2 of the Code of Virginia, the provision will not be enforceable
against you.
Property Insurance: A motor vehicle title lender may
require you to purchase or maintain property insurance for your motor vehicle.
However, a motor vehicle title lender cannot require you to purchase or
maintain property insurance from or through a particular provider or list of
providers.
Prohibition on Obtaining Funds Electronically: A motor
vehicle title lender is prohibited from electronically debiting your deposit account
or obtaining any of your funds by electronic means.
Loan Proceeds: You will receive your loan proceeds in
the form of (i) cash; (ii) a check from the motor vehicle title lender; or
(iii) a debit card. If you receive a check, the motor vehicle title lender is
prohibited from charging you a fee for cashing the check. Similarly, a check
casher located in the same office as the motor vehicle title lender is
prohibited from charging you a fee for cashing the motor vehicle title lender's
check. If you receive a debit card, the motor vehicle title lender is
prohibited from charging you an additional fee when you withdraw or use the
loan proceeds.
Other Businesses: A motor vehicle title lender is
prohibited from engaging in any other businesses in its motor vehicle title
loan offices unless permitted by order of the State Corporation Commission. A
motor vehicle title lender is also prohibited by statute from selling you any
type of insurance coverage.
Using Motor Vehicle Title Loan to Purchase Products or Services
or Repay Other Loans: A motor vehicle title lender is prohibited from
making you a motor vehicle title loan so that you can purchase another product
or service sold at the motor vehicle title lender's business location. A motor
vehicle title lender is also prohibited from making you a motor vehicle title
loan so that you can repay another loan you may have from either the motor
vehicle title lender or an affiliate of the motor vehicle title lender.
Right to Cancel: You have the right to cancel your motor
vehicle title loan at any time prior to the close of business on the next day
the motor vehicle title lender is open following the date your loan is made by
either returning the original loan proceeds check or paying the motor vehicle
title lender the amount advanced to you in cash or by certified check,
cashier's check, money order or, if the motor vehicle title lender is equipped
to handle and willing to accept such payments, by using a credit card. If you
cancel your motor vehicle title loan, the motor vehicle title lender must mark
your original loan agreement with the word "canceled" and return it
to you along with your certificate of title.
Cash Payments / Partial Payments / Prepayments: You
have the right to receive a signed, dated receipt for each cash payment made in
person, which will show the balance remaining on your motor vehicle title loan.
Additionally, you have the right to make a partial payment on
your motor vehicle title loan at any time prior to its specified due date
without penalty. However, a motor vehicle title lender may apply a partial
payment first to any amounts that are due and unpaid at the time of such
payment. If your motor vehicle title loan is current, a partial payment will
reduce your outstanding balance as well as the total amount of interest that
you will be required to pay.
You also have the right to prepay your motor vehicle title
loan in full before its specified maturity date without penalty by paying the
motor vehicle title lender the total outstanding balance on your loan,
including any accrued and unpaid interest and other charges that you may owe on
your motor vehicle title loan.
Lender to Return Original Loan Agreement and Certificate
of Title: Within 10 days after the date that you repay your motor vehicle
title loan in full, the motor vehicle title lender must (i) mark your original
loan agreement with the word "paid" or "canceled" and
return it to you; (ii) take any action necessary to reflect the termination of
its lien on your motor vehicle's certificate of title; and (iii) return the
certificate of title to you. If you have any questions or concerns regarding
your certificate of title, you should contact the Virginia Department of
Motor Vehicles motor vehicle department in the state where your motor
vehicle is registered.
No Rollovers, Extensions, Etc.: A motor vehicle title
lender cannot refinance, renew, extend, or rollover your motor vehicle title
loan.
Failure to Repay: Pay back your motor vehicle title
loan! Know when your payments are due and be sure to repay your motor vehicle
title loan on time and in full. IF YOU DO NOT REPAY YOUR MOTOR VEHICLE TITLE
LOAN IN ACCORDANCE WITH YOUR LOAN AGREEMENT, THE MOTOR VEHICLE TITLE LENDER MAY
REPOSSESS AND SELL YOUR MOTOR VEHICLE (see section below on "Repossession
and Sale of your Motor Vehicle").
In general, a motor vehicle title lender cannot seek a
personal money judgment against you if you fail to pay any amount owed in
accordance with your loan agreement. However, a motor vehicle title lender may
seek a personal money judgment against you if you impair the motor vehicle
title lender's security interest by (i) intentionally damaging or destroying
your motor vehicle; (ii) intentionally hiding your motor vehicle; (iii) giving
the motor vehicle title lender a lien on a motor vehicle that has an
undisclosed prior lien; (iv) selling your motor vehicle without the motor
vehicle title lender's written consent; or (v) securing another loan or
obligation with a security interest in your motor vehicle without the motor vehicle
title lender's written consent.
In collecting or attempting to collect a motor vehicle title
loan, a motor vehicle title lender is required to comply with the restrictions
and prohibitions applicable to debt collectors contained in the Fair Debt Collection
Practices Act, 15 USC § 1692 et seq., regarding harassment or abuse;
false, misleading or deceptive statements or representations; and unfair
practices in collections. A motor vehicle title lender is also prohibited from
threatening or beginning criminal proceedings against you if you fail to pay
any amount owed in accordance with your loan agreement.
Repossession and Sale of your Motor Vehicle: If you do
not repay your motor vehicle title loan in accordance with your loan agreement,
the motor vehicle title lender may repossess and sell your motor vehicle in
order to recover any outstanding amounts that you owe.
If a motor vehicle title lender repossesses your motor
vehicle, the motor vehicle title lender must send you a written notice at least
15 days prior to the sale of your motor vehicle. The notice will contain (i)
the date and time after which your motor vehicle may be sold; and (ii) a
written accounting of the outstanding balance on your motor vehicle title loan,
the amount of interest accrued through the date the motor vehicle title lender
took possession of your motor vehicle, and any reasonable costs incurred to
date by the motor vehicle title lender in connection with repossessing,
preparing for sale, and selling your motor vehicle. At any time prior to the
sale of your motor vehicle, you may obtain your motor vehicle by paying the
motor vehicle title lender the total amount specified in the notice. Payment
must be made in cash or by certified check, cashier's check, money order or, if
the motor vehicle title lender is equipped to handle and willing to accept such
payments, by using a credit card.
Within 30 days of a motor vehicle title lender receiving
funds from the sale of your motor vehicle, you are entitled to receive any
surplus from the sale in excess of the sum of the following: (i) the
outstanding balance on your motor vehicle title loan; (ii) the amount of
interest accrued on your motor vehicle title loan through the date the motor
vehicle title lender repossessed your motor vehicle; and (iii) any reasonable
costs incurred by the motor vehicle title lender in repossessing, preparing for
sale, and selling your motor vehicle.
See section above on "Costs of Repossession and
Sale" for additional information regarding the conditions that must be met
in order for a motor vehicle title lender to collect the reasonable costs of
repossessing, preparing for sale, and selling your motor vehicle.
Violation of the Virginia Consumer Protection Act:
Losses suffered as the result of a motor vehicle title lender's violation of
Chapter 22 (§ 6.2-2200 et seq.) of Title 6.2 of the Code of Virginia may
be pursued under the Virginia Consumer Protection Act (§ 59.1-196 et seq.
of the Code of Virginia), which in some cases permits consumers to recover
actual and punitive damages.
Complaints and Contacting the Bureau of Financial
Institutions: For assistance with any complaints you may have against a
motor vehicle title lender, please contact the Bureau of Financial Institutions
toll-free at (800) 552-7945 or on the Internet at
http://www.scc.virginia.gov/bfi. Complaints must be filed in writing with the
Bureau of Financial Institutions. Complaints should be mailed to the Bureau of
Financial Institutions, Attn: Complaints, P.O. Box 640, Richmond, Virginia
23218-0640, or faxed to the Bureau of Financial Institutions, Attn: Complaints,
at (804) 371-9416.
10VAC5-210-50. Additional business requirements and
restrictions.
A. Each original license shall be prominently posted in each
place of business of the licensee.
B. A licensee shall post in or on its licensed locations the
days and hours during which it is open for business so that the posting is
legible from outside.
C. A licensee shall endeavor to provide the loan documents,
printed notice, and pamphlet required by 10VAC5-210-30, in a language other
than English when a prospective borrower is unable to read the materials
printed in English.
D. A licensee shall not knowingly make a motor vehicle title
loan to (i) a person who has an outstanding motor vehicle title loan from the
same licensee or another licensee; (ii) a covered member of the armed forces;
or (iii) a dependent of a covered member of the armed forces. To enable a
licensee to make these determinations and the determination in subsection F of
this section, a licensee shall clearly and conspicuously include the following
questions in its written loan application, which the licensee shall require
each applicant to answer before obtaining a motor vehicle title loan. A
licensee shall not make a motor vehicle title loan to an applicant unless the
applicant answers "no" to all of these questions:
1. Do you currently have a motor vehicle title loan from any
motor vehicle title lender?
2. At any time today, did you repay or satisfy in full a motor
vehicle title loan from any motor vehicle title lender?
3. Are you (i) on active duty in the armed forces under a call
or order that does not specify a period of 30 days or less, or (ii) on active
guard and reserve duty?
4. Are you married to an individual who is either (i) on
active duty in the armed forces under a call or order that does not specify a
period of 30 days or less, or (ii) on active guard and reserve duty?
5. Are you the child, as defined in 38 USC § 101(4), of
an individual who is either (i) on active duty in the armed forces under a call
or order that does not specify a period of 30 days or less, or (ii) on active
guard and reserve duty?
6. Was more than one-half of your support during the past 180 days
provided by an individual who is either (i) on active duty in the armed forces
under a call or order that does not specify a period of 30 days or less, or
(ii) on active guard and reserve duty?
E. A licensee shall not require a borrower to purchase or
maintain property insurance for a motor vehicle from or through a particular
provider or list of providers.
F. A licensee shall not knowingly make a motor vehicle title
loan to a borrower on the same day that the borrower repaid or satisfied in
full a motor vehicle title loan from the same licensee or another licensee. Any
motor vehicle title loan made in violation of this subsection shall for
purposes of subdivision 17 of § 6.2-2215 of the Code of Virginia be deemed
an evasion of the prohibition on refinancing a motor vehicle title loan
agreement set forth in § 6.2-2216 F of the Code of Virginia.
G. The maturity date of a motor vehicle title loan shall not
be earlier than 120 days from the date a motor vehicle title loan agreement is
executed by a borrower or later than 12 months from the date a motor vehicle
title loan agreement is executed by a borrower.
H. A licensee shall not electronically debit a borrower's
deposit account or otherwise obtain any funds from a borrower by electronic
means, including the use of the Automated Clearing House network, electronic
funds transfers, electronic check conversions, or re-presented check entries.
I. If a licensee disburses loan proceeds by means of a check,
the licensee shall not (i) charge the borrower a fee for cashing the check or
(ii) permit either a check casher located in the same office as the licensee or
any affiliated check casher to charge the borrower a fee for cashing the check.
J. A borrower shall have the right to cancel a motor vehicle
title loan agreement at any time before the close of business on the next
business day following the date that the loan agreement is executed by the
borrower by returning the original loan proceeds check or paying to the
licensee, in the form of cash or good funds instrument, the principal amount
advanced to the borrower. If a borrower cancels a loan agreement in accordance
with this subsection, the licensee shall upon receipt of the loan proceeds
check, cash, or good funds instrument (i) mark the original loan agreement with
the word "canceled," return it to the borrower, and retain a copy in
its records; and (ii) return the certificate of title to the borrower.
Furthermore, the licensee shall not be entitled to charge, contract for,
collect, receive, recover, or require a borrower to pay any interest, fees, or
other amounts otherwise permitted by § 6.2-2216 of the Code of Virginia.
K. A licensee shall give a borrower a signed, dated receipt
for each cash payment made in person, which shall state the balance due on the
loan.
L. A borrower shall be permitted to prepay a motor vehicle
title loan either in whole or in part without charge. Partial prepayments shall
reduce the outstanding loan balance upon which interest is calculated. A
licensee may apply a payment first to any amounts that are due and unpaid at
the time of such payment.
M. Pursuant to §§ 6.2-2215 and 46.2-643 of the Code
of Virginia, a A licensee shall release its security interest and
perform the following acts within 10 days after the date that a borrower's obligations
under a motor vehicle title loan agreement are satisfied in full: (i) mark the
original loan agreement with the word "paid" or "canceled,"
return it to the borrower, and retain a copy in its records; (ii) take any
action necessary to reflect the termination of its lien on the motor vehicle's
certificate of title; and (iii) return the certificate of title to the
borrower.
N. When sending the written notices and accounting specified
by § 6.2-2217 of the Code of Virginia, a licensee shall obtain proof of
mailing from the United States Postal Service or other common carrier.
O. A licensee may impose a late charge for failure to make
timely payment of any amount due under a motor vehicle title loan agreement
provided that (i) the late charge is specified in the loan agreement and (ii)
the amount of the late charge does not exceed 5.0% of the amount of the
payment. A payment shall be considered to be timely if it is made no later than
seven calendar days after the due date specified in the loan agreement.
P. Nothing in the Act or this chapter shall be construed to
prohibit a licensee from (i) voluntarily accepting a payment on an outstanding
motor vehicle title loan from a borrower after the date that such payment was
due to the licensee or (ii) considering a payment to be timely if it is made
more than seven calendar days after its due date. However, except as otherwise
permitted by the Act and this chapter, the licensee shall not charge, contract
for, collect, receive, recover, or require a borrower to pay any additional
interest, fees, or other amounts.
Q. Pursuant to subdivision 2 of § 6.2-2201 of the
Code of Virginia and subdivision 17 of § 6.2-2215 of the Code of Virginia,
a licensee shall not make a motor vehicle title loan that has been arranged or
brokered by another person. This provision shall not be construed to prohibit a
licensee from originating motor vehicle title loans through its own employees.
10VAC5-210-60. Annual reporting requirements.
When making the annual report required by § 6.2-2210 of
the Code of Virginia, in addition to other information required by the
commissioner, a licensee shall provide the following data regarding motor
vehicle title loans made to Virginia residents under the Act:
1. The total number and dollar amount of motor vehicle title
loans made by the licensee.
2. The total number of individual borrowers to whom motor
vehicle title loans were made by the licensee.
3. The minimum, maximum, and average loan amount of motor
vehicle title loans made by the licensee.
4. The minimum, maximum, and average Annual Percentage Rate of
motor vehicle title loans made by the licensee.
5. The minimum, maximum, and average term (in days) of motor
vehicle title loans made by the licensee.
6. The total number of individual borrowers that failed to
make a monthly payment on a motor vehicle title loan for at least 60 days.
7. The total number of motor vehicles that were repossessed by
or on behalf of the licensee.
8. The total number of repossessed motor vehicles that were
sold by or on behalf of the licensee.
9. The total number of personal money judgments against
borrowers that were obtained by or on behalf of the licensee along with a
breakdown of this total that identifies the number of judgments the licensee
pursued based on each of the following borrower actions: (i) intentionally
damaging or destroying a motor vehicle that secures a title loan; (ii)
intentionally concealing a motor vehicle that secures a title loan; (iii)
giving the licensee a lien on a motor vehicle that is already encumbered by an
undisclosed prior lien; and (iv) subsequently giving a security interest in, or
selling, a motor vehicle that secures a title loan to a third party, without
the licensee's written consent.
10VAC5-210-90. Books, accounts, and records; responding to
requests from the bureau.
A. A licensee shall maintain in its licensed offices such
books, accounts, and records as the bureau may reasonably require in order to
determine whether the licensee is complying with the Act and this chapter. Such
books, accounts, and records shall be maintained apart and separate from those
relating to any other business in which the licensee is involved.
B. In addition to any other books, accounts, and records as
the bureau may reasonably require, a licensee shall maintain copies of the
following records for at least three years after final payment is made on any
motor vehicle title loan:
1. The loan application.
2. The motor vehicle title loan agreement. If a loan has been repaid
or satisfied in full, a licensee shall maintain a copy of the motor vehicle
title loan agreement with the word "paid" or "canceled"
along with documentation showing that the licensee released its security
interest in the borrower's motor vehicle.
3. A record of the fair market value of the motor vehicle
securing the loan along with supporting documentation from a recognized pricing
guide. Supporting documentation shall include any factors used to determine the
value of the motor vehicle, including the motor vehicle's condition, features,
mileage, as well as the name of the pricing guide that the licensee relied upon
in making the loan.
4. Any disclosures that were given to a borrower pursuant to
the Truth in Lending Act (15 USC § 1601 et seq.) or any other federal or
state laws.
5. The certificate of title for the motor vehicle, which shall
reflect the licensee's security interest unless the borrower canceled or fully
satisfied the motor vehicle title loan prior to the licensee recording its
security interest with the Virginia Department of Motor Vehicles motor
vehicle department in the state where the motor vehicle is registered.
C. A licensee shall maintain a repossession log or similar
record of all motor vehicles that have been repossessed by or on behalf of the
licensee, including motor vehicles that are voluntarily surrendered by
borrowers. The log or record shall include the following information: (i) the
borrower's first and last name; (ii) the make, model, year, and vehicle
identification number of the motor vehicle; (iii) the date the motor vehicle
was repossessed; (iv) the date the motor vehicle was sold; (v) the name of the
purchaser; and (vi) the sale price of the motor vehicle. Furthermore, in
addition to any other books, accounts, and records as the bureau may reasonably
require, a licensee shall maintain copies of the following records for at least
three years after a motor vehicle used to secure a loan is repossessed and sold
by or on behalf of the licensee:
1. The written notices and accounting sent by the licensee to
a borrower pursuant to § 6.2-2217 of the Code of Virginia along with the
proof of mailing from the United States Postal Service or other common carrier.
2. Supporting documentation of the sale of the motor vehicle
and the proceeds derived from the sale.
3. The check or other method of payment used to deliver any
excess proceeds from the sale of the motor vehicle to a borrower.
D. A motor vehicle title lender shall retain for at least
three years after it is last published, delivered, transmitted, or made
available, an example of every advertisement used, including but not limited to
solicitation letters, commercial scripts, and recordings of all radio and
television broadcasts, but excluding copies of Internet web pages.
E. When the bureau requests a written response, books,
records, documentation, or other information from a licensee in connection with
the bureau's investigation, enforcement, or examination of compliance with
applicable laws, the licensee shall deliver a written response as well as any
requested books, records, documentation, or information within the time period
specified in the bureau's request. If no time period is specified, a written
response as well as any requested books, records, documentation, or information
shall be delivered by the licensee to the bureau not later than 30 days from
the date of such request. In determining the specified time period for
responding to the bureau and when considering a request for an extension of
time to respond, the bureau shall take into consideration the volume and
complexity of the requested written response, books, records, documentation, or
information, and such other factors as the bureau determines to be relevant
under the circumstances. Requests made by the bureau pursuant to this
subsection are deemed to be in furtherance of the investigation and examination
authority provided for in § 6.2-2212 of the Code of Virginia.
F. If a licensee disposes of records containing a consumer's
personal financial information following the expiration of any applicable
record retention periods, such records shall be shredded, incinerated, or
otherwise disposed of in a secure manner. Licensees may arrange for service
from a business record destruction vendor.
10VAC5-210-95. Schedule of annual fees for the examination,
supervision, and regulation of motor vehicle title lenders.
Pursuant to § 6.2-2213 of the Code of Virginia, the
commission sets the following schedule of annual fees to be paid by persons
licensed under the Act. The assessment defrays the costs of the examination,
supervision, and regulation of licensees by the bureau.
The annual fee shall be $500 per office plus $2.85 per
motor vehicle title loan made by each licensee. The annual fee shall be
computed on the basis of (i) the number of offices, authorized and opened, as
of December 31 of the year preceding the year of the assessment, and (ii) the
number of motor vehicle title loans made under the Act during the calendar year
preceding the year of the assessment.
The amount calculated using the above schedule shall be
rounded down to the nearest whole dollar.
Fees shall be assessed on or before September 15 for the
current calendar year. The assessment shall be paid by licensees on or before
October 15.
The annual report, due March 25 each year, of each
licensee provides the basis for its assessment (i.e., the number of offices and
motor vehicle title loans made). In cases where a license has been granted
between January 1 and September 15 of the year of the assessment, the licensee
shall pay $250 per office, authorized and opened, as of September 15 of that
year.
Fees prescribed and assessed pursuant to this schedule are
apart from, and do not include, the reimbursement for expenses authorized by
subsection B of § 6.2-2213 of the Code of Virginia.
VA.R. Doc. No. R11-2826; Filed May 2, 2011, 11:50 a.m.
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TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation
REGISTRAR'S NOTICE:
The Department of Medical Assistance Services is claiming an exclusion from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code
of Virginia, which excludes regulations that are necessary to conform to
changes in Virginia statutory law where no agency discretion is involved. The
Department of Medical Assistance Services will receive, consider, and respond
to petitions by any interested person at any time with respect to
reconsideration or revision.
Titles of Regulations: 12VAC30-70. Methods and
Standards for Establishing Payment Rates - Inpatient Hospital Services (amending 12VAC30-70-50, 12VAC30-70-271,
12VAC30-70-291, 12VAC30-70-331, 12VAC30-70-341, 12VAC30-70-420).
12VAC30-80. Methods and Standards for Establishing Payment
Rates; Other Types of Care (amending 12VAC30-80-20, 12VAC30-80-30,
12VAC30-80-190).
12VAC30-90. Methods and Standards for Establishing Payment
Rates for Long-Term Care (amending 12VAC30-90-36, 12VAC30-90-41).
Statutory Authority: §§ 32.1-324 and 32.1-325 of
the Code of Virginia.
Effective Date: July 1, 2011.
Agency Contact: Brian McCormick, Regulatory Supervisor,
Department of Medical Assistance Services, 600 East Broad Street, Suite 1300,
Richmond, VA 23219, telephone (804) 371-8856, FAX (804) 786-1680, or email
brian.mccormick@dmas.virginia.gov.
Background: The Department of Medical Assistance
Services (DMAS) implemented rate reductions effective July 1, 2010, affecting
many providers as required by the 2010 Appropriation Act. The Appropriation Act
also directed DMAS to reverse some of these rate reductions if Congress
extended through June 30, 2011, the additional federal funding for Medicaid
originally included in the American Recovery and Reinvestment Act of 2009. In
early August, Congress passed an extension of the federal funding but at a
lower level than originally anticipated. Based on the authority under
Item 297 KKKK of the 2010 Appropriation Act, the Governor authorized
modifications to the restorations consistent with available funding and
rescinded these rate cuts effective for dates of service from October 1, 2010,
through June 30, 2011. The 2011 Appropriation Act reversed some of the rate
changes and made some additional changes effective July 1, 2011. These 2010
rate changes were implemented based on mandates authorizing DMAS to make
reimbursement changes prior to completion of the regulatory process. The 2010
reimbursement changes will be retained in the regulation language for cost
settlement and appeal purposes until the settlement and appeal periods have
expired.
Summary:
12VAC30-70-50 is amended to eliminate the incentive plan
for long stay hospitals effective for dates of service July 1, 2010, to
September 30, 2010. Effective for dates of service on or after October 1, 2010,
the incentive plan will be reinstated. This change is mandated to comply with
Item 297 AAA as modified by the Governor under the authority in Item 297 KKKK
for dates of service October 1, 2010, through June 30, 2011.
12VAC30-70-271 is amended to reduce hospital inpatient
capital reimbursement from 75% to 72% of cost for Type Two hospitals effective
for dates of service July 1, 2010, to September 30, 2010. Effective for dates
of service October 1, 2010, through June 30, 2011, hospital capital
reimbursement will be reimbursed at 75% of cost for Type Two hospitals.
Effective July 1, 2011, hospital capital reimbursement will be decreased to 71%
of costs. Corresponding changes will be made for Type One hospitals and Type
Two hospitals with greater than 50% Medicaid utilization. These changes are
mandated by Item 297 HHHH as modified by the Governor under the authority in
Item 297 KKKK for dates of service October 1, 2010, through June 30, 2011.
12VAC30-70-291 is amended effective July 1, 2011, to
restore indirect medical education payments to hospitals with high Medicaid
neonatal intensive care unit utilization, excluding freestanding children's
hospitals. These changes are mandated in Item 297 MMM of the Appropriation Act.
12VAC30-70-331 and 12VAC30-70-341 are amended to reduce the
hospital adjustment factor for acute care and rehabilitation inpatient services
for Type Two hospitals from 78% to 75% of cost and the adjustment factor for
psychiatric inpatient hospital services from 84% to 81% of cost, effective for
dates of service July 1, 2010, to September 30, 2010. Effective for dates of
service on or after October 1, 2010, the hospital adjustment factor for acute
care and rehabilitation inpatient services for Type Two hospitals will be 78%
of cost and the adjustment factor for psychiatric inpatient hospital services
will be 84% of cost. Corresponding changes will be made for Type One hospitals.
These changes are mandated by Item 297 AAAA as modified by the Governor under
the authority in Item 297 KKKK for dates of service October 1, 2010, through
June 30, 2011.
12VAC30-70-420 is amended to reduce operating rates for
out-of-state non cost-reporting hospitals to the lesser of the home states
reimbursement or the statewide average of operating rates. This change is
mandated by Item 297 ZZZ of the Appropriation Act.
12VAC30-80-20 is amended to reduce outpatient hospital
reimbursement from 80% to 77% of cost, effective for dates of service July 1,
2010, to September 30, 2010. Effective for dates of service October 1, 2010,
through June 30, 2011, outpatient hospital reimbursement will be 80% of cost.
Effective July 1, 2011, outpatient hospital reimbursement will be reduced to
76% of cost. Corresponding changes will be made for Type One hospitals. These
changes are mandated by Item 297 BBBB as modified by the Governor under the
authority in Item 297 KKKK for dates of service October 1, 2010, through June
30, 2011.
12VAC30-80-30 is amended to establish supplemental payments
for physician practices affiliated with freestanding children's hospitals with
more than 50% Medicaid inpatient utilization in state fiscal year 2009 based on
the difference between the upper payment limit approved by the Centers for
Medicare and Medicaid Services and the reimbursement otherwise payable to
physicians effective July 1, 2011. DMAS added paragraph 17 to establish and
define this new supplemental payment. The first part of paragraph 17 defines
the group eligible for the payment, in accordance with Item 297 LLLL. The
second paragraph describes the formula used to calculate the payment based on
the requirements of the mandate. These changes are mandated by Item 297 LLLL.
12VAC30-80-190 is amended to reduce by 3.0%, the fees for
all procedures set through the RBRVS process effective for dates of service
July 1, 2010, to September 30, 2010. Effective for dates of service on or after
October 1, 2010, the 3.0% reduction to fees for all procedures set through the RBRVS
process will be rescinded. These changes are mandated by Item 297 CCCC as
modified by the Governor under the authority in Item 297 KKKK for dates of
service October 1, 2010, through June 30, 2011.
12VAC30-90-36 is amended to reduce the nursing facility
capital rental rate floor from 9.0% to 8.75% effective for dates of service
July 1, 2010, to September 30, 2010. Effective for dates of service October 1,
2010, through June 30, 2011, the nursing facility capital rental rate floor
will be 9.0%. Effective July 1, 2011, the nursing facility capital rental rate
floor will be reduced to 8.0%. These changes are mandated by Item 297 DDD 1c as
modified by the Governor under the authority in Item 297 KKKK for dates of
service October 1, 2010, through June 30, 2011.
12VAC30-90-41 is amended to reduce nursing facility
operating rates by 3.0% effective for dates of service July 1, 2010, to
September 30, 2010. Effective for dates of service on or after October 1, 2010,
the 3.0% decrease to nursing facility operating rates will be rescinded. These
changes are mandated by Item 297 DDD 1c as modified by the Governor under the
authority in Item 297 KKKK for dates of service October 1, 2010, through June
30, 2011.
12VAC30-70-50. Hospital reimbursement system.
The reimbursement system for hospitals includes the following
components:
A. Hospitals were grouped by classes according to number of
beds and urban versus rural. (Three groupings for rural - 0 to 100 beds, 101 to
170 beds, and over 170 beds; four groupings for urban - 0 to 100, 101 to 400,
401 to 600, and over 600 beds.) Groupings are similar to those used by the
Health Care Financing Administration (HCFA) in determining routine cost
limitations.
B. Prospective reimbursement ceilings on allowable operating
costs were established as of July 1, 1982, for each grouping. Hospitals with a
fiscal year end after June 30, 1982, were subject to the new reimbursement
ceilings.
The calculation of the initial group ceilings as of July 1,
1982, was based on available, allowable cost data for hospitals in calendar
year 1981. Individual hospital operating costs were advanced by a reimbursement
escalator from the hospital's year end to July 1, 1982. After this advancement,
the operating costs were standardized using SMSA wage indices, and a median was
determined for each group. These medians were readjusted by the wage index to
set an actual cost ceiling for each SMSA. Therefore, each hospital grouping has
a series of ceilings representing one of each SMSA area. The wage index is based
on those used by HCFA in computing its Market Basket Index for routine cost
limitations.
Effective July 1, 1986, and until June 30, 1988, providers
subject to the prospective payment system of reimbursement had their
prospective operating cost rate and prospective operating cost ceiling computed
using a new methodology. This method uses an allowance for inflation based on
the percent of change in the quarterly average of the Medical Care Index of the
Chase Econometrics - Standard Forecast determined in the quarter in which the
provider's new fiscal year began.
The prospective operating cost rate is based on the
provider's allowable cost from the most recent filed cost report, plus the
inflation percentage add-on.
The prospective operating cost ceiling is determined by using
the base that was in effect for the provider's fiscal year that began between
July 1, 1985, and June 1, 1986. The allowance for inflation percent of change
for the quarter in which the provider's new fiscal year began is added to this
base to determine the new operating cost ceiling. This new ceiling was
effective for all providers on July 1, 1986. For subsequent cost reporting
periods beginning on or after July 1, 1986, the last prospective operating rate
ceiling determined under this new methodology will become the base for
computing the next prospective year ceiling.
Effective on and after July 1, 1988, and until June 30, 1989,
for providers subject to the prospective payment system, the allowance for
inflation shall be based on the percent of change in the moving average of the
Data Resources, Incorporated Health Care Cost HCFA-Type Hospital Market Basket
determined in the quarter in which the provider's new fiscal year begins. Such
providers shall have their prospective operating cost rate and prospective
operating cost ceiling established in accordance with the methodology which
became effective July 1, 1986. Rates and ceilings in effect July 1, 1988, for
all such hospitals shall be adjusted to reflect this change.
Effective on or after July 1, 1989, for providers subject to
the prospective payment system, the allowance for inflation shall be based on
the percent of change in the moving average of the Health Care Cost HCFA-Type
Hospital Market Basket, adjusted for Virginia, as developed by Data Resources,
Incorporated, determined in the quarter in which the provider's new fiscal year
begins. Such providers shall have their prospective operating cost rate and
prospective operating cost ceiling established in accordance with the
methodology which became effective July 1, 1986. Rates and ceilings in effect
July 1, 1989, for all such hospitals shall be adjusted to reflect this change.
Effective on and after July 1, 1992, for providers subject to
the prospective payment system, the allowance for inflation, as described
above, which became effective on July 1, 1989, shall be converted to an
escalation factor by adding two percentage points, (200 basis points) to the
then current allowance for inflation. The escalation factor shall be applied in
accordance with the inpatient hospital reimbursement methodology in effect on
June 30, 1992. On July 1, 1992, the conversion to the new escalation factor
shall be accomplished by a transition methodology which, for non-June 30 year
end hospitals, applies the escalation factor to escalate their payment rates
for the months between July 1, 1992, and their next fiscal year ending on or
before May 31, 1993.
Effective July 1, 2010, through June 30, 2012, the escalation
factor shall be zero. In addition, ceilings shall remain at the same level as
the ceilings for long stay hospitals with fiscal year's end of June 30, 2010.
Effective July 1, 2009, the escalation factor shall be equal
to the allowance for inflation.
The new method will still require comparison of the
prospective operating cost rate to the prospective operating ceiling. The
provider is allowed the lower of the two amounts subject to the lower of cost
or charges principles.
C. Subsequent to June 30, 1992, the group ceilings shall not
be recalculated on allowable costs, but shall be updated by the escalator
factor.
D. Prospective rates for each hospital shall be based upon
the hospital's allowable costs plus the escalator factor, or the appropriate
ceilings, or charges; whichever is lower. Except to eliminate costs that are
found to be unallowable, no retrospective adjustment shall be made to
prospective rates.
Capital and education costs approved pursuant to PRM-15
(§ 400), shall be considered as pass throughs and not part of the
calculation. Capital cost is reimbursed the percentage of allowable cost
specified in 12VAC30-70-271.
E. An incentive plan should be established whereby a hospital
will be paid on a sliding scale, percentage for percentage, up to 25% of the
difference between allowable operating costs and the appropriate per diem group
ceiling when the operating costs are below the ceilings. The incentive should
be calculated based on the annual cost report. Effective for dates of
service July 1, 2010, through September 30, 2010, the incentive plan shall be
eliminated.
F. Disproportionate share hospitals defined.
The following criteria shall be met before a hospital is
determined to be eligible for a disproportionate share payment adjustment.
1. Criteria.
a. A Medicaid inpatient utilization rate in excess of 8% for
hospitals receiving Medicaid payments in the Commonwealth, or a low-income
patient utilization rate exceeding 25% (as defined in the Omnibus Budget
Reconciliation Act of 1987 and as amended by the Medicare Catastrophic Coverage
Act of 1988); and
b. At least two obstetricians with staff privileges at the
hospital who have agreed to provide obstetric services to individuals entitled
to such services under a State Medicaid plan. In the case of a hospital located
in a rural area (that is, an area outside of a Metropolitan Statistical Area,
as defined by the Executive Office of Management and Budget), the term
"obstetrician" includes any physician with staff privileges at the
hospital to perform nonemergency obstetric procedures.
c. Subdivision 1 b of this subsection does not apply to a
hospital:
(1) At which the inpatients are predominantly individuals
under 18 years of age; or
(2) Which does not offer nonemergency obstetric services as of
December 21, 1987.
2. Payment adjustment.
a. Hospitals which have a disproportionately higher level of
Medicaid patients shall be allowed a disproportionate share payment adjustment
based on the type of hospital and on the individual hospital's Medicaid
utilization. There shall be two types of hospitals: (i) Type One, consisting of
state-owned teaching hospitals, and (ii) Type Two, consisting of all other
hospitals. The Medicaid utilization shall be determined by dividing the number
of utilization Medicaid inpatient days by the total number of inpatient days.
Each hospital with a Medicaid utilization of over 8.0% shall receive a
disproportionate share payment adjustment.
b. For Type One hospitals, the disproportionate share payment
adjustment shall be equal to the product of (i) the hospital's Medicaid
utilization in excess of 8.0% times 11, times (ii) the lower of the prospective
operating cost rate or ceiling. For Type Two hospitals, the disproportionate
share payment adjustment shall be equal to the product of (i) the hospital's
Medicaid utilization in excess of 8.0% times (ii) the lower of the prospective
operating cost rate or ceiling.
c. No payments made under subdivision 1 or 2 of this
subsection shall exceed any applicable limitations upon such payments
established by federal law or regulations.
G. Outlier adjustments.
1. DMAS shall pay to all enrolled hospitals an outlier
adjustment in payment amounts for medically necessary inpatient hospital
services provided on or after July 1, 1991, involving exceptionally high costs
for individuals under one year of age.
2. DMAS shall pay to disproportionate share hospitals (as
defined in subsection F of this section) an outlier adjustment in payment
amounts for medically necessary inpatient hospital services provided on or
after July 1, 1991, involving exceptionally high costs for individuals under
six years of age.
3. The outlier adjustment calculation.
a. Each eligible hospital which desires to be considered for the
adjustment shall submit a log which contains the information necessary to
compute the mean of its Medicaid per diem operating cost of treating
individuals identified in subdivision 1 or 2 of this subsection. This log shall
contain all Medicaid claims for such individuals, including, but not limited
to: (i) the patient's name and Medicaid identification number; (ii) dates of
service; (iii) the remittance date paid; (iv) the number of covered days; and
(v) total charges for the length of stay. Each hospital shall then calculate
the per diem operating cost (which excludes capital and education) of treating
such patients by multiplying the charge for each patient by the Medicaid
operating cost-to-charge ratio determined from its annual cost report.
b. Each eligible hospital shall calculate the mean of its
Medicaid per diem operating cost of treating individuals identified in
subdivision 1 or 2 of this subsection.
c. Each eligible hospital shall calculate its threshold for
payment of the adjustment, at a level equal to two and one-half standard
deviations above the mean or means calculated in subdivision 3 a (ii) of this
subsection.
d. DMAS shall pay as an outlier adjustment to each eligible
hospital all per diem operating costs which exceed the applicable threshold or
thresholds for that hospital.
4. Pursuant to 12VAC30-50-100, there is no limit on length of
time for medically necessary stays for individuals under six years of age. This
section provides that consistent with 42 CFR 441.57, payment of medical
assistance services shall be made on behalf of individuals under 21 years of
age, who are Medicaid eligible, for medically necessary stays in acute care
facilities 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. Medical documentation justifying admission and
the continued length of stay must be attached to or written on the invoice for
review by medical staff to determine medical necessity. Medically unjustified
days in such admissions will be denied.
12VAC30-70-271. Payment for capital costs.
A. Inpatient capital costs shall be determined on an
allowable cost basis and settled at the hospital's fiscal year end. Allowable
cost shall be determined following the methodology described in Supplement 3
(12VAC30-70-10 through 12VAC30-70-130). Inpatient capital costs of Type One
hospitals shall continue to be settled at 100% of allowable cost. For services
beginning July 1, 2003, and ending June 30, 2009, inpatient capital costs of
Type Two hospitals, except those with Virginia Medicaid utilization rates
greater than 50%, shall be settled at 80% of allowable cost. For services
beginning July 1, 2009, inpatient capital costs of Type Two hospitals,
excluding Type Two hospitals with greater than 50% Virginia Medicaid
utilization, shall be settled at 75% of allowable cost.
B. For hospitals with fiscal years that are in
progress and do not begin on July 1, 2003, or July 1, 2009, inpatient
capital costs for the fiscal year in progress on those dates shall be
apportioned between the time period before and the time period after those
dates based on the number of calendar months before and after those dates in
accordance with subdivisions 1 through 6 of this subsection.
Capital 1. Inpatient capital costs apportioned
before July 1, 2003, shall be settled at 100% of allowable cost.
2. Effective July 1, 2003, through June 30, 2009, inpatient
capital costs of Type One hospitals shall be settled at 100% of allowable cost.
Inpatient capital costs of Type Two hospitals shall be settled at 80% of
allowable cost.
3. Effective July 1, 2009, through June 30, 2010, inpatient
capital costs of Type One hospitals shall be settled at 100% of allowable
cost. Inpatient capital costs of Type Two hospitals, excluding hospitals
with Virginia Medicaid utilization greater than 50%, shall be settled at 75% of
allowable cost. Inpatient capital costs of Type Two hospitals with
Virginia Medicaid utilization greater than 50% shall be settled at 80% of
allowable cost.
4. Effective July 1, 2010, through September 30, 2010,
inpatient capital costs of Type One hospitals shall be settled at 97% of
allowable costs. Inpatient capital costs of Type Two hospitals, excluding
hospitals with Virginia Medicaid utilization greater than 50%, shall be settled
at 72% of allowable cost. Inpatient capital costs of Type Two hospitals with
Virginia Medicaid utilization greater than 50% shall be settled at 77% of
allowable cost.
5. Effective October 1, 2010, through June 30, 2011,
inpatient capital costs of Type One hospitals shall be settled at 100% of
allowable cost. Inpatient capital costs of Type Two hospitals, excluding
hospitals with Virginia Medicaid utilization greater than 50%, shall be settled
at 75% of allowable cost. Inpatient capital costs of Type Two hospitals with
Virginia Medicaid utilization greater than 50% shall be settled at 80% of
allowable cost.
6. Effective July 1, 2011, inpatient capital costs of Type
One hospitals shall be settled at 96% of allowable costs. Inpatient capital
costs of Type Two hospitals, excluding hospitals with Virginia Medicaid
utilization greater than 50%, shall be settled at 71% of allowable cost.
Inpatient capital costs of Type Two hospitals with Virginia Medicaid
utilization greater than 50% shall be settled at 76% of allowable cost.
B. C. The exception to the policy in subsection
A of this section is that the hospital specific rate per day for services in freestanding
psychiatric facilities licensed as hospitals, as determined in 12VAC30-70-321
B, shall be an all-inclusive payment for operating and capital costs. The
capital rate per day determined in 12VAC30-70-321 will be multiplied by the
same percentage of allowable cost specified in subsection A B of
this section.
12VAC30-70-291. Payment for indirect medical education costs.
A. Hospitals shall be eligible to receive payments for
indirect medical education. 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:
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:
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. 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.
D. An additional IME payment not to exceed $1.9 million
$200,000 in total shall be apportioned among Type Two Hospitals hospitals,
excluding freestanding children's hospitals, with Medicaid NICU utilization
in excess of 50% and with overall Medicaid 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.
12VAC30-70-331. Statewide operating rate per case.
A. The statewide operating rate per case shall be equal to
the base year standardized operating costs per case, as determined in 12VAC30-70-361,
times the inflation values specified in 12VAC30-70-351 times the adjustment
factor specified in subsection B of this section.
B. The adjustment factor shall be determined separately for
Type One and Type Two hospitals:
1. For Type One hospitals the adjustment factor shall be a
calculated percentage that causes the Type One hospital statewide operating
rate per case to equal the Type Two hospital statewide operating rate per case;
2. Effective July 1, 2006, for For Type Two
hospitals the adjustment factor shall be:
a. 0.7800 effective July 1, 2006, through June 30, 2010.
b. 0.7500 effective July 1, 2010, through September 30,
2010.
c. 0.7800 effective October 1, 2010.
12VAC30-70-341. Statewide operating rate per day.
A. The statewide operating rate per day shall be equal to the
base year standardized operating costs per day, as determined in subsection B
of 12VAC30-70-371, times the inflation values specified in 12VAC30-70-351 times
the adjustment factor specified in subsection B or C of this section.
B. The adjustment factor for acute care rehabilitation cases
shall be the one specified in subsection B of 12VAC30-70-331.
C. The adjustment factor for acute care psychiatric cases
for Type Two hospitals shall be 0.8400. The adjustment factor for acute
care psychiatric cases for:
1. Type One hospitals shall be the one specified in
subdivision B 1 of 12VAC30-70-331 times 0.8400 the factor in
subdivision 2 this subsection divided by the factor in subdivision B 2 of
12VAC30-70-331.
2. Type Two hospitals shall be:
a. 0.7800 effective July 1, 2006, through June 30, 2007.
b. 0.8400 effective July 1, 2007, through June 30, 2010.
c. 0.8100 effective July 1, 2010, through September 30,
2010.
d. 0.8400 effective October 1, 2010.
D. Effective July 1, 2009, for freestanding
psychiatric facilities, the adjustment factor shall be 1.0000.
12VAC30-70-420. Reimbursement of noncost-reporting general
acute care hospital providers.
A. Effective July 1, 2000, noncost-reporting (general
acute care hospitals that are not required to file cost reports) shall be paid
based on DRG rates unadjusted for geographic variation increased by the average
capital percentage among hospitals filing cost reports in a recent year.
General acute care hospitals shall not file cost reports if they have less than
1,000 days per year (in the most recent provider fiscal year) of inpatient
utilization by Virginia Medicaid recipients, inclusive of patients in managed
care capitation programs.
B. Effective July 1, 2011, out-of-state hospitals shall be
reimbursed the lesser of the amount reimbursed by the Medicaid program in the
facility's home state or the rate defined in the subsection A of this section.
C. Prior approval must be received from DMAS when a
referral has been made for treatment to be received from a nonparticipating
acute care facility (in-state or out-of-state). Prior approval will be granted
for inpatient hospital services provided out of state to a Medicaid recipient
who is a resident of the Commonwealth of Virginia under any one of the
following conditions. It shall be the responsibility of the nonparticipating
hospital, when requesting prior authorization for the admission of the Virginia
resident, to demonstrate that one of the following conditions exists in order
to obtain authorization. Services provided out of state for circumstances other
than these specified reasons shall not be covered.
1. The medical services must be needed because of a medical
emergency;
2. Medical services must be needed and the recipient's health
would be endangered if he were required to travel to his state of residence;
3. The state determines, on the basis of medical advice, that
the needed medical services, or necessary supplementary resources, are more
readily available in the other state;
4. It is general practice for recipients in a particular
locality to use medical resources in another state.
12VAC30-80-20. Services that are reimbursed on a cost basis.
A. Payments for services listed below 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 d. The
upper limit for reimbursement shall be no higher than payments for Medicare
patients on a facility by facility basis in accordance with 42 CFR 447.321 and
42 CFR 447.325. 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 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,
the Program shall take action in accordance with its policies to assure that an
overpayment is not being made. The cost report will be judged complete when
DMAS has all of the following:
1. Completed cost reporting form(s) provided by DMAS, with
signed certification(s);
2. The provider's trial balance showing adjusting journal
entries;
3. The provider's financial statements including, but not
limited to, 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. Outpatient hospital services including rehabilitation
hospital outpatient services and excluding laboratory.
a. Definitions. The following words and terms when used in
this regulation 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,
including those obstetric and pediatric procedures contained in 12VAC30-80-160,
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, but not be limited to:
(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-9-CM diagnosis
codes and necessary supporting documentation.
(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-9-CM code
designations, and the impact on recipients and providers.
c. Limitation to 80% of allowable cost. Effective for
services on and after July 1, 2003, reimbursement of Type Two hospitals for
outpatient services shall be at 80% various percentages as noted in
subdivisions 1 c (1) and (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, 2003, 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. Operating costs apportioned before that
date shall be settled according to the principles in effect before that date,
and those after at 80% of allowable cost. Capital costs apportioned before that
date shall be settled according to the principles in effect before that date,
and those after at 80% of allowable cost. Operating and capital costs of Type
One hospitals shall continue to be reimbursed at 94.2% and 90% of cost
respectively.
d. Outpatient reimbursement methodology prior to July 1,
2003. DMAS shall continue to reimburse for outpatient hospital services, with
the exception of direct graduate medical education for interns and residents,
at 100% of reasonable costs less a 10% reduction for allowable capital costs
and a 5.8% reduction for allowable operating costs. This methodology shall
continue to be in effect after July 1, 2003, for Type One hospitals.
(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.
e. d. 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 operated by community services
boards. For reimbursement methodology applicable to other rehabilitation
agencies, see 12VAC30-80-200. Reimbursement for physical therapy, occupational
therapy, and speech-language therapy services shall not be provided for any
sums that the rehabilitation provider collects, or is entitled to collect, from
the NF or any other available source, and provided further, that this amendment
shall in no way diminish any obligation of the NF to DMAS to provide its
residents such services, as set forth in any applicable provider agreement.
12VAC30-80-30. Fee-for-service providers.
A. Payment for the following services, except for physician
services, shall be the lower of the state agency fee schedule (12VAC30-80-190
has information about the state agency fee schedule) or actual charge (charge
to the general public):
1. Physicians' services. Payment for physician services shall
be the lower of the state agency fee schedule or actual charge (charge to the
general public). The following limitations shall apply to emergency physician
services.
a. Definitions. The following words and terms, when used in
this subdivision 1 shall have the following meanings when applied to emergency
services unless the context clearly indicates otherwise:
"All-inclusive" means all emergency service and
ancillary service charges claimed in association with the emergency department
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 physician 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 physicians for nonemergency care rendered
in emergency departments at a reduced rate.
(1) DMAS shall reimburse at a reduced and all-inclusive
reimbursement rate for all physician services, including those obstetric and
pediatric procedures contained in 12VAC30-80-160, rendered in emergency
departments that DMAS determines are 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 determined 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 in subdivision 1 b (2) of this
subsection. Services not meeting certain criteria shall be paid under the
methodology in subdivision 1 b (1) of this subsection. Such criteria shall
include, but not be limited to:
(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-9-CM diagnosis
codes and necessary supporting documentation.
(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 objectives, the accuracy and effectiveness of the
ICD-9-CM code designations, and the impact on recipients and providers.
2. Dentists' services.
3. Mental health services including: (i) community mental
health services; (ii) services of a licensed clinical psychologist; or (iii)
mental health services provided by a physician.
a. Services provided by licensed clinical psychologists shall
be reimbursed at 90% of the reimbursement rate for psychiatrists.
b. Services provided by independently enrolled licensed
clinical social workers, licensed professional counselors or licensed clinical
nurse specialists-psychiatric shall be reimbursed at 75% of the reimbursement
rate for licensed clinical psychologists.
4. Podiatry.
5. Nurse-midwife services.
6. Durable medical equipment (DME).
a. For those items that have a national Healthcare Common
Procedure Coding System (HCPCS) code, the rate for durable medical equipment
shall be set at the Durable Medical Equipment Regional Carrier (DMERC)
reimbursement level.
b. The rate paid for all items of durable medical equipment
except nutritional supplements shall be the lower of the state agency fee
schedule that existed prior to July 1, 1996, less 4.5%, or the actual charge.
c. The rate paid for nutritional supplements shall be the
lower of the state agency fee schedule or the actual charge.
d. Certain durable medical equipment used for intravenous
therapy and oxygen therapy shall be bundled under specified procedure codes and
reimbursed as determined by the agency. Certain services/durable medical
equipment such as service maintenance agreements shall be bundled under
specified procedure codes and reimbursed as determined by the agency.
(1) Intravenous therapies. The DME for a single therapy,
administered in one day, shall be reimbursed at the established service day
rate for the bundled durable medical equipment and the standard pharmacy
payment, consistent with the ingredient cost as described in 12VAC30-80-40,
plus the pharmacy service day and dispensing fee. Multiple applications of the
same therapy shall be included in one service day rate of reimbursement.
Multiple applications of different therapies administered in one day shall be
reimbursed for the bundled durable medical equipment service day rate as
follows: the most expensive therapy shall be reimbursed at 100% of cost; the
second and all subsequent most expensive therapies shall be reimbursed at 50%
of cost. Multiple therapies administered in one day shall be reimbursed at the
pharmacy service day rate plus 100% of every active therapeutic ingredient in
the compound (at the lowest ingredient cost methodology) plus the appropriate
pharmacy dispensing fee.
(2) Respiratory therapies. The DME for oxygen therapy shall
have supplies or components bundled under a service day rate based on oxygen
liter flow rate or blood gas levels. Equipment associated with respiratory
therapy may have ancillary components bundled with the main component for
reimbursement. The reimbursement shall be a service day per diem rate for
rental of equipment or a total amount of purchase for the purchase of
equipment. Such respiratory equipment shall include, but not be limited to,
oxygen tanks and tubing, ventilators, noncontinuous ventilators, and suction
machines. Ventilators, noncontinuous ventilators, and suction machines may be
purchased based on the individual patient's medical necessity and length of
need.
(3) Service maintenance agreements. Provision shall be made
for a combination of services, routine maintenance, and supplies, to be known
as agreements, under a single reimbursement code only for equipment that is
recipient owned. Such bundled agreements shall be reimbursed either monthly or
in units per year based on the individual agreement between the DME provider
and DMAS. Such bundled agreements may apply to, but not necessarily be limited
to, either respiratory equipment or apnea monitors.
7. Local health services.
8. Laboratory services (other than inpatient hospital).
9. Payments to physicians who handle laboratory specimens, but
do not perform laboratory analysis (limited to payment for handling).
10. X-Ray services.
11. Optometry services.
12. Medical supplies and equipment.
13. Home health services. Effective June 30, 1991, cost reimbursement
for home health services is eliminated. A rate per visit by discipline shall be
established as set forth by 12VAC30-80-180.
14. Physical therapy; occupational therapy; and speech,
hearing, language disorders services when rendered to noninstitutionalized
recipients.
15. Clinic services, as defined under 42 CFR 440.90.
16. Supplemental payments for services provided by Type I
physicians.
a. In addition to payments for physician services specified elsewhere
in this State Plan, DMAS provides supplemental payments to Type I physicians
for furnished services provided on or after July 2, 2002. A Type I physician is
a member of a practice group organized by or under the control of a state
academic health system or an academic health system that operates under a state
authority and includes a hospital, who has entered into contractual agreements
for the assignment of payments in accordance with 42 CFR 447.10.
b. Effective July 2, 2002, the supplemental payment amount for
Type I physician services shall be the difference between the Medicaid payments
otherwise made for Type I physician services and Medicare rates. Effective
August 13, 2002, the supplemental payment amount for Type I physician services
shall be the difference between the Medicaid payments otherwise made for
physician services and 143% of Medicare rates. This percentage was determined
by dividing the total commercial allowed amounts for Type I physicians for at
least the top five commercial insurers in CY 2004 by what Medicare would have
allowed. The average commercial allowed amount was determined by multiplying
the relative value units times the conversion factor for RBRVS procedures and
by multiplying the unit cost times anesthesia units for anesthesia procedures
for each insurer and practice group with Type I physicians and summing for all
insurers and practice groups. The Medicare equivalent amount was determined by
multiplying the total commercial relative value units for Type I physicians times
the Medicare conversion factor for RBRVS procedures and by multiplying the
Medicare unit cost times total commercial anesthesia units for anesthesia
procedures for all Type I physicians and summing.
c. Supplemental payments shall be made quarterly.
d. Payment will not be made to the extent that this would
duplicate payments based on physician costs covered by the supplemental
payments.
17. Supplemental payments for services provided by
physicians at Virginia freestanding children's hospitals.
a. In addition to payments for physician services specified
elsewhere in this State Plan, DMAS provides supplemental payments to Virginia
freestanding children's hospital physicians providing services at freestanding
children's hospitals with greater than 50% Medicaid inpatient utilization in
state fiscal year 2009 for furnished services provided on or after July 1,
2011. A freestanding children's hospital physician is a member of a practice
group (i) organized by or under control of a qualifying Virginia freestanding
children's hospital, or (ii) who has entered into contractual agreements for
provision of physician services at the qualifying Virginia freestanding
children’s hospital and that is designated in writing by the Virginia
freestanding children's hospital as a practice plan for the quarter for which
the supplemental payment is made subject to DMAS approval. The freestanding
children's hospital physicians also must have entered into contractual
agreements with the practice plan for the assignment of payments in accordance
with 42 CFR 447.10.
b. Effective July 1, 2011, the supplemental payment amount
for freestanding children's hospital physician services shall be the difference
between the Medicaid payments otherwise made for freestanding children's hospital
physician services and 143% of Medicare rates as defined in the supplemental
payment calculation for Type I physician services subject to the following
reduction. Final payments shall be reduced on a pro-rated basis so that total
payments for freestanding children's hospital physician services are $400,000
less annually than would be calculated based on the formula in the previous
sentence. Payments shall be made on the same schedule as Type I physicians.
17. 18. Supplemental payments to nonstate government-owned
or operated clinics.
a. In addition to payments for clinic services specified
elsewhere in the regulations, DMAS provides supplemental payments to qualifying
nonstate government-owned or operated clinics for outpatient services provided
to Medicaid patients on or after July 2, 2002. Clinic means a facility that is
not part of a hospital but is organized and operated to provide medical care to
outpatients. Outpatient services include those furnished by or under the
direction of a physician, dentist or other medical professional acting within
the scope of his license to an eligible individual. Effective July 1, 2005, a
qualifying clinic is a clinic operated by a community services board. The state
share for supplemental clinic payments will be funded by general fund
appropriations.
b. The amount of the supplemental payment made to each
qualifying nonstate government-owned or operated clinic is determined by:
(1) Calculating for each clinic the annual difference between
the upper payment limit attributed to each clinic according to subdivision 17
18 d and the amount otherwise actually paid for the services by the
Medicaid program;
(2) Dividing the difference determined in subdivision 17
18 b (1) for each qualifying clinic by the aggregate difference for all
such qualifying clinics; and
(3) Multiplying the proportion determined in subdivision
(2) of this subdivision 17 18 b (2) by the aggregate
upper payment limit amount for all such clinics as determined in accordance
with 42 CFR 447.321 less all payments made to such clinics other than under
this section.
c. Payments for furnished services made under this section may
be made in one or more installments at such times, within the fiscal year or
thereafter, as is determined by DMAS.
d. To determine the aggregate upper payment limit referred to
in subdivision 17 18 b (3), Medicaid payments to nonstate
government-owned or operated clinics will be divided by the "additional
factor" whose calculation is described in Attachment 4.19-B, Supplement 4
(12VAC30-80-190 B 2) in regard to the state agency fee schedule for RBRVS.
Medicaid payments will be estimated using payments for dates of service from
the prior fiscal year adjusted for expected claim payments. Additional
adjustments will be made for any program changes in Medicare or Medicaid
payments.
18. Reserved.
19. Personal Assistance Services (PAS) for individuals
enrolled in the Medicaid Buy-In program described in 12VAC30-60-200. These
services are reimbursed in accordance with the state agency fee schedule
described in 12VAC30-80-190. The state agency fee schedule is published on the
Single State Agency Website.
B. Hospice services payments must be no lower than the
amounts using the same methodology used under Part A of Title XVIII, and take
into account the room and board furnished by the facility, equal to at least
95% of the rate that would have been paid by the state under the plan for
facility services in that facility for that individual. Hospice services shall
be paid according to the location of the service delivery and not the location
of the agency's home office.
12VAC30-80-190. State agency fee schedule for RBRVS.
A. Reimbursement of fee-for-service providers. Effective for
dates of service on or after July 1, 1995, the Department of Medical Assistance
Services (DMAS) shall reimburse fee-for-service providers, with the exception
of home health services (see 12VAC30-80-180) and durable medical equipment
services (see 12VAC30-80-30), using a fee schedule that is based on a Resource
Based Relative Value Scale (RBRVS).
B. Fee schedule.
1. For those services or procedures which are included in the
RBRVS published by the Centers for Medicare and Medicaid Services (CMS) as
amended from time to time, DMAS' fee schedule shall employ the Relative Value
Units (RVUs) developed by CMS as periodically updated.
a. Effective for dates of service on or after July 1, 2008,
DMAS shall implement site of service differentials and employ both nonfacility
and facility RVUs. The implementation shall be budget neutral using the
methodology in subdivision 2 of this subsection.
b. The implementation of site of service shall be transitioned
over a four-year period.
(1) Effective for dates of service on or after July 1, 2008,
DMAS shall calculate the transitioned facility RVU by adding 75% of the
difference between the nonfacility RVU and nonfacility RVU to the facility RVU.
(2) Effective for dates of service on or after July 1, 2009,
DMAS shall calculate the transitioned facility RVU by adding 50% of the
difference between the nonfacility RVU and nonfacility RVU to the facility RVU.
(3) Effective for dates of service on or after July 1, 2010,
DMAS shall calculate the transitioned facility RVU by adding 25% of the difference
between the nonfacility RVU and nonfacility RVU to the facility RVU.
(4) Effective for dates of service on or after July 1, 2011,
DMAS shall use the unadjusted Medicare facility RVU.
2. DMAS shall calculate the RBRVS-based fees using conversion factors
(CFs) published from time to time by CMS. DMAS shall adjust CMS' CFs by
additional factors so that no change in expenditure will result solely from the
implementation of the RBRVS-based fee schedule. DMAS may revise the additional
factors when CMS updates its RVUs or CFs so that no change in expenditure will
result solely from such updates. Except for this adjustment, DMAS' CFs shall be
the same as those published from time to time by CMS. The calculation of the
additional factors shall be based on the assumption that no change in services
provided will occur as a result of these changes to the fee schedule. The
determination of the additional factors required above shall be accomplished by
means of the following calculation:
a. The estimated amount of DMAS expenditures if DMAS were to
use Medicare's RVUs and CFs without modification, is equal to the sum, across
all relevant procedure codes, of the RVU value published by the CMS, multiplied
by the applicable conversion factor published by the CMS, multiplied by the
number of occurrences of the procedure code in DMAS patient claims in the most
recent period of time (at least six months).
b. The estimated amount of DMAS expenditures, if DMAS were not
to calculate new fees based on the new CMS RVUs and CFs, is equal to the sum,
across all relevant procedure codes, of the existing DMAS fee multiplied by the
number of occurrences of the procedures code in DMAS patient claims in the
period of time used in subdivision 2 a of this subsection.
c. The relevant additional factor is equal to the ratio of the
expenditure estimate (based on DMAS fees in subdivision 2 b of this subsection)
to the expenditure estimate based on unmodified CMS values in subdivision 2 a
of this subsection.
d. DMAS shall calculate a separate additional factor for:
(1) Emergency room services (defined as the American Medical
Association's (AMA) publication of the Current Procedural Terminology (CPT)
codes 99281, 99282, 99283, 99284, and 992851 in effect at the time the service
is provided);
(2) Obstetrical/gynecological services (defined as maternity
care and delivery procedures, female genital system procedures,
obstetrical/gynecological-related radiological procedures, and mammography
procedures, as defined by the American Medical Association's (AMA) publication
of the Current Procedural Terminology (CPT) manual in effect at the time the
service is provided);
(3) Pediatric preventive services (defined as preventive
E&M procedures, excluding those listed in subdivision 2 d (1) of this
subsection, as defined by the AMA's publication of the CPT manual, in effect at
the time the service is provided, for recipients under age 21);
(4) Pediatric primary services (defined as evaluation and
management (E&M) procedures, excluding those listed in subdivisions 2 d (1)
and 2 d (3) of this subsection, as defined by the AMA's publication of the CPT
manual, in effect at the time the service is provided, for recipients under age
21);
(5) Adult primary and preventive services (defined as E&M
procedures, excluding those listed in subdivision 2 d (1) of this subsection,
as defined by the AMA's publication of the CPT manual, in effect at the time
the service is provided, for recipients age 21 and over); and
(6) All other procedures set through the RBRVS process combined.
3. For those services or procedures for which there are no
established RVUs, DMAS shall approximate a reasonable relative value payment
level by looking to similar existing relative value fees. If DMAS is unable to
establish a relative value payment level for any service or procedure, the fee
shall not be based on a RBRVS, but shall instead be based on the previous
fee-for-service methodology.
4. Fees shall not vary by geographic locality.
5. Effective for dates of service on or after July 1, 2007, fees
for emergency room services (defined in subdivision 2 d (1) of this subsection)
shall be increased by 5.0% relative to the fees that would otherwise be in
effect.
C. Effective for dates of service on or after May 1, 2006,
fees for obstetrical/gynecological services (defined in subdivision B 2 d (2)
of this section) shall be increased by 2.5% relative to the fees in effect on
July 1, 2005.
D. Effective for dates of service on or after May 1, 2006,
fees for pediatric services (defined in subdivisions B 2 d (3) and (4) of this
section) shall be increased by 5.0% relative to the fees in effect on July 1,
2005. Effective for dates of service on or after July 1, 2006, fees for
pediatric services (defined in subdivisions B 2 d (3) and (4) of this section)
shall be increased by 5.0% relative to the fees in effect on May 1, 2006.
Effective for dates of service on or after July 1, 2007, fees for pediatric
primary services (defined in subdivision B 2 d (4) of this section) shall be
increased by 10% relative to the fees that would otherwise be in effect.
E. Effective for dates of service on or after July 1, 2007,
fees for pediatric preventive services (defined in subdivision B 2 d (3) of
this section) shall be increased by 10% relative to the fees that would otherwise
be in effect.
F. Effective for dates of service on or after May 1, 2006,
fees for adult primary and preventive services (defined in subdivision B 2 d
(4) of this section) shall be increased by 5.0% relative to the fees in effect
on July 1, 2005. Effective for dates of service on or after July 1, 2007, fees
for adult primary and preventive services (defined in subdivision B 2 d (5) of
this section) shall be increased by 5.0% relative to the fees that would
otherwise be in effect.
G. Effective for dates of service on or after July 1, 2007,
fees for all other procedures set through the RBRVS process combined (defined
in subdivision B 2 d (6) of this section) shall be increased by 5.0% relative
to the fees that would otherwise be in effect.
H. Effective for dates of service on or after July 1, 2010,
fees for all procedures set through the RBRVS process shall be decreased by
3.0% relative to the fees that would otherwise be in effect. However, if the
increased federal medical assistance percentage under the American Recovery and
Reinvestment Act (P.L. 111-5) is extended through June 30, 2011, as provided in
Item 297 CCCC.3 of the 2010 Virginia Acts of Assembly, the reduction in this
subsection shall not become effective.
I. Effective for dates of service on or after July 1,
2011, fees for all procedures set through the RBRVS process shall be decreased
by 4.0% relative to the fees that would have been in effect except for the
provisions of subsection H of this section. However, if the increased federal
medical assistance percentage under the American Recovery and Reinvestment Act
(P.L. 111-5) is extended through June 30, 2011, as provided in Item 297 CCCC.3
of the 2010 Virginia Acts of Assembly, the reduction in this subsection shall
not become effective.
I. Effective for dates of service on or after October 1,
2010, through June 30, 2011, the 3.0% fee decrease in subsection H of this
section shall no longer be in effect.
12VAC30-90-36. Nursing Facility Capital Payment Methodology.
A. Applicability. The capital payment methodology described
in this article shall be applicable to freestanding nursing facilities but not
to hospital-based facilities. Hospital-based facilities shall continue to be
reimbursed under the methodology contained in Article 2 (12VAC30-90-30 et seq.)
of this subpart. For purposes of this provision, a hospital-based nursing
facility shall be one for which a combined cost report is submitted on behalf
of both the hospital and the nursing facility.
B. Definitions. The following words and terms when used in
this article shall have the following meaning unless the context clearly
indicates otherwise:
"Capital costs" means costs that include the cost
elements of depreciation, interest, financing costs, rent and lease costs for
property, building and equipment, property insurance and property taxes.
"Date of acquisition" means the date legal title
passed to the buyer. If a legal titling date is not determinable for a nursing
facility building, date of acquisition shall be considered to be the date a certificate
of occupancy was issued by the appropriate licensing or building inspection
agency of the locality where the nursing facility is located.
"Facility average age" means for a facility the
weighted average of the ages of all capitalized assets of the facility, with
the weights equal to the expenditures for those assets. The calculation of
average age shall take into account land improvements, building and fixed
equipment, and major movable equipment. The basis for the calculation of
average age shall be the schedule of assets submitted annually to the
department in accordance with the provisions of this section.
"Facility imputed gross square feet" means a number
that is determined by multiplying the facility's number of nursing facility
licensed beds licensed by the Virginia Department of Health by the imputed
number of gross square feet per bed. The imputed number of gross square feet
per bed shall be 461 for facilities of 90 or fewer beds, and 438 for facilities
of more than 90 beds. The number of licensed nursing facility beds shall be the
number on the last day of the provider's most recent fiscal year end for which
a cost report has been filed.
"Factor for land and soft costs" means a factor
equaling 1.429 that adjusts the construction cost amount to recognize land and
capitalized costs associated with construction of a facility that are not part
of the R.S. Means construction cost amount.
"Fixed capital replacement value" means an amount
equal to the R.S. Means 75th percentile nursing home construction cost per
square foot, times the applicable R.S. Means historical cost index factor,
times the factor for land and soft costs, times the applicable R.S. Means
"Location Factor," times facility imputed gross square feet.
"FRV depreciation rate" means a depreciation rate
equal to 2.86% per year.
"Hospital-based facility" means one for which a
single combined Medicare cost report is filed that includes the costs of both
the hospital and the nursing home.
"Movable capital replacement value" means a value
equal to $3,475 per bed in SFY 2001, and shall be increased each July 1 by the
same R.S. Means historical cost index factor that is used to calculate the
fixed capital replacement value. Each year's updated movable capital
replacement value shall be used in the calculation of each provider's rate for
the provider year beginning on or after the date the new value becomes
effective.
"R.S.Means 75th percentile nursing construction cost per
square foot" means the 75th percentile value published in the 59th Annual
Edition of the R.S. Means Building Construction Cost Data, 2001. In the 2000
edition of the R.S. Means publication this value is $110, which is reported as
a January 2000 value.
"R.S.Means historical cost index factor" means the
ratio of the two most recent R.S. Means Historical Cost Indexes published in
the 59th Annual Edition of the R.S. Means Building Construction Cost Data,
2001. In the 2000 edition of this R.S. Means publication these two values are
117.6 (for 1999) and 115.1 (for 1998). The ratio of these values, and therefore
the factor to be used, would be 1.022. This factor would be used to adjust the
January 2000 value for the one year of change from January 2000 to January
2001, the mid-point of the prospective rate year (SFY 2001). The resulting cost
value that would be used in SFY 2001 is $112.42. The indexes used in this
calculation do not match the time period for which a factor is needed. They
relate to 1998 and 1999, while 2000 and 2001 would be ideal. However, R.S.
Means does not publish index forecasts, so the most recent available indexes
shall be used.
"R.S. Means Location Factors" means those published
in the 22nd Annual Edition of the R.S. Means Square Foot Costs, 2001. The 2000
location factors are shown in the following Table 1. They will be updated
annually and distributed to providers based upon the most recent available
data.
|
TABLE 1.
R.S. MEANS COMMERCIAL CONSTRUCTION COST LOCATION FACTORS (2000).
|
|
Zip Code
|
Principal City
|
Location Factor
|
|
220-221
|
Fairfax
|
0.90
|
|
222
|
Arlington
|
0.90
|
|
223
|
Alexandria
|
0.91
|
|
224-225
|
Fredericksburg
|
0.85
|
|
226
|
Winchester
|
0.80
|
|
227
|
Culpeper
|
0.80
|
|
228
|
Harrisonburg
|
0.77
|
|
229
|
Charlottesville
|
0.82
|
|
230-232
|
Richmond
|
0.85
|
|
233-235
|
Norfolk
|
0.82
|
|
236
|
Newport News
|
0.82
|
|
237
|
Portsmouth
|
0.81
|
|
238
|
Petersburg
|
0.84
|
|
239
|
Farmville
|
0.74
|
|
240-241
|
Roanoke
|
0.77
|
|
242
|
Bristol
|
0.75
|
|
243
|
Pulaski
|
0.70
|
|
244
|
Staunton
|
0.76
|
|
245
|
Lynchburg
|
0.77
|
|
246
|
Grundy
|
0.70
|
"Rental rate" means for a prospective year a rate
equal to two percentage points plus the yield on U.S. Treasury Bonds with
maturity over 10 years, averaged over the most recent three calendar years for which
data are available, as published by the Federal Reserve (Federal Reserve
Statistical Release H.15 Selected Interest Rates
(www.Federalreserve.gov/releases/)). The rate will be published and
distributed to providers annually. Changes in the rental rate shall be
effective for the providers' fiscal year beginning on or after July 1.
Rental rates may not fall below 9.0% or exceed 11% and will be updated annually
on or about July 1 each year. Effective July 1, 2010, through September 30,
2010, the floor for the nursing facility rental rates may not fall below 8.75%.
Effective October 1, 2010, through June 30, 2011, the floor for the nursing
facility rental rates may not fall below 9.0%. Effective July 1, 2011, through
June 30, 2012, the floor for the nursing facility rental rates may not fall
below 8.0%. The rate will be published and distributed to providers
annually. Changes in the rental rate shall be effective for the providers'
fiscal year beginning on or after July 1.
"Required occupancy percentage" means an occupancy
percentage of 90%.
"SFY" means State Fiscal Year (July 1 through June
30).
1. Fair Rental Value (FRV) Payment for Capital.
Effective for dates of service on or after July 1, 2001, DMAS shall pay nursing
facility capital related costs under a Fair Rental Value (FRV) FRV
methodology. The payment made under this methodology shall be the only payment
for capital related costs, and no separate payment shall be made for
depreciation or interest expense, lease costs, property taxes, insurance, or
any other capital related cost, including home office capital costs. This
payment is considered to cover costs related to land, buildings and fixed
equipment, major movable equipment, and any other capital related item. This
shall be the case regardless of whether the property is owned or leased by the
operator. The department shall review the operation and performance of the FRV
methodology every two years.
2. FRV Rate Year. The FRV payment rate shall be a per diem
rate determined each year for each facility using the most recent available
data from settled cost reports, or from other verified sources as specified
herein. The per diem rate shall be determined prospectively and shall apply for
the entire fiscal year. Each provider shall receive a new capital per diem rate
each year effective at the start of the provider's fiscal year, except that
the capital per diem rate shall be revised for the rental rate changes
effective July 1, 2010, through June 30, 2012. Data elements that are
provider specific shall be revised at that time and shall rely on the settled
cost report and schedule of assets of the previous year. Data elements that are
not provider specific, including those published by R.S. Means and the rental
rate, shall be determined annually on or about July 1, and shall apply to
provider fiscal years beginning on or after July 1. That is, each July 1 DMAS
shall determine the R.S. Means values and the rental rate, and these shall
apply to all provider fiscal years beginning on or after July 1.
12VAC30-90-41. Nursing facility reimbursement formula.
A. Effective on and after July 1, 2002, all NFs subject to
the prospective payment system shall be reimbursed under "The Resource
Utilization Group-III (RUG-III) System as defined in Appendix IV
(12VAC30-90-305 through 12VAC30-90-307)." RUG-III is a resident
classification system that groups NF residents according to resource
utilization. Case-mix indices (CMIs) are assigned to RUG-III groups and are
used to adjust the NF's per diem rates to reflect the intensity of services
required by a NF's resident mix. See 12VAC30-90-305 through 12VAC30-90-307 for
details on the Resource Utilization Groups.
1. Any NF receiving Medicaid payments on or after October 1,
1990, shall satisfy all the requirements of § 1919(b) through (d) of the
Social Security Act as they relate to provision of services, residents' rights
and administration and other matters.
2. Direct and indirect group ceilings and rates.
a. In accordance with 12VAC30-90-20 C, direct patient care
operating cost peer groups shall be established for the Virginia portion of the
Washington DC-MD-VA MSA, the Richmond-Petersburg MSA and the rest of the state.
Direct patient care operating costs shall be as defined in 12VAC30-90-271.
b. Indirect patient care operating cost peer groups shall be
established for the Virginia portion of the Washington DC-MD-VA MSA, for the
rest of the state for facilities with less than 61 licensed beds, and for the
rest of the state for facilities with more than 60 licensed beds.
3. Each facility's average case-mix index shall be calculated
based upon data reported by that nursing facility to the Centers for Medicare
and Medicaid Services (CMS) (formerly HCFA) Minimum Data Set (MDS) System. See
12VAC30-90-306 for the case-mix index calculations.
4. The normalized facility average Medicaid CMI shall be used
to calculate the direct patient care operating cost prospective ceilings and
direct patient care operating cost prospective rates for each semiannual period
of a NFs subsequent fiscal year. See 12VAC30-90-306 D 2 for the calculation of
the normalized facility average Medicaid CMI.
a. A NFs direct patient care operating cost prospective
ceiling shall be the product of the NFs peer group direct patient care ceiling
and the NFs normalized facility average Medicaid CMI. A NFs direct patient care
operating cost prospective ceiling will be calculated semiannually.
b. A CMI rate adjustment for each semiannual period of a
nursing facility's prospective fiscal year shall be applied by multiplying the
nursing facility's normalized facility average Medicaid CMI applicable to each
prospective semiannual period by the nursing facility's case-mix neutralized
direct patient care operating cost base rate for the preceding cost reporting
period (see 12VAC30-90-307).
c. See 12VAC30-90-307 for the applicability of case-mix
indices.
5. Direct and indirect ceiling calculations.
a. Effective for services on and after July 1, 2006, the
direct patient care operating ceiling shall be set at 117% of the respective
peer group day-weighted median of the facilities' case-mix neutralized direct
care operating costs per day. The calculation of the medians shall be based on
cost reports from freestanding nursing homes for provider fiscal years ending
in the most recent base year. The medians used to set the peer group direct
patient care operating ceilings shall be revised and case-mix neutralized every
two years using the most recent reliable calendar year cost settled cost
reports for freestanding nursing facilities that have been completed as of
September 1.
b. The indirect patient care operating ceiling shall be set at
107% of the respective peer group day-weighted median of the facility's
specific indirect operating cost per day. The calculation of the peer group
medians shall be based on cost reports from freestanding nursing homes for
provider fiscal years ending in the most recent base year. The medians used to
set the peer group indirect operating ceilings shall be revised every two years
using the most recent reliable calendar year cost settled cost reports for
freestanding nursing facilities that have been completed as of September 1.
6. Reimbursement for use of specialized treatment beds.
Effective for services on and after July 1, 2005, nursing facilities shall be
reimbursed an additional $10 per day for those recipients who require a
specialized treatment bed due to their having at least one Stage IV pressure
ulcer. Recipients must meet criteria as outlined in 12VAC30-60-350, and the
additional reimbursement must be preauthorized as provided in 12VAC30-60-40.
Nursing facilities shall not be eligible to receive this reimbursement for
individuals whose services are reimbursed under the specialized care
methodology. Beginning July 1, 2005, this additional reimbursement shall be
subject to adjustment for inflation in accordance with 12VAC30-90-41 B, except
that the adjustment shall be made at the beginning of each state fiscal year,
using the inflation factor that applies to provider years beginning at that
time. This additional payment shall not be subject to direct or indirect
ceilings and shall not be adjusted at year-end settlement.
B. Adjustment of ceilings and costs for inflation. Effective
for provider fiscal years starting on and after July 1, 2002, ceilings and
rates shall be adjusted for inflation each year using the moving average of the
percentage change of the Virginia-Specific Nursing Home Input Price Index,
updated quarterly, published by Standard & Poor's DRI. For state fiscal
year 2003, peer group ceilings and rates for indirect costs will not be
adjusted for inflation.
1. For provider years beginning in each calendar year, the
percentage used shall be the moving average for the second quarter of the year,
taken from the table published for the fourth quarter of the previous year. For
example, in setting prospective rates for all provider years beginning in
January through December 2002, ceilings and costs would be inflated using the
moving average for the second quarter of 2002, taken from the table published
for the fourth quarter of 2001.
2. Provider specific costs shall be adjusted for inflation
each year from the cost reporting period to the prospective rate period using
the moving average as specified in subdivision 1 of this subsection. If the
cost reporting period or the prospective rate period is less than 12 months
long, a fraction of the moving average shall be used that is equal to the
fraction of a year from the midpoint of the cost reporting period to the midpoint
of the prospective rate period.
3. Ceilings shall be adjusted from the common point
established in the most recent rebasing calculation. Base period costs shall be
adjusted to this common point using moving averages from the DRI tables
corresponding to the provider fiscal period, as specified in subdivision 1 of
this subsection. Ceilings shall then be adjusted from the common point to the
prospective rate period using the moving average(s) for each applicable second
quarter, taken from the DRI table published for the fourth quarter of the year
immediately preceding the calendar year in which the prospective rate years
begin. Rebased ceilings shall be effective on July 1 of each rebasing year, so
in their first application they shall be adjusted to the midpoint of the
provider fiscal year then in progress or then beginning. Subsequently, they
shall be adjusted each year from the common point established in rebasing to
the midpoint of the appropriate provider fiscal year. For example, suppose the
base year is made up of cost reports from years ending in calendar year 2000,
the rebasing year is SFY2003, and the rebasing calculation establishes ceilings
that are inflated to the common point of July 1, 2002. Providers with years in
progress on July 1, 2002, would receive a ceiling effective July 1, 2002, that
would be adjusted to the midpoint of the provider year then in progress. In
some cases this would mean the ceiling would be reduced from the July 1, 2002,
ceiling level. The following table shows the application of these provisions
for different provider fiscal periods.
In this example, when ceilings are
inflated for the second PFY after the rebasing date, the ceilings will be
inflated from July 1, 2002, using moving averages from the DRI table specified
for the second PFY. That is, the ceiling for years ending June 30, 2004, will
be the June 30, 2002, base period ceiling, adjusted by 1/2 of the moving
average for the second quarter of 2002, compounded with the moving average for
the second quarter of 2003. Both these moving averages will be taken from the
fourth quarter 2002 DRI table.
C. The RUG-III Nursing Home Payment System shall require
comparison of the prospective operating cost rates to the prospective operating
ceilings. The provider shall be reimbursed the lower of the prospective
operating cost rate or prospective operating ceiling.
D. Nonoperating costs. Plant or capital, as appropriate,
costs shall be reimbursed in accordance with Articles 1, 2, and 3 of this
subpart. Plant costs shall not include the component of cost related to making or
producing a supply or service.
NATCEPs cost shall be reimbursed in accordance with
12VAC30-90-170.
E. The prospective rate for each NF shall be based upon
operating cost and plant/capital cost components or charges, whichever is
lower, plus NATCEPs costs. The disallowance of nonreimbursable operating costs
in any current fiscal year shall be reflected in a subsequent year's
prospective rate determination. Disallowances of nonreimbursable plant or
capital, as appropriate, costs and NATCEPs costs shall be reflected in the year
in which the nonreimbursable costs are included.
F. Effective July 1, 2001, for those NFs whose indirect
operating cost rates are below the ceilings, an incentive plan shall be
established whereby a NF shall be paid, on a sliding scale, up to 25% of the
difference between its allowable indirect operating cost rates and the indirect
peer group ceilings.
1. The
following table presents four incentive examples:
|
Peer
Group Ceilings
|
Allowable
Cost Per Day
|
Difference
|
%
of Ceiling
|
Sliding
Scale
|
Scale
% Difference
|
|
$30.00
|
$27.00
|
$3.00
|
10%
|
$0.30
|
10%
|
|
30.00
|
22.50
|
7.50
|
25%
|
1.88
|
25%
|
|
30.00
|
20.00
|
10.00
|
33%
|
2.50
|
25%
|
|
30.00
|
30.00
|
0
|
0
|
|
|
2. Efficiency incentives shall be
calculated only for the indirect patient care operating ceilings and costs.
Effective July 1, 2001, a direct care efficiency incentive shall no longer be
paid.
G. Quality of care requirement. A cost efficiency incentive
shall not be paid for the number of days for which a facility is out of
substantial compliance according to the Virginia Department of Health survey
findings as based on federal regulations.
H. Sale of facility. In the event of the sale of a NF, the
prospective base operating cost rates for the new owner's first fiscal period
shall be the seller's prospective base operating cost rates before the sale.
I. Public notice. To comply with the requirements of
§ 1902(a)(28)(c) of the Social Security Act, DMAS shall make available to
the public the data and methodology used in establishing Medicaid payment rates
for nursing facilities. Copies may be obtained by request under the existing
procedures of the Virginia Freedom of Information Act.
J. Effective July 1, 2005, the total per diem payment to each
nursing home shall be increased by $3.00 per day. This increase in the total
per diem payment shall cease effective July 1, 2006. Effective July 1, 2006,
when cost data that include time periods before July 1, 2005, are used to set
facility specific rates, a portion of the $3.00 per day amount identified
above, based on the percentage of patient days in the provider's cost reporting
period that fall before July 1, 2005, adjusted for appropriate inflation and
multiplied times the provider's Medicaid utilization rate, shall be allocated
to the facility specific direct and indirect cost per day prior to comparison
to the peer group ceilings. For purposes of this subsection, $1.68 of the $3.00
shall be considered direct costs and $1.32 of the $3.00 shall be considered
indirect costs.
K. Effective July 1, 2008, and ending after June 30, 2009,
the operating rate for nursing facilities shall be reduced by 1.329%.
L. Effective July 1, 2009, through June 30, 2010, there will
be no inflation adjustment for nursing facility operating rates and ceilings
and specialized care operating rates and ceilings. Exempt from this are
government-owned nursing facilities with Medicaid utilization of 85% or greater
in provider fiscal year 2007.
M. Effective July 1, 2010, through June 30, 2012, there shall
be no inflation adjustment for nursing facility and specialized care operating
rates. Nursing facility and specialized care ceilings shall freeze at the same
level as the ceilings for nursing facilities with provider fiscal year ends of
June 30, 2010.
N. Effective July 1, 2010, through September 30, 2010, the
operating rate for nursing facilities shall be reduced 3.0% below the rates
otherwise calculated.
VA.R. Doc. No. R11-2785; Filed May 6, 2011, 9:23 a.m.
Final Regulation
REGISTRAR'S NOTICE:
The Department of Medical Assistance Services is claiming an exemption from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code
of Virginia, which excludes regulations that are necessary to conform to
changes in Virginia statutory law where no agency discretion is involved. The
Department of Medical Assistance Services will receive, consider, and respond
to petitions from any interested person at any time with respect to
reconsideration or revision.
Title of Regulation: 12VAC30-80. Methods and
Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-40).
Statutory Authority: §§ 32.1-324 and 32.1-325 of
the Code of Virginia.
Effective Date: July 1, 2011.
Agency Contact: Scott Cannady, Program Operations,
Pharmacy Section, Department of Medical Assistance Services, 600 East Broad Street,
Richmond, VA 23219, telephone (804) 786-7959, FAX (804) 786-1680, or email
scott.cannady@dmas.virginia.gov.
Summary:
This regulatory action amends 12VAC30-80-40 for the
estimated acquisition cost payment methodology for Medicaid fee-for-service pharmacy
services to reinstitute average wholesale price (AWP) minus 13.1% as a
permanent methodology. This modification is required to comply with Item 297
SSS of the 2011 Appropriation Act, which requires DMAS to remove the temporary
status language of the prior AWP minus 13.1% reduction effective July 1, 2011.
12VAC30-80-40. Fee-for-service providers: pharmacy.
Payment for pharmacy services shall be the lowest of items 1
through 5 (except that items 1 and 2 will not apply when prescriptions are
certified as brand necessary by the prescribing physician in accordance with
the procedures set forth in 42 CFR 447.512(c) if the brand cost is greater than
the Centers for Medicare and Medicaid Services (CMS) upper limit of VMAC cost)
subject to the conditions, where applicable, set forth in subdivisions 6 and 7
of this section:
1. The upper limit established by the CMS for multiple source
drugs pursuant to 42 CFR 447.512 and 447.514, as determined by the CMS Upper
Limit List plus a dispensing fee. If the agency provides payment for any drugs
on the HCFA Upper Limit List, the payment shall be subject to the aggregate
upper limit payment test.
2. The methodology used to reimburse for generic drug products
shall be the higher of either (i) the lowest Wholesale Acquisition Cost (WAC)
plus 10% or (ii) the second lowest WAC plus 6.0%. This methodology shall
reimburse for products' costs based on a Maximum Allowable Cost (VMAC) list to
be established by the single state agency.
a. In developing the maximum allowable reimbursement rate for
generic pharmaceuticals, the department or its designated contractor shall:
(1) Identify three different suppliers, including
manufacturers that are able to supply pharmaceutical products in sufficient
quantities. The drugs considered must be listed as therapeutically and
pharmaceutically equivalent in the Food and Drug Administration's most recent
version of the Approved Drug Products with Therapeutic Equivalence Evaluations
(Orange Book). Pharmaceutical products that are not available from three
different suppliers, including manufacturers, shall not be subject to the VMAC
list.
(2) Identify that the use of a VMAC rate is lower than the
Federal Upper Limit (FUL) for the drug. The FUL is a known, widely published
price provided by CMS; and
(3) Distribute the list of state VMAC rates to pharmacy
providers in a timely manner prior to the implementation of VMAC rates and
subsequent modifications. DMAS shall publish on its website, each month, the
information used to set the Commonwealth's prospective VMAC rates, including,
but not necessarily limited to:
(a) The identity of applicable reference products used to set
the VMAC rates;
(b) The Generic Code Number (GCN) or National Drug Code (NDC),
as may be appropriate, of reference products;
(c) The difference by which the VMAC rate exceeds the
appropriate WAC price; and
(d) The identity and date of the published compendia used to
determine reference products and set the VMAC rate. The difference by which the
VMAC rate exceeds the appropriate WAC price shall be at least or equal to 10%
above the lowest-published wholesale acquisition cost for products widely
available for purchase in the Commonwealth and shall be included in national
pricing compendia.
b. Development of a VMAC rate that does not have a FUL rate
shall not result in the use of higher-cost innovator brand name or single
source drugs in the Medicaid program.
c. DMAS or its designated contractor shall:
(1) Implement and maintain a procedure to add or eliminate
products from the list, or modify VMAC rates, consistent with changes in the
fluctuating marketplace. DMAS or its designated contractor will regularly
review manufacturers' pricing and monitor drug availability in the marketplace
to determine the inclusion or exclusion of drugs on the VMAC list; and
(2) Provide a pricing dispute resolution procedure to allow a
dispensing provider to contest a listed VMAC rate. DMAS or its designated
contractor shall confirm receipt of pricing disputes within 24 hours, via telephone
or facsimile, with the appropriate documentation of relevant information, e.g.,
invoices. Disputes shall be resolved within three business days of
confirmation. The pricing dispute resolution process will include DMAS' or the
contractor's verification of accurate pricing to ensure consistency with
marketplace pricing and drug availability. Providers will be reimbursed, as
appropriate, based on findings. Providers shall be required to use this dispute
resolution process prior to exercising any applicable appeal rights.
3. The provider's usual and customary charge to the public, as
identified by the claim charge.
4. The Estimated Acquisition Cost (EAC), which shall be based
on the published Average Wholesale Price (AWP) minus a percentage discount established
by the General Assembly (as set forth in subdivision 8 7 of this
section) or, in the absence thereof, by the following methodology set out in
subdivisions a through c of this subdivision.
a. Percentage discount shall be determined by a statewide survey
of providers' acquisition cost.
b. The survey shall reflect statistical analysis of actual
provider purchase invoices.
c. The agency will conduct surveys at intervals deemed
necessary by DMAS.
5. MAC methodology for specialty drugs. Payment for drug
products designated by DMAS as specialty drugs shall be the lesser of
subdivisions 1 through 4 of this section or the following method, whichever is
least:
a. The methodology used to reimburse for designated specialty
drug products shall be the WAC price plus the WAC percentage. The WAC
percentage is a constant percentage identified each year for all GCNs.
b. Designated specialty drug products are certain products
used to treat chronic, high-cost, or rare diseases; the drugs subject to this
pricing methodology and their current reimbursement rates are listed on the
DMAS website at the following internet address:
http://www.dmas.virginia.gov/downloads/pdfs/pharm-special_mac_list.pdf.
c. The MAC reimbursement methodology for specialty drugs shall
be subject to the pricing review and dispute resolution procedures described in
subdivisions 2 c (1) and 2 c (2) of this section.
6. Payment for pharmacy services will be as described above;
however, payment for legend drugs will include the allowed cost of the drug plus
only one dispensing fee per month for each specific drug. Exceptions to the
monthly dispensing fees shall be allowed for drugs determined by the department
to have unique dispensing requirements. The dispensing fee for brand name and
generic drugs is $3.75.
7. The Program pays additional reimbursement for unit dose
dispensing systems of dispensing drugs. DMAS defines its unit dose dispensing
system coverage consistent with that of the Board of Pharmacy of the Department
of Health Professions (18VAC110-20-420). This service is paid only for patients
residing in nursing facilities. Reimbursements are based on the allowed
payments described above plus the unit dose per capita fee to be calculated by
DMAS' fiscal agent based on monthly per nursing home resident service per
pharmacy provider. Only one service fee per month may be paid to the pharmacy
for each patient receiving unit dose dispensing services. Multisource drugs
will be reimbursed at the maximum allowed drug cost for specific multiple
source drugs as identified by the state agency or CMS' upper limits as
applicable. All other drugs will be reimbursed at drug costs not to exceed the
estimated acquisition cost determined by the state agency. The original per
capita fee shall be determined by a DMAS analysis of costs related to such
dispensing, and shall be reevaluated at periodic intervals for appropriate
adjustment. The unit dose dispensing fee is $5.00 per recipient per month per
pharmacy provider.
8. An EAC of AWP minus 13.1% shall become effective
July 1, 2010, through September 30, 2010. An EAC of AWP minus 10.25% shall
become effective October 1, 2010 2011. The dispensing fee for brand
name and generic drugs of $3.75 shall remain in effect, creating a payment
methodology based on the previous algorithm (least of subdivisions of this
section) plus a dispensing fee where applicable.
9. 8. Home infusion therapy.
a. The following therapy categories shall have a pharmacy
service day rate payment allowable: hydration therapy, chemotherapy, pain
management therapy, drug therapy, total parenteral nutrition (TPN). The service
day rate payment for the pharmacy component shall apply to the basic components
and services intrinsic to the therapy category. Submission of claims for the
per diem rate shall be accomplished by use of the CMS 1500 claim form.
b. The cost of the active ingredient or ingredients for
chemotherapy, pain management and drug therapies shall be submitted as a
separate claim through the pharmacy program, using standard pharmacy format.
Payment for this component shall be consistent with the current reimbursement
for pharmacy services. Multiple applications of the same therapy shall be
reimbursed one service day rate for the pharmacy services. Multiple
applications of different therapies shall be reimbursed at 100% of standard
pharmacy reimbursement for each active ingredient.
10. 9. Supplemental rebate agreement. Based on
the requirements in § 1927 of the Social Security Act, the Commonwealth of
Virginia has the following policies for the supplemental drug rebate program
for Medicaid recipients:
a. The model supplemental rebate agreement between the
Commonwealth and pharmaceutical manufacturers for legend drugs provided to
Medicaid recipients, submitted to CMS on February 5, 2004, and entitled
Virginia Supplemental Drug Rebate Agreement Contract A and Amendment #2 to
Contract A has been authorized by CMS.
b. The model supplemental rebate agreement between the
Commonwealth and pharmaceutical manufacturers for drugs provided to Medicaid
recipients, submitted to CMS on February 5, 2004, and entitled Virginia
Supplemental Drug Rebate Agreement Contract B and Amendment #2 to Contract B
has been authorized by CMS.
c. The model supplemental rebate agreement between the
Commonwealth and pharmaceutical manufacturers for drugs provided to Medicaid
recipients, submitted to CMS on February 5, 2004, and entitled Virginia
Supplemental Drug Rebate Agreement Contract C, and Amendments #1 and #2 to
Contract C has been authorized by CMS.
d. Supplemental drug rebates received by the state in excess
of those required under the national drug rebate agreement will be shared with
the federal government on the same percentage basis as applied under the
national drug rebate agreement.
e. Prior authorization requirements found in § 1927(d)(5) of
the Social Security Act have been met.
f. Nonpreferred drugs are those that were reviewed by the
Pharmacy and Therapeutics Committee and not included on the preferred drug
list. Nonpreferred drugs will be made available to Medicaid beneficiaries
through prior authorization.
g. Payment of supplemental rebates may result in a product's
inclusion on the PDL.
VA.R. Doc. No. R11-2780; Filed May 6, 2011, 9:22 a.m.
Final Regulation
REGISTRAR'S NOTICE:
The Department of Medical Assistance Services is claiming an exemption from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code
of Virginia, which excludes regulations that are necessary to conform to
changes in Virginia statutory law where no agency discretion is involved. The
Department of Medical Assistance Services will receive, consider, and respond
to petitions from any interested person at any time with respect to
reconsideration or revision.
Titles of Regulations: 12VAC30-120. Waivered Services (amending 12VAC30-120-165, 12VAC30-120-180,
12VAC30-120-190, 12VAC30-120-225, 12VAC30-120-233, 12VAC30-120-766,
12VAC30-120-950, 12VAC30-120-960, 12VAC30-120-980).
12VAC30-135. Demonstration Waiver Services (amending 12VAC30-135-200, 12VAC30-135-220).
Statutory Authority: §§ 32.1-324 and 32.1-325 of
the Code of Virginia.
Effective Date: July 1, 2011.
Agency Contact: Brian McCormick, Regulatory Supervisor,
Department of Medical Assistance Services, 600 East Broad Street, Suite 1300,
Richmond, VA 23219, telephone (804) 371-8856, FAX (804) 786-1680, or email
brian.mccormick@dmas.virginia.gov.
Summary:
The amendments conform 12VAC30-120, Waivered Services (for
home and community based programs), and 12VAC30-135, Demonstration Waiver
Services, (for the children's mental health waiver) to Item 297 WW and CCCCC of
the 2011 Appropriation Act, which imposed new limits for respite services and personal
care services. Respite services are limited to 480 hours covered annually and
personal care services are limited to 56 hours per waiver individual per week,
up to 52 weeks per year. Individual exceptions to the personal care services
limitation may be granted based on criteria established by the Department of
Medical Assistance Services.
12VAC30-120-165. Consumer-directed services: personal
assistance and respite care services.
A. Service definition.
1. Consumer-directed personal assistance services are care of
either a supportive or health-related nature and may include, but are not
limited to, assistance with activities of daily living, access to the
community, monitoring of self-administration of medication or other medical
needs, monitoring health status and physical condition, and work-related
personal assistance. When specified on the plan of care, such supportive
services may include assistance with instrumental activities of daily living
(IADLs). Personal assistance does not include either practical or professional
nursing services or those practices regulated in Chapters 30 (§ 54.1-3000
et seq.) and 34 (§ 54.1-3400 et seq.) of Subtitle III of Title 54.1 of the
Code of Virginia, as appropriate.
2. Consumer-directed respite care services are specifically
designed to provide temporary, periodic, or routine relief to the unpaid
primary caregiver of an individual. Respite services include, but are not
limited to, assistance with personal hygiene, nutritional support, and
environmental support. This service may be provided in the individual's home or
other community settings.
3. DMAS shall either provide for fiscal agent services or
contract for the services of a fiscal agent for consumer-directed personal
assistance services and consumer-directed respite care services. The fiscal
agent will be reimbursed by DMAS (if the service is contracted) to perform
certain tasks as an agent for the individual/employer who is receiving
consumer-directed services. The fiscal agent will handle responsibilities for
the individual for employment taxes. The fiscal agent will seek and obtain all
necessary authorizations and approvals of the Internal Revenue Service in order
to fulfill all of these duties.
4. Individuals choosing consumer-directed services must receive
support from a CD services facilitator. This is not a separate waiver service,
but is required in conjunction with consumer-directed personal assistance
services or consumer-directed respite care services. The CD service facilitator
is responsible for assessing the individual's particular needs for a requested
CD service, assisting in the development of the plan of care, providing
training to the individual and family/caregiver on his responsibilities as an
employer, and providing ongoing support of the consumer-directed services.
B. Criteria.
1. In order to qualify for consumer-directed personal
assistance services, the individual must demonstrate a need for personal
assistance in activities of daily living, community access, self-administration
of medication or other medical needs, or monitoring health status or physical
condition.
2. Consumer-directed respite care services may only be offered
to individuals who have an unpaid primary caregiver living in the home who
requires temporary relief to avoid institutionalization of the individual.
Respite services are designed to focus on the need of the unpaid caregiver for
temporary relief and to help prevent the breakdown of the unpaid caregiver due
to the physical burden and emotional stress of providing continuous support and
care to the individual.
3. Individuals who are eligible for consumer-directed services
must have the capability to hire and train their own personal assistants and
supervise the assistant's performance or, if an individual is unable to direct
his own care or is under 18 years of age, a family/caregiver may serve as the
employer on behalf of the individual.
4. The individual, or if the individual is unable, then a
family/caregiver, shall be the employer of consumer-directed services, and
therefore shall be responsible for hiring, training, supervising, and firing
assistants. Specific employer duties include checking of references of personal
assistants, determining that personal assistants meet basic qualifications,
training assistants, supervising the assistant's performance, and submitting
timesheets to the fiscal agent on a consistent and timely basis. The individual
or family/caregiver must have a back-up plan for the provision of services in
case the assistant does not show up for work as expected or terminates
employment without prior notice.
5. Assistants may not be the parents of individuals who are
minors or the individuals' spouses. Payment may not be made for services
furnished by other family/caregivers living under the same roof as the
individual being served unless there is objective written documentation as to
why there are no other providers available to provide the care.
C. Service units and service limitations.
1. The unit of service for consumer-directed respite services
is one hour. Effective July 1, 2011, Consumer-directed consumer-directed
respite services are limited to a maximum of 720 480 hours per calendar
year. Individuals who receive either consumer-directed respite care or
agency-directed respite care services, or both, may not receive more than 720
480 hours combined in a calendar year.
2. No more than two unrelated individuals who live in the same
home are permitted to share the authorized work hours of the personal
assistant.
3. The unit of service for consumer-directed personal
assistance services is one hour. Effective July 1, 2011, consumer-directed
personal assistance services shall be limited to 56 hours of medically
necessary services per week for 52 weeks per year. Individual exceptions
may be granted based on criteria established by DMAS.
D. Provider qualifications. In addition to meeting the
general conditions and requirements for home and community-based services,
participating providers as specified in 12VAC30-120-150 and 12VAC30-120-160, the
CD services facilitator must meet the following qualifications:
1. To be enrolled as a Medicaid CD services facilitator and
maintain provider status, the CD services facilitator must have sufficient resources
to perform the required activities. In addition, the CD services facilitator
must have the ability to maintain and retain business and professional records
sufficient to document fully and accurately the nature, scope, and details of
the services provided.
2. It is preferred that the CD services facilitator possess a
minimum of an undergraduate degree in a human services field or be a registered
nurse currently licensed to practice in the Commonwealth of Virginia. The CD
services facilitator must possess a combination of work experience and relevant
education that indicates possession of the following knowledge, skills, and
abilities. Such knowledge, skills, and abilities must be documented on the
provider's application form, found in supporting documentation, or be observed
during the job interview. Observations of knowledge, skills, and abilities
demonstrated during the interview must be documented. The knowledge, skills,
and abilities include:
a. Knowledge of:
(1) Types of functional limitations and health problems that
may occur in persons with HIV/AIDS, as well as strategies to reduce limitations
and health problems;
(2) Physical assistance that may be required by persons with
HIV/AIDS, such as transferring, bathing techniques, bowel and bladder care, and
the approximate time those activities normally take;
(3) Equipment and environmental modifications that may be
required by persons with HIV/AIDS that reduce the need for human help and
improve safety;
(4) Various long-term care program requirements, including
nursing facility and assisted living facility placement criteria; Medicaid
waiver services; and other federal, state and local resources that provide
personal assistance and respite care services;
(5) DMAS HIV/AIDS waiver requirements, as well as the
administrative duties for which the recipient will be responsible;
(6) Conducting assessments (including environmental,
psychosocial, health, and functional factors) and their uses in care planning;
(7) Interviewing techniques;
(8) The individual's right to make decisions about, direct the
provisions of, and control his CD personal assistance and respite services,
including hiring, training, managing, approving time sheets, and firing an
assistant;
(9) The principles of human behavior and interpersonal
relationships; and
(10) General principles of record documentation.
b. Skills in:
(1) Negotiating with individuals and service providers;
(2) Assessing, supporting, observing, recording, and reporting
behaviors;
(3) Identifying, developing, or providing services to
individuals with HIV/AIDS; and
(4) Identifying services within the established services
system to meet the individual's needs.
c. Abilities to:
(1) Report findings of the assessment or onsite visit, either
in writing or an alternative format for individuals who have visual
impairments;
(2) Demonstrate a positive regard for individuals and their
families;
(3) Be persistent and remain objective;
(4) Work independently, performing position duties under
general supervision;
(5) Communicate effectively, verbally and in writing; and
(6) Develop a rapport and communicate with different types of
individuals from diverse cultural backgrounds.
3. If the CD services facilitator is not a registered nurse,
the service facilitator must inform the primary health care provider that CD
services are being provided and to request consultation as needed.
E. Service facilitator responsibilities.
1. The CD service facilitator shall maintain a personal
assistant registry. The registry shall contain names of persons who have
experience with providing personal assistance services or who are interested in
providing personal assistance services. The registry shall be maintained as a
supportive source for the individual who may use the registry to obtain the
names of potential personal assistants. The CD service facilitator shall note
on the plan of care what constitutes the individual's back-up plan in case the
personal assistant does not report for work as expected or terminates
employment without prior notice.
2. Upon the individual's request, the CD service facilitator
shall provide the individual with a list of persons on the personal assistant
registry who can provide temporary assistance until the assistant returns or
the individual is able to select and hire a new personal assistant. If an
individual is consistently unable to hire and retain the employment of an
assistant to provide personal assistance services, the CD service facilitator
must make arrangements with the case manager to have the services transferred
to an agency-directed services provider or to discuss with the individual or
family/caregiver other service options.
3. For consumer-directed services, the CD services facilitator
must make an initial comprehensive home visit to collaborate with the
individual and family/caregiver to identify the needs, assist in the
development of the plan of care with the individual or family/caregiver, and
provide employee management training. Individuals or family/caregivers who
cannot receive management training at the time of the initial visit must
receive management training within seven days of the initial visit. The initial
comprehensive home visit is done only once upon the individual's entry into the
service. If a waiver individual changes CD services facilitators, the new CD
services facilitator must complete a reassessment visit in lieu of a
comprehensive visit.
4. After the initial visit, two routine onsite visits must
occur in the individual's home within 60 days of the initiation of care or the
initial visit to monitor the plan of care. The first onsite visit shall occur
within 30 days and the second onsite visit shall occur no later than 30 days
after the first onsite visit. The CD service facilitator will continue to
monitor the plan of care on an as needed basis, not to exceed a maximum of one
routine onsite visit every 30 days but no less than the minimum of one routine
onsite visit every 90 days per individual. If additional onsite visits are
required, the provider must have documentation to show the necessity for these
extra visits. After the first two routine onsite visits, the CD services
facilitator and individual can decide on the frequency of the routine onsite
visits.
5. After the initial visit, the CD services facilitator will
continue to monitor the assistant's plan of care quarterly and on an as-needed
basis. The CD services facilitator will review the utilization of
consumer-directed respite services, either every six months or upon the use of
300 respite services hours, whichever comes first.
6. A face-to-face meeting with the individual must be
conducted at least every 90 days to ensure appropriateness of any CD services
received by the individual.
7. During visits with the individual, the CD services
facilitator must observe, evaluate, and consult with the individual or
family/caregiver, and document the adequacy and appropriateness of
consumer-directed services with regard to the individual's current functioning
and cognitive status, medical, and social needs. The CD services facilitator's
written summary of the visit must include, but is not necessarily limited to:
a. Discussion with the individual or family/caregiver whether
the service is adequate to meet the individual's needs;
b. Any suspected abuse, neglect, or exploitation and who it
was reported to;
c. Any special tasks performed by the assistant and the
assistant's qualifications to perform these tasks;
d. Individual's or family/caregiver's satisfaction with the
service;
e. Any hospitalization or change in medical condition,
functioning, or cognitive status;
f. The presence or absence of the assistant in the home during
the CD services facilitator's visit; and
g. Other services received and the amount.
8. The CD services facilitator must be available to the
individual by telephone.
9. Prior to a personal assistant providing services, the CD
services facilitator must submit a criminal record check pertaining to the
assistant on behalf of the individual and report findings of the criminal
record check to the individual or the family/caregiver and the fiscal agent. If
the individual is a minor, the assistant must also be screened through the DSS
Child Protective Services Central Registry. Personal assistants will not be
reimbursed for services provided to the individual on or after the date that
the criminal record check confirms an assistant has been found to have been
convicted of a crime as described in § 32.1-162.9:1 of the Code of Virginia or
if the personal assistant has a confirmed record on the DSS Child Protective
Services Registry. DMAS will reimburse for up to six criminal record checks per
individual within a six-month period.
10. The CD services facilitator, during routine visits, shall
verify bi-weekly timesheets signed by the individual or the family/caregiver
and the personal assistant to ensure that the number of plan of care approved
hours are not exceeded. If discrepancies are identified, the CD services
facilitator must contact the individual to resolve the discrepancies and must
notify the fiscal agent. If an individual is consistently being identified as
having discrepancies in his timesheets, the CD services facilitator must
contact the case manager to resolve the situation. The CD services facilitator
shall not verify timesheets for personal assistants whose criminal record
checks have confirmed that they have been convicted of a crime described in §
32.1-162.9:1 of the Code of Virginia or in the case of a minor recipient have a
confirmed case with the DSS Child Protective Services Registry and must notify
the fiscal agent.
11. The CD services facilitator must maintain records of each
individual. At a minimum these records must contain:
a. All copies of the completed Uniform Assessment Instrument
(UAI), all documentation of previous inpatient hospital admissions, the
Long-Term Care Preadmission Screening Authorization (DMAS-96), the Screening
Team Service Plan (DMAS-97), the Consent to Exchange Information (DMAS-20), all
Consumer-Directed Personal Assistance Plans of Care (DMAS-97B), all Patient
Information Forms (DMAS-122), the Outline and Checklist for Consumer-Directed
Recipient Comprehensive Training, and the Service Agreement Between the
Consumer and the Service Facilitator;
b. Reassessments made during the provision of services;
c. All individual progress reports;
d. Results of the initial comprehensive home visit completed
prior to or on the date services are initiated and subsequent reassessments and
changes to the supporting documentation;
e. The plan of care goals and activities must be reviewed at
least annually by the CD services facilitator, the individual and
family/caregiver receiving the services, and the case manager. In addition, the
plan of care must be reviewed by the CD services facilitator quarterly,
modified as appropriate, and submitted to the case manager;
f. CD service facilitator's dated notes documenting any
contacts with the individual, family/caregiver, and visits to the individual's
home;
g. All correspondence to the individual, case manager, the
designated preauthorization contractor, and DMAS;
h. Records of contacts made with family/caregiver, physicians,
formal and informal service providers, and all professionals concerning the
individual;
i. All training provided to the assistants on behalf of the
individual or family/caregiver;
j. All employee management training provided to the individual
or family/caregiver, including the individual's or family/caregiver's receipt
of training on their responsibility for the accuracy of the assistant's
timesheets;
k. All documents signed by the individual or the individual's
family/caregiver that acknowledge the responsibilities as the employer; and
l. Documentation that indicates the efforts taken by the CD
service facilitator to obtain the most recently completed DMAS-122 from the
case manager.
12. The CD service facilitator is required to submit to DMAS
biannually, for every individual, an individual progress report, an updated
UAI, documentation of any inpatient hospital admissions, and any monthly
visit/progress reports. This information is used to assess the individual's
ongoing need for Medicaid-funded long-term care and appropriateness and
adequacy of services rendered.
13. For consumer-directed personal assistance and
consumer-directed respite services, individuals or family/caregivers will hire
their own personal assistants and manage and supervise their performance.
Assistant qualifications include, but shall not necessarily be limited to, the
following requirements. The assistant must:
a. Be 18 years of age or older;
b. Have the required skills to perform consumer-directed
services as specified in the individual's plan of care;
c. Possess basic math, reading, and writing skills;
d. Possess a valid Social Security number;
e. Submit to a criminal records check and, if the individual
is a minor, consent to a search of the DSS Child Protective Services Central
Registry. The assistant will not be compensated for services provided to the
individual if either of these records checks verifies the assistant has been
convicted of crimes described in § 32.1-162.9:1 of the Code of Virginia or if
the assistant has a founded complaint confirmed by the DSS Child Protective
Services Central Registry;
f. Be willing to attend training at the individual's or
family/ caregiver's request;
g. Understand and agree to comply with the DMAS AIDS waiver
requirements;
h. Be willing to register in a personal assistant registry,
which will be maintained by the provider agency chosen by the individual; and
i. Receive yearly tuberculosis (TB) screening, cardiopulmonary
resuscitation (CPR) training and an annual flu shot (unless these procedures
are medically contraindicated).
14. Family members who are reimbursed to provide
consumer-directed services must meet the assistant qualifications.
F. Individual responsibilities.
1. The individual must be authorized for consumer-directed
services and successfully complete management training performed by the service
facilitator before the individual can hire a personal assistant for Medicaid
reimbursement. Individuals who are eligible for consumer-directed services must
have the capability to hire and train their own personal assistants and
supervise assistants' performance. Individuals with cognitive impairments will
not be able to manage their own care. If an individual is unable to direct his
own care, a family caregiver may serve as the employer on behalf of the
individual. Individuals are permitted to share hours for no more than two
individuals living in the same home.
2. The individual or family/caregiver is the employer and is
responsible for hiring, training, supervising, and firing personal assistants.
Specific duties include checking references of personal assistants, determining
that personal assistants meet basic qualifications, training personal
assistants, supervising the personal assistant's performance, and submitting
timesheets to the fiscal agent on a consistent and timely basis. The individual
must have an emergency back-up plan in case the personal assistant does not
show up for work as expected or terminates employment without prior notice.
3. The individual shall cooperate with the development of the
plan of care with the service facilitator, who monitors the plan of care and
provides supportive services to the individual. The individual shall also
cooperate with the fiscal agent that handles fiscal responsibilities on behalf
of the individual. Individuals who do not cooperate with the service
facilitator or fiscal agent may be disenrolled from consumer-directed services
and may be considered for enrollment in agency-directed services.
4. Individuals will acknowledge that they will not knowingly
continue to accept consumer-directed personal assistance services when the
services are no longer appropriate or necessary for their care needs and will
inform the service facilitator. If consumer-directed services continue after
services have been terminated by DMAS or the designated preauthorization
contractor, the individual will be held liable for employee compensation.
5. The individual's right to make decisions about, direct the
provisions of, and control his consumer-directed personal assistance care and
consumer-directed respite care services, including hiring, training, managing,
approving time sheets, and firing an assistant, shall be preserved.
G. Fiscal agent responsibilities.
1. DMAS may contract for the services of a fiscal agent for
consumer-directed services. The fiscal agent will be reimbursed by DMAS to
perform certain tasks as an agent for the recipient/employer who is receiving
consumer-directed services. The fiscal agent will handle certain
responsibilities for the individual, including but not limited to, employment
taxes. The fiscal agent will seek and obtain all necessary authorizations and
approvals of the Internal Revenue Service in order to fulfill all of these
duties.
2. A fiscal agent may be a state agency or other organization,
and will sign a contract with DMAS that defines the roles and tasks expected of
the fiscal agent and DMAS and enroll as a provider of consumer-directed
services. Roles and tasks that will be deemed for the fiscal agent in the
contract will consist of, but not necessarily be limited to, the following:
a. The fiscal agent will file for and obtain employer agent
status with the federal and state tax authorities;
b. Once the individual has been authorized to receive
consumer-directed services, the fiscal agent will register the individual as an
employer and provide assistance to the individual in completing forms required
to obtain employer identification numbers from federal agencies, state
agencies, and unemployment insurance agencies;
c. The fiscal agent will prepare and maintain original and
file copies of all forms needed to comply with federal, state, and local tax
payment of unemployment compensation insurance premiums, and all other
reporting requirements of employers;
d. Upon receipt of the required completed forms from the
individual, the fiscal agent will remit the required forms to the appropriate
agency and maintain copies of the forms in the individual's file. The fiscal
agent will return copies of all forms to the individual for the individual's
permanent personnel records;
e. The fiscal agent will prepare all unemployment tax filings
on behalf of the individual as an employer, and make all deposits of
unemployment taxes withheld according to the appropriate schedule;
f. The fiscal agent will receive and verify that the assistant's
biweekly timesheets do not exceed the maximum hours approved for the individual
and will process the timesheets;
g. The fiscal agent will prepare and process the payroll for
the individual's assistants, and make all appropriate deposits of income tax, FICA,
and other withholdings according to federal and state regulations. Withholdings
include, but are not limited to, all judgments, garnishments, tax levies, or
any related holds on the funds of the personal assistants as may be required by
local, state, or federal law;
h. The fiscal agent will prepare payrolls for the individual's
personal assistant according to approved time sheets and after making
appropriate deductions and withholding deposits;
i. The fiscal agent will make payments on behalf of the
individual for FICA (employer and employee shares), unemployment compensation
taxes, and other payments and taxes required by applicable federal or state
laws or regulations;
j. The fiscal agent will distribute biweekly payroll checks to
the individual's personal assistants on behalf of the individuals;
k. The fiscal agent will maintain accurate payroll records by
preparing and submitting to DMAS, at the time the fiscal agent bills DMAS for
personal assistance services, an accurate accounting of all payments on
personal assistants to whom payments for services were made, including a report
of FICA payments for each covered assistant;
l. The fiscal agent will maintain such other records and
information as DMAS may require, in the form and manner prescribed by DMAS;
m. The fiscal agent will generate W-2 forms for all personal
assistants who meet statutory threshold amounts during the tax year;
n. The fiscal agent will establish a customer service
mechanism in order to respond to calls from individuals and personal assistants
regarding lost or late checks, or other questions regarding payments that are
not related to the authorization amounts generated from DMAS;
o. The fiscal agent will keep abreast of all applicable state
and federal laws and regulations relevant to the responsibilities it has
undertaken with regard to these filings;
p. The fiscal agent will use program-designated billing forms
or electronic billing to bill DMAS, if this service is contracted; and
q. The fiscal agent will be capable of requesting electronic
transfer of funds from DMAS.
3. The fiscal agent and all subcontracting bookkeeping firms,
as appropriate, will maintain the confidentiality of Medicaid information in
accordance with the following:
a. The fiscal agent agrees to comply with HIPAA requirements.
The fiscal agent shall take measures to prudently safeguard and protect
unauthorized disclosure of the Medicaid information in its possession. The
fiscal agent shall establish internal policies to ensure compliance with
federal and state laws and regulations regarding confidentiality. In no event
shall the fiscal agent provide, grant, allow, or otherwise give access to
Medicaid information to anyone without the express written permission of either
the individual or the DMAS Director. The fiscal agent shall assume all
liabilities under both state and federal law in the event that the information
is disclosed in any manner.
b. Upon the fiscal agent receiving any written requests for
Medicaid information from any individual, entity, corporation, partnership, or
otherwise, the fiscal agent must notify DMAS of such requests within 24 hours
of receipt of such requests. The fiscal agent shall ensure that there will be
no disclosure of the data except by and through DMAS. DMAS will treat such
requests in accordance with DMAS policies.
c. In cases where the information requested by outside sources
can be released under the Freedom of Information Act (FOIA), as determined by
DMAS, the fiscal agent shall provide support for copying and invoicing such
documents.
4. A contract between the fiscal agent and the individual will
be used to set forth those aspects of the employment relationship that are to
be handled by the fiscal agent, and which are to be handled by the individual.
The contract will reflect that the fiscal agent is performing these tasks on
behalf of the individual who is the actual employer of the assistant. Before
the individual begins receiving services, the fiscal agent must have a signed
contract with the individual prior to the reimbursement of personal assistance
services.
12VAC30-120-180. Agency-directed personal care services.
A. General. Agency-directed personal care services may be
offered to waiver individuals. Personal care may be offered either as the sole
home and community-based care service that avoids institutionalization or in
conjunction with the other AIDS waiver services. Individuals may continue to
work or attend post-secondary school, or both, while they receive services
under this waiver. The personal care assistant who assists the individual may
accompany the individual to work or school or both and may assist the
individual with personal needs while the individual is at work or school or
both. DMAS will also pay for any personal care services that the assistant
gives to the individual to assist him in getting ready for work or school or
both or when he returns home. DMAS or the designated preauthorization
contractor will review the individual's needs and the complexity of the
disability when determining the services that will be provided to the
individual in the workplace or school or both.
1. Effective July 1, 2011, agency-directed personal care
services shall be limited to 56 hours of medically necessary services per week
for 52 weeks per year.
2. Individual exceptions may be granted based on criteria
established by DMAS.
B. DMAS will not duplicate services that are required as a
reasonable accommodation as a part of the Americans with Disabilities Act (ADA)
(42 USC §§ 12131 through 12165) or the Rehabilitation Act of 1973. For
example, if the individual's only need is for assistance during lunch, DMAS
would not pay for the assistant to be with the individual for any hours
extending beyond lunch. For an individual whose speech is such that he cannot
be understood without an interpreter (not translation of a foreign language),
or the individual is physically unable to speak or make himself understood even
with a communication device, the assistant's services may be necessary for the
length of time the individual is at work or school or both. Workplace or school
supports through the HIV/AIDS waiver are not provided if the services are an
employer's responsibility under the Americans with Disabilities Act or
§ 504 of the Rehabilitation Act.
C. The provider agency must develop an individualized plan of
care that addresses the individual's needs at home, at work or school and in
the community. DMAS will not pay for the assistant to assist the enrolled
individual with any functions related to the individual completing his job or
school functions or for supervision time during work, school, or both.
D. Special provider participation conditions. The personal
care provider shall:
1. Operate from a business office.
2. Employ (or subcontract with) and directly supervise a
registered nurse who will provide ongoing supervision of all personal care
aides.
a. The registered nurse shall be currently licensed to
practice in the Commonwealth of Virginia and have at least two years of related
clinical nursing experience (which may include work in an acute care hospital,
public health clinic, home health agency, rehabilitation hospital, nursing
facility, or as a licensed practical nurse (LPN)).
b. The registered nurse shall have a satisfactory work record,
as evidenced by references from prior job experience, including no evidence of
abuse, neglect, or exploitation of incapacitated or older adults and children.
Providers are responsible for complying with § 32.1-162.9:1 of the Code of
Virginia regarding criminal record checks. The criminal record check
documentation shall be available for review by DMAS staff who are authorized by
the agency to review these files, as a part of the utilization review process.
c. The registered nurse supervisor shall make an initial home
assessment on or before the start of care for all new individuals admitted to
personal care, when individuals are readmitted after being discharged from
services, or are transferred from another personal care provider.
d. The registered nurse supervisor shall make supervisory
visits as often as needed, but no fewer visits than provided as follows, to
ensure both quality and appropriateness of services.
(1) A minimum frequency of these visits is every 30 days for
individuals with a cognitive impairment, as defined herein, and every 90 days
for individuals who do not have a cognitive impairment.
(2) The initial home assessment visit by the registered nurse
shall be conducted to create the plan of care and assess individuals' needs.
The registered nurse shall return for a follow-up visit within 30 days after
the initial visit to assess the individual's needs and make a final
determination that there is no cognitive impairment. This determination must be
documented in the individual's record by the registered nurse. Individuals who
are determined to have a cognitive impairment will continue to have supervisory
visits every 30 days.
(3) If there is no cognitive impairment, the registered nurse may
give the individual or caregiver or both the option of having the supervisory
visit every 90 days or any increment in between, not to exceed 90 days. The
registered nurse must document this conversation in the individual's record and
the option that was chosen.
(4) The provider has the responsibility of determining if
30-day registered nurse supervisory visits are appropriate for the individual.
The provider may offer the extended registered nurse supervisory visits, or the
agency may choose to continue the 30-day supervisory visits based on the needs
of the individual. The decision must be documented in the individual's record.
(5) If an individual's personal care assistant is supervised
by the provider's registered nurse less often than every 30 days and DMAS or
the designated preauthorization contractor determines that the individual's
health, safety, or welfare is in jeopardy, DMAS or the designated
preauthorization contractor may require the provider's registered nurse to
supervise the personal care aide every 30 days or more frequently than what has
been determined by the registered nurse. This will be documented and entered in
the individual's record.
e. During visits to the individual's home, the registered
nurse shall observe, evaluate, and document the adequacy and appropriateness of
personal care services with regard to the individual's current functioning
status, medical, and social needs. The personal care aide's record shall be
reviewed and the recipient's (or family's) satisfaction with the type and
amount of service discussed. The registered nurse summary shall note:
(1) Whether personal care services continue to be appropriate.
(2) Whether the plan is adequate to meet the individual's
needs or if changes need to be made in the plan of care.
(3) Any special tasks performed by the aide and the aide's
qualifications to perform these tasks.
(4) Individual's satisfaction with the service.
(5) Hospitalization or change in the medical condition or
functioning status of the individual.
(6) Other services received by the individual and the amount;
and
(7) The presence or absence of the aide in the home during the
registered nurse's visit.
f. A registered nurse shall be available to the personal care
aide for conference pertaining to individuals being served by the aide and
shall be available to aides by telephone at all times that the aide is
providing services to personal care individuals.
g. The registered nurse supervisor shall evaluate the aides'
performance and the individual's needs to identify any insufficiencies in the
aide's abilities to function competently and shall provide training as
indicated. This shall be documented in the individual's record.
h. If there is a delay in the registered nurses' supervisory
visits, because the individual was unavailable, the reason for the delay must
be documented in the individual's record.
3. Employ and directly supervise personal care aides who
provide direct care to personal care individuals. Each aide hired by the
provider agency shall be evaluated by the provider agency to ensure compliance
with qualifications required by DMAS. Each aide shall:
a. Be able to read and write.
b. Complete a minimum of 40 hours of training consistent with
DMAS standards. Prior to assigning an aide to an individual, the provider
agency shall ensure that the aide has satisfactorily completed a training
program consistent with DMAS standards.
c. Be physically able to do the work.
d. Have a satisfactory work record, as evidenced by references
from prior job experience, including no evidence of abuse, neglect or
exploitation of incapacitated or older adults and children. Providers are
responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding
criminal record checks. The criminal record check shall be available for review
by DMAS staff who are authorized by the agency to review these files; and
e. Not be (i) the parents of minor children who are receiving
waiver services or (ii) spouses of individuals who are receiving waiver
services.
Payment may be made for services furnished by other family
members when there is objective written documentation as to why there are no
other providers available to provide the care. These family members must meet
the same requirements as aides who are not family members.
C. E. Required documentation for individuals'
records. The provider agency shall maintain all records of each personal care
recipient. These records shall be separate from those of nonhome and
community-based care services, such as companion or home health services. These
records shall be reviewed periodically by the DMAS staff who are authorized by
DMAS to review these files during utilization review. At a minimum these
records shall contain:
1. The most recently updated Long Term Care Uniform Assessment
Instrument (UAI), documentation of any inpatient hospital admissions, the
Medicaid-Funded Long-Term Care Service Authorization form (DMAS-96), the
Screening Team Service Plan for Medicaid-Funded Long-Term Care (DMAS-97), the
Consent to Exchange Information (DMAS-20), all Provider Agency Plans of Care
(DMAS—97A), all Community-Based Care Recipient Assessment Reports (DMAS-99),
all Patient Information Forms (DMAS-122), and the Service Agreement Between the
Consumer and the Service Facilitator.
2. The initial assessment by a registered nurse completed
prior to or on the date that services are initiated.
3. Registered nurses' notes recorded and dated during any
significant contacts with the personal care aide and during supervisory visits
to the individual's home.
4. All correspondence to the individual, DMAS, the designated
preauthorization contractor.
5. Reassessments made during the provision of services.
6. Significant contacts made with family, physicians, DMAS,
the designated preauthorization contractor, formal and informal service
providers and all professionals related to the individual's Medicaid services
or medical care.
7. All Provider Aide/LPN Records (DMAS-90). The Provider
Aide/LPN Record shall contain:
a. The specific services delivered to the individual by the
aide and the individual's response to this service;
b. The aide's daily arrival and departure times;
c. The aide's weekly comments or observations about the
individual, including observations of the individual's physical and emotional
condition, daily activities, and responses to services rendered; and
d. The aide's and individual's, or responsible caregiver's,
weekly signatures, including the date, to verify that personal care services
have been rendered during that week as documented in the record. An employee of
the provider cannot sign for the individual unless he is a family member or
legal guardian of the individual.
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.
8. All individual progress reports.
12VAC30-120-190. Agency-directed respite care services.
A. General. Agency-directed respite care services may be
offered to individuals as an alternative to institutional care. Respite care
may be offered to individuals in their homes or places of residence, in a
Medicaid-certified nursing facility, or in a licensed respite care facility.
Respite care is distinguished from other services in the continuum of long-term
care because it is specifically designed to focus on the need of the unpaid
primary caregiver for temporary relief. Respite care may only be offered to
individuals who have an unpaid primary caregiver living in the home who
requires temporary relief to avoid institutionalization of the individual. The
Effective July 1, 2011, the authorization of respite care is limited to 720
480 hours per calendar year per individual. An individual who
transfers to a different provider or is discharged and readmitted into the
HIV/AIDS waiver program within the same calendar year will not receive
an additional 720 480 hours of respite care. Reimbursement shall
be made on an hourly basis not to exceed a total of 720 480 hours
per calendar year. If an individual is receiving both agency directed
and consumer directed respite care, the total number of respite care hours
cannot exceed a total of 720 480 hours combined per calendar
year.
B. Special provider participation conditions. To be approved
for respite care contracts with DMAS, the respite care provider shall:
1. Operate from a business office.
2. Employ (or subcontract) with and directly supervise a
registered nurse who will provide ongoing supervision of all respite care
aides.
a. The registered nurse shall be currently licensed to
practice in the Commonwealth and have at least two years of related clinical
nursing experience which may include work in an acute care hospital, public
health clinic, home health agency, rehabilitation hospital, nursing facility or
as an LPN.
b. The registered nurse shall have a satisfactory work record,
as evidenced by references from prior job experience, including no evidence of
abuse, neglect, or exploitation of incapacitated or older adults and children.
Providers are responsible for complying with § 32.1-162.9:1 of the Code of
Virginia regarding criminal record checks. The criminal record check shall be
available for review by DMAS staff who are authorized by the agency to review
these files.
c. Based on continuing evaluations of the aides' performance
and the individuals' needs, a registered nurse supervisor shall identify any
insufficiencies in the aides' abilities to function competently and shall
provide training as indicated.
d. A registered nurse supervisor shall make an initial home
assessment visit on or before the start of care for any individual admitted to
respite care.
e. A registered nurse supervisor shall make supervisory visits
as often as needed to ensure both quality and appropriateness of services.
(1) When respite care services are received on a routine
basis, the minimum acceptable frequency of these visits shall be every 30 days.
(2) When respite care services are not received on a routine
basis, but are episodic in nature, a registered nurse shall not be required to
conduct a supervisory visit every 30 days. Instead, a registered nurse shall
conduct the initial home visit with the respite care aide on or before the
start of care and make a second home visit during the second respite care
visit.
(3) When respite care services are routine in nature and
offered in conjunction with personal care, the supervisory visit conducted for
personal care services may serve as the registered nurse supervisory visit for
respite care. However, the registered nurse supervisor shall document
supervision of respite care separately from the personal care documentation.
For this purpose, the same individual record can be used with a separate
section for respite care documentation.
f. During visits to the individual's home, the registered
nurse shall observe, evaluate, and document the adequacy and appropriateness of
respite care services with regard to the individual's current functioning
status, medical, and social needs. The respite care aide's record shall be
reviewed and the recipient's or family's satisfaction with the type and amount
of service discussed. The registered nurse shall document in a summary note:
(1) Whether respite care services continue to be appropriate;
(2) Whether the plan of care is adequate to meet the
individual's needs or if changes need to be made in the plan of care;
(3) The individual's satisfaction with the service;
(4) Any hospitalization or change in the medical condition or
functioning status of the individual;
(5) Other services received by the individual and the amount
of services received; and
(6) The presence or absence of the aide in the home during the
registered nurse's visit.
g. A registered nurse shall be available to the respite care
aide for conference pertaining to individuals being served by the aide and
shall be available to the aides by telephone at all times that aides are
providing services to respite care individuals.
h. If there is a delay in the registered nurse's supervisory
visits because the individual is unavailable, the reason for the delay must be
documented in the individual's record.
3. Employ and directly supervise respite care aides who
provide direct care to respite care individuals. Each aide hired by the provider
agency shall be evaluated by the provider agency to ensure compliance with
qualifications as required by DMAS. Each aide must:
a. Be able to read and write in English to the degree
necessary to perform the tasks expected.
b. Have completed a minimum 40 hours of training consistent
with DMAS standards. Prior to assigning an aide to an individual, the provider
agency shall ensure that the aide has satisfactorily completed a training
program consistent with DMAS standards.
c. Be evaluated in his job performance by the registered nurse
supervisor.
d. Be physically able to do the work.
e. Have a satisfactory work record, as evidenced by references
from prior job experience, including no evidence of abuse, neglect, or
exploitation of incapacitated or older adults and children. Providers are
responsible for complying with § 32.1-162.9:1 of the Code of Virginia regarding
criminal record checks. The criminal record check documentation shall be
available for review by DMAS staff who are authorized by the agency to review
these files.
f. Not be (i) the parents of minor children who are receiving
waiver services or (ii) the spouses of individuals who are receiving waiver
services.
Payment may be made for services furnished by other family
members when there is objective written documentation as to why there are no
other providers available to provide the care. These family members must meet
the same requirements as aides who are not family members.
4. The respite care agency may employ a licensed practical
nurse (LPN) to perform skilled respite care services which shall be reimbursed
by DMAS under the following circumstances:
a. The LPN shall be currently licensed to practice in the
Commonwealth. The LPN must have a satisfactory work record, as evidenced by
references from prior job experience, including no evidence of abuse, neglect,
or exploitation of incapacitated or older adults and children. Providers shall
be responsible for complying with § 32.1-162.9:1 of the Code of Virginia
regarding criminal record checks. The criminal record check documentation shall
be available for review by DMAS staff who are authorized by the agency to
review these files.
b. The individual has a need for routine skilled care that
cannot be provided by unlicensed personnel. This individual would typically
require a skilled level of care if in a nursing facility (i.e., individuals on
a ventilator, individuals requiring nasogastric or gastrostomy feedings, etc.).
c. No other person in the individual's support system is able
to supply the skilled component of the individual's care during the caregiver's
absence.
d. The individual is unable to receive skilled nursing visits
from any other source which could provide the skilled care usually given by the
caregiver.
e. The agency must document in the individual's record the
circumstances which require the provision of services by an LPN.
f. A physician's order for the skilled respite service, on the
Home Health Certification and Plan of Care (CMS-485) is obtained prior to the
initiation of service and is updated every six months. This order must
specifically identify the skilled tasks to be performed.
The registered nurse shall review the medications and
treatments rendered by the LPN every 60 days and verify the physician's orders.
C. Required documentation for individuals' records. The
provider agency shall maintain all records of each respite care individual.
These records shall be separate from those of nonhome and community-based care
services, such as companion or home health services. These records shall be
reviewed periodically by the DMAS staff who are authorized by the agency to
review these files during utilization review. At a minimum these records shall
contain:
1. The most recently updated Long Term Care Uniform Assessment
Instrument (UAI), documentation of any inpatient hospital admissions, the
Medicaid-Funded Long-Term Care Service Authorization form (DMAS-96), the
Screening Team Service Plan for Medicaid-Funded Long-Term Care (DMAS-97), all
Community-Based Care Assessment Reports (DMAS-99), all Provider Agency Plans of
Care (DMAS-97A and CMS-485), and all Patient Information Forms (DMAS-122);
.
2. The initial assessment by a registered nurse completed
prior to or on the date services are initiated.
3. Registered nurse's notes recorded and dated during
significant contacts with the respite care aide or LPN and during supervisory
visits to the individual's home.
4. All correspondence to the individual, DMAS, and the
designated preauthorization contractor.
5. Reassessments made during the provision of services.
6. Significant contacts made with family, physicians, DMAS,
the designated preauthorization contractor, formal and informal service
providers, and all professionals related to the individual's Medicaid services
or medical care.
7. All Provider Aide/LPN Records (DMAS-90). The provider
aide/LPN record shall contain:
a. The specific services delivered to the individual by the
respite care aide, or LPN, and the individual's response to this service.
b. The daily arrival and departure times of the aide or LPN
for respite care services.
c. Comments or observations recorded weekly about the
individual. Aide or LPN comments shall include but not be limited to
observation of the individual's physical and emotional condition, daily
activities, and the individual's response to services rendered.
d. The signatures of the aide, or LPN, and the individual once
each week to verify that respite care services have been rendered.
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. If
the individual is unable to sign the aide record, it must be documented in the
individual's record how or who will sign in his place. An employee of the
provider shall not sign for the individual unless he is a family member or
legal guardian of the individual and has direct knowledge of the care received
by the individual.
8. All recipient progress reports.
12VAC30-120-225. Consumer-directed model of service delivery.
A. Criteria.
1. The MR Waiver has three services, companion, personal
assistance, and respite, that may be provided through a consumer-directed
model. Effective July 1, 2011, respite services shall be limited to 480
hours per year.
2. Individuals who choose the consumer-directed model must
have the capability to hire, train, and fire their own personal assistant or
companion and supervise the assistant's or companion's performance. If an
individual is unable to direct his own care or is under 18 years of age, a
family/caregiver may serve as the employer on behalf of the individual.
3. The individual, or if the individual is unable, then
family/caregiver, shall be the employer in this service, and therefore shall be
responsible for hiring, training, supervising, and firing assistants and
companions. Specific employer duties include checking of references of personal
assistants/companions, determining that personal assistants/companions meet
basic qualifications, training assistants/companions, supervising the
assistant's/companion's performance, and submitting timesheets to the fiscal
agent on a consistent and timely basis. The individual and the individual's
family/caregiver, as appropriate, must have a back-up plan in case the
assistant/companion does not show up for work as expected or terminates
employment without prior notice.
4. Individuals choosing consumer-directed models of service
delivery must receive support from a CD services facilitator. This is not a
separate waiver service, but is required in conjunction with consumer-directed
personal assistance, respite, or companion services. The CD services
facilitator will be responsible for assessing the individual's particular needs
for a requested CD service, assisting in the development of the ISP, providing
training to the individual and the individual's family/caregiver, as
appropriate, on his responsibilities as an employer, and providing ongoing
support of the consumer-directed models of services. The CD services
facilitator cannot be the individual, the individual's case manager, direct
service provider, spouse, or parent of the individual who is a minor child, or
a family/caregiver employing the assistant/companion. If an individual enrolled
in consumer-directed services has a lapse in services facilitator for more than
90 consecutive days, the case manager must notify DMHMRSAS and the
consumer-directed services will be discontinued.
5. DMAS shall provide for fiscal agent services for consumer-directed
personal assistance services, consumer-directed companion services, and
consumer-directed respite services. The fiscal agent will be reimbursed by DMAS
to perform certain tasks as an agent for the individual/employer who is
receiving consumer-directed services. The fiscal agent will handle the
responsibilities of employment taxes for the individual. The fiscal agent will
seek and obtain all necessary authorizations and approvals of the Internal
Revenue Services in order to fulfill all of these duties.
B. Provider qualifications. In addition to meeting the
general conditions and requirements for home and community-based services
participating providers as specified in 12VAC30-120-217 and 12VAC30-120-219,
the CD services facilitator must meet the following qualifications:
1. To be enrolled as a Medicaid CD services facilitator and
maintain provider status, the CD services facilitator shall have sufficient
resources to perform the required activities. In addition, the CD services
facilitator must have the ability to maintain and retain business and
professional records sufficient to document fully and accurately the nature,
scope, and details of the services provided.
2. It is preferred that the CD services facilitator possess a
minimum of an undergraduate degree in a human services field or be a registered
nurse currently licensed to practice in the Commonwealth. In addition, it is
preferable that the CD services facilitator have two years of satisfactory
experience in a human service field working with persons with mental
retardation. The facilitator must possess a combination of work experience and
relevant education that indicates possession of the following knowledge,
skills, and abilities. Such knowledge, skills, and abilities must be documented
on the provider's application form, found in supporting documentation, or be
observed during a job interview. Observations during the interview must be
documented. The knowledge, skills, and abilities include:
a. Knowledge of:
(1) Types of functional limitations and health problems that
may occur in persons with mental retardation, or persons with other
disabilities, as well as strategies to reduce limitations and health problems;
(2) Physical assistance that may be required by people with
mental retardation, such as transferring, bathing techniques, bowel and bladder
care, and the approximate time those activities normally take;
(3) Equipment and environmental modifications that may be
required by people with mental retardation that reduce the need for human help
and improve safety;
(4) Various long-term care program requirements, including
nursing home and ICF/MR placement criteria, Medicaid waiver services, and other
federal, state, and local resources that provide personal assistance, respite,
and companion services;
(5) MR waiver requirements, as well as the administrative
duties for which the services facilitator will be responsible;
(6) Conducting assessments (including environmental,
psychosocial, health, and functional factors) and their uses in service
planning;
(7) Interviewing techniques;
(8) The individual's right to make decisions about, direct the
provisions of, and control his consumer-directed personal assistance, companion
and respite services, including hiring, training, managing, approving time
sheets, and firing an assistant/companion;
(9) The principles of human behavior and interpersonal
relationships; and
(10) General principles of record documentation.
b. Skills in:
(1) Negotiating with individuals and the individual's family/caregivers,
as appropriate, and service providers;
(2) Assessing, supporting, observing, recording, and reporting
behaviors;
(3) Identifying, developing, or providing services to
individuals with mental retardation; and
(4) Identifying services within the established services
system to meet the individual's needs.
c. Abilities to:
(1) Report findings of the assessment or onsite visit, either
in writing or an alternative format for individuals who have visual
impairments;
(2) Demonstrate a positive regard for individuals and their
families;
(3) Be persistent and remain objective;
(4) Work independently, performing position duties under
general supervision;
(5) Communicate effectively, orally and in writing; and
(6) Develop a rapport and communicate with persons of diverse
cultural backgrounds.
3. If the CD services facilitator is not a RN, the CD services
facilitator must inform the primary health care provider that services are
being provided and request skilled nursing or other consultation as needed.
4. Initiation of services and service monitoring.
a. For consumer-directed services, the CD services facilitator
must make an initial comprehensive home visit to collaborate with the
individual and the individual's family/caregiver, as appropriate, to identify
the needs, assist in the development of the ISP with the individual and the
individual's family/caregiver, as appropriate, and provide employee management
training. The initial comprehensive home visit is done only once upon the
individual's entry into the consumer-directed model of service regardless of
the number or type of consumer-directed services that an individual chooses to
receive. If an individual changes CD services facilitators, the new CD services
facilitator must complete a reassessment visit in lieu of a comprehensive
visit.
b. After the initial visit, the CD services facilitator will
continue to monitor the companion, or personal assistant ISP quarterly and on
an as-needed basis. The CD services facilitator will review the utilization of
consumer-directed respite services, either every six months or upon the use of 300
240 respite services hours, whichever comes first.
c. A face-to-face meeting with the individual must be
conducted at least every six months to reassess the individual's needs and to
ensure appropriateness of any CD services received by the individual.
5. During visits with the individual, the CD services
facilitator must observe, evaluate, and consult with the individual and the
individual's family/caregiver, as appropriate, and document the adequacy and
appropriateness of consumer-directed services with regard to the individual's
current functioning and cognitive status, medical needs, and social needs.
6. The CD services facilitator must be available to the
individual by telephone.
7. The CD services facilitator must submit a criminal record
check pertaining to the assistant/companion on behalf of the individual and
report findings of the criminal record check to the individual and the individual's
family/caregiver, as appropriate, and the program's fiscal agent. If the
individual is a minor, the assistant/companion must also be screened through
the DSS Child Protective Services Central Registry. Assistants/companions will
not be reimbursed for services provided to the individual effective the date
that the criminal record check confirms an assistant/companion has been found
to have been convicted of a crime as described in § 37.2-416 of the Code of
Virginia or if the assistant/companion has a confirmed record on the DSS Child
Protective Services Central Registry. The criminal record check and DSS Child
Protective Services Central Registry finding must be requested by the CD
services facilitator within 15 calendar days of employment. The services
facilitator must maintain evidence that a criminal record check was obtained
and must make such evidence available for DMAS review.
8. The CD services facilitator shall review timesheets during
the face-to-face visits or more often as needed to ensure that the number of
ISP-approved hours is not exceeded. If discrepancies are identified, the CD
services facilitator must discuss these with the individual to resolve
discrepancies and must notify the fiscal agent.
9. The CD services facilitator must maintain a list of persons
who are available to provide consumer-directed personal assistance,
consumer-directed companion, or consumer-directed respite services.
10. The CD services facilitator must maintain records of each
individual as described in 12VAC30-120-217, 12VAC30-120-223, and
12VAC30-120-233.
11. Upon the individual's request, the CD services facilitator
shall provide the individual and the individual's family/caregiver, as
appropriate, with a list of persons who can provide temporary assistance until
the assistant/companion returns or the individual is able to select and hire a
new personal assistant/companion. If an individual is consistently unable to
hire and retain the employment of an assistant/companion to provide
consumer-directed personal assistance, companion, or respite services, the CD
services facilitator will make arrangements with the case manager to have the
services transferred to an agency-directed services provider or to discuss with
the individual and the individual's family/caregiver, as appropriate, other
service options.
12VAC30-120-233. Personal assistance and respite services.
A. Service description. Services may be provided either
through an agency-directed or consumer-directed model.
1. Personal assistance services are provided to individuals in
the areas of activities of daily living, instrumental activities of daily
living, access to the community, monitoring of self-administered medications or
other medical needs, monitoring of health status and physical condition, and
work-related personal assistance. They may be provided in home and community
settings to enable an individual to maintain the health status and functional
skills necessary to live in the community or participate in community
activities. When specified, such supportive services may include assistance
with instrumental activities of daily living (IADLs). Personal assistance does
not include either practical or professional nursing services or those
practices regulated in Chapters 30 (§ 54.1-3000 et seq.) and 34 (§ 54.1-3400 et
seq.) of Title 54.1 of the Code of Virginia, as appropriate. This service does
not include skilled nursing services with the exception of skilled nursing
tasks that may be delegated pursuant to 18VAC90-20-420 through 18VAC90-20-460.
2. Respite services are supports for that which is normally
provided by the family or other unpaid primary caregiver of an individual.
These services are furnished on a short-term basis because of the absence or
need for relief of those unpaid caregivers normally providing the care for the
individuals.
B. Criteria.
1. In order to qualify for personal assistance services, the
individual must demonstrate a need for assistance with activities of daily
living, community access, self-administration of medications or other medical
needs, or monitoring of health status or physical condition.
2. Respite services may only be offered to individuals who
have an unpaid primary caregiver who requires temporary relief to avoid
institutionalization of the individual.
C. Service units and service limitations.
1. The unit of service is one hour.
2. Each individual must have a back-up plan in case the
personal assistant does not show up for work as expected or terminates
employment without prior notice.
3. Personal assistance is not available to individuals: (i)
who receive congregate residential services or live in assisted living
facilities; (ii) who would benefit from personal assistance training and skill
development; or (iii) who receive comparable services provided through another
program or service.
4. Respite services shall not be provided to relieve group
home or assisted living facility staff where residential care is provided in
shifts. Respite services shall not be provided by adult foster care providers
for an individual residing in that home. Training of the individual is not
provided with respite services.
5. Respite Effective July 1, 2011, respite
services shall be limited to a maximum of 720 480 hours per calendar
year. Individuals who are receiving services through both the agency-directed
and consumer-directed model cannot exceed 720 480 hours per calendar
year combined.
6. The Within the limits established herein, the
hours authorized are based on individual need. No more than two unrelated
individuals who live in the same home are permitted to share the authorized
work hours of the assistant.
D. Provider requirements. In addition to meeting the general
conditions and requirements for home and community-based participating
providers as specified in 12VAC30-120-217 and 12VAC30-120-219, personal
assistance and respite providers must meet additional provider requirements:
1. Services shall be provided by:
a. For the agency-directed model, an enrolled DMAS personal
care/respite care provider or by a DMHMRSAS-licensed residential services
provider. In addition, respite services may be provided by a DMHMRSAS-licensed
respite services provider or a DSS-approved foster care home for children or
adult foster home provider. All personal assistants must pass an objective
standardized test of skills, knowledge, and abilities approved by DMHMRSAS and
administered according to DMHMRSAS' defined procedures.
b. For consumer-directed model, a services facilitator meeting
the requirements found in 12VAC30-120-225.
2. For DMHMRSAS-licensed residential or respite services
providers, a residential or respite supervisor will provide ongoing supervision
of all assistants.
3. For DMAS-enrolled personal care/respite care providers, the
provider must employ or subcontract with and directly supervise a RN or a LPN
who will provide ongoing supervision of all assistants. The supervising RN or
LPN must be currently licensed to practice nursing 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/MR or
nursing facility.
4. The supervisor or services facilitator must make a home
visit to conduct an initial assessment prior to the start of services for all
individuals requesting personal assistance or respite services. The supervisor
or services facilitator must also perform any subsequent reassessments or
changes to the supporting documentation.
5. The supervisor or services facilitator must make
supervisory home visits as often as needed to ensure both quality and
appropriateness of services. The minimum frequency of these visits is every 30
to 90 days under the agency-directed model and semi-annually (every six months)
under the consumer-directed model depending on the individual's needs.
a. When respite services are not received on a routine basis,
but are episodic in nature, the supervisor or services facilitator is not
required to conduct a supervisory visit every 30 to 90 days. Instead, the
supervisor or services facilitator must conduct the initial home visit with the
respite assistant immediately preceding the start of services and make a second
home visit within the respite period.
b. When respite services are routine in nature and offered in
conjunction with personal assistance, the supervisory visit conducted for
personal assistance may serve as the supervisory visit for respite services.
However, the supervisor or services facilitator must document supervision of
respite services separately. For this purpose, the same individual record can
be used with a separate section for respite services documentation.
6. Based on continuing evaluations of the assistant's
performance and individual's needs, the supervisor or services facilitator
shall identify any gaps in the assistant's ability to function competently and
shall provide training as indicated.
7. Qualification of assistants.
a. The assistant must:
(1) Be 18 years of age or older and possess a valid social
security number;
(2) Be able to read and write English to the degree necessary
to perform the tasks expected and possess basic math skills; and
(3) Have the required skills to perform services as specified
in the individual's ISP.
b. Additional requirements for DMAS-enrolled personal
care/respite care providers.
(1) Assistants must complete a training curriculum consistent
with DMAS requirements. Prior to assigning an assistant to an individual, the
provider must obtain documentation that the assistant has satisfactorily completed
a training program consistent with DMAS requirements. DMAS requirements may be
met in one of three ways:
(a) Registration as a certified nurse aide;
(b) Graduation from an approved educational curriculum that
offers certificates qualifying the student as a nursing assistant, geriatric
assistance, or home health aide;
(c) Completion of provider-offered training, which is
consistent with the basic course outline approved by DMAS; and
(2) Assistants must 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.
c. Additional requirements for the consumer-directed option.
The assistant must:
(1) Submit to a criminal records check and, if the individual
is a minor, consent to a search of the DSS Child Protective Services Central
Registry. The assistant will not be compensated for services provided to the
individual if either of these records checks verifies the assistant has been
convicted of crimes described in § 37.2-416 of the Code of Virginia or if
the assistant has a founded complaint confirmed by the DSS Child Protective
Services Central Registry;
(2) Be willing to attend training at the individual and the
individual's family/caregiver, as appropriate, request;
(3) Understand and agree to comply with the DMAS MR Waiver
requirements; and
(4) Receive an annual tuberculosis (TB) screening.
8. Assistants may not be the parents of individuals who are minors,
or the individuals' spouses. Payment may 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 service. Family members who are
approved to be reimbursed for providing this service must meet the assistant
qualifications.
9. Provider inability to render services and substitution of
assistants (agency-directed model).
a. When an assistant is absent, the provider is responsible
for ensuring that services continue to be provided to individuals. The provider
may either provide another assistant, obtain a substitute assistant 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. The
provider that has the authorization to provide services to the individual must
contact the case manager to determine if additional preauthorization is necessary.
b. If no other provider is available who can supply a
substitute assistant, the provider shall notify the individual and the
individual's family/caregiver, as appropriate, and case manager so that the
case manager may find another available provider of the individual's choice.
c. During temporary, short-term lapses in coverage not to
exceed two weeks in duration, the following procedures must apply:
(1) The preauthorized provider must provide the supervision
for the substitute assistant;
(2) The provider of the substitute assistant must send a copy
of the assistant's daily documentation signed by the individual and the
individual's family/caregiver, as appropriate, on his behalf and the assistant
to the provider having the authorization; and
(3) The preauthorized provider must bill DMAS for services
rendered by the substitute assistant.
d. If a provider secures a substitute assistant, the provider
agency is responsible for ensuring that all DMAS requirements continue to be
met including documentation of services rendered by the substitute assistant
and documentation that the substitute assistant's qualifications meet DMAS'
requirements. The two providers involved are responsible for negotiating the
financial arrangements of paying the substitute assistant.
10. Required documentation in the individual's record. The
provider must maintain records regarding each individual receiving services. At
a minimum these records must contain:
a. An initial assessment completed by the supervisor or
services facilitator prior to or on the date services are initiated;
b. An ISP, that contains, at a minimum, the following
elements:
(1) The individual's strengths, desired outcomes, required or
desired supports;
(2) The individual's goals and objectives to meet the above
identified outcomes;
(3) Services to be rendered and the frequency of services to
accomplish the above goals and objectives; and
(4) For the agency-directed model, the provider staff
responsible for the overall coordination and integration of the services
specified in the ISP.
c. The ISP goals, objectives, and activities must be reviewed
by the supervisor or services facilitator quarterly for personal assistance
only, annually, and more often as needed modified as appropriate and results of
these reviews submitted to the case manager. For the annual review and in cases
where the ISP is modified, the ISP must be reviewed with the individual.
d. Dated notes of any contacts with the assistant, individual
and the individual's family/caregiver, as appropriate, during supervisory or
services facilitator visits to the individual's home. The written summary of
the supervision or services facilitation visits must include:
(1) Whether services continue to be appropriate and whether
the ISP is adequate to meet the need or if changes are indicated in the ISP;
(2) Any suspected abuse, neglect, or exploitation and to whom
it was reported;
(3) Any special tasks performed by the assistant and the
assistant's qualifications to perform these tasks;
(4) The individual's satisfaction with the service;
(5) Any hospitalization or change in medical condition or
functioning status;
(6) Other services received and their amount; and
(7) The presence or absence of the assistant in the home
during the supervisor's visit.
e. All correspondence to the individual and the individual's
family/caregiver, as appropriate, case manager, DMAS, and DMHMRSAS;
f. Reassessments and any changes to supporting documentation
made during the provision of services;
g. Contacts made with the individual, family/caregivers,
physicians, formal and informal service providers, and all professionals
concerning the individual;
h. Copy of the most recently completed DMAS-122 form. The
provider or services facilitator must clearly document efforts to obtain the
completed DMAS-122 form from the case manager.
i. For the agency-directed model, the assistant record must
contain:
(1) The specific services delivered to the individual by the
assistant, dated the day of service delivery, and the individual's responses;
(2) The assistant's arrival and departure times;
(3) The assistant'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; and
(4) The assistant's and individual's and the individual's
family/caregiver's, as appropriate, weekly signatures recorded on the last day
of service delivery for any given week to verify that services during that week
have been rendered.
j. For individuals receiving personal assistance and respite
services in a congregate residential setting, because services that are
training in nature are currently or no longer appropriate or desired, the
record must contain:
(1) The specific services delivered to the individual, dated
the day services were provided, the number of hours as outlined in the ISP, the
individual's responses, and observations of the individual's physical and
emotional condition; and
(2) At a minimum, monthly verification by the residential
supervisor of the services and hours and quarterly verification as outlined in
12VAC30-120-241.
k. For the consumer-directed model, the assistant record must
contain:
(1) Documentation of all training provided to the assistants
on behalf of the individual and the individual's family/caregiver, as
appropriate;
(2) Documentation of all employee management training provided
to the individual and the individual's family/caregiver, as appropriate,
including the individual and the individual's family/caregiver, as appropriate,
receipt of training on their responsibility for the accuracy of the assistant's
timesheets;
(3) All documents signed by the individual and the
individual's family/caregiver, as appropriate, that acknowledge the
responsibilities as the employer.
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 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. 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 the Department of Rehabilitative Services, 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.
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. Respite Effective July 1, 2011, respite care
services are limited to a maximum of 720 480 hours per year.
Individuals who are receiving services through both the agency-directed and
consumer-directed models cannot exceed 720 480 hours per calendar
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 DMHMRSAS-licensed residential supportive
in-home provider. All personal care aides must pass an objective standardized
test of knowledge, skills, and abilities approved by DMHMRSAS and administered
according to DMHMRSAS' 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 DMHMRSAS-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/MR 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 300 240 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- 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 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 DMHMRSAS standardized test
(DMHMRSAS 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/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, 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, as appropriate,
is able to select and hire a new employee. If an individual or his
family/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 DMAS to transfer the individual, at the choice of
the individual or his family/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-122 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 and to DMAS;
e. Contacts made with family, physicians, 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; and
(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.
(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, as appropriate, that acknowledge the responsibilities of the
services.
12VAC30-120-950. Agency-directed personal care services.
A. This section contains requirements governing the provision
of agency-directed personal care services.
B. Service description. Personal care services are comprised
of hands-on care of either a supportive or health-based nature and may include,
but are not limited to, assistance with activities of daily living, access to
the community, monitoring of self-administered medications or other medical
needs, and the monitoring of health status and physical condition. Where the
individual requires assistance with activities of daily living, and where
specified in the plan of care, such supportive services may include assistance
with instrumental activities of daily living. This service does not include skilled
nursing services with the exception of skilled nursing tasks (e.g.,
catheterization) that may be delegated pursuant to 18VAC90-20-420 through
18VAC90-20-460. It may be provided in a home and 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-or
consumer-directed), or PERS.
1. Effective July 1, 2011, agency-directed personal care
services shall be limited to 56 hours of services per week for 52 weeks per
year.
2. Individual exceptions may be granted based on criteria
established by DMAS.
C. Criteria. In order to qualify for these services, the
individual must demonstrate a need for care with activities of daily living.
1. DMAS will also pay, consistent with the approved plan of
care, for personal care that the personal care aide provides to the enrolled
individual to assist him at work or postsecondary school. DMAS will not
duplicate services that are required as a reasonable accommodation as a part of
the Americans with Disabilities Act (ADA) (42 USC §§ 12131 through 12165)
or the Rehabilitation Act of 1973.
2. DMAS or the designated preauthorization contractor will
review the 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.
3. DMAS will not pay for the personal care aide to assist the
enrolled individual with any functions related to the individual completing his
job or postsecondary school functions or for supervision time during work or
school or both.
4. There shall be a limit of eight hours per 24-hour day for
supervision services.
5. The provider must develop an individualized plan of care
that addresses the individual's needs at home and work and in the community.
D. Special provider participation conditions. The personal
care provider shall:
1. Operate from a business office.
2. Employ persons who have a satisfactory work record, as
evidenced by references from prior job experience, including no evidence of
abuse, neglect, or exploitation of incapacitated or older adults and children.
Providers are responsible for complying with § 32.1-162.9:1 of the Code of
Virginia regarding criminal record checks. The criminal record check shall be
available for review by DMAS staff who are authorized by DMAS to review these
files.
3. Hire employees (or contract with) and directly supervise a
registered nurse who will provide ongoing supervision of all personal care
aides.
a. The registered nurse shall be currently licensed to
practice in the Commonwealth as an RN and have at least two years of related
clinical nursing experience, which may include work in an acute care hospital,
public health clinic, home health agency, rehabilitation hospital, nursing
facility, or as a licensed practical nurse (LPN).
b. The registered nurse supervisor shall make an initial home
assessment visit on or before the start of care for all individuals admitted to
personal care, when an individual is readmitted after being discharged from
services, or if he is transferred from another provider, ADHC, or from a
consumer-directed services program.
c. The registered nurse supervisor shall make supervisory
visits as often as needed, but no fewer visits than provided as follows, to
ensure both quality and appropriateness of services:
(1) A minimum frequency of these visits is every 30 days for
individuals with a cognitive impairment and every 90 days for individuals who
do not have a cognitive impairment, as defined herein. The provider agency
shall have the responsibility of determining if 30-day registered nurse
supervisory visits are appropriate for the individual.
(2) The initial home assessment visit by the registered nurse
shall be conducted to create the plan of care and assess the individual's
needs. The registered nurse shall return for a follow-up visit within 30 days
after the initial visit to assess the individual's needs and make a final
determination that there is no cognitive impairment. This determination must be
documented in the individual's record by the registered nurse. Individuals who
are determined to have a cognitive impairment will continue to have supervisory
visits every 30 days.
(3) If there is no cognitive impairment, the registered nurse
may give the individual or family/caregiver the option of having the supervisory
visit every 90 days or any increment in between, not to exceed 90 days, or the
provider may choose to continue the 30-day supervisory visits based on the
needs of the individual. The registered nurse supervisor must document in the
individual's record this conversation and the option that was chosen. The
individual or the family/caregiver must sign and date this document.
(4) If an individual's personal care aide is supervised by the
provider's registered nurse supervisor less frequently than every 30 days and
DMAS, or the designated preauthorization contractor, determines that the
individual's health, safety, or welfare is in jeopardy, DMAS, or the designated
preauthorization contractor, may require the provider's registered nurse
supervisor to supervise the personal care aide every 30 days or more frequently
than has been determined by the registered nurse supervisor. This will be
documented by the provider and entered in the individual's record.
d. During visits to the individual's home, a registered nurse
supervisor shall observe, evaluate, and document the adequacy and
appropriateness of personal care services with regard to the individual's
current functioning status, and medical and social needs. The personal care
aide's record shall be reviewed and the individual's or family's/caregiver's
satisfaction with the type and amount of services discussed. The registered
nurse supervisor's summary shall note:
(1) Whether personal care services continue to be appropriate;
(2) Whether the plan of care is adequate to meet the
individual's needs or if changes are indicated in the plan;
(3) Any special tasks performed by the personal care aide and
the personal care aide's qualifications to perform these tasks;
(4) The individual's satisfaction with the services;
(5) Whether the individual has been hospitalized or there has
been a change in the medical condition or functional status of the individual;
(6) Other services received by the individual and the amount;
and
(7) The presence or absence of the personal care aide in the
home during the registered nurse supervisor's visit.
e. A registered nurse supervisor shall be available to the
personal care aide for conferences pertaining to individuals being served by
the aide and shall be available to the aide by telephone at all times that the
aide is providing services to individuals.
f. The registered nurse supervisor shall evaluate the personal
care aide's performance and the individual's needs to identify any insufficiencies
in the personal care aide's abilities to function competently and shall provide
training as indicated. This shall be documented in the individual's record.
g. If there is a delay in the registered nurses' supervisory
visits because the individual was unavailable, the reason for the delay must be
documented in the individual's record.
4. Employ and directly supervise personal care aides who
provide direct care to individuals. Each aide hired for personal care shall be
evaluated by the provider agency to ensure compliance with qualifications
required by DMAS. Each personal care aide shall:
a. Be at least 18 years of age or older;
b. Be able to read and write in English to the degree
necessary to perform the expected tasks;
c. Complete a minimum of 40 hours of training consistent with
DMAS standards. Prior to assigning an aide to an individual, the provider
agency shall ensure that the personal care aide has satisfactorily completed a
DMAS-approved training program consistent with DMAS standards;
d. Be physically able to do the work; and
e. Not be (i) the parents of minor children who are receiving
waiver services or (ii) spouses of individuals who are receiving waiver
services.
Payment may be made for services furnished by other family
members when there is objective written documentation as to why there are no
other providers or aides available to provide the care. These family members
must meet the same requirements as personal care aides who are not family
members.
E. Required documentation for individuals' records. The
provider shall maintain all records for each individual receiving personal care
services. These records shall be separate from those of nonhome and
community-based care services, such as companion or home health services. These
records shall be reviewed periodically by DMAS. At a minimum, the record shall
contain:
1. The most recently updated Long-Term Care Uniform Assessment
Instrument, the Medicaid Funded Long-Term Care Service Authorization Form
(DMAS-96), the Screening Team Plan of Care for Medicaid-Funded Long-Term Care
(DMAS-97), all Provider Agency Plans of Care (DMAS-97A), all Patient
Information Forms (DMAS-122), and all DMAS-101A and 101B forms (if applicable);
2. The initial assessment by a registered nurse or a RN supervisor
completed prior to or on the date that services are initiated;
3. Registered nurse supervisor's notes recorded and dated
during significant contacts with the personal care aide and during supervisory
visits to the individual's home;
4. All correspondence to the individual, DMAS, and the
designated preauthorization contractor;
5. Reassessments made during the provision of services;
6. Significant contacts made with family/caregivers,
physicians, DMAS, the designated preauthorization contractor, formal, informal
services providers and all professionals related to the individual's Medicaid
services or medical care;
7. All personal care aides' records (DMAS-90). The personal
care aide record shall contain:
a. The specific services delivered to the individual by the
aide and his responses to this service;
b. The personal care aide's daily arrival and departure times;
c. The aide's weekly comments or observations about the
individual, including observations of the individual's physical and emotional
condition, daily activities, and responses to services rendered; and
d. The personal care aide's and individual's or responsible
caregiver's weekly signatures, including the date, to verify that personal care
services have been rendered during that week as documented in the record. An
employee of the provider cannot sign for the individual unless he is a
family/caregiver of the individual. This family member cannot be the same
family member who is providing the service. Signatures, times and dates shall not
be placed on the personal care aide record prior to the last date that the
services are actually delivered; and
8. All of the individual's progress reports.
12VAC30-120-960. Agency-directed respite care services.
A. This section contains requirements governing the provision
of agency-directed respite care services.
B. Agency-directed respite care services are comprised of
hands-on care of either a supportive or health-related nature and may include,
but are not limited to, assistance with activities of daily living, access to
the community, monitoring of self-administration of medications or other
medical needs, monitoring health status and physical condition, and personal
care services provided in a work environment. Where the individual requires assistance
with activities of daily living, and where specified in the plan of care, such
supportive services may include assistance with instrumental activities of
daily living. This service does not include skilled nursing services with the
exception of skilled nursing tasks (e.g., catheterization) that may be
delegated pursuant to 18VAC90-20-420 through 18VAC90-20-460.
C. General. Respite care may only be offered to individuals
who have a primary caregiver who requires temporary relief to avoid institutionalization
of the individual. Respite care services may be provided in the individual's
home or place of residence, or a facility licensed as a nursing facility and
enrolled in Medicaid. The authorization of respite care (agency-directed and consumer-directed)
is limited to a total of 720 480 hours per calendar year
per individual effective July 1, 2011. Reimbursement shall be made on an
hourly basis.
D. Special provider participation conditions. To be approved
as a respite care provider with DMAS, the respite care provider shall:
1. Operate from a business office.
2. Have employees who have satisfactory work records, as
evidenced by references from prior job experience, including no evidence of
abuse, neglect, or exploitation of incapacitated or older adults and children.
Providers are responsible for complying with § 32.1-162.9:1 of the Code of
Virginia regarding criminal record checks. The criminal record check shall be
available for review by DMAS staff who are authorized by the agency to review
these files. DMAS will not reimburse the provider for any services provided by
an employee who has committed a barrier crime.
3. Employ (or contract with) and directly supervise a
registered nurse who will provide ongoing supervision of all respite care
aides/LPNs.
a. The registered nurse supervisor shall be currently licensed
to practice in the Commonwealth as an RN and have at least two years of related
clinical nursing experience, which may include work in an acute care hospital,
public health clinic, home health agency, rehabilitation hospital, nursing
facility, or as an LPN.
b. Based on continuing evaluations of the aide's/LPN's
performance and the individual's needs, the registered nurse supervisor shall
identify any insufficiencies in the aide's/LPN's abilities to function
competently and shall provide training as indicated.
c. The registered nurse supervisor shall make an initial home
assessment visit on or before the start of care for any individual admitted to
respite care.
d. A registered nurse supervisor shall make supervisory visits
as often as needed to ensure both quality and appropriateness of services.
(1) When respite care services are received on a routine
basis, the minimum acceptable frequency of these supervisory visits shall be
every 30 to 90 days dependent on the cognitive status of the individual. If an
individual is also receiving personal care services, the respite care RN
supervisory visit may coincide with the personal care RN supervisory visits.
(2) When respite care services are not received on a routine
basis, but are episodic in nature, a registered nurse supervisor shall not be
required to conduct a supervisory visit every 30 to 90 days. Instead, a
registered nurse supervisor shall conduct the initial home assessment visit
with the aide/LPN on or before the start of care and make a second home visit
during the second respite care visit. If an individual is also receiving
personal care services, the respite care RN supervisory visit may coincide with
the personal care RN supervisory visit.
(3) When respite care services are routine in nature and
offered in conjunction with personal care, the RN supervisory visit conducted
for personal care services may serve as the registered nurse supervisory visit
for respite care. However, the registered nurse supervisor shall document
supervision of respite care separately from the personal care documentation.
For this purpose, the same individual record can be used with a separate
section for respite care documentation.
e. During visits to the individual's home, the registered
nurse supervisor shall observe, evaluate, and document the adequacy and
appropriateness of respite care services with regard to the individual's
current functioning status and medical and social needs. The aide's/LPN's
record shall be reviewed along with the individual's or family's satisfaction
with the type and amount of services discussed. The registered nurse supervisor
shall document in a summary note:
(1) Whether respite care services continue to be appropriate;
(2) Whether the plan of care is adequate to meet the
individual's needs or if changes need to be made to the plan of care;
(3) The individual's satisfaction with the services;
(4) Any hospitalization or change in the medical condition or
functioning status of the individual;
(5) Other services received by the individual and the amount
of the services received; and
(6) The presence or absence of the aide/LPN in the home during
the RN supervisory visit.
f. An RN supervisor shall be available to the aide/LPN for
conference pertaining to individuals being served by the aide/LPN and shall be
available to the aide/LPN by telephone at all times that the aide/LPN is
providing services to respite care individuals.
g. If there is a delay in the registered nurse's supervisory
visits because the individual is unavailable, the reason for the delay must be
documented in the individual's record.
4. Employ and directly supervise aides/LPNs who provide direct
care to respite care individuals. Each aide/LPN hired by the provider shall be
evaluated by the provider to ensure compliance with qualifications as required
by DMAS. Each aide must:
a. Be at least 18 years of age or older;
b. Be physically able to do the work;
c. Be able to read and write in English to the degree
necessary to perform the tasks expected;
d. Have completed a minimum of 40 hours of DMAS-approved
training consistent with DMAS standards. Prior to assigning an aide to an
individual, the provider shall ensure that the aide has satisfactorily
completed a training program consistent with DMAS standards; and
e. Be evaluated in his job performance by the registered nurse
supervisor.
Respite care aides may not be the parents of minor children
who are receiving waiver services or spouses of individuals who are receiving
waiver services. Payment may 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
or aides available to provide the care. Family members who are approved to
provide paid respite services must meet the qualifications for respite care
aides.
5. Employ a licensed practical nurse (LPN) to perform skilled
respite care services. Such services shall be reimbursed by DMAS under the
following circumstances:
a. The individual has a need for routine skilled care that
cannot be provided by unlicensed personnel. These individuals would typically require
a skilled level of care if in a nursing facility (e.g., individuals on a
ventilator, individuals requiring nasogastric or gastrostomy feedings, etc.);
b. No other individual in the individual's support system is
willing and able to supply the skilled component of the individual's care
during the caregiver's absence; and
c. The individual is unable to receive skilled nursing visits
from any other source that could provide the skilled care usually given by the
caregiver.
The provider must document in the individual's record the
circumstances that require the provision of services by an LPN. When an LPN is
required, the LPN must also provide any of the services normally provided by an
aide.
E. Required documentation for individuals' records. The provider
shall maintain all records of each individual receiving respite services. These
records shall be separated from those of nonhome and community-based care
services, such as companion or home health services. These records shall be
reviewed periodically by the DMAS staff who are authorized by DMAS to review
these files. At a minimum these records shall contain:
1. The most recently updated Long-Term Care Uniform Assessment
Instrument, the Medicaid Funded Long-Term Care Service Authorization Form
(DMAS-96), the Screening Team Plan of Care for Medicaid-Funded Long-Term Care
(DMAS-97), all respite care assessments and plans of care, all aide records
(DMAS-90), all LPN skilled respite records (DMAS-90A), all Patient Information
Forms (DMAS-122), and all DMAS-101A and DMAS-101B forms, as applicable;
2. The physician's order for services, obtained prior to the
service begin date and updated every six months;
3. The initial assessment by a registered nurse completed
prior to or on the date services are initiated;
4. Registered nurse supervisor's notes recorded and dated
during significant contacts with the care aide and during supervisory visits to
the individual's home;
5. All correspondence to the recipient, DMAS, and the
designated preauthorization contractor;
6. Reassessments made during the provision of services;
7. Significant contacts made with family, physicians, DMAS,
the designated preauthorization contractor, formal and informal services
providers, and all professionals related to the individual's Medicaid services
or medical care; and
8. All respite care records. The respite care record shall
contain:
a. The specific services delivered to the individual by the
aide or LPN and his response to this service;
b. The daily arrival and departure times of the aide or LPN
for respite care services;
c. Comments or observations recorded weekly about the
individual. Aide or LPN comments shall include but not be limited to
observation of the individual's physical and emotional condition, daily
activities, and the individual's response to services rendered;
d. The signatures of the aide or LPN, and the individual, once
each week to verify that respite care services have been rendered. Signature,
times, and dates shall not be placed on the aide's record prior to the last
date of the week that the services are delivered. If the individual is unable
to sign the aide record, it must be documented in his record how or who will
sign in his place. An employee of the provider shall not sign for the
individual unless he is a family member or legal guardian of the recipient; and
e. All individual progress reports.
Documentation signed by the LPN must be reviewed and signed
by the supervising RN.
12VAC30-120-980. Consumer-directed services: personal care and
respite services.
A. Service description.
1. Consumer-directed personal care services and respite care
services are comprised of hands-on care of either a supportive or
health-related nature and may include, but are not limited to, assistance with
activities of daily living, access to the community, monitoring of
self-administration of medications or other medical needs, monitoring health
status and physical condition, and personal care services provided in a work
environment. Where the individual requires assistance with activities of daily
living, and where specified in the plan of care, such supportive services may
include assistance with instrumental activities of daily living. This service
does not include skilled nursing services with the exception of skilled nursing
tasks (e.g., catheterization) that may be delegated pursuant to 18VAC90-20-420
through 18VAC90-20-460.
2. Consumer-directed respite services are specifically
designed to provide temporary, periodic, or routine relief to the unpaid
primary caregiver of an individual. This service may be provided in the
individual's home or other community settings.
3. DMAS shall either provide for fiscal agent services or
contract for the services of a fiscal agent for consumer-directed services. The
fiscal agent will be reimbursed by DMAS (if the service is contracted) to
perform certain tasks as an agent for the individual/employer who is receiving
consumer-directed services. The fiscal agent will handle responsibilities for
the individual for employment taxes. The fiscal agent will seek and obtain all
necessary authorizations and approvals of the Internal Revenue Services in
order to fulfill all of these duties.
4. Individuals choosing consumer-directed services must
receive support from a CD services facilitator. This is not a separate waiver
service, but is required in conjunction with consumer-directed services. The CD
services facilitator is responsible for assessing the individual's particular
needs for a requested CD service, assisting in the development of the plan of
care, providing training to the individual and family/caregiver on his
responsibilities as an employer, and providing ongoing support of the
consumer-directed services. The CD services facilitator cannot be the
individual, direct service provider, spouse, or parent of the individual who is
a minor child, or a family/caregiver employing the aide.
B. Criteria.
1. In order to qualify for consumer-directed personal care
services, the individual must demonstrate a need for personal care services as
defined in 12VAC30-120-900.
2. Consumer-directed respite services may only be offered to
individuals who have an unpaid primary caregiver who requires temporary relief
to avoid institutionalization of the individual. Respite services are designed
to focus on the need of the unpaid primary caregiver for temporary relief and
to help prevent the breakdown of the unpaid primary caregiver due to the
physical burden and emotional stress of providing continuous support and care
to the individual.
3. DMAS will also pay, consistent with the approved plan of
care, for personal care that the personal care aide provides to the enrolled
individual to assist him at work or postsecondary school. DMAS will not
duplicate services that are required as a reasonable accommodation as a part of
the Americans with Disabilities Act (ADA) (42 USC §§ 12131 through 12165)
or the Rehabilitation Act of 1973.
a. DMAS or the designated preauthorization contractor will
review the 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.
b. DMAS will not pay for the personal care aide to assist the
enrolled individual with any functions related to the individual completing his
job or postsecondary school functions or for supervision time during work or
school or both.
4. Individuals who are eligible for consumer-directed services
must have, or have a family/caregiver who has, the capability to hire and train
their own personal care aides and supervise the aide's performance. If an
individual is unable to direct his own care or is under 18 years of age, a
family/caregiver may serve as the employer on behalf of the individual.
5. The individual, or if the individual is unable, a
family/caregiver, shall be the employer of consumer-directed services and,
therefore, shall be responsible for hiring, training, supervising, and firing
personal care aides. Specific employer duties include checking references of personal
care aides, determining that personal care aides meet basic qualifications, and
maintaining copies of timesheets to have available for review by the CD
services facilitator and the fiscal agent on a consistent and timely basis. The
individual or family/caregiver must have a backup plan for the provision of
services in case the aide does not show up for work as expected or terminates
employment without prior notice.
C. Service units and
limitations.
1. The unit of services for consumer-directed respite services
is one hour. Consumer-directed Effective July 1, 2011,
consumer-directed respite services are limited to a maximum of 720 480
hours per calendar year. Individuals who receive consumer-directed
respite services, agency-directed respite services and/or or
facility-based respite services, or both, may not receive more than 720
480 hours combined, regardless of service delivery method.
2. The unit of service for consumer-directed personal care
services is one hour. Effective July 1, 2011, these personal care services
shall be limited to 56 hours per week for 52 weeks per year. Individual
exceptions may be granted based on criteria established by DMAS.
D. Provider qualifications. In addition to meeting the
general conditions and requirements for home and community-based services
participating providers as specified in 12VAC30-120-930, the CD services
facilitator must meet the following qualifications:
1. To be enrolled as a Medicaid CD services facilitator and
maintain provider status, the CD services facilitator shall have sufficient
resources to perform the required activities. In addition, the CD services
facilitator must have the ability to maintain and retain business and
professional records sufficient to fully and accurately document the nature,
scope, and details of the services provided.
2. It is preferred that the CD services facilitator possess,
at a minimum, an undergraduate degree in a human services field or be a
registered nurse currently licensed to practice in the Commonwealth. In addition,
it is preferable that the CD services facilitator have at least two years of
satisfactory experience in a human services field working with individuals who
are disabled or elderly. The CD services facilitator must possess a combination
of work experience and relevant education that indicates possession of the
following knowledge, skills, and abilities. Such knowledge, skills and
abilities must be documented on the CD services facilitator's application form,
found in supporting documentation, or be observed during a job interview.
Observations during the interview must be documented. The knowledge, skills,
and abilities include:
a. Knowledge of:
(1) Types of functional limitations and health problems that
may occur in individuals who are elderly or individuals with disabilities, as
well as strategies to reduce limitations and health problems;
(2) Physical care that may be required by individuals who are
elderly or individuals with disabilities, such as transferring, bathing
techniques, bowel and bladder care, and the approximate time those activities
normally take;
(3) Equipment and environmental modifications that may be
required by individuals who are elderly or individuals with disabilities that
reduce the need for human help and improve safety;
(4) Various long-term care program requirements, including
nursing facility and assisted living facility placement criteria, Medicaid
waiver services, and other federal, state, and local resources that provide
personal care and respite services;
(5) Elderly or Disabled with Consumer-Direction Waiver
requirements, as well as the administrative duties for which the services
facilitator will be responsible;
(6) How to conduct assessments (including environmental,
psychosocial, health, and functional factors) and their uses in services
planning;
(7) Interviewing techniques;
(8) The individual's right to make decisions about, direct the
provisions of, and control his consumer-directed services, including hiring,
training, managing, approving time sheets, and firing an aide;
(9) The principles of human behavior and interpersonal
relationships; and
(10) General principles of record documentation.
b. Skills in:
(1) Negotiating with individuals, family/caregivers and
service providers;
(2) Assessing, supporting, observing, recording, and reporting
behaviors;
(3) Identifying, developing, or providing services to
individuals who are elderly or individuals with disabilities; and
(4) Identifying services within the established services
system to meet the individual's needs.
c. Abilities to:
(1) Report findings of the assessment or onsite visit, either
in writing or an alternative format for individuals who have visual
impairments;
(2) Demonstrate a positive regard for individuals and their
families;
(3) Be persistent and remain objective;
(4) Work independently, performing position duties under
general supervision;
(5) Communicate effectively, orally and in writing; and
(6) Develop a rapport and communicate with individuals from
diverse cultural backgrounds.
3. If the CD services facilitator is not a registered nurse,
the CD services facilitator must inform the individual's primary health care
provider that services are being provided and request consultation as needed.
4. Initiation of services and service monitoring.
a. For consumer-directed services, the CD services facilitator
must make an initial comprehensive home visit to collaborate with the
individual and family/caregiver to identify the needs, assist in the
development of the plan of care with the individual or family/caregiver, and
provide employee management training within seven days of the initial visit.
The initial comprehensive home visit is done only once per provider upon the
individual's entry into CD services. If the individual changes CD services
facilitator, the new CD services facilitator must complete a reassessment visit
in lieu of a comprehensive visit.
b. After the initial visit, the CD services facilitator will
continue to monitor the plan of care on an as-needed basis, but in no event
less frequently than quarterly for personal care. The CD services facilitator
will review the utilization of consumer-directed respite services, either every
six months or upon the use of 300 respite services hours, whichever comes
first.
c. A CD services facilitator must conduct face-to-face
meetings with the individual or family/caregiver at least every six months for
respite services and quarterly for personal care to ensure appropriateness of
any consumer-directed services received by the individual.
5. During visits with the individual, the CD services
facilitator must observe, evaluate, and consult with the individual or
family/caregiver, and document the adequacy and appropriateness of
consumer-directed services with regard to the individual's current functioning
and cognitive status and medical and social needs. The CD services
facilitator's written summary of the visit must include, but is not necessarily
limited to:
a. A discussion with the individual or family/caregiver
concerning whether the service is adequate to meet the individual's needs;
b. Any suspected abuse, neglect, or exploitation and who it
was reported to;
c. Any special tasks performed by the aide and the aide's
qualifications to perform these tasks;
d. The individual's or family/caregiver's satisfaction with
the service;
e. Any hospitalization or change in medical condition,
functioning, or cognitive status; and
f. The presence or absence of the aide in the home during the
CD services facilitator's visit.
6. The CD services facilitator must be available to the
individual or family/caregiver by telephone.
7. The CD services facilitator must request a criminal record
check and a sex offender record check pertaining to the aide on behalf of the
individual and report findings of these records checks to the individual or the
family/caregiver and the program's fiscal agent. If the individual is a minor,
the aide must also be screened through the DSS Child Protective Services
Central Registry. The criminal record check and DSS Child Protective Services
Registry finding must be requested by the CD services facilitator prior to
beginning CD services. Aides will not be reimbursed for services provided to
the individual effective on the date that the criminal record check confirms an
aide has been found to have been convicted of a crime as described in §
32.1-162.9:1 of the Code of Virginia or if the aide has a confirmed record on
the DSS Child Protective Services Central Registry.
8. The CD services facilitator shall review copies of
timesheets during the face-to-face visits to ensure that the number of plan of
care-approved hours are being provided and are not exceeded. If discrepancies
are identified, the CD services facilitator must discuss these with the
individual or family/caregiver to resolve discrepancies and must notify the
fiscal agent.
9. The CD services facilitator must maintain records of each
individual. At a minimum these records must contain:
a. Results of the initial comprehensive home visit completed
prior to or on the date services are initiated and subsequent reassessments and
changes to the supporting documentation;
b. The personal care plan of care goals, objectives, and
activities must be reviewed by the provider quarterly, annually, and more often
as needed, and modified as appropriate. Respite plan of care goals, objectives,
and activities must be reviewed by the provider annually and every six months
or when 300 240 service hours have been used. For the annual review
and in cases where the plan of care is modified, the plan of care must be
reviewed with the individual;
c. CD services facilitator's dated notes documenting any
contacts with the individual or family/caregiver and visits to the individual's
home;
d. All correspondence to and from the individual, the
designated preauthorization contractor, and DMAS;
e. Records of contacts made with the individual,
family/caregiver, physicians, formal and informal service providers, and all
professionals concerning the individual;
f. All training provided to the aides on behalf of the
individual or family/caregiver;
g. All employee management training provided to the individual
or family/caregiver, including the individual's or family/caregiver's receipt
of training on their responsibility for the accuracy of the aide's timesheets;
h. All documents signed by the individual or the individual's
family/caregiver that acknowledge the responsibilities as the employer; and
i. All copies of the completed Uniform Assessment Instrument
(UAI), the Medicaid Funded Long-Term Care Service Authorization Form (DMAS-96),
the Screening Team Plan of Care form (DMAS-97), all Consumer-Directed Personal
Assistance Plans of Care forms (DMAS-97B), all Patient Information Forms
(DMAS-122), the DMAS-95 Addendum, the Outline and Checklist for
Consumer-Directed Recipient Comprehensive Training, and the Services Agreement
Between the Consumer and the Services Facilitator.
10. For consumer-directed personal care and consumer-directed
respite services, individuals or family/caregivers will hire their own personal
care aides and manage and supervise their performance. The aide must meet the
following requirements:
a. Be 18 years of age or older;
b. Have the required skills to perform consumer-directed
services as specified in the individual's supporting documentation;
c. Be able to read and write in English to the degree
necessary to perform the tasks expected;
d. Possess basic math, reading, and writing skills;
e. Possess a valid Social Security number;
f. Submit to a criminal records check and, if the individual
is a minor, consent to a search of the DSS Child Protective Services Central
Registry. The aide will not be compensated for services provided to the
individual if either of these records checks verifies the aide has been
convicted of crimes described in § 32.1-162.9:1 of the Code of Virginia or if
the aide has a founded complaint confirmed by the DSS Child Protective Services
Central Registry;
g. Be willing to attend training at the individual's or
family/caregiver's request;
h. Understand and agree to comply with the DMAS Elderly or
Disabled with Consumer Direction Waiver requirements; and
i. Receive periodic tuberculosis (TB) screening.
11. Aides may not be the parents of minor children who are
receiving waiver services or the spouse of the indiviudals who are receiving
waiver services or the family/caregivers that are directing the individual's
care. Payment may not be made for services furnished by other family/caregivers
living under the same roof as the individual being served unless there is
objective written documentation as to why there are no other providers
available to provide the care.
12. Family/caregivers who are reimbursed to provide
consumer-directed services must meet the aide qualifications.
13. If the individual is consistently unable to hire and
retain the employment of a personal care aide to provide consumer-directed
personal care or respite services, the CD services facilitator will make
arrangements to have the services transferred to an agency-directed services
provider of the individual's choice or to discuss with the individual or
family/caregiver other service options.
14. The CD services facilitator is required to submit to DMAS
biannually, for every individual, an individual progress report, the most
recently updated UAI, and any monthly visit/progress reports. This information
is used to assess the individual's ongoing need for Medicaid-funded long-term care
and appropriateness and adequacy of services rendered.
D. Individual responsibilities.
1. The individual must be authorized for consumer-directed
services and successfully complete management training performed by the CD
services facilitator before the individual can hire a personal care aide for
Medicaid reimbursement. Individuals who are eligible for consumer-directed
services must have the capability to hire and train their own personal care
aides and supervise aides' performance. Individuals with cognitive impairments
who are unable to manage their own care may have a family/caregiver serve as
the employer on behalf of the individual.
2. Individuals will acknowledge that they will not knowingly
continue to accept consumer-directed personal care services when the service is
no longer appropriate or necessary for their care needs and will inform the
services facilitator. If consumer-directed services continue after services
have been terminated by DMAS or the designated preauthorization contractor, the
individual will be held liable for employee compensation.
12VAC30-135-200. Agency-directed respite services.
A. Service description.
1. Respite services means services specifically designed to
provide a temporary but periodic or routine relief to the primary unpaid
caregiver of a client who is in need of specialized supervision due to a SED.
Respite services include assistance with or monitoring of personal hygiene,
nutritional support, safety, and environmental maintenance authorized as either
episodic, temporary relief, or as a routine periodic relief of the caregiver.
2. Respite services do not include either practical or
professional nursing services or those practices regulated in Chapters 30
(§ 54.1-3000 et seq.) and 34 (§ 54.1-3400 et seq.) of Title 54.1 of
the Code of Virginia, as appropriate. This service does not include skilled
nursing services with the exception of skilled nursing tasks that may be
delegated pursuant to 18VAC90-20-420 through 18VAC90-20-460.
B. Criteria.
1. Respite services may only be offered to clients who have an
unpaid primary caregiver living in the home who requires temporary relief to
avoid institutionalization of the client. Respite services are designed to
focus on the need of the caregiver for temporary relief.
2. Respite services are supports for the family or other
unpaid primary caregiver of a client. These services are furnished on a
short-term basis because of the absence or need for relief of those unpaid
caregivers normally providing the care for the clients.
C. Service units and service limitations.
1. Respite Effective July 1, 2011, respite
services shall be limited to a maximum of 720 480 hours per calendar
year. Clients who are receiving services through both the agency-directed and
CD models shall not exceed 720 480 hours per calendar year
combined.
2. The unit of service is one hour.
D. Provider requirements. In addition to meeting the general
conditions and requirements for home and community-based participating providers
as specified in 12VAC30-135-120 and 12VAC30-135-160, respite services providers
must meet additional provider requirements:
1. Services shall be provided by:
a. A DMAS respite services provider; a DMHMRSAS-licensed
residential services provider; or by a DMHMRSAS-licensed respite services
provider or a DSS-approved foster care home-for-children provider.
b. For DMAS-enrolled respite services providers, the provider
must employ or subcontract with a QMHP or LMHP to supervise all assistants. The
supervisor must meet DMAS qualifications.
2. The QMHP/LMHP supervisor must make a home visit to conduct
an initial assessment prior to the start of services for all clients requesting
respite services. The supervisor must also perform any subsequent reassessments
or changes to the ISP.
3. The QMHP/LMHP supervisor must make supervisory home visits
as often as needed to ensure both quality and appropriateness of services. The
minimum frequency of these visits is every 30 to 90 days.
a. When respite services are received on a routine basis, the
minimum acceptable frequency of these supervisory visits shall be every 30 to
90 days, depending on the needs of the client.
b. When respite services are not received on a routine basis,
but are episodic in nature, the supervisor is not required to conduct a
supervisory visit every 30 to 90 days. Instead, the QMHP/LMHP supervisor must
conduct the initial home visit with the respite care assistant immediately
preceding the start of services and make a second home visit within the respite
services period.
4. Based on continuing evaluations of the assistant's
performance and client's needs, the QMHP/LMHP supervisor shall identify any
gaps in the assistant's ability to function competently and shall provide
training as indicated.
5 The QMHP/LMHP supervisor must document in a summary note:
a. Whether respite services continue to be appropriate;
b. Whether the ISP is adequate to meet the client's needs or
if changes need to be made;
c. The client's and family/caregiver's satisfaction with the
service;
d. Any hospitalization or change in medical condition or
functioning status;
e. Other services received and the amount; and
f. The presence or absence of the assistant in the home during
the visit.
6. Qualification of assistants. The assistant must complete a
training curriculum consistent with DMAS requirements. Prior to assigning an
assistant to a client, the provider must obtain documentation that the
assistant has satisfactorily completed a training program consistent with DMAS'
requirements. DMAS requirements may be met in one of two ways:
a. Registration as a certified nurse aide; or
b. Graduation from an approved educational curriculum that
offers certificates qualifying the student as a nursing assistant, home health
aide, or meeting the paraprofessional criteria as established by
12VAC30-50-226.
E. Required documentation for the client's records. The
provider must maintain all records of each client receiving services. These
records must be separated from those of other nonwaiver services, such as home
health services. These records will be reviewed periodically by DMAS staff. At
a minimum these records must contain:
1. An initial assessment completed by the QMHP/LMHP supervisor
prior to or on the date services are initiated; .
2. Reassessments and any changes to the ISP made during the
provision of services by the supervisor.
3. The most recent ISP and supporting documentaion that
contains, at a minimum, the following elements:
a. The client's strengths, desired outcomes, and required or
desired supports;
b. The client's and family's/caregiver's goals and objectives
to meet the identified outcomes;
c. Services to be rendered and the frequency of services to
accomplish the goals and objectives; and
d. The provider staff responsible for the overall coordination
and integration of the services specified in the ISP.
4. The ISP goals, objectives, and activities must be reviewed
by the supervisor quarterly, annually, and more often as needed and modified as
appropriate. The results of these reviews must be submitted to the case
manager. For the annual review and in cases where the ISP is modified, the ISP
must be reviewed with the client and family/caregiver.
5. The QMHP/LMHP supervisor's notes recorded and dated during significant
contacts with the respite services assistant and during supervisory visits to
the client's home. The written summary of the supervision visits must include:
a. Whether services continue to be appropriate and whether the
ISP is adequate to meet the needs or if changes are indicated in the ISP;
b. Any suspected abuse, neglect, or exploitation and to whom
it was reported;
c. Any special tasks performed by the assistant and the
assistant's qualifications to perform these tasks;
d. The client's and family/caregiver's satisfaction with the
service;
e. Any hospitalization or change in medical condition or
functioning status;
f. Other services received and their amount; and
g. The presence or absence of the assistant in the home during
the supervisor's visit.
6. All correspondence to the client, family/caregiver, case
manager, DMAS, DMHMRSAS, and CSA;
7. Significant contacts made with the client,
family/caregivers, physicians, DMAS and others involved in the care of the
client;
8. The assistant record must contain:
a. The specific services delivered to the client by the
assistant, dated the day of service delivery, and the client's responses;
b. The assistant's arrival and departure times;
c. The assistant's weekly comments or observations about the
client to include observations of the client's physical and emotional
condition, daily activities, and responses to services rendered; and
d. The assistant's, client's and family/caregiver's weekly
signatures with dates recorded on the last day of service delivery for any
given week to verify that services during that week have been rendered.
e. Signatures, times, and dates shall not be placed on the
assistant record prior to the last date of the week that the services are
delivered.
9. All DMAS quality management review forms.
12VAC30-135-220. Consumer-directed companion and respite
services.
A. Companion services.
1. Service description. Companion services provide assistance
with skill development and with understanding family interaction, behavioral
interventions for support and safety, nonmedical care, nonmedical
transportation, community integration, and rewarding appropriate behaviors.
This service is available through both a consumer-directed (CD) and
agency-directed delivery approach and shall not exceed eight hours in one day.
These services include, but are not limited to, nonmedical care, socialization,
or support to a client as well as supervision or monitoring to those clients
who require the physical presence of an aide to ensure their safety during times
when no other supportive individuals are available. This service is provided in
accordance with a therapeutic goal in the ISP and is not purely diversional in
nature.
2. Criteria.
a. The inclusion of companion services in the ISP is
appropriate only when the client cannot be left alone at any time due to the
SED. The provision of companion services does not entail hands-on care.
b. Companion services shall not be covered if required only
because the client does not have a telephone in the home or because the client
does not speak English.
c. There must be a clear and present danger to the client as a
result of being left unsupervised. Companion services cannot be authorized for
clients whose only need for companion services is for assistance exiting the home
in the event of an emergency.
3. Service units and service limitations.
a. The amount of companion service time included in the ISP
must be no more than eight hours per day, either separately or in any
combination of CD or agency-directed companion services.
b. The hours authorized are based on individual need. No more
than three unrelated individuals who are receiving waiver services and live in
the same home are permitted to share the authorized work hours of the same
companion.
c. Companion services may be authorized for family/caregivers
to sleep either during the day or during the night when the client cannot be
left alone at any time due to the client's condition. Companion aide services
must be necessary to ensure the client's safety if the client cannot be left
unsupervised due to health and safety concerns.
d. Companion services can be authorized when no one else is in
the home who is competent to monitor the client for safety.
4. Provider requirements. In addition to meeting the general conditions
and requirements for home and community-based participating providers as
specified in 12VAC30-135-120 and 12VAC30-135-160, companion service providers
must meet the following qualifications:
a. General companion qualifications. Companions must meet the
following requirements:
(1) Be at least 18 years of age;
(2) Have the required skills to perform CD services as
specified in the client's ISP;
(3) Possess basic reading, writing, and math skills;
(4) Be capable of following a care plan with minimal
supervision;
(5) Submit to a criminal history record check within 15 days
from the date of employment and, if the client is a minor, the Child Protective
Services Central Registry. The companion will not be compensated for services
provided to the client if the records check verifies the companion has been
convicted of crimes described in § 32.1-162.9:1 or 37.2-416 of the Code of
Virginia; or if the companion has a complaint confirmed by the DSS Child
Protective Services Central Registry;
(6) Possess a valid social security number;
(7) Be willing to attend training at the client's and
family/caregiver's request;
(8) Receive an annual tuberculosis (TB) screening; and
(9) Understand and agree to comply with the DMAS CMH waiver
requirements as described in DMAS guidance documents.
b. Companions shall not be spouses, parents or caregivers.
Payment will not be made for services furnished by other family members unless
there is objective written documentation as to why there are no other providers
available to provide the care. Medicaid-reimbursed companion services shall not
be provided by adult foster care providers or any other paid (regardless of the
payment source) caregivers for a client residing in that home.
c. Family/caregivers who are reimbursed to provide companion
services must meet the companion qualifications stated above.
d. Retention, hiring, and substitution of companions. Upon the
client's request, the CD services facilitator shall provide the client or
family/caregiver with a list of persons on the assistant registry who can
provide temporary assistance until the assistant returns or the client is able
to select and hire a new assistant. If a client or family/legal guardian is
consistently unable to hire and retain the employment of an assistant to
provide CD companion services, the services facilitator must contact the case
manager and DMAS to transfer the client, at the client's choice, to a provider
that provides Medicaid-funded agency-directed companion services. The CD
services facilitator will make arrangements with the case manager to have the
client transferred.
B. Respite services.
1. Service description. Respite services include assistance
with or monitoring of personal hygiene, nutritional support, safety, and
environmental maintenance authorized as either episodic, temporary relief, or
as a routine periodic relief of the caregiver. For the purposes of this
section, an assistant refers to the individual providing CD respite.
2. Criteria.
a. CD respite services may only be offered to clients who have
a primary unpaid caregiver living in the home who requires temporary relief to
avoid institutionalization of the client, and it is designed to focus on the
need of the caregiver for temporary relief.
b. The inclusion of respite services in the ISP is appropriate
only when the client cannot be left unsupervised due to the mental health
condition at any time.
3. Service units and service limitations.
a. Effective July 1, 2011, CD respite services are
limited to a maximum of 720 480 hours per calendar year.
Clients who are receiving services through both the agency-directed and CD
models shall not exceed 720 480 hours per calendar year
combined.
b. Clients can receive CD respite services and in-home
residential support services in their CSPs but cannot receive these services
simultaneously.
c. For CD respite services, clients and family/legal guardian,
as appropriate, will hire their own assistants and manage and supervise the
assistant's performance.
4. Provider requirements.
a. The assistant must meet the following requirements:
(1) Be at least 18 years of age;
(2) Have the required skills to perform CD services as
specified in the client's ISP;
(3) Possess basic reading, writing and math skills;
(4) Be capable of following a care plan with minimal
supervision;
(5) Submit to a criminal history record check within 15 days
from the date of employment, and if the client is a minor, the Child Protective
Services Central Registry. The assistant will not be compensated for services
provided to the client if the records check verifies the assistant has been
convicted of crimes described in § 32.1-162.9:1 or 37.2-416 of the Code of
Virginia or if the assistant has a complaint confirmed by the DSS Child Protective
Services Central Registry;
(6) Possess a valid social security number;
(7) Be willing to attend training at the client's and
family/caregiver's request;
(8) Receive periodic TB screening; and
(9) Understand and agree to comply with the DMAS CMH waiver
requirements; .
b. Assistants cannot be spouses, parents of minor children, or
legally responsible relatives. Payment will not be made for services furnished
by other family members unless there is objective written documentation as to
why there are no other providers available to provide the care.
c. Family/caregivers who are reimbursed to provide respite
services must meet the assistant qualifications.
d. Retention, hiring, and substitution of assistants. Upon the
client's request, the CD services facilitation provider shall provide the
client or family/legal guardian with a list of persons on the assistant
registry who can provide temporary assistance until the assistant returns or
the client is able to select and hire a new assistant. If a client is consistently
unable to hire and retain the employment of an assistant to provide CD respite
services, the CD services facilitator must contact the case manager and DMAS to
transfer the client, at the client's choice, to a provider that provides
Medicaid-funded agency-directed respite services. The CD services facilitator
will make arrangements with the case manager to have the client transferred.
C. Service facilitation.
1. Clients choosing the CD option must receive support from a
CD services facilitator and meet requirements for consumer direction as
described in these regulations.
2. DMAS shall contract for the services of a Fiscal Management
Service agent for CD companion and respite services. The FMS agent will be
reimbursed by DMAS to perform certain tasks as an agent for the
client/family/caregiver/employer who is receiving CD services. The FMS agent
will handle the responsibilities for the client/family/caregiver/employer for
employment taxes. The FMS agent will seek and obtain all necessary authorizations
and approvals of the Internal Revenue Services in order to fulfill all of these
duties.
3. If a client is unable to direct his own care or is under 18
years of age, a family/legal guardian may serve as the employer on behalf of
the client. Specific employer duties include checking of references of
assistants/companions, determining that assistants/companions meet basic
qualifications, training assistants/companions, supervising the
assistant's/companion's performance, and submitting timesheets to the FMS agent
on a consistent and timely basis. There must be a back-up plan in case the
assistant/companion does not show up for work as expected or terminates
employment without prior notice. This is the responsibility of the client or
family/legal guardian to establish.
4. Clients or family/legal guardians, as appropriate, choosing
the CD model of service delivery must receive support from a CD services
facilitator. This is not a separate waiver service, but is required in
conjunction with CD respite and companion services. The CD services facilitator
is responsible for assessing the client's particular needs for a requested CD
service, assisting in the development of the ISP, providing training to the
family/legal guardian on his responsibilities as an employer, and providing
ongoing support of the CD model of services. The CD services facilitator cannot
be the client, the client's case manager, direct service provider, spouse,
parent or legally responsible party of the client who is a minor child, or a
family/legal guardian employing the assistant/companion. If a client enrolled
in CD services has a lapse in services for more than 90 consecutive days, DMAS
must be notified and the CD services will be discontinued.
5. Either DMAS or its contractor shall provide the FMS for CD
companion and respite services. The FMS agent will be reimbursed by DMAS to
perform certain tasks as an agent for the client/employer who is receiving CD
services. The FMS agent will handle the responsibilities of employment taxes
for the client. The FMS agent will seek and obtain all necessary authorizations
and approvals of the Internal Revenue Services in order to fulfill all of these
duties.
6. CD services facilitator qualifications. In addition to
meeting the general conditions and requirements for home and community-based
services participating providers as specified in 12VAC30-135-120 and
12VAC30-135-160, the CD services facilitator must meet the following
qualifications:
a. To be enrolled as a Medicaid CD services facilitator and
maintain provider status, the CD services facilitator must operate from a
physical business office and employ sufficient qualified staff to perform the
needed ISP development and monitoring, reassessments, service coordination, and
support activities as required. In addition, the CD services facilitator must
have the ability to maintain and retain business and professional records
sufficient to document fully and accurately the nature, scope, and details of
the services provided.
b. It is preferred that employees of the CD services
facilitator possess a minimum of an undergraduate degree in a human services
field or be a QMHP. In addition, it is preferable that the CD services
facilitator have two years of satisfactory experience in the human services
field working with persons with SED. The CD services facilitator must possess a
combination of work experience and relevant education that indicates possession
of the following knowledge, skills, and abilities. Such knowledge, skills and
abilities must be documented on the application form, found in supporting
documentation, or be observed during the job interview. Observations during the
interview must be documented. The knowledge, skills, and abilities include:
(1) Knowledge of:
(a) Types of functional limitations and health problems that
may occur in clients with SED, or clients with other disabilities, as well as
strategies to reduce limitations and health problems;
(b) Equipment and environmental modifications that may be
required by clients with SED that reduce the need for human help and improve
safety;
(c) Community-based and other services, including PRTF
placement criteria, Medicaid waiver services, and other federal, state, and
local resources that provide respite and companion services;
(d) CMH Waiver requirements, as well as the administrative
duties for which the services facilitator will be responsible;
(e) CMH Waiver requirements, as well as the administrative
duties for which the client and family/caregiver will be responsible;
(f) Conducting assessments (including environmental,
psychosocial, health, and functional factors) and their uses in care planning;
(g) Interviewing techniques;
(h) The client's and family/legal guardian's right to make
decisions about, direct the provisions of, and control his CD respite and
companion services, including hiring, training, managing, approving time
sheets, and firing an assistant/companion;
(i) The principles of human behavior and interpersonal
relationships; and
(j) General principles of record documentation.
(2) Skills in:
(a) Negotiating with clients, family/caregivers and service
providers;
(b) Assessing, supporting, observing, recording, and reporting
behaviors;
(c) Identifying, developing, or providing services to clients
with SED; and
(d) Identifying services within the established services
system to meet the client's needs.
(3) Abilities to:
(a) Report findings of the assessment or onsite visit, either
in writing or an alternative format for clients who have visual impairments;
(b) Demonstrate a positive regard for clients and their
families;
(c) Be persistent and remain objective;
(d) Work independently, performing position duties under
general supervision;
(e) Communicate effectively, orally and in writing; and
(f) Develop a rapport and communicate with persons from
diverse cultural backgrounds.
c. If the CD services facilitator is not a QMHP, the CD
services facilitator must have QMHP consulting services available, either by a
staffing arrangement or through a contracted consulting arrangement. The QMHP consultant
is to be available as needed to consult with clients and CD services
facilitators on issues related to the needs of the client.
7. Initiation of services and service monitoring.
a. The CD services facilitator must make an initial
comprehensive home visit to collaborate with the client and family/caregiver to
identify needs, assist in the development of the ISP with the client and
provide employee management training. The initial comprehensive home visit is
done only once upon the client's entry into the CD model of service regardless
of the number or type of CD services that a client chooses to receive. If a
client changes CD services facilitators, the new CD services facilitator must
complete and bill for a reassessment visit in lieu of an initial comprehensive
visit.
b. After the initial visit, the CD services facilitator will
periodically review the utilization of companion services at a minimum of every
six months or, for respite services, either every six months or upon the use of
300 respite service hours, whichever comes first.
c. A reassessment of the client's level-of-care will occur six
months after initial entry into the program, and subsequent reevaluations will
occur at a minimum of every six months. During visits to the client's home, the
CD services facilitator must observe, evaluate, and consult with the client and
family/caregiver and document the adequacy and appropriateness of CD services
with regard to the client's current functioning and cognitive status, medical,
and social needs. The CD services facilitator's summary must include, but not
necessarily be limited to:
(1) Whether CD respite services continue to be appropriate and
medically necessary to prevent institutionalization;
(2) Whether the service is adequate to meet the client's
needs;
(3) Any special tasks performed by the assistant/companion and
the assistant's/companion's qualifications to perform these tasks;
(4) Client's or family/caregiver's satisfaction with the
service;
(5) Hospitalization or change in medical condition,
functioning, or cognitive status;
(6) Other services received and their amount; and
(7) The presence or absence of the companion/assistant in the
home during the CD services facilitator's visit.
d. A face-to-face meeting with the client must be conducted at
least every six months to reassess the client's needs and to ensure
appropriateness of any CD services received by the client.
e. The CD services facilitator must be available to the client
and family/caregiver by telephone.
f. The CD services facilitator must submit a criminal record
check pertaining to the assistant/companion on behalf of the client and report
findings of the criminal record check to the client and the program's FMS
agent. If the client is a minor, the assistant/companion must also be screened
through the DSS Child Protective Services Central Registry.
Assistants/companions will not be reimbursed for services provided to the
client effective the date that the criminal record check confirms an
assistant/companion was convicted of a barrier crime or if the
assistant/companion has a founded complaint on record in the DSS Child
Protective Services Central Registry. The criminal record check and DSS Child
Protective Services Central Registry finding must be requested by the CD
services facilitator within 15 calendar days of employment. The services
facilitator must maintain evidence that a criminal record check was obtained
and must make such evidence available for DMAS review.
g. The CD services facilitator shall review and verify bi-weekly
timesheets signed by the family/caregiver and the assistant/companion during
the face-to-face visits or more often as needed to ensure that the number of
ISP-approved hours is not exceeded. If discrepancies are identified, the CD
services facilitator must discuss these with the client to resolve
discrepancies and must notify the FMS agent. If the client is consistently
identified as having discrepancies in his timesheets, the CD services
facilitator must contact the case manager to resolve the situation. The CD
services facilitator cannot verify timesheets for assistants/companions who
have been convicted of a barrier crime or who have a founded complaint on
record in the DSS Child Protective Services Registry and must notify the FMS
agent.
h. The CD services facilitator must maintain records of each
client as described in 12VAC30-135-120 and 12VAC30-135-160.
i. If a client/family/legal guardian is consistently unable to
hire and retain the employment of an assistant/companion to provide CD respite or
companion services, the CD services facilitator will make arrangements with the
case manager to have the services transferred to an agency-directed services
provider or to discuss with the client/family/caregiver other service options.
j. The family/legal guardian or client, as appropriate, must
hire and train the assistants or companions and supervise the assistant's or
companion's performance. The hours authorized are based on individual need.
8. Responsibilities as employer. The client or family/legal
guardian, as appropriate, shall be the employer in this service and responsible
for hiring, training, supervising, and firing assistants and companions.
Specific duties include checking references of assistants/companions,
determining that assistants/companions meet basic qualifications, training
assistants/companions, supervising the assistant's/companion's performance, and
submitting timesheets to the CD services facilitator and FMS agent on a
consistent and timely basis. The client must have an emergency back-up plan in
case the assistant/companion does not show up for work as expected or
terminates employment without prior notice.
9. Required documentation in client's records. The CD services
facilitator must maintain all records of each client. At a minimum these
records must contain:
a. All copies of the ISP and all supporting documentation.
b. All DMAS quality management review forms.
c. CD services facilitator's notes contemporaneously recorded
and dated during any contacts with the client and family/caregiver and during
visits to the client's home.
d. All correspondence to the client, family/caregiver and to
DMAS.
e. Reassessments made during the provision of services.
f. Records of contacts made with family/caregivers,
physicians, DMAS, formal and informal service providers, and others involved in
the care of the child.
g. All training provided to the assistant/companion or
assistants/companions on behalf of the client.
h. All management training provided to the client or
family/caregiver including the client's or family/caregiver's responsibility
for the accuracy of the timesheets.
i. All documents signed by the client or family/caregiver that
acknowledge the responsibilities of the services.
VA.R. Doc. No. R11-2771; Filed May 3, 2011, 4:46 p.m.
w –––––––––––––––––– w
TITLE 14. INSURANCE
STATE CORPORATION COMMISSION
Proposed Regulation
REGISTRAR'S NOTICE:
The State Corporation Commission is exempt from the Administrative Process Act
in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts
courts, any agency of the Supreme Court, and any agency that by the
Constitution is expressly granted any of the powers of a court of record.
Titles of Regulations: 14VAC5-215. Rules Governing
Independent External Review of Final Adverse Utilization Review Decisions (amending 14VAC5-215-10).
14VAC5-216. Rules Governing Internal Appeal and External
Review (adding 14VAC5-216-10 through 14VAC5-216-130).
Statutory Authority: §§ 12.1-13 and 38.2-223 of the
Code of Virginia.
Public Hearing Information: A public hearing will be
scheduled upon request.
Public Comment Deadline: June 1, 2011.
Agency Contact: Julie Blauvelt, Senior Insurance Market
Examiner, Bureau of Insurance, State Corporation Commission, P.O. Box 1157, Richmond,
VA 23218, telephone (804) 371-9865, FAX (804) 371-9944, or email
julie.blauvelt@scc.virginia.gov.
Summary:
The proposed regulatory action (i) amends 14VAC5-215-10 by
limiting the chapter's application to final adverse decisions made before or on
June 30, 2011, and (ii) adds a new chapter, 14VAC5-216, Rules Governing
Internal Appeal and External Review, to conform the state's external review
program with the Uniform Health Carrier External Review Model Act, prepared by
the National Association of Insurance Commissioners, as required by the federal
Patient Protection and Affordable Care Act. The proposed rules clarify and
implement the provisions of Chapter 788 of the 2011 Acts of Assembly which
become effective on July 1, 2011, and conform Virginia's internal appeal and
external review processes to meet the federal requirements.
Specifically, the proposed rules (i) contain provisions
that apply the internal appeal and external review requirements to all health
carriers, unless specifically excepted; (ii) set forth guidelines and standards
for an internal appeal process that is in conformity with federal Department of
Labor regulations that provide for a full and fair review of any adverse
benefit determination; and (iii) provide for urgent care appeals, concurrent
review decisions, and notification requirements. Although the external review
process is outlined in Chapter 35.1 (38.2-3556 et seq.) of Title 38.2 of the
Code of Virginia, the proposed rules clarify these provisions and provide forms
for this process.
14VAC5-215-10. Scope and purpose.
A. This chapter shall apply to all utilization review
entities as that term is defined in 14VAC5-215-30, the issuer of a covered
person's policy or contract of health benefits, and covered persons.
B. This chapter shall not apply to utilization review
performed under contract with the federal government for patients eligible for
health care services under Title XVIII of the Social Security Act (42 USC
§ 1395 et seq.), utilization review performed under contract with the
federal government for patients eligible for health care services under the
TRICARE program (10 USC § 1071 et seq.), or utilization review performed
under contract with a plan otherwise exempt from the operation of this chapter
pursuant to the Employee Retirement Income Security Act of 1974 (29 USC
§ 1001 et seq.).
This chapter shall not apply to programs administered by the
Department of Medical Assistance Services or under contract with the Department
of Medical Assistance Services.
C. The purpose of this chapter is to set forth rules to carry
out the provisions of Chapter 59 (§ 38.2-5900 et seq.) of Title 38.2 of
the Code of Virginia so as to provide (i) a process for appeals to be made to
the Bureau of Insurance to obtain an independent external review of final
adverse decisions made by a utilization review entity; (ii) procedures for
expedited consideration of appeals in cases of emergency health care; and (iii)
standards, credentials, and qualifications for impartial health entities.
D. This chapter shall apply to any final adverse decision
made on or before June 30, 2011.
CHAPTER 216
RULES GOVERNING INTERNAL APPEAL AND EXTERNAL REVIEW
Part I
General
14VAC5-216-10. Scope and purpose.
A. This chapter shall apply to all health carriers, except
that the provisions of this chapter shall not apply to a policy or certificate
that provides coverage only for a specified disease, specified accident or
accident-only coverage; credit; disability income; hospital indemnity;
long-term care; dental, vision care, or any other limited supplemental benefit
or to a Medicare supplement policy of insurance; coverage under a plan through
Medicare, Medicaid, or the federal employees health benefits program;
self-insured plans except that a self-insured employee welfare benefit plan may
elect to use the state external review process; any coverage issued under
Chapter 55 of Title 10 of the U.S. Code (TRICARE), and any coverage issued as
supplemental to that coverage; any coverage issued as supplemental to liability
insurance, workers' compensation or similar insurance; and automobile medical
payment insurance or any insurance under which benefits are payable with or
without regard to fault, whether written on a group or individual basis.
B. The purpose of this chapter is to set forth rules to
carry out the provisions of Chapter 35.1 (§ 38.2-3556 et seq.) of Title
38.2 of the Code of Virginia as well as federal law to provide a health carrier
with guidelines to assist with establishing a procedure for an internal appeals
process under which there will be a full and fair review of any adverse benefit
determination. This chapter also sets forth requirements for the external
review process.
C. This chapter shall apply to any adverse benefit
determination made on or after July 1, 2011, by any health carrier for a
grandfathered or non-grandfathered health benefit plan, as defined by the
PPACA.
14VAC5-216-20. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Adverse benefit determination" in the context
of the internal appeals process means (i) a determination by a health carrier
or its designee utilization review entity that, based on the information
provided, a request for, a benefit under the health carrier's health benefit
plan upon application of any utilization review technique does not meet the
health carrier's requirements for medical necessity, appropriateness, health care
setting, level of care, or effectiveness or is determined to be experimental or
investigational and the requested benefit is therefore denied, reduced, or
terminated or payment is not provided or made, in whole or in part, for the
requested benefit; (ii) the denial, reduction, or termination of, or failure to
provide or make payment in whole or in part for, a benefit based on a
determination by a health carrier or its designee utilization review entity of
a covered person's eligibility to participate in the health carrier's health
benefit plan; (iii) any review determination that denies, reduces, or
terminates or fails to provide or make payment, in whole or in part, for a
benefit; (iv) a rescission of coverage determination as defined in
§ 38.2-3438 of the Code of Virginia; or (v) any decision to deny
individual coverage in an initial eligibility determination.
"Adverse determination" in the context of
external review means a determination by a health carrier or its designee
utilization review entity that an admission, availability of care, continued
stay, or other health care service that is a covered benefit has been reviewed
and, based upon the information provided, does not meet the health carrier's
requirements for medical necessity, appropriateness, health care setting, level
of care, or effectiveness or is determined to be experimental or
investigational and the requested service or payment for the service is
therefore denied, reduced, or terminated.
"Authorized representative" means (i) a person
to whom a covered person has given express written consent to represent the
covered person; (ii) a person authorized by law to provide substituted consent
for a covered person; (iii) a family member of a covered person or the covered
person's treating health care professional when the covered person is unable to
provide consent; (iv) a health care professional when the covered person's
health benefit plan requires that a request for a benefit under the plan be
initiated by the health care professional; or (v) in the case of an urgent care
internal appeal, a health care professional with knowledge of the covered
person's medical condition.
"Clinical peer reviewer" means a practicing
health care professional who holds a nonrestricted license in a state, district,
or territory of the United States and in the same or similar specialty as
typically manages the medical condition, procedure, or treatment under appeal.
"Commission" means the State Corporation
Commission.
"Concurrent review" means utilization review conducted
during a patient's stay or course of treatment in a facility, the office of a
health care professional, or other inpatient or outpatient health care setting.
"Covered person" means a policyholder,
subscriber, enrollee, or other individual participating in a health benefit
plan. For purposes of this chapter with respect to the administration of
appeals, references to a covered person include a covered person's authorized
representative, if any.
"Emergency services" means those health care
services that are rendered after the sudden onset of a medical condition that
manifests itself by symptoms of sufficient severity, including severe pain,
that the absence of immediate medical attention could reasonably be expected by
a prudent layperson who possesses an average knowledge of health and medicine
to result in (i) serious jeopardy to the mental or physical health of the
individual, (ii) danger of serious impairment of the individual's bodily
functions, (iii) serious dysfunction of any of the individual's bodily organs,
or (iv) in the case of a pregnant woman, serious jeopardy to the health of the
fetus.
"Final adverse determination" means an adverse
determination involving a covered benefit that has been upheld by a health
carrier, or its designee utilization review entity, at the completion of the
health carrier's internal appeal process.
"Group health plan" means an employee welfare
benefit plan (as defined in the Employee Retirement Income Security Act of 1974
(29 USC § 1002(1)), to the extent that the plan provides medical care and
including items and services paid for as medical care to employees or their
dependents (as defined under the terms of the plan) directly or through
insurance, reimbursement, or otherwise.
"Health benefit plan" means a policy, contract,
certificate, or agreement offered or issued by a health carrier to provide,
deliver, arrange for, pay for, or reimburse any of the costs of health care
services. "Health benefit plan" does not include accident only,
credit, or disability insurance; coverage of Medicare services or federal
employee health plans pursuant to contracts with the United States government;
Medicare supplement or long-term care insurance; Medicaid coverage; dental only
or vision only insurance; specified disease insurance; hospital indemnity
coverage; limited benefit health coverage; coverage issued as a supplement to
liability insurance; insurance arising out of a workers' compensation or
similar law; automobile medical payment insurance; medical expense and loss of
income benefits; or insurance under which benefits are payable with or without
regard to fault and that is statutorily required to be contained in any
liability insurance policy or equivalent self-insurance.
"Health care professional" means a physician or
other health care practitioner licensed, accredited, or certified to perform
specified health care services consistent with the laws of the Commonwealth.
"Health carrier" means an entity, subject to the
insurance laws and regulations of the Commonwealth or subject to the
jurisdiction of the commission, that contracts or offers to contract to
provide, deliver, arrange for, pay for, or reimburse any of the costs of health
care services, including an accident and sickness insurance company, a health
maintenance organization, a nonprofit hospital and health service corporation,
or a nonstock corporation offering or administering a health services plan, a
hospital services plan, or a medical or surgical services plan, or any other entity
providing a plan of health insurance, health benefits, or health care services
except as excluded under § 38.2-3557 of the Code of Virginia.
"Independent review organization" means an
entity that conducts independent external reviews of adverse determinations and
final adverse determinations.
"PPACA" means the Patient Protection and
Affordable Care Act (P.L. 111-148), as amended by the Health Care and Education
Reconciliation Act of 2010 (P.L. 111-152).
"Pre-service claim" means a claim for a benefit
under a health benefit plan that requires or allows for approval of the benefit
in advance of obtaining the service or treatment.
"Post-service claim" means a claim for a benefit
under a health benefit plan for which the service or treatment has been provided
to the covered person.
"Self-insured plan" means an "employee
welfare benefit plan" that has the meaning set forth in the Employee
Retirement Income Security Act of 1974, 29 USC § 1002(1).
"Urgent care appeal" means an appeal for medical
care or treatment with respect to which the application of the time periods for
making non-urgent care determinations (i) could seriously jeopardize the life
or health of the covered person or the ability of the covered person to regain
maximum function; or (ii) in the opinion of the treating health care
professional with knowledge of the covered person's medical condition, would
subject the covered person to severe pain that cannot be adequately managed
without the care or treatment that is the subject of the appeal. An urgent care
appeal shall not be available for any post-service claim or retrospective
adverse benefit determination.
"Utilization review" means a set of formal
techniques designed to monitor the use of or evaluate the clinical necessity,
appropriateness, efficacy, or efficiency of health care services, procedures or
settings. Techniques may include ambulatory review, prospective review, second
opinion, certification, concurrent review, case management, discharge planning,
or retrospective review.
Part II
Internal Appeal
14VAC5-216-30. General requirements.
A. Each health carrier offering a health benefit plan
shall establish and maintain an internal appeals procedure in accordance with
this chapter, 29 USC § 2560.503-1, and 45 CFR 147.136 to provide a full
and fair review of any adverse benefit determination.
B. As part of each health carrier's health benefit plan
and any adverse benefit determination, each health carrier shall provide notice
of its available internal appeals procedures (including urgent care appeals),
including timeframes for submission of an appeal, the health carrier's review
and response. Such notice shall also include the name, address, and telephone
number of the person or organizational unit designated to coordinate the review
of the appeal for the health carrier, and contact information for the Bureau of
Insurance. If the plan is a managed care health insurance plan (MCHIP), the
mailing address, telephone number, and email address for the Office of the
Managed Care Ombudsman shall also be included.
C. The internal appeals procedure shall not contain any
provision, or be administered in a way that unduly inhibits or hampers the
initiation or processing of claims for benefits.
D. The internal appeals procedure shall provide for an
authorized representative of a covered person to act on behalf of the covered
person in pursuing a benefit claim or appeal of an adverse benefit
determination. A health carrier may establish reasonable procedures for
determining whether an individual has been authorized to act on behalf of a
covered person. In the case of an urgent care appeal, a health care
professional shall be permitted to act as the authorized representative of the
covered person, in accordance with this chapter.
E. The internal appeals procedure shall contain
administrative processes and safeguards designed to ensure and to verify that
benefit determinations are made in accordance with the provisions of the health
benefit plan and, where appropriate, the health benefit plan provisions have been
applied consistently with respect to similarly situated covered persons.
14VAC5-216-40. Minimum appeal requirements.
A. Each covered person shall be entitled to a full and
fair review of an adverse benefit determination. Within 180 days after the date
of receipt of a notice of an adverse benefit determination, a covered person
may file an appeal with the health carrier. A health carrier may designate a
utilization review entity to coordinate the review. For purposes of this
chapter, "health carrier" may also mean its designated utilization
review entity.
B. The health carrier shall conduct the appeal in a manner
to ensure the independence and impartiality of the individuals involved in
reviewing the appeal. In ensuring the independence and impartiality of such
individuals, the health carrier shall not make decisions regarding hiring,
compensation, termination, promotion, or other similar matters based upon the
likelihood that an individual will support the denial of benefits.
C. 1. In deciding an appeal of any adverse benefit
determination that is based in whole or in part on a medical judgment,
including determinations with regard to whether a particular treatment, drug,
or other service is experimental, investigational, or not medically necessary
or appropriate, the health carrier shall designate a clinical peer reviewer to
review the appeal. The clinical peer reviewer shall not have been involved in
any previous adverse benefit determination with respect to the claim.
2. A reviewer of any other type of adverse benefit
determination shall be an appropriate person designated by the health carrier.
The reviewer of the appeal shall not be the individual who made any previous
adverse benefit determination of the subject appeal nor the subordinate of such
individual and shall not defer to any prior adverse benefit determination.
D. A full and fair review shall also provide for:
1. The covered person to have an opportunity to submit
written comments, documents, records, and other information relating to the appeal
for the reviewer or reviewers to consider when reviewing the appeal;
2. Upon request to the health carrier, the covered person
to have reasonable access to and free of charge copies of all documents,
records, and other information relevant to the covered person's request for
benefits (note that any request for diagnosis and treatment codes, in itself,
should not be considered to be a request for an internal appeal);
3. An appeal process that takes into account all comments,
documents, records, and other information submitted by the covered person
relating to the appeal, without regard to whether such information was
submitted or considered in the initial benefit determination.
4. The identification of medical or vocational experts
whose advice was obtained on behalf of the health benefit plan in connection
with a covered person's adverse benefit determination, without regard to
whether the advice was relied upon in making the benefit determination.
5. An urgent care appeal process.
6. Prior to issuing a final adverse benefit determination,
the health carrier to provide free of charge to the covered person any new or
additional evidence relied upon or generated by the health carrier or at the
direction of the health carrier, in connection with the internal appeal
sufficiently in advance of the date the determination is required to be
provided to permit the covered person a reasonable opportunity to respond prior
to that date.
E. A health carrier shall notify the covered person of the
final benefit determination within a reasonable period of time appropriate to
the medical circumstances, but not later than the timeframes established in
subdivisions 1 and 2 of this subsection.
1. If an internal appeal involves a pre-service claim
review request, the health carrier shall notify the covered person of its
decision within 30 days after receipt of the appeal. A health carrier may
provide a second level of internal appeal for group health plans only, provided
that a maximum of 15 days is allowed for a benefit determination and
notification from each level of the appeal.
2. If an internal appeal involves a post-service claim
review request, the health carrier shall notify the covered person of its
decision within 60 days after receipt of the appeal. A health carrier may
provide a second level of internal appeal for group health plans only, provided
that a maximum of 30 days is allowed for a benefit determination and
notification from each level of the appeal.
14VAC5-216-50. Urgent care appeals.
A. The health carrier shall notify the covered person of
its initial benefit determination as soon as possible taking into account
medical exigencies, but not later than 72 hours after receipt of the request,
unless the covered person fails to provide sufficient information to determine
whether, or to what extent, benefits are covered or payable under the health
benefit plan. In the case of such failure, the health carrier shall notify the
covered person as soon as possible, but not later than 24 hours after receipt
of the request, of the specific information necessary to complete the claim.
The covered person shall be afforded a reasonable amount of time, taking into
account the circumstances, but not less than 48 hours to provide the specified
information. The health carrier shall notify the covered person of its benefit
determination not later than 48 hours after the earlier of (i) its receipt of
the specified information or (ii) the end of the period afforded to the covered
person to provide the specified additional information.
B. The notification of an urgent care adverse benefit
determination that is based on a medical necessity, appropriateness, health
care setting, level of care, effectiveness, experimental or investigational
service or treatment, or similar exclusion or limit, shall include a
description of the health carrier's urgent care appeal process including any
time limits applicable to those procedures and the availability of and
procedures for an expedited external review.
C. Upon receipt of an adverse benefit determination, a
covered person may submit a request for an urgent care appeal either orally or
in writing to the health carrier.
D. All necessary information, including the benefit
determination on appeal, shall be transmitted between the health carrier and
the covered person by telephone, facsimile, or the most expeditious method
available.
E. The health carrier shall notify the covered person and
the treating health care professional of its benefit determination as soon as
possible, taking into account the medical exigencies, but not later than 72
hours after receipt of an urgent care appeal.
14VAC5-216-60. Concurrent review decisions.
A. A health carrier shall provide continued coverage pending
the outcome of an internal appeal of a concurrent review decision.
B. Any reduction or termination by a health carrier of an
approved course of treatment (other than by health benefit plan amendment or
termination) to be provided over a period of time or number of treatments shall
constitute an adverse benefit determination. The health carrier shall notify
the covered person of the adverse benefit determination at a time sufficiently
in advance of the reduction or termination to allow the covered person to file
an internal appeal and obtain a determination before the benefit is reduced or
terminated.
C. Any request by a covered person to extend the course of
treatment beyond the period of time or number of treatments that is an urgent
care appeal shall be decided as soon as possible, taking into account the
medical exigencies. The covered person and the treating health care
professional shall be notified of the benefit determination within 72 hours
after receipt of the internal appeal.
14VAC5-216-70. Notification requirements.
A. A health carrier shall provide a covered person with
written or electronic notification of its benefit determination on appeal. The
notification of an adverse benefit determination shall be written in easily
understandable language and shall set forth the following:
1. Information sufficient to identify the claim involved
with respect to the appeal, including the date of service, the health care
provider, and the claim amount;
2. The specific reason or reasons for the adverse benefit
determination;
3. Reference to the specific plan provisions on which the
adverse benefit determination is made;
4. A statement that the covered person is entitled to
receive, upon request and free of charge, reasonable access to and copies of
all documents, records, and other information relevant to the covered person's
claim for benefits;
5. A statement indicating whether any additional internal
appeals are available or whether the covered person has received a final
adverse determination. If internal appeals are available, contact information
on where to submit the appeal;
6. A statement describing the external review procedures
offered by the health carrier and the covered person's right to obtain
information about such procedures and the covered person's right to bring a
civil action under § 502(a) of ERISA (29 USC § 1001 et seq.), if
applicable; and
7. A statement indicating that the covered person has the
right to request an external review if the covered person has not received a
final benefit determination within the timeframes provided in 14VAC5-216-40 E,
unless the covered person requests or agrees to a delay.
B. In the case of a group health plan, the required
notification shall also set forth the following:
1. If an internal rule, guideline, protocol, or other
similar criterion (collectively "rule") was relied upon in making the
adverse benefit determination, either the specific rule or a statement that
such rule was relied upon in making the adverse benefit determination and that
a copy of the rule will be provided free of charge to the covered person upon
request;
2. If the adverse benefit determination is based on a
medical necessity or experimental treatment or similar exclusion or limit,
either an explanation of the scientific or clinical judgment for the
determination, applying the terms of the plan to the covered person's medical
circumstances, or a statement that such explanation will be provided free of
charge upon request; and
3. Include a statement indicating that the covered person
may have other voluntary alternative dispute resolution options, such as
mediation. The covered person should be referred to the appropriate federal or
state agency, his plan administrator, or the health carrier, as appropriate.
C. Electronic notification shall be in accordance with the
provisions of the Uniform Electronic Transactions Act (§ 59.1-479 et seq.
of the Code of Virginia).
Part III
External Review
14VAC5-216-80. Incomplete or ineligible determinations.
A. After the covered person has requested an external
review, and if he is notified by the health carrier that the request is
incomplete in accordance with § 38.2-3561 B 4 or 38.2-3563 D 6 of the Code of
Virginia, the covered person shall have five business days from receipt of such
notice to return the requested materials necessary to complete the request to
the health carrier. The health carrier shall then have five business days to
conduct the preliminary review for eligibility. Notification shall be in accordance
with the provisions of § 38.2-3561 C or 38.2-3563 E of the Code of
Virginia.
B. If the health carrier determines that a covered
person's request for external review is complete but ineligible, the covered
person may request that the commission review the ineligibility determination.
1. Within five business days from the date the covered
person receives notification from the health carrier, the covered person may
request in writing that the commission review the ineligibility determination
by the health carrier.
2. Within one business day after receipt of a notification
from the covered person, the commission shall notify the health carrier of such
request.
3. Within three business days of receipt of the
commission's notice to the health carrier, the health carrier shall forward all
information and materials used to make the ineligibility determination to the
commission.
4. Within five business days of receipt of all materials
necessary to make an eligibility determination, the commission shall review the
file and make such decision.
5. Within one business day of such decision, the commission
shall notify the covered person and the health carrier, and the assigned
independent review organization if eligible.
C. If the covered person has requested an expedited
external review or an expedited external review of experimental or
investigational treatment, and is notified by the health carrier that the
request for such expedited external review is incomplete, the covered person
shall promptly return the requested materials necessary to complete the request
to the health carrier. The health carrier shall then promptly conduct the
preliminary review for eligibility.
D. If the health carrier determines that a covered
person's request for expedited external review is complete but ineligible, the
covered person may promptly request, orally or in writing, that the commission
review the ineligibility determination.
1. Upon receipt of an eligibility request from a covered
person, the commission shall promptly notify the health carrier of such
request.
2. The health carrier shall promptly forward all
information and materials used to make the ineligibility determination to the
commission.
3. Upon receipt of all information and materials from the
health carrier, the commission shall promptly review the file and make an
eligibility determination.
4. The commission shall promptly notify the covered person
and the health carrier, and the assigned independent review organization if
eligible.
E. If the request for a standard external review does not
contain sufficient information to allow the commission to send the request to
the health carrier, the commission shall have one business day from the date
the sufficient information is received to provide notice to the health carrier.
14VAC5-216-90. Expedited external review.
A. If a covered person files a request with the commission
for an expedited external review in accordance with § 38.2-3560 C of the
Code of Virginia, the health carrier shall promptly conduct an eligibility determination
in accordance with 14VAC5-216-80 prior to review by an independent review
organization.
B. When an independent review organization is requested by
the commission in accordance with § 38.2-3562 of the Code of Virginia to
conduct an expedited external review of an adverse determination under
§ 38.2-3560 C of the Code of Virginia, the independent review organization
shall determine whether the timeframes for sequential completion of the
expedited internal appeal and expedited external review (i) could seriously
jeopardize the life or health of the covered person or the ability of the
covered person to regain maximum function; or (ii) would subject the covered
person to severe pain that cannot be adequately managed without the care or
treatment that is the subject of the appeal, as compared to the timeframes for
simultaneous completion of the expedited appeal and review. The independent
review organization shall promptly make such determination and shall promptly
notify the covered person, the health carrier, and the commission.
14VAC5-216-100. Qualifications for independent review
organizations.
A. An independent review organization that desires to
conduct external reviews for the Commonwealth shall submit an application and
$500 application fee using Form 216-E to the commission for review and
approval.
B. An independent review organization shall meet all the
qualification requirements in § 38.2-3565 of the Code of Virginia.
C. An independent review organization that does not
maintain required accreditation status shall provide notice to the commission
within 30 days of any change in such status.
14VAC5-216-110. External review reporting requirements.
In accordance with § 38.2-3568 of the Code of
Virginia, each health carrier and each independent review organization shall
file with the commission a report by April 1 of each calendar year using Form
216-F or 216-G as appropriate.
14VAC5-216-120. Funding of external review.
Failure of a health carrier to timely pay any independent
review organization for a completed external review shall be a violation of
this section and shall subject the health carrier to penalties imposed under
Title 38.2 of the Code of Virginia.
14VAC5-216-130. Self-insured plans.
A. Any self-insured plan whose plan sponsor's headquarters
is located in Virginia may choose to utilize the external review processes
outlined in Chapter 35.1 (§ 38.2-3556 et seq.) of Title 38.2 of the Code
of Virginia. For purposes of Part III of this chapter, "health
carrier" shall mean a self-insured plan or its third-party administrator
if any, that opts in to the state external review process.
B. A self-insured plan utilizing such external review
processes shall notify the commission that it will opt-in to the state external
review process by completing Form 216-H. A new form shall be completed for each
plan year.
C. A self-insured plan that opts in to the state external
review process shall comply with all statutes and regulations pertaining to
such process. Plan materials and appropriate denial notices shall contain
required information regarding the state external review processes.
D. A self-insured plan that opts into the state external
review process but fails to comply with the requirements outlined in this
chapter and applicable state statutes pertaining to the external review process
may be terminated from use of such process by the commission.
NOTICE: The
following forms used in administering the regulation were 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 to access a form. The
forms are also available through the agency contact or at the Office of the
Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond,
Virginia 23219.
FORMS (14VAC5-216)
External
Review Request Form, Form 216-A (7/11)
Appointment
of Authorized Representative, Form 216-B (7/11)
Physician
Certification Expedited External Review Request, Form 216-C (7/11)
Physician
Certification Experimental or Investigational Denials, Form 216-D (7/11)
Independent
Review Organization Application for Registration, Form 216-E (7/11)
Health
Carrier External Review Annual Report Form, Form 216-F (7/11)
Independent
Review Organization External Review Annual Report Form, Form 216-G (7/11)
Self-Insured
Plan Opt-In to Virginia External Review Process, Form 216-H (7/11)
VA.R. Doc. No. R11-2809; Filed May 3, 2011, 2:32 p.m.
w –––––––––––––––––– w
TITLE 18. PROFESSIONAL AND OCCUPATIONAL
LICENSING
VIRGINIA BOARD FOR ASBESTOS, LEAD, AND HOME INSPECTORS
Final Regulation
Title of Regulation: 18VAC15-60. Mold Inspector and
Remediator Regulations (adding 18VAC15-60-10 through 18VAC15-60-390).
Statutory Authority: §§ 54.1-201 and 54.1-501 of
the Code of Virginia.
Effective Date: July 1, 2011.
Agency Contact: David Dick, Executive Director, Virginia
Board for Asbestos, Lead, Mold, and Home Inspectors, 9960 Mayland Drive, Suite
400, Richmond, VA 23233, telephone (804) 367-8595, FAX (804) 527-4297, or email
alhi@dpor.virginia.gov.
Summary:
Chapters 358 and 819 of the 2009 Acts of Assembly charged the
board with the creation of a licensure program for the regulation of mold
inspectors and mold remediators. This regulation creates the licensure entry
requirements, renewal requirements, and standards of practice and conduct for
this group of regulants, as well as the disciplinary authority of the board.
Minor changes for clarity and consistency were made to the
proposed regulation. Substantive changes made include (i) striking unused words
from definitions, (ii) amending how often mold remediator workers must take a
refresher course, (iii) adding to the mold remediator supervisor standard for
conducting mold remediation activities, (iv) adding to the grounds for
disciplinary action, (v) adding to the responsibilities of the licensee, and
(vi) adding an amendment to the conflict of interest section.
Summary of Public Comments and Agency's Response: A
summary of comments made by the public and the agency's response may be
obtained from the promulgating agency or viewed at the office of the Registrar of
Regulations.
CHAPTER 60
MOLD INSPECTOR AND REMEDIATOR REGULATIONS
Part I
Exemptions from Licensure Requirement
18VAC15-60-10. Exemptions from licensure requirement.
This chapter shall not apply to the following:
1. An individual performing mold remediation in an area in
which the mold contamination for the total project affects a total surface area
of less than 10 square feet;
2. An owner or the managing agent or employee of an owner
performing mold inspections or mold remediation on the owner's residential
property, provided such property contains no more than four residential
dwelling units;
3. Lab technicians who analyze mold samples as long as it
is limited to analysis that is performed solely in a laboratory;
4. An individual performing activities limited to power
washing and surface cleaning of a building exterior;
5. Phase [ 1 I ] environmental
site assessments conducted in accordance with ASTM E1527-05 standards that,
through the routine conduction of the inspection, indicate the presence of mold.
Such inspections shall not include any further investigation of the mold or any
other duties of a mold inspector as defined in this chapter;
6. Professional engineers correcting a moisture problem
[ only ]; or
7. Any individual applying chemicals to a wood structure
for the sole purpose of controlling wood-destroying pests in compliance with
the Virginia Pesticide Control Act (§ 3.2-3900 et seq. of the Code of
Virginia).
Part II
Definitions
18VAC15-60-20. Definitions.
Section 54.1-500 of the Code of Virginia provides
definitions of the following terms and phrases as used in this chapter:
"Mold" means any living or dead fungi or related
products or parts, including spores, hyphae, and spore-producing structures.
"Mold analysis" means the examination of a sample
collected during a mold inspection for the purpose of (i) determining the
amount or presence of or identifying the genus, species, or functional grouping
of any living or dead mold present in the sample or (ii) identifying or
determining the amount or presence of any fungal products including, but not
limited to, mycotoxins and fungal volatile organic compounds present in the
sample.
"Mold inspection" means (i) an inspection,
investigation, or survey of a dwelling or other structure to determine the presence
of mold; (ii) the development of a mold management plan or mold remediation
protocol; or (iii) the collection or analysis of a mold sample.
"Mold inspector" means an individual who has
been licensed by the board to perform mold inspections.
"Mold remediation" means cleaning mold from
building material surfaces or the removal of contaminated building materials
that are unsalvageable and other activities, including applying biocides or
antimicrobial compounds and sanitization protocols, intended to prevent future
mold contamination.
"Mold remediator" means an individual licensed
by the board to perform mold remediation.
"Person" means a corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association, or any other
individual or entity.
The following words and terms when used in this chapter
shall have the following meaning unless the context clearly indicates
otherwise.
"Approved mold training course" means any
training course offered by a person who has been approved by the board to
provide training for individuals that is required for obtaining an initial
license or renewing an existing license as a mold remediator worker, mold
remediator supervisor, or mold inspector.
"Approved mold training provider" means a person
who has been approved by the board to offer one or more approved mold training
courses.
[ "AIHA" means the American Industrial
Hygiene Association. ]
[ "ANSI" means the American National
Standards Institute. ]
"Applicant" means an individual seeking licensure
that has submitted a fully executed application or any person seeking board
approval to offer mold training courses.
"Application" means a board-prescribed form
submitted with the appropriate fee and other required documentation including,
but not limited to, references, employment verification, degree verification,
and verification of examination and licensure, certification, or registration.
[ "Approval letter" means a written
notice confirming an individual applicant's licensure or a person's approval by
the board to offer a specific approved mold training course. ]
"ASTM" means the American Society for Testing
and Materials.
"Department" means the Virginia Department of
Professional and Occupational Regulation.
[ "Direct supervisor" means a licensed
mold remediator supervisor who undertakes to supervise the activities of a
licensed mold remediator worker and shall be physically present on the premises
at all times while any licensed mold remediator worker under his supervision is
engaged in the activities involving mold remediation. ]
"Discipline" means any one of the specific
licenses of mold remediator worker, mold remediator supervisor, or mold
inspector.
[ "Endorsement" means the recognition of
licenses or certificates issued by other states, the District of Columbia, or
any territory or possession of the United States as permitted by
§ 54.1-500 et seq. of the Code of Virginia. ]
"Financial interest" means financial benefit
accruing to an individual or to a member of his immediate family. Such interest
shall exist by reason of (i) ownership in a business if the ownership exceeds
3.0% of the total equity of the business; (ii) annual gross income that exceeds
or may be reasonably anticipated to exceed $1,000 from ownership in real or
personal property or a business; (iii) salary, other compensation, fringe
benefits, or benefits from the use of property, or any combination of these,
paid or provided by a business that exceeds or may be reasonably expected to
exceed $1,000 annually; (iv) ownership of real or personal property if the
interest exceeds $1,000 in value and excluding ownership in business, income,
salary, other compensation, fringe benefits, or benefits from the use of
property.
"Guest instructor" means an individual
designated by an approved mold training provider's training manager or primary
instructor to provide instruction specific to a component of an approved mold
training course.
[ "IAQA" means the Indoor Air Quality
Association. ]
"IEC" means the International Electrotechnical
Commission.
[ "IICRC" means the Institute of
Inspection, Cleaning, and Restoration Certification. ]
"Instructor" means a person designated by an
approved mold training provider who instructs one or more approved mold
training courses. This definition excludes guest instructors.
"ISO" means the International Organization for
Standardization.
"Late renewal" means a period of time during
which a regulant may renew a license, certificate, or registration after its expiration
date by paying an established fee without having to meet additional
requirements.
"Licensed mold inspector" means any individual
who meets the requirements of this chapter and is granted a license by the
board to conduct mold inspections and mold assessments.
"Licensed mold remediator supervisor" means any
individual who meets the requirements of this chapter and is granted a license
by the board to conduct and supervise mold remediations.
"Licensed mold remediator worker" means any
individual who meets the requirements of this chapter and is granted a license
by the board to conduct mold remediations.
"Licensee" means any person as defined by
§ 54.1-500 of the Code of Virginia who has been issued and holds a
currently valid license as a mold remediator worker, mold remediator
supervisor, or mold inspector under this chapter.
[ "NADCA" means the National Air Duct
Cleaners Association. ]
"Phase I Environmental Site Assessment" means an
environmental site assessment as defined in ASTM standard E-1527-05.
"Professional engineer" means an individual
currently licensed in the Commonwealth of Virginia as a professional engineer.
"Reciprocity" means the recognition of licenses
or certificates issued by other states, the District of Columbia, or any territory
or possession of the United States as permitted by § [ 54.1-500
et seq. 54.1-103 C ] of the Code of Virginia.
"Refresher course" means a specific approved
mold training course established by this chapter that must be periodically
completed to maintain an individual's license in a single discipline.
"Regulant" means a licensee or an approved mold
training provider.
"Renewal" means the process and requirements for
periodically approving a regulant to continue practicing.
"Substantially equivalent" means requirements
that do not conflict with and are at least as rigorous as this chapter and
supporting statutes of the board.
"Training hour" means at least 50 minutes of
actual instruction including, but not limited to, time devoted to lecture,
learning activities, small group activities, demonstrations, evaluations, or
hands-on experience.
Part III
Entry
18VAC15-60-30. Application procedures.
A. All applicants seeking licensure or training course
approval shall submit an application with the appropriate fee specified in
18VAC15-60-100. Application shall be made on forms provided by the department.
B. By signing the application or submitting it
electronically to the department, the applicant certifies that he has read and
understands the board's statutes and regulations.
C. The receipt of an application and the deposit of fees
by the board [ does do ] not indicate
approval by the board.
D. The board may make further inquiries and investigations
with respect to the applicant's qualifications to confirm or amplify
information supplied.
E. Applicants will be notified if their application is
incomplete. Applicants who fail to complete the process within 12 months of the
date of the department's receipt of the original application shall submit a new
application and fee.
18VAC15-60-40. Qualifications for licensure - individuals.
A. All applicants shall meet all entry requirements in
effect at such time that the application is received by the department.
1. Name. The applicant shall disclose his full legal name.
2. Age. The applicant shall be at least 18 years old.
3. Address. The applicant shall disclose a physical
address. A post office box is only acceptable when a physical address is also
provided.
4. Specific entry requirements.
a. Mold remediator worker. Each individual applying for an
initial mold remediator worker license shall provide proof of successful
completion of an initial mold remediator worker course [ and all
subsequent refresher mold remediator worker courses ] from a
board-approved mold training provider. The training must have been completed
within [ 12 36 ] months [ of
preceding ] the date that the [ initial license is
issued by the board department receives the application ].
b. Mold remediator supervisor.
(1) Provide proof of successful completion of an initial
mold remediator supervisor course [ and all subsequent refresher
mold remediator supervisor courses ] from a board-approved mold
training provider. The training must have been completed within 12 months
[ of preceding ] the date that the [ initial
license is issued by the board. department receives the application;
and ]
(2) Provide proof of one year of experience in a mold or
another related environmental remediation field.
c. Mold inspector.
(1) Provide proof of successful completion of an initial
mold inspector course [ and all subsequent refresher mold inspector
courses ] from a board-approved mold training provider. The
training must have been completed within 12 months [ of
preceding ] the date that the [ initial license is
issued by the board. department receives the application; and ]
(2) Provide evidence of experience of performing mold
inspections including the activities as defined in this chapter. The amount of
experience is dependent on the applicant's education as follows:
(a) An applicant with a bachelor's degree in engineering,
architecture, industrial hygiene, physical science, [ environmental
science, biological science, ] or a related field shall have at
least six months of experience [ and or ] have
completed a minimum of five mold inspections;
(b) An applicant with a two-year associate's degree in
engineering, architecture, industrial hygiene, physical science, [ environmental
science, biological science, ] or a related field shall have at
least 12 months of experience [ and or ] have
completed a minimum of 10 mold inspections; or
(c) An applicant with a high school diploma or equivalent
shall have at least 24 months of experience [ and or ]
have completed a minimum of 15 mold inspections.
5. Experience verification. Each application for
[ mold remediator worker, ] mold remediator
supervisor [ , ] and mold inspector shall
include [ a document signed by the applicant's supervisor
documentation ] that verifies the applicant's experience
[ as a mold remediator supervisor or mold inspector as defined in this
chapter ]. [ Applicants who are self employed may
submit a copy of three completed mold inspections in lieu of a signed document
from a supervisor. ]
6. Education verification. For verification of a high
school diploma or equivalent, a copy of the diploma or equivalent must
accompany the application. College degrees must be verified by one of the
following:
a. Completing an education verification form provided by
the board that shall be sent directly from the school to the department; or
b. The board's receipt of official transcripts from the
college or university.
7. Training verification. Each application for mold
remediator worker, mold remediator supervisor, and mold inspector shall include
a copy of the certificate of completion from the initial training course
[ and all subsequent refresher courses ] that shall be
specific to the discipline of the license being applied for.
8. Convictions. In accordance with § 54.1-204 of the
Code of Virginia, each applicant shall disclose all convictions, in any
jurisdiction, of all misdemeanors and felonies. Any plea of nolo contendere
shall be considered a conviction for the purpose of this subdivision. The
record of a conviction certified or authenticated in such form as to be
admissible in evidence under the laws of the jurisdiction where convicted shall
be admissible as prima facie evidence of such guilt. The board, at its
discretion, may deny licensure to any applicant in accordance with § 54.1-204
of the Code of Virginia.
9. Disciplinary action. Each applicant shall disclose any
disciplinary action taken in any jurisdiction, including Virginia, in
connection with the applicant's environmental remediation practice including,
but not limited to, monetary penalties, fines, suspension, revocation, or
surrender of a license in connection with a disciplinary action.
10. Standards of practice and conduct. Applicants shall be
in compliance with the standards of practice and conduct set forth in this
chapter as applicable at the time of application to the board, while the
application is under review by the board, and at all times when the license is
in effect.
11. Standing. The applicant shall be in good standing in
every jurisdiction where licensed, certified, or authorized and the applicant
shall not have had a license, certification, or authorization that was
suspended, revoked, or surrendered in connection with any disciplinary action
in any jurisdiction prior to applying for licensure in Virginia. The board, at
its discretion, may deny licensure or approval to any applicant based on
disciplinary action by any jurisdiction.
B. [ The board may issue a license to perform
mold inspections or mold remediation to any applicant who is certified by a national
or state professional mold inspectors or mold remediators association approved
by the board, provided that the requirements for the applicant's class of
membership in such association at the time such membership was granted are
substantially equivalent to the requirements established by the board for all
applicants. ]
[ B. C. ] Applicants shall
have one year from the date of the board's receipt of the application and fee
to correct any deficiencies and provide the board with all [ requisite
required ] documentation and information. Applications not
completed within one year of the date of the board's receipt of the application
shall not be further considered by the board for approval. The applicant shall
be required to submit to the board a new application and fee.
18VAC15-60-50. Qualifications for approval as a mold
training provider.
A. Persons requesting approval as a mold training provider
to offer courses to prepare applicants for initial licensure, as well as to
prepare applicants and licensees for continued licensure, shall meet the
requirements established by this chapter before being granted approval to offer
an approved mold training course.
B. A completed application submission shall consist of all
information required by this section. Receipt of an application by the
department in no way indicates approval of a training course.
C. All training courses shall be discipline-specific. An
applicant may seek approval to offer initial or refresher courses in any of the
license disciplines as defined in this chapter. A separate application shall be
made for each course. Application shall be made on forms provided by the board
and shall include the following:
1. Training provider's business name, physical address,
mailing address, and phone number.
2. The course discipline and type, initial or refresher,
for which approval is sought.
3. A syllabus that contains the complete training course
curriculum.
4. A copy of all training course materials including, but
not limited to, student manuals, instructor notebooks, handouts, and training
aids.
5. A copy of all examinations used and the corresponding
answer sheets.
6. A description of all facilities and equipment to be used
for lecture and hands-on training as applicable to the course.
7. A narrative that states how the training course meets
the requirements for approval in the following areas:
a. Length of training in hours.
b. Examination content, length, format, and passing score.
c. Topics covered in the training course.
d. Examination administration and integrity.
8. The names of each instructor including resumes,
education, training, experience, and certifications relevant to his
qualifications to teach the course.
9. An example of a certificate that will be issued to
students who successfully complete the approved mold training course. The
certificate shall contain the information listed in 18VAC15-60-210.
10. A statement signed by the training manager that
certifies that the training course meets the minimum requirements established
in this chapter.
D. An approved mold training course must be approved by
the board before its certificates shall be accepted by the board to satisfy
initial licensure or renewal licensure training requirements. The completion of
a mold training course that occurs prior to a course's board approval shall not
be used to satisfy board licensure training requirements.
E. Each training course shall be conducted in compliance
with this chapter to qualify for and maintain its board approval.
F. Online courses shall not be accepted by the board for
approval.
18VAC15-60-60. [ Licensure or training
Training ] course approval by reciprocity.
[ A. The board may issue a license to perform mold
inspections or mold remediation to any applicant who is certified by a national
or state professional mold inspectors or mold remediators association approved
by the board, provided that the requirements for the applicant's class of
membership in such association are equal to or exceed the requirements established
by the board for all applicants.
B. ] The board may grant approval to
conduct mold training courses to any applicant who is approved in another state
provided that the requirements [ at the time ] of that
state's approval are [ equal to or exceed substantially
equivalent to ] the requirements established by the board for mold
training course approval.
18VAC15-60-70. Licensure by [ comity
reciprocity ].
A person holding a current license, certificate, or
registration to engage in the practice of mold inspection or mold remediation
issued to the applicant by another state, the District of Columbia, or any
territory or possession of the United States based on requirements that
[ do not conflict with and ] are [ at
least as rigorous as substantially equivalent to ] this
chapter and supporting statutes of this board that were in effect at the time
of original licensure, certification, or registration may be licensed. If the
applicant does not meet the requirements for licensure in Virginia, then the
applicant shall meet the entry requirements that are current at the time the
completed application for [ comity reciprocity ]
is received [ in the board's office by the
department ].
18VAC15-60-80. Application denial.
The board may refuse initial licensure due to an
applicant's failure to comply with entry requirements or for any of the reasons
that it may discipline a regulant. The board, at its discretion, may deny
licensure to any applicant in accordance with § 54.1-204 of the Code of
Virginia. The denial is considered to be a case decision and is subject to
appeal under Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of
Virginia.
Part IV
Fees
18VAC15-60-90. General fee requirements.
All fees are nonrefundable and shall not be prorated. The
date on which the fee is received by the department or its agent will determine
whether the fee is on time. Checks or money orders shall be made payable to the
Treasurer of Virginia.
18VAC15-60-100. Application fees.
|
Fee Type
|
Fee Amount
|
When Due
|
|
Application for mold
remediator worker
|
$25
|
With application
|
|
Application for mold remediator supervisor
|
$25
|
With application
|
|
Application for mold inspector
|
$25
|
With application
|
18VAC15-60-110. Renewal fees.
|
Fee Type
|
Fee Amount
|
When Due
|
|
Renewal of mold remediator worker license
|
$25
|
With renewal application
|
|
Renewal of mold remediator supervisor license
|
$25
|
With renewal application
|
|
Renewal of mold inspector license
|
$25
|
With renewal application
|
|
Late renewal of mold remediator worker license (includes
a $25 late renewal fee in addition to the regular $25 renewal fee)
|
$50
|
With renewal application
|
|
Late renewal of mold remediator supervisor license
(includes a $25 late renewal fee in addition to the regular $25 renewal fee)
|
$50
|
With renewal application
|
|
Late renewal of mold inspector license (includes a $25
late renewal fee in addition to the regular $25 renewal fee)
|
$50
|
With renewal application
|
Part V
Renewal
18VAC15-60-120. Renewal required.
A. Each individual mold remediator worker, mold remediator
supervisor, and mold inspector license issued under this chapter shall expire one
year from the last day of the month in which it was issued.
B. A fee shall be required for renewal as specified in
18VAC15-60-110.
18VAC15-60-130. Procedures for renewal.
A. The department shall mail a renewal notice to each
licensee at the licensee's last known address. The notice shall outline the
procedures for renewal and the renewal fee amount. Failure to receive the
notice shall not relieve the licensee of the obligation to renew in a timely
fashion.
B. Prior to the expiration date shown on the individual's
current license, the individual desiring to renew that license shall provide
evidence of meeting the refresher training requirement for license renewal as
established in 18VAC15-60-140 and the appropriate fee specified in
18VAC15-60-110. The board will only accept mold training courses that were
specifically approved by the board at the time that the training was completed.
A copy of the training certificate documenting the successful completion of the
refresher training for the license discipline being renewed shall accompany the
renewal notice and fee.
C. By renewing the license, the regulant is certifying his
continued compliance with the Standards of Conduct and Practice in Part X
(18VAC15-60-160 et. seq.) of this chapter.
D. Refresher training certificates shall only be used once
to renew [ an individual a mold remediator supervisor
or mold inspector, as appropriate, ] license.
E. Each license that is not renewed within 30 days of the
expiration date on the license shall be subject to late renewal fees as
established in 18VAC15-60-110.
F. Any licensee who fails to renew his license within six
months after the expiration date on the license shall not be permitted to renew
and shall apply as a new applicant and meet all entry requirements as
established by this chapter.
18VAC15-60-140. Qualifications for renewal.
A. Licensees desiring to maintain an individual license
shall satisfactorily complete a board-approved mold refresher training course
not less than once every 12 months for inspector and [ remediation
remediator ] supervisor, and not less than once every [ 24
36 ] months for [ remediation remediator ]
worker. It is the licensee's responsibility to ensure the board's receipt of
the proof of training completion [ , as appropriate, ] at
the time of license renewal.
B. Refresher training shall be specific to the discipline
of the license held.
C. The board shall renew an individual license for an
additional 12 months upon receipt of a renewal application, proof of
[ initial or refresher, as appropriate, ] training
completion, and renewal fee in accordance with 18VAC15-60-130.
D. A [ licensee's renewal
applicant's ] submission of the renewal application and renewal fee
to the board shall constitute a certification that the [ licensee
renewal applicant ] is in full compliance with the board's
regulations.
18VAC15-60-150. Board discretion to deny renewal.
The board may deny renewal of a license for the same
reasons as it may refuse initial licensure or discipline a regulant. The board
may deny renewal of a license if the regulant has not met the terms of an
agreement for licensure, has not satisfied all sanctions, or has not fully paid
any monetary penalties or costs imposed by the board.
Part VI
Disciplinary Action and Reporting Requirements
18VAC15-60-160. Grounds for disciplinary action.
A. The board shall have the authority to fine any
licensee; deny renewal of, suspend, or revoke any license issued by the board;
deny application for any individual license or approval as a provider of a mold
training course; and withdraw board approval of the provider of a mold training
course provided for under Chapter 5 (§ 54.1-500 et seq.) of Title 54.1 of
the Code of Virginia for:
1. Violating or inducing another person to violate any of
the provisions of Chapters 1 (§ 54.1-100 et seq.), 2 (§ 54.1-200
et seq.), 3 (§ 54.1-300 et seq.), or 5 (§ 54.1-500 et seq.) of Title
54.1 of the Code of Virginia, or any of the provisions of this chapter.
2. Obtaining an individual license or approval as a mold
training provider, or approval as a training manager or instructor through
fraudulent means.
3. Altering, falsifying, or issuing a fraudulent Virginia
individual mold license or a training certificate.
4. Violating any provision of any federal, state, or local
law or regulation pertinent to mold remediation and mold inspection.
5. Having been found guilty by the board, another
regulatory authority, or a court of any misrepresentation in the course of
performing his mold inspection or remediation duties.
6. Subject to the provisions of § 54.1-204 of the Code
of Virginia, having been convicted or found guilty, regardless of adjudication,
in any jurisdiction of the United States of any felony or of any misdemeanor,
there being no appeal pending therefrom or the time for appeal having elapsed.
Any plea of nolo contendere shall be considered a conviction for the purposes
of this chapter. A certified copy of the final order, decree, or case decision
by a court or regulatory agency with lawful authority to issue such order,
decree, or case decision shall be admissible as prima facie evidence of such
conviction or discipline.
7. Failing to notify the board in writing within 30 days of
pleading guilty or nolo contendere or being convicted or found guilty of any
felony or of any misdemeanor.
8. Negligence or a continued pattern of incompetence in the
practice of the discipline in which an individual mold license is held.
9. Failing or neglecting to send any information or
documentation that was requested by the board or its representatives.
10. Failing to comply with 18VAC15-60-170.
11. [ Acting as or being an ostensible
licensee for undisclosed persons who do or will control or direct, directly or
indirectly, the operations of the licensee's business Failing to
keep board-approved training and license current ].
B. Any person whose license, approval as a mold training
provider, or approval as a training manager or instructor is revoked or
withdrawn under this section shall not be eligible to reapply for a period of
one year from the effective date of the final order of revocation or withdrawal
of approval. The person shall meet all education, experience, training, and
documentation requirements, complete the application, and submit the required
fee for consideration as a new applicant.
C. The board shall conduct disciplinary procedures in
accordance with §§ 2.2-4019 and 2.2-4021 of the Administrative Process
Act.
18VAC15-60-170. Maintenance of license.
A. A regulant shall report all changes of address to the
board in writing within 30 calendar days of the change and shall return the
license to the board. A physical address is required for each license. A post
office box is acceptable only when a physical address is also provided. If the
regulant holds more than one license issued by the board, the regulant shall
inform the board of all licenses affected by the address change.
B. A regulant shall operate under the name in which the
license is issued. Regulants shall report any change of individual name to the
board in writing within 30 calendar days of the name change and shall return
the license to the board. If the regulant holds more than one license issued by
the board, the regulant shall inform the board of all licenses affected by the
name change.
C. No license issued by the board shall be assigned or
otherwise transferred.
18VAC15-60-180. Notice of adverse action.
Regulants shall notify the board of the following actions:
1. Any disciplinary action taken by another jurisdiction,
board, or administrative body of competent jurisdiction including, but not
limited to, any reprimand, revocation, suspension or denial, monetary penalty,
or requirement for remedial education or other corrective action taken on any
license, certification, registration, or authorization of the regulant.
2. Any voluntary surrendering of a license, certificate,
registration, approval, or authorization done in connection with an open
disciplinary action in another jurisdiction.
3. Any conviction or finding of guilt, regardless of
adjudication or deferred adjudication, of any felony or of any misdemeanor. Any
plea of nolo contendere shall be considered a conviction for the purpose of
this section.
All notices must be made to the board in writing within 30
days of the action. A copy of the order or other supporting documentation must
accompany the notice. The record of conviction, finding, or case decision shall
be considered prima facie evidence of a conviction or finding of guilt.
18VAC15-60-190. Response to inquiry and provision of
records.
A. A regulant must promptly respond to the board or any of
its agents regarding a complaint.
B. The regulant must promptly produce to the board or any
of its agents, any document, book, record, or copy thereof in which the
regulant was involved or that is in the regulant's possession or control
concerning a transaction covered by this chapter, or for which the regulant is
required to maintain records.
C. A regulant shall not provide a false, misleading, or incomplete
response to the board or any of its agents seeking information in the
investigation of a complaint filed with the board.
Part VII
Training Provider and Training Course Requirements
18VAC15-60-200. Training provider personnel.
A. Training managers.
1. Approved mold training course providers shall designate
a board-approved training manager to administer the mold training courses
offered by the provider. The training manager shall meet the following
requirements:
a. Have a minimum of two years experience in teaching
adults; or
b. Have a minimum of three years experience in the mold
remediation industry.
2. Training managers shall be responsible for ensuring that
the training provider complies at all times with the requirements of this
chapter. Training managers shall also be responsible for:
a. Maintaining the validity and integrity of each course
examination to ensure that it accurately evaluates the student's knowledge and
retention of the course topics.
b. Designating course instructor(s).
c. Developing and implementing a quality control plan. The
plan shall be used to maintain and improve the quality of the approved mold
training courses as advances in the industry are made. This plan shall contain
at least the following elements:
(1) Procedures for periodic revision of training materials
and course test to reflect innovations in the field.
(2) Procedures for the training manager's annual review of
instructor competency.
3. Any training manager who intends to also serve as an
instructor shall meet the requirements of subsection B of this section.
B. Training course instructors.
1. Mold training course instructors are responsible for the
organization of the course and oversight of the teaching of all course
material.
2. Board-approved mold training courses shall only utilize
board-approved instructors to teach a mold training course. All instructors
shall have a minimum of 24 hours of mold specific training and two years of
experience in the mold remediation or mold assessment industry.
3. Guest instructors may be utilized to assist in teaching
a mold training course and shall be exempt from the instructor qualifications
in this subsection. Guest instructors are limited to no more than two hours of
instruction per course per day.
C. Documentation of instructors and training manager.
1. The following documents shall be recognized by the board
as proof that training managers and instructors meet the relevant work
experience and training requirements specifically listed in this section:
a. Signed letters of reference or verification letters from
the applicant's supervisor as proof of meeting the work experience
requirements.
b. Certificates from mold-specific training courses as
proof of meeting the training requirements.
2. Instructor qualifications shall be reviewed and approved
by the board prior to the instructor teaching an approved mold training course.
3. Instructors will be notified in writing of their
approval to teach mold training courses.
18VAC15-60-210. Training course general requirements.
A. In no case shall actual mold training exceed eight
hours in a 24-hour period.
B. The total hours of actual training for any training
course, including examination, shall be completed within a continuous two-week
time frame, from start to finish.
C. All initial and refresher approved mold training
courses shall be discipline specific.
D. Approved mold remediator supervisor and mold inspector
training courses shall be taught in English.
E. Prior to the start of any approved mold training
course, the training provider shall prepare a course outline that shall be
distributed to each student at the start of the course. The outline shall
contain the following minimum information:
1. Training course title and total hours of training;
2. Course instructor(s); and
3. Daily schedule specifying the time of each training
topic, activity, break, and the examination.
F. Approved mold training course providers shall issue a
course completion certificate to each individual who attends the course in full
and successfully completes all course requirements. The certificate shall
include the following information:
1. Training course title and length of training in hours.
For mold remediator worker courses completed in languages other than English,
the certificate shall indicate the language of the course.
2. Name, address, and telephone number of the training
provider.
3. Complete address of training location.
4. Name and address of the student.
5. Unique certificate number generated by the training
provider.
6. Statement affirming that the student attended the course
and successfully completed its examination.
7. Examination date.
8. Training certificate expiration date. The training
certificate expiration date for any mold remediator supervisor or mold
inspector course shall be 12 months from the last day of the month when the
course was completed. For any mold remediator worker course, the certificate
expiration date shall be [ 24 36 ] months
from the last day of the month when the course was completed.
9. Signature and name of the approved mold training course
provider's training manager and course instructor. The signatures may be
printed facsimiles.
18VAC15-60-220. Worker course requirements.
A. The mold remediator worker initial course shall include
lectures, demonstrations, and other activities directly related to the duties
of a mold remediator worker.
B. The mold remediator worker initial course shall last a
minimum of 16 hours with a minimum of six hours of hands-on training and shall
address the following topics:
1. Role and responsibilities of a mold [ remediation
remediator ] worker.
2. Background information on mold including health effects.
3. Relevant federal, state, and local regulatory requirements
related to mold remediation activities including the requirements of this
chapter.
4. Employee personal protective equipment.
5. Workplace safety hazards, including other environmental
hazards such as lead and asbestos.
6. Knowledge of building construction as related to
eliminating moisture problems including elements of airflow, mechanisms of
moisture and heat flow, humidity, the building envelope, and porous and
nonporous materials.
7. Current relevant industry work practices [ and
standards ].
8. Course review of key concepts.
9. Examination.
C. The mold remediator worker refresher course shall last
a minimum of four hours and include the following topics:
1. Comprehensive review of the initial course topics with
specific emphasis and update on current [ relevant ] mold
remediation industry [ work practices and ] standards.
2. Examination.
18VAC15-60-230. Supervisor course requirements.
A. The mold remediator supervisor initial course shall include
lectures, demonstrations, and other activities directly related to the duties
of a mold remediator supervisor.
B. The mold remediator supervisor initial course shall
last a minimum of 24 hours with a minimum of eight hours of hands-on training
and shall address the following topics:
1. Role and responsibilities of a mold [ remediation
remediator ] supervisor.
2. Background information on mold including health effects.
3. Relevant federal, state, and local regulatory
requirements related to mold remediation activities, including the requirements
of this chapter.
4. Employee personal protective equipment.
5. Workplace safety hazards, including other environmental
hazards such as lead and asbestos.
6. Knowledge of building construction as related to eliminating
moisture problems, including elements of airflow, mechanisms of moisture and
heat flow, humidity, the building envelope, and porous and nonporous materials.
7. Current relevant industry work practices [ and
standards ], including the use and reading of moisture meters, duct
cleaning, and use of drying equipment.
8. Development and implementation of an occupant protection
plan and a remediation activities report.
9. Liability and insurance issues relating to mold
remediation.
10. Overview of sampling and mold inspection report
interpretation.
11. Contract specification key elements.
12. Recordkeeping for mold remediation projects.
13. Supervisory techniques for mold remediation activities
including implementation of required work practices and prevention of unsafe
work practices.
14. Course review of key concepts.
15. Examination.
C. The mold remediator supervisor refresher course shall
last a minimum of four hours and include the following topics:
1. Comprehensive review of the initial course topics with
specific emphasis and update on current [ relevant ] mold
remediation industry [ work practices and ] standards.
2. Review of contract specifications, mold inspection
reports, and other pertinent records.
3. Examination.
18VAC15-60-240. Inspector course requirements.
A. The inspector initial course shall include lectures,
demonstrations, and other activities directly related to the duties of a mold
inspector.
B. The mold inspector initial course shall last a minimum
of 24 hours with a minimum of four hours of hands-on training and shall address
the following topics:
1. Role and responsibilities of a mold inspector.
2. Background information on mold including health effects.
3. Relevant federal, state, and local regulatory
requirements related to mold remediation activities, including the requirements
of this chapter.
4. Employee personal protective equipment.
5. Workplace safety hazards, including other environmental
hazards such as lead and asbestos.
6. Knowledge of building construction as related to eliminating
moisture problems, including elements of airflow, mechanisms of moisture and
heat flow, humidity, the building envelope, and porous and nonporous materials.
7. Current relevant industry work practices [ and
standards ], including the use and reading of moisture meters and
an understanding of HVAC systems.
8. Pre-inspection planning and review of previous
inspection records.
9. Mold inspection report interpretation and recordkeeping.
10. Liability and insurance issues relating to mold
inspection.
11. Inspection and sampling techniques for mold and
assessment of the condition of mold.
12. Designing a mold [ remediation
management ] plan [ and mold remediation protocol ]
to be carried out by a mold [ remediation
remediator ] supervisor and workers.
13. Public/employee/building occupant relations.
14. Course review of key concepts.
15. Examination.
C. The mold inspector refresher course shall last a
minimum of four hours and include the following topics:
1. Comprehensive review of the initial course topics with
specific emphasis and update on current [ relevant ] mold
inspection and remediation industry [ work practices and ]
standards.
2. Review of mold inspection reports, remediation plans,
and other pertinent records related to mold inspection.
3. Examination.
18VAC15-60-250. Examinations.
A. Upon the conclusion of instruction and training course
activities, the training provider shall administer an examination to the
students. The purpose of the examination is to measure the overall
effectiveness of the training by testing the student's knowledge and retention
of the topics covered during the course.
B. Course examinations shall be administered by the course
instructor or training manager and must cover the topics included in the
training course.
C. All examinations shall be closed-book, multiple choice
questions, with a passing score of 70% or higher. The requirements for the
examination of each course shall be as follows:
1. The mold remediator worker initial examination shall
consist of 50 items.
2. The mold remediator supervisor initial examination shall
consist of 100 items.
3. The mold inspector initial examination shall consist of
100 items.
4. All refresher course examinations shall consist of 50
items.
D. The examination for all mold remediator supervisor and
mold inspector courses shall be read and answered in writing by the student.
The examination for any mold remediator worker course may be given to the
student orally only if the student is unable to read and answer the examination
in writing.
E. Students shall be allowed two attempts to pass the
examination immediately following the conclusion of course instruction and
activities. If the student is unable to pass the examination after two
attempts, the course shall be repeated in its entirety before the student shall
be allowed to take the examination again.
Part VIII
Standards of Practice and Conduct for Approved Mold Training Programs
18VAC15-60-260. Recordkeeping.
A. Each approved mold training provider shall maintain and
make available upon request from the board the following records:
1. All documents specified in 18VAC15-60-200 that
demonstrate the qualifications of the training manager and instructors.
2. Copies of each current course outline and training
certificate as specified in 18VAC15-60-210.
3. Copies of each course examination and applicable answer
keys.
4. Results of each student's course examination and a copy
of each student's course completion certificate.
5. Copies of any of the material that was submitted to the
board as a part of the training provider's original application for board
approval.
6. Any other material not listed in this chapter that is
utilized by the training provider in any of the training courses for which it
is approved.
B. Training providers shall maintain the above records for
a minimum period of three years.
18VAC15-60-270. Changes to approved training providers.
A. When an approved mold training provider offering any
approved mold training course has a change of ownership, the new owner shall
make written notification to the board within 30 days of the change of
ownership. The new owner [ must shall ] comply
with the requirements of this chapter in order to maintain approval.
B. After a mold training course has been approved, any
substantial changes in the training course shall be submitted to the board for
review and approval prior to the continuation of the approved mold training
course, which includes the following:
1. Course curriculum.
2. Course examination.
3. Course training materials.
4. Training manager and instructors.
5. Certificate of completion.
C. The board shall communicate its approval or disapproval
of any changes in the same manner as for initial applications for course
approval.
D. The approved mold training provider shall notify the
board no less than 30 days prior to relocating its business, transferring its
records, changing its telephone number, changing its course instructors, or
ceasing its business operations.
18VAC15-60-280. Status of approval.
The board may withdraw approval of any mold training
course for the following reasons:
1. The training program manager, instructors, or training
courses no longer meets the standards established in this chapter.
2. The board determines that the provider is not conducting
the training in a manner that meets the requirements as set forth in this
chapter.
3. The training provider fails to comply with a board
request for documentation or other materials from the provider.
Part IX
Standards for Conducting Mold Inspection and Remediation Activities
18VAC15-60-290. General standards of individual practice and
conduct.
A. Individuals conducting mold inspection or mold
remediation activities shall comply with the work practice standards enumerated
in this chapter.
B. Individuals conducting mold inspections or mold
remediations shall comply with § 54.1-1100 et seq. of the Code of Virginia
as appropriate.
C. Inspectors and remediators shall comply with all other
relevant local, state, and federal regulations including 29 CFR Part 1910, 29
CFR Part 1926, and other regulations as applicable to mold inspection and
remediation.
D. Upon encountering any regulated hazardous materials for
which the remediator or inspector is not qualified to handle including, but not
limited to, asbestos and lead, [ he the remediator or
inspector ] shall inform the [ homeowner, ]
building owner [ , ] or his agent, as
appropriate, and advise of the need for services [ of any
requisite from the appropriate ] qualified
professionals.
18VAC15-60-300. Mold [ remediation workers
remediator worker ].
A licensed mold remediator worker shall conduct mold
remediation activities as directed by the mold [ remediation
remediator ] supervisor.
18VAC15-60-310. Mold remediator supervisor.
A. [ The building owner or his agent shall be
advised in writing by the mold remediator supervisor that a third party
pre-remediation inspection prior to the start of the mold remediation project
and a third-party post-remediation inspection at the conclusion of the mold
remediation project are options. ]
[ A. B. ] A licensed mold
remediator supervisor shall be physically present at all times that mold
remediation activities are being conducted.
[ B. C. ] The licensed mold
[ remediation remediator ] supervisor shall
ensure that all remediation activities are conducted according to the
requirements of this chapter and all other applicable federal, state, and local
laws and regulations.
[ C. D. ] The licensed mold
remediator supervisor shall be responsible for following the [ remediation
scope of work mold management plan and mold remediation protocol ].
[ D. E. ] The licensed mold
remediator supervisor shall keep a daily log of mold remediation activities,
which shall include the following minimum information:
1. The name and license number of each mold remediator
worker that participated in whole or in part of the remediation.
2. The start and end dates of the remediation.
3. Records of any readings taken by the workers or
supervisor as part of the remediation.
[ E. F. ] Upon completion
of the remediation, the licensed mold remediator supervisor shall sign a
statement declaring that the remediation scope of work has been completed. The
statement shall be retained as part of the record for the mold remediation.
18VAC15-60-320. Mold inspector.
[ The duties and functions of a mold inspector
shall include, but not be limited to, determining the presence and location of
mold, determining the condition of mold, sampling of mold, designing a
site-specific mold remediation plan, or making recommendations for additional
work by qualified professionals to address issues beyond the scope of the mold
inspector. ] Licensed mold inspectors shall conduct inspection
activities in accordance with the following:
1. The [ visual inspection and physical ]
sampling of mold shall be conducted using documented methodologies that
incorporate adequate quality control procedures;
2. [ Air sampling for the presence of mold is
optional, but when performed shall be conducted using documented methodologies
that incorporate adequate quality control procedures; ]
[ 2. 3. ] Collected mold
samples shall be sent to a laboratory capable of performing mold analysis that
is accredited or certified by an organization that meets international program
requirements established under ISO/IEC 17011;
[ 3. 4. ] The licensed
inspector shall prepare an inspection report after his completion of the mold
inspection. The report shall include the following minimum information:
a. Dates of the start and finish of each inspection;
b. Physical address of the building receiving the
inspection;
c. Name and address of the building owner;
d. Name, signature, and license number of each licensed
inspector conducting testing;
e. Name, address, and telephone number of the firm
employing each inspector;
f. Each device and sampling procedure employed for mold
inspection, including instrument calibration data;
g. Specific locations of each mold sample taken;
h. Location [ , condition, ] and
type of all mold identified during inspection;
i. Copy of the laboratory report containing the results of
all mold sampled from the inspection;
j. Explanation of the potential source and cause of the
mold or recommendations for further investigation of the mold intrusion by
qualified professionals; and
k. Mold [ remediation management ]
plan [ and mold remediation protocol ] , if
contracted to perform [ this duty these duties ]
by the building owner or his authorized agent [ , using
documented methodologies that incorporate adequate quality control procedures ];
[ 4. 5. ] All inspection
reports [ , and remediation mold management ] plans
[ , and mold remediation protocols ] shall be maintained
by the licensed inspector who prepared them for at least three years after the
date of the completion of the inspection. The licensed inspector shall provide
copies of the reports and plans to the building owner or to the person that
contracted for his services; and
[ 5. 6. ] If contracted to
perform a post-remediation verification by the building owner or his authorized
agent, the licensed mold inspector shall use documented methodologies that
incorporate adequate quality control procedures.
a. Following a remediation, a visual inspection shall be
performed by the licensed inspector to determine if there is any evidence of
the presence of mold.
b. If mold is still present contrary to the specifications
of the remediation plan, these conditions shall be remediated prior to the
continuation of the post-remediation inspection.
Part X
General Standards of Practice and Conduct
18VAC15-60-330. Responsibility to the public.
The primary obligation of the licensee shall be to the
public. If the licensee's judgment is overruled under circumstances when the
safety, health, property, or welfare of the public is endangered, the licensee
shall inform the employer or client of the possible consequences and notify the
appropriate authorities if the situation is not resolved. The licensee shall
take such action only when his authority to correct a problem has been ignored
or overruled.
18VAC15-60-340. Public statements.
A. The licensee shall be truthful in all matters relating
to the performance of mold remediation and mold inspection services.
B. When serving as an expert or technical witness, the
licensee shall express an opinion only when it is based on an adequate
knowledge of the facts in issue and on a background of technical competence in
the subject matter. Except when appearing as an expert witness in court or an
administrative proceeding when the parties are represented by counsel, the
licensee shall issue no statements, reports, criticisms, or arguments on
matters relating to practices that are inspired or paid for by an interested
party or parties unless the licensee has prefaced the comment by disclosing the
identities of the party or parties on whose behalf the licensee is speaking,
and by revealing any self-interest.
C. Licensees or applicants for license shall not knowingly
make a materially false statement, submit falsified documents, or fail to
disclose a material fact requested in connection with an application for licensure
or licensure renewal submitted to the board by any individual.
18VAC15-60-350. Solicitation of work.
In the course of soliciting work:
1. The licensee shall not bribe;
2. The licensee shall not falsify or permit
misrepresentation of the licensee's work or an associate's academic or
professional qualifications, nor shall the licensee misrepresent the degree of
responsibility for prior assignments;
3. Materials used in the solicitation of employment shall
not misrepresent facts concerning employers, employees, associates, joint
ventures, or past accomplishments of any kind; and
4. Materials used in the solicitation of services shall not
misrepresent facts of approval or any federal, state, or local requirements.
18VAC15-60-360. Professional responsibility.
A. The licensee or approved mold training provider shall,
upon request or demand, produce to the board, or any of its representatives,
any plan, document, book, record, or report in his possession concerning a
transaction covered by this chapter, and shall cooperate in the investigation
of a complaint filed with the board against a licensee or approved mold
training provider.
B. A licensee or approved mold training provider shall not
use the design, plans, or work of another licensee or approved mold training
provider without the original professional's knowledge and consent and, after
consent, a thorough review to the extent that full responsibility shall be
assumed by the user.
C. The mold inspector shall not disclose any information
concerning the results of the mold inspection without the approval of the
client for whom the mold inspection was performed. However, the mold inspector
may disclose information in situations where imminent danger exists to life or
health.
D. Approved mold training providers shall admit board
representatives for the purpose of conducting an on-site audit or any other
purpose necessary to evaluate compliance with this chapter to maintain board
approval and other applicable laws and regulations.
18VAC15-60-370. Good standing in other jurisdictions.
A. Licensees that perform mold remediation work or
inspections in other jurisdictions and approved mold training providers,
training managers, or instructors that offer mold training in other
jurisdictions shall be in good standing in every jurisdiction where licensed,
certified, or approved by an authorizing agency and shall not have had a
license, certification, or approval suspended, revoked, or surrendered in
connection with any disciplinary action.
B. Licensees and approved mold training providers,
training managers, and instructors shall notify the board in writing no later
than 10 days after the final disciplinary action taken by another jurisdiction
against their license or approval to perform mold remediation or inspection
activities or offer mold training.
C. Licensees may be subject to disciplinary action for
disciplinary actions taken by another jurisdiction. Approved mold training
providers, training managers, and instructors may be subject to withdrawal of
board approval to offer mold training as a result of disciplinary actions taken
by another jurisdiction.
18VAC15-60-380. Conflict of interest.
A. No licensed [ mold remediator worker or ]
mold remediator supervisor shall perform a mold remediation project if the mold
remediation is to be performed by any individual with an employer/employee
relationship [ with ], or financial interest in,
the licensed mold inspector who conducted the inspection of the property
[ unless the licensed mold remediator supervisor discloses the
employer/employee relationship or financial interest to the building owner or
his agent. A department-generated disclosure form shall be signed and dated by
the licensed mold remediator supervisor and the building owner or his agent
prior to the signing of any proposal or contract ].
B. No licensed mold inspector shall perform a mold
inspection if the inspection is to be performed by any individual with an
employer/employee relationship [ with ], or
financial interest in, the [ licensed mold remediation worker or ]
licensed mold [ remediation remediator ] supervisor
who conducted a remediation of the property [ unless the license
mold inspector discloses the employer/employee relationship or financial
interest to the building owner or his agent. A department-generated disclosure
form shall be signed and dated by the licensed mold inspector and the building
owner or his agent prior to the signing of any proposal or contract ].
C. [ No licensed mold remediator worker or
supervisor or licensed mold inspector The licensee ] shall
[ not ] accept compensation, financial or otherwise, from
more than one interested party for the same service on the same property
without the written consent of all interested parties.
D. The licensee shall not accept commissions or allowances
[ from nor offer to, directly or indirectly, other parties dealing
with the client nor offer commissions or allowances, ] in
connection with work for which the licensee is responsible [ either
directly or indirectly from other parties ]. Additionally, the
licensee shall not enter into any financial relationship with any party that
may compromise the licensee's commitment to the best interest of his client.
E. The mold inspection shall not be used as a tool by the
licensee to solicit or obtain work in another field, except for additional
diagnostic inspections or testing.
18VAC15-60-390. Responsibilities of a licensee.
A. A licensee or approved mold training provider shall respond
to an inquiry from the board or any of its agents within 15 business days.
B. A licensee shall produce to the board or any of its
agents, upon demand, any written reports and supporting documentation
concerning any mold remediation or mold inspection in which the licensee was
involved, as well as any other records that the licensee shall maintain as
required by this chapter.
C. A licensee shall keep the board informed of his current
home address at all times. Changes of address shall be reported to the board in
writing within 30 calendar days after such change. A physical address is
required; a post office box is only acceptable when provided in addition to the
licensee's physical address. The board shall not be responsible for the
licensee's failure to receive the board's correspondence as a result of the
licensee's failure to inform the board of his correct address.
D. A licensee shall notify the board in writing of a name
change within 30 calendar days after any change in the licensee's legal name.
Such notification shall be accompanied by a copy of a marriage certificate,
divorce decree, court order, or other documentation that verifies the name
change and was issued by an organization with the authority to make such a
change.
E. A licensee shall retain all records pertaining to mold
remediations and mold inspections performed including, but not limited to, all
written reports and supporting documentation for a period of three years from
the date of the completion of the mold remediation or mold inspection.
[ F. Each licensee shall keep his board-approved
training and license current. ]
NOTICE: The
following forms used in administering the regulation were 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 to access a form. The
forms are also available through the agency contact or at the Office of the
Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond,
Virginia 23219.
[ FORMS (18VAC15-60)
Mold
License Application, A506-33MLIC (eff. 7/11)
Mold
Education Verification Form, A506-33MED (eff. 7/11)
Mold
Experience Verification Form, A506-33MEXP (eff. 7/11)
Mold
Inspectors/Remediators Membership Form, A506-33MAMF (eff. 7/11)
Mold
Remediator Supervisor/Inspector Disclosure Form, A506-33MDIS (eff. 7/11)
Mold
Training Provider/Course Application, A506-33MTCAPP (eff. 7/11) ]
DOCUMENTS INCORPORATED BY REFERENCE (18VAC15-60)
ASTM E1527-05, Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process, ASTM International.
ISO/IEC 17011:2004(E), Conformity Assessment - General
Requirements for Accreditation Bodies Accrediting Conformity Assessment Bodies,
International Organization for Standardization.
VA.R. Doc. No. R10-2048; Filed May 4, 2011, 9:38 a.m.
w –––––––––––––––––– w
TITLE 22. SOCIAL SERVICES
STATE BOARD OF SOCIAL SERVICES
Final Regulation
REGISTRAR'S NOTICE:
The State Board of Social Services has claimed an exemption from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code
of Virginia, which excludes regulations that are necessary to conform to
changes in Virginia statutory law or the appropriation act where no agency
discretion is involved. The State Board of Social Services will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 22VAC40-41. Neighborhood
Assistance Tax Credit Program (amending 22VAC40-41-10).
Statutory Authority: § 63.2-217 of the Code of
Virginia.
Effective Date: July 1, 2011.
Agency Contact: J. Mark Grigsby, Director, Office of
Community Service, Department of Social Services, 801 East Main Street,
Richmond, VA 23219, telephone (804) 726-7922, FAX (804) 726-7946, TTY (800)
828-1120, or email james.grigsby@dss.virginia.gov.
Summary:
The amendments reflect changes enacted by Chapters 312 and
370 of the 2011 Acts of Assembly, relating to the Neighborhood Assistance Act.
Specifically, the term "business firm" is amended to permit trusts to
be eligible for the Neighborhood Assistance Act income tax, and the term
"impoverished people" is defined as individuals with family annual
incomes not in excess of 200% of the current poverty guidelines.
22VAC40-41-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Approved organization" means a neighborhood
organization that has been found eligible to participate in the Neighborhood
Assistance Program.
"Audit" means any audit required under the federal
Office of Management and Budget's Circular A-133, or, if a neighborhood
organization is not required to file an audit under Circular A-133, a detailed
financial statement prepared by an outside independent certified public
accountant.
"Business firm" means any corporation, partnership,
electing small business (Subchapter S) corporation, limited liability company,
or sole proprietorship authorized to do business in this Commonwealth subject
to tax imposed by Articles 2 (§ 58.1-320 et seq.) and 10 (§ 58.1-400 et
seq.) of Chapter 3, Chapter 12 (§ 58.1-1200 et seq.), Article 1 (§ 58.1-2500 et
seq.) of Chapter 25, or Article 2 (§ 58.1-2620 et seq.) of Chapter 26 of Title
58.1 of the Code of Virginia. "Business firm" also means any trust
or fiduciary for a trust subject to tax imposed by Article 6 (§ 58.1-360
et seq.) of Chapter 3 of Title 58.1 of the Code of Virginia.
"Commissioner" means the Commissioner of the
Department of Social Services, his designee or authorized representative.
"Community services" means any type of counseling
and advice, emergency assistance, medical care, provision of basic necessities,
or services designed to minimize the effects of poverty, furnished primarily to
impoverished people.
"Contracting services" means the provision, by a
business firm licensed by the Commonwealth of Virginia as a contractor under
Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1 of the Code of Virginia, of
labor or technical advice to aid in the development, construction, renovation,
or repair of (i) homes of impoverished people or (ii) buildings used by
neighborhood organizations.
"Education" means any type of scholastic
instruction or scholastic assistance to an individual who is impoverished.
"Housing assistance" means furnishing financial
assistance, labor, material, or technical advice to aid the physical
improvement of the homes of impoverished people.
"Impoverished people" means, for neighborhood
organizations not providing education services, people in Virginia with incomes
at or below 150% 200% of the poverty guidelines updated periodically
in the Federal Register by the U.S. Department of Health and Human Services
under the authority of 42 USC § 9902(2).
"Job training" means any type of instruction to an
individual who is impoverished that enables him to acquire vocational skills so
that he can become employable or able to seek a higher grade of employment.
"Neighborhood assistance" means providing community
services, education, housing assistance, or job training.
"Neighborhood organization" means any local,
regional or statewide organization whose primary function is providing
neighborhood assistance for impoverished people, and holding a ruling from the
Internal Revenue Service of the United States Department of the Treasury that
the organization is exempt from income taxation under the provisions of
§ 501(c)(3) or § 501(c)(4) of the Internal Revenue Code of 1986, as
amended from time to time, or any organization defined as a community action
agency in the Economic Opportunity Act of 1964 (42 USC § 2701 et seq.), or
any housing authority as defined in § 36-3 of the Code of Virginia.
"Professional services" means any type of personal
service to the public which requires as a condition precedent to the rendering
of such service the obtaining of a license or other legal authorization and
shall include, but not be limited to, the personal services rendered by medical
doctors, dentists, architects, professional engineers, certified public
accountants, attorneys-at-law, and veterinarians.
"Scholastic assistance" means (i) counseling or supportive
services to elementary school, middle school, secondary school, or
postsecondary school students or their parents in developing a postsecondary
academic or vocational education plan, including college financial options for
such students or their parents, or (ii) scholarships.
VA.R. Doc. No. R11-2777; Filed April 25, 2011, 11:15 a.m.