TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Fast-Track Regulation

Title of Regulation: 12VAC35-225. Requirements for Virginia Early Intervention System (amending 12VAC35-225-430).

Statutory Authority: § 2.2-5304 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: September 10, 2025.

Effective Date: September 25, 2025.

Agency Contact: Kyla Patterson, Early Intervention Program Manager, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218, telephone (804) 402-8759, fax (804) 371-7959, TDD (804) 371-8977, or email k.patterson@dbhds.virginia.gov.

Basis: Section 2.2-5304 of the Code of Virginia authorizes the State Board of Behavioral Health and Developmental Services to promulgate regulations necessary to implement an early intervention services system and ensure consistent and equitable access to such services. This regulation also implements Part C of the Individuals with Disabilities Education Act (20 USC §1435(a) and 34 CFR Part 303) (IDEA) in Virginia.

Purpose: Personnel shortages in Virginia's birth-through-three early intervention system have the potential to negatively impact outcomes for eligible infants, toddlers, and families. By broadening the provider types eligible for early intervention certification, Virginia can maximize the pool of qualified providers, better meet the social-emotional and mental health needs of infants and toddlers with disabilities and their families, and improve outcomes. Ensuring these needs are met early through effective intervention benefits public health by improving the lives of Virginia's children and families and reducing future costs to the Commonwealth.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because the new language allows, but does not require, individuals in certain professional disciplines to apply for early intervention certification and provide early intervention services.

Substance: The amendments (i) add child life specialists, physicians, and teachers of English as a second language to the list of qualified personnel who may seek certification from the Department of Behavioral Health and Developmental Services (DBHDS) as early intervention professionals and (ii) adds licensed mental health professionals, qualified mental health professionals and trainees, and speech-language pathology assistants to the list of qualified personnel who may seek certification from DBHDS as early intervention specialists.

Issues: The primary advantages of this action to the public are that (i) families will have a greater choice of providers, (ii) early intervention programs will have a broader provider pool from which to hire and contract for services, and (iii) individuals with licensure in the added disciplines will have expanded employment opportunities. Ensuring programs and families have access to broad qualified providers who can provide the full array of early intervention services in a timely and effective manner has the further advantage of improving developmental outcomes for the infants and toddlers served. There is no disadvantage to the public. The primary advantage to DBHDS is meeting the federally required assurance under Part C of IDEA that all eligible infants, toddlers, and their families receive the early intervention services necessary to meet their needs in a timely manner. A possible disadvantage to the Department of Medical Assistance Services and the Commonwealth is the additional cost for services provided as a result of adding new provider disciplines. However, these services are already entitled under Part C of IDEA and, by accepting federal Part C funding, Virginia is obligated to provide these services with or without the additional provider disciplines. In addition, any financial disadvantage is offset by the fact that this investment in early intervention services will reduce future costs to the Commonwealth. Estimates on the cost savings vary, but the long-term study associated with the Perry Preschool Project indicates that every $1.00 invested in early education will lead to at least a $7.00 return.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The State Board of Behavioral Health and Developmental Services (board) proposes to add new professional disciplines that would qualify individuals to seek certification as an early intervention professional or specialist.

Background. Early intervention providers are categorized into two groups, professionals and specialists, and serve children younger than three years old who have a developmental disability. Early intervention professionals are required to have a license in a professional discipline (e.g., licensed counselor, teacher, therapist, nurse, psychologist, physician, etc.) as a prerequisite for certification and can perform their services independently (i.e., no supervision required). Early intervention specialists must also have a license in a professional discipline (e.g., assistant behavior analyst, residents in counseling, certified nurse aide, physical therapy assistant) but must work under the supervision of a certified early intervention professional. Following a 2024 periodic review of this regulation² and based on data and input from local early intervention programs, providers and families, the Department of Behavioral Health and Developmental Services (DBHDS) has determined that changes to the regulation are necessary. The proposed changes would help expand the early intervention workforce in order to meet the needs of all eligible infants, toddlers and families and improve child and family outcomes resulting from participation in early intervention. Accordingly, the board proposes to add certain disciplines which would qualify as a prerequisite for a certified early intervention professional or specialist, as follows:

New qualified disciplines for early intervention professional certification: Child life specialists certified by the Association of Child Life Professionals, Child Life Certification Commission; Educators licensed by the Virginia Board of Education with endorsement in English as a Second Language; Physicians licensed in medicine or osteopathic medicine by the Virginia Board of Medicine.

New qualified disciplines for early intervention specialist certification: Residents in counseling with temporary licensure as a resident in counseling by Virginia Board of Counseling; residents in psychology with registration of residency in clinical or school psychology by the Virginia Board of Psychology; and supervisees in social work with registration of supervised experience by the Virginia Board of Social Work; Qualified mental health professional or qualified mental health professional-trainee approved and registered by the Virginia Board of Counseling; Speech-language pathology assistant meeting the qualifications of, and supervised in accordance with, 18VAC30-21-140.

Estimated Benefits and Costs. The proposed changes would expand the eligible pool of providers to deliver early intervention services for infants and toddlers with disabilities and their families. DBHDS estimates that approximately 50 to 100 additional providers may start offering early intervention services in response to these changes. DBHDS states that the proposed changes would also: give families additional choices of providers who can meet their child's and family's needs; give early intervention programs a broader provider pool from which to hire and contract for services; and give individuals with licensure in the added disciplines expanded employment opportunities or higher earning potential. Ensuring programs and families have access to broad qualified providers who can provide the full array of early intervention services in a timely and effective manner may have the further advantage of improving developmental outcomes for the infants and toddlers served and provide long term cost savings. According to DBHDS, estimates on cost savings vary, but a long-term study associated with the Perry Preschool Project indicates that every dollar invested in early education would lead to at least a seven-dollar return.³ The proposal would help DBHDS stay compliant with the federal grant requirement under Part C of the Individuals with Disabilities Education Act that all eligible infants, toddlers, and their families receive the early intervention services necessary to meet their needs in a timely manner. If DBHDS fails to meet this requirement, the U.S. Department of Education may withhold funding to the Commonwealth; Virginia received $13.1 million in federal Part C funding in federal fiscal year 2024. On the other hand, a larger workforce that can deliver early intervention services would be expected to increase utilization and expenditures. Although Medicaid is the largest payer for these services (serving approximately half of the eligible recipients), other payers include private insurance, TRICARE,⁴ and other state or federal funds for all early intervention services delivered. DBHDS estimates that 84 children waited for services in fiscal year 2024. If 42 of these children were served by Medicaid as a result of expanded service capacity under the proposal, the increase in expenditures would amount to approximately $188,609 per year of which one half would be paid by state funds and the other half would be paid by federal funds. However, how many of the 84 children would be actually served and which payers would be responsible for what portion of the expenditures are not known.

Businesses and Other Entities Affected. According to DBHDS, currently there are 1,160 certified early intervention professionals and 120 specialists. The proposal is estimated to expand the total number of providers by approximately 50 to 100 individuals. DBHDS also states that last year over 23,000 infants and toddlers and their families benefited from early intervention services and 84 children and families had unmet needs. No entity appears to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁶ The proposal does not mandate that affected professionals become certified and provide early intervention services. Although the proposal has the potential to increase early intervention utilization and increase expenditures for payers indirectly, the insurance coverage must exist for early intervention services which is independent from the proposed amendments. Thus, no adverse impact (especially no direct adverse impact) on any entity is indicated.

Small Businesses⁷ Affected.⁸ DBHDS states that most local lead agencies contract with private provider agencies to deliver some of the early intervention services in the locality. Some of these private provider agencies are small businesses. The proposed amendments do not appear to have a direct adverse impact on small businesses, and some may benefit from having a larger qualified pool from which to hire.

Localities⁹ Affected.¹⁰ DBHDS contracts with 39 public local lead agencies to facilitate implementation of local early intervention services statewide and states that localities cannot be mandated to provide funding for any costs under this early intervention regulation, either directly or through participating local public agencies. Although not required to do so, local lead agencies contributed $13.9 million in local funding in fiscal year 2023 and another $763,101 of in-kind contribution toward the cost of implementing the early intervention system and providing early intervention services to infants and toddlers with disabilities and their families. Thus, the proposed amendments would have no direct cost impact on localities and are not expected to affect any locality disproportionately.

Projected Impact on Employment. The proposed amendments would expand the pool of eligible individuals to become an early intervention provider. However, these individuals are required to have a license as a prerequisite to be certified and are already likely employed. Thus, the proposed changes may indirectly reduce under-employment but the impact on total employment is unknown.

Effects on the Use and Value of Private Property. The proposed amendments are not expected to have a direct impact on the use and value of private property. Also, no impact on real estate development costs is expected.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2477.

³ https://highscope.org/wp-content/uploads/2024/04/perry-preschool-summary-40-1.pdf.

⁴ TRICARE is the U.S. Department of Defense's health care program for active-duty service members, their families, retirees, and certain veterans. It provides health benefits, including medical, dental, and vision care, through a combination of military treatment facilities and a network of civilian providers. Source: https://tricare.mil/Plans/Eligibility.

⁵ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁶ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁸ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The State Board of Behavioral Health and Developmental Services concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

As a result of a periodic review, the amendments add a total of six professional disciplines to the list of qualified personnel who may seek certification from the Department of Behavioral Health and Developmental Services as early intervention professionals, which expands the eligible pool of providers to deliver early intervention services for infants and toddlers with disabilities and their families.

12VAC35-225-430. Certification required for early intervention professionals and early intervention specialists.

A. Individual practitioners of early intervention services, with the exception of physicians, audiologists, and registered dietitians, shall be certified by the department as early intervention professionals or early intervention specialists.

B. Certified early intervention professionals shall have expertise in a discipline trained to enhance the development of children with a disability, as evidenced by state licensure, including application for state licensure if the discipline authorizes practice in Virginia while the application is pending and the individual practitioner meets all applicable requirements for such practice; state endorsement; or certification by a national professional organization. Qualified personnel in the following disciplines may seek certification from the department as early intervention professionals:

1. Child life specialists certified by the Association of Child Life Professionals, Child Life Certification Commission;

2. Counselors.

a. Licensed professional counselors licensed by the Virginia Board of Counseling; and

b. School counselors (Pre K - 12) endorsed by the Virginia Board of Education;

2. 3. Behavior analysts licensed by the Virginia Board of Medicine;

3. 4. Educators.

a. Educators licensed by the Virginia Board of Education with endorsement in Special Education - Early Childhood (Birth - 5);

b. Educators licensed by the Virginia Board of Education with endorsement in Early/Primary Education (Pre K - 3 or NK - 4);

c. Educators licensed by the Virginia Board of Education with endorsement in Elementary Education (Pre K - 6);

d. Educators licensed by the Virginia Board of Education with endorsement in Career and Technical Education - Family and Consumer Services;

e. Educators licensed by the Virginia Board of Education with endorsement in Special Education - Hearing Impairments (Pre K - 12);

f. Educators licensed by the Virginia Board of Education with endorsement in Special Education - Visual Impairments (Pre K - 12);

g. Educators with a technical professional license issued by the Virginia Board of Education in Career and Technical Education - Family and Consumer Sciences;

h. Educators licensed by the Virginia Board of Education with Endorsement in adapted curriculum K - 12; and

i. Educators licensed by the Virginia Board of education Education with Endorsement in general curriculum K - 12; and

j. Educators licensed by the Virginia Board of Education with endorsement in English as a Second Language;

4. 5. Family and consumer science professionals certified through the American Association of Family and Consumer Sciences (AAFCS). Individuals certified by the AAFCS after June 30, 2009, shall meet certification requirements in family and consumer sciences - human development and family studies;

5. 6. Marriage and family therapists licensed by the Virginia Board of Counseling;

6. 7. Music therapists certified by the Certification Board for Music Therapists (CBMT);

7. 8. Nurses.

a. Nurse practitioners licensed by the Virginia Board of Nursing; and

b. Registered nurses licensed by the Virginia Board of Nursing;

8. 9. Occupational therapists licensed by the Virginia Board of Medicine;

9. 10. Orientation and mobility specialists certified by the National Blindness Professional Certification Board as a National Orientation and Mobility Certificant (NOMC) or certified by the Academy for Certification of Vision Rehabilitation and Education Professionals (ACVREP) as a Certified Orientation and Mobility Specialist (COMS);

10. 11. Physical therapists licensed by the Virginia Board of Physical Therapy;

11. 12. Physicians licensed in medicine or osteopathic medicine by the Virginia Board of Medicine;

13. Psychologists.

a. Applied psychologists licensed by the Virginia Board of Psychology;

b. Clinical psychologists licensed by the Virginia Board of Psychology; and

c. School psychologists licensed by the Virginia State Board of Education with an endorsement in school psychology;

12. 14. Social workers.

a. Licensed clinical social workers licensed by the Virginia Board of Social Work; and

b. School social workers licensed by the Virginia State Board of Education with an endorsement as a school social worker;

13. 15. Speech-language pathologists licensed by the Virginia Board of Audiology and Speech-Language Pathology; and

14. 16. Therapeutic recreation specialists certified by the National Council on Therapeutic Recreation.

C. Certified early intervention specialists shall hold a minimum of a high school diploma or general equivalency diploma. Qualified personnel in the following disciplines may seek certification from the department as early intervention specialists:

1. Assistant behavior analysts licensed by the Virginia Board of Medicine.

2. Early intervention assistants whose qualifications have been approved by the Department of Behavioral Health and Developmental Services.

3. Residents in counseling with temporary licensure as a resident in counseling by the Virginia Board of Counseling; residents in psychology with registration of residency in clinical or school psychology by the Virginia Board of Psychology; and supervisees in social work with registration of supervised experience by the Virginia Board of Social Work.

4. Licensed social workers licensed by the Virginia Board of Social Work.

4. 5. Nurses.

a. Certified nurse aides certified by the Virginia Board of Nursing; and

b. Licensed practical nurses licensed by the Virginia Board of Nursing.

5. 6. Occupational therapy assistants licensed by the Virginia Board of Medicine.

6. 7. Physical therapy assistants licensed by the Virginia Board of Physical Therapy.

8. Qualified mental health professionals or qualified mental health professional-trainees approved and registered by the Virginia Board of Counseling.

9. Speech-language pathology assistants meeting the qualifications of, and supervised in accordance with, 18VAC30-21-140.

D. Certified early intervention professionals and certified early intervention specialists shall demonstrate knowledge of early intervention principles and practices, including infant and toddler development, family-centered practice, and multidisciplinary team practice, by successful completion of the early intervention principles and practices online training modules administered by the department. A score of at least 80% accuracy on each module's competency test shall be required for successful completion.