Titles of Regulations: 12VAC30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (adding 12VAC30-50-415).

12VAC30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-110).

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

Effective Dates: October 8, 2012, through October 7, 2013.

Agency Contact: Molly Carpenter, Policy Analyst, Division of Maternal and Child Health, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 786-1493, FAX (804) 786-1680, or email molly.carpenter@dmas.virginia.gov.

Preamble:

The Administrative Process Act (§ 2.2-4011 of the Code of Virginia) states that an agency may adopt regulations in an "emergency situation" (i) upon consultation with the Attorney General after the agency has submitted a request stating in writing the nature of the emergency, and at the sole discretion of the Governor; (ii) in a situation in which Virginia statutory law, the Virginia appropriation act, or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment, and the regulation is not exempt under the provisions of subdivision A 4 of § 2.2-4006 of the Code of Virginia; or (iii) in a situation in which an agency has an existing emergency regulation, additional emergency regulations may be issued as needed to address the subject matter of the initial emergency regulation provided the amending action does not extend the effective date of the original action.

This suggested emergency regulation meets the standard at § 2.2-4011 B of the Code of Virginia. The Governor is hereby requested to approve this agency's adoption of the emergency regulations entitled Early Intervention (Part C) Case Management (12VAC30-50-415 and 12VAC30-80-110) and also authorize the initiation of the permanent regulation promulgation process provided for in § 2.2-4007 of the Code of Virginia.

The planned regulatory action creates a new model for Medicaid coverage of case management services for children younger than three years of age who receive services under Chapter 53 (§ 2.2-5300 et seq.) of Title 2.2 of the Code of Virginia in accordance with Part C of the Individuals with Disabilities Education Act (20 USC § 1431 et seq.). These children have (i) a 25% developmental delay in one or more areas of development, (ii) atypical development, or (iii) a diagnosed physical or mental condition that has a high probability of resulting in a developmental delay.

The planned regulatory action is one component of this administration's initiative to revise the system of financing for Part C early intervention services in Virginia to make more efficient use of federal and state funds. Obtaining Medicaid reimbursement for required case management services ensures that the Commonwealth will draw down the maximum available federal Medicaid match for those Part C services currently paid with state-only funds. The Department of Behavioral Health and Developmental Services (DBHDS) has proposed new regulations for certification of Early Intervention Case Managers in tandem with this regulatory action. The department consulted with DBHDS and other stakeholders in developing these regulations.

12VAC30-50-415. Case management for Early Intervention (Part C).

A. Target group: Medicaid eligible children from birth up to age three years who have (i) a 25% developmental delay in one or more areas of development, (ii) atypical development, or (iii) a diagnosed physical or mental condition that has a high probability of resulting in a developmental delay who participate in the early intervention services system described in Chapter 53 (§ 2.2-5300 et seq.) of Title 2.2 of the Code of Virginia.

B. Services are provided in the entire state.

C. Services are not comparable in amount, duration, and scope. Authority of § 1915(g)(1) of the Social Security Act is invoked to provide services without regard to the requirements of § 1902(a)(10)(B) of the Act.

D. Definition of services: Early intervention case management services are services furnished to assist individuals eligible under the State plan who reside in a community setting in gaining access to needed medical, social, educational, and other services. Early intervention case management includes the following assistance as defined in 42 CFR 440.169 and Chapter 53 (§ 2.2-5300 et seq.) of Title 2.2 of the Code of Virginia:

1. Comprehensive assessment and periodic reassessment of individual needs to determine the need for any medical, educational, social, or other services, including EPSDT services. Needs shall be reassessed at least annually.

2. Development and periodic revision of an individualized family service plan (IFSP) as defined in coverage of and reimbursement for Early Intervention Services under Part C of IDEA (12VAC30-50-131) based on the information collected through the assessment. The IFSP shall be updated at least annually. A face-to-face contact with the child's family is required for the initial development and annual revision of the IFSP. The case manager shall be responsible for determining if the family's particular situation warrants additional face-to-face visits.

3. Referral and related activities to help the eligible individual obtain needed services, including activities that help link the individual with medical, social, and educational providers or other programs and services that are capable of providing needed services to address identified needs and achieve goals specified in the IFSP.

4. Monitoring and follow-up activities, including activities and contacts that are necessary to ensure that the IFSP is effectively implemented and adequately addresses the needs of the eligible individual. At a minimum one telephone, e-mail, or face-to-face contact shall be made with the child's family every three calendar months, or attempts of such contacts documented. The case manager shall be responsible for determining if the family's particular situation warrants additional family contacts.

5. Early intervention case management includes contacts with family members, service providers, and other noneligible individuals and entities that are directly related to the identification of the eligible individual's needs and care.

E. Qualifications of providers.

1. Authority of § 1915(g)(1) of the Social Security Act is invoked to limit providers of early intervention case management services without regard to the requirements of § 1902(a)(10)(B) of the Act. Providers are limited to entities designated by the local lead agencies under contract with the Department of Behavioral Health and Developmental Services (DBHDS) pursuant to § 2.2-5304.1 of the Code of Virginia to ensure that the case managers for individuals with developmental disabilities are capable of ensuring that such individuals receive needed services.

2. Individuals providing early intervention case management must be certified as an Early Intervention Case Manager by DBHDS.

F. Freedom of choice.

1. Eligible recipients shall have free choice of the providers of early intervention case management services within the specified geographic area identified in this plan.

2. Eligible recipients shall have free choice of the providers of other medical care under the plan.

G. Access to services.

1. Case management services shall be provided in a manner consistent with the best interest of recipients and shall not be used to restrict an individual's access to other Medicaid services.

2. Individuals shall not be compelled to receive case management services. The receipt of other Medicaid services shall not be a condition for the receipt of case management services, and the receipt of case management services shall not be a condition for receipt of other Medicaid services.

3. Providers of case management services do not exercise the agency's authority to authorize or deny the provision of other Medicaid services.

H. Case management services must be documented and maintained in individual case records in accordance with 42 CFR 441.18(a)(7) and other state and federal requirements.

I. Limitations.

1. Early intervention case management shall not include the following:

a. Activities not consistent with the definition of case management services in 42 CFR 440.169.

b. The direct delivery of an underlying medical, educational, social, or other service to which an eligible individual has been referred.

c. Activities integral to the administration of foster care programs.

d. Activities for which third parties are liable to pay, except for case management that is included in an IFSP consistent with § 1903(c) of the Social Security Act.

2. Payment for case management services under the plan must not duplicate payments made to public agencies or private entities under other program authorities for this same purpose.

3. Case management may not be billed when it is an integral part of another Medicaid service including, but not limited to, intensive community treatment services and intensive in-home services for children and adolescents.

4. Case management defined for another target group shall not be billed concurrently with this case management service, except for case management services for high risk infants provided under 12VAC30-50-410. Providers of early intervention case management shall coordinate services with providers of case management services for high risk infants, pursuant to 12VAC30-50-410, to ensure that services are not duplicated.

5. Providers shall not be reimbursed for case management services provided for (i) seriously mentally ill adults and emotionally disturbed children (12VAC30-50-420), (ii) youth at risk of serious emotional disturbance (12VAC30-50-430), (iii) individuals with mental retardation (12VAC30-50-440), or (iv) individuals with mental retardation and related conditions who are participants in the home-based and community-based care waivers for persons with mental retardation and related conditions (12VAC50-30-450) when these children also fall within the target group for early intervention case management as set out herein.

6. Case management may be billed only when all of the following conditions are met:

a. A least one documented case management service is furnished during the month; and

b. The provider is certified by DBHDS and enrolled with DMAS as an Early Intervention Case Management provider.

12VAC30-80-110. Fee-for-service: Case Management.

A. Targeted case management for high-risk pregnant women and infants up to age two, for community mental health and mental retardation services, and for individuals who have applied for or are participating in the Individual and Family Developmental Disability Support Waiver program (IFDDS Waiver) shall be reimbursed at the lowest of: state agency fee schedule, actual charge, or Medicare (Title XVIII) allowances.

B. Targeted case management for children from birth to age three who have developmental delay who are in need of early intervention is reimbursed at the lower of the state agency fee schedule or actual charge (charge to the general public). All private and governmental fee-for-service providers are reimbursed according to the same methodology. The agency's rates were set as of October 1, 2011, and are effective for services on or after that date. Rates are published on the agency's website at www.dmas.virginia.gov.