Title of Regulation: 12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-140).

Statutory Authority: § 32.1-325 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 28, 2013.

Effective Date: September 12, 2013.

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.

Basis: Section 32.1-325 of the Code of Virginia grants authority to the Board of Medical Assistance Services to administer and amend the Plan for Medical Assistance. Sections 32.1-324 and 32.1-325 of the Code of Virginia authorize the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the Plan for Medical Assistance according to the board's requirements. The Medicaid authority as established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Section 2.2-4012.1 of the Code of Virginia and Executive Order 14 (2010) permit DMAS to promulgate these regulatory changes as a fast-track action because these changes are expected to be noncontroversial, and the areas of agency discretion are minor.

Purpose: This regulatory change is not expected to affect the health, safety, or welfare of citizens of the Commonwealth nor of Medicaid recipients. It is intended to assist the agency with provider appeals by updating and clarifying current policies.

Pursuant to 42 CFR 440.260, the Commonwealth is required to provide in its State Plan for Medical Assistance a description of its methods and standards used to assure that services are of high quality.

The purpose of this action is to update the regulations consistent with current practice and procedures. DMAS is losing provider appeals because it has been performing these utilization reviews of rendered services instead of the Department of Behavioral Health and Developmental Services (formerly the Department of Mental Health, Mental Retardation and Substance Abuse Services). The current language has been outdated for quite some time due to changes in DMAS interagency agreement with this sister state agency.

Rationale for Using Fast-Track Process: This fast-track action is expected to be noncontroversial, and the areas of agency discretion are minor. It is irrelevant to providers which agency performs reviews of their services and claims.

Substance: The section of the State Plan for Medical Assistance that is affected by this action is Methods and Standards Used to Assure High Quality of Services (12VAC30-60-140).

Currently, 12VAC30-60-140 indicates that the "Department of Mental Health, Mental Retardation and Substance Abuse Services" conducts onsite utilization reviews of providers that render community mental health services. These providers are community-based behavioral health services providers. This action replaces "Department of Mental Health, Mental Retardation and Substance Abuse Services" with "DMAS or its contractor" in 12VAC30-60-140 to reflect that DMAS conducts utilization reviews. The word "on-site" was removed to reflect that DMAS conducts utilization reviews not only onsite, but internally by reviewing provider documentation.

Issues: This regulatory action corrects language that is outdated and updates the agency's regulations with the current practice related to the entity that conducts utilization reviews. It will benefit the Commonwealth, the agency, and other officials to have the correct and current practice in regulations. There are no disadvantages.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed changes will revise the regulatory language to reflect 1) that the Department of Medical Assistance Services or its contractor conducts utilization reviews of community mental health services rather than the Department of Mental Health, Mental Retardation and Substance Abuse Services, and 2) that the utilization reviews are not limited to on-site reviews only.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The proposed changes will revise the regulatory language to reflect that the Department of Medical Assistance Services (DMAS) or its contractor conducts utilization reviews of community mental health services rather than the Department of Mental Health, Mental Retardation and Substance Abuse Services and that the utilization reviews are not limited to on-site reviews only.

Utilization reviews have been conducted by DMAS since 2000 due to changes in the interagency agreement with its sister state agency. In addition, since 2001, utilization reviews are not limited to only on-site reviews and include desk reviews of rendered services. The proposed changes will merely update the regulatory language to reflect the procedures currently in practice. According to DMAS, there has been a surge in the number of provider appeals in this service area. In addition to improving the clarity of the regulations, the proposed regulatory language, which is consistent with current practices is expected to reduce the likelihood of DMAS losing a provider appeal.

Businesses and Entities Affected. The proposed regulations mainly apply to providers of community mental health services. There are approximately 700 such providers.

Localities Particularly Affected. The proposed regulations are not anticipated to affect any locality more than others.

Projected Impact on Employment. No direct impact on employment is expected.

Effects on the Use and Value of Private Property. No direct impact on the use and value of private property is expected.

Small Businesses: Costs and Other Effects. No direct costs or other effects on small businesses are expected. However, the proposed changes may reduce the likelihood that a community mental health services provider may win a utilization review appeal.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no known alternative that minimizes the adverse impact while accomplishing the same goals.

Real Estate Development Costs. No impact on real estate development costs is expected.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget regarding the regulations concerning Technical Corrections for Utilization Review of Community Mental Health Rehabilitation Services (12VAC30-60-140).

Summary:

The amendments provide that (i) utilization reviews of community-based behavioral health services providers are conducted by the Department of Medical Assistance Services or its contractor rather than the Department of Behavioral Health and Developmental Services and (ii) utilization reviews are not limited to onsite reviews only.

12VAC30-60-140. Community mental health services.

A. Utilization review general requirements. On-site utilization Utilization reviews shall be conducted, at a minimum annually at for each enrolled provider, by the state Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) Medical Assistance Services (DMAS) or its contractor. During each on-site review, an appropriate sample of the provider's total Medicaid population will be selected for review. An expanded review shall be conducted if an appropriate number of exceptions or problems are identified.

B. The DMHMRSAS review by DMAS or its contractor shall include the following items:

1. Medical or clinical necessity of the delivered service;

2. The admission to service and level of care was appropriate;

3. The services were provided by appropriately qualified individuals as defined in the Amount, Duration, and Scope of Services found in 12VAC30-50-220 12VAC30-50; and

4. Delivered services as documented are consistent with recipients' Individual Service Plans, invoices submitted, and specified service limitations.