Title of Regulation: 12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-303).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 16, 2014.

Effective Date: February 1, 2014.

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 the Board of Medical Assistance Services the authority 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 32.1-330 of the Code of Virginia states:

"All individuals who will be eligible for community or institutional long-term care services as defined in the state plan for medical assistance shall be evaluated to determine their need for nursing facility services as defined in that plan. The Department shall require a preadmission screening of all individuals who, at the time of application for admission to a certified nursing facility as defined in § 32.1-123, are eligible for medical assistance or will become eligible within six months following admission. For community-based screening, the screening team shall consist of a nurse, social worker and physician who are employees of the Department of Health or the local department of social services or a team of licensed physicians, nurses, and social workers at the Woodrow Wilson Rehabilitation Center (WWRC) for WWRC clients only. For institutional screening, the Department shall contract with acute care hospitals."

This preadmission screening requirement originated in the Code of Virginia in 1984 (Chapter 781 of the 1984 Acts of the Assembly).

Purpose: The purpose of this regulatory action is to provide the force and effect of administrative law to guidance material designed to assist preadmission screening teams and hospital-based screeners, pursuant to § 32.1-330 of the Code of Virginia, in accurately and consistently applying the Uniform Assessment Instrument (UAI) to individuals 21 years of age or younger who are applying for medical assistance coverage of long-term care services. Over the 18 years since DMAS first adopted the UAI for screening of adults, the numbers of young people requiring long-term care services have steadily increased. Since all persons who may need long-term care services covered by DMAS must first be screened, the need to apply the UAI to children has also increased.

This regulatory action is not required to accurately and consistently protect the health, safety, or welfare of citizens. However, its adoption will ensure the consistent and equitable use of existing policies for all applicants, regardless of their ages, of long-term care services.

Rationale for Using Fast-Track Process: This regulatory action is expected to be noncontroversial because it has been specifically requested by community preadmission screeners who seek to assist individuals who are seeking Medicaid funding for their long-term care needs. DMAS posted a notice of periodic review on the Virginia Regulatory Town Hall for a comment period from March 26, 2012, through April 16, 2012. A supportive comment was received from the Virginia Department of Social Services.

Substance: Effective June 29, 1994, DMAS adopted the current criteria and standards set out in 12VAC30-60-300 and 12VAC30-60-303 regarding individuals' assessments for long-term care services. The purpose of that action was to establish an equitable, consistent, and uniform set of standards to be applied throughout localities statewide to determine which individuals qualified for Medicaid coverage of their long-term care services.

These standards and criteria are still in use today and are not being changed by this action. For an individual to be determined eligible for nursing facility care, he must need help with a specified part of his activities of daily living (ADLs) and must also have medical or nursing needs. For an individual to be determined as eligible for community-based care services, he must need help with a specified part of his ADLs, have medical or nursing needs, and be at risk of nursing facility placement within 30 days of the assessment in the absence of community services.

ADLs are defined as personal care tasks, such as bathing, dressing, toileting, transferring, and eating/feeding. An individual's degree of independence in performing these activities is part of determining his appropriate level of care and service needs.

Based on the ages and developmental stages of infants and young children, they may not be able to perform any or very many of the ADLs for themselves but may still be normal and healthy. In other words, a normal, healthy infant's degree of dependence in performing personal care tasks should not qualify him to receive Medicaid-covered long-term care services.

In light of the fact that infants and children with disabilities are living longer and requiring more services, DMAS has developed guidance material for use by preadmission screening teams and hospital-based screening teams. This guidance document, which is incorporated by reference in DMAS' existing regulations, has been piloted through a field test by the affected entities that will have to apply it.

DMAS' Division of Long-Term Care, in association with community partners at the Virginia Department of Health and the Virginia Department of Social Services, field tested the proposed criteria for children with the community preadmission screening teams as well as hospital-based screening teams. The overall guidance document was well-received by the pilot screening teams (who were from six different localities and two different acute care settings, one of which specialized in the treatment of children) in the Commonwealth.

DMAS performed a survey of the pilot screening teams as part of the post review of the process and received only positive comments from the teams. Some clarifications were made to the criteria based upon the pilot use that have been incorporated into the process. The overall results of the pilot project were positive, and the pilot screening teams found the guidelines to be clear, concise, and appropriate for the screening process. DMAS allowed for a 60-day pilot test of the proposed guidelines. Screening teams were instructed to screen children using the existing criteria and then to rescreen the children using the proposed guidelines to see if the outcomes of the screening would differ.

Issues: The primary advantage to preadmission screening teams is that they will now have the guidance that they have requested to interpret a child's disability to determine the child's degree of dependence with his ADLs. There are no disadvantages for these teams. In fact, the absence of such guidance has been a significant disadvantage for them.

Application of this guidance will result in uniform, consistent, and equitable decisions for all children across the Commonwealth who apply for Medicaid coverage of long-term care services. It is expected that such uniform application of these standards will reduce potential appeals that create costly administrative expenses for DMAS.

DMAS based this interpretive guidance on a similar action of the Colorado Medicaid program.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medical Assistance Services (Board) proposes to incorporate into these regulations guidance material concerning the interpretation and application of the Uniform Assessment Instrument when an individual 21 years of age or younger is being evaluated for long-term care services, either nursing facility or home and community based services.

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

Estimated Economic Impact. Effective June 29, 1994, the Board adopted the current criteria and standards set out in 12VAC30-60-300 and 12VAC30-60-303 regarding individuals' assessments for long-term care services. The purpose of that action was to establish an equitable, consistent, and uniform set of standards to be applied throughout localities statewide to determine which individuals qualified for Medicaid coverage of their long-term care services.

These standards and criteria are still in use today and are not being changed by this action. For an individual to be determined eligible for nursing facility care, he must need help with a specified part of his Activities of Daily Living (ADLs) and must also have medical or nursing needs. For an individual to be determined as eligible for community-based care services, he also must need help with a specified part of his ADLs, also have medical or nursing needs, and be at risk of nursing facility placement within 30 days of the assessment in the absence of community services.

ADLs are defined as personal care tasks, such as bathing, dressing, toileting, transferring, eating/feeding. An individual's degree of independence in performing these activities is part of determining his appropriate level of care and service needs.

Based on the ages and developmental stages of infants and young children, they may not be able to perform any or very many of the ADLs for themselves but still be normal and healthy. In other words, a normal, healthy infant's degree of dependence in performing personal care tasks should not qualify him to receive Medicaid-covered long-term care services.

In light of the fact that infants and children with disabilities are living longer and requiring more services, the Department of Medical Assistance Services has developed guidance material in a document for use by preadmission screening teams and hospital-based screening teams. The Board proposes to incorporate this guidance document by reference into these regulations.

The guidance is expected to reduce confusion and perhaps save time for preadmission teams. Since the criteria are not changing, there is not expected to be either a net increase or decrease in the number of individuals deemed eligible. Thus, adding the proposed language to these regulations should produce a net benefit.

Businesses and Entities Affected. The proposed amendment affects 122 pre-admission screening teams and 90 hospitals. The screening teams consist of community teams (representative from local Departments of Social Services and the nurse and medical director from the local health departments) and acute care teams (hospital discharge planning staff and the hospital physician who discharges the patient).

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

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, a determination of the public benefit, 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 an 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 has reviewed the economic impact analysis prepared by the Department of Planning and Budget and concurs with this analysis.

Summary:

The amendments incorporate a Medicaid memo concerning the interpretation and application of the Uniform Assessment Instrument when an individual 21 years of age or younger is being evaluated for long-term care services.

12VAC30-60-303. Preadmission screening criteria for long-term care.

A. Functional dependency alone is not sufficient to demonstrate the need for nursing facility care or placement or authorization for community-based care.

B. An individual shall only be considered to meet the nursing facility criteria when both the functional capacity of the individual and his medical or nursing needs meet the following requirements. Even when an individual meets nursing facility criteria, placement in a non-institutional noninstitutional setting shall be evaluated before actual nursing facility placement is considered.

1. Functional capacity.

a. When documented on a completed state-designated preadmission screening assessment instrument which that is completed in a manner consistent with the definitions of activities of daily living and directions provided by DMAS for the rating of those activities, individuals may be considered to meet the functional capacity requirements for nursing facility care when one of the following describes their functional capacity:

(1) Rated dependent in two to four of the Activities of Daily Living, and also rated semi-dependent or dependent in Behavior Pattern and Orientation, and semi-dependent in Joint Motion or dependent in Medication Administration.

(2) Rated dependent in five to seven of the Activities of Daily Living, and also rated dependent in Mobility.

(3) Rated semi-dependent in two to seven of the Activities of Daily Living, and also rated dependent in Mobility and Behavior Pattern and Orientation.

b. The rating of functional dependencies on the pre-admission preadmission screening assessment instrument must be based on the individual's ability to function in a community environment, not including any institutionally induced dependence. The following abbreviations shall mean: I = independent; d = semi-dependent; D = dependent; MH = mechanical help; HH = human help.

(1) Bathing

(a) Without help (I)

(b) MH only (d)

(c) HH only (D)

(d) MH and HH (D)

(e) Performed by Others (D)

(2) Dressing

(a) Without help (I)

(b) MH only (d)

(c) HH only (D)

(d) MH and HH (D)

(e) Performed by Others (D)

(f) Is not Performed (D)

(3) Toileting

(a) Without help day or night (I)

(b) MH only (d)

(c) HH only (D)

(d) MH and HH (D)

(e) Performed by Others (D)

(4) Transferring

(a) Without help (I)

(b) MH only (d)

(c) HH only (D)

(d) MH and HH (D)

(e) Performed by Others (D)

(f) Is not Performed (D)

(5) Bowel Function

(a) Continent (I)

(b) Incontinent less than weekly (d)

(c) External/Indwelling Device/Ostomy -- self care (d)

(d) Incontinent weekly or more (D)

(e) Ostomy -- not self care (D)

(6) Bladder Function

(a) Continent (I)

(b) Incontinent less than weekly (d)

(c) External device/Indwelling Catheter/Ostomy -- self care (d)

(d) Incontinent weekly or more (D)

(e) External device -- not self care (D)

(f) Indwelling catheter -- not self care (D)

(g) Ostomy -- not self care (D)

(7) Eating/Feeding

(a) Without help (I)

(b) MH only (d)

(c) HH only (D)

(d) MH and HH (D)

(e) Spoon fed (D)

(f) Syringe or tube fed (D)

(g) Fed by IV or clysis (D)

(8) Behavior Pattern and Orientation

(a) Appropriate or Wandering/Passive less than weekly + Oriented (I)

(b) Appropriate or Wandering/Passive less than weekly + Disoriented -- Some Spheres (I)

(c) Wandering/Passive Weekly/or more + Oriented (I)

(d) Appropriate or Wandering/Passive less than weekly + Disoriented -- All Spheres (d)

(e) Wandering/Passive Weekly/Some or more + Disoriented -- All Spheres (d)

(f) Abusive/Aggressive/Disruptive less than weekly + Oriented or Disoriented (d)

(g) Abusive/Aggressive/Disruptive weekly or more + Oriented (d)

(h) Abusive/Aggressive/Disruptive + Disoriented -- All Spheres (D)

(9) Mobility

(a) Goes outside without help (I)

(b) Goes outside MH only (d)

(c) Goes outside HH only (D)

(d) Goes outside MH and HH (D)

(e) Confined -- moves about (D)

(f) Confined -- does not move about (D)

(10) Medication Administration

(a) No medications (I)

(b) Self administered -- monitored less than weekly (I)

(c) By lay persons, Administered/Monitored (D)

(d) By Licensed/Professional nurse Administered/Monitored (D)

(11) Joint Motion

(a) Within normal limits or instability corrected (I)

(b) Limited motion (d)

(c) Instability -- uncorrected or Immobile (I) immobile (D)

c. An individual with medical or nursing needs is an individual whose health needs require medical or nursing supervision or care above the level which that could be provided through assistance with Activities of Daily Living, Medication Administration, and general supervision and is not primarily for the care and treatment of mental diseases. Medical or nursing supervision or care beyond this level is required when any one of the following describes the individual's need for medical or nursing supervision:

(1) The individual's medical condition requires observation and assessment to assure evaluation of the person's need for modification of treatment or additional medical procedures to prevent destabilization, and the person has demonstrated an inability to self observe or evaluate the need to contact skilled medical professionals;

(2) Due to the complexity created by the person's multiple, interrelated medical conditions, the potential for the individual's medical instability is high or medical instability exists; or

(3) The individual requires at least one ongoing medical or nursing service. The following is a non-exclusive nonexclusive list of medical or nursing services which that may, but need not necessarily, indicate a need for medical or nursing supervision or care:

(a) Application of aseptic dressings;

(b) Routine catheter care;

(c) Respiratory therapy;

(d) Supervision for adequate nutrition and hydration for individuals who show clinical evidence of malnourishment or dehydration or have recent history of weight loss or inadequate hydration which that, if not supervised, would be expected to result in malnourishment or dehydration;

(e) Therapeutic exercise and positioning;

(f) Routine care of colostomy or ileostomy or management of neurogenic bowel and bladder;

(g) Use of physical (e.g., side rails, poseys, locked wards) and/or chemical restraints;

(h) Routine skin care to prevent pressure ulcers for individuals who are immobile;

(i) Care of small uncomplicated pressure ulcers, and local skin rashes;

(j) Management of those with sensory, metabolic, or circulatory impairment with denstrated demonstrated clinical evidence of medical instability;

(k) Chemotherapy;

(l) Radiation;

(m) Dialysis;

(n) Suctioning;

(o) Tracheostomy care;

(p) Infusion Therapy therapy;

(q) Oxygen.

d. Even when an individual meets nursing facility criteria, provision of services in a noninstitutional setting shall be considered before nursing facility placement is sought.

C. When assessing an individual 21 years of age or younger, the teams who are conducting preadmission screenings for long-term care services shall utilize the Uniform Assessment Instrument as contained in DMAS' Medicaid Memo dated October 3, 2012, entitled "Development of Special Criteria for the Purposes of Pre-Admission Screening," which can be accessed on the DMAS website at https://www.virginiamedicaid.dmas.virginia.gov/wps/portal/MedicaidMemostoProviders.

DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-60)

Department of Medical Assistance Services Provider Manuals (https://www.virginiamedicaid.dmas.virginia.gov/wps/portal/ProviderManuals):

Virginia Medicaid Nursing Home Manual, Department of Medical Assistance Services

Virginia Medicaid Rehabilitation Manual, Department of Medical Assistance Services

Virginia Medicaid Hospice Manual, Department of Medical Assistance Services

Virginia Medicaid School Division Manual, Department of Medical Assistance Services

Development of Special Criteria for the Purposes of Pre-Admission Screening, Medicaid Memo, October 3, 2012, Department of Medical Assistance Services

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV-TR), copyright 2000, American Psychiatric Association

Patient Placement Criteria for the Treatment of Substance-Related Disorders (ASAM PPC-2R), Second Edition, copyright 2001, American Society on Addiction Medicine, Inc