Title of Regulation: 12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-5).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 11, 2019.

Effective Date: December 26, 2019.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@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 State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia authorizes the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the State Plan for Medical Assistance and to promulgate regulations 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.

Purpose: The purpose of the amendments is to establish documentation requirements for qualifications and credentials for providers of community mental health services, including residential treatment services. This regulatory change is essential to protect the health, safety, and welfare of the public in that it ensures that community mental health services are rendered by individuals with appropriate qualifications and credentials

Rationale for Using Fast-Track Rulemaking Process: Item 303 X (1) of Chapter 2 of the 2018 Acts of Assembly directed the agency to make changes to the utilization review and provider qualifications for community mental health services in order to ensure appropriate utilization and cost efficiency. Specifically, the language states:

"The Department of Medical Assistance Services shall make programmatic changes in the provision of Intensive In-Home services and Community Mental Health services in order to ensure appropriate utilization and cost efficiency. The department shall consider all available options including, but not limited to, prior authorization, utilization review and provider qualifications. The Department of Medical Assistance Services shall promulgate regulations to implement these changes within 280 days or less from the enactment date of this Act."

This action implements changes related to provider qualifications by incorporating the registration requirements previously established by the Department of Health Professions (DHP). This action is expected to be noncontroversial because individuals are required to comply with DHP regulations without regard to any DMAS regulatory language. DMAS is merely updating its regulations to reflect the current state of DHP regulations rather than establishing any new requirements.

Substance: DMAS has established provider requirements, but regulations are needed to provide clarification to providers of the documentation required to establish that services are rendered by individuals with appropriate qualifications and credentials. The amendments will also update the regulations by referring to new DHP requirements for registration of qualified mental health professional-child, qualified mental health professional-adult, and qualified mental health professional-trainee.

Issues: The primary advantage of this action is that it updates DMAS regulations to refer to DHP regulations. There are no disadvantages to the public, the agency, or the Commonwealth.

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 the Department of Health Professions' (DHP) documentation requirements for registration as a Qualified Mental Health Practitioner (QMHP). These changes have already been in effect under an emergency regulation.²

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

Estimated Economic Impact. The qualifications for registered QMHPs and the documentation of those qualifications are currently in the final stage of being permanently established by DHP.³ The Board proposes to incorporate those documentation requirements in its own regulation. This change would not create any costs for the Medicaid mental health providers employing affected mental health professionals as they are already required to maintain such documentation under the DHP regulation. However, this change allows DMAS to ensure that the DHP documentation requirements are complied with for Medicaid reimbursement purposes. The proposed changes have already been in effect under an emergency regulation.

Businesses and Entities Affected. There are approximately 4,270 community mental health service providers that employ QMHPs. Currently, there are 5,270 QMHP-Adult, 4,823 QMHP-Child, 717 QMHP-Trainee registered with DHP.

Localities Particularly Affected. The proposed amendments do not affect any locality more than others.

Projected Impact on Employment. The proposed amendments would not affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments would not affect the use and value of private property.

Real Estate Development Costs. The proposed amendments would not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

Costs and Other Effects. Of the 4,270 CMHS providers that employ QMHPs, most are believed to be small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments would not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments would not adversely affect businesses.

Localities. The proposed amendments would not adversely affect localities.

Other Entities. The proposed amendments would not adversely affect other entities.

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²https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8191

³https://townhall.virginia.gov/L/ViewStage.cfm?stageid=8650

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and takes no issues with this analysis.

Summary:

The amendments clarify the documentation required to establish that services are rendered by individuals with appropriate qualifications and credentials and update the regulations to include Department of Health Professions requirements for registration of qualified mental health professionals.

12VAC30-60-5. Applicability of utilization review requirements.

A. These utilization requirements shall apply to all Medicaid covered services unless otherwise specified.

B. Some Medicaid covered services require an approved service authorization prior to service delivery in order for reimbursement to occur. 1. To obtain service authorization, all providers' information supplied to the Department of Medical Assistance Services (DMAS) or its contractor shall be fully substantiated throughout individuals' medical records.

2. C. Providers shall be required to maintain documentation detailing all relevant information about the Medicaid individuals who are in the provider's care. Such documentation shall fully disclose the extent of services provided in order to support the provider's claims for reimbursement for services rendered. This documentation shall be written, signed, and dated at the time the services are rendered unless specified otherwise.

D. Providers shall maintain documentation that demonstrates that individuals providing services have the required qualifications established by DMAS, the Department of Health Professions (DHP), or the Department of Behavioral Health and Developmental Services (DBHDS).

C. E. DMAS, or its contractor, shall perform reviews of the utilization of all Medicaid covered services pursuant to 42 CFR 440.260 and 42 CFR Part 456.

D. F. DMAS shall recover expenditures made for covered services when providers' documentation does not comport with standards specified in all applicable regulations.

E. G. Providers who are determined not to be in compliance with DMAS requirements shall be subject to 12VAC30-80-130 for the repayment of those overpayments to DMAS.

F. H. Utilization review requirements specific to community mental health services and residential treatment services, including therapeutic group homes and psychiatric residential treatment facilities (PRTFs), as set out in 12VAC30-50-130 and 12VAC30-50-226, shall be as follows:

1. To apply to be reimbursed as a Medicaid provider, the required Department of Behavioral Health and Developmental Services (DBHDS) DBHDS license shall be either a full, annual, triennial, or conditional license. Providers must be enrolled with DMAS or its contractor to be reimbursed. Once a health care entity has been enrolled as a provider, it shall maintain, and update periodically as DMAS or its contractor requires, a current Provider Enrollment Agreement for each Medicaid service that the provider offers.

2. Health care entities with provisional licenses issued by DBHDS shall not be reimbursed as Medicaid providers of community mental health services.

3. Payments Reimbursement shall not be permitted to health care entities that either hold provisional licenses or fail to enter into a provider contract with DMAS or its contractor for a service prior to rendering that service or fail to maintain a current Medicaid Provider Enrollment Agreement. If services are provided through a managed care organization (MCO), services shall not be reimbursed unless the provider is also enrolled with the MCO as a Medicaid provider.

4. DMAS or its contractor shall apply a national standardized set of medical necessity criteria in use in the industry or an equivalent standard authorized in advance by DMAS. Services that fail to meet medical necessity criteria shall be denied service authorization.

5. Service providers shall maintain documentation to establish that services are rendered by individuals with appropriate qualifications and credentials, including proof of licensure or registration through DHP if applicable. Qualified mental health professional-eligibles, as defined by DBHDS, shall maintain documentation of supervision and of progress toward the requirements for DHP registration as a qualified mental health professional-child or progress toward the requirements for DHP registration as a qualified mental health professional-adult as those terms are defined by DBHDS.