Title of Regulation: 12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services (amending 12VAC35-105-675).

Statutory Authority: § 37.2-203 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 20, 2020.

Agency Contact: Emily Bowles, Legal Coordinator, Office of Licensing, Department of Behavioral Health and Developmental Services, 1220 Bank Street, P.O. Box 1797, Richmond, VA 23218, telephone (804) 225-3281, FAX (804) 692-0066, TTY (804) 371-8977, or email emily.bowles@dbhds.virginia.gov.

Basis: Section 37.2-203 of the Code of Virginia authorizes the State Board of Behavioral Health and Developmental Services to adopt regulations that may be necessary to carry out the provisions of Title 37.2 of the Code of Virginia and other laws of the Commonwealth administered by the commissioner and the Department of Behavioral Health and Developmental Services (DBHDS).

Purpose: DBHDS and the Department of Medical Assistance Services (DMAS) regulations concerning reviews of individual service plans are not aligned, which creates an unnecessary situation in which service providers must adhere to two separate requirements for the same practice. The proposed changes align DBHDS and DMAS regulations as to when a quarterly review or a revised assessment of an individualized services plan (ISP) must be documented. The amendments allow practitioners to follow the same process rather than two different processes, which decreases administrative burdens and allows more time to provide services. By decreasing administrative burden through the adjusted timeframe, providers are allowed more time to thoroughly prepare and document the ISP review and changes to the ISP, which potentially benefit the health and safety of an individual receiving services by ensuring all information is in place to inform a treatment team of an individual's specific needs.

Substance: Providers licensed by DBHDS are currently required to review the ISP at least every three months from the date of the implementation of the ISP or whenever there is a revised assessment based upon the individual's changing needs or goals. No allowance exists for additional administrative time to document the review, as is allowed in DMAS regulations. Such administrative "grace periods" are not uncommon.

The proposed amendments allow providers to document each quarterly review or a revised assessment in the individual's record "no later than 15 calendar days from the date the review was due to be completed." The proposed amendments do not change the current quarterly deadline for the review. Also, clarification is made to exclude case management from this 15-day change, and specific language is added regarding 30 days related to case management in response to comments received during the public comment period.

Issues: The advantage for the public and the agency will be that providers have more efficient use of time because the regulation will no longer be duplicative in conflicting ways. There are no identified disadvantages to the public or the Commonwealth in making these amendments.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Behavioral Health and Developmental Services (Board) proposes to allow case management providers a 30-day grace period and other mental health providers a 15-day grace period for documentation of Individualized Services Plans (ISPs).

Background. This action was originally started as a fast-track action.² After receiving public comments, the Board now proposes additional language through the standard regulatory process.

Estimated Benefits and Costs. Currently, mental health providers serving Medicaid patients are allowed under Medicaid regulations³ a 15-day grace period to document ISPs. In addition, as indicated by the public comments and agreed by the Board, Medicaid case managers are allowed a 30-day grace period,⁴ allowing them an additional 15-day period to document ISPs. Case management providers need additional time to document ISPs because they evaluate input from other mental health providers. Having the same grace period as other providers would not allow them time to incorporate input from other mental health providers. The Board now proposes to align its regulations with Medicaid regulations by providing identical grace periods: a 30-day grace period for case managers and a 15-day grace period for other mental health providers.

The proposed change is expected to allow more flexibility to the mental health providers who are licensed through the Board and serve the Medicaid population because they will have more time to document their reviews. The flexibility provided by this regulation could reduce compliance costs (e.g., possibly reducing the need for overtime pay for staff reviewing ISPs). Also, according to the Department of Behavioral Health and Developmental Services (DBHDS), noncompliance with this documentation requirement has resulted in citations during regular inspections. Therefore, a reduction in citations regarding timeliness of documentation of ISPs is expected.

The proposed amendment would not affect services received by those individuals with an ISP. Given the increased flexibility and reduction in citations for providers, and no adverse elements associated with the proposed grace periods, this action would likely produce a net benefit.

Businesses and Other Entities Affected. According to DBHDS, there are more than 100,000 individuals whose ISPs are reviewed on a regular basis by 1,100 licensed service providers most of which are likely small businesses.

Localities⁵ Affected.⁶ The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments should not have any effect on total employment.

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

Adverse Effect on Small Businesses:⁷ The proposed amendments do not adversely affect small businesses.

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²See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8341

³12VAC30-50-226

⁴12VAC30-60-143

⁵"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.

⁶§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁷Pursuant 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."

Agency's Response to Economic Impact Analysis: The agency concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

The proposed amendments allow case management providers a 30-day grace period and other mental health providers a 15-day grace period for documentation of an individualized services plan, aligning the regulation with Medicaid timeframe requirements.

12VAC35-105-675. Reassessments and ISP reviews.

A. Reassessments shall be completed at least annually and when there is a need based on the medical, psychiatric, or behavioral status of the individual.

B. The provider shall (i) update the ISP at least annually. The provider shall review and (ii) complete quarterly reviews of the ISP. The provider shall review the ISP at least every three months from the date of the implementation of the comprehensive ISP or whenever there is a revised assessment based upon the individual's changing needs or goals. These reviews shall evaluate the individual's progress toward meeting the plan's ISP's goals and objectives and the continued relevance of the ISP's objectives and strategies. The provider shall update the goals, objectives, and strategies contained in the ISP, if indicated, and implement any updates made. Documentation of the quarterly review shall be added to the individual's record no later than 15 calendar days from the date the review was due to be completed, with the exception of case management services. Case management quarterly reviews shall be added to the individual's record no later than 30 calendar days from the date the review was due.