Title of Regulation: 12VAC35-225. Requirements for Virginia Early Intervention System (amending 12VAC35-225-240, 12VAC35-225-260, 12VAC35-225-280, 12VAC35-225-420).

Statutory Authority: § 2.2-5304 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 12, 2021.

Effective Date: May 28, 2021.

Agency Contact: Catherine Hancock, Part C Administrator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218, telephone (804) 371-6592, FAX (804) 371-7959, TDD (804) 371-8977, or email catherine.hancock@dbhds.virginia.gov.

Basis: The department has the legal authority to promulgate these regulations under § 2.2-5304 of the Code of Virginia and in Item 322 H 1 and H 2 of Chapter 56 of the 2020Acts of Assembly, Special Session 1. In addition, these regulations implement Part C of the Individuals with Disabilities Education Act at 20 USC § 1435(a) and at 34 CFR Part 303 in Virginia.

Purpose: This action is part of the regular review cycle. Since the regulation was initially promulgated, it was determined that further clarity was needed to specify that the Medicaid appeals process is different from the Early Intervention Part C dispute resolution process. Additionally, since the Department of Medical Assistance Services included Early Intervention Part C services within managed care, procedures for provider enrollment with Medicaid and obtaining parental consent for billing Medicaid and the managed care entities were added. The intent of the regulatory revisions is to clarify processes and inform stakeholders of information necessary to provide services to infants, toddlers, and their families.

Rationale for Using Fast-Track Rulemaking Process: The regulatory changes are not expected to be controversial as the new language clarifies procedures currently in place. Beyond the new language, the regulation, in large part, implements federal code and regulations so there is limited ability to make amendments to the Virginia regulations.

Substance: Changes (i) add language to state that consent from the parent must be obtained for the Medicaid managed care entity in order to bill for services; (ii) add language that the parent has the right to withdraw consent to disclose the infant or toddler's personally identifiable information to Medicaid and the Medicaid managed care entity; (iii) clarify that providers must enroll with the Medicaid managed care entity; and (iv) add language that differentiates between the Medicaid appeals process and the Early Intervention Part C dispute resolution process.

Issues: The primary advantages of the changes to the public are that families, program providers, and other stakeholders will be clear about procedures for appeals with descriptions of both the Early Intervention Dispute Resolution process and the Medicaid appeals process. Since the Department of Medical Assistance Services recently included Early Intervention Part C services in managed, these changes help to ensure that the Commonwealth makes appropriate decisions regarding Part C funding while also receiving allowable appeals within the managed care framework.

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 amend 12VAC35-225 Requirements for Virginia Early Intervention System (regulation) in order to implement changes pursuant to a periodic review.¹ In particular, the board seeks to include managed care organizations (MCOs) in the current regulatory requirements for obtaining parental consent to bill Medicaid for Early Intervention Part C services and supports, clarify that Part C service providers enroll with MCOs as well as DMAS, and to clarify the Medicaid appeals process. The requirements for providers arise from MCO contracts and have been implemented by the Virginia Interagency Coordinating Council for Early Intervention Services.²

Background. Early Intervention Part C provides infants and toddlers (up to age three) who are found to have developmental delays with a wide range of services and supports based on the needs of the child and family.³ These services are broadly authorized by the Individuals with Disabilities Education Act, which was enacted by Congress in 1990 to ensure that children with disabilities are provided with free appropriate public education that is tailored to their individual needs.⁴ As part of Medicaid reform, the Department of Medical Assistance Services (DMAS) brought Part C services under managed care.⁵ As a result, DMAS reports that most children currently receiving Part C services are insured by MCOs that are contracted by DMAS to provide Medicaid coverage.

Subsequent to its periodic review of the regulation, the Board proposes to update the regulation to include references to MCOs in places that previously only referred to DMAS. Specifically, in section 240 Use of public benefits or public insurance, the Board seeks to clarify that parental consent regarding (disclosure of) the child's personal information would be required to bill the MCO or, if the child is not enrolled in managed care, to bill DMAS. Similarly, section 260 Written notification would be amended to clarify that parents must receive written notification regarding their right to withdraw consent for disclosure of their child's personally identifiable information to the MCO or, if the child is not enrolled in managed care, to DMAS.

Section 280 Provider billing for early intervention services would be amended to clarify that early intervention practitioners and case managers would have to enroll with the MCO as well as DMAS in order to receive reimbursement for Part C services. Since Part C services are already covered under managed care, most providers are likely already aware of this requirement. The proposed changes would conform the text of the regulation to current practice.

Lastly, the board also seeks to update section 420 Appeal to the Department of Medical Assistance Services to clarify that appeals to DMAS or MCOs are only applicable to Medicaid or FAMIS recipients seeking to contest service decisions. Other complaints regarding an early intervention provider's eligibility determination are covered under sections 380, 390 and 400, which remain unaffected by this regulatory action. In addition, section 420 would be changed to explicitly indicate that for individuals enrolled in a Medicaid MCO, the internal appeal process for the MCO must be exhausted or deemed exhausted before appealing to DMAS.

Estimated Benefits and Costs. The proposed amendments do not appear to change the costs to parents of children receiving Part C services, to providers of Part C services, or to the Commonwealth. To the extent that the proposed amendments serve to clarify the process for obtaining consent, the process for provider registration with Medicaid, or the Medicaid appeals process, the proposed changes would benefit parents as well as providers.

Businesses and Other Entities Affected. As mentioned above, families of children receiving Part C services as well as Part C service providers would be affected by the proposed amendments. The Department of Behavioral Health and Developmental Services contracts with 40 local lead agencies to facilitate the statewide implementation of early intervention services. These local agencies as well as their employees and contractors would be impacted by the proposed amendments, in that it would change the information they provide to the families they work with. However, the local agencies are unlikely to face any substantive new costs as a result.

Small Businesses⁶ Affected. Although some Part C service providers may be employed in a small business setting, the proposed amendments only serve to clarify the regulation and do not create any new costs.

Localities⁷ Affected.⁸ The proposed amendments do not introduce new costs for local governments and are unlikely to affect any locality in particular.

Projected Impact on Employment. The proposed amendments are unlikely to affect the overall number of employed Part C service providers.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use and value of private property. Real estate development costs are not affected.

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¹See https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=1884.

²See http://www.infantva.org/wkg-vicc.htm Part C service providers make up 20% of council membership.

³See http://www.infantva.org/ovw-WhatIsPartC.htm.

⁴See https://sites.ed.gov/idea/about-idea/. Part C of the act applies to infants and toddlers while part B applies to children in educational environments; hence the early intervention services covered by this regulation are collectively referred to as Part C services.

⁵2013 Acts of Assembly Chapter 806 (Budget Bill) Item 307.RRRR.4: https://budget.lis.virginia.gov/item/2013/1/.

⁶Pursuant 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.

⁷Locality 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.

⁸§ 2.2-4007.04 defines particularly affected as bearing disproportionate material impact.

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

Summary:

As a result of periodic review of the regulation, the amendments clarify the current Medicaid appeals process and the current requirements for obtaining parental consent to bill Medicaid managed care organizations for Early Intervention Part C services and supports.

12VAC35-225-240. Use of public benefits or public insurance.

A. Parents shall not be required to enroll in public benefits or public insurance programs as a condition of receiving early intervention services, and parental consent shall be required prior to using the public benefits and public insurance of a child or parent if that child or parent is not already enrolled in such a program.

B. Parental consent shall be obtained before the local lead agency or the early intervention service provider discloses, for billing purposes, a child's personally identifiable information to the child's assigned managed care organization, or if the child is not enrolled in managed care, to the Department of Medical Assistance Services.

C. In Virginia, use of a child's or parent's public benefits or public insurance to pay for early intervention services shall not:

1. Decrease available lifetime coverage or any other insured benefit for that child or parent under that program;

2. Result in the child's parents paying for services that would otherwise be covered by the public benefits or public insurance program;

3. Result in any increase in premiums or discontinuation of public benefits or public insurance for that child or his parents; or

4. Risk loss of eligibility for the child or that child's parents for home and community-based waivers based on aggregate health-related expenditures.

D. If the parent gives consent for use of his private insurance to pay for early intervention services for a child who is covered by private insurance and by either public benefits or public insurance, the parent shall be responsible for the costs associated with use of the private insurance, as specified in 12VAC35-225-250 E.

E. If the parent does not provide the consent to use or enroll in public benefits or public insurance or to disclose information to the child's assigned managed care organization, or if the child is not enrolled in managed care, to the Department of Medical Assistance Services for billing purposes, the local lead agency must still make available the early intervention services on the IFSP to which the parent has provided consent.

12VAC35-225-260. Written notification.

When obtaining parental consent for the provision of early intervention services or for use of public or private insurance or benefits, or both, the service coordinator shall ensure the parents receive written information on Virginia's system of payment policies, which includes the following:

1. Required notification to parents of children covered by Medicaid including:

a. Parental consent requirements in 12VAC35-225-240 B;

b. The cost protections in 12VAC35-225-240 C;

c. The local lead agency responsibility to offer the early intervention services to which the parent has provided consent even if the parent does not provide consent for use of public benefits or public insurance as specified in 12VAC35-225-240 E;

d. The parent's right to withdraw consent for disclosure, for billing purposes, of a child's personally identifiable information to the child's assigned managed care organization, or if the child is not enrolled in managed care, to the Department of Medical Assistance Services at any time; and

e. Categories of costs to parents as specified in 12VAC35-225-240 D;

2. Potential costs to the parent when their private insurance is used, which may include copayments, deductibles, premiums, or other long-term costs such as the loss of benefits because of annual or lifetime health insurance coverage caps under the insurance policy;

3. The payment system and schedule of sliding fees that may be charged to the parents for early intervention services;

4. The basis and amount of payments or fees;

5. Information on the determination of ability to pay and inability to pay, including when and how the determination is made;

6. Assurances regarding fees and service provision as specified in 12VAC35-225-230 A 1, A 3, A 4, and A 5;

7. The policy on failure to provide the required income information as specified in 12VAC35-225-230 A 6;

8. Policies regarding use of federal or state Part C funds to pay for costs such as insurance copayments or deductibles; and

9. Parent rights as specified in 12VAC35-225-230 C.

12VAC35-225-280. Provider billing for early intervention services.

A. In order to receive reimbursement from federal or state Part C funds as the payor of last resort, early intervention service providers shall:

1. Have a contractual relationship with the local early intervention system; and

2. Submit a contact log or contact notes to the local lead agency no later than the 21st of each month for all services provided in the previous month, including any service for which reimbursement is sought from Part C funds.

B. Early intervention service providers shall accept Medicaid reimbursement for medically necessary early intervention services as payment in full.

C. In order to bill Medicaid for early intervention services other than service coordination, the provider shall:

1. Be certified as an early intervention practitioner;

2. Enroll with the Department of Medical Assistance Services and Medicaid contracted managed care organizations as an early intervention provider;

3. Provide services to children who are determined eligible for early intervention services under Part C;

4. Provide covered services as listed on the child's IFSP and, with the exception of the assessment for service planning and IFSP meetings, services that are approved by a physician, physician's assistant, or nurse practitioner; and

5. Comply with all other applicable Department of Medical Assistance Services requirements.

D. In order to bill Medicaid for service coordination, the provider shall:

1. Be certified as an early intervention case manager;

2. Enroll with the Department of Medical Assistance Services and Medicaid contracted managed care organizations as an early intervention provider;

3. Deliver service coordination in accordance with a signed initial early intervention service coordination plan or a signed individualized family service plan (IFSP);

4. Provide at least one activity during the month being billed to the child, the family, service providers, or other organizations on behalf of the child or family in order to coordinate supports and services and assist the family in accessing needed resources and services;

5. Document the contact or communication completely and correctly in accordance with 12VAC35-225-180;

6. Make a phone, email, text, or face-to-face contact with the family at least one time every three calendar months, or document attempts of such contacts;

7. Ensure documented face-to-face interaction between the service coordinator and the family at the development of the initial IFSP and the annual IFSP along with documentation that the service coordinator observed the child during the calendar month that the IFSP meeting was held;

8. Submit the health status indicator questions to the child's physician every six months; and

9. Comply with all other applicable Department of Medical Assistance Services requirements.

E. Children who are dually enrolled in Virginia's early intervention system and in Medicaid or FAMIS shall receive service coordination under the early intervention targeted case management program.

12VAC35-225-420. Appeal to the Department of Medical Assistance Services.

A. In addition to the dispute resolution options described in this chapter, Medicaid or FAMIS recipients seeking to contest service decisions shall have the right to file an appeal with the Department of Medical Assistance Services when they disagree with certain actions. Actions that may be appealed include:

1. Disagreement about the child's eligibility for services;

2. The provision of early intervention services, including those listed on the IFSP; and

3. The frequency, length, and intensity of services in the IFSP.

B. To ensure this right to appeal, the service coordinator shall provide the family with written information on the appeals process, regardless of whether or not the family expresses agreement or disagreement, if the child is found ineligible; the local system is refusing to initiate a service the family is requesting or is refusing to provide a service at the frequency or length desired by the family; or a service is decreased or ended, unless the family requested the service be decreased or ended pursuant to federal and state Medicaid law. If the individual is enrolled in a Medicaid managed care organization or "MCO," the internal appeal process for the Medicaid MCO must be exhausted or deemed exhausted before appealing to the Department of Medical Assistance Services. Appeals to the Department of Medical Assistance Services are separate from the dispute resolution options available under this chapter and shall comply with applicable Department of Medical Assistance Services' regulations.

B. A notice of action meeting federal and state requirements must be issued to the individual explaining the basis for the action and the right to appeal.

C. Families shall follow all applicable Department of Medical Assistance Services requirements when filing an appeal.