Title of Regulation: 12VAC35-220. Certification Requirements for Early Intervention Professionals and Early Intervention Specialists (adding 12VAC35-220-10 through 12VAC35-220-100).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 17, 2011.

Effective Date: April 1, 2011.

Agency Contact: Karen Durst, Department of Behavioral Health and Developmental Services, 1220 Bank Street, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-9844, FAX (804) 371-7959, or email karen.durst@dbhds.virginia.gov.

Basis: The department has the legal authority to promulgate these regulations under § 2.2-5304 of the Code of Virginia and Item 315#1c of Chapter 781 of the 2009 Acts of Assembly. This legal authority is mandatory under Item 315#1c of Chapter 781 of the 2009 Acts of Assembly.

Purpose: These regulations provide specific requirements for certification of practitioners as early intervention professionals and early intervention specialists under Virginia's early intervention services system, as required by Pub. L. No.108-446 635(9) and the standards established in 42 CFR 431.51. Section 2.2-5304 of the Code of Virginia designates the department as the state lead agency responsible for implementing Virginia's early intervention services system and ensuring compliance with the applicable federal requirements. The goal of these regulations is to ensure the competence of early intervention service providers under the authority granted to the lead agency to protect the health, safety, and welfare of citizens. The regulations are also intended to provide the basis for the department to certify qualified practitioners of early intervention services so they may be enrolled as service providers and receive reimbursement under the Medicaid State Plan. The department consulted with the Department of Medical Assistance Services in developing these regulations.

Rationale for Using Fast Track Process: The emergency regulations (effective November 3, 2009, to May 5, 2011) provide practitioners the opportunity to qualify for Medicaid reimbursement and reflect federal and state requirements. More than 850 individuals have been certified under the emergency regulations. Only one issue with the emergency regulations has been identified and has been corrected in the proposed regulations. The Virginia Interagency Coordinating Council supports the proposed regulations. The influx of new graduates anticipated in the spring makes it imperative that permanent certification regulations be in place as soon as possible to allow these newly-qualified individuals to become certified as early intervention professionals.

Use of the fast track process will remove a potential barrier to the recruitment of newly qualified individuals who will be graduating from occupational therapy and physical therapy programs this spring and who might seek other employment opportunities. Because these critical healthcare positions are in short supply in Virginia and nationally, providers have a very difficult time recruiting qualified individuals.

Adoption of the proposed regulations will permit early intervention practitioners to continue their certification for reimbursement for services performed and will allow certain professionals qualified to practice in Virginia, but who cannot be certified under the emergency regulations, to qualify for certification.

Substance: The substantive provisions of this new regulation include:

• A definition of early intervention services and a requirement for specified providers of this service under the Medicaid State Plan to be certified by the department;

• Specific criteria for practitioners in various disciplines to be certified as early intervention professionals or early intervention specialists;

• Requirements for early intervention professionals who provide supervision to other early intervention personnel;

• Application process requirements for initial certification, recertification, and the restoration of an expired certification; and

• Processes for practitioners to seek reconsideration of a decision to deny certification.

Issues: This action poses no disadvantages to the public or the Commonwealth. These regulations establish a certification process for early intervention practitioners that ensures that individuals completing the certification process are appropriately and adequately prepared and trained to treat infant and toddlers with disabilities. The regulations establish the criteria for maintenance of the certification that allows practitioners to seek reimbursement for services rendered.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed regulations permanently establish certification requirements for Part C early intervention service providers which have been in effect since November 2009 under emergency regulations.

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

Estimated Economic Impact. The proposed regulations permanently establish certification requirements for Part C early intervention service providers which have been in effect since November 2009 under emergency regulations.

The Department of Behavioral Health and Developmental Services (DBHDS) oversees the provision of early intervention services through Part C of the Individuals with Disabilities Education Act. DBHDS contracts with local lead agencies to facilitate implementation of early intervention services statewide. The majority of local lead agencies are under the auspices of Community Services Boards, along with several universities, public health districts, local governments, and local education agencies.

Prior to these regulations, there was no verification process in place to assure that early intervention services were provided by rehabilitation therapists such as physical therapists, psychologists, speech-language pathologists etc. who had the specialized knowledge and experience required to provide these services. In ensuring that rehabilitation therapists are equipped with specialized knowledge related to infants and toddlers, birth to three, who have disabilities and/or developmental delays such as problems with walking or talking, the proposed regulations are expected to help better address the needs of these children. According to DBHDS, approximately 5,000 children are receiving early intervention services at any given month. In a given year, approximately 11,000 different individuals are estimated to receive these services.

One of the main economic effects of the proposed changes will be on the providers wishing to be certified as early intervention therapists. The proposed regulations require licensed traditional rehabilitation therapists to complete a training module covering early intervention principles and practices, including infant and toddler development, family-centered practice and multidisciplinary team practice for certification.

Initial training and testing for certification can be fulfilled by completing online modules that are free. Depending on the practitioner's early intervention knowledge, the training and testing may take up to 10 hours to complete. After initial certification, providers are required to take 30 hours of continuing education classes every three years for renewal of their certification. Thus, the traditional rehabilitation therapists wishing to continue to be certified as early intervention providers will have to absorb costs in terms of their time required to complete initial training and continuing education credits. Some of these costs may be offset by required continuing education for their professional licensure or certification. Additionally, DBHDS believes that most providers may be able to take the training and continuing education at no or minimal charge through courses offered by their professional associations, their employers' staff development program, or through training provided by DBHDS. Since November 2009, approximately 850 early intervention providers are certified under the emergency regulations.

Finally, the proposed regulations will create some administrative costs for the Part C program. According to DBHDS, $250,000 was paid to a contractor to develop an early intervention certification training module. In addition, one full time position is devoted to administering the certification activities.

Businesses and Entities Affected. The proposed regulations are expected to affect traditional rehabilitation therapists wishing to be certified as an early intervention services provider and children and families who are receiving these services. Currently, there are approximately 850 certified early intervention providers. There are also approximately 5,000 children receiving early intervention services at any given month and approximately 11,000 different individuals are estimated to receive these services in a given year.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

Projected Impact on Employment. Most if not all of the current providers are expected to obtain certification under the current regulations. Thus, no significant change in employment is expected.

Also, a contract to develop an early intervention certification training module and one full time position to administer the certification activities should be considered a positive impact on employment.

Effects on the Use and Value of Private Property. The proposed regulations do not have a direct effect on the use and value of private property. While compliance costs for certification may have had a negative impact on the asset value of providers, it is not expected to be significant. Also, the contract to develop an early intervention certification training module may have had a positive impact on the asset value of the contractor.

Small Businesses: Costs and Other Effects. Most of the early intervention services providers may be considered as small businesses. Thus, all of the costs and other effects discussed above apply to them.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no known alternative method that minimizes the adverse impact.

Real Estate Development Costs. The proposed regulations do not have any effect on 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 107 (09). 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.

Summary:

The proposed regulations permanently establish certification requirements, in effect since November 2009 as emergency regulations, for early intervention providers who may provide early intervention services and supports to children and their families under the federal Part C program of the Individuals with Disabilities Education Act of 2004. These changes were mandated by Item 315#1c of Chapter 781 of the 2009 Acts of Assembly to comply with the payor of last resort requirements of the Part C program. The proposed regulation allows professionals who are authorized to practice in Virginia while awaiting licensure to be certified as early intervention professionals.

CHAPTER 220
CERTIFICATION REQUIREMENTS FOR EARLY INTERVENTION PROFESSIONALS AND EARLY INTERVENTION SPECIALISTS

12VAC35-220-10. Authority and applicability.

A. Pursuant to § 2.2-5304 of the Code of Virginia, the Governor has designated the Department of Behavioral Health and Developmental Services as the state lead agency responsible for implementing the Virginia early intervention services system and ensuring compliance with federal requirements. These regulations are necessary to ensure the competence for early intervention services system practitioners under the authority granted to the lead agency.

B. Individual providers of early intervention services under the Medicaid State Plan must be certified by the Department of Behavioral Health and Developmental Services as qualified early intervention professionals or early intervention specialists. These regulations provide certification requirements for early intervention professionals and early intervention specialists.

12VAC35-220-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Commissioner" means the Commissioner of the Department of Behavioral Health and Developmental Services.

"Department" means the Department of Behavioral Health and Developmental Services. The Governor has designated the department as the state lead agency for Virginia's early intervention services system pursuant to § 2.2-5304 of the Code of Virginia.

"Discipline" or "profession" means a specific occupational category that may provide early intervention supports and services to eligible children under Part C of the Individuals with Disabilities Education Act and their families.

"Early intervention services" means services provided through Part C of the Individuals with Disabilities Education Act (20 USC § 1431 et seq.), as amended, designed to meet the developmental needs of each child and the needs of the family related to enhancing the child's development and provided to children from birth to age three who have (i) a 25% developmental delay in one or more areas of development, (ii) atypical development, or (iii) a diagnosed physical or mental condition that has a high probability of resulting in a developmental delay.

12VAC35-220-30. Certification required for the provision of early intervention services.

A. Individual practitioners of early intervention services, with the exception of physicians, audiologists, and registered dietitians, shall be certified by the department as early intervention professionals or early intervention specialists.

B. Certified early intervention professionals shall have expertise in a discipline trained to enhance the development of children with a disability, as evidenced by state licensure, including application for state licensure if the discipline authorizes practice in Virginia while the application is pending and the individual practitioner meets all applicable requirements for such practice; state endorsement; or certification by a national professional organization. Qualified personnel in the following disciplines may seek certification from the department as early intervention professionals:

1. Counselors:

a. Licensed professional counselors licensed by the Virginia Board of Counseling; and

b. School counselors (Pre K - 12) endorsed by the Virginia Board of Education;

2. Educators:

a. Educators licensed by the Virginia Board of Education with endorsement in Special Education - Early Childhood (Birth - 5);

b. Educators licensed by the Virginia Board of Education with endorsement in Early/Primary Education (Pre K - 3);

c. Educators licensed by the Virginia Board of Education with endorsement in Career and Technical Education - Family and Consumer Services;

d. Educators licensed by the Virginia Board of Education with endorsement in Special Education - Hearing Impairments (Pre K - 12);

e. Educators licensed by the Virginia Board of Education with endorsement in Special Education - Visual Impairments (Pre K - 12); and

f. Educators with a technical professional license issued by the Virginia Board of Education in Career and Technical Education - Family and Consumer Sciences;

3. Family and consumer science professionals certified through the American Association of Family and Consumer Sciences (AAFCS). Individuals certified by the AAFCS after June 30, 2009, shall meet certification requirements in family and consumer sciences - human development and family studies;

4. Marriage and family therapists licensed by the Virginia Board of Counseling;

5. Music therapists certified by the Certification Board for Music Therapists (CBMT);

6. Nurses:

a. Nurse practitioners licensed by the Virginia Board of Nursing; and

b. Registered nurses licensed by the Virginia Board of Nursing;

7. Occupational therapists licensed by the Virginia Board of Medicine;

8. Orientation and mobility specialists certified by the National Blindness Professional Certification Board as a National Orientation and Mobility Certificant (NOMC) or certified by the Academy for Certification of Vision Rehabilitation and Education Professionals (ACVREP) as a Certified Orientation and Mobility Specialist (COMS);

9. Physical therapists licensed by the Virginia Board of Physical Therapy;

10. Psychologists:

a. Applied psychologists licensed by the Virginia Board of Psychology;

b. Clinical psychologists licensed by the Virginia Board of Psychology; and

c. School psychologists licensed by the Virginia State Board of Education with an endorsement in school psychology;

11. Social workers:

a. Licensed clinical social workers licensed by the Virginia Board of Social Work; and

b. School social workers licensed by the Virginia State Board of Education with an endorsement as a school social worker;

12. Speech-language pathologists licensed by the Virginia Board of Audiology and Speech-Language Pathology; and

13. Therapeutic recreation specialists certified by the National Council on Therapeutic Recreation.

C. Certified early intervention specialists shall hold a minimum of a high school diploma or general equivalency diploma. Qualified personnel in the following disciplines may seek certification from the department as early intervention specialists:

1. Early intervention assistants whose qualifications have been approved by the Department of Behavioral Health and Developmental Services;

2. Licensed social workers licensed by the Virginia Board of Social Work;

3. Nurses:

a. Certified nurse aides certified by the Virginia Board of Nursing; and

b. Licensed practical nurses licensed by the Virginia Board of Nursing;

4. Occupational therapy assistants licensed by the Virginia Board of Medicine; and

5. Physical therapy assistants licensed by the Virginia Board of Physical Therapy.

D. Certified early intervention professionals and certified early intervention specialists shall demonstrate knowledge of early intervention principles and practices, including infant and toddler development, family-centered practice and multidisciplinary team practice, by successful completion of the early intervention principles and practices online training modules administered by the department. A score of at least 80% accuracy on each module's competency test shall be required for successful completion.

12VAC35-220-40. Supervision requirements.

A. Certified early intervention professionals providing supervision to other early intervention personnel shall complete the supervision training administered by the department. A score of at least 80% accuracy on the competency test shall be required for successful completion.

B. Certified early intervention specialists shall work under the supervision of a certified early intervention professional who has completed the required supervision training.

12VAC35-220-50. Initial certification and recertification processes.

A. Initial certification. To apply for initial certification as an early intervention professional or early intervention specialist, practitioners shall:

1. Obtain the designated early intervention certification application package from the department; and

2. Submit a completed and signed application package to the department with:

a. A signed assurance that the practitioner will comply with all federal and state early intervention requirements;

b. Documentation of the practitioner's professional certification, licensing, endorsement, or other qualification for the practice of his profession in the Commonwealth of Virginia; and

c. Documentation of the practitioner's successful completion of the early intervention principles and practices training administered by the department.

Any initial certification granted to individuals who have made application for state licensure and are awaiting licensure shall be valid only as long as that individual meets the requirements of their discipline to practice in Virginia.

B. Three-year recertification. At least 30 days prior to the expiration of the practitioner's certification period, certified early intervention professionals and certified early intervention specialists shall submit an application for recertification to the department. This application shall include:

1. Documentation of the practitioner's continuing professional certification, licensing, endorsement, or other qualification for the practice of his profession in the Commonwealth of Virginia, and

2. Documentation that the practitioner has successfully completed at least 30 hours of continuing learning activities during the three-year certification period. The continuing learning activities shall address one or more of the following: (i) evidenced-based practices in early intervention services; (ii) changes in federal or state law, regulations, or practice requirements; (iii) topics identified on a personal development plan; and (iv) training needed for new responsibilities relating to early intervention services. For each continuing learning activity, documentation shall include a description of the activity and sponsoring organization, if applicable; the date or dates of training; the number of hours; and a copy of a certificate or verification of attendance, if applicable.

12VAC35-220-60. Notice of decision on application for certification or recertification.

The department shall provide written notice of the decision on the application for certification or recertification within 30 days of the receipt of a completed application and required documentation.

12VAC35-220-70. Early intervention practitioner database.

Practitioners meeting the requirements for certification shall be included in the Infant and Toddler Connection of Virginia practitioner database maintained by the department. Practitioners are responsible for notifying the department of any change that may affect their certification status or their participation in Virginia's early intervention services system.

12VAC35-220-80. Restoration of expired certifications.

A. The department shall notify practitioners in writing of the date their certification as an early intervention professional or early intervention specialist expired and that the practitioner has been placed on inactive status in the practitioner database maintained by the department.

B. Practitioners whose certification as early intervention professionals or early intervention specialists has expired may apply to the department for restoration of their certifications.

C. The department may restore certification for practitioners as early intervention professionals or early intervention specialists under the following conditions:

1. The individual's certification has been lapsed for a period of less than one year; and

2. The certification:

a. Has lapsed because the practitioner failed to complete the three-year recertification requirements and the individual provides documentation to the department demonstrating (i) he is currently qualified for the practice of his discipline or profession in the Commonwealth of Virginia, and (ii) he has completed at least 30 hours of training addressing one or more of the topics specified in 12VAC35-220-50 B 2; or

b. Has lapsed because the practitioner's discipline or profession-specific qualification expired and the practitioner documents that he now holds a current license, certification, endorsement, or other qualification for the practice of his discipline or profession in the Commonwealth of Virginia.

D. The department shall provide written notice of the decision on reinstatement of the practitioner's certification within 30 days of the receipt of a completed request and required documentation.

E. Upon restoration of the practitioner's certification as an early intervention professional or early intervention specialist, the department shall reinstate the individual's active status in the practitioner database maintained by the department.

12VAC35-220-90. Termination of early intervention professional or early intervention specialist certification.

A. The department shall terminate a practitioner's certification as an early intervention professional or early intervention specialist under the following circumstances:

1. The practitioner's discipline-specific license, certification, or endorsement has been suspended or terminated;

2. The practitioner, after a year, fails to comply with the recertification requirements set forth in these regulations; or

3. The practitioner fails to comply with his signed assurance that he will comply with all federal and state early intervention requirements.

B. The department shall notify the practitioner in writing of the date of and reason for termination and that the practitioner has been removed from the practitioner database maintained by the department.

12VAC35-220-100. Reconsideration or decision to deny or terminate certification.

A. In the event that the practitioner disagrees with the determination to deny or terminate certification, he may request reconsideration from the commissioner. The request shall be made in writing within 30 days of the date of the written notice of denial or termination and may include relevant additional information or documentation to support the request.

B. The commissioner shall review the request for reconsideration and information presented and issue a decision in writing within 30 business days following receipt of the request. The decision of the commissioner shall be a final case decision that may be appealed under the Virginia Administrative Process Act.