Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weed Law (adding 2VAC5-317-10 through 2VAC5-317-100).

Statutory Authority: § 3.2-802 of the Code of Virginia.

Effective Date: January 29, 2015.

Agency Contact: Andres Alvarez, Director, Division of Consumer Protection, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 225-3821, FAX (804) 371-7479, TTY (800) 828-1120, or email andres.alvarez@vdacs.virginia.gov.

Summary:

The regulation (i) establishes a two-tier list of plants deemed by the Board of Agriculture and Consumer Services to be noxious weeds, (ii) prohibits the movement of noxious weeds or articles capable of transporting noxious weeds into or within the Commonwealth, (iii) identifies eradication activities for certain noxious weeds, and (iv) establishes the Noxious Weeds Advisory Committee.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

CHAPTER 317
REGULATIONS FOR THE ENFORCEMENT OF THE NOXIOUS WEEDS LAW

2VAC5-317-10. Definitions.

The following words and terms shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the Virginia Board of Agriculture and Consumer Services.

"Business day" means a day that is not a Saturday, Sunday, or legal holiday, or a day on which state government offices are closed.

"Certificate" means a document issued by an inspector or by a person operating in accordance with a compliance agreement to allow the movement of regulated articles to any destination.

"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services.

[ "Committee" means the Noxious Weeds Advisory Committee established pursuant to 2VAC5-317-100. ]

"Compliance agreement" means a written agreement between a person engaged in handling, receiving, or moving regulated articles and the Virginia Department of Agriculture and Consumer Services or the United States Department of Agriculture, or both, wherein the former agrees to fulfill the requirements of the compliance agreement and comply with the provisions of this chapter.

"Consignee" means any person to whom any regulated article is shipped for handling, sale, resale, or any other purpose.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Infested" or "infestation" means the presence of a listed noxious weed or the existence of circumstances that make it reasonable to believe that life stages of a listed noxious weed are present.

"Inspector" means an employee of the Virginia Department of Agriculture and Consumer Services or other person authorized by the Commissioner of the Virginia Department of Agriculture and Consumer Services to enforce the provisions of this chapter.

"Limited permit" means a document issued by an inspector to allow the movement of regulated articles to a specific destination.

"Listed noxious weed" means any plant listed in this chapter as either a Tier 1 or Tier 2 noxious weed.

"Move," "moved," or "movement" means shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.

"Noxious weed" means the term as defined in § 3.2-800 of the Code of Virginia.

"Noxious Weeds Law" means the statute set forth in [ Chapter 8 ( ] § 3.2-800 et seq. [ ) ] of [ Title 3.2 of ] the Code of Virginia.

"Person" means the term as defined in § 1-230 of the Code of Virginia.

"Regulated article" means any listed noxious weed or any article or means of conveyance known to be infested or determined by an inspector to present a risk of spreading a listed noxious weed.

"Tier 1 noxious weed" means any noxious weed that is not native to the Commonwealth that (i) has no known populations present in the Commonwealth or (ii) is not widely disseminated in the Commonwealth and for which successful eradication or suppression is likely.

"Tier 2 noxious weed" means any noxious weed that (i) is not native to the Commonwealth, (ii) is not widely disseminated in the Commonwealth, and (iii) for which successful suppression is feasible but eradication is unlikely.

"Waybill" means a document containing the details of a shipment of goods.

2VAC5-317-20. Tier 1 and Tier 2 noxious weeds.

A. The following plants are hereby declared Tier 1 noxious weeds:

1. Vitex rotundifolia, Beach vitex.

2. Salvinia molesta, Giant salvinia.

3. Solanum viarum, Tropical soda apple.

4. Heracleum mantegazzianum, Giant hogweed.

5. Oplismenus hirtellus spp. undulatifolius, Wavyleaf basketgrass.

B. The following plants are hereby declared Tier 2 noxious weeds:

1. Imperata cylindrica, Cogon grass. [ The cultivar Imperata cylindrica "Red Baron" (Japanese blood grass) is not subject to the provisions of this chapter. ]

2. Lythrum salicaria, Purple loosestrife.

3. Ipomoea aquatica, Water spinach.

2VAC5-317-30. Conditions governing the intrastate movement of regulated articles.

The movement of a regulated article is prohibited unless accompanied by a valid certificate or limited permit.

2VAC5-317-40. Issuance and cancellation of certificates and limited permits.

A. A certificate or a limited permit may be issued by an inspector for the movement of a regulated article into, within, or out of the Commonwealth when the regulated article meets the following three conditions:

1. The regulated article is to be moved:

a. Intrastate to a specified destination under conditions that specify the limited handling, utilization, processing, or treatment of the article when the inspector determines that such movement will not result in the spread of the noxious weed; or

b. By a state or federal agency, or person authorized by the department, for experimental or scientific purposes;

2. The regulated article is to be moved in compliance with all additional conditions deemed necessary under the Noxious Weeds Law to prevent the spread of the noxious weed; and

3. The regulated article is eligible for unrestricted movement under all other domestic plant quarantines and regulations applicable to the regulated article.

B. Any certificate or limited permit that has been issued or authorized may be withdrawn by the inspector orally or in writing if the inspector determines that the holder of the certificate or limited permit has not complied with all conditions for the use of the certificate or limited permit, or with any applicable compliance agreement. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal shall be confirmed in writing and communicated to the certificate or limited permit holder as promptly as circumstances allow.

2VAC5-317-50. Assembly and inspection of regulated articles.

A. Any person who desires to move a regulated article and who is required to have a limited permit for such movement shall apply for a limited permit as far in advance as practical but no fewer than five business days before the regulated article is to be moved.

B. The regulated article must be assembled at the place and in the manner the inspector designates as necessary to facilitate inspection and shall be safeguarded to prevent infestation.

2VAC5-317-60. Attachment and disposition of certificates and limited permits.

A. A certificate or limited permit required for the movement of a regulated article into, within, or out of the Commonwealth must be attached at all times during the intrastate movement to the outside of the container that contains the regulated article or to the regulated article itself. The requirements of this section may also be met by attaching the certificate or limited permit to the consignee's copy of the waybill, provided the regulated article is sufficiently described on the certificate or limited permit and on the waybill to facilitate the identification of the regulated article.

B. The certificate or limited permit for the intrastate movement of a regulated article must be furnished by the carrier to the consignee at the destination of the regulated article. A copy of the certificate or the limited permit must be retained by the sender of the regulated article at the place of shipment.

2VAC5-317-70. Inspection and disposal of regulated articles.

Upon presentation of official credentials, an inspector is authorized to stop and inspect and to seize, destroy, or otherwise dispose of or require disposal of regulated articles in accordance with the provisions of the Noxious Weeds Law.

2VAC5-317-80. Eradication and suppression activities for Tier 1 noxious weeds.

The commissioner may conduct eradication or suppression activities to prevent the dissemination of a Tier 1 noxious weed. Eradication or suppression activities may include, but are not limited to, the following: destruction, seizure, stop sale, stop delivery, treatment, or ordering the regulated article to be returned to its point of origin.

2VAC5-317-90. Nonliability of the department.

The department shall not be liable for costs incurred by third parties resulting from, or incidental to, inspections required under the provisions of this chapter.

2VAC5-317-100. Noxious Weeds Advisory Committee.

[ The commissioner shall convene an annual meeting of the Noxious Weeds Advisory Committee. The committee shall advise the commissioner on those plants that the commissioner, at his discretion, may present to the board for declaration or delisting as noxious weeds.

A. The commissioner shall establish a Noxious Weeds Advisory Committee for the purpose of assisting the department in the evaluation and risk-assessment of plants that may be declared noxious weeds in 2VAC5-317-20. The committee may also consider the delisting of plants that were previously declared noxious weeds.

B. The committee shall present recommendations to the commissioner regarding the listing or delisting of plants as noxious weeds. The committee shall consider the protection of Virginia's natural resources and the environment, as well as the economic impact on nurseries, landscapers, agricultural producers, and other affected industries in the formulation of its recommendations.

C. The commissioner shall convene a meeting of the committee at least once annually, and may convene additional meetings at his discretion. Department staff will coordinate the scheduling and logistics of the meetings, including the posting of meeting notices on the Commonwealth Calendar.

D. Committee members shall serve at the invitation of the commissioner. For every meeting of the committee, the commissioner shall invite representatives of Virginia's agricultural, horticultural, and environmental industries as well as representatives of Virginia's land grant universities and relevant executive branch agencies, to include but not be limited to:

1. A conservation representative or organization,

2. An agribusiness representative or organization,

3. A local government representative or organization,

4. Virginia Cooperative Extension,

5. Virginia Department of Conservation and Recreation,

6. Virginia Department of Forestry,

7. Virginia Department of Game and Inland Fisheries,

8. Virginia Department of Transportation,

9. A farming representative or organization,

10. A forage-based agriculture representative or organization,

11. A native plant conservation representative or organization,

12. A nursery and landscaping representative or organization,

13. Virginia Polytechnic Institute and State University, and

14. Virginia State University.

E. The commissioner may invite representatives of local government agencies from localities where a plant of concern has been found or from localities that could be impacted by the declaration of a plant as a noxious weed. The commissioner may invite representatives of other organizations not listed in subsection D of this section that may have a direct interest in the declaration of a plant as a noxious weed.

F. Prior to each meeting of the committee, the commissioner or his designee shall make timely notification to committee members of any plant that the department is considering for possible listing or delisting as a noxious weed. The notification will include the scientific data and rationale for such listing or delisting. The commissioner or his designee shall survey committee members to determine if any member has identified a plant that should be considered for possible listing or delisting as a noxious weed. Any committee member who has identified a plant that should be considered for possible listing or delisting as a noxious weed shall provide department staff with relevant scientific data and the rationale to support the listing or delisting of the plant. The commissioner or his designee will distribute the scientific data and rationale to other committee members for their review and consideration prior to the meeting of the committee.

G. The committee, by majority vote of members, may develop and present to the commissioner a list of plants recommended for listing or delisting as noxious weeds.

H. The commissioner shall consider the recommendations of the committee in his preparation of the list of plants that he presents to the board for listing or delisting as noxious weeds.

I. If a regulatory action to list or delist a noxious weed is under way, the commissioner may delay the pursuit of a new regulatory action to list or delist a new noxious weed until the current action is completed. ]

Title of Regulation: 4VAC15-20. Definitions and Miscellaneous: In General (amending 4VAC15-20-50).

Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502 of the Code of Virginia.

Effective Date: January 1, 2015.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The amendments (i) update the referenced year of the department's "List of Native and Naturalized Fauna of Virginia" and (ii) exempt from the definition of domestic animals those swine that are free-roaming or wild.

4VAC15-20-50. Definitions; "wild animal," "native animal," "naturalized animal," "nonnative (exotic) animal," and "domestic animal."

In accordance with § 29.1-100 of the Code of Virginia, the following terms shall have the meanings ascribed to them by this section when used in regulations of the board:

"Native animal" means those species and subspecies of animals naturally occurring in Virginia, as included in the department's 2012 2014 "List of Native and Naturalized Fauna of Virginia," with copies available in the Richmond and regional offices of the department.

"Naturalized animal" means those species and subspecies of animals not originally native to Virginia which that have established wild, self-sustaining populations, as included in the department's 2012 2014 "List of Native and Naturalized Fauna of Virginia," with copies available in the Richmond and regional offices of the department.

"Nonnative (exotic) animal" means those species and subspecies of animals not naturally occurring in Virginia, excluding domestic and naturalized species.

The following animals are defined as domestic animals:

Domestic dog (Canis familiaris), including wolf hybrids.

Domestic cat (Felis catus), including hybrids with wild felines.

Domestic horse (Equus caballus), including hybrids with Equus asinus.

Domestic ass, burro, and donkey (Equus asinus).

Domestic cattle (Bos taurus and Bos indicus).

Domestic sheep (Ovis aries) including hybrids with wild sheep.

Domestic goat (Capra hircus).

Domestic swine (Sus scrofa domestica), including pot-bellied pig excluding any swine that are free-roaming or wild.

Llama (Lama glama).

Alpaca (Lama pacos).

Camels (Camelus bactrianus and Camelus dromedarius).

Domesticated races of hamsters (Mesocricetus spp.).

Domesticated races of mink (Mustela vison) where adults are heavier than 1.15 kilograms or their coat color can be distinguished from wild mink.

Domesticated races of red fox (Vulpes) where their coat color can be distinguished from wild red fox.

Domesticated races of guinea pigs (Cavia porcellus).

Domesticated races of gerbils (Meriones unguiculatus).

Domesticated races of chinchillas (Chinchilla laniger).

Domesticated races of rats (Rattus norvegicus and Rattus rattus).

Domesticated races of mice (Mus musculus).

Domesticated races of European rabbit (Oryctolagus cuniculus).

Domesticated races of chickens (Gallus).

Domesticated races of turkeys (Meleagris gallopavo).

Domesticated races of ducks and geese distinguishable morphologically from wild birds.

Feral pigeons (Columba domestica and Columba livia) and domesticated races of pigeons.

Domesticated races of guinea fowl (Numida meleagris).

Domesticated races of peafowl (Pavo cristatus).

"Wild animal" means any member of the animal kingdom, except domestic animals, including without limitation any native, naturalized, or nonnative (exotic) mammal, fish, bird, amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any hybrid of them, except as otherwise specified in regulations of the board, or part, product, egg, or offspring of them, or the dead body or parts of them.

Title of Regulation: 4VAC15-30. Definitions and Miscellaneous: Importation, Possession, Sale, Etc., of Animals (amending 4VAC15-30-10).

Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502 of the Code of Virginia.

Effective Date: January 1, 2015.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The amendment prohibits marking fish with fish tagging equipment for personal information or research by prohibiting the conducting of research on any wild animal unless otherwise specifically permitted by law or regulation.

4VAC15-30-10. Possession, importation, sale, etc., of wild animals.

Under the authority of §§ 29.1-103 and 29.1-521 of the Code of Virginia it shall be unlawful to take, possess, conduct research, import, cause to be imported, export, cause to be exported, buy, sell, offer for sale, or liberate within the Commonwealth any wild animal unless otherwise specifically permitted by law or regulation. Unless otherwise stated, for the purposes of identifying species regulated by the board, when both the scientific and common names are listed, the scientific reference to genus and species will take precedence over common names.

Title of Regulation: 4VAC15-320. Fish: Fishing Generally (amending 4VAC15-320-25, 4VAC15-320-60, 4VAC15-320-120).

Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502 of the Code of Virginia.

Effective Date: January 1, 2015.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The amendments (i) adjust or establish the freshwater fishing creel (i.e., possession) and length limits that are allowable in various waters of the state; (ii) add Clinch Mountain and Crooked Creek fee fishing areas to the list of those areas in which children 12 years and younger may fish without a permit if under the direct supervision of a permitted adult, with the daily creel limit for both adult and child or children combined to be six trout; and (iii) prohibit stocking blue catfish and their hybrids into privately owned ponds and lakes.

4VAC15-320-25. Creel and length limits.

The creel limits (including live possession) and the length limits for the various species of fish shall be as follows, unless otherwise excepted by posted rules at department-owned or department-controlled waters (see 4VAC15-320-100 D).

Title of Regulation: 4VAC15-330. Fish: Trout Fishing (amending 4VAC15-330-150).

Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502 of the Code of Virginia.

Effective Date: January 1, 2015.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The amendments add certain sections of streams to the list of catch and release trout stream waters in which it is lawful to fish for trout using only artificial lures with single hooks year-round.

4VAC15-330-150. Special provision applicable to Stewarts Creek Trout Management Area; certain portions of the Dan, Rapidan, South Fork Holston and Staunton rivers, the Brumley Creek, East Fork of Chestnut Creek, Little Stony Creek, Little Tumbling Creek, North Creek, Roaring Fork, North Creek, Spring Run, Stony Creek, Venrick Run, Brumley Creek, and their tributaries.

It shall be lawful year around to fish for trout using only artificial lures with single hooks within the:

1. The Stewarts Creek Trout Management Area in Carroll County, in the.

2. The Rapidan and Staunton rivers and their tributaries upstream from a sign at the Lower Shenandoah National Park boundary in Madison County, in the.

3. The Dan River and its tributaries between the Townes Dam and the Pinnacles Hydroelectric Project powerhouse in Patrick County, in the.

4. The East Fork of Chestnut Creek (Farmer's Creek) and its tributaries upstream from the Blue Ridge Parkway in Grayson and Carroll Counties, in.

5. Roaring Fork and its tributaries upstream from the southwest boundary of Beartown Wilderness Area in Tazewell County and in that.

6. That section of the South Fork Holston River and its tributaries from the concrete dam at Buller Fish Culture Station downstream to the lower boundary of the Buller Fish Culture Station in Smyth County, and in.

7. North Creek and its tributaries upstream from a sign at the George Washington National Forest North Creek Campground in Botetourt County, in.

8. Spring Run from it confluence with Cowpasture River upstream to a posted sign at the discharge for Coursey Springs Hatchery in Bath County, in.

9. Venrick Run and its tributaries within the Big Survey Wildlife Management Area and Town of Wytheville property in Wythe County, and in.

10. Brumley Creek and its tributaries from the Hidden Valley Wildlife Management Area boundary upstream to the Hidden Valley Lake Dam in Washington County.

11. Stony Creek (Mountain Fork) and its tributaries within the Jefferson National Forest in Wise and Scott Counties from the outlet of High Knob Lake downstream to the confluence of Chimney Rock Fork and Stony Creek.

12. Little Stony Creek and its tributaries within the Jefferson National Forest in Scott County from the Falls of Little Stony Creek downstream to a posted sign at the Hanging Rock Recreation Area.

13. Little Tumbling Creek and its tributaries within the Clinch Mountain Wildlife Management Area in Smyth and Tazewell Counties downstream to the concrete bridge.

All trout caught in these waters must be immediately returned to the water. No trout or bait may be in possession at any time in these areas.

Title of Regulation: 4VAC15-340. Fish: Seines and Nets (amending 4VAC15-340-40, 4VAC15-340-60).

Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502 of the Code of Virginia.

Effective Date: January 1, 2015.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The amendments prohibit the use of seines, traps, and nets in certain waters and replace the obsolete nomenclature "game wardens" with "conservation police officers."

4VAC15-340-40. Dip nets; generally.

A. Authorization to take fish with dip nets. A county dip net permit shall authorize the holder to take shad, herring, mullet, and suckers (daily creel (possession) limits for shad and herring are found in 4VAC15-320-25, there is no limit for mullet, and subsection D of this section provides limits for suckers), in the county named on the face of the permit with a dip net in inland waters, except where otherwise prohibited by local legislation or by the sections appearing in this chapter.

B. Persons required to have permit; inspection by game wardens conservation police officers. A dip net permit, or valid fishing license, shall be required for all persons using or assisting in the use of a dip net and permits, or licenses, shall be carried at all times while using such nets and shall be subject to inspection by game wardens conservation police officers.

C. Release of certain fish netted. All fish, except shad, herring, mullet, suckers and carp, when taken with a dip net shall be returned to the water alive with as little injury as possible.

D. Special provisions applicable only to suckers. The following special provisions shall apply only to the taking of suckers, with a dip net:

1. Not more than 20 may be taken by any person in one day;

2. The open season for taking same with a dip net shall be from February 15 through May 15, both dates inclusive; and

3. Dip nets for taking such fish shall not be more than six feet square.

4VAC15-340-60. Seines, traps, and nets prohibited in certain areas.

A. It shall be unlawful to use seines and nets of any kind for the taking of fish from the public waters of the Roanoke (Staunton) and Dan Rivers in Campbell, Charlotte, Halifax, and Pittsylvania Counties, and in the City of Danville; provided, however, this section shall not be construed to prohibit the use of hand-landing nets for the landing of fish legally hooked or the taking of fish from these waters pursuant to the provisions of 4VAC15-360.

B. In Lick Creek and tributaries in Smyth and Bland Counties, in Bear Creek and Hungry Mother Creek above Hungry Mother Lake in Smyth County, and in Laurel Creek and tributaries upstream of Highway 16 bridge in Tazewell and Bland Counties, in Susong Branch and Mumpower Creek in Washington County and the City of Bristol, and in Timbertree Branch in Scott County, it shall be unlawful to use seines, nets, or traps; provided, however, this section shall not be construed to prohibit the use of hand-landing nets for the landing of fish legally hooked.

Title of Regulation: 4VAC15-350. Fish: Gigs, Grab Hooks, Trotlines, Snares, Etc (amending 4VAC15-350-60).

Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502 of the Code of Virginia.

Effective Date: January 1, 2015.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The amendments (i) require removal of fishing lines from trotlines, juglines, and set poles when not in use and (ii) clarify that snapping turtles are the only type of turtles that may be taken with these methods.

4VAC15-350-60. Trotlines, juglines, or set poles.

A. Generally. Except as otherwise provided by local legislation and by subsections B and C of this section, and except on waters stocked with trout and within 600 feet of any dam, it shall be lawful to use trotlines, juglines (single hook, including one treble hook, and line attached to a float), or set poles for the purpose of taking nongame fish (daily creel (possession) and length limits for nongame fish are found in 4VAC15-320-25) and snapping turtles (limits for snapping turtles are found in 4VAC15-360-10), provided that no live bait is used. Notwithstanding the provisions of this section, live bait other than game fish may be used on trotlines to take catfish in the Clinch River in the Counties of Russell, Scott, and Wise. Any person setting or in possession of a trotline, jugline, or set pole shall have it clearly marked by permanent means with his name, address, and telephone number, and is required to check all lines at least once each day, and remove all fish and animals caught, and remove all lines when not in use. This requirement shall not apply to landowners on private ponds, nor to a bona fide tenant or lessee on private ponds within the bounds of land rented or leased, nor to anyone transporting any such device from its place of purchase.

B. Quantico Marine Reservation. It shall be unlawful to fish with trotlines in any waters within the confines of Quantico Marine Reservation.

C. Additional jugline requirements. Jugline sets (except as exempt under subsection A of this section) shall be restricted to 20 per angler and must be attended (within sight) by anglers at all times. Also, in addition to being labeled with the angler's name, address, and telephone number, jugs shall also be labeled with a reflective marker that encircles the jugs to allow for visibility at night.

Title of Regulation: 4VAC15-360. Fish: Aquatic Invertebrates, Amphibians, Reptiles, and Nongame Fish (amending 4VAC15-360-10).

Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502 of the Code of Virginia.

Effective Date: January 1, 2015.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The amendments establish a recreational harvest season for snapping turtles that coincides with the commercial harvest season of June 1 through September 30.

4VAC15-360-10. Taking aquatic invertebrates, amphibians, reptiles, and nongame fish for private use.

A. Possession limits. Except as otherwise provided for in § 29.1-418 of the Code of Virginia, 4VAC15-20-130, subdivision 8 of 4VAC15-320-40 and the sections of this chapter, it shall be lawful to capture and possess live for private use and not for sale no more than five individuals of any single native or naturalized (as defined in 4VAC15-20-50) species of amphibian and reptile and 20 individuals of any single native or naturalized (as defined in 4VAC15-20-50) species of aquatic invertebrate and nongame fish unless specifically listed below:

1. The following species may be taken in unlimited numbers from inland waters statewide: carp, bowfin, longnose gar, mullet, yellow bullhead, brown bullhead, black bullhead, flat bullhead, snail bullhead, white sucker, northern hogsucker, gizzard shad, threadfin shad, blueback herring (see 4VAC15-320-25 for anadromous blueback herring limits), white perch, yellow perch, alewife (see 4VAC15-320-25 for anadromous alewife limits), stoneroller (hornyhead), fathead minnow, golden shiner, goldfish, and Asian clams.

2. See 4VAC15-320-25 for American shad, hickory shad, channel catfish, white catfish, flathead catfish, and blue catfish limits.

3. For the purpose of this chapter, "fish bait" shall be defined as native or naturalized species of minnows and chubs (Cyprinidae), salamanders (each under six inches in total length), crayfish, and hellgrammites. The possession limit for taking "fish bait" shall be 50 individuals in aggregate, unless said person has purchased "fish bait" and has a receipt specifying the number of individuals purchased by species, except salamanders and crayfish which cannot be sold pursuant to the provisions of 4VAC15-360-60 and 4VAC15-360-70. However, stonerollers (hornyheads), fathead minnows, golden shiners, and goldfish may be taken and possessed in unlimited numbers as provided for in subdivision 1 of this subsection.

4. The daily limit for bullfrogs shall be 15 and for snapping turtles shall be 5. Snapping turtles shall only be taken from June 1st to September 30th. Bullfrogs and snapping turtles may not be taken from the banks or waters of designated stocked trout waters.

5. The following species may not be taken in any number for private use: candy darter, eastern hellbender, diamondback terrapin, and spotted turtle.

6. Native amphibians and reptiles, as defined in 4VAC15-20-50, that are captured within the Commonwealth and possessed live for private use and not for sale may be liberated under the following conditions:

a. Period of captivity does not exceed 30 days;

b. Animals must be liberated at the site of capture;

c. Animals must have been housed separately from other wild-caught and domestic animals; and

d. Animals that demonstrate symptoms of disease or illness or that have sustained injury during their captivity may not be released.

B. Methods of taking species in subsection A. Except as otherwise provided for in the Code of Virginia, 4VAC15-20-130, 4VAC15-320-40, and other regulations of the board, and except in any waters where the use of nets is prohibited, the species listed in subsection A may only be taken by hand, hook and line, with a seine not exceeding four feet in depth by 10 feet in length, an umbrella type net not exceeding five by five feet square, small minnow traps with throat openings no larger than one inch in diameter, cast nets, and hand-held bow nets with diameter not to exceed 20 inches and handle length not to exceed eight feet (such cast net and hand-held bow nets when so used shall not be deemed dip nets under the provisions of § 29.1-416 of the Code of Virginia). Gizzard shad and white perch may also be taken from below the fall line in all tidal rivers of the Chesapeake Bay using a gill net in accordance with Virginia Marine Resources Commission recreational fishing regulations. Bullfrogs may also be taken by gigging or bow and arrow and, from private waters, by firearms no larger than .22 caliber rimfire. Snapping turtles may be taken for personal use with hoop nets not exceeding six feet in length with a throat opening not exceeding 36 inches.

C. Areas restricted from taking mollusks. Except as provided for in §§ 29.1-418 and 29.1-568 of the Code of Virginia, it shall be unlawful to take the spiny riversnail (Io fluvialis) in the Tennessee drainage in Virginia (Clinch, Powell and the North, South and Middle Forks of the Holston Rivers and tributaries). It shall be unlawful to take mussels from any inland waters of the Commonwealth.

D. Areas restricted from taking salamanders. Except as provided for in §§ 29.1-418 and 29.1-568 of the Code of Virginia, it shall be unlawful to take salamanders in Grayson Highlands State Park and on National Forest lands in the Jefferson National Forest in those portions of Grayson, Smyth and Washington Counties bounded on the east by State Route 16, on the north by State Route 603 and on the south and west by U.S. Route 58.

Title of Regulation: 4VAC20-620. Pertaining to Summer Flounder (amending 4VAC20-620-30, 4VAC20-620-40).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: December 10, 2014.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

This action establishes a 20-day consecutive landing period, beginning December 10, 2014, for any legally licensed summer flounder endorsement licensee's landing summer flounder harvested outside of Virginia waters.

4VAC20-620-30. Commercial harvest quota and allowable landings.

A. During each calendar year, allowable commercial landings of Summer Flounder shall be limited to a quota in total pounds calculated pursuant to the joint Mid-Atlantic Fishery Management Council/Atlantic States Marine Fisheries Commission Summer Flounder Fishery Management Plan, as approved by the National Marine Fisheries Service on August 6, 1992 (50 CFR Part 625); and shall be distributed as described in subsections B through G of this section.

B. The commercial harvest of Summer Flounder from Virginia tidal waters for each calendar year shall be limited to 300,000 pounds of the annual quota described in subsection A of this section. Of this amount, 142,114 pounds shall be set aside for Chesapeake Bay-wide harvest.

C. From the first Monday in January through the day preceding the second Monday in November 30 the allowable landings of Summer Flounder harvested outside of Virginia shall be limited to an amount of pounds equal to 70.7% of the quota described in subsection A of this section after deducting the amount specified in subsection B of this section.

D. From the second Monday in November December 1 through December 31, allowable landings of Summer Flounder harvested outside of Virginia shall be limited to an amount of pounds equal to 29.3% of the quota, as described in subsection A of this section, after deducting the amount specified in subsection B of this section, and as may be further modified by subsection E.

E. Should landings from the first Monday in January through the day preceding the second Monday in November 30 exceed or fall short of 70.7% of the quota described in subsection A of this section, any such excess shall be deducted from allowable landings described in subsection D of this section, and any such shortage shall be added to the allowable landings as described in subsection D of this section. Should the commercial harvest specified in subsection B of this section be projected as less than 300,000 pounds, any such shortage shall be added to the allowable landings described in subsection D of this section.

F. The Marine Resources Commission will give timely notice to the industry of the calculated poundages and any adjustments to any allowable landings described in subsections C and D of this section. It shall be unlawful for any person to harvest or to land Summer Flounder for commercial purposes after the commercial harvest or any allowable landings as described in this section have been attained and announced as such. If any person lands Summer Flounder after the commercial harvest or any allowable landing have been attained and announced as such, the entire amount of Summer Flounder in that person's possession shall be confiscated.

G. It shall be unlawful for any buyer of seafood to receive any Summer Flounder after any commercial harvest or landing quota as described in this section has been attained and announced as such.

4VAC20-620-40. Commercial vessel possession and landing limitations.

A. It shall be unlawful for any person harvesting Summer Flounder outside of Virginia's waters to do any of the following, except as described in subsections B, C, and D of this section:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 10% by weight of Atlantic croaker or the combined landings, on board a vessel, of black sea bass, scup, squid, scallops and Atlantic mackerel.

2. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 1,500 pounds landed in combination with Atlantic croaker.

3. Fail to sell the vessel's entire harvest of all species at the point of landing.

B. From the second Wednesday in March through the day preceding the second Monday in November 30, or until it has been projected and announced that 85% of the allowable landings have been taken, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to do any of the following:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of the combined total of the Virginia landing limit described in subdivision 3 of this subsection and the amount of the legal North Carolina landing limit or trip limit.

2. Land Summer Flounder in Virginia for commercial purposes more than twice during each consecutive 20-day period, with the first 20-day period beginning on the second Wednesday in March.

3. Land in Virginia more than 12,500 pounds of Summer Flounder during each consecutive 20-day period, with the first 20-day period beginning on the second Wednesday in March.

4. Land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period.

C. From the second Monday in November December 1 through December 31 of each year, or until it has been projected and announced that 85% of the allowable landings have been taken, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to do any of the following:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of the combined total of the Virginia landing limit described in subdivision 3 of this subsection and the amount of the legal North Carolina landing limit or trip limit.

2. Land Summer Flounder in Virginia for commercial purposes more than twice during each consecutive 15-day 20-day period, with the first 15-day 20-day period beginning on the second Monday in November December 1.

3. Land in Virginia more than a total of 10,000 pounds of Summer Flounder during each consecutive 15-day 20-day period, with the first 15-day 20-day period beginning on the second Monday in November December 1.

4. Land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period.

D. From January 1 through December 31 of each year, any boat or vessel issued a valid federal Summer Flounder moratorium permit and owned and operated by a legal Virginia Commercial Hook-and-Line Licensee that possesses a Restricted Summer Flounder Endorsement shall be restricted to a possession and landing limit of 200 pounds of Summer Flounder, except as described in 4VAC20-620-30 F.

E. Upon request by a marine police officer, the seafood buyer or processor shall offload and accurately determine the total weight of all Summer Flounder aboard any vessel landing Summer Flounder in Virginia.

F. Any possession limit described in this section shall be determined by the weight in pounds of Summer Flounder as customarily packed, boxed and weighed by the seafood buyer or processor. The weight of any Summer Flounder in pounds found in excess of any possession limit described in this section shall be prima facie evidence of violation of this chapter. Persons in possession of Summer Flounder aboard any vessel in excess of the possession limit shall be in violation of this chapter unless that vessel has requested and been granted safe harbor. Any buyer or processor offloading or accepting any quantity of Summer Flounder from any vessel in excess of the possession limit shall be in violation of this chapter, except as described by subsection I of this section. A buyer or processor may accept or buy Summer Flounder from a vessel that has secured safe harbor, provided that vessel has satisfied the requirements described in subsection I of this section.

G. If a person violates the possession limits described in this section, the entire amount of Summer Flounder in that person's possession shall be confiscated. Any confiscated Summer Flounder shall be considered as a removal from the appropriate commercial harvest or landings quota. Upon confiscation, the marine police officer shall inventory the confiscated Summer Flounder and, at a minimum, secure two bids for purchase of the confiscated Summer Flounder from approved and licensed seafood buyers. The confiscated fish will be sold to the highest bidder and all funds derived from such sale shall be deposited for the Commonwealth pending court resolution of the charge of violating the possession limits established by this chapter. All of the collected funds will be returned to the accused upon a finding of innocence or forfeited to the Commonwealth upon a finding of guilty.

H. It shall be unlawful for a licensed seafood buyer or federally permitted seafood buyer to fail to contact the Marine Resources Commission Operation Station prior to a vessel offloading Summer Flounder harvested outside of Virginia. The buyer shall provide to the Marine Resources Commission the name of the vessel, its captain, an estimate of the amount in pounds of Summer Flounder on board that vessel, and the anticipated or approximate offloading time. Once offloading of any vessel is complete and the weight of the landed Summer Flounder has been determined, the buyer shall contact the Marine Resources Commission Operations Station and report the vessel name and corresponding weight of Summer Flounder landed. It shall be unlawful for any person to offload from a boat or vessel for commercial purposes any Summer Flounder during the period of 9 p.m. to 7 a.m.

I. Any boat or vessel that has entered Virginia waters for safe harbor shall only offload Summer Flounder when the state that licenses that vessel requests to transfer quota to Virginia, in the amount that corresponds to that vessel's possession limit, and the commissioner agrees to accept that transfer of quota.

J. After any commercial harvest or landing quota as described in 4VAC20-620-30 has been attained and announced as such, any boat or vessel possessing Summer Flounder on board may enter Virginia waters for safe harbor but shall contact the Marine Resources Commission Operation Center in advance of such entry into Virginia waters.

K. It shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to possess aboard any vessel, in Virginia, any amount of Summer Flounder, once it has been projected and announced that 100% of the quota described in 4VAC20-620-30 A has been taken.

Title of Regulation: 6VAC35-51. Standards for Interim Regulation of Children's Residential Facilities (repealing 6VAC35-51-10 through 6VAC35-51-1090).

Statutory Authority: §§ 16.1-309.9, 66-10, and 66-24 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 28, 2015.

Effective Date: February 13, 2015.

Agency Contact: Barbara Peterson-Wilson, Regulatory and Policy Coordinator, Department of Juvenile Justice, 600 East Main Street, 20th Floor, P.O. Box 1110, Richmond, VA 23219, telephone (804) 588-3902, FAX (804) 371-6490, or email barbara.peterson-wilson@djj.virginia.gov.

Basis: Section 66-4 of the Code of Virginia creates the Board of Juvenile Justice while § 66-10 of the Code of Virginia states that the board shall have the power and duty to promulgate such regulations as may be necessary to carry out the provisions of Title 66 of the Code of Virginia and the other laws of the Commonwealth. Section 66-24 of the Code of Virginia requires the board to promulgate regulations for licensure or certification of community group homes or other residential facilities that contract with or are rented for the care of juveniles in direct state care. The board's regulations shall address the services required to be provided in such facilities as it may deem appropriate to ensure the welfare and safety of the juveniles. In addition, the board's regulations shall include, but need not be limited to (i) specifications for the structure and accommodations of such facilities according to the needs of the juveniles to be placed in the home or facility; (ii) rules concerning allowable activities, local government- and group home- or residential care facility-imposed curfews, and study, recreational, and bedtime hours; and (iii) a requirement that each home or facility have a community liaison who shall be responsible for facilitating cooperative relationships with the neighbors, the school system, local law enforcement, local government officials, and the community at large.

Purpose: The Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), the Regulation Governing Juvenile Correctional Centers (6VAC35-71), and the Regulation Governing Juvenile Secure Detention Centers (6VAC35-101) have been approved and finalized through the regulatory process and became effective on January 1, 2014. Each of the new residential regulations contains a section titled "Previous regulations terminated" (6VAC35-41-30, 6VAC35-71-20, and 6VAC35-101-30) stating that 6VAC35-51 is replaced by the applicable new residential regulation. As such, 6VAC35-51 does not have any legal or operational effect. Each of these regulations contains language that is specific to the type of facility. The Standards for the Interim Regulation of Children's Residential Facilities contained language that addressed juvenile residential facilities generally and is no longer necessary.

Rationale for Using Fast-Track Process: The Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), the Regulation Governing Juvenile Correctional Centers (6VAC35-71), and the Regulation Governing Juvenile Secure Detention Centers (6VAC35-101) became effective on January 1, 2014. Each of these regulations contains the following provision:

"This chapter replaces the Standards for the Interim Regulation of Children's Residential Facilities, (6VAC35-51), and the Standards for Juvenile Residential Facilities, (6VAC35-140), for the regulation of all [named type of facility] as defined herein. The Standards for the Interim Regulation of Children's Residential Facilities and the Standards for Juvenile Residential Facilities remain in effect for [named other types of facilities not regulated by the specific chapter], regulated by the board, until such time as the board adopts new regulations related thereto."

The Standards for the Interim Regulation of Children's Residential Facilities remained in effect for the juvenile group homes, juvenile secure detention centers, and juvenile correctional centers regulated by the board until January 1, 2014, when the new regulations become effective. Upon the regulations' effective date, the three new regulations replaced the Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51). As such, 6VAC35-51 does not have any legal or operational effect.

It is anticipated that the repeal of 6VAC35-51 will be noncontroversial as it has been superseded by new residential regulations.

Substance: This regulatory action does not propose any new substantive provisions or substantive changes. The Standards for the Interim Regulation of Children's Residential Facilities, 6VAC35-51, will be repealed as new residential regulations have become effective and supersede 6VAC35-51.

Issues: Prior to January 1, 2014, when the Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), the Regulation Governing Juvenile Correctional Centers (6VAC35-71), and the Regulation Governing Juvenile Secure Detention Centers (6VAC35-101) became effective, facilities regulated by the board were governed by both the Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51) and the Standards for Juvenile Residential Facilities (6VAC35-140), unless specifically exempted.

6VAC35-51 and 6VAC35-140 were superseded by provisions in 6VAC35-41, 6VAC35-71, and 6VAC35-101. The facilities formerly regulated by the provisions in 6VAC35-51 and 6VAC35-140 are now governed by 6VAC35-41, 6VAC35-71, and 6VAC35-101, as applicable. Retaining 6VAC35-51 and 6VAC35-140 as active regulatory chapters could cause confusion for the regulated entities.

Repealing the Standards for the Interim Regulation of Children's Residential Facilities benefits the locally and regionally operated juvenile secure detention centers and locally operated juvenile group homes and halfway houses and state operated juvenile correctional centers. The new residential regulations govern specific types of juvenile facilities providing greater clarity of the regulatory requirements. In repealing the superseded regulatory chapter, confusion as to which active regulatory chapters are applicable to the facilities will be avoided.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (Board) proposes to repeal its regulation that, until recently, governed how children's residential facilities were run (standards contained in 6VAC35-51).

Result of Analysis. Benefits likely outweigh costs for this proposed regulatory change.

Estimated Economic Impact. The Board of Juvenile Justice (Board) proposes to repeal its regulation that, until recently, governed how children's residential facilities were run (standards contained in 6VAC35-51). The Board has replaced these standards with a Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), a Regulation Governing Juvenile Correctional Centers (6VAC35-71) and a Regulation Governing Juvenile Secure Detention Centers (6VAC35-101), all of which became effective January 1, 2014.

Because the standards in 6VAC35-51 are now obsolete, no affected entity is likely to incur costs on account of this repeal. Affected entities are likely to benefit from this action as it will remove a potential source of confusion from the Virginia Administrative Code.

Businesses and Entities Affected. Board staff reports that, until recently, these standards affected four state operated juvenile correctional centers, 24 locally operated juvenile secure detention centers and 19 group homes.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action is unlikely to have any impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action is unlikely to have any effect on the use or value of private property.

Small Businesses: Costs and Other Effects. No small businesses will incur costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small businesses will incur costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate.

General: 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 Code of Virginia and Executive Order Number 14 (2010). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed 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.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules (JCAR) is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

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

Summary:

The Board of Juvenile Justice is repealing 6VAC35-51 because the regulation is obsolete. Effective January 1, 2014, 6VAC35-51 was replaced by Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), Regulation Governing Juvenile Correctional Centers (6VAC35-71), and Regulation Governing Juvenile Secure Detention Centers (6VAC35-101).

Title of Regulation: 6VAC35-140. Standards for Juvenile Residential Facilities (repealing 6VAC35-140-10 through 6VAC35-140-800).

Statutory Authority: §§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 28, 2015.

Effective Date: February 13, 2015.

Agency Contact: Barbara Peterson-Wilson, Regulatory and Policy Coordinator, Department of Juvenile Justice, 600 East Main Street, 20th Floor, P.O. Box 1110, Richmond, VA 23218, telephone (804) 588-3902, FAX (804) 371-6490, or email barbara.peterson-wilson@djj.virginia.gov.

Basis: Section 66-4 of the Code of Virginia creates the Board of Juvenile Justice while § 66-10 of the Code of Virginia states that the board shall have the power and duty to promulgate such regulations as may be necessary to carry out the provisions of Title 66 of the Code of Virginia and the other laws of the Commonwealth. Section 66-24 of the Code of Virginia requires the board to promulgate regulations for licensure or certification of community group homes or other residential facilities that contract with or are rented for the care of juveniles in direct state care. The board's regulations must address the services required to be provided in such facilities as it may deem appropriate to ensure the welfare and safety of the juveniles. In addition, the board's regulations must include, but need not be limited to (i) specifications for the structure and accommodations of such facilities according to the needs of the juveniles to be placed in the home or facility; (ii) rules concerning allowable activities, local government- and group home- or residential care facility-imposed curfews, and study, recreational, and bedtime hours; and (iii) a requirement that each home or facility have a community liaison who shall be responsible for facilitating cooperative relationships with the neighbors, the school system, local law enforcement, local government officials, and the community at large.

Purpose: The Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), the Regulation Governing Juvenile Correctional Centers (6VAC35-71), and the Regulation Governing Juvenile Secure Detention Centers (6VAC35-101) have been approved and finalized through the regulatory process and became effective on January 1, 2014.

Each of the new residential regulations contains a section titled "Previous regulations terminated" (6VAC35-41-30, 6VAC35-71-20, and 6VAC35-101-30) stating that 6VAC35-140 is replaced by the applicable new residential regulation. As such, 6VAC35-140 does not have any legal or operational effect. Each of these regulations contains language that is specific to the type of facility. The Standards for Juvenile Residential Facilities contained language that addressed juvenile residential facilities in the juvenile justice system generally and is no longer necessary.

Rationale for Using Fast-Track Process: The Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), the Regulation Governing Juvenile Correctional Centers (6VAC35-71), and the Regulation Governing Juvenile Secure Detention Centers (6VAC35-101) became effective on January 1, 2014. Each of these regulations contains the following provision:

"This chapter replaces the Standards for the Interim Regulation of Children's Residential Facilities, (6VAC35-51), and the Standards for Juvenile Residential Facilities, (6VAC35-140), for the regulation of all [named type of facility] as defined herein. The Standards for the Interim Regulation of Children's Residential Facilities and the Standards for Juvenile Residential Facilities remain in effect for [named other types of facilities not regulated by the specific chapter], regulated by the board, until such time as the board adopts new regulations related thereto."

The Standards for Juvenile Residential Facilities remained in effect for the juvenile group homes, juvenile secure detention centers, and juvenile correctional centers regulated by the Board until January 1, 2014, when the new regulations become effective. Upon the regulations' effective date, the three new regulations replaced the Standards for Juvenile Residential Facilities (6VAC35-140).

It is anticipated that the repeal of 6VAC35-140 will be noncontroversial as it has been superseded by new residential regulations.

Substance: This regulatory action does not propose any new substantive provisions or substantive changes. The Standards for Juvenile Residential Facilities (6VAC35-140) will be repealed as new residential regulations have become effective and supersede the provision in 6VAC35-140.

Issues: Prior to January 1, 2014, when the Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), the Regulation Governing Juvenile Correctional Centers (6VAC35-71), and the Regulation Governing Juvenile Secure Detention Centers (6VAC35-101) became effective, facilities regulated by the board were governed by both the Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51) and the Standards for Juvenile Residential Facilities (6VAC35-140), unless specifically exempted.

6VAC35-51 and 6VAC35-140 were superseded by provisions in 6VAC35-41, 6VAC35-71, and 6VAC35-101. The facilities formerly regulated by the provisions in 6VAC35-51 and 6VAC35-140 are now governed by 6VAC35-41, 6VAC35-71, and 6VAC35-101, as applicable. Retaining 6VAC35-51 and 6VAC35-140 as active regulatory chapters could cause confusion for the regulated entities.

Repealing the Standards for the Interim Regulation of Children's Residential Facilities benefits the locally and regionally operated juvenile secure detention centers and locally operated juvenile group homes and halfway houses and state operated juvenile correctional centers. The new residential regulations govern specific types of juvenile facilities providing greater clarity of the regulatory requirements. In repealing the superseded regulatory chapter, confusion as to which active regulatory chapters are applicable to the facilities will be avoided.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (Board) proposes to repeal its regulation that, until recently, governed Standards for Juvenile Residential Facilities (6VAC35-140).

Result of Analysis. Benefits likely outweigh costs for this proposed regulatory change.

Estimated Economic Impact. The Board of Juvenile Justice (Board) proposes to repeal its regulation that, until recently, governed Standards for Juvenile Residential Facilities (6VAC35-140). The Board has replaced these standards with a Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), a Regulation Governing Juvenile Correctional Centers (6VAC35-71) and a Regulation Governing Juvenile Secure Detention Centers (6VAC35-101), all of which became effective January 1, 2014.

Because the standards in 6VAC35-140 are now obsolete, no affected entity is likely to incur costs on account of this repeal. Affected entities are likely to benefit from this action as it will remove a potential source of confusion from the Virginia Administrative Code.

Businesses and Entities Affected. Board staff reports that, until recently, these standards affected four state operated juvenile correctional centers, 24 locally operated juvenile secure detention centers and 19 group homes.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action is unlikely to have any impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action is unlikely to have any effect on the use or value of private property.

Small Businesses: Costs and Other Effects. No small businesses will incur costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small businesses will incur costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate.

General: 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 Code of Virginia and Executive Order Number 14 (2010). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed 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.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules (JCAR) is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

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

Summary:

The Board of Juvenile Justice is repealing 6VAC35-140 because the regulation is obsolete. Effective January 1, 2014, 6VAC35-140 was replaced by Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41), Regulation Governing Juvenile Correctional Centers (6VAC35-71), and Regulation Governing Juvenile Secure Detention Centers (6VAC35-101).

Title of Regulation: 9VAC25-900. Certification of Nonpoint Source Nutrient Credits (adding 9VAC25-900-10 through 9VAC25-900-350).

Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.

Public Hearing Information:

February 11, 2015 - 2 p.m. - Department of Environmental Quality, PRO Training Room, 4949-A Cox Road, Glen Allen, VA 23060

February 12, 2015 - 2 p.m. - Department of Environmental Quality, Blue Ridge Regional Office, 3019 Peters Creek Road, Roanoke, VA 24019

Public Comment Deadline: March 16, 2015.

Agency Contact: Debra Harris, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4209, FAX (804) 698-4346, or email debra.harris@deq.virginia.gov.

Basis: The state authority to promulgate the proposed regulation is pursuant to the Chesapeake Bay Watershed Nutrient Credit Exchange Program, Article 4.02 (§ 62.1-44.19:12 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia. Specifically, the authority for the State Water Control Board to develop regulations is at § 62.1-44.19:20 of the Code of Virginia, which states under subsection A: "The Board shall adopt regulations for the purpose of establishing procedures for the certification of nonpoint source nutrient credits." Under § 62.1-44.19:20 B, the regulatory language may include but not be limited to (i) establishing procedures for the certification and registration of credits; (ii) establishing credit calculation procedures; (iii) providing certification of credits on a temporal basis; (iv) establishing requirements to reasonably assure the generation of credits; (v) establishing reporting requirements; (vi) providing the department the ability to audit/inspect for compliance; (vii) providing that the option to acquire nutrient credits for compliance purposes shall not eliminate any requirement to comply with local water quality requirements; (viii) establishing a credit retirement requirement; and (ix) establishing other requirements as the board deems necessary and appropriate.

Additionally, subdivision 10 of § 62.1-44.15 of the Code of Virginia of the State Water Control Law authorizes the State Water Control Board to adopt such regulations as it deems necessary to enforce the general water quality management program of the board in all or part of the Commonwealth.

Purpose: Pursuant to § 62.1-44.19:20 of the Code of Virginia, the board is required to adopt regulations for the certification of nonpoint source nutrient credits. Nonpoint credits established by the board in accordance with the legislation and this regulatory action may include credits generated from agricultural and urban stormwater best management practices, management of animal feeding operations, land use conversion, stream or wetlands restoration, shellfish aquaculture, and other established or innovative methods of nutrient control or removal.

Certified nonpoint source nutrient credits will be placed on a registry of credits that will be developed. The certified credits that are placed on this registry will be part of an enforceable market-based trading program that will involve the exchange of pollution allocations between sources. Currently, most programs involve exchanges between different point sources; however, this regulation is anticipated to make available additional nonpoint source nutrient credits to further trading avenues such as point source to nonpoint source trades or nonpoint to nonpoint trades. These trades will be part of the overall goal of meeting the reductions assigned by the Chesapeake Bay Watershed Implementation Plan and the Chesapeake Bay total maximum daily load (TMDL).

This regulation is another step towards a successful trading program. The regulation provides clarity and assurances regarding the process for certification and generation of nonpoint source nutrient credits for both the nutrient credit generating entity and those that purchase the nutrient credits.

Substance: The substantive provisions of this regulatory action are consistent with the specifics outlined in § 62.1-44.19:20 of the Code of Virginia and include the following:

• Application procedures for certifying credits that may be generated from effective nutrient controls or removal practices including agricultural and urban stormwater best management practices, land use conversion, stream or wetlands projects, and other appropriate methods of nutrient control or removal. The application procedures include the submittal of necessary information for determining whether and how many nutrient credits are generated by the nutrient credit-generating entity.

• The approval process for certification of those credits including provisions for retirement, registration, and release for exchange.

• The practices, actions, or levels of reductions that must be in place before credits can be generated are specified for establishing the baseline for the specific type of the nutrient credit-generating entity and are provided and detailed in the proposed regulation.

• Compliance and enforcement criteria for a nutrient credit-generating entity.

• Appropriate fees and the process for calculation and submittal of such fees.

• Requirements to reasonably assure the generation of the credit depending on the nature of the credit-generating activity and use, such as legal instruments for perpetual credits, operation and maintenance requirements, and associated financial assurance requirements are detailed in this regulation.

Issues: The primary advantage of this regulatory action is that the proposed regulation will provide clarity and certainty for the nutrient trading market by establishing appropriate procedures for the certification and generation of nonpoint source credits. This is an advantage to the regulated community, the public, and the Commonwealth as certainty in this market will help meet commitments outlined in the Chesapeake Bay Watershed Implementation Plan and other TMDLs. The framework and content of this regulatory action largely tracks the specifics outlined in § 62.1-44.19:20 of State Water Control Law regarding the promulgation of these regulations. In working with the regulatory advisory panel to develop the proposed regulations, the Department of Environmental Quality was careful to minimize disadvantages and to develop a program that provides clarity and certainty for those seeking to certify the generation of nonpoint source nutrient credits. This proposed regulatory action should pose no disadvantages to the public or to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Water Control Board (Board) proposes to establish in regulation the process for the certification of nonpoint source nitrogen and phosphorus nutrient credits. The regulation includes application procedures, baseline requirements, credit calculation procedures, release and registration of credits, compliance and reporting requirements for nutrient credit-generating entities, enforcement requirements, application fees, and financial assurance requirements. Nonpoint source nutrient credits must be certified by the Department of Environmental Quality prior to release, placement on the registry and exchange. The agency developed this regulation as required pursuant to Chapter 748 of the 2012 Acts of Assembly.

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

Estimated Economic Impact. Nutrient trading creates revenue opportunities and reduces costs associated with protecting the environment. The opportunity for nutrient trading arises because large differences in the cost to reduce a pound of nitrogen or phosphorus exist among various sectors and practices. In a trading market, sources that can reduce nutrients at low cost have an economic incentive to make reductions below target levels and then sell the credits to those facing higher costs. Trading therefore creates new revenue opportunities for farmers, entrepreneurs, and others who can generate nutrient credits. At the same time, trading allows land developers and other entities that face higher nutrient reduction costs to save money by purchasing credits to meet a portion of their nutrient reduction obligations. As a result, trading helps achieve overall nutrient reductions in the Chesapeake Bay watershed and elsewhere in the Commonwealth in a more cost-effective manner.

The framework and content of this regulatory action largely tracks the specifics outlined in Chapter 748 of the 2012 Acts of Assembly. Additionally, this program has already been in operation through guidance documents. Placing the program specifics in regulation is beneficial in that it helps improve clarity and helps ensure consistent procedures for the approval of nonpoint source nutrient banks. The nutrient trading program itself is beneficial in that it improves efficiency and reduces the cost of economic development while maintaining environmental standards.

Nonpoint credits established by the Board in accordance with the legislation and this regulatory action may include credits generated from agricultural and urban stormwater best management practices, management of animal feeding operations, land use conversion, stream or wetlands restoration, shellfish aquaculture, and other established or innovative methods of nutrient control or removal. These nutrient credits can be sold to businesses or other entities that wish to develop land, new or expanding point source discharges required to offset any increase in nutrient load or permitted Municipal Separate Stormwater Sewer Systems required to reduce nutrients under the Chesapeake Bay Total Maximum Daily Load (TMDL).

Certified nonpoint source nutrient credits are to be placed on a registry of credits. The certified credits that are placed on this registry are to be part of an enforceable market-based trading program that involves the exchange of pollution allocations between sources. Currently, most trades involve exchanges between different point sources; however, the program under this regulation makes available nonpoint source nutrient credits to further trading avenues such as point source to nonpoint source trades or nonpoint to nonpoint trades. These trades contribute to the overall goal of meeting the reductions assigned by the Chesapeake Bay Watershed Implementation Plan and the Chesapeake Bay TMDL.

Businesses and Entities Affected. The nutrient trading program and the proposed regulation potentially affect owners of land that may earn nutrient credits from agricultural and urban stormwater best management practices, management of animal feeding operations, land use conversion, stream or wetlands restoration, shellfish aquaculture, and other established or innovative methods of nutrient control or removal. Land developers are also affected in that they will be likely buyers of these credits.

Localities Particularly Affected. The nonpoint source nutrient certification program under the proposed regulation applies to localities throughout the Commonwealth. These credits can be certified and used statewide to offset new development. There is likely to be particular demand for the use of the credits within the Chesapeake Bay watershed.

Projected Impact on Employment. By reducing the cost of economic development while maintaining environmental standards, the nutrient trading program and the proposed regulation may positively affect employment.

Effects on the Use and Value of Private Property. The nutrient trading program and the proposed regulation may increase the value of land that can be used for nonpoint source nutrient banks.

Small Businesses: Costs and Other Effects. The nutrient trading program and the proposed regulation may reduce development costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendment will not adversely affect small businesses.

Real Estate Development Costs. The nutrient trading program and the proposed regulation may reduce real estate development costs.

Legal Mandate. General: 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 Code of Virginia and Executive Order Number 14 (2010). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulatory action 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.

Small Businesses: If the proposed regulatory action will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules (JCAR) is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

Agency's Response to Economic Impact Analysis: The department has no comment.

Summary:

Pursuant to Chapter 748 of the 2012 Acts of Assembly, the proposed regulation establishes the process for the certification of nonpoint source nitrogen and phosphorus nutrient credits. The proposed regulation includes application procedures, baseline requirements, credit calculation procedures, release and registration of credits, compliance and reporting requirements for nutrient credit-generating entities, enforcement requirements, application fees, and financial assurance requirements. Nonpoint source nutrient credits must be certified by the Department of Environmental Quality prior to release, placement on the registry, and exchange.

CHAPTER 900
CERTIFICATION OF NONPOINT SOURCE NUTRIENT CREDITS

Part I
Definitions

9VAC25-900-10. Definitions.

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

"300 animal units" means the term as defined in 9VAC25-192-10.

"Act" means the Chesapeake Bay Watershed Nutrient Credit Exchange Program, Article 4.02 (§ 62.1-44.19:12 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Agricultural lands" means cropland, hayland, or pastures.

"Animal feeding operation" means the term as defined by 9VAC25-31-10.

"Applicant" means the person who submits an application to the department for nutrient credit certification pursuant to this chapter.

"Baseline" means the practices, actions, or levels of reductions that must be in place before credits can be generated. The best management practices to be implemented for achieving baseline are provided in 9VAC25-900-100.

"Best management practice," "practice," or "BMP" means a structural practice, nonstructural practice, or other management practice used to prevent or reduce nutrient loads reaching surface waters or the adverse effects thereof.

"Board" means the State Water Control Board.

"CDA" means contributing drainage area.

"Certification of nutrient credits" or "nutrient credit certification" means the approval of nutrient credits issued by the department as specified in 9VAC25-900-80 F.

"Chesapeake Bay Watershed" means the land areas draining to the following Virginia river basins: the Potomac River Basin, the James River Basin, the Rappahannock River Basin, the Chesapeake Bay and small coastal basins, or the York River Basin.

"Concentrated animal feeding operation" means the term as defined by 9VAC25-31-10.

"Cropland" means land that is used for the production of grain, oilseeds, silage, or industrial crops not defined as hay or pasture.

"DCR" means the Department of Conservation and Recreation.

"Delivery factor" means the estimated percentage of a total nitrogen or total phosphorus load delivered to tidal waters as determined by the specific geographic location of the nutrient source. For point source discharges the delivery factor accounts for attenuation that occurs during riverine transport between the point of discharge and tidal waters. For nonpoint source loads the delivery factor accounts for attenuation that occurs during riverine transport as well as attenuation between the nutrient source and the edge of the nearest stream. Delivery factors values shall be as specified by the department.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or his designee.

"Exchange" means the transaction in which a person buys released nutrient credits produced by a nutrient credit-generating entity.

"Field office technical guide" or "FOTG" means technical guides about conservation of soil, water, air, and related plant and animal resources and are the primary scientific reference for the U.S. Department of Agriculture's Natural Resource Conservation Service. These guides are used in each field office and are localized so that they apply specifically to the geographic area for which they are prepared.

"Hayland" means land that is used to grow a grass, legume, or other plants such as clover or alfalfa, which is cut and dried for feed.

"Highly erodible soils" means land that is defined as highly erodible by the Sodbuster, Conservation Reserve, and Conservation Compliance parts of the Food Security Act of 1985 (Pub. L. No. 99-198) and the Food, Agriculture, Conservation, and Trade Act of 1990 (Pub. L. No. 101-624). Lists of highly erodible and potential highly erodible map units are maintained in NRCS field office technical guide.

"HUC" means the hydrologic unit code.

"Impaired waters" means those waters identified as impaired in the 305(b)/303(d) Water Quality Assessment Integrated Report (see 9VAC25-900-70).

"Implementation plan" means a plan that has been developed to meet the requirements of 9VAC25-900-120 and is submitted as part of the application.

"Invasive plant species" means non-native plant species that are contained on DCR's List of Invasive Alien Plant Species of Virginia (see 9VAC25-900-70).

"Land use conversion" means a change from a more intensive to less intensive land use resulting in nutrient reductions.

"Land use controls" means legal measures or instruments that restrict the activity, use, and access to property.

"Management area" means all contiguous parcels deeded to the same landowner that includes the nutrient credit-generating site within its boundaries. The term contiguous means the same or adjacent parcels that may be divided by public or private right-of-way. The management area does not include publicly owned roads or rights-of-way.

"Mitigation banking instrument" means the legal document for the establishment, operation, and use of a stream or wetland mitigation bank.

"MS4" means a municipal separate storm sewer system as defined in 9VAC25-870-10.

"Non-land use conversion" means practices, except for land use conversion, that are used by a nutrient credit-generating entity to produce nutrient reductions.

"Nonpoint source pollution" means pollution such as sediment, nitrogen, phosphorus, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater runoff.

"NRCS" mean the U.S. Department of Agriculture's Natural Resource Conservation Service.

"Nutrient credit" or "credit" means a nutrient reduction that is certified pursuant to this chapter and expressed in pounds of phosphorus and nitrogen either (i) delivered to tidal waters when the credit is generated within the Chesapeake Bay Watershed or (ii) as otherwise specified when generated in the Southern Rivers watersheds. Nutrient credit does not include point source nitrogen credits or point source phosphorus credits as defined in § 62.1-44.19:13 of the Code of Virginia.

"Nutrient credit-generating entity" or "entity" means an entity that implements practices for the generation of nonpoint source nutrient credits.

"Nutrient reductions" means the reduction in the load of nitrogen and phosphorous nonpoint source pollution.

"Owner" means the Commonwealth or any of its political subdivisions, including but not limited to sanitation district commissions and authorities and any public or private institution, corporation, association, firm, or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for any nutrient credit-generating entity.

"Pasture" means land that supports the grazing of domesticated animals for forages.

"Performance standards" means the minimum objectives or specifications required of a particular management practice by the department in order to assure predicted nutrient reductions will be achieved.

"Perpetual nutrient credits" or "perpetual credits" mean credits that are certified as permanent in accordance with this chapter.

"Person" means any individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, governmental body, including a federal, state, or local entity as applicable, any interstate body or any other legal entity.

"Potential nutrient credits" means the possible credits generated by a nutrient credit-generating entity as calculated pursuant to 9VAC25-900-110. These potential nutrient credits shall be expressed in terms of the estimated number of phosphorus and nitrogen credits generated.

"Redevelopment" means a project that includes new development on previously developed land.

"Registry" means the online Virginia Nutrient Credit Registry established and maintained by the department in accordance with § 62.1-44.1.19:20 D of the Code of Virginia.

"Released nutrient credit" means credits that the department has determined to be eligible for exchange on the Virginia Nutrient Credit Registry.

"Retrofit" means a project that provides improved nutrient reductions to previously developed land through the implementation of new BMPs or upgrades to existing BMPs.

"Site" means the physical location where the nutrient credit-generating entity and its associated practices, both baseline and credit-generating, are located.

"Site protection instrument" means a legal mechanism approved by the department that provides assurance that the credits will be maintained for the term of the credit.

"Southern Rivers watersheds" means the land areas draining to the following river basins: the Albemarle Sound, the Big Sandy River Basin, the Chowan River Basin, the Clinch-Powell River Basin, the New Holston River Basin (Upper Tennessee), the New River Basin, the Roanoke River Basin, the Yadkin River Basin, or those water bodies draining directly to the Atlantic Ocean.

"Structural BMPs" means any manmade stormwater control measure or feature that requires routine maintenance in order to function or provide the hydrologic, hydraulic, or water quality benefit as designed. Structural practices include, but are not limited to bioretention, infiltration facilities, wet ponds, extended detention, wet and dry swales, permeable pavement, rainwater harvesting, vegetated roofs, underground or surface chambers or filters, and other manufactured treatment devices (MTDs).

"T" means the soil loss tolerance rate as defined by the NRCS.

"Term nutrient credit" or "term credit" means nutrient reduction activities that generate credits for a determined and finite period of at least one year.

"Total maximum daily load" or "TMDL" means the sum of the individual wasteload allocations (WLAs) for point sources, load allocations (LAs) for nonpoint sources, natural background loading, and a margin of safety. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. The TMDL process provides for point versus nonpoint source trade-offs. TMDL is not necessarily a daily load but may be expressed in other units of time. For nutrient trading, yearly loads are most often utilized.

"Tributary" means those river basins for which separate tributary strategies were prepared pursuant to § 2.2-218 of the Code of Virginia and includes the Potomac, Rappahannock, York, and James River basins, and the Eastern Coastal Basin, which encompasses the creeks and rivers of the Eastern Shore of Virginia that are west of Route 13 and drain into the Chesapeake Bay. For areas outside of the Chesapeake Bay Watershed, "tributary" includes the following watersheds: Albemarle Sound, Coastal; Atlantic Ocean, Coastal; Big Sandy; Chowan; Clinch-Powell; New Holston (Upper Tennessee); New River; Roanoke; and Yadkin.

"Urban lands" means lands characterized by developed areas with buildings, asphalt, concrete, suburban gardens, and a systematic street pattern. Classes of urban development include residential, commercial, industrial, institutional, transportation, communications, utilities, and mixed urban. Undeveloped land surrounded by developed areas, such as cemeteries, golf courses, and urban parks is recognized as urban lands.

"VACS BMP Manual" means the Virginia Agricultural Cost Share BMP Manual (see 9VAC25-900-70).

"Virginia Chesapeake Bay TMDL Watershed Implementation Plan," "Watershed Implementation Plan," or "WIP" means the Phase I watershed implementation plan strategy submitted by Virginia and approved by the Environmental Protection Agency (EPA) in December 2010 to meet the nutrient and sediment allocations prescribed in the Chesapeake Bay Watershed TMDL or any subsequent revision approved of EPA (see 9VAC25-900-70).

"Virginia Pollutant Discharge Elimination System permit" or "VPDES permit" means a document issued by the State Water Control Board pursuant to the State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters and the use or disposal of sewage sludge.

"Virginia Stormwater Management Program" or "VSMP" means a program to manage the quality and quantity of runoff resulting from land-disturbing activities and includes such items as local ordinances, rules, permit requirements, annual standards and specifications, policies and guidelines, technical materials, and requirements for plan review, inspection, and enforcement, where authorized in the Stormwater Management Act and pursuant to 9VAC25-870, 9VAC25-880, or 9VAC25-890.

"VPA" means Virginia Pollution Abatement.

"VPDES" means Virginia Pollutant Discharge Elimination System.

"VWP" means Virginia Water Protection.

"Water body with perennial flow" means a body of water that flows in a natural or man-made channel year-round during a year of normal precipitation as a result of groundwater discharge or surface runoff. Such water bodies exhibit the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Water Quality Guide" means Virginia's Forestry Best Management Practices for Water Quality (see 9VAC25-900-70).

Part II
General Information

9VAC25-900-20. Authority and delegation of authority.

A. This chapter is issued under authority of § 62.1-44.19:20 of the Act.

B. The director may perform any act of the board provided under this regulation except as limited by § 62.1-44.14 of the Code of Virginia.

9VAC25-900-30. Purpose and applicability.

A. The purpose of this chapter is to establish standards and procedures pertaining to the certification of nutrient credits.

B. This chapter applies to all persons who submit an application for and to all persons that receive a certification of nutrient credits from the department in accordance with the Act and this chapter.

C. Nutrient credits from stormwater nonpoint nutrient credit-generating entities in receipt of a Nonpoint Nutrient Offset Authorization for Transfer letter from the department prior to [the effective date of this chapter] shall be considered certified nutrient credits and shall not be subject to further nutrient credit certification requirements or to the credit retirement requirements of this chapter. However, such entities shall be subject to all other provisions of this chapter, including registration under 9VAC25-900-90 and the requirements of Part IV (9VAC25-900-140 et seq.) including inspection, reporting, and enforcement.

9VAC25-900-40. Relationship to other laws and regulations.

A. Specific requirements regarding the use of nutrient credits are found in the following regulations and statutes:

1. Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870).

a. VSMP Individual Permits for Discharges from Construction Activities. As specified in § 62.1-44.19:21 B of the Act, those applicants required to comply with water quality requirements for land-disturbing activities operating under a construction individual permit issued pursuant to 9VAC25-870 may acquire and use perpetual nutrient credits placed on the registry for exchange.

b. VSMP Individual Permits for Municipal Storm Sewer Systems. As specified in § 62.1-44.19:21 A of the Act, an MS4 permittee may acquire, use, and transfer nutrient credits for purposes of compliance with any wasteload allocations established as effluent limitations in an MS4 individual permit issued pursuant to 9VAC25-870. Such method of compliance may be approved by the department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits and is in accordance with the provisions of § 62.1-44.19:21 A.

2. General VPDES Permit for Discharges of Stormwater from Construction Activities (9VAC25-880). As specified in § 62.1-44.19:21 B of the Act, those applicants required to comply with water quality requirements for land-disturbing activities operating under a general VSMP permit for discharges of stormwater from construction activities issued pursuant to 9VAC50-880 may acquire and use perpetual nutrient credits placed on the registry for exchange.

3. General VPDES Permit for Discharges of Stormwater from Small Municipal Separate Storm Sewer Systems (9VAC25-890). As specified in § 62.1-44.19:21 A of the Act, an MS4 permittee may acquire, use, and transfer nutrient credits for purposes of compliance with any wasteload allocations established as effluent limitations in an MS4 general permit issued pursuant to 9VAC25-890. Such method of compliance may be approved by the department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits and is in accordance with the provisions of § 62.1-44.19:21 A.

4. Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31). As specified in § 62.1-44.19:21 C of the Act, owners of confined or concentrated animal feeding operations issued individual permits pursuant to 9VAC25-31 may acquire, use, and transfer credits for compliance with any wasteload allocations contained in the provisions of a VPDES permit. Such method of compliance may be approved by the department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits.

5. General Virginia Pollutant Discharge Elimination System (VPDES) Permit for Discharges of Storm Water Associated with Industrial Activity (9VAC25-151). As specified in § 62.1-44.19:21 D of the Act, owners of facilities registered for coverage under 9VAC25-151 for the general VPDES permit may acquire, use, and transfer credits for compliance with any wasteload allocations established as effluent limitations in a VPDES permit. Such method of compliance may be approved by the department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits.

6. General Virginia Pollutant Discharge Elimination System (VPDES) Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia (9VAC25-820). Nutrient credits certified pursuant to this chapter may be acquired to offset mass loads of total nitrogen or total phosphorus discharged by new or expanded facilities regulated by 9VAC25-820.

B. This chapter shall not be construed to limit or otherwise affect the authority of the board to establish and enforce more stringent water quality-based effluent limitations for total nitrogen or total phosphorus in permits where those limitations are necessary to protect local water quality. The exchange or acquisition of credits pursuant to this chapter shall not affect any requirement to comply with such local water quality-based limitations.

9VAC25-900-50. Appeal process.

Any person applying to establish a nutrient credit-generating entity or an owner of a nutrient credit-generating entity aggrieved by any action of the department taken in accordance with this chapter, or by inaction of the department, shall have the right to review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC25-900-60. Limitations, liability, and prohibitions.

A. The department shall not have responsibility or liability for the performance of practices at a nutrient credit-generating entity evaluated using the procedures established in this chapter.

B. Those persons with whom the department contracts, including those serving as technical evaluators on an advisory committee, are advisors to the department, and the department remains solely responsible for decisions made regarding implementation of this chapter.

C. For the purposes of this chapter, the certification of nutrient credits that are generated from practices funded in part or in whole by federal or state water quality grant funds is prohibited other than controls and practices under § 62.1-44.19:20 B 1 a of the Act; however, establishing baseline as specified in 9VAC25-900-100 may be achieved through the use of such grants.

D. The option to acquire nutrient credits for compliance purposes shall not eliminate any requirement to comply with local water quality requirements.

E. The issuance of a nutrient credit certification under this chapter does not convey any property rights of any sort or any exclusive privilege.

F. The issuance of a nutrient credit certification under this chapter does not authorize any injury to persons or property or invasion of other private rights, or any infringement of state or local law or regulations.

G. Nutrient credit certifications are not transferable except after notice to the department in accordance with 9VAC25-900-180. The department may require modification or revocation and reissuance of nutrient credit certifications to change the name of the owner of the nutrient credit-generating entity and incorporate such other requirements as may be necessary under the State Water Control Law or the Clean Water Act.

H. No person shall offer for exchange nutrient credits except in compliance with the provisions of this chapter.

I. No nutrient credit shall be generated by practices previously implemented to comply with: (i) the requirements for a VPDES (9VAC25-31), VPA (9VAC25-32), VWP (9VAC25-210), or VSMP (9VAC25-870) permit; (ii) erosion and sedimentation control requirements pursuant to 9VAC25-840; or (iii) the requirements of the Chesapeake Bay Preservation Act pursuant to § 62.1-44.15:67-79 of the Code of Virginia.

9VAC25-900-70. Documents and Internet accessible resources.

This chapter refers to documents and Internet accessible resources to be used by applicants in gathering information to be submitted to the department. Therefore, in order to assist the applicants, the citations for the documents and the uniform resource locator (URL) for the Internet resources referenced in this chapter are as follows:

1. Virginia Chesapeake Bay TMDL Watershed Implementation Plan, November 29, 2010, Department of Environmental Quality. Available at the following Internet address:

http://www.deq.virginia.gov/Portals/0/DEQ/Water/TMDL/Baywip/vatmdlwipphase1.pdf.

2. Virginia Agricultural Cost Share BMP Manual, Program Year 2014, July 2013 Department of Conservation and Recreation, Division of Soil and Water Conservation, Richmond, Virginia. Available at the following Internet address:

http://dswcapps.dcr.virginia.gov/htdocs/agbmpman/csmanual.pdf.

3. List of Invasive Alien Plant Species of Virginia, Department of Conservation and Recreation, Division of Natural Heritage, Richmond, Virginia. Available at the following Internet address:

http://www.dcr.virginia.gov/natural_heritage/invsppdflist.shtml.

4. Field Office Technical Guide, Natural Resources Conservation Service, United States Department of Agriculture, Washington, D.C. Available at the following Internet address:

http://efotg.sc.egov.usda.gov/efotg_locator.aspx.

5. 305(b)/303(d) Water Quality Assessment Integrated Report, 2012, Department of Environmental Quality. Available at the following Internet address:

http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/WaterQualityAssessments/2012305(b)303(d)IntegratedReport.aspx.

6. Virginia's Forestry Best Management Practices for Water Quality, Fifth Edition 2011, Department of Forestry. Available at the following Internet address:

http://www.dof.virginia.gov/print/water/BMP/Manual/2011_Manual_BMP.pdf.

Part III
Administrative and Technical Criteria

9VAC25-900-80. Procedure for application for certification of nutrient credits.

A. Application submittal. An applicant requesting certification of nutrient credits shall submit an application to the department. The application shall be in the form required by the department including signature in accordance with 9VAC25-900-130 and shall include the following elements:

1. A brief narrative description of the nutrient credit-generating entity.

2. Contact information for the applicant including name, address, and telephone number.

3. Contact information for the nutrient credit-generating entity, including the entity's mailing address, street address, telephone number, and the contact person's name and email address.

4. Status of the applicant as owner, co-owner, operator, or lessee of the nutrient credit-generating entity or the site on which the entity is located. The applicant shall provide documentation of the applicant's right to exercise control of the nutrient credit-generating entity or the site on which it is located for the purposes of generating and maintaining the proposed nutrient credit-generating entity. If the applicant cannot demonstrate control, those parties who singularly or in conjunction with the applicant exercise control over the nutrient credit-generating entity or the site on which it is located shall be required to jointly apply for nutrient credit certification with the applicant.

5. The name, mailing address, telephone number, and responsibilities of all known contractors responsible for any operational or maintenance aspects of the nutrient credit-generating entity.

6. The number of potential nutrient credits to be generated and supporting information including (i) a description of the baseline practices in place within the management area and the nutrient credit-generating entity's practices that may result in generation of nutrient credits beyond baseline requirements; (ii) the potential nutrient credit calculation including the efficiencies and factors used; and (iii) the associated documentation supporting the potential nutrient credits calculation. Baseline shall be determined in accordance with the requirements of 9VAC25-900-100. The number of potential nutrient credits shall be as calculated in accordance with 9VAC25-900-110.

7. A topographic map or another type of map deemed acceptable by the department that delineates the property boundary of the management area and clearly shows the location of the nutrient credit-generating entity and baseline practices.

8. A description of current site conditions with photos.

9. The 8-digit, 10-digit, and 12-digit HUC in which the nutrient credit-generating entity is located.

10. For land use conversion projects, provide documentation of the condition of the land and land use controls in place as of the date specified in 9VAC25-900-100 E noting any changes in the condition of the land or land use controls since that date.

11. An implementation plan that meets the requirements of 9VAC25-900-120.

12. For structural BMPs, the financial assurance cost estimate calculated pursuant to Part VI (9VAC25-900-230 et seq.).

13. The appropriate fee required pursuant to Part V (9VAC25-900-190 et seq.).

14. The proposed site protection instrument or instruments for perpetual credits.

15. A description of other permits and approvals that may be necessary to operate the nutrient credit-generating entity.

16. A description of any state or federal water quality grants received for water quality actions in the management area.

17. For perpetual credits, notarized proof that all management area property used to generate credits is held with clear title by the owner and free of any unsubordinated liens.

18. A tax map showing the management area and adjacent parcels.

19. Any other information deemed necessary by the department.

B. Administrative completeness review. Upon receiving an application pursuant to subsection A of this section, the department shall conduct an administrative completeness review prior to the technical review and respond within 30 calendar days of application receipt. If the application is not administratively complete, the department shall notify the applicant of the administrative deficiencies. If the application is administratively complete, the department shall notify the applicant that application will be technically reviewed for nutrient credit certification.

C. Public notification. The department shall post a public notification of the proposed nutrient credit-generating entity on its website.

D. Technical review. Once the application is deemed administratively complete, the department shall perform a technical review of the application. As part of the technical review, additional information may be required and the nutrient credit-generating entity and management area may be visited. Additionally, if the department chooses, a certification advisory committee may be convened. Within 90 days of the receipt of an administratively complete application, the department shall notify the applicant of the status of the technical review of the application.

E. Technical completeness. The nutrient credits shall not be certified until the application is administratively and technically complete. An application for nutrient credit certification is technically complete when the department receives an application in accordance with subsection A of this section and the application, and any supplemental information fulfills the application requirements to the department's satisfaction.

F. Nutrient credit certification. The department shall notify the applicant of approval of the nutrient credit certification and provide any applicable conditions required for credit certification including retirement and release of credits in accordance with 9VAC25-900-90, or the department shall notify the applicant that the nutrient credit-generating entity does not qualify for any certified credits pursuant to the requirements of this part.

9VAC25-900-90. Nutrient credit release and registration.

A. Retirement of credits.

1. Pursuant to the requirements of § 62.1-44.19:20 of the Act, 5.0% of the total credits certified will be retired by the department at the time of nutrient credit certification and will not be placed on the registry for exchange.

2. When phosphorus credits are acquired for compliance with 9VAC25-870, the associated nitrogen credits generated by the nutrient credit-generating entity will be retired and removed from the registry by the department.

3. When nitrogen credits are exchanged for purposes other than compliance with 9VAC25-870, the associated phosphorus credits generated by the nutrient-credit entity shall not be available for compliance under 9VAC25-870.

B. Schedule of release of nutrient credits. The department shall establish a schedule for release of credits as follows:

1. For nutrient credit-generating entities using land use conversion, 25% of the credits will be released by the department after the department has verified completion of the conditions of the nutrient credit certification. The remaining 75% of credits will be released by the department after it is satisfied that the implementation plan's performance criteria required pursuant to 9VAC25-900-120 has been achieved.

2. For nutrient credit-generating entities using practices other than land use conversion, the schedule for release of credits will be determined by the department and provided to the applicant with the nutrient credit certification. For entities using structural BMPs, the schedule shall also require, prior to release of credits, the approval of the financial assurance mechanism established pursuant to Part VI (9VAC25-900-230 et seq.).

C. Registration of nutrient credits. Credits will be placed on the registry and classified as term or perpetual credits by the department. The registry will also indicate the number of credits that have been released for exchange. Only credits released by the department are available for exchange. Exchange of a credit released by the department is:

1. Subject to the provisions of § 62.1-44.15:35, 62.1-44.19:15, or 62.1-44.19:21 of the Code of Virginia; and

2. Where necessary to ensure compliance with local water quality requirements, conditioned as follows:

a. Within the Chesapeake Bay Watershed, the exchange of credits within an area subject to an approved local TMDL for total phosphorus or total nitrogen with allocations more stringent than the Chesapeake Bay Watershed TMDL shall be limited to those credits generated upstream of where the discharge reaches impaired waters and within the approved local TMDL watershed.

b. Within the Southern Rivers watersheds, the exchange of credits within an area subject to an approved local TMDL for total phosphorus or total nitrogen shall be limited to those credits generated upstream of where the discharge reaches impaired waters and within the approved local TMDL watershed.

c. Within an area with waters impaired for dissolved oxygen, benthic community or nutrients but with no approved local TMDL, the exchange of credits shall be limited to those credits generated in accordance with the following hierarchy:

(1) Upstream of where the discharge reaches impaired waters, if credits are available;

(2) Within the same 12-digit HUC, if credits are available;

(3) Within the same 10-digit HUC, if credits are available;

(4) Within the same 8-digit HUC, if credits are available;

(5) Within an adjacent 8-digit HUC within the same tributary, if credits are available; or

(6) Within the same tributary.

The hierarchy of this subdivision shall not apply should it be demonstrated to the department's satisfaction that the water quality impairment is not likely caused by nutrients.

9VAC25-900-100. Establishing baseline.

A. Practices for establishing baseline must be in place prior to the generation of any credits by a nutrient credit-generating entity except in the case of land use conversion as described in subsection E of this section. The practices for establishing baselines, as provided in this section, shall be implemented and properly maintained for each type of operation within the management area. Baselines are applicable statewide for nutrient credit-generating entities including those located in either the Chesapeake Bay Watershed or the Southern Rivers watersheds.

B. Agricultural cropland, hayland, and pastures. The baseline for agricultural management areas are those practices implemented to achieve a level of reduction assigned in the WIP or an approved TMDL. Baselines for cropland, hayland, or pastures within the management area shall be established in accordance with either subdivision 1, 2, or 3 of this subsection.

1. The owner holds a valid Certificate of Resource Management Plan Implementation for the management area that has been issued pursuant to the Resource Management Plans regulation (4VAC50-70).

2. If the owner does not hold a valid Certificate of Resource Management Plan Implementation for the management area, he shall implement the following practices for establishing baseline:

a. Soil conservation. Soil conservation practices for the management area shall be implemented and maintained to achieve a maximum soil loss rate not to exceed "T" and to address gross erosion when it is present as gullies or other severely eroding conditions.

b. Nutrient management. Implementation and maintenance of the nutrient management practices required by the nutrient management plan written by a certified nutrient management planner pursuant to the Nutrient Management Training and Certification Regulations (4VAC50-85).

c. Riparian buffer. A woodland or grass riparian buffer shall be installed and maintained around all water bodies with perennial flow within the management area and shall be installed and maintained along all water bodies with perennial flow bordering the management area. The riparian buffer shall be a minimum width of 35 feet as measured from the top of the channel bank to the edge of the cropland, hayland, or pasture and in accordance with DCR Specifications for NO. FR-3 or DCR Specifications for NO. WQ-1 contained in the VACS BMP Manual.

d. Cover crop. For croplands, cover crops shall be planted to meet the standard planting date and other specifications in accordance with DCR Specifications for NO. SL-8B contained in the VACS BMP Manual. This requirement applies to all croplands where summer annual crops are grown and the summer annual crop receives greater than a total of 50 pounds per acre of nitrogen application from any nutrient source; however, if the cropland is planted to winter cereal crops for harvest in the spring, then cover crops do not need to be planted on these croplands during that production year.

e. Livestock water body exclusion. For pastures or when livestock are present within the management area, livestock exclusion fencing shall be placed around perennial streams, rivers, lakes, ponds, or other water bodies having perennial flow. This exclusionary fencing shall be constructed in accordance with DCR Specification NO. WP-2 contained in the VACS BMP Manual in order to restrict livestock access to the water body. Livestock shall be provided with an alternative watering source. The livestock exclusion fencing shall be placed at least 35 feet from the top of the channel bank and this exclusion zone shall contain the riparian buffer required by subdivision 2 c of this subsection. Access points for livestock watering or crossing over a water body shall be a hardened surface constructed to DCR Specifications for NO. WP-2 contained in the VACS BMP Manual and shall be fenced to limit livestock access to the water body at the crossing point. Ponds that have been specifically built for the purpose of livestock watering and that do not have perennial flow through an overflow pipe or spillway are not required to meet the provisions of this subdivision.

3. The department may approve a load-based baseline determination equivalent to full implementation of the practices identified in subdivision 2 of this subsection.

C. Agricultural animal feeding operations. Baselines for agricultural animal feeding operations within the management area shall be established in accordance with either subdivision 1 or 2 of this subsection:

1. The animal feeding operation within the management area has a valid VPDES or VPA permit in compliance with the board's regulations.

2. For animal feeding operations excluded from or not required to hold a VPDES or VPA permit under the board's regulations, the practices for establishing baseline shall be implemented and properly maintained as required in this subdivision 2.

a. Implementation and maintenance of the nutrient management practices required by the nutrient management plan written by a certified nutrient management planner pursuant to the Nutrient Management Training and Certification Regulations (4VAC50-85).

b. For animal feeding operations, except confined poultry operations, a storage facility designed and operated to prevent point source discharges of pollutants to state waters except in the case of a storm event greater than a 25-year/24-hour storm and to provide adequate waste storage capacity to accommodate periods when the ground is frozen or saturated, periods when land application of nutrients should not occur due to limited or nonexistent crop nutrient uptake, and periods when physical limitations prohibit the land application of waste shall be implemented and maintained.

c. For confined poultry operations, storage of poultry waste according to the nutrient management plan and in a manner that prevents contact with surface water and groundwater. Poultry waste that is stockpiled outside of the growing house for more than 14 days shall be kept in a facility or at a location that provides adequate storage. Adequate storage management practices shall meet the following minimum requirements:

(1) The poultry waste shall be covered to protect it from precipitation and wind.

(2) Stormwater shall not run onto or under the area where the poultry waste is stored.

(3) The ground surface of the poultry waste storage area shall have a minimum of two feet separation distance to the seasonal high water table. If poultry waste is stored in an area where the seasonal high groundwater table lies within two feet of the ground surface, the storage area shall be underlain by a low-permeability, hard-surfaced barrier such as concrete or asphalt.

(4) For poultry waste that is not stored inside or under a roofed structure, the storage area must be at least 100 feet from any surface water, intermittent drainage, wells, sinkholes, rock outcrops, and springs.

D. Urban practices. Baselines for urban development are applicable to the entire management area. Achievement of baseline for new development, redevelopment, or retrofits to existing development shall be required prior to generation of credits. These baselines are:

1. For new development and redevelopment, baseline shall be achieved through compliance with the post-construction water quality design criteria requirements of the Virginia Stormwater Management Program (VSMP) Regulation under 9VAC25-870-63. Additionally, for development in a locality with a local stormwater management design criteria more stringent than 9VAC25-870-63, baselines shall be achieved through compliance with the local stormwater management ordinance.

2. For retrofits within the Chesapeake Bay Watershed, baseline shall be at a level necessary to achieve the nutrient reduction assigned in the urban sector of the WIP or the approved local TMDL, whichever is more stringent.

3. For retrofits within the Southern Rivers watersheds and within a watershed with an approved TMDL with total phosphorus or total nitrogen allocations, baselines shall be at a level necessary to achieve reductions of the approved TMDL. For all other retrofits within the Southern Rivers watersheds, baseline shall be achieved through compliance with the post-construction water quality design criteria requirements for development on prior developed lands pursuant to 9VAC25-870-63 A 2.

E. Land use conversions. Baselines for land use conversion shall be established using the preconversion land use. The preconversion land use shall be based on the land use as of (i) July 1, 2005, for a nutrient credit-generating entity located within the Chesapeake Bay Watershed; (ii) the date of the approved TMDL for a nutrient credit-generating entity located within a TMDL watershed but not within the Chesapeake Bay Watershed; or (iii) July, 1, 2009, for a nutrient credit-generating entity not within an approved TMDL watershed or the Chesapeake Bay Watershed.

F. Other nutrient credit-generating entities. The department shall establish baselines for other nutrient credit-generating entities not otherwise regulated by subsections B through E of this section. The practices necessary for establishing baseline at these other nutrient credit-generating entities shall be in accordance with the requirements of the WIP or the approved TMDL and shall utilize the best available scientific and technical information regarding the practices.

9VAC25-900-110. Credit calculation procedures.

A. Pursuant to this section, the applicant shall calculate the potential nutrient credits generated by the practices implemented at the nutrient credit-generating entity. The applicable delivery factors, dependent upon the tributary in which the nutrient credit-generating entity is located, shall be applied when calculating the potential credits generated.

B. For agricultural practices, except land use conversion, the potential nutrient credits shall be calculated using removal efficiencies for practices approved by the department. In the Chesapeake Bay Watershed, these practices shall be approved by the department based on the efficiencies assigned by the Chesapeake Bay Program. In the Southern Rivers watersheds, these practices shall be approved by the department based on submitted calculations and demonstrations. The standards and specifications for implementation of the practices will be established by the department and shall be in accordance with the VACS BMP Manual or the FOTG, as applicable.

C. For urban practices, the potential nutrient credits shall be calculated using the applicable removal efficiencies pursuant to 9VAC25-870-65 or using the best available scientific and technical information available at the time of nutrient credit certification as approved by the department. Limitations on potential nutrient credits from certain BMPs are:

1. In the Chesapeake Bay Watershed, nutrient load reductions from practices in place prior to July 1, 2005, may not be used to generate credits.

2. In the Southern Rivers watersheds, nutrient load reductions from practices in place prior to July 1, 2009, may not be used to generate credits.

D. For land use conversions, conversion of land to a more intensive land use activity will not generate nutrient credits. The number of potential nutrient credits shall be determined by calculating the nutrient credits per acre and multiplying that number by the total acreage that will undergo land use conversion. The nutrient credits per acre is equal to the amount calculated by subtracting the load per acre of nutrient nonpoint source pollution for the proposed land use after conversion from the load per acre for the preconversion land use. The values used for the loadings per acre in this calculation shall be based on the applicable loading levels provided in the WIP or the approved TMDL. The preconversion land use shall be based on the land use as of the date specified in 9VAC25-900-100 E. The load per acre for the preconversion land use shall reflect the implementation of any applicable baseline practices necessary to comply with 9VAC25-900-100 B, C, and D. No credits shall be generated from the conversion of land within 35 feet of a water body with perennial water flow as measured from the top of the channel bank.

E. For a practice not previously approved by the department, the department will perform a case-by-case review in order to calculate the number of potential nutrient credits generated. The owner shall submit the removal efficiency calculation information for the practice and the calculation of the potential number of credits generated using that efficiency. The department may also request that the submittal include requirements for demonstration projects, the collection of sufficient data to evaluate the results, and any other information the department deems necessary to determine the validity of the credits.

9VAC25-900-120. Implementation plan.

A. The implementation plan submitted pursuant to 9VAC25-900-80 shall provide information detailing how the nutrient credit-generating entity will generate credits for the term of the credits. The implementation plan will include the applicable information as required in subsections B through I of this section.

B. For all nutrient credit-generating entities, the implementation plan shall include:

1. An operation and maintenance plan that provides a description and schedule of operation and maintenance requirements and detailed written specifications and process diagrams for the practices used at the nutrient credit-generating entity. The plan must be adhered to for the term of the credits and shall include a description of site management activities to be performed after meeting all performance standards to ensure long-term sustainability of the site.

2. The performance standards that shall be used to evaluate whether the nutrient credit-generating entity is generating credits as calculated in 9VAC25-900-110.

3. Applicable requirements for the project required pursuant to Part IV (9VAC25-900-140 et seq.).

C. For nutrient credit-generating entities utilizing managed afforestation land use conversion, the implementation plan shall also include:

1. A project plan submitted in the form required by the department and prepared by a person trained in (i) forestry management, (ii) nutrient management, or (iii) other applicable land management training that includes an understanding of whole land management planning. The project plan shall include, but is not limited to (i) methods for invasive plant species control and eradication if woody invasive plant species impacts 5.0% or more of the nutrient credit-generating entity's acreage; (ii) a requirement that any harvesting of timber shall adhere to best management practices as set forth by DOF's Water Quality Guide and any other applicable local, state, or federal laws or requirements; (iii) the land management goals; (iv) a statement that no fertilizer is to be used on the nutrient credit-generating entity's land conversion acreage for the term of the credit generated; (v) a planting plan to include size, species, and spacing of trees; and (vi) any planting phases planned for the project if the area will not be planted all at one time, but will be planted in different phases. Additionally, if timbering is planned within the land conversion area, a copy of the timbering plan shall be submitted to the department at least 90 days prior to the occurrence of any land disturbance or timbering.

2. Provisions for planting forests to achieve an initial survival density of a minimum of 400 woody stems per acre including any noninvasive volunteers. Survival of planted deciduous trees shall not be established until the start of the second complete growing season following planting. Survival of planted evergreen trees may be established after completion of the first complete growing season following planting.

3. A description of agricultural baseline requirements implemented in accordance with 9VAC50-900-100 B and C that apply to any remaining portions of the management area that are not undergoing land use conversion.

4. Performance standards and reporting procedures demonstrating ongoing compliance with the baseline requirements of 9VAC25-900-100 B and C.

D. For nutrient credit-generating entities utilizing natural succession land use conversion, the implementation plan shall also include provisions for:

1. Forests to achieve an initial density of a minimum of 400 noninvasive woody stems per acre.

2. Invasive plant species control and eradication if woody invasive plant species impacts 5.0% or more of the nutrient credit-generating entity's acreage.

3. A description of agricultural baseline requirements implemented in accordance with 9VAC25-900-100 B and C that apply to any remaining portions of the management area not undergoing land use conversion.

4. Performance standards for demonstrating ongoing compliance with the agricultural baseline requirements of 9VAC25-900-100 B and C.

E. For nutrient credit-generating entities utilizing other land use conversion not subject to either subsection C, D, or G of this section, the implementation plan shall also include:

1. Description of the land use conversion project and its implementation and maintenance criteria.

2. Description of the applicable baseline practices implemented in accordance with 9VAC25-900-100 for the management area including the nutrient credit-generating entity.

3. Performance standards and reporting procedures demonstrating ongoing compliance with the baseline practices requirements of 9VAC25-900-100.

F. For nutrient credit-generating entities utilizing non-land use conversion agricultural practices, the implementation plan shall also include:

1. A description of the entire management area. This description shall include (i) the acreage and use including descriptions for the proposed practices of the nutrient credit-generating entity and baseline area or areas; (ii) water features including all streams, ponds, lakes, and wetlands; (iii) environmentally sensitive sites as defined in 4VAC50-85-10; (iv) areas with highly erodible soils; and (v) the current agricultural operations, crops, or animal facilities.

2. Copies of the current nutrient management plans developed by a certified nutrient management planner and approved by the department and any soil conservation plans completed by a certified conservation planner.

3. Information on the location and status of all existing and proposed BMPs including implementation schedules, lifespan, and maintenance procedures for each BMP that constitutes the baseline requirements.

G. For nutrient credit-generating entities utilizing existing wetland and stream mitigation projects pursuant to § 62.1-44.15:23 of the Code of Virginia, the implementation plan shall also include:

1. A copy of the approved mitigation banking instrument.

2. A plan clearly delineating and labeling areas to be considered for credit conversion.

3. A spreadsheet or table listing each labeled area. For each labeled area, the table shall include:

a. The type of eligible land use conversion;

b. The acreage of the area;

c. The available mitigation credits;

d. The potential nutrient credits; and

e. The ratio of mitigation credits to nutrient credits.

4. Documentation that complies with the department-approved procedure to ensure credits are not used for both wetland or stream credit and nutrient credit purposes. This documentation shall include the approval by the mitigation banking Interagency Review Team.

H. For nutrient credit-generating entities utilizing urban practices, the implementation plan shall also include:

1. A description of the contributing drainage area (CDA) for the proposed nutrient credit-generating entity's BMP. This description shall include (i) the acreage and land covers (e.g., impervious, forest or open space, managed turf, etc.); (ii) water features including all streams, ponds, lakes, and wetlands; (iii) identification of all impaired waters and approved TMDLs; and (iv) identification/mapping of the soil types within the CDA, by USDA hydrological soil group.

2. A list of all of the current urban nutrient management plans developed by a certified nutrient management planner and being implemented within the CDA.

3. Information on the location and description of existing BMPs within the CDA. For BMPs that constitute the baseline requirements include implementation schedules, lifespan, and maintenance procedures.

4. For development and redevelopment projects, the implementation plan shall include the erosion and sediment control plan and the stormwater management plan developed in accordance 9VAC25-870.

5. For retrofits, the implementation plan shall include relevant credit calculations and documentation as deemed appropriate by the department.

I. For other types of activities or projects not presented in subsections C through H of this section, the implementation plan shall include information as deemed appropriate by the department in order to evaluate the credits for nutrient credit certification.

9VAC25-900-130. Signature requirements.

A. All applications for certification of nutrient credits shall be signed as follows:

1. For a corporation, the application shall be signed by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function or any other person who performs similar policy-making or decision-making functions for the corporation or the manager of the nutrient credit-generating entity provided the manager is authorized to make management decisions that govern the operation of the entity;

2. For a partnership or sole proprietorship, the application shall be signed by a general partner or the proprietor, respectively; or

3. For a municipality, state, federal, or other public agency, the application shall be signed by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a federal agency includes the chief executive officer of the agency or a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

B. All reports required by this chapter and other information requested by the department shall be signed by a person described in subsection A of this section or by a duly authorized representative of that person. A person is a duly authorized representative only if:

1. The authorization is made in writing by a person described in subsection A of this section;

2. The authorization specifies either an individual or a position having responsibility for the overall operation of the entity; and

3. The written authorization is submitted to the department.

C. If an authorization under subsection B of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the entity, a new authorization satisfying the requirements of subsection B of this section shall be submitted to the department prior to or together with any reports or information to be signed by an authorized representative.

D. Any person signing a document under subdivision A or B of this section shall certify that all submittals are true, accurate, and complete to the best of his knowledge and belief.

Part IV
Compliance and Enforcement

9VAC25-900-140. Inspections and information to be furnished.

A. The owner of the nutrient credit-generating entity shall allow the director or an authorized representative, including an authorized contractor acting as a representative of the department, upon presentation of credentials, to:

1. Enter the management area including the premises where the nutrient credit-generating entity is located and where records are kept in accordance with this chapter or the nutrient credit certification. Records to be retained include the approved implementation plan, operations and maintenance plan, and, if required, confirmation of financial assurance documents.

2. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this chapter, the approved plans listed in subdivision A 1 of this section, or as otherwise required by the nutrient credit certification. The owner will make available any records requested by the department that detail nutrient credit-generating entity operations, status, records of transactions or other actions that demonstrate the status of credits and operations of the nutrient credit-generating entity including records required to be kept under any implementation plan, operations and maintenance plan, or financial assurance documents;

3. Inspect at reasonable times any entities, equipment, practices, or operations regulated or required under the provisions of this chapter, the approved plans listed in subdivision A 1 of this section, or as otherwise required by the nutrient credit certification; and

4. Sample or monitor at reasonable times, for the purposes of assuring compliance with the provisions of this chapter, the nutrient credit certification, or as otherwise authorized by state law or regulation.

B. For purposes of this section, the time for inspection shall be deemed reasonable during regular business hours. Nothing in this section shall make an inspection unreasonable during an emergency when applicable.

C. The owner of the nutrient credit-generating entity shall furnish to the department, within a reasonable time, any information that the department may request to determine (i) whether cause exists for suspension of nutrient credit exchange, modifying, revoking and recertifying, or terminating nutrient credit certification or (ii) compliance with the provisions of this chapter or the implementation plan, operations and maintenance plan, or financial assurance approved under this chapter. The department may require the owner of the nutrient credit-generating entity to furnish, upon request, such plans, specifications, and other pertinent information as may be necessary to determine the effect of the operation of the nutrient credit-generating entity on the quality of state waters, or such other information as may be necessary to accomplish the purposes of the law. The owner of the nutrient credit-generating entity shall also furnish to the department, upon request, copies of records required to be kept under the provisions of this chapter or the nutrient credit certification including the approved implementation plan, operations and maintenance plan, or proof of financial assurance records.

9VAC25-900-150. Recordkeeping and reporting.

A. The owner of the nutrient credit-generating entity shall maintain all records relevant to the management, operations, and maintenance of the nutrient credit-generating entity, including copies of all reports required by this chapter, the nutrient credit certification or the implementation plan, operations and maintenance plan, or financial assurance approved under this chapter. Records of all data used to complete the application for certification of nutrient credits shall be kept. All records shall be maintained for at least five years following the final exchange of any credits. This period of retention shall be extended automatically during the course of any unresolved litigation regarding the regulated activity or regarding control standards applicable to the owner of the nutrient credit-generating entity, or as requested by the board.

B. All applications, reports, or information submitted to the department shall be signed and certified as required by 9VAC25-900-130.

C. Reporting requirements.

1. The owner of the nutrient credit-generating entity shall give advance notice to the department as soon as possible of any planned physical alterations or additions to the entity when the alteration or addition could change the amount of nutrient reductions generated.

2. The owner of the nutrient credit-generating entity shall give advance notice to the department of any planned changes in the entity that may result in noncompliance with the Act, this chapter, or the nutrient credit certification.

3. Reports of compliance or noncompliance with, or any progress reports on achieving conditions specified in the nutrient credit certification shall be submitted no later than 14 days following each schedule date.

4. Where the owner of the nutrient credit-generating entity becomes aware that incorrect information has been submitted in an application for nutrient credit certification or in any report to the department, the owner shall promptly submit the corrected information.

5. Each owner shall submit an annual report on the status of the nutrient credit-generating entity operations including credit-generating practices, confirmation of the continued implementation and maintenance of practices required to establish baseline in accordance with 9VAC25-900-100, and an up-to-date credit ledger detailing credits available for exchange, credits exchanged, and associated purchaser information. This report shall contain recent photographs of any structural BMPs implemented to achieve baseline or for nutrient credit generation and it shall cover the period from July 1 through June 30 of each year. The report shall be submitted annually by August 15.

6. Exchange of credits shall be recorded on the registry. The exchange of credits by the owner of the nutrient credit-generating entity shall be reported to the department within 14 calendar days of the date of the exchange. This report shall include:

a. The identification for the credits exchanged;

b. The name of and contact information for the buyer;

c. The name of the seller;

d. The amount of credits exchanged; and

e. If applicable, the name of the facility and the associated permit number that shall use the purchased credits.

9VAC25-900-160. Enforcement and penalties.

The board may enforce the provisions of this chapter utilizing all applicable procedures under the State Water Control Law.

9VAC25-900-170. Suspension of credit exchange.

A. If the department tentatively decides to suspend the ability of an owner of a nutrient credit-generating entity to exchange credits, the department shall issue a notice of its tentative decision to the owner. If the department determines that suspension is appropriate, it will also remove the ability for the owner to show credits for exchange on the registry. The ability to exchange credits shall remain suspended until such time as the owner brings the nutrient credit-generating entity into compliance with this chapter and the nutrient credit certification to the department's satisfaction.

B. The following are causes for the department to suspend the exchange of credits:

1. Noncompliance by the owner of the nutrient credit-generating entity with any condition of the nutrient credit certification or any plans approved under or required by the nutrient credit certification or this chapter;

2. Failure of the owner of the nutrient credit-generating entity to disclose fully all relevant material facts or, the misrepresentation of any relevant material facts in applying for certification of nutrient credits or in any other report or document required under the law, this chapter, the nutrient credit certification, or any plans approved or required under the nutrient credit certification;

3. A change in any condition that results in a temporary or permanent elimination of the best management practices approved as part of the nutrient credit certification; or

4. There exists a material change in the basis on which the nutrient credit certification was issued that requires either a temporary or permanent elimination of activities controlled by the nutrient credit certification necessary to protect human health or the environment; however, credit quantities established using the best available scientific and technical information at the time of certification may not be reduced.

9VAC25-900-180. Nutrient credit certification transfer, modification, revocation and recertification, or termination.

A. Nutrient credit certifications may be modified, revoked and reissued, or terminated either at the request of the party holding the certification or upon the department's initiative for cause. The filing of a request by the holder of the nutrient credit certification for a modification, revocation and reissuance, or termination of a certification, or a notification of planned changes or anticipated noncompliance with regulatory requirements does not stay any condition of a nutrient credit certification.

B. If the department decides that a request for modification, revocation and reissuance, or termination is not justified, it shall send the requester a brief response giving a reason for the decision.

C. If the department tentatively decides to modify or revoke and reissue a nutrient credit certification, it may request the submission of a new application.

D. If the department tentatively decides to terminate a nutrient credit certification and the owner of the nutrient credit-generating entity objects, the department shall issue a notice of intent to terminate and shall contemporaneously notify any known buyers of the entity's nutrient credits of its intent to terminate.

E. A certification of nutrient credits may be modified, revoked and reissued, or terminated for cause.

1. Causes for modification. The following are causes for modification, revocation, and reissuance of a certification of nutrient credits:

a. There are material and substantial alterations or additions to the nutrient credit-generating entity that occurred after certification of nutrient credits and that justify the application of conditions that are different or absent in the existing nutrient credit certification.

b. The department has received new technical information that would have justified the application of different conditions at the time of issuance; however, credit quantities established using the best available scientific and technical information at the time of certification may not be reduced.

c. The department determines good cause exists for modification of milestones within the nutrient credit certification.

d. To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining nutrient credit certification conditions.

e. The department has received notification of a proposed transfer of ownership of the nutrient credit-generating entity.

2. Causes for termination. The following are causes for terminating a nutrient credit certification during its term or for denying an application for certification of nutrient credits after notice and opportunity for a hearing:

a. The owner of the nutrient credit-generating entity has violated any regulation or order of the board or department, any provision of the law, or any order of a court, where such violation results in a release of harmful substances into the environment or poses a substantial threat of release of harmful substances into the environment or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations that, in the opinion of the department, demonstrates the owner's disregard for or inability to comply with applicable laws, regulations, or requirements;

b. Noncompliance by the owner of the nutrient credit-generating entity with any condition of the nutrient credit certification or any plans approved under or required by the nutrient credit certification or this chapter;

c. Failure of the owner of the nutrient credit-generating entity to disclose fully all relevant material facts or the misrepresentation of any relevant material facts in applying for a certification of nutrient credits or in any other report or document required under the law, this chapter, the nutrient credit certification, or any plans approved or required under the nutrient credit certification;

d. A determination that the credit-generating activity endangers human health or the environment and can only be regulated to acceptable levels by modification or termination of the nutrient credit certification;

e. A change in any condition that results in a permanent elimination of any of the best management practices approved as part of the nutrient credit certification; or

f. There exists a material change in the basis on which the nutrient credit certification was issued that requires either a temporary or a permanent elimination of activities controlled by the nutrient credit certification necessary to protect human health or the environment; however, credit quantities established using the best available scientific and technical information at the time of certification may not be reduced.

g. Failure of the owner of the nutrient credit-generating entity to operate and maintain the required baseline practices throughout the management area.

F. Except as provided in subsection G of this section, a nutrient credit certification may be transferred to a new owner or operator only if the certification has been modified or revoked and reissued to identify the new owner or operator and incorporate such other requirements as may be necessary under the Act and this chapter.

G. As an alternative to transfers under subsection F of this section, any certification of nutrient credits may be automatically transferred if:

1. The current holder of the certification of nutrient credits notifies the department at least 30 days in advance of the proposed transfer date in subdivision 2 of this subsection;

2. The notice includes a written agreement between the existing and new owners containing a specific date for transfer of responsibility, coverage, and liability for the nutrient credit-generating entity between them; and

3. If the department does not notify the existing holder of the certification of nutrient credits and the proposed holder of its intent to modify or revoke and reissue the nutrient credit certification within the 30 days of receipt of the holder's notification of transfer, the transfer is effective on the date specified in the agreement mentioned in subdivision 2 of this subsection.

H. The department shall follow the applicable procedures in this chapter when terminating any nutrient credit certification, except when the baseline or nutrient reduction practices used at a nutrient credit-generating entity are permanently terminated or eliminated the department may then terminate the nutrient credit certification by notice to the owner of the nutrient credit-generating entity. Termination by notice shall be effective 30 days after notice is sent, unless the owner objects within that time. If the owner objects during that period, the department shall follow the applicable procedures for termination under this section.

Part V
Fees

9VAC25-900-190. Purpose and applicability of fees.

A. The purpose of this part is to establish a schedule of fees collected by the department in the support of its programs under this chapter and as permitted under the Act.

B. This part applies to all persons who submit an application for a certification of nutrient credits in accordance with 9VAC25-900-80. The fees shall be assessed in accordance with this part.

9VAC25-900-200. Determination of application fee amount.

A. Each nutrient credit-generating entity application and each nutrient credit-generating entity modification application is a separate action and shall be assessed a separate fee. The amount of such fees is determined on the basis of this section.

B. Perpetual nutrient credit certifications.

1. An applicant for certification of perpetual nutrient credits is assessed a base fee as shown in Table 1 of 9VAC25-900-220 A.

2. An applicant is assessed a supplementary fee based on the number of potential nutrient credits of phosphorus generated in addition to the base fee specified in subdivision 1 of this subsection. The supplementary fees are shown in Table 1 of 9VAC25-900-220 A.

3. Modifications of approved perpetual nutrient credit certifications will be assessed the base fee only unless the modifications generate additional perpetual credits then a supplementary fee based on the number of additional potential nutrient credits of phosphorus will be assessed in addition to the base fee as specified in subdivision 2 of this subsection.

4. The total fee (base fee plus supplementary fee) shall not exceed $10,000. If the calculated fee is greater than $10,000 then the applicant shall only pay $10,000.

C. Term nutrient credit certifications.

1. An applicant for certification of term nutrient credits is assessed a base fee plus a supplementary fee based on the number of potential term credits and the requested term of those credits as shown in Table 2 of 9VAC25-900-220 A.

2. A modification of an approved term nutrient credit certification is assessed a base fee plus a supplementary fee based on the number of term credits and the requested term of those credits as shown in Table 2 of 9VAC25-900-220A.

3. A renewal will be assessed a base fee plus a supplementary fee based on the number of renewing term credits as shown in Table 3 of 9VAC25-900-220 A if there are (i) no changes to the site or practices that were submitted with the previously approved nutrient credit certification application; (ii) the renewal application submitted is an exact duplicate of the application for the previously approved nutrient credit certification; and (iii) the application is submitted at least 60 days prior to the end date of the term credits for which renewal is sought. If the renewal application is submitted less than 60 days prior to the end date of the term credits, the application shall be deemed a new application and shall be assessed a fee as provided in subdivision 1 of this subsection.

4. The total fee (base fee plus supplementary fee) shall not exceed $10,000. If the calculated fee is greater than $10,000 then the applicant shall only pay $10,000.

9VAC25-900-210. Payment of application fees.

A. Due date. All application fees are due on the day of application and must accompany the application.

B. Method of payment. Fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218. When the department is able to accept electronic payments, payments may be submitted electronically.

C. Incomplete payments. All incomplete payments will be deemed nonpayments.

D. Late payment. Pursuant to 9VAC25-900-80, no applications will be deemed to be complete until the department receives proper payment.

9VAC25-900-220. Application fee schedule.

A. Fees.

Table 1. Perpetual Nutrient Credits Certification Application Fees
Base Fee	$3,000
Supplementary Fees – Total Number of Perpetual Phosphorus Credits (X)
X ≤ 30	$1,000
30 < X ≤ 60	$3,000
60 < X ≤ 90	$5,000
X > 90	$7,000
Table 2. Term Nutrient Credits Certification Application Fees
Base Fee	$3,000
Supplementary Fees	$/(Credit*Term Years)
1st 100 term nutrient credits (1 to 100)	$4.00
2nd 100 term nutrient credits (101 to 200)	$3.00
3rd 100 term nutrient credits (201 to 300)	$2.00
4th 100 term nutrient credits (> 300)	$1.00
Table 3. Renewal Term Nutrient Credits Certification Application Fees
Base Fee	$1,000
Supplementary Fees	$/(Credit*Term Years)
1st 100 term nutrient credits (1 to 100)	$4.00
2nd 100 term nutrient credits (101 to 200)	$3.00
3rd 100 term nutrient credits (201 to 300)	$2.00
4th 100 term nutrient credits (> 300)	$1.00

B. Illustrative examples.

1. Example 1. The applicant is submitting an application for nutrient credit certification of a nutrient credit-generating entity that will generate perpetual credits. The number of potential perpetual credits calculated is 150. The required fee is calculated as follows:

Base fee	$3,000
Supplementary fee for 150 perpetual P credits	+$7,000
Total fee	=$10,000

2. Example 2. The applicant is submitting an application for nutrient credit certification of a nutrient credit-generating entity that generated credits with a five-year term. The number of potential nutrient credits calculated is 275. The required fee is calculated as follows:

Base fee	$3,000
Supplementary fee for 1 to 100 credits	+(100*5*$4)=$2,000
Supplementary fee for 101 to 200 credits	+(100*5*$3)=$1,500
Supplementary fee for 201 to 275 credits	+ (75*5*$2)= $750
Total fee	= $7,250

3. Example 3. The applicant is submitting a renewal application for annual credits generated at a nutrient credit-generating entity for a five-year term. The number of annual credits being renewed for another term is 165. The required fee is calculated as follows:

Base fee	$1,000
Supplementary fee for 1 to 100 credits	+(100*5*$4)=$2,000
Supplementary fee for 101 to 200 credits	+(65*5*$3)=$975
Total fee	= $3,975

Part VI
Financial Assurance

9VAC25-900-230. Financial assurance applicability.

A. An owner of a nutrient credit-generating entity that utilizes structural BMPs for the generation of perpetual credits shall submit and maintain financial assurance in accordance with this part. The financial assurance mechanism shall be submitted to and approved by the department prior to the release of credits.

B. An owner of a nutrient credit-generating entity that utilizes structural BMPs for the generation of term credits with terms that exceed one year shall submit and maintain financial assurance in accordance with this part. The financial assurance mechanism shall be submitted to and approved by the department prior to the release of credits. For the purposes of this part, term credit shall refer to credit with a term greater than one year.

C. An owner of a nutrient credit-generating entity that utilizes structural BMPs for the generation of credits with a term of one year shall not be required to provide financial assurance.

D. When the nutrient credits are generated or used by a locality, authority, utility, sanitation district, or owner operating an MS4 or a point source permitted under 9VAC25-870, the existing tax or rate authority may be used to provide evidence of the financial assurance required pursuant to this part. The locality, authority, utility, sanitation district, or owner shall certify as a condition of their application that such tax or rate authority will be used to ensure an adequate supply of credits to meet the entity's obligation, whether by continued operation and maintenance of the structural BMPs at the nutrient credit-generating entity or by other means.

9VAC25-900-240. Suspension of nutrient credit exchange.

Failure to provide or maintain adequate evidence of financial assurance in accordance with this part shall be cause for the department to suspend the exchange of credits in accordance with 9VAC25-900-170 or terminate the nutrient credit certification in accordance with 9VAC25-900-180.

9VAC25-900-250. Cost estimates for perpetual and term credit nutrient credit-generating entities.

A. The owner of a nutrient credit-generating entity shall prepare for approval by the department a detailed written cost estimate providing the cost of either repairing or restoring and operating and maintaining any structural BMPs generating perpetual nutrient credits or term nutrient credits with a term of greater than one year. This written cost estimate shall be submitted as part of the application in accordance with 9VAC25-900-80 and shall include:

1. For structural BMPs generating perpetual nutrient credits, the cost estimate shall equal the estimated cost for either repairing or restoring the structural BMPs plus the cost for five years of operation and maintenance of the structural BMPs in accordance with the implementation plan.

2. For structural BMPs generating term nutrient credits, the cost estimate shall equal the full cost for either repairing or restoring the structural BMPs plus the cost for the operation and maintenance of the structural BMPs in accordance with the implementation plan for the term of the credits or for five years, whichever is less.

3. The cost estimate shall be based on and include the costs of hiring a third party to either repair or restore and operate and maintain the structural BMPs generating nutrient credits. The third party may not be either a parent corporation or subsidiary of the owner.

B. For a nutrient credit-generating entity generating perpetual credit from structural BMPs, the cost estimate shall be reviewed for sufficiency by the department at least once every five years.

9VAC25-900-260. Financial assurance requirements for term credits.

A. For a nutrient credit-generating entity generating term credits with a term of greater than one year, the owner shall demonstrate financial assurance using any one or a combination of the mechanisms specified in 9VAC25-900-290 through 9VAC25-900-330.

B. The financial assurance mechanism or mechanisms shall provide funding for the full amount of the cost estimate at all times.

C. The financial assurance mechanism or mechanisms used to provide evidence of the financial assurance shall ensure that the funds necessary will be available whenever they are needed.

D. The owner shall provide continuous financial assurance coverage for the term credit nutrient credit-generating entity in accordance with this part until released by the department.

E. After submittal of a complete financial assurance mechanism, the department shall notify the owner of the tentative decision to approve or reject the financial assurance mechanism.

9VAC25-900-270. Financial assurance requirements for perpetual credits.

A. Subject to the requirements and limitations outlined in this section, the owner shall demonstrate financial assurance for the perpetual credit nutrient credit-generating entity using any one or combination of the mechanisms specified in 9VAC25-900-290 through 9VAC25-900-330.

B. The financial assurance mechanism or mechanisms shall provide funding for the full amount of the cost estimate at all times.

C. The owner may only establish or continue to use insurance, as outlined in 9VAC25-900-330, to demonstrate financial assurance for that portion of the total cost estimate that does not include credits that have been exchanged. On an annual basis, the owner shall either establish or increase the noninsurance mechanism or mechanisms outlined in 9VAC25-900-290 through 9VAC25-900-320 in an amount to be determined in accordance with the formula below:

CE/TCIAS * CEDAAP

where:

CE = Cost Estimate

TCIAS = Total Number of Credits Initially Available for Exchange

CEDAAP = Number of Credits Exchanged During the Applicable Annual Period

D. The owner shall establish or increase the mechanism or mechanisms as required by subsection C no later than 30 days after the current anniversary date of the nutrient credit certification. The applicable annual period for credits exchanged is the one culminating on the anniversary date of the nutrient credit certification.

E. The financial assurance mechanisms used to provide evidence of the financial assurance shall ensure that the funds necessary will be available whenever they are needed.

F. After submittal of a complete financial assurance mechanism, the department shall notify the owner of the tentative decision to approve or reject the financial assurance mechanism.

9VAC25-900-280. Allowable financial mechanisms.

Subject to the limitations and requirements outlined in 9VAC25-900-260 and 9VAC25-900-270, an owner of nutrient credit-generating entity using structural BMPs to generate term or perpetual nutrient credits may use any one or combination of mechanisms listed in 9VAC25-900-290 through 9VAC25-900-330 to meet the financial assurance requirements of this part.

9VAC25-900-290. Trust.

A. An owner may satisfy the requirements of this part by establishing a trust fund that conforms to the requirements of this section and by submitting an originally signed triplicate of the trust agreement to the director. The owner shall also place a copy of the trust agreement into the nutrient credit-generating entity's operating record. The trustee for the trust fund shall be a bank or financial institution that has the authority to act as a trustee and whose trust operations are regulated and examined by a state or federal agency.

B. Payments into the trust fund shall be made by the owner whenever necessary under the requirements of 9VAC25-900-260 or 9VAC25-900-270.

C. During any annual period when a payment into the fund is necessary under the requirements outlined in 9VAC25-900-260 and 9VAC25-900-270, the owner must submit the following information to the director no later than the anniversary date of the initial approval by the department of the release of credits for exchange:

1. The calculation for determining the appropriate payment amount into the trust; and

2. A statement from the trustee indicating the amount of the currently required deposit into the trust fund and the subsequent balance of the fund.

D. The owner shall compare the cost estimate with the trustee's most recent annual valuation of the trust fund:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the value of the fund is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, deposit a sufficient amount into the fund so that its value after payment at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner may submit a written request to the director for release of the amount that is in excess of the cost estimate; and

2. Whenever the cost estimate changes. If the value of the fund is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, deposit a sufficient amount into the fund so that its value after payment at least equals the amount of the new estimate, or obtain other financial assurance as specified in this part to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner may submit a written request to the director for release of the amount that is in excess of the cost estimate.

E. Subject to the limitations and requirements outlined in 9VAC25-900-260 and 9VAC25-900-270, if the owner substitutes other financial assurance as specified in this part for all or part of the trust fund, the owner may submit a written request to the director for release of the amount in excess of the current cost estimate covered by the trust fund.

F. Within 60 days after receiving a request from the owner for release of funds as described in subsections E and G of this section, the director shall instruct the trustee to release to the owner such funds as the director deems appropriate, if any, in writing.

G. The director shall agree to terminate the trust when:

1. The owner substitutes alternate financial assurance as specified in this part; or

2. The director notifies the owner that the owner is no longer required by this part to maintain financial assurance for the operation and maintenance or replacement of the nutrient credit-generating entity's structural BMPs.

H. The trust agreement shall be worded as described in 9VAC25-900-350, except that instructions in parentheses are to be replaced with the relevant information and the parantheses deleted, and the trust agreement shall be accompanied by a formal certification of acknowledgment and Schedules A and B.

9VAC25-900-300. Surety bond.

A. An owner may satisfy the requirements of this part by obtaining a surety bond that conforms to the requirements of this section and by submitting an originally signed duplicate of the bond to the department. The surety company issuing the bond shall be licensed to operate as a surety in the Commonwealth of Virginia and be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.

B. Under the terms of the bond, the surety shall become liable on the bond obligation when the owner fails to perform as guaranteed by the bond.

C. The bond shall guarantee that the owner or any other authorized person shall:

1. Operate and maintain or replace any structural BMPs for achieving nutrient reductions at the nutrient credit-generating entity in question and in accordance with the nutrient credit certification;

2. Operate and maintain or replace any structural BMPs following an order to do so that has been issued by the department or by a court.

D. The owner shall compare the cost estimate with the penal sum of the bond:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the penal sum of the bond is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, increase the penal sum of the bond so that its value at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the penal sum of the bond is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to reduce the penal sum of the bond to the amount of the cost estimate; and

2. Whenever the cost estimate changes. If the penal sum of the bond is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, increase the penal sum of the bond so that its value at least equals the amount of the new estimate, or obtain other financial assurance as specified in this part to cover the difference. If the penal sum of the bond is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to reduce the penal sum of the bond to the amount of the cost estimate.

E. The surety bond shall guarantee that the owner shall provide alternate evidence of financial assurance as specified in this part within 60 days after receipt by the department of a notice of cancellation of the bond from the surety.

F. The bond shall remain in force for its term unless the surety sends written notice of cancellation by certified mail to the owner and to the department. Cancellation cannot occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by the department as shown on the signed return receipt. The surety shall provide written notification to the department by certified mail no less than 120 days prior to the expiration date of the bond that the bond will expire and the date the bond will expire.

G. The department shall cash the surety bond if it is not replaced 60 days prior to expiration with alternate evidence of financial assurance acceptable to the department or if the owner fails to fulfill the conditions of the bond.

H. The department shall return the original surety bond to the surety for termination when:

1. The owner substitutes acceptable alternate evidence of financial assurance; or

2. The department notifies the owner that the owner is no longer required by this part to maintain evidence of financial assurance for operation and maintenance or replacement of the structural BMPs at the nutrient credit-generating entity.

I. The surety bond shall be worded as described in 9VAC25-900-350, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.

9VAC25-900-310. Letter of credit.

A. An owner may satisfy the requirements of this part by obtaining an irrevocable standby letter of credit that conforms to the requirements of this section and by submitting an originally signed duplicate of the letter of credit to the department. The issuing institution shall be an entity that has the authority to issue letters of credit in the Commonwealth of Virginia and whose letter-of-credit operations are regulated and examined by a federal agency or the Virginia State Corporation Commission.

B. The letter of credit shall be irrevocable and issued for a period of at least one year. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year. If the issuing institution decides not to extend the letter of credit beyond the current expiration date, it shall, at least 120 days before the expiration date, notify both the owner and the department by certified mail of that decision. The 120-day period will begin on the date of receipt of letter of credit's notice of cancellation by the department as shown on the signed return receipt. If the letter of credit is canceled by the issuing institution, the owner shall obtain alternate evidence of financial assurance to be in effect prior to the expiration date of the letter of credit.

C. The owner shall compare the cost estimate with the face amount of the letter of credit:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the face amount of the letter of credit is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, increase the face amount of the letter of credit so that its value at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the face amount of the letter of credit is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to reduce the face amount of the letter of credit to the amount of the cost estimate; and

2. Whenever the cost estimate changes. If the face amount of the letter of credit is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, increase the face amount of the letter of credit so that its value at least equals the amount of the new estimate or obtain other financial assurance as specified in this part to cover the difference. If the face amount of the letter of credit is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to reduce the face amount of the letter of credit to the amount of the cost estimate.

D. The issuing institution may cancel the letter of credit only if alternate evidence of financial assurance acceptable to the department is substituted as specified in this part or if the owner is released by the department from the requirements of financial assurance.

E. The department shall cash the letter of credit when:

1. The issuing institution has provided proper notification, as outlined in subsection B of this section, of its intent not to renew the letter of credit, and the owner has not, within 30 days prior to expiration, replaced the letter of credit with alternate evidence of financial assurance acceptable to the department; or

2. The owner has failed to operate and maintain or replace the nutrient credit-generating entity's structural BMPs in accordance with this chapter and the nutrient credit certification.

F. The department shall return the original letter of credit to the issuing institution for termination when:

1. The owner substitutes acceptable alternate evidence of financial assurance; or

2. The department notifies the owner that the owner is no longer required by this part to maintain evidence of financial assurance for the structural BMPs at his nutrient credit-generating entity.

G. The letter of credit shall be worded as described in 9VAC25-900-350, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.

9VAC25-900-320. Certificate of deposit.

A. An owner may satisfy the requirements of this chapter, wholly or in part, by obtaining a certificate of deposit and assigning all rights, title, and interest in the certificate of deposit to the department, conditioned so that the owner shall operate and maintain or replace the structural BMPs at the nutrient credit-generating entity. The issuing institution shall be an entity that has the authority to issue certificates of deposit in the Commonwealth of Virginia and whose operations are regulated and examined by a federal agency or the Virginia State Corporation Commission. The owner must submit the originally signed assignment and the originally signed certificate of deposit, if applicable, to the department.

B. The amount of the certificate of deposit shall be at least equal to the approved cost estimate. The owner shall maintain the certificate of deposit and assignment until such time as the owner is released by the department from financial assurance.

C. The owner shall be entitled to demand, receive, and recover the interest and income from the certificate of deposit as it becomes due and payable as long as the market value of the certificate of deposit used continues to at least equal the amount of the current approved cost estimate.

D. The department shall cash the certificate of deposit if the owner has failed to operate and maintain or replace his nutrient credit-generating entity's structural BMPs in accordance with this chapter and the nutrient credit certification.

E. Whenever the approved cost estimate increases to an amount greater than the amount of the certificate of deposit, the owner shall, within 60 days of the increase, cause the amount of the certificate of deposit to be increased to an amount at least equal to the new estimate or obtain another certificate of deposit to cover the increase.

F. The department shall return the original assignment and certificate of deposit, if applicable, to the issuing institution for termination when:

1. The owner substitutes acceptable alternate evidence of financial assurance as specified in this part; or

2. The department notifies the owner that the owner is no longer required to maintain evidence of financial assurance for the structural BMPs.

G. The assignment shall be worded as described in 9VAC25-900-350, except that instructions in parentheses shall be replaced with the relevant information and the parentheses deleted.

9VAC25-900-330. Insurance.

A. An owner may demonstrate financial assurance for replacement costs and operation and maintenance by obtaining insurance that conforms to the requirements of this section. The insurance shall be effective before the credits are released by the department for exchange. The insurer must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia. The owner shall provide the department with an original signed copy of the insurance policy. The department shall be listed as an additional insured on the policy, but the department shall not be obligated for payment of the premium in any manner.

B. The insurance policy shall guarantee that funds will be available to fund the replacement of the structural BMPs and reasonable and necessary costs for the operation and maintenance of the structural BMPs.

C. The insurance policy shall be issued and maintained for a face amount at least equal to the current cost estimate for applicable costs for replacement and operation and maintenance. The term face amount means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount although the insurer's future liability will be lowered by the amount of the payments.

D. The insurance policy shall provide that the insurer shall pay for the replacement and operation and maintenance of the structural BMPs. Justification and documentation of the expenditures must be submitted to and approved by the director. Requests for payment will be granted by the insurer only if the remaining value of the policy is sufficient to cover the remaining costs of replacement and operation and maintenance of the structural BMP, or if the director approves the payment. The insurer shall notify the director when a payment has been made.

E. Each policy shall contain a provision allowing assignment of the policy to a successor owner. Such assignment may be conditional upon consent of the insurer, provided that such consent is not unreasonably refused.

F. The insurance policy shall provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may cancel the policy by sending notice of cancellation by certified mail to the owner and to the department 120 days in advance of cancellation. Within 60 days of receipt of notice from the insurer that it does not intend to renew the policy, the owner shall obtain alternate financial assurance and submit it to the department.

G. The owner may cancel the insurance policy only if alternate financial assurance is substituted as specified in this part, or if the owner is no longer required to demonstrate financial responsibility.

H. Within 10 days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy) of the United States Code, naming an owner as debtor, the owner shall notify the director by certified mail of such commencement.

I. The wording of the insurance endorsement shall be identical to the wording specified in 9VAC25-900-350. ACORD Certificates of Insurance are not valid proof of insurance.

9VAC25-900-340. Incapacity of financial providers or owner.

A. An owner that fulfills the requirements of this part by obtaining a trust fund, a letter of credit, a surety bond, or an insurance policy shall be deemed to be without the required financial assurance in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing a surety bond, letter of credit, or insurance policy to issue such mechanisms. The owner or operator shall establish other financial assurance within 60 days of such event.

B. An owner shall notify the director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy) of the United States Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding. A guarantor of a corporate guarantee as specified in 9VAC20-70-220 shall make such a notification if he is named as debtor, as required under the terms of the corporate guarantee.

9VAC25-900-350. Wording of the financial assurance mechanism.

A. The wording of the financial assurance mechanisms shall be as provided in this section.

B. Wording of trust agreements.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.)

TRUST AGREEMENT

Trust agreement, the "Agreement," entered into as of (date) by and between (name of the owner), a (State) (corporation, partnership, association, proprietorship), the "Grantor," and (name of corporate trustee), a (State corporation) (national bank), the "Trustee."

Whereas, the State Water Control Board has established certain regulations applicable to the Grantor, requiring that the owner of a nutrient credit-generating entity must provide assurance that funds will be available when needed for ( operation and maintenance and/or replacement of the entity,

Whereas, the Grantor has elected to establish a trust to provide (all or part of) such financial assurance for the entity identified herein,

Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee,

Now, therefore, the Grantor and the Trustee agree as follows:

Section 1. Definitions. As used in this Agreement:

A. The term "fiduciary" means any person who exercises any power of control, management, or disposition or renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of this trust fund, or has any authority or responsibility to do so, or who has any authority or responsibility in the administration of this trust fund.

B. The term "Grantor" means the owner who enters into this Agreement and any successors or assigns of the Grantor.

C. The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.

Section 2. Identification of Entity and Cost Estimates. This Agreement pertains to entity(ies) and cost estimates identified on attached Schedule A.

(NOTE: On Schedule A, for each entity list, as applicable, name, address, and the current operation and maintenance and or replacement cost estimates, or portions thereof, for which financial assurance is demonstrated by this Agreement.)

Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of the Department of Environmental Quality, Commonwealth of Virginia. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund is established initially as property consisting of cash or securities, which are acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund will be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee undertakes no responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments to discharge any liabilities of the Grantor established by the Commonwealth of Virginia's Department of Environmental Quality.

Section 4. Payment for (operation and maintenance and/or replacement). The Trustee will make such payments from the Fund as the Department of Environmental Quality, Commonwealth of Virginia will direct, in writing, to provide for the payment of the costs of (operation and maintenance and/or replacement)) of the entity covered by this Agreement. The Trustee will reimburse the Grantor or other persons as specified by the Department of Environmental Quality, Commonwealth of Virginia, from the Fund for (operation and maintenance and/or replacement) expenditures in such amounts as the Department of Environmental Quality will direct, in writing. In addition, the Trustee will refund to the Grantor such amounts as the Department of Environmental Quality specifies in writing. Upon refund, such funds will no longer constitute part of the Fund as defined herein.

Section 5. Payments Comprising the Fund. Payments made to the Trustee for the fund will consist of cash or securities acceptable to the Trustee.

Section 6. Trustee Management. The Trustee will invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with investment guidelines and objectives communicated in writing to the Trustee from time to time by the Grantor, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling and managing the Fund, the Trustee or any other fiduciary will discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of any enterprise of a like character and with like aims; except that:

A. Securities or other obligations of the Grantor, or any other owner of the entity, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 USC § 80a-2(a), will not be acquired or held, unless they are securities or other obligations of the federal or a state government;

B. The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or state government; and

C. The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:

A. To transfer from time to time any or all of the assets of the Fund to any common, commingled or collective trust fund created by the Trustee in which the Fund is eligible to participate subject to all of the provisions thereof, to be commingled with the assets of other trusts participating herein. To the extent of the equitable share of the Fund in any such commingled trust, such commingled trust will be part of the Fund; and

B. To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 USC § 80a-1 et seq., or one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustees may vote such shares in its discretion.

Section 8. Express Powers of Trustee. Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:

A. To sell, exchange, convey, transfer or otherwise dispose of any property held by it, by private contract or at public auction. No person dealing with the Trustee will be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other dispositions;

B. To make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

C. To register any securities held in the fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States government, or any agency or instrumentality thereof with a Federal Reserve Bank, but the books and records of the Trustee will at all times show that all such securities are part of the Fund;

D. To deposit any cash in the fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal or State government; and

E. To compromise or otherwise adjust all claims in favor of or against the Fund.

Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund will be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee will be paid from the Fund.

Section 10. Annual Valuation. The Trustee will annually, at the end of the month coincident with or preceding the anniversary date of establishment of the Fund, furnish the Grantor and to the director of the Department of Environmental Quality, Commonwealth of Virginia, a statement confirming the value of the Trust. Any securities in the Fund will be valued at market value as of no more than 30 days prior to the date of the statement. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the director of the Department of Environmental Quality, Commonwealth of Virginia will constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.

Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee will be fully protected, to the extent permitted by law, in acting upon the advice of counsel.

Section 12. Trustee Compensation. The Trustee will be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.

Section 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon acceptance of the appointment by the successor trustee, the Trustee will assign, transfer and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee and the date on which he assumes administration of the trust will be specified in writing and sent to the Grantor, the director of the Department of Environmental Quality, Commonwealth of Virginia, and the present trustees by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this section will be paid as provided in Section 9.

Section 14. Instructions to the Trustee. All orders, requests and instructions by the Grantor to the Trustee will be in writing, signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendment to Exhibit A. The Trustee will be fully protected in acting without inquiry in accordance with the Grantor's orders, requests and instructions. All orders, requests, and instructions by the Director of the Department of Environmental Quality, Commonwealth of Virginia, to the Trustee will be in writing, signed by the Director and the Trustee will act and will be fully protected in acting in accordance with such orders, requests and instructions. The Trustee will have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or the Commonwealth of Virginia's Department of Environmental Quality hereunder has occurred. The Trustee will have no duty to act in the absence of such orders, requests and instructions from the Grantor and/or the Commonwealth of Virginia's Department of Environmental Quality, except as provided for herein.

Section 15. Notice of Nonpayment. The Trustee will notify the Grantor and the Director of the Department of Environmental Quality, Commonwealth of Virginia, by certified mail within 10 days following the expiration of the 30-day period after the anniversary of the establishment of the Trust, if no payment is received from the Grantor during that period. After the pay-in period is completed, the Trustee is not required to send a notice of nonpayment.

Section 16. Amendment of Agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the Director of the Department of Environmental Quality, Commonwealth of Virginia, or by the Trustee and the Director of the Department of Environmental Quality, Commonwealth of Virginia, if the Grantor ceases to exist.

Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust will be irrevocable and will continue until terminated at the written agreement of the Grantor, the Trustee, and the Director of the Department of Environmental Quality, Commonwealth of Virginia, or by the Trustee and the Director if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, will be delivered to the Grantor.

Section 18. Immunity and Indemnification. The Trustee will not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the Director of the Department of Environmental Quality, Commonwealth of Virginia, issued in accordance with this Agreement. The Trustee will be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.

Section 19. Choice of Law. This Agreement will be administered, construed and enforced according to the laws of the Commonwealth of Virginia.

Section 20. Interpretation. As used in the Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement will not affect the interpretation of the legal efficacy of this Agreement.

In witness whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this Agreement is substantively identical to the wording specified in 9VAC25-900-350 B, as such regulations were constituted on the date shown immediately below.

(Signature of Grantor)
By: (Title)	(Date)
Attest:
(Title)	(Date)
(Seal)
(Signature of Trustee)
By
Attest:
(Title)
(Seal)	(Date)

Certification of Acknowledgment:

COMMONWEALTH OF VIRGINIA

STATE OF __________

CITY/COUNTY OF __________

On this date, before me personally came (owner) to me known, who being by me duly sworn, did depose and say that she/he resides at (address), that she/he is (title) of (corporation), the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she/he signed her/his name thereto by like order.

(Signature of Notary Public)

C. Wording of surety bond guaranteeing performance or payment.

(NOTE: instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.)

PERFORMANCE OR PAYMENT BOND

Date bond executed: __________

Effective date: __________

Principal: (legal name and business address) _____________

Type of organization: (insert "individual," "joint venture," "partnership," or "corporation") _____________

State of incorporation: __________

Surety: (name and business address) _____________

Name, address, and (operation and maintenance and/or replacement) cost estimate for the entity: _____________

Penal sum of bond: $________

Surety's bond number: __________

Know all men by these present, That we, the Principal and Surety hereto are firmly bound to the Department of Environmental Quality, Commonwealth of Virginia, (hereinafter called the Department) in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of each sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.

Whereas, said Principal is required to have from the Department of Environmental Quality, Commonwealth of Virginia, in order to own or operate the, nutrient credit-generating entity identified above, and

Whereas, said Principal is required to provide financial assurance for (operation and maintenance and/or replacement) of the entity as a condition of an order issued by the department,

Now, therefore the conditions of this obligation are such that if the Principal shall faithfully perform (operation and maintenance and/or replacement), whenever required to do so, of the entity identified above in accordance with the order or the (operation and maintenance and/or replacement) submitted to receive and other requirements of as such plan and may be amended or renewed pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended,

Or, if the Principal shall faithfully perform (operation and maintenance and/or replacement) following an order to begin (operation and maintenance and/or replacement) issued by the Commonwealth of Virginia's Department of Environmental Quality or by a court, or following a notice of termination of the permit,

Or, if the Principal shall provide alternate financial assurance as specified in the Department's regulations and obtain the director's written approval of such assurance, within 90 days of the date notice of cancellation is received by the Director of the Department of Environmental Quality from the Surety, then this obligation will be null and void, otherwise it is to remain in full force and effect for the life of the nutrient credit-generating entity identified above.

The Surety shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above. Upon notification by the Director of the Department of Environmental Quality, Commonwealth of Virginia, that the Principal has been found in violation of the requirements of the Department's regulations, the Surety must either perform (operation and maintenance and/or replacement) in accordance with the approved plan and other requirements or forfeit the (operation and maintenance and/or replacement) amount guaranteed for the nutrient credit-generating entity to the Commonwealth of Virginia.

Upon notification by the Director of the Department of Environmental Quality, Commonwealth of Virginia, that the Principal has been found in violation of an order to begin operation and maintenance and/or replacement) the Surety must either perform (operation and maintenance and/or replacement) in accordance with the order or forfeit the amount of the (operation and maintenance and/or replacement) guaranteed for the nutrient credit-generating entity to the Commonwealth of Virginia.

The Surety hereby waives notification of amendments to the operation and maintenance and/or replacement, orders, applicable laws, statutes, rules, and regulations and agrees that such amendments shall in no way alleviate its obligation on this bond.

For purposes of this bond, (operation and maintenance and/or replacement) shall be deemed to have been completed when the Director of the Department of Environmental Quality, Commonwealth of Virginia, determines that the conditions of the approved plan have been met.

The liability of the Surety shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but the obligation of the Surety hereunder shall not exceed the amount of said penal sum unless the Director of the Department of Environmental Quality, Commonwealth of Virginia, should prevail in an action to enforce the terms of this bond. In this event, the Surety shall pay, in addition to the penal sum due under the terms of the bond, all interest accrued from the date the Director of the Department of Environmental Quality, Commonwealth of Virginia, first ordered the Surety to perform. The accrued interest shall be calculated at the judgment rate of interest pursuant to § 6.2-302 of the Code of Virginia.

The Surety may cancel the bond by sending written notice of cancellation to the owner and to the Director of the Department of Environmental Quality, Commonwealth of Virginia, provided, however, that cancellation cannot occur (1) during the 120 days beginning on the date of receipt of the notice of cancellation by the director as shown on the signed return receipt; or (2) while an enforcement action is pending.

The Principal may terminate this bond by sending written notice to the Surety, provided, however, that no such notice shall become effective until the Surety receives written authorization for termination of the bond by the Director of the Department of Environmental Quality, Commonwealth of Virginia.

In witness whereof, the Principal and Surety have executed this Performance Bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety and I hereby certify that the wording of this surety bond is substantively identical to the wording specified in 9VAC25-900-350 C as such regulations were constituted on the date shown immediately below.

Principal

Signature(s): __________

Name(s) and Title(s): (typed)__________

Corporate Surety

Name and Address: __________

State of Incorporation: __________

Liability Limit: $___

Signature(s): __________

Name(s) and Title(s): (typed)__________

Corporate Seal:

D. Wording of irrevocable standby letter of credit.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.)

IRREVOCABLE STANDBY LETTER OF CREDIT

Director

Department of Environmental Quality

P.O. Box 1105

Richmond, Virginia 23218

Dear (Sir or Madam):

We hereby establish our Irrevocable Letter of Credit No...... in your favor at the request and for the account of (owner's name and address) up to the aggregate amount of (in words) U.S. dollars $____, available upon presentation of

1. Your sight draft, bearing reference to this letter of credit No ____ together with

2. Your signed statement declaring that the amount of the draft is payable pursuant to regulations issued under the authority of the Department of Environmental Quality, Commonwealth of Virginia.

The following amounts are included in the amount of this letter of credit: (Insert the nutrient credit-generating entity name and address, and the operation and maintenance and/or replacement cost estimate, or portions thereof, for which financial assurance is demonstrated by this letter of credit.)

This letter of credit is effective as of (date) and will expire on (date at least one year later), but such expiration date will be automatically extended for a period of (at least one year) on (date) and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify you and (owner or operator's name) by certified mail that we decide not to extend the Letter of Credit beyond the current expiration date. In the event you are so notified, unused portion of the credit will be available upon presentation of your sight draft for 120 days after the date of receipt by you as shown on the signed return receipt or while a compliance procedure is pending, whichever is later.

Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we will duly honor such draft upon presentation to us, and we will pay to you the amount of the draft promptly and directly.

I hereby certify that I am authorized to execute this letter of credit on behalf of (issuing institution) and I hereby certify that the wording of this letter of credit is substantively identical to the wording specified in 9VAC25-900-350 D as such regulations were constituted on the date shown immediately below.

Attest:

(Print name and title of official of issuing institution) (Date)

(Signature)	(Date)

This credit is subject to the most recent edition of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600, and any subsequent revisions thereof approved by a congress of the International Chamber of Commerce and adhered to by us. If this credit expires during an interruption of business as described in Article 36 of said Publication 600, the bank hereby specifically agrees to effect payment if this credit is drawn against within thirty (30) days after resumption of our business.

E. Assignment of certificate of deposit account.

City _______________________ ____________, 20___

FOR VALUE RECEIVED, the undersigned assigns all right, title and interest to the Virginia Department of Environmental Quality, Commonwealth of Virginia, and its successors and assigns the Virginia Department of Environmental Quality the principal amount of the instrument, including all moneys deposited now or in the future to that instrument, indicated below:

This assignment includes all interest now and hereafter accrued.

Certificate of Deposit Account No. _____________________

This assignment is given as security to the Virginia Department of Environmental Quality in the amount of _______________________ Dollars ($_____________).

Continuing Assignment. This assignment shall continue to remain in effect for all subsequent terms of the automatically renewable certificate of deposit.

Assignment of Document. The undersigned also assigns any certificate or other document evidencing ownership to the Virginia Department of Environmental Quality.

Additional Security. This assignment shall secure the payment of any financial obligation of the (name of owner) to the Virginia Department of Environmental Quality for operation and maintenance and/or replacement at the (entity name) located (physical address).

Application of Funds. The undersigned agrees that all or any part of the funds of the indicated account or instrument may be applied to the payment of any and all financial assurance obligations of (name of owner) to the Virginia Department of Environmental Quality for operation and maintenance and/or replacement at the (entity name and address). The undersigned authorizes the Virginia Department of Environmental Quality to withdraw any principal amount on deposit in the indicated account or instrument including any interest, if indicated, and to apply it in the Virginia Department of Environmental Quality's discretion to fund (operation and maintenance and/or replacement) at the (entity name) or in the event of (owner) failure to comply with the 9VAC25-900. The undersigned agrees that the Virginia Department of Environmental Quality may withdraw any principal and/or interest from the indicated account or instrument without demand or notice. (The undersigned) agrees to assume any and all loss of penalty due to federal regulations concerning the early withdrawal of funds. Any partial withdrawal of principal or interest shall not release this assignment.

The party or parties to this Assignment set their hand or seals, or if corporate, has caused this assignment to be signed in its corporate name by its duly authorized officers and its seal to be affixed by authority of its Board of Directors the day and year above written.

	SEAL
(Owner)
(print owner's name)
	SEAL
(Owner)
(print owner's name)

THE FOLLOWING SECTION IS TO BE COMPLETED BY THE BRANCH OR LENDING OFFICE:

The signature(s) as shown above compare correctly with the name(s) as shown on record as owner(s) of the Certificate of Deposit indicated above. The above assignment has been properly recorded by placing a hold in the amount of $ _______________________ for the benefit of the Department of Environmental Quality.

The accrued interest on the Certificate of Deposit indicated above shall be maintained to capitalize versus being mailed by check or transferred to a deposit account.

(Signature)	(Date)
(print name)
(Title)

F. Wording of insurance endorsement.

ENDORSEMENT.

[NOTE: The instructions in brackets are to be replaced by the relevant information and the brackets deleted.]

Name: [name of each covered location]

Address: [address of each covered location]

Policy number:

Period of coverage: [current policy period]

Name of Insurer:

Address of Insurer:

Name of insured:

Address of insured:

Endorsement:

1. This endorsement certifies that the policy to which the endorsement is attached provides insurance covering the operation and maintenance and/or replacement in connection with the insured's obligation to demonstrate financial responsibility under the 9VAC25-900).

[List the name(s) and address(es) of the nutrient credit-generating entity(ies)]

for [insert: "operating and maintaining and/or replacement of the nutrient credit-generating entity] in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy;

The limits of liability are [insert the dollar amount of the operation and maintenance and/or replacement], exclusive of legal defense costs, which, if applicable, are subject to a separate limit under the policy. This coverage is provided under [policy number]. The effective date of said policy is [date].

2. The insurance afforded with respect to such occurrences is subject to all of the terms and conditions of the policy; provided, however, that any provisions inconsistent with subsections (a) through (d) for occurrence policies and (a) through (e) for claims-made policies of this paragraph 2 are hereby amended to conform with subsections (a) through (e):

a. Bankruptcy or insolvency of the insured shall not relieve the insurer of its obligations under the policy to which this endorsement is attached.

b. The insurer is liable for the payment of amounts within any deductible applicable to the policy to the provider of operation and maintenance and/or replacement, with a right of reimbursement by the insured for any such payment made by the insurer. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated under another mechanism or combination of mechanisms as specified in 9VAC25-900.

c. Whenever requested by the State Water Control Board, the insurer agrees to furnish to State Water Control Board a signed duplicate original of the policy and all endorsements.

d. The insurer may not fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy.

e. The insured may cancel the insurance policy only if alternate financial assurance is substituted as specified in 9VAC25-900, or if the owner is no longer required to demonstrate financial responsibility in accordance with 9VAC25-900.

f. Cancellation for nonpayment of premium or misrepresentation by the insured will be effective only upon written notice and only after expiration of a minimum of 120 days after a copy of such written notice is received by the insured and the State Water Control Board.

[Insert for claims-made policies:]

g. The insurance covers claims otherwise covered by the policy that are reported to the insurer within six months of the effective date of cancellation or nonrenewal of the policy except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, and exclusions of the policy.

I hereby certify that the wording of this endorsement is in no respect less favorable than the coverage specified in 9VAC25-900. I further certify that the insurer is licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in the Commonwealth of Virginia.

[Signature of authorized representative of insurer]

[Name of person signing]

[Title of person signing], authorized representative of [name of insurer]

[Address of representative]

(Title of person signing)

Signature of witness or notary:

(Date)

DOCUMENTS INCORPORATED BY REFERENCE (9VAC25-900)

DCR Specifications for No. FR-3, Woodland Buffer Filter Area, Virginia Agricultural Cost Share BMP Manual, Program Year 2014, July 2013, Department of Conservation and Recreation

DCR Specifications for No. SL-8B, Small Grain Cover Crop for Nutrient Management and Residue Management, Virginia Agricultural Cost Share BMP Manual, Program Year 2014, July 2013, Department of Conservation and Recreation

DCR Specifications for No. WP-2, Stream Protection, Virginia Agricultural Cost Share BMP Manual, Program Year 2014, July 2013, Department of Conservation and Recreation

DCR Specifications for No. WQ-1, Grass Filter Strips, Virginia Agricultural Cost Share BMP Manual, Program Year 2014, July 2013, Department of Conservation and Recreation

Titles of Regulations: 12VAC30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (amending 12VAC30-50-130, 12VAC30-50-226).

12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-61, 12VAC30-60-143; adding 12VAC30-60-5).

12VAC30-130. Amount, Duration and Scope of Selected Services (adding 12VAC30-130-2000, 12VAC30-130-3000, 12VAC30-130-3010, 12VAC30-130-3020, 12VAC30-130-3030).

Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Effective Date: January 30, 2015.

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.

Summary:

The amendments comply with items in the budget bill that require changes in the provisions of intensive in-home services and community mental health support services to ensure appropriate utilization, cost efficiency, and provider qualifications appropriate to render these services. This action includes: (i) changes to provider qualifications including meeting licensing standards; (ii) marketing requirements and restrictions; (iii) new assessment requirements; and (iv) language enhancements for utilization review requirements to help providers avoid payment retractions. New independent clinical assessments, conducted by local community services boards or behavioral health authorities, are required prior to the onset of specified services until the department's behavioral health services administrator contractor can assume this responsibility. Providers that are permitted to claim Medicaid reimbursement for specific services are specified by license type.

Changes made since publication of the proposed regulation include: (i) terminology changes; (ii) permitting additional provider types to render services (e.g., in addition to Licensed Mental Health Professionals (LMHPs), LMHP-supervisees, LMHP-residents, and LMHP-residents in psychology are added); (iii) adding full-time equivalency of part-time work experience; (iv) providing for different professional employees of the same provider to use electronic health records; (v) providing that the provider secure written permission from the individual before communicating with the individual's primary care provider concerning the receipt of community mental health services; (vi) correctly identifying the Department of Behavioral Health and Developmental Services licenses that certain providers are required to secure prior to becoming a Medicaid provider and rendering services; and (vii) removing the limitation of intensive community treatment services to adults in response to a directive from the Centers for Medicare and Medicaid Services.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

12VAC30-50-130. Skilled nursing facility services, EPSDT, school health services, and family planning.

A. Skilled nursing facility services (other than services in an institution for mental diseases) for individuals 21 years of age or older.

Service must be ordered or prescribed and directed or performed within the scope of a license of the practitioner of the healing arts.

B. Early and periodic screening and diagnosis of individuals under 21 years of age, and treatment of conditions found.

1. Payment of medical assistance services shall be made on behalf of individuals under 21 years of age, who are Medicaid eligible, for medically necessary stays in acute care facilities, and the accompanying attendant physician care, in excess of 21 days per admission when such services are rendered for the purpose of diagnosis and treatment of health conditions identified through a physical examination.

2. Routine physicals and immunizations (except as provided through EPSDT) are not covered except that well-child examinations in a private physician's office are covered for foster children of the local social services departments on specific referral from those departments.

3. Orthoptics services shall only be reimbursed if medically necessary to correct a visual defect identified by an EPSDT examination or evaluation. The department shall place appropriate utilization controls upon this service.

4. Consistent with the Omnibus Budget Reconciliation Act of 1989 § 6403, early and periodic screening, diagnostic, and treatment services means the following services: screening services, vision services, dental services, hearing services, and such other necessary health care, diagnostic services, treatment, and other measures described in Social Security Act § 1905(a) to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services and which are medically necessary, whether or not such services are covered under the State Plan and notwithstanding the limitations, applicable to recipients ages 21 and over, provided for by the Act § 1905(a).

5. Community mental health services. [ These services in order to be covered (i) shall meet medical necessity criteria based upon diagnoses made by LMHPs who are practicing within the scope of their licenses and (ii) are reflected in provider records and on providers' claims for services by recognized diagnosis codes that support and are consistent with the requested professional services. ]

a. Definitions. The following words and terms when used in [ these regulations this section ] shall have the following meanings unless the context clearly indicates otherwise:

"Activities of daily living" means personal care activities and includes bathing, dressing, transferring, toileting, feeding, and eating.

"Adolescent or child" means the individual receiving the services described in this section. [ For the purpose of the use of these terms, adolescent means an individual ages 12-20 years of age; a child means an individual from birth up to 12 years of age. ]

"Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS.

"Care coordination" means collaboration and sharing of information among health care providers, who are involved with an individual's health care, to improve the care.

"Certified [ pre-screener prescreener ]" means an employee of [ either DMAS, a BHSA, or ] the local community services board or behavioral health authority, or its designee, who is skilled in the assessment and treatment of mental illness and has completed a certification program approved by the Department of Behavioral Health and Developmental Services.

"Clinical experience" means [ , ] for the purpose of Medicaid reimbursement of (i) intensive in-home services, (ii) day treatment for children and adolescents, (iii) community-based residential services for children and adolescents who are younger than 21 (Level A), and (iv) therapeutic behavioral services (Level B), providing direct behavioral health services [ on a full-time basis or equivalent hours of part-time work ] to children and adolescents who have diagnoses of mental illness and includes supervised internships, supervised practicums, and supervised field experience [ for the purpose of Medicaid reimbursement of (i) intensive in-home services, (ii) day treatment for children and adolescents, (iii) community-based residential services for children and adolescents who are younger than 21 years of age (Level A), or (iv) therapeutic behavioral services (Level B) ]. Experience shall not include unsupervised internships, unsupervised practicums, and unsupervised field experience. [ The equivalency of part-time hours to full-time hours for the purpose of this requirement shall be as established by DBHDS in the document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013. ]

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

"DMAS" means the Department of Medical Assistance Services and its contractor or contractors.

"Human services field" means [ , for the purpose of (i) intensive in-home, (ii) day treatment for children and adolescents, (iii) community-based residential services for children and adolescents younger than 21 (Level A), and (iv) therapeutic behavioral services (Level B), social work, psychology, sociology, counseling, special education, human child or family development, cognitive or behavioral sciences, marriage and family therapy, or art or music therapy the same as the term is defined by DBHDS in the document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013 ].

"Individual service plan" or "ISP" means the same as the term is defined in 12VAC30-50-226.

"Licensed mental health professional" or "LMHP" means [ the same as the term defined in 12VAC35-105-20 a licensed physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed substance abuse treatment practitioner, licensed marriage and family therapist, or certified psychiatric clinical nurse specialist.

"LMHP-resident" or "LMHP-R" means the same as "resident" as defined in (i) 18VAC115-20-10 for licensed professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment practitioners. An LMHP-resident shall be in continuous compliance with the regulatory requirements of the applicable counseling profession for supervised practice and shall not perform the functions of the LMHP-R or be considered a "resident" until the supervision for specific clinical duties at a specific site has been preapproved in writing by the Virginia Board of Counseling. For purposes of Medicaid reimbursement to their supervisors for services provided by such residents, they shall use the title "Resident" in connection with the applicable profession after their signatures to indicate such status.

"LMHP-resident in psychology" or "LMHP-RP" means the same as an individual in a residency, as that term is defined in 18VAC125-20-10, program for clinical psychologists. An LMHP-resident in psychology shall be in continuous compliance with the regulatory requirements for supervised experience as found in 18VAC125-20-65 and shall not perform the functions of the LMHP-RP or be considered a "resident" until the supervision for specific clinical duties at a specific site has been preapproved in writing by the Virginia Board of Psychology. For purposes of Medicaid reimbursement by supervisors for services provided by such residents, they shall use the title "Resident in Psychology" after their signatures to indicate such status.

"LMHP-supervisee in social work," "LMHP-supervisee," or "LMHP-S" means the same as "supervisee" as defined in 18VAC140-20-10 for licensed clinical social workers. An LMHP-supervisee in social work shall be in continuous compliance with the regulatory requirements for supervised practice as found in 18VAC140-20-50 and shall not perform the functions of the LMHP-S or be considered a "supervisee" until the supervision for specific clinical duties at a specific site is preapproved in writing by the Virginia Board of Social Work. For purposes of Medicaid reimbursement to their supervisors for services provided by supervisees, these persons shall use the title "Supervisee in Social Work" after their signatures to indicate such status. ]

"Progress notes" means individual-specific documentation that contains the unique differences particular to the individual's circumstances, treatment, and progress that is also signed and contemporaneously dated by the provider's professional staff who have prepared the notes. Individualized and member-specific progress notes are part of the minimum documentation requirements and shall convey the individual's status, staff interventions, and, as appropriate, [ the individual's ] progress [ , or lack of progress, ] toward goals and objectives in the ISP. The progress notes shall also include, [ as at ] a minimum, the name of the service rendered, the date of the service rendered, the signature and credentials of the person who rendered the service, the setting in which the service was rendered, and the amount of time or units/hours required to deliver the service. The content of each progress note shall corroborate the time/units billed. Progress notes shall be documented for each service that is billed.

[ "Psychoeducation" means (i) a specific form of education aimed at helping individuals who have mental illness and their family members or caregivers to access clear and concise information about mental illness and (ii) a way of accessing and learning strategies to deal with mental illness and its effects in order to design effective treatment plans and strategies.

"Psychoeducational activities" means systematic interventions based on supportive and cognitive behavior therapy that emphasizes an individual's and his family's needs and focuses on increasing the individual's and family's knowledge about mental disorders, adjusting to mental illness, communicating and facilitating problem solving and increasing coping skills. ]

"Qualified mental health professional-child" or "QMHP-C" means the same as the term is defined in 12VAC35-105-20.

[ "Qualified mental health professional-eligible" or "QMHP-E" means the same as the term is defined in 12VAC35-105-20 and consistent with the requirements of 12VAC35-105-590. ]

"Qualified paraprofessional in mental health" or "QPPMH" means the same as the term is defined in 12VAC35-105-20 [ and consistent with the requirements of 12VAC35-105-1370 ].

"Service-specific provider [ assessment" intake" ] means the face-to-face interaction in which the provider obtains information from the child or adolescent, and parent or other family member or members, as appropriate, about [ the child's or adolescent's mental ] health status. It includes documented history of the severity, intensity, and duration of [ mental ] health care problems and issues and shall contain all of the following elements: (i) the presenting issue/reason for referral, (ii) mental health history/hospitalizations, (iii) previous interventions by providers and timeframes and response to treatment, (iv) medical profile, (v) developmental history including history of abuse, if appropriate, (vi) educational/vocational status, (vii) current living situation and family history and relationships, (viii) legal status, (ix) drug and alcohol profile, (x) resources and strengths, (xi) mental status exam and profile, (xii) diagnosis, (xiii) professional [ assessment ] summary and clinical formulation, (xiv) recommended care and treatment goals, and (xv) the dated signature of the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ].

a. b. Intensive in-home services [(IIH)] to children and adolescents under age 21 shall be time-limited interventions provided [ typically but not solely in the residence in the individual's residence and when clinically necessary in community settings. All interventions and the settings of the intervention shall be defined in the Individual Service Plan. All IIH services shall be designed to specifically improve family dynamics, provide modeling, and the clinically necessary interventions that increase functional and therapeutic interpersonal relations between family members in the home. IIH services are designed to promote psychoeducational benefits in the home setting ] of a child an individual who is at risk of being moved into an out-of-home placement or who is being transitioned to home from an out-of-home placement due to a documented medical need of the child individual. These services provide crisis treatment; individual and family counseling; and communication skills (e.g., counseling to assist the child individual and his parents or guardians, as appropriate, to understand and practice appropriate problem solving, anger management, and interpersonal interaction, etc.); case management activities and care coordination with other required services; and 24-hour emergency response.

(1) These services shall be limited annually to 26 weeks. After an initial period, prior authorization is required for Medicaid reimbursement. Service authorization shall be required for Medicaid reimbursement prior to the onset of services. Services rendered before the date of authorization shall not be reimbursed.

(2) Service authorization shall be required for services to continue beyond the initial 26 weeks.

(3) Service-specific provider [ assessments intakes ] shall be required at the onset of services and ISPs shall be required during the entire duration of services. Services based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for service-specific provider [ assessments intakes ] and ISPs are set out in [ 12VAC30-50-130 this section ] .

(4) These services may only be rendered by an LMHP [ or, LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C [ , or a QMHP-E ].

b. c. Therapeutic day treatment [ (TDT) ] shall be provided two or more hours per day in order to provide therapeutic interventions. Day treatment programs, limited annually to 780 units, provide evaluation; medication; education and management; opportunities to learn and use daily living skills and to enhance social and interpersonal skills (e.g., problem solving, anger management, community responsibility, increased impulse control, and appropriate peer relations, etc.); and individual, group and family [ psychotherapy counseling ].

(1) Service authorization shall be required for Medicaid reimbursement.

(2) Service-specific provider [ assessments intakes ] shall be required at the onset of services and ISPs shall be required during the entire duration of services. Services based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for service-specific provider [ assessments intakes ] and ISPs are set out in [ 12VAC30-50-130 this section ].

(3) These services may be rendered only by an LMHP [ or, LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C [ , or a QMHP-E ].

c. d. Community-based services for children and adolescents under 21 [ years of age ] (Level A).

(1) Such services shall be a combination of therapeutic services rendered in a residential setting. The residential services will provide structure for daily activities, psychoeducation, therapeutic supervision, care coordination, and psychiatric treatment to ensure the attainment of therapeutic mental health goals as identified in the individual service plan (plan of care). Individuals qualifying for this service must demonstrate medical necessity for the service arising from a condition due to mental, behavioral or emotional illness that results in significant functional impairments in major life activities in the home, school, at work, or in the community. The service must reasonably be expected to improve the child's condition or prevent regression so that the services will no longer be needed. DMAS will reimburse only for services provided in facilities or programs with no more than 16 beds. The application of a national standardized set of medical necessity criteria in use in the industry, such as McKesson InterQual^® Criteria [ , ] or an equivalent standard authorized in advance by DMAS [ , ] shall be required for this service.

(2) In addition to the residential services, the child must receive, at least weekly, individual psychotherapy that is provided by a licensed mental health professional an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ].

(3) Individuals must shall be discharged from this service when other less intensive services may achieve stabilization.

(4) Authorization is shall be required for Medicaid reimbursement. Services that were rendered before the date of service authorization shall not be reimbursed.

(5) Room and board costs are shall not be reimbursed. Facilities that only provide independent living services are not reimbursed. DMAS shall reimburse only for services provided in facilities or programs with no more than 16 beds.

(6) Providers These residential providers must be licensed by the Department of Social Services, Department of Juvenile Justice, or Department of Education Department of Behavioral Health [ and ] Developmental Services under the Standards for Interdepartmental Regulation of Licensed Children's Residential Facilities (22VAC40-151), Standards for Interim Regulation of Children's Residential Facilities (6VAC35-51), or Regulations for Children's Residential Facilities (22VAC42-10) (12VAC35-46).

(7) Daily progress notes shall document a minimum of seven psychoeducational activities per week. Psychoeducational programming must include, but is not limited to, development or maintenance of daily living skills, anger management, social skills, family living skills, communication skills, [ and ] stress management [ , and any care coordination activities ].

(8) The facility/group home must coordinate services with other providers. Such care coordination shall be documented in the individual's medical record. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

(9) Service-specific provider [ assessments intakes ] shall be required at the onset of services and ISPs shall be required during the entire duration of services. Services based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for [ assessments intakes ] and ISPs are set out in 12VAC30-60-61.

(10) These services may only be rendered by an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C, [ a QMHP-E, ] or a QPPMH.

d. e. Therapeutic behavioral services (Level B).

(1) Such services must be therapeutic services rendered in a residential setting that provides structure for daily activities, psychoeducation, therapeutic supervision, care coordination, and psychiatric treatment to ensure the attainment of therapeutic mental health goals as identified in the individual service plan (plan of care). Individuals qualifying for this service must demonstrate medical necessity for the service arising from a condition due to mental, behavioral or emotional illness that results in significant functional impairments in major life activities in the home, school, at work, or in the community. The service must reasonably be expected to improve the child's condition or prevent regression so that the services will no longer be needed. DMAS will reimburse only for services provided in facilities or programs with no more than 16 beds. The application of a national standardized set of medical necessity criteria in use in the industry, such as McKesson InterQual^® Criteria, or an equivalent standard authorized in advance by DMAS shall be required for this service.

(2) Authorization is required for Medicaid reimbursement. Services that are rendered before the date of service authorization shall not be reimbursed.

(3) Room and board costs are shall not be reimbursed. Facilities that only provide independent living services are not reimbursed. DMAS shall reimburse only for services provided in facilities or programs with no more than 16 beds.

(4) Providers These residential providers must be licensed by the Department of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS) Behavioral Health and Developmental Services (DBHDS) under the Standards Regulations for Interdepartmental Regulation of Children's Residential Facilities (22VAC42-10) (12VAC35-46).

(5) Daily progress notes shall document that a minimum of seven psychoeducational activities per week occurs. Psychoeducational programming must include, but is not limited to, development or maintenance of daily living skills, anger management, social skills, family living skills, communication skills, and stress management. This service may be provided in a program setting or a community-based group home.

(6) The child individual must receive, at least weekly, individual psychotherapy and, at least weekly, group psychotherapy that is provided as part of the program.

(7) Individuals must shall be discharged from this service when other less intensive services may achieve stabilization.

(8) Service-specific provider [ assessments intakes ] shall be required at the onset of services and ISPs shall be required during the entire duration of services. Services that are based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for [ assessments intakes ] and ISPs are set out in 12VAC30-60-61.

(9) These services may only be rendered by an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C, [ a QMHP-E, ] or a QPPMH.

(10) The facility/group home shall coordinate necessary services with other providers. Documentation of this care coordination shall be maintained by the facility/group home in the individual's record. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

6. Inpatient psychiatric services shall be covered for individuals younger than age 21 for medically necessary stays for the purpose of diagnosis and treatment of mental health and behavioral disorders identified under EPSDT when such services are rendered by:

a. A psychiatric hospital or an inpatient psychiatric program in a hospital accredited by the Joint Commission on Accreditation of Healthcare Organizations; or a psychiatric facility that is accredited by the Joint Commission on Accreditation of Healthcare Organizations, the Commission on Accreditation of Rehabilitation Facilities, the Council on Accreditation of Services for Families and Children or the Council on Quality and Leadership.

b. Inpatient psychiatric hospital admissions at general acute care hospitals and freestanding psychiatric hospitals shall also be subject to the requirements of 12VAC30-50-100, 12VAC30-50-105, and 12VAC30-60-25. Inpatient psychiatric admissions to residential treatment facilities shall also be subject to the requirements of Part XIV (12VAC30-130-850 et seq.) of [ this chapter Amount, Duration and Scope of Selected Services ].

c. Inpatient psychiatric services are reimbursable only when the treatment program is fully in compliance with 42 CFR Part 441 Subpart D, as contained in 42 CFR 441.151 (a) and (b) and 441.152 through 441.156. Each admission must be preauthorized and the treatment must meet DMAS requirements for clinical necessity.

7. Hearing aids shall be reimbursed for individuals younger than 21 years of age according to medical necessity when provided by practitioners licensed to engage in the practice of fitting or dealing in hearing aids under the Code of Virginia.

C. School health services.

1. School health assistant services are repealed effective July 1, 2006.

2. School divisions may provide routine well-child screening services under the State Plan. Diagnostic and treatment services that are otherwise covered under early and periodic screening, diagnosis and treatment services, shall not be covered for school divisions. School divisions to receive reimbursement for the screenings shall be enrolled with DMAS as clinic providers.

a. Children enrolled in managed care organizations shall receive screenings from those organizations. School divisions shall not receive reimbursement for screenings from DMAS for these children.

b. School-based services are listed in a recipient's individualized education program (IEP) and covered under one or more of the service categories described in § 1905(a) of the Social Security Act. These services are necessary to correct or ameliorate defects of physical or mental illnesses or conditions.

3. Service providers shall be licensed under the applicable state practice act or comparable licensing criteria by the Virginia Department of Education, and shall meet applicable qualifications under 42 CFR Part 440. Identification of defects, illnesses or conditions and services necessary to correct or ameliorate them shall be performed by practitioners qualified to make those determinations within their licensed scope of practice, either as a member of the IEP team or by a qualified practitioner outside the IEP team.

a. Service providers shall be employed by the school division or under contract to the school division.

b. Supervision of services by providers recognized in subdivision 4 of this subsection shall occur as allowed under federal regulations and consistent with Virginia law, regulations, and DMAS provider manuals.

c. The services described in subdivision 4 of this subsection shall be delivered by school providers, but may also be available in the community from other providers.

d. Services in this subsection are subject to utilization control as provided under 42 CFR Parts 455 and 456.

e. The IEP shall determine whether or not the services described in subdivision 4 of this subsection are medically necessary and that the treatment prescribed is in accordance with standards of medical practice. Medical necessity is defined as services ordered by IEP providers. The IEP providers are qualified Medicaid providers to make the medical necessity determination in accordance with their scope of practice. The services must be described as to the amount, duration and scope.

4. Covered services include:

a. Physical therapy, occupational therapy and services for individuals with speech, hearing, and language disorders, performed by, or under the direction of, providers who meet the qualifications set forth at 42 CFR 440.110. This coverage includes audiology services;.

b. Skilled nursing services are covered under 42 CFR 440.60. These services are to be rendered in accordance to the licensing standards and criteria of the Virginia Board of Nursing. Nursing services are to be provided by licensed registered nurses or licensed practical nurses but may be delegated by licensed registered nurses in accordance with the regulations of the Virginia Board of Nursing, especially the section on delegation of nursing tasks and procedures. the licensed practical nurse is under the supervision of a registered nurse.

(1) The coverage of skilled nursing services shall be of a level of complexity and sophistication (based on assessment, planning, implementation and evaluation) that is consistent with skilled nursing services when performed by a licensed registered nurse or a licensed practical nurse. These skilled nursing services shall include, but not necessarily be limited to dressing changes, maintaining patent airways, medication administration/monitoring and urinary catheterizations.

(2) Skilled nursing services shall be directly and specifically related to an active, written plan of care developed by a registered nurse that is based on a written order from a physician, physician assistant or nurse practitioner for skilled nursing services. This order shall be recertified on an annual basis.

c. Psychiatric and psychological services performed by licensed practitioners within the scope of practice are defined under state law or regulations and covered as physicians' services under 42 CFR 440.50 or medical or other remedial care under 42 CFR 440.60. These outpatient services include individual medical psychotherapy, group medical psychotherapy coverage, and family medical psychotherapy. Psychological and neuropsychological testing are allowed when done for purposes other than educational diagnosis, school admission, evaluation of an individual with [ mental retardation intellectual disability ] prior to admission to a nursing facility, or any placement issue. These services are covered in the nonschool settings also. School providers who may render these services when licensed by the state include psychiatrists, licensed clinical psychologists, school psychologists, licensed clinical social workers, professional counselors, psychiatric clinical nurse specialist, marriage and family therapists, and school social workers.

d. Personal care services are covered under 42 CFR 440.167 and performed by persons qualified under this subsection. The personal care assistant is supervised by a DMAS recognized school-based health professional who is acting within the scope of licensure. This practitioner develops a written plan for meeting the needs of the child, which is implemented by the assistant. The assistant must have qualifications comparable to those for other personal care aides recognized by the Virginia Department of Medical Assistance Services. The assistant performs services such as assisting with toileting, ambulation, and eating. The assistant may serve as an aide on a specially adapted school vehicle that enables transportation to or from the school or school contracted provider on days when the student is receiving a Medicaid-covered service under the IEP. Children requiring an aide during transportation on a specially adapted vehicle shall have this stated in the IEP.

e. Medical evaluation services are covered as physicians' services under 42 CFR 440.50 or as medical or other remedial care under 42 CFR 440.60. Persons performing these services shall be licensed physicians, physician assistants, or nurse practitioners. These practitioners shall identify the nature or extent of a child's medical or other health related condition.

f. Transportation is covered as allowed under 42 CFR 431.53 and described at State Plan Attachment 3.1-D. Transportation shall be rendered only by school division personnel or contractors. Transportation is covered for a child who requires transportation on a specially adapted school vehicle that enables transportation to or from the school or school contracted provider on days when the student is receiving a Medicaid-covered service under the IEP. Transportation shall be listed in the child's IEP. Children requiring an aide during transportation on a specially adapted vehicle shall have this stated in the IEP.

g. Assessments are covered as necessary to assess or reassess the need for medical services in a child's IEP and shall be performed by any of the above licensed practitioners within the scope of practice. Assessments and reassessments not tied to medical needs of the child shall not be covered.

5. DMAS will ensure through quality management review that duplication of services will be monitored. School divisions have a responsibility to ensure that if a child is receiving additional therapy outside of the school, that there will be coordination of services to avoid duplication of service.

D. Family planning services and supplies for individuals of child-bearing age.

1. Service must be ordered or prescribed and directed or performed within the scope of the license of a practitioner of the healing arts.

2. Family planning services shall be defined as those services that delay or prevent pregnancy. Coverage of such services shall not include services to treat infertility nor services to promote fertility.

12VAC30-50-226. Community mental health services.

A. Definitions. The following words and terms when used in [ these regulations this section ] shall have the following meanings unless the context clearly indicates otherwise:

"Certified prescreener" means an employee of either the local community services board community services board/behavioral health authority [ , behavioral health service administrator ] or its designee who is skilled in the assessment and treatment of mental illness and who has completed a certification program approved by DBHDS.

"Clinical experience" means [ , for the purpose of rendering (i) mental health day treatment/partial hospitalization, (ii) intensive community treatment, (iii) psychosocial rehabilitation, (iv) mental health support, (v) crisis stabilization, and (vi) crisis intervention services, ] practical experience in providing direct services on a full-time basis [ (or the equivalent part-time experience as determined by DBHDS in the document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013) ] to individuals with medically-documented diagnoses of mental illness or mental retardation intellectual/developmental disability or the provision of direct geriatric services or full-time [ (or the equivalent part-time experience) ] special education services [ , for the purpose of rendering (i) mental health day treatment/partial hospitalization, (ii) intensive community treatment, (iii) psychosocial rehabilitation, (iv) mental health support, (v) crisis stabilization, or (vi) crisis intervention services ]. Experience may shall include supervised internships, supervised practicums, and or supervised field experience. Experience shall not include unsupervised internships, unsupervised practicums, and unsupervised field experience. This required clinical experience shall be calculated as set forth in [ 12VAC35-105-20 DBHDS document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013 ].

"Code" means the Code of Virginia.

"DBHDS" means the Department of Behavioral Health and Developmental Services consistent with Chapter 3 (§ 37.2-300 et seq.) of Title 37.2 of the Code of Virginia.

"DMAS" means the Department of Medical Assistance Services and its contractor or contractors consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"Human services field" means [ for the purpose of (i) mental health day treatment/partial hospitalization, (ii) intensive community treatment, (iii) psychosocial rehabilitation, (iv) mental health support, (v) crisis stabilization, and (vi) crisis intervention services, social work, gerontology, psychology, psychiatric rehabilitation, special education, sociology, counseling, vocational rehabilitation, behavioral sciences, marriage and family therapy, art or music therapy, and human services counseling ] or other degrees deemed equivalent by DMAS [ the same as defined by DBHDS in the document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013 ].

"Individual" means the patient, client, or recipient of services set out herein described in this section.

"Individual service plan" or "ISP" means a comprehensive and regularly updated statement treatment plan specific to the individual being treated containing, but not necessarily limited to, his treatment or training needs, his goals and measurable objectives to meet the identified needs, services to be provided with the recommended frequency to accomplish the measurable goals and objectives, and estimated timetable for achieving the goals and objectives. The provider shall include the individual in the development of the ISP. To the extent that the individual's condition requires assistance for participation, assistance shall be provided. The ISP shall be updated as the needs and progress of the individual changes. individual's unique treatment needs as identified in the clinical assessment. The ISP contains his treatment or training needs, his goals and measurable objectives to meet the identified needs, services to be provided with the recommended frequency to accomplish the measurable goals and objectives, the estimated timetable for achieving the goals and objectives, and an individualized discharge plan that describes transition to other appropriate services. The [ individual shall be included in the development of the ISP and the ] ISP shall be signed by the individual. If the individual is a [ minor ] child, the ISP shall also be signed by the individual's parent/legal guardian. Documentation shall be provided if the individual, who is a [ minor ] child [ or an adult who lacks legal capacity ], is unable or unwilling to sign the ISP.

"Licensed [ Mental Health Professional" mental health professional" ] or "LMHP" means an individual licensed in Virginia as a physician, a clinical psychologist, a professional counselor, a clinical social worker, or a psychiatric clinical nurse specialist [ the same as defined in 12VAC30-105-20 a licensed physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed substance abuse treatment practitioner, licensed marriage and family therapist, or certified psychiatric clinical nurse specialist ].

[ "LMHP-resident" or "LMHP-R" means the same as "resident" as defined in (i) 18VAC115-20-10 for licensed professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment practitioners. An LMHP-resident shall be in continuous compliance with the regulatory requirements of the applicable counseling profession for supervised practice and shall not perform the functions of the LMHP-R or be considered a "resident" until the supervision for specific clinical duties at a specific site has been preapproved in writing by the Virginia Board of Counseling. For purposes of Medicaid reimbursement to their supervisors for services provided by such residents, they shall use the title "Resident" in connection with the applicable profession after their signatures to indicate such status.

"LMHP-resident in psychology" or "LMHP-RP" means the same as an individual in a residency, as that term is defined in 18VAC125-20-10, program for clinical psychologists. An LMHP-resident in psychology shall be in continuous compliance with the regulatory requirements for supervised experience as found in 18VAC125-20-65 and shall not perform the functions of the LMHP-RP or be considered a "resident" until the supervision for specific clinical duties at a specific site has been preapproved in writing by the Virginia Board of Psychology. For purposes of Medicaid reimbursement by supervisors for services provided by such residents, they shall use the title "Resident in Psychology" after their signatures to indicate such status.

"LMHP-supervisee in social work," "LMHP-supervisee,"or "LMHP-S" means the same as "supervisee" is defined in 18VAC140-20-10 for licensed clinical social workers. An LMHP-supervisee in social work shall be in continuous compliance with the regulatory requirements for supervised practice as found in 18VAC140-20-50 and shall not perform the functions of the LMHP-S or be considered a "supervisee" until the supervision for specific clinical duties at a specific site is preapproved in writing by the Virginia Board of Social Work. For purposes of Medicaid reimbursement to their supervisors for services provided by supervisees, these persons shall use the title "Supervisee in Social Work" after their signatures to indicate such status. ]

"Qualified mental health professional" or "QMHP" means a clinician in the human services field who is trained and experienced in providing psychiatric or mental health services to individuals who have a psychiatric diagnosis. If the QMHP is also one of the defined licensed mental health professionals, the QMHP may perform the services designated for the Licensed Mental Health Professionals unless it is specifically prohibited by their licenses. These QMHPs may be either a:

1. Physician who is a doctor of medicine or osteopathy and is licensed in Virginia;

2. Psychiatrist who is a doctor of medicine or osteopathy, specializing in psychiatry and is licensed in Virginia;

3. Psychologist who has a master's degree in psychology from an accredited college or university with at least one year of clinical experience;

4. Social worker who has a master's or bachelor's degree from a school of social work accredited or approved by the Council on Social Work Education and has at least one year of clinical experience;

5. Registered nurse who is licensed as a registered nurse in the Commonwealth and has at least one year of clinical experience; or

6. Mental health worker who has at least:

a. A bachelor's degree in human services or a related field from an accredited college and who has at least one year of clinical experience;

b. Registered Psychiatric Rehabilitation Provider (RPRP) registered with the International Association of Psychosocial Rehabilitation Services (IAPSRS) as of January 1, 2001;

c. A bachelor's degree from an accredited college in an unrelated field with an associate's degree in a human services field. The individual must also have three years clinical experience;

d. A bachelor's degree from an accredited college and certification by the International Association of Psychosocial Rehabilitation Services (IAPSRS) as a Certified Psychiatric Rehabilitation Practitioner (CPRP);

e. A bachelor's degree from an accredited college in an unrelated field that includes at least 15 semester credits (or equivalent) in a human services field. The individual must also have three years clinical experience; or

f. Four years clinical experience.

"Qualified mental health professional-adult" or "QMHP-A" means the same as defined in 12VAC35-105-20.

"Qualified mental health professional-child" or "QMHP-C" means the same as defined in 12VAC35-105-20.

[ "Qualified mental health professional-eligible" or "QMHP-E" means the same as defined in 12VAC35-105-20. ]

"Qualified paraprofessional in mental health" or "QPPMH" means an individual who meets at least one of the following criteria: the same as defined in 12VAC35-105-20.

1. Registered with the International Association of Psychosocial Rehabilitation Services (IAPSRS) as an Associate Psychiatric Rehabilitation Provider (APRP), as of January 1, 2001;

2. Has an associate's degree in one of the following related fields (social work, psychology, psychiatric rehabilitation, sociology, counseling, vocational rehabilitation, human services counseling) and has at least one year of experience providing direct services to persons with a diagnosis of mental illness;

3. An associate's or higher degree, in an unrelated field and at least three years experience providing direct services to persons with a diagnosis of mental illness, gerontology clients, or special education clients. The experience may include supervised internships, practicums and field experience.

4. A minimum of 90 hours classroom training in behavioral health and 12 weeks of experience under the direct personal supervision of a QMHP providing services to persons with mental illness and at least one year of clinical experience (including the 12 weeks of supervised experience).

5. College credits (from an accredited college) earned toward a bachelor's degree in a human service field that is equivalent to an associate's degree and one year's clinical experience.

6. Licensure by the Commonwealth as a practical nurse with at least one year of clinical experience.

"Register" or "registration" means notifying DMAS or its contractor that an individual will be receiving [ either crisis stabilization or crisis intervention services that do not require service authorization ].

"Service authorization" means the [ final determination of Medicaid reimbursement made by either DMAS or its , service authorization contractor for specified medical services for a specified individual to be rendered by a specified provider. process to approve specific services for an enrolled Medicaid, FAMIS Plus, or FAMIS individual by a DMAS service authorization contractor prior to service delivery and reimbursement in order to validate that the service requested is medically necessary and meets DMAS and DMAS contractor criteria for reimbursement. Service authorization does not guarantee payment for the service. ]

B. Mental health services. The following services, with their definitions, shall be covered: day treatment/partial hospitalization, psychosocial rehabilitation, crisis services, intensive community treatment (ICT), and mental health supports. Staff travel time shall not be included in billable time for reimbursement.

[ 1. These services, in order to be covered, shall meet medical necessity criteria based upon diagnoses made by LMHPs who are practicing within the scope of their licenses and are reflected in provider records and on providers' claims for services by recognized diagnosis codes that support and are consistent with the requested professional services.

2. These services are intended to be delivered in a person-centered manner. The individuals who are receiving these services shall be included in all service planning activities. All services which do not require service authorization require registration. This registration shall transmit to DMAS or its contractor (i) the individual's name and Medicaid identification number; (ii) the specific service to be provided, the relevant procedure code and begin date of the service; and (iii) the provider's name and NPI, a provider contact name and phone number, and email address.

1. 3. ] Day treatment/partial hospitalization services shall be provided in sessions of two or more consecutive hours per day, which may be scheduled multiple times per week, to groups of individuals in a nonresidential setting. These services, limited annually to 780 units, include the major diagnostic, medical, psychiatric, psychosocial, and psychoeducational treatment modalities designed for individuals who require coordinated, intensive, comprehensive, and multidisciplinary treatment but who do not require inpatient treatment. One unit of service shall be defined as a minimum of two but less than four hours on a given day. Two units of service shall be defined as at least four but less than seven hours in a given day. Three units of service shall be defined as seven or more hours in a given day. Authorization is required for Medicaid reimbursement.

a. Day treatment/partial hospitalization services shall be time limited interventions that are more intensive than outpatient services and are required to stabilize an individual's psychiatric condition. The services are delivered when the individual is at risk of psychiatric hospitalization or is transitioning from a psychiatric hospitalization to the community. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual is at risk of psychiatric hospitalization or is transitioning from a psychiatric hospitalization to the community.

b. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from mental, behavioral, or emotional illness that results in significant functional impairments in major life activities. Individuals must meet at least two of the following criteria on a continuing or intermittent basis:

(1) Experience difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of hospitalization or homelessness or isolation from social supports;

(2) Experience difficulty in activities of daily living such as maintaining personal hygiene, preparing food and maintaining adequate nutrition, or managing finances to such a degree that health or safety is jeopardized;

(3) Exhibit such inappropriate behavior that requires the individual requires repeated interventions or monitoring by the mental health, social services, or judicial system that have been documented; or

(4) Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

c. Individuals shall be discharged from this service when they are no longer in an acute psychiatric state and other less intensive services may achieve psychiatric stabilization.

d. Admission and services for time periods longer than 90 calendar days must be authorized based upon a face-to-face evaluation by a physician, psychiatrist, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, or psychiatric clinical nurse specialist.

e. These services may only be rendered by either an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A, QMHP-C, [ QMHP-E, ] or a QPPMH.

[ 2. 4. ] Psychosocial rehabilitation shall be provided at least two or more hours per day to groups of individuals in a nonresidential setting. These services, limited annually to 936 units, include assessment, education to teach the patient about the diagnosed mental illness and appropriate medications to avoid complication and relapse, opportunities to learn and use independent living skills and to enhance social and interpersonal skills within a supportive and normalizing program structure and environment. One unit of service is defined as a minimum of two but less than four hours on a given day. Two units are defined as at least four but less than seven hours in a given day. Three units of service shall be defined as seven or more hours in a given day. Authorization is required for Medicaid reimbursement. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service.

a. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from mental, behavioral, or emotional illness that results in significant functional impairments in major life activities. Services are provided to individuals: (i) who without these services would be unable to remain in the community or (ii) who meet at least two of the following criteria on a continuing or intermittent basis:

a. (1) Experience difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of psychiatric hospitalization, homelessness, or isolation from social supports;

b. (2) Experience difficulty in activities of daily living such as maintaining personal hygiene, preparing food and maintaining adequate nutrition, or managing finances to such a degree that health or safety is jeopardized;

c. (3) Exhibit such inappropriate behavior that repeated interventions documented by the mental health, social services, or judicial system are or have been necessary; or

d. (4) Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or significantly inappropriate social behavior.

b. These services may only be rendered by either an LMHP [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A, QMHP-C, [ QMHP-E, ] or a QPPMH.

[ 3. 5. ] Crisis intervention shall provide immediate mental health care, available 24 hours a day, seven days per week, to assist individuals who are experiencing acute psychiatric dysfunction requiring immediate clinical attention. This service's objectives shall be to prevent exacerbation of a condition, to prevent injury to the client or others, and to provide treatment in the context of the least restrictive setting. Crisis intervention activities shall include assessing the crisis situation, providing short-term counseling designed to stabilize the individual, providing access to further immediate assessment and follow-up, and linking the individual and family with ongoing care to prevent future crises. Crisis intervention services may include office visits, home visits, preadmission screenings, telephone contacts, and other client-related activities for the prevention of institutionalization. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service. The provision of this service to an individual shall be registered with either DMAS or the BHSA [ within one business day or the completion of the service-specific provider intake ] to avoid duplication of services and to ensure informed care coordination. [ This registration shall transmit to DMAS or its contractor: (i) the individual's name and Medicaid identification number; (ii) the specific service to be provided, the relevant procedure code, begin date of the service, and the amount of the service that will be provided; and (iii) the provider's name and NPI, a provider contact name and phone number, and email address. ]

a. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from an acute crisis of a psychiatric nature that puts the individual at risk of psychiatric hospitalization. Individuals must meet at least two of the following criteria at the time of admission to the service:

(1) Experience difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of psychiatric hospitalization, homelessness, or isolation from social supports;

(2) Experience difficulty in activities of daily living such as maintaining personal hygiene, preparing food and maintaining adequate nutrition, or managing finances to such a degree that health or safety is jeopardized;

(3) Exhibit such inappropriate behavior that immediate interventions documented by mental health, social services, or the judicial system are or have been necessary; or

(4) Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or significantly inappropriate social behavior.

b. The annual limit for crisis intervention is 720 units per year. A unit shall equal 15 minutes.

c. These services may only be rendered by an LMHP, [ QMHP-A, or QMHP-C and an LMHP-supervisee, LMHP-resident, LMHP-RP, or ] a certified [ pre-screener prescreener ].

[ 4. 6. ] Intensive community treatment (ICT), initially covered for a maximum of 26 weeks based on an initial service-specific provider [ assessment with continuation intake and may be ] reauthorized for [ up to ] an additional 26 weeks annually based on written [ assessment intake ] and certification of need by a [ qualified licensed ] mental health provider [ (QMHP) (LMHP) ], shall be defined [ as by 12VAC35-105-20 or LMHP-S, LMHP-R, and LMHP-RP and shall include ] medical psychotherapy, psychiatric assessment, medication management, and case management care coordination activities offered to outpatients outside the clinic, hospital, or office setting for individuals who are best served in the community. The annual unit limit shall be 130 units with a unit equaling one hour. Authorization is required for Medicaid reimbursement.

a. To qualify for ICT, the individual must meet at least one of the following criteria:

a. (1) The individual must be at high risk for psychiatric hospitalization or becoming or remaining homeless due to mental illness or require intervention by the mental health or criminal justice system due to inappropriate social behavior.

b. (2) The individual has a history (three months or more) of a need for intensive mental health treatment or treatment for co-occurring serious mental illness and substance use disorder and demonstrates a resistance to seek out and utilize appropriate treatment options.

(1) An b. A written, service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, that documents the individual's eligibility and the need for this service must be completed prior to the initiation of services. This [ assessment intake ] must be maintained in the individual's records.

(2) A service plan must c. An individual service plan shall be initiated at the time of admission and must be fully developed, as defined in [ 12VAC30-50-226 this section ], within 30 days of the initiation of services.

d. The annual unit limit shall be 130 units with a unit equaling one hour.

e. These services may only be rendered by [ an LMHP, QMHP-A, QMHP-C, and QPPMH a team that meets the requirements of 12VAC35-105-1370 ].

[ 5. 7. ] Crisis stabilization services for nonhospitalized individuals shall provide direct mental health care to individuals experiencing an acute psychiatric crisis which may jeopardize their current community living situation. Authorization Services may be authorized for up to a 15-day period per crisis episode following a documented face-to-face service-specific provider [ assessment intake ] by [ a ] QMHP which [ QMHP-A or QMHP-C that is reviewed and approved by ] an LMHP [ within 72 hours of the assessment , LMHP-supervisee, LMHP-resident, or LMHP-RP ]. The maximum limit on this service is up to eight hours (with a unit being one hour) per day up to 60 days annually. Only one unit of service shall be reimbursed for this [ assessment intake ]. The provision of this service to an individual shall be registered with either DMAS or the BHSA [ within one calendar day of the completion of the service-specific provider intake ] to avoid duplication of services and to ensure informed care coordination. [ This registration shall transmit to DMAS or its contractor: (i) the individual's name and Medicaid identification number; (ii) the specific service to be provided, the relevant procedure code, begin date of the service, and the amount of the service that will be provided; and (iii) the provider's name and NPI, a provider contact name and phone number, and email address. (See 12VAC30-50-226 B for registration requirements. ]

a. The goals of crisis stabilization programs shall be to avert hospitalization or rehospitalization, provide normative environments with a high assurance of safety and security for crisis intervention, stabilize individuals in psychiatric crisis, and mobilize the resources of the community support system and family members and others for on-going maintenance and rehabilitation. The services must be documented in the individual's records as having been provided consistent with the ISP in order to receive Medicaid reimbursement.

b. The crisis stabilization program shall provide to recipients individuals, as appropriate, psychiatric assessment including medication evaluation, treatment planning, symptom and behavior management, and individual and group counseling.

c. This service may be provided in any of the following settings, but shall not be limited to: (i) the home of a recipient an individual who lives with family or other primary caregiver; (ii) the home of a recipient an individual who lives independently; or (iii) community-based programs licensed by DBHDS to provide residential services but which are not institutions for mental disease (IMDs).

d. This service shall not be reimbursed for (i) recipients individuals with medical conditions that require hospital care; (ii) recipients individuals with primary diagnosis of substance abuse; or (iii) recipients individuals with psychiatric conditions that cannot be managed in the community (i.e., recipients individuals who are of imminent danger to themselves or others).

e. The maximum limit on this service is 60 days annually.

f. Services must be documented through daily [ progress ] notes and a daily log of times spent in the delivery of services. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from an acute crisis of a psychiatric nature that puts the individual at risk of psychiatric hospitalization. Individuals must meet at least two of the following criteria at the time of admission to the service:

a. (1) Experience difficulty in establishing and maintaining normal interpersonal relationships to such a degree that the individual is at risk of psychiatric hospitalization, homelessness, or isolation from social supports;

b. (2) Experience difficulty in activities of daily living such as maintaining personal hygiene, preparing food and maintaining adequate nutrition, or managing finances to such a degree that health or safety is jeopardized;

c. (3) Exhibit such inappropriate behavior that immediate interventions documented by the mental health, social services, or judicial system are or have been necessary; or

d. (4) Exhibit difficulty in cognitive ability such that the individual is unable to recognize personal danger or significantly inappropriate social behavior.

g. These services may only be rendered by an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A, [ or ] QMHP-C [ and, QMHP-E, or ] a certified [ pre-screener prescreener ].

[ 6. 8. ] Mental health support services (MHSS) shall be defined as training and supports to enable individuals to achieve and maintain community stability and independence in the most appropriate, least restrictive environment. Authorization is required for Medicaid reimbursement. Services that are rendered before the date of service authorization shall not be reimbursed. These services may be authorized for up to six consecutive months as long as the individual meets the coverage criteria for this service. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service. This program shall provide the following services in order to be reimbursed by Medicaid: training in or reinforcement of functional skills and appropriate behavior related to the individual's health and safety, activities of daily living, and use of community resources; assistance with medication management; and monitoring health, nutrition, and physical condition.

a. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from a condition due to mental, behavioral, or emotional illness that results in significant functional impairments in major life activities. Services are provided to individuals who without these services would be unable to remain in the community. The individual must have meet at least two of the following criteria on a continuing or intermittent basis:

(1) Have difficulty in establishing or maintaining normal interpersonal relationships to such a degree that the individual is at risk of psychiatric hospitalization or homelessness or isolation from social supports;

(2) Require help in basic living skills such as maintaining personal hygiene, preparing food and maintaining adequate nutrition or managing finances to such a degree that health or safety is jeopardized;

(3) Exhibit such inappropriate behavior that repeated interventions documented by the mental health, social services, or judicial system are or have been necessary; or

(4) Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

b. The individual must demonstrate functional impairments in major life activities. This may include individuals with a dual diagnosis of either mental illness and [ mental retardation intellectual disability ], or mental illness and substance abuse disorder.

c. Service-specific provider [ assessments intakes ] shall be required at the onset of services and individual service plans (ISPs) shall be required during the entire duration of services. Services based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for provider-specific [ assessments intakes ] and ISPs are set out in 12VAC30-50-130.

c. d. The yearly limit for mental health support services is 372 units. One unit is [ at least ] one hour but less than three hours.

e. These services may only be rendered by an LMHP, [ LMHP-supervisee, LMHP-resident, ] QMHP-A, QMHP-C, [ QMHP-E, ] or QPPMH.

[ DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-50)

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

Length of Stay by Diagnosis and Operation, Southern Region, 1996, HCIA, Inc.

Guidelines for Perinatal Care, 4th Edition, August 1997, American Academy of Pediatrics and the American College of Obstetricians and Gynecologists.

Virginia Supplemental Drug Rebate Agreement Contract and Addenda.

Office Reference Manual (Smiles for Children), prepared by DMAS' Dental Benefits Administrator, copyright 2005 (www.dmas.virginia.gov/downloads/pdfs/dental-office_reference_manual_0 6-09-05.pdf).

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

Virginia Medicaid Durable Medical Equipment and Supplies Provider Manual, Appendix B (rev. 1/11), Department of Medical Assistance Services.

Human Services and Related Fields Approved Degrees/Experience, Department of Behavioral Health and Developmental Services (rev. 5/13) ]

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) [ , service authorization contractor, ] or the [ behavioral health ] service authorization contractor shall be fully substantiated throughout individuals' medical records.

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

C. DMAS, or its designee, shall perform reviews of the utilization of all Medicaid covered services pursuant to [ 42 CFR ] 440.260 and [ 456.1 et seq. 42 CFR Part 456. ]

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

E. 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. Utilization review requirements specific to community mental health services, 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) license shall be either a full [ , ] annual, triennial, or conditional license. Providers must be enrolled with DMAS [ or the BHSA ] to be reimbursed. Once a health care entity has been enrolled as a provider, it shall maintain, and update periodically as DMAS requires, a current Provider Enrollment Agreement for each Medicaid service that the provider offers.

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

3. Payments shall not be permitted to health care entities [ who that ] either hold provisional licenses or [ who ] fail to enter into a Medicaid Provider Enrollment Agreement for a service prior to rendering that service.

[ 4. The behavioral health service authorization contractor shall apply a national standardized set of medical necessity criteria in use in the industry, such as McKesson InterQual Criteria, or an equivalent standard authorized in advance by DMAS. Services that fail to meet medical necessity criteria shall be denied service authorization. ]

12VAC30-60-61. Services related to the Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT); community mental health services for children.

A. Definitions. The following words and terms [ when used in this section ] shall have the following meanings unless the context indicates otherwise:

"At risk" means one or more of the following: (i) within [ the ] two weeks [ after completion of before ] the [ assessment intake ], the individual shall be screened by an LMHP for escalating behaviors that have put either the individual or others at immediate risk of physical injury; (ii) the parent/guardian is unable to manage the individual's mental, behavioral, or emotional problems in the home and is actively, within the past two to four weeks, seeking an out-of-home placement; (iii) a representative of either a juvenile justice agency, a department of social services (either the state agency or local agency), a community services board/behavioral health authority, the Department of Education, or an LMHP, as defined in 12VAC35-105-20, and who is neither an employee of [ or nor ] consultant to the [ IIH intensive in-home (IIH) ] services or therapeutic day treatment (TDT) provider, has recommended an out-of-home placement absent an immediate change of behaviors and when unsuccessful mental health services are evident; (iv) the individual has a history of unsuccessful services (either crisis intervention, crisis stabilization, outpatient psychotherapy, outpatient substance abuse services, or mental health support) within the past 30 days; (v) the treatment team or family assessment planning team (FAPT) recommends IIH services or TDT for an individual currently who is either: (a) transitioning out of residential treatment facility Level C services, (b) transitioning out of a group home Level A or B services, (c) transitioning out of acute psychiatric hospitalization, or (d) transitioning between foster homes, mental health case management, crisis intervention, crisis stabilization, outpatient psychotherapy, or outpatient substance abuse services.

"Failed services" or "unsuccessful services" means, as measured by ongoing behavioral, mental, or physical distress, that the service or services did not treat or resolve the individual's mental health or behavioral issues.

"Individual" means the Medicaid-eligible person receiving these services and for the purpose of this section [ is understood to mean includes ] children [ from birth up to 12 years of age ] or adolescents [ ages 12 through 20 years ].

"New service" means a community mental health rehabilitation service for which the individual does not have a current service authorization in effect as of July 17, 2011.

"Out-of-home placement" means placement in one or more of the following: (i) either a Level A or Level B group home; (ii) regular foster home if the individual is currently residing with his biological family and, due to his behavior problems, is at risk of being placed in the custody of the local department of social services; (iii) treatment foster care if the individual is currently residing with his biological family or a regular foster care family and, due to the individual's behavioral problems, is at risk of removal to a higher level of care; (iv) Level C residential facility; (v) emergency shelter for the individual only due either to his mental health or behavior or both; (vi) psychiatric hospitalization; or (vii) juvenile justice system or incarceration.

"Service-specific provider [ assessment" intake" ] means the evaluation that is conducted according to the Department of Medical Assistance Services (DMAS) [ assessment intake ] definition set out in 12VAC30-50-130.

B. [ These The ] services [ described in this section ] shall be rendered consistent with the definitions, service limits, and requirements described in this section and in 12VAC30-50-130.

A. C. Intensive in-home [ (IIH) ] services for children and adolescents.

1. The service definition for intensive in-home (IIH) services is contained in 12VAC30-50-130.

1. 2. Individuals qualifying for this service must shall demonstrate a clinical necessity for the service arising from mental, behavioral or emotional illness which results in significant functional impairments in major life activities. Individuals must meet at least two of the following criteria on a continuing or intermittent basis to be authorized for these services:

a. Have difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of hospitalization or out-of-home placement because of conflicts with family or community.

b. Exhibit such inappropriate behavior that documented, repeated interventions by the mental health, social services or judicial system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

2. At 3. Prior to admission, an appropriate service-specific provider [ assessment intake ] is made, as defined in 12VAC30-50-130, shall be conducted by the LMHP or the QMHP and approved by the LMHP, licensed mental health professional (LMHP), [ as defined in 12VAC35-105-20, LMHP-supervisee, LMHP-resident, or LMHP-RP, ] documenting that the individual's diagnosis and describing how service needs can best be met through intervention provided typically but not solely in the client's individual's residence. An Individual Service Plan (ISP) must be fully completed within 30 days of initiation of services. The service-specific provider [ assessment intake ] shall describe how the individual's clinical needs put the individual at risk of out-of-home placement and shall be conducted face-to-face in the individual's residence. Claims for services that are based upon service-specific provider [ assessments intakes ] that are incomplete, outdated (more than 12 months old), or missing shall not be reimbursed.

4. An individual service plan (ISP) shall be fully completed, signed, and dated by [ either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C, [ as defined in 12VAC35-105-20, or a QMHP-E ] and the individual and individual's parent/guardian within 30 days of initiation of services. The ISP shall meet all of the requirements as defined in 12VAC30-50-226.

5. DMAS shall not reimburse for dates of services in which the progress notes are not individualized and child-specific. Duplicated progress notes shall not constitute the required child-specific individualized progress notes. Each progress note shall demonstrate unique differences particular to the individual's circumstances, treatment, and progress. Claim payments shall be retracted for services that are supported by documentation that does not demonstrate unique differences particular to the individual.

3. 6. Services must shall be directed toward the treatment of the eligible child individual and delivered primarily in the family's residence with the child individual present. In some circumstances, such as lack of privacy or unsafe conditions, services may be provided in the community if supported by the needs assessment and ISP. [ The assessment may be performed and As clinically indicated, ] the services [ may be ] rendered in the community if there is documentation, on that date of service, of the necessity of providing services in the community. The documentation shall describe how the alternative community service location supports the identified clinical needs of the individual and describe how it facilitates the implementation of the ISP. For services provided outside of the home, there shall be documentation reflecting therapeutic treatment as set forth in the ISP provided for that date of service in the appropriately signed and dated progress notes.

4. 7. These services shall be provided when the clinical needs of the child individual put the child him at risk for out-of-home placement, as these terms are defined in this section:

a. When services that are far more intensive than outpatient clinic care are required to stabilize the child individual in the family situation, or

b. When the child's individual's residence as the setting for services is more likely to be successful than a clinic.

The service-specific provider [ assessment intake ] shall describe how the individual meets either subdivision a or b of this subdivision.

5. Services may not be billed when provided to a family while the child is not residing in the home.

8. Services shall not be provided if the individual is no longer a resident of the home.

6. 9. Services shall also be used to facilitate the transition to home from an out-of-home placement when services more intensive than outpatient clinic care are required for the transition to be successful. The child individual and responsible parent/guardian must shall be available and in agreement to participate in the transition.

7. 10. At least one parent [ parent/guardian parent/legal guardian ] or responsible adult with whom the child individual is living must be willing to participate in the intensive in-home services with the goal of keeping the child individual with the family. [ In the instance of this service, a responsible adult shall be an adult who lives in the same household with the child and is responsible for engaging in therapy and service-related activities to benefit the individual. ]

8. 11. The enrolled [ service ] provider must shall be licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services Behavioral Health and Developmental Services (DBHDS) as a provider of intensive in-home services. The provider shall also have a provider enrollment agreement with DMAS or its contractor in effect prior to the delivery of this service that indicates that the provider will offer intensive in-home services.

9. 12. Services must only be provided by an LMHP [ , LMHP-supervisee, LMHP-resident, LMHP-RP, ] or a, QMHP [ or ] QMHP-C [ as defined in, or QMHP-E ] 12VAC30-50-226 [ 12VAC35-105-20 ]. Reimbursement shall not be provided for such services when they have been rendered by a QPPMH as defined in 12VAC30-50-226 12VAC35-105-20.

10. 13. The billing unit for intensive in-home service is shall be one hour. Although the pattern of service delivery may vary, intensive in-home services is an intensive service provided to individuals for whom there is [ a ] plan of care [ an ] ISP in effect which demonstrates the need for a minimum of three hours a week of intensive in-home service, and includes a plan for service provision of a minimum of three hours of service delivery per client/family individual/family per week in the initial phase of treatment. It is expected that the pattern of service provision may show more intensive services and more frequent contact with the client individual and family initially with a lessening or tapering off of intensity toward the latter weeks of service. Service plans must shall incorporate a an individualized discharge plan which identifies that describes transition from intensive in-home to less intensive or nonhome based services.

14. The ISP, as defined in 12VAC30-50-226, shall be updated as the individual's needs and progress changes and signed by either the parent or legal guardian and the individual. Documentation shall be provided if the individual, who is a minor child, is unable or unwilling to sign the ISP. If there is a lapse in services that is greater than 31 consecutive calendar days [ without any communications from family members/legal guardian or the individual with the service provider ], the provider shall discharge the individual. If the individual continues to need services, then a new [ assessment/admission intake/admission ] shall be documented and a new service authorization shall be required.

11. 15. The provider must shall ensure that the maximum staff-to-caseload ratio fully meets the needs of the individual.

12. Since case management services are an integral and inseparable part of this service, case management services may not be billed separately for periods of time when intensive in-home services are being provided.

16. If an individual receiving services is also receiving case management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the [ service ] provider shall contact the case manager and provide notification of the provision of services. In addition, the provider shall send monthly updates to the case manager on the individual's status. A discharge summary shall be sent to the case manager within 30 days of the service discontinuation date. [ Service providers and case managers who are using the same electronic health record for the individual shall meet requirements for delivery of the notification, monthly updates, and discharge summary upon entry of the information in the electronic health records. ]

13. 17. Emergency assistance shall be available 24 hours per day, seven days a week.

18. Providers shall comply with DMAS marketing requirements at 12VAC30-130-2000. Providers that DMAS determines violate these marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E.

19. The provider shall determine who the primary care provider is and [ , upon receiving written consent from the individual or guardian, shall ] inform him of the individual's receipt of IIH services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

B. D. Therapeutic day treatment for children and adolescents.

1. The service definition for therapeutic day treatment (TDT) for children and adolescents is contained in 12VAC30-50-130.

1. 2. Therapeutic day treatment is appropriate for children and adolescents who meet one of the following:

a. Children and adolescents who require year-round treatment in order to sustain behavior or emotional gains.

b. Children and adolescents whose behavior and emotional problems are so severe they cannot be handled in self-contained or resource emotionally disturbed (ED) classrooms without:

(1) This programming during the school day; or

(2) This programming to supplement the school day or school year.

c. Children and adolescents who would otherwise be placed on homebound instruction because of severe emotional/behavior problems that interfere with learning.

d. Children and adolescents who (i) have deficits in social skills, peer relations or dealing with authority; (ii) are hyperactive; (iii) have poor impulse control; (iv) are extremely depressed or marginally connected with reality.

e. Children in preschool enrichment and early intervention programs when the children's emotional/behavioral problems are so severe that they cannot function in these programs without additional services.

3. The service-specific provider [ assessment intake ] shall document the individual's behavior and describe how the individual meets these specific service criteria in subdivision 2 of this subsection.

4. Prior to admission to this service, a service-specific provider [ assessment intake ] shall be conducted by the LMHP as defined in 12VAC35-105-20.

5. An ISP shall be fully completed, signed, and dated by [ an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C, [ as defined in 12VAC35-105-20, or QMHP-E ] and by the individual or the parent/guardian within 30 days of initiation of services and shall meet all requirements of an ISP as defined in 12VAC30-50-226. Individual progress notes shall be required for each contact with the individual and shall meet all of the requirements as defined in 12VAC30-50-130.

2. 6. Such services must shall not duplicate those services provided by the school.

3. 7. Individuals qualifying for this service must shall demonstrate a clinical necessity for the service arising from a condition due to mental, behavioral or emotional illness which results in significant functional impairments in major life activities. Individuals must shall meet at least two of the following criteria on a continuing or intermittent basis:

a. Have difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of hospitalization or out-of-home placement because of conflicts with family or community.

b. Exhibit such inappropriate behavior that documented, repeated interventions by the mental health, social services, or judicial system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

4. 8. The enrolled provider of therapeutic day treatment for child and adolescents adolescent services must shall be licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services DBHDS to provide day support services. The provider shall also have a provider enrollment agreement in effect with DMAS prior to the delivery of this service that indicates that the provider offers therapeutic day treatment services for children and adolescents.

5. 9. Services must shall be provided by an LMHP [ , LMHP-supervisee, LMHP-resident, LMHP-RP, ] , a QMHP, or a QPPMH who is supervised by a QMHP or LMHP [ or ] QMHP-C [ as defined in 12VAC35-105-20, or QMHP-E ].

6. 10. The minimum staff-to-youth staff-to-individual ratio as defined by DBHDS licensing requirements shall ensure that adequate staff is available to meet the needs of the youth individual identified on the ISP.

7. 11. The program must shall operate a minimum of two hours per day and may offer flexible program hours (i.e., before or after school or during the summer). One unit of service is shall be defined as a minimum of two hours but less than three hours in a given day. Two units of service shall be defined as a minimum of three but less than five hours in a given day. Three units of service shall be defined as five or more hours of service in a given day.

8. 12. Time required for academic instruction when no treatment activity is going on cannot shall not be included in the billing unit.

9. 13. Services shall be provided following a diagnostic service-specific provider [ assessment intake ] that is authorized conducted by an LMHP [ as defined in 12VAC35-105-20, LMHP-supervisee, LMHP-resident, or LMHP-RP ]. Services must be provided in accordance with an ISP which must be fully completed within 30 days of initiation of the service. An LMHP [ , LMHP-supervisee, or LMHP-resident ] shall make and document the diagnosis. The service-specific provider [ assessment intake ] shall include the elements [ specified in subsection A of this section as defined in 12VAC30-50-130 ].

14. If an individual receiving services is also receiving case management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider shall collaborate with the case manager and provide notification of the provision of services. In addition, the provider shall send monthly updates to the case manager on the individual's status. A discharge summary shall be sent to the case manager within 30 days of the service discontinuation date. [ Service providers and case managers using the same electronic health record for the individual shall meet requirements for delivery of the notification, monthly updates, and discharge summary upon entry of this documentation into the electronic health record. ]

15. The provider shall determine who the primary care provider is and [ , upon receiving written consent from the individual or parent/legal guardian, shall ] inform him of the child's receipt of community mental health rehabilitative services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted. [ The parent/legal guardian shall be required to give written consent that this provider has permission to inform the primary care provider of the child's or adolescent's receipt of community mental health rehabilitative services. ]

16. Providers shall comply with DMAS marketing requirements as set out in 12VAC30-130-2000. Providers that DMAS determines have violated these marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E.

17. If there is a lapse in services greater than 31 consecutive calendar days, the provider shall discharge the individual. If the individual continues to need services, a new [ assessment/admission intake/admission ] documentation shall be prepared and a new service authorization shall be required.

C. E. [ Community-Based Services for Children and Adolescents Community-based services for children and adolescents ] under 21 [ years of age ] (Level A)

1. The staff ratio must be at least 1 to 6 during the day and at least 1 to 10 while asleep between 11 p.m. and 7 a.m. The program director supervising the program/group home must be, at minimum, a qualified mental health professional QMHP-C [ , or QMPH-E ] (as defined in 12VAC35-105-20) with a bachelor's degree and have at least one year of direct work with mental health clients. The program director must be employed full time.

2. At In order for Medicaid reimbursement to be approved, at least 50% of the provider's direct care staff at the group home must meet DMAS DBHDS paraprofessional staff criteria, defined in 12VAC30-50-226 12VAC35-105-20.

3. Authorization is required for Medicaid reimbursement. DMAS shall monitor the services rendered. All Community-Based Services for Children and Adolescents under 21 (Level A) must be authorized prior to reimbursement for these services. Services rendered without such authorization shall not be covered. All community-based services for children and adolescents under 21 (Level A) require authorization prior to reimbursement for these services. Reimbursement shall not be made for this service when other less intensive services may achieve stabilization.

4. Services must be provided in accordance with an [ Individual Service Plan individual service plan ] (ISP) (plan of care), which must be fully completed within 30 days of authorization for Medicaid reimbursement.

5. Prior to admission, a service-specific provider [ assessment intake ] shall be conducted according to DMAS specifications described in 12VAC30-50-130.

6. Such service-specific provider [ assessments intakes ] shall be performed by an LMHP [ as defined in 12VAC35-105-20, an LMHP-supervisee, LMHP-resident, or LMHP-RP ].

7. If an individual receiving community-based services for children and adolescents under 21 (Level A) is also receiving case management services, the provider shall collaborate with the case manager by notifying the case manager of the provision of Level A services and shall send monthly updates on the individual's progress. When the individual is discharged from Level A services, a discharge summary shall be sent to the case manager within 30 days of the service discontinuation date. [ Service providers and case managers who are using the same electronic health record for the individual shall meet requirements for the delivery of the notification, monthly updates, and discharge summary upon entry of this documentation into the electronic health record. ]

D. F. Therapeutic [ Behavioral Services for Children and Adolescents behavioral services for children and adolescents ] under 21 [ years of age ] (Level B).

1. The staff ratio must be at least 1 to 4 during the day and at least 1 to 8 while asleep between 11 p.m. and 7 a.m. The clinical director must be a licensed mental health professional. The caseload of the clinical director must not exceed 16 clients individuals including all sites for which the [ same ] clinical director is responsible. The program director must be full time and be a qualified mental health professional with a bachelor's degree and at least one year's clinical experience.

2. The program director must be full time and be a [ qualified mental health professional QMHP-C or QMHP-E ] with a bachelor's degree and at least one year's clinical experience.

2. At 3. For Medicaid reimbursement to be approved, at least 50% of the provider's direct care staff must at the group home shall meet [ DMAS DBHDS ] paraprofessional staff criteria, as defined in 12VAC30-50-226 12VAC35-105-20. The program/group home must coordinate services with other providers.

3. 4. All [ Therapeutic Behavioral Services therapeutic behavioral services ] (Level B) must shall be authorized prior to reimbursement for these services. Services rendered without such prior authorization shall not be covered.

4. 5. Services must be provided in accordance with an ISP (plan of care), which must shall be fully completed within 30 days of authorization for Medicaid reimbursement.

6. Prior to admission, a service-specific provider [ assessment intake ] shall be performed using all elements specified by DMAS in 12VAC30-50-130.

7. Such service-specific provider [ assessments intakes ] shall be performed by an LMHP [ as defined in 12VAC35-105-20, an LMHP-supervisee, LMHP-resident, or LMHP-RP ].

8. If an individual receiving therapeutic behavioral services for children and adolescents under 21 (Level B) is also receiving case management services, the therapeutic behavioral services provider must collaborate with the care coordinator/case manager by notifying him of the provision of Level B services and the Level B services provider shall send monthly updates on the individual's treatment status. When the individual is discharged from Level B services, a discharge summary shall be sent to the care coordinator/case manager within 30 days of the discontinuation date.

9. The provider shall determine who the primary care provider is and [ , upon receiving written consent from the individual or parent/legal guardian, shall ] inform him of the individual's receipt of these Level B services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted. [ If these individuals are children or adolescents, then the parent/legal guardian shall be required to give written consent that this provider has permission to inform the primary care provider of the individual's receipt of community mental health rehabilitative services. ]

E. G. Utilization review. Utilization reviews for [ Community-Based Services for Children and Adolescents community-based services for children and adolescents ] under 21 [ years of age ] (Level A) and [ Therapeutic Behavioral Services for Children and Adolescents therapeutic behavioral services for children and adolescents ] under 21 [ years of age ] (Level B) shall include determinations whether providers meet all DMAS requirements, including compliance with DMAS marketing requirements. Providers that [ violate DMAS determines have violated ] the DMAS marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E.

12VAC30-60-143. Mental health services utilization criteria; definitions.

A. This section sets out the utilization criteria and standards relative to the community mental health services set out in 12VAC30-50-226. [ This section also contains definitions for the The ] following words and terms [ which when used in this section ] shall have the following meanings unless the context indicates otherwise:

"Licensed mental health professional" or "LMHP" means the same as defined in [ 12VAC35-105-20 12VAC30-50-130.

"LMHP-resident" or "LMHP-R" means the same as defined in 12VAC30-50-130.

"LMHP-resident in psychology" or "LMHP-RP" means the same as defined in 12VAC30-50-130.

"LMHP-supvervisee in social work," "LMHP-supvervisee," or "LMHP-S" means the same as defined in 12VAC30-50-130. ]

"Qualified mental health professional-adult" or "QMHP-A" means the same as defined in [ 12VAC35-105-20 12VAC30-50-130 ].

"Qualified mental health professional-child" or "QMHP-C" means the same as defined in [ 12VAC35-105-20 12VAC30-50-130 ].

[ "Qualified mental health professional-eligible" or "QMHP-E" means the same as defined in [ 12VAC35-105-20 12VAC30-50-130. ]

A. B. Utilization reviews shall include determinations that providers meet the following requirements:

1. The provider shall meet the federal and state requirements for administrative and financial management capacity. The provider shall obtain, prior to the delivery of services, and shall maintain and update periodically as the Department of Medical Assistance Services (DMAS) or its contractor requires, a current provider enrollment agreement for each Medicaid service that the provider offers. DMAS shall not reimburse providers who do not enter into a provider enrollment agreement for a service prior to offering that service.

2. The provider shall document and maintain individual case records in accordance with state and federal requirements.

3. The provider shall ensure eligible recipients individuals have free choice of providers of mental health services and other medical care under the Individual Service Plan.

4. Providers shall comply with DMAS marketing requirements as set out in 12VAC30-130-2000. Providers that DMAS determines have violated these marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E. Providers whose contracts are terminated shall be afforded the right of appeal pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

5. If an individual receiving community mental health rehabilitative services is also receiving case management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider shall collaborate with the case manager by notifying the case manager of the provision of community mental health rehabilitative services and sending monthly updates on the individual's treatment status. A discharge summary shall be sent to the care coordinator/case manager within 30 calendar days of the discontinuation of services. [ Service providers and case managers who are using the same electronic health record for the individual shall meet requirements for delivery of the notification, monthly updates, and discharge summary upon entry of this documentation into the electronic health record. ]

6. The provider shall determine who the primary care provider is and inform him of the individual's receipt of community mental health rehabilitative services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

7. The provider shall include the individual and the family/caregiver, as may be appropriate, in the development of the ISP. To the extent that the individual's condition requires assistance for participation, assistance shall be provided. The ISP shall be updated annually or as the needs and progress of the individual changes. An ISP that is not updated either annually or as the treatment interventions based on the needs and progress of the individual [ changes change ] shall be considered outdated. An ISP that does not include all required elements specified in 12VAC30-50-226 shall be considered incomplete. All ISPs shall be completed, signed, and contemporaneously dated by the [ LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A [ or, ] QMHP-C [ as defined in 12VAC35-105-20 ], [ or QMHP-E ] preparing the ISP within a maximum of 30 days of the date of the completed [ assessment intake ] unless otherwise specified. The [ child's or adolescent's ] ISP shall also be signed by the parent/legal guardian and [ the adult ] individual [ shall sign his own ]. [ Documentation shall be provided if the individual, who is a minor child, is unable or unwilling to sign the ISP. If the individual, whether a child, adolescent, or an adult, is unwilling to sign the ISP, then the service provider shall document the clinical or other reasons why the individual was not able or willing to sign the ISP. Signatures shall be obtained unless there is a clinical reason that renders the individual unable to sign the ISP. ]

[ C. Direct clinical services provided on a part-time basis will be reviewed by DMAS or its contractor based on the number of hours provided and counted based upon how many full-time (40 hours) weeks of service were provided. ]

B. [ D. C. ] Day treatment/partial hospitalization services shall be provided following a diagnostic service-specific provider [ assessment intake ] and be authorized by the physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, or licensed clinical nurse specialist-psychiatric LMHP [ as defined in 12VAC35-105-20, LMHP-supervisee, LMHP-resident, or LMHP-RP ]. An ISP, as defined in 12VAC30-50-226, shall be fully completed, signed, and dated by either the LMHP [ or, LMHP-supervisee, LMHP-resident, LMHP-RP, ] the QMHP QMHP-A, [ as defined QMHP-E, or QMHP-C and reviewed/approved by the LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP ] at 12VAC30-50-226 [ in 12VAC35-105-20, ] within 30 days of service initiation.

1. The enrolled provider of day treatment/partial hospitalization shall be licensed by DMHMRSAS DBHDS as providers of day treatment services.

2. Services shall only be provided by an LMHP, [ LMHP-supervisee, LMHP-resident, or LMHP-RP, ] a QMHP QMHP-A, QMHP-C, [ QMHP-E, ] or a qualified paraprofessional under the supervision of a QMHP QMHP-A, QMHP-C, [ QMHP-E, ] or an LMHP [ as defined at 12VAC30-50-226 in 12VAC35-105-20, LMHP-supervisee, LMHP-resident, or LMHP-RP ].

3. The program shall operate a minimum of two continuous hours in a 24-hour period.

4. Individuals shall be discharged from this service when other less intensive services may achieve or maintain psychiatric stabilization.

C. [ E. D. ] Psychosocial rehabilitation services shall be provided to those individuals who have experienced long-term or repeated psychiatric hospitalization, or who experience difficulty in activities of daily living and interpersonal skills, or whose support system is limited or nonexistent, or who are unable to function in the community without intensive intervention or when long-term services are needed to maintain the individual in the community.

1. Psychosocial rehabilitation services shall be provided following an a service-specific provider [ assessment which intake that ] clearly documents the need for services. The This [ assessment intake that ] shall be completed by either an LMHP, or a QMHP, and [ QMHP-A, or QMHP-C. If the service-specific provider assessment is done by a QMHP-A or a QMHP-C, it shall be approved by a an LMHP within 30 calendar days of admission to services LMHP-supervisee, LMHP-resident, or LMHP-RP ]. An ISP shall be completed by either the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP, ] or the QMHP QMHP-A [ , QMHP-E, or QMHP-C and be reviewed/approved by either an LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP ] within 30 calendar days of service initiation. Every At least every three months, the LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] or the QMHP QMHP-A, [ or the ] QMHP-C [ , or QMHP-E ] must review, modify as appropriate, and update the ISP.

2. Psychosocial rehabilitation services of any individual that continue more than six months must shall be reviewed by an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] who must shall document the continued need for the service. The ISP shall be rewritten at least annually.

3. The enrolled provider of psychosocial rehabilitation services shall be licensed by DMHMRSAS DBHDS as a provider of psychosocial rehabilitation or clubhouse services.

4. Psychosocial rehabilitation services may be provided by [ either ] an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP QMHP-A, [ or, ] QMHP-C, [ QMHP-E, ] or a qualified paraprofessional under the supervision of [ either ] a QMHP QMHP-A, a QMHP-C, [ a QMHP-E, ] or an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ].

5. The program shall operate a minimum of two continuous hours in a 24-hour period.

6. Time allocated for field trips may be used to calculate time and units if the goal is to provide training in an integrated setting, and to increase the client's individual's understanding or ability to access community resources.

D. Admission to crisis [ F. E. ] Crisis intervention services is shall be indicated following a marked reduction in the individual's psychiatric, adaptive or behavioral functioning or an extreme increase in personal distress.

1. The crisis intervention services provider shall be licensed as a provider of [ outpatient services emergency services ] by DMHMRSAS DBHDS [ pursuant to 12VAC35-105-30 ].

2. Client-related activities provided in association with a face-to-face contact are reimbursable.

3. An [ Individual Service Plan individual service plan ] (ISP) shall not be required for newly admitted individuals to receive this service. Inclusion of crisis intervention as a service on the ISP shall not be required for the service to be provided on an emergency basis.

4. For individuals receiving scheduled, short-term counseling as part of the crisis intervention service, an ISP must shall be developed or revised by the fourth face-to-face contact to reflect the short-term counseling goals by the fourth face-to-face contact.

5. Reimbursement shall be provided for short-term crisis counseling contacts occurring within a 30-day period from the time of the first face-to-face crisis contact. Other than the annual service limits, there are no restrictions (regarding number of contacts or a given time period to be covered) for reimbursement for unscheduled crisis contacts.

6. Crisis intervention services may be provided to eligible individuals outside of the clinic and billed, provided the provision of out-of-clinic services is clinically/programmatically appropriate. Travel by staff to provide out-of-clinic services is shall not be reimbursable. Crisis intervention may involve contacts with the family or significant others. If other clinic services are billed at the same time as crisis intervention, documentation must clearly support the separation of the services with distinct treatment goals.

7. An LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP [ QMHP-A, QMHP-C, ] or a certified prescreener [ , as defined in 12VAC30-50-226, ] must shall conduct a face-to-face service-specific provider [ assessment intake ]. [ If the QMHP QMHP-A or QMHP-C performs the service-specific provider assessment, it must be reviewed and approved by an LMHP or a certified prescreener within 72 hours of the face-to-face service-specific provider assessment. The service-specific provider assessment shall document the need for and the anticipated duration of the crisis service. ] Crisis intervention will be provided by an LMHP, a certified prescreener, or a QMHP.

8. Crisis intervention shall be provided by either an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, or ] a certified prescreener [ , a QMHP-A, or a QMHP-C ].

8. [ 9. Crisis intervention shall not require an ISP. ]

[ 9. 10. ] For an admission to a freestanding inpatient psychiatric facility for individuals younger than age 21, federal regulations (42 CFR 441.152) require certification of the admission by an independent team. The independent team must include mental health professionals, including a physician. Preadmission These preadmission screenings cannot be billed unless the requirement for an independent team certification, with a physician's signature, is met.

[ 10. 11. ] Services must shall be documented through daily notes and a daily log of time spent in the delivery of services.

E. [ G. F. ] Case management services (pursuant to 12VAC30-50-226) pursuant to 12VAC30-50-420 (seriously mentally ill adults and emotionally disturbed children) or 12VAC30-50-430 (youth at risk of serious emotional disturbance).

1. Reimbursement shall be provided only for "active" case management clients, as defined. An active client for case management shall mean an individual for whom there is a plan of care an ISP in effect which that requires regular direct or client-related contacts or activity or communication with the client individuals or families, significant others, service providers, and others including a minimum of one face-to-face client individual contact within a 90-day period. Billing can be submitted only for months in which direct or client-related contacts, activity, or communications occur.

2. The Medicaid eligible individual shall meet the DMHMRSAS DBHDS criteria of serious mental illness, serious emotional disturbance in children and adolescents, or youth at risk of serious emotional disturbance.

3. There shall be no maximum service limits for case management services. Case management shall not be billed for persons in institutions for mental disease.

4. The ISP must shall document the need for case management and be fully completed within 30 calendar days of initiation of the service, and the. The case manager shall review the ISP at least every three months. The review will be due by the last day of the third month following the month in which the last review was completed. A grace period will be granted up to the last day of the fourth month following the month of the last review. When the review was completed in a grace period, the next subsequent review shall be scheduled three months from the month the review was due and not the date of actual review.

5. The ISP shall also be updated at least annually.

6. The provider of case management services shall be licensed by DMHMRSAS DBHDS as a provider of case management services.

F. [ H. G. ] Intensive community treatment (ICT) [ for adults ].

1. An A service-specific provider [ assessment which intake that ] documents eligibility and the need for this service shall be completed by either the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] or the QMHP [ , QMHP-A, or the QMHP-C ] prior to the initiation of services. This [ assessment intake ] must shall be maintained in the individual's records. Proper completion of the service-specific provider [ assessment intake ] shall comport with the requirements of 12VAC30-50-130.

2. An individual service plan, based on the needs as determined by the service-specific provider [ assessment intake ], must be initiated at the time of admission and must be fully developed by either the LMHP [ , LMHP-supervisee, LMHP-resident, LMHP-RP ] or the QMHP, QMHP-A, [ or ] QMHP-C [ , or QMHP-E ] and approved by the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] within 30 days of the initiation of services.

3. ICT may be billed if the client individual is brought to the facility by ICT staff to see the psychiatrist. Documentation must be present in the individual's record to support this intervention.

4. The enrolled ICT provider shall be licensed by the DMHMRSAS DBHDS as a provider of intensive community services or as a program of assertive community treatment, and must provide and make available emergency services 24-hours per day, seven days per week, 365 days per year, either directly or on call.

5. ICT services must be documented through a daily log of time spent in the delivery of services and a description of the activities/services provided. There must also be at least a weekly note documenting progress or lack of progress toward goals and objectives as outlined on the ISP.

G. [ I. H. ] Crisis stabilization services.

1. This service must shall be authorized following a face-to-face service-specific provider [ assessment intake ] by either an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, or ] a certified prescreener, [ as defined in 12VAC30-50-226 ] or [ a ] QMHP [ QMHP-A, or QMHP-C ]. [ This assessment must be reviewed and approved by a licensed mental health professional within 72 hours of the assessment. ]

2. The service-specific provider [ assessment intake ] must document the need for crisis stabilization services [ and anticipated duration of need ].

3. The Individual Service Plan (ISP) must be developed or revised within 10 business days of the approved assessment or reassessment [ 24 hours three calendar days ] of admission to this service. The LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] certified prescreener, QHMP-A, [ or ] QMHP QHMP-C [ , or QHMP-E ] shall develop the ISP.

4. Room and board, custodial care, and general supervision are not components of this service.

5. Clinic option services are not billable at the same time crisis stabilization services are provided with the exception of clinic visits for medication management. Medication management visits may be billed at the same time that crisis stabilization services are provided but documentation must clearly support the separation of the services with distinct treatment goals.

6. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from a condition due to an acute crisis of a psychiatric nature which puts the individual at risk of psychiatric hospitalization.

7. Providers of [ residential ] crisis stabilization shall be licensed by DMHMRSAS DBHDS as providers of [ outpatient services mental health residential crisis stabilization ]. [ Providers of community-based crisis stabilization shall be licensed by DBHDS as providers of mental health nonresidential crisis stabilization. ]

H. [ J. I. ] Mental health support services. Refer to 12VAC30-50-226 for criteria, service authorization requirements, and service-specific provider [ assessments intakes ] that shall apply for individuals in order to qualify for this service.

1. At Prior to admission, an appropriate face-to-face service-specific provider [ assessment intake ] must be made completed, signed, and dated, and documented by the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] or the QMHP indicating that service needs can best be met through mental health support services. The assessment must be performed by the LMHP or the QMHP and approved by the LMHP within 30 days of the date of admission. The LMHP or the QMHP will complete the ISP within 30 days of the admission to this service.

2. The ISP must , as defined in 12VAC30-50-226, shall be completed, signed, and dated by [ either ] a [ LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A [ or, ] QMHP-C [ , or QMHP-E ] within 30 calendar days of service initiation, and shall indicate the specific supports and services to be provided and the goals and objectives to be accomplished. The LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] or QMHP will QMHP-A [ , QMHP-C, or QMHP-E ] shall supervise the care if delivered by the qualified paraprofessional. [ If the care is supervised by the QMHP-A, QMHP-E, or QMHP-C, then the LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP shall review and approve the supervision of the care delivered by the qualified paraprofessional. ]

2. 3. Every three months, the LMHP [ , LMHP-supervisee, LMHP-resident, LMHP-RP, ] or the QMHP must QMHP-A, [ or ] QMHP-C [ , or QMHP-E ] shall review, modify as appropriate, and update the ISP showing a new signature and date of each revision. [ If the ISP review is conducted by the QMHP-A, QMHP-C, or QMHP-E, then it shall be reviewed/approved/signed/dated by the LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP. ] The ISP must shall be rewritten, signed, and dated by either a QMHP-A, QMHP-C, [ or QMHP-E, ] an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] at least annually.

3. 4. Only direct face-to-face contacts and services to individuals shall be reimbursable.

4. 5. Any services provided to the client individual that are strictly academic in nature shall not be billable. These include, but are not limited to, such basic educational programs as instruction in reading, science, mathematics, or the individual's work towards obtaining a GED.

5. 6. Any services provided to clients individuals that are strictly vocational in nature shall not be billable. However, support activities and activities directly related to assisting a client an individual to cope with a mental illness to the degree necessary to develop appropriate behaviors for operating in an overall work environment shall be billable.

6. 7. Room and board, custodial care, and general supervision are not components of this service.

7. 8. This service is not billable for individuals who reside in facilities where staff are expected to provide such services under facility licensure requirements.

8. 9. Provider qualifications. The enrolled provider of mental health support services must shall be licensed by DMHMRSAS DBHDS as a provider of supportive in-home services, intensive community treatment, or as a program of assertive community treatment. Individuals employed or contracted by the provider to provide mental health support services must shall have training in the characteristics of mental illness and appropriate interventions, training strategies, and support methods for persons with mental illness and functional limitations.

9. 10. Mental health support services, which continue for six consecutive months, must shall be reviewed and renewed at the end of the six-month period of authorization by an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] who must shall document the continued need for the services.

10. 11. Mental health support services must shall be documented through a daily log of time involved in the delivery of services and a minimum of a weekly summary note of services provided.

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

Virginia Medicaid Rehabilitation Manual

Virginia Medicaid Hospice Manual

Virginia Medicaid School Division Manual

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.

Medicaid Special Memo, Subject: New Service Authorization Requirement for an Independent Clinical Assessment for Medicaid and FAMIS Children's Community Mental Health Rehabilitative Services, dated June 16, 2011, Department of Medical Assistance Services

Medicaid Special Memo, Subject: Changes to Children Community Mental Health Rehabilitative Services - Children's Services, July 1, 2010 & September 1, 2010, dated July 23, 2010, Department of Medical Assistance Services

Medicaid Special Memo, Subject: Changes to Community Mental Health Rehabilitative Services - Adult-Oriented Services, July 1, 2010 & September 1, 2010, dated July 23, 2010, Department of Medical Assistance Services

Part XVII
Marketing of Provider Services

12VAC30-130-2000. Marketing requirements and restrictions.

A. Purpose. The purpose of these rules shall be to define how providers shall be permitted to market their services to potential Medicaid or FAMIS beneficiaries and individuals who may or may not be currently enrolled with the particular provider. This shall apply to providers of community mental health services (12VAC30-50-226) and Early and Periodic Screening, Diagnosis, and Treatment Program (EPSDT) community mental health services (12VAC30-50-130) with the exception of Part C services.

B. Definitions.

"Beneficiaries" means individuals of any age and their families who are using or who may use community mental health rehabilitative services.

"DMAS" means the Department of Medical Assistance Services.

"FAMIS" means Family Access to Medical Insurance Security.

[ "Marketing materials" means any material created to promote services through any media including, but not limited to, written materials, television, radio, websites, and social media. ]

"Provider" means an individual or organizational entity that is appropriately licensed as required and enrolled as a DMAS provider of community mental health and substance abuse services.

C. Requirements.

1. Marketing and promotional activities (including provider promotional activities) shall comply with all [ relevant applicable ] federal and state laws.

2. Providers shall provide clearly written materials that completely and accurately describe the Medicaid or FAMIS behavioral health service or services offered, the beneficiary eligibility requirements to receive the service or services, applicable fees and other charges, and all other information required for beneficiaries and their families to make fully informed decisions about enrollment into the service or services offered by the provider that is marketing its services.

3. Providers shall distribute their marketing materials only in the service locations approved within the license issued by the Licensing Division of the Department of Behavioral Health and Developmental Services.

4. Providers shall receive DMAS approval of all marketing materials and all changes to prior-approved marketing materials prior to their use or dissemination. Providers shall receive the DMAS marketing plan approval before engaging in any marketing activity.

a. Within 30 calendar days of receipt of providers' submissions, DMAS shall review submitted individual marketing materials and services and either approve them or deny their use or direct that specified modifications be made.

b. Providers failing to implement DMAS' required changes, or those which use [ unapproved or ] disapproved materials, shall be subject to termination of the provider agreement pursuant to 12VAC30-130-2000 E.

D. Limits and prohibitions.

1. Providers shall not offer cash or [ other ] noncash incentives to their enrolled or prospective members for the purposes of marketing, retaining beneficiaries within the providers' services, or rewarding behavior changes in compliance with goals and objectives stated in beneficiaries' individual service plans.

2. While engaging in marketing activities, providers shall not:

a. Engage in any marketing activities that could misrepresent the service or DMAS;

b. Assert or state that the beneficiary must enroll with the provider in order to prevent the loss of Medicaid or FAMIS benefits;

c. Conduct door-to-door, telephone, unsolicited school presentations, or other cold call marketing directed at potential or current beneficiaries;

d. Conduct any marketing activities or use marketing materials that are not specifically approved by DMAS;

e. Make home visits for direct or indirect marketing or enrollment activities except when specifically requested by the beneficiary or family;

f. Collect or use Medicaid or FAMIS confidential information or Medicaid or FAMIS protected health information (PHI), as that term is defined in Health Insurance Portability and Accountability Act of 1996 (HIPPA), that may be either provided by another entity or obtained by marketing provider, to identify and market services to prospective beneficiaries;

g. Violate the confidential information or confidentiality of PHI by sharing or selling or sharing lists of information about beneficiaries for any purposes other than the performance of the provider's obligations relative to its DMAS provider agreement;

h. Contact, after the effective date of disenrollment, beneficiaries who choose to disenroll from the provider except as may be specifically required by DMAS;

i. Conduct service assessment or enrollment activities at any marketing or community event; or

j. Assert or state (either orally or in writing) that the provider is endorsed either by the Centers for Medicare and Medicaid Services, DMAS, or any other federal or state governmental entities.

E. Termination. Providers [ who that (i) ] conduct any marketing activity, that is not specifically approved by DMAS [ or who, (ii) ] violate any of the [ above ] prohibitions [ in this section, ] or [ (iii) fail to meet ] requirements shall be subject to termination of their provider agreements for the services affected by the marketing plan/activity. [ Providers whose contracts are terminated shall be afforded the right of appeal pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). ]

Part XVIII
Behavioral Health Services

12VAC30-130-3000. Behavioral health services.

A. Behavioral health services that shall be covered only for individuals from birth through 21 years of age are set out in 12VAC30-50-130 B 5 and include: (i) intensive in-home services (IIH), (ii) therapeutic day treatment (TDT), (iii) community based services for children and adolescents (Level A), and (iv) therapeutic behavioral services (Level B).

B. Behavioral health services that shall be covered for individuals regardless of age are set out in 12VAC30-50-226 and include: (i) day treatment/partial hospitalization, (ii) psychosocial rehabilitation, (iii) crisis intervention, (iv) case management as set out in 12VAC30-50-420 and 12VAC30-50-430, (v) intensive community treatment (ICT), (vi) crisis stabilization services, and (vii) mental health support services (MHSS).

12VAC30-130-3010. Definitions.

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

"Behavioral health authority" or "BHA" means the local agency that administers services set out in § 37.2-601 of the Code of Virginia.

[ "Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS. ]

"Community services board" or "CSB" means the local agency that administers services set out in § 37.2-500 of the Code of Virginia.

[ "Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS. ]

"DMAS" means the Department of Medical Assistance Services.

"Independent assessor" means a professional who performs the independent clinical assessment who may be employed by either the behavioral health services administrator, community services boards/behavioral health authorities (CSBs/BHAs) or their subcontractors.

"Independent clinical assessment" or "ICA" means the assessment that is performed under contract with DMAS either by the behavioral health services administrator or the CSB/BHA, or its subcontractor, prior to the initiation of (i) intensive in-home (IIH) services or therapeutic day treatment (TDT) as set out in 12VAC30-50-130 and (ii) mental health support services (MHSS) for children and adolescents (MHSS) as set out in 12VAC30-50-226.

"VICAP" means the form entitled Virginia Independent Clinical Assessment Program that is required to record an individual's independent clinical assessment information.

12VAC30-130-3020. Independent clinical assessment requirements [ ; behavioral health level of care determinations and service eligibility ].

A. The independent clinical assessment (ICA), as set forth in the Virginia Independent Assessment Program (VICAP-001) form, shall contain the Medicaid individual-specific elements of information and data that shall be required for an individual younger than the age of 21 to be approved for intensive in-home (IIH) services, therapeutic day treatment (TDT), or mental health support services (MHSS) or any combination thereof. [ Eligibility requirements for IIH are in 12VAC30-50-130 B 5 b. Eligibility requirements for TDT are in 12VAC30-50-130 B 5 c. Eligibility requirements for MHSS are in 12VAC30-50-226 B 8. ]

1. The required elements in the ICA shall be specified in the VICAP form with either the BHSA or CSBs/BHAs and DMAS.

2. Service recommendations set out in the ICA shall not be subject to appeal.

B. Independent clinical assessment requirements.

1. Effective July 18, 2011, an ICA shall be required as a part of the service authorization process for Medicaid and Family Access to Medical Insurance Security (FAMIS) intensive in-home (IIH) services, therapeutic day treatment (TDT), or mental health support services (MHSS) for individuals up to the age of 21. This ICA shall be performed prior to the request for service authorization and initiation of treatment for individuals who are not currently receiving or authorized for services. The ICA shall be completed prior to the service provider conducting an [ assessment intake ] or providing treatment.

a. Each individual shall have at least one ICA prior to the initiation of either IIH or TDT, or MHSS for individuals up to the age of 21.

b. For individuals who are already receiving IIH services or TDT, or MHSS, as of July 18, 2011, the requirement for a completed ICA shall be effective for service reauthorizations for dates of services on and after September 1, 2011.

c. Individuals who are being discharged from residential treatment (DMAS service Levels A, B, or C) or inpatient psychiatric hospitalization do not need an ICA prior to receiving community IIH services or TDT, or MHSS. They shall be required, however, to have an ICA as part of the first subsequent service reauthorization for IIH services, TDT, MHSS, or any combination thereof.

2. The ICA shall be completed and submitted to DMAS or its service authorization contractor by the independent assessor prior to the service provider submitting the service authorization or reauthorization request to the DMAS service authorization contractor. Failure to meet these requirements shall result in the provider's service authorization or reauthorization request being returned to the provider.

3. A copy of the ICA shall be retained in the service provider's individual's file.

4. If a service provider receives a request from parents or legal guardians to provide IIH services, TDT, or MHSS for individuals who are younger than 21 years of age, the service provider shall refer the parent or legal guardian to the BHSA or the local CSB/BHA to obtain the ICA prior to providing services.

a. In order to provide services, the service provider shall be required to conduct a service-specific provider [ assessment intake ] as defined in 12VAC30-50-130.

b. If the selected service provider concurs that the child meets criteria for the service recommended by the independent assessor, the selected service provider shall submit a service authorization request to DMAS service authorization contractor. The service-specific provider's [ assessment intake ] for IIH services, TDT, or MHSS shall not occur prior to the completion of the ICA by the BHSA or CSB/BHA, or its subcontractor.

c. If within 30 days after the ICA a service provider identifies the need for services that were not recommended by the ICA, the service provider shall contact the independent assessor and request a modification. The request for a modification shall be based on a significant change in the individual's life that occurred after the ICA was conducted. Examples of a significant change may include, but shall not be limited to, hospitalization; school suspension or expulsion; death of a significant other; or hospitalization or incarceration of a parent or legal guardian.

d. If the independent assessment is greater than 30 days old, a new ICA must be obtained prior to the initiation of IIH services, TDT, or MHSS for individuals younger than 21 years of age.

e. If the parent or legal guardian disagrees with the ICA recommendation, [ the parent or legal guardian may appeal the recommendation in accordance with Part I (12VAC30-110-10 et seq.) In the alternative, ] the parent or legal guardian may request that a service provider perform his own evaluation. If after conducting a service-specific provider [ assessment intake ] the service provider identifies additional documentation previously not submitted for the ICA that demonstrates the service is medically necessary and clinically indicated, the service provider may submit the supplemental information with a service authorization request to the DMAS service authorization contractor. The DMAS service authorization contractor will review the service authorization submission and the ICA and make a determination. If the determination results in a service denial, the individual, parent or legal guardian, and service provider will be notified of the decision and [ the appeals process their appeal rights pursuant to Part I (12VAC30-110-10 et seq.) ].

5. If the individual is in immediate need of treatment, the independent clinical assessor shall refer the individual to the appropriate enrolled Medicaid emergency services providers in accordance with 12VAC30-50-226 and shall also alert the individual's managed care organization.

C. Requirements for behavioral health services administrator and community services boards/behavioral health authorities.

1. When the BHSA, CSB, or BHA has been contacted by the parent or legal guardian, the ICA appointment shall be offered within five business days of a request for IIH services and within 10 business days for a request for TDT or MHSS, or both. The appointment may be scheduled beyond the respective time frame at the documented request of the parent or legal guardian.

2. The independent assessor shall conduct the ICA with the individual and the parent or legal guardian using the VICAP-001 form and make a recommendation for the most appropriate medically necessary services, if indicated. Referring or treating providers shall not be present during the assessment but may submit supporting clinical documentation to the assessor.

3. The ICA shall be effective for a 30-day period.

4. The independent assessor shall enter the findings of the ICA into the DMAS service authorization contractor's web portal within one business day of conducting the assessment. The independent clinical assessment form (VICAP-001) shall be completed by the independent assessor within three business days of completing the ICA.

D. The individual or his parent or legal guardian shall have the right to freedom of choice of service providers.

12VAC30-130-3030. Application to services.

A. Intensive in-home (IIH) services.

1. Prior to the provision of IIH services, an independent clinical assessment shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is either employed by or contracted with a behavioral health services administrator (BHSA), community services board (CSB), behavioral health authority (BHA), or a subcontractor to the BHSA, CSB, or BHA in accordance with DMAS approval.

2. IIH services that are rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

B. Therapeutic day treatment (TDT) [ services ].

1. Prior to the provision of TDT services, an independent clinical assessment shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is employed by or contracted with a BHSA, CSB, BHA, or the subcontractor of the BHSA, CSB, or BHA in accordance with DMAS approval.

2. TDT services that are rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

C. Mental health support services (MHSS).

1. Prior to the provision of MHSS, an independent clinical assessment, as defined in 12VAC30-130-3010, shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is employed by or contracted with a BHSA, CSB or BHA, or a subcontractor of a BHSA, CSB, or BHA in accordance with DMAS approval.

2. MHSS rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

[ D. Other Medicaid-covered community mental health services. DMAS may apply the independent clinical assessment requirement to any of the other Medicaid-covered community mental health services set out in 12VAC30-50-130 and 12VAC30-50-226 with appropriate and timely notice to providers. In such situations, DMAS shall not deny coverage to providers' claims for these affected services absent at least a 30-day notice of this change. ]

FORMS (12VAC30-130)

Forms accompanying Part II of this chapter:

Virginia Uniform Assessment Instrument.

Forms accompanying Part III of this chapter:

MI/MR Supplement Level I (form and instructions).

MI/MR Supplement Level II.

Forms accompanying Part VII of this chapter:

Request for Hospice Benefits DMAS-420, Revised 5/91.

Forms accompanying Part VIII of this chapter:

Inventory for Client and Agency Planning (ICAP) Response Booklet, D9200/D9210, 1986.

Forms accompanying Part IX of this chapter:

Patient Information form.

Instructions for Completion DMAS-122 form.

Forms accompanying Part XII of this chapter:

Health Insurance Premium Payment (HIPP) Program Insurance Information Request Form.

Health Insurance Premium Payment (HIPP) Program Medical History Form (HIPP Form-7, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Employers Insurance Verification Form (HIPP Form-2, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Employer Agreement (HIPP Form-3, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Determination (HIPP Form-4, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Approval.

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Status (HIPP Form-6, Rev. 11/92).

Inventory for Client and Agency Planning (ICAP) Response Booklet, D9200/D9210, 1986.

Forms accompanying Part XIV of this chapter:

Residential Psychiatric Treatment for Children and Adolescents, FH/REV (eff. 10/20/99).

Forms accompanying Part XV of this chapter:

Treatment Foster Care Case Management Agreement, TFC CM Provider Agreement DMAS-345, FH/REV (eff. 10/20/99).

Forms accompanying Part XVIII of this chapter:

Virginia Independent Clinical Assessment Program (VICAP) (eff. 6/11).

Titles of Regulations: 12VAC30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (adding 12VAC30-50-600).

12VAC30-121. Medicare-Medicaid Demonstration Waiver (adding 12VAC30-121-10 through 12VAC30-121-250).

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

Effective Dates: December 10, 2014, through June 9, 2016.

Agency Contact: Matthew Behrens, Project Manager, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 625-3673, FAX (804) 786-1680, or email matthew.behrens@dmas.virginia.gov.

Preamble:

Section 2.2-4011 of the Code of Virginia states that agencies may adopt emergency regulations in situations in which Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment, and the regulation is not exempt under the provisions of § 2.2-4006 A 4 of the Code of Virginia.

Item 307 RR of Chapter 806 of the 2013 Acts of Assembly, the 2013 Appropriation Act, directed the Department of Medical Assistance Services (DMAS) to implement a care coordination program for a Medicare-Medicaid dual eligible enrollee. Item 307 AAAA of the Act directed DMAS to implement a process for administrative appeals of Medicaid/Medicare dual eligible recipients in accordance with the terms of the Memorandum of Understanding between DMAS and the Centers for Medicare and Medicaid Services for the Virginia Medicare-Medicaid Financial Alignment Demonstration Model. Item 307 RRRR of the Act provides for achieving cost savings and standardization of administrative and other processes for providers. The amendments conform regulation to these requirements.

The establishment of Commonwealth Coordinated Care as the mandated care coordination program allows DMAS to combine certain aspects of Medicaid managed care and long-term care and Medicare into one program. The purpose of this regulatory action is to provide integrated care to dual eligible individuals who are currently excluded from participating in managed care programs. This change will enable participants to access their primary and acute medical services, behavioral health services, and long-term care services through a single managed delivery system, thereby increasing the coordination of services across the spectrum of care. The new program offers dual eligible individuals care coordination, health risk assessments, interdisciplinary care teams, and plans of care, which are currently unavailable for this population. Care coordination is essential to providing appropriate and timely services to often-vulnerable participants.

12VAC30-50-600. Section 1932 dual eligible Medicare-Medicaid individuals.

A. Consistent with the Social Security Act § 1932(a)(1)(A) (the Act), the Commonwealth enrolls Medicaid enrollees on a voluntary basis into Medicare-Medicaid Plans (MMPs) in the absence of § 1115 or § 1915(b) waiver authority.

B. Consistent with § 1932(a)(1)(B) of the Act, the Commonwealth shall contract with MMPs. The payment method to the contracting entity shall be a capitation method.

C. The public process used by DMAS for both the design of the program and its initial implementation entailed:

1. DMAS convened public stake holder meetings, in March and July of 2012. Participants were informed and given the opportunity to provide recommendations.

2. DMAS considered these recommendations and incorporated many into its program proposal.

3. DMAS has established an advisory committee that meets quarterly throughout the duration of the program to discuss topics such as program design, educational and outreach materials, and provider and beneficiary issues.

D. Enrollment will be voluntary in the counties and cities designated by the following regions: (i) Central Virginia, (ii) Northern Virginia, (iii) Tidewater, (iv) Western/Charlottesville, and (v) Roanoke.

E. The Commonwealth assures that all of the applicable requirements of § 1903(m) of the Act for MMPs and MMP contracts are met.

F. The Commonwealth assures that all the applicable requirements of § 1932 of the Act for the state's option to limit freedom of choice by requiring enrollees to receive their benefits through managed care entities will be met. MMPs shall be required to pass readiness reviews prior to enrolling individuals.

G. The Commonwealth assures that all the applicable requirements of 42 CFR 431.51 regarding freedom of choice for family planning services and supplies as defined in § 1905(a)(4)(C) of the Act will be met.

H. The Commonwealth assures that all applicable managed care requirements of 42 CFR Part 438 for MMPs will be met. Enrollees shall be permitted to opt out at any time with or without cause from the program pursuant to 42 CFR 438.56(c).

I. The Commonwealth assures that all applicable requirements of 42 CFR 438.6(c) for payments under any risk contracts will be met.

J. The Commonwealth assures that all applicable requirements of 45 CFR 92.36 for procurement of contracts will be met.

K. Eligible groups.

1. No groups shall be enrolled on a mandatory basis. Enrollment shall be voluntary.

2. Enrollees shall also be eligible for Medicare. Full-benefit dual eligible (eligible for both Medicare and Medicaid) individuals ages 21 years and older who are eligible for the program shall be passively enrolled. Individuals shall have 60 days after notification of program enrollment to opt out before they are passively enrolled into an MMP. Individuals shall be permitted to change MMPs or opt out of the program and return to fee-for-service services at any time. With the exception of the following, individuals shall be allowed to reenroll in the program at any time:

a. Individuals who are in hospice shall be excluded from enrolling in the program. If an enrollee is in the program and then enters hospice care, he shall be disenrolled from the program. If such an individual elects to leave hospice, he will be permitted to reenroll in the program.

b. Individuals who receive the Medicare end stage renal disease (ESRD) benefit after enrolling in the program shall be permitted to remain in the program. If such individuals opt out of the program, they shall not be permitted to re-enroll.

L. Pursuant to § 1932(a)(2) of the Act, the Commonwealth provides that full-benefit dual eligible individuals based on their eligibility for Medicare Parts A, B, and D and for full Medicaid benefits, also known as Qualified Medicare Beneficiaries (QMB) Plus individuals, are exempt from mandatory enrollment into this program's managed care.

M. Enrollment process.

1. DMAS shall use a preassignment algorithm, through its Medicaid Management Information System (MMIS), and a contracted enrollment broker to facilitate the continuity of care of Medicaid individuals by providers that have traditionally served this population.

2. DMAS shall not use a lock in for managed care pursuant to 42 CFR 438.50.

3. Individuals shall have 60 days to choose a health plan before being automatically assigned.

4. Eligible individuals will receive a notice that indicates to which MMP they have been assigned. The notice will have instructions for the individual to contact the DMAS contracted enrollment broker to:

a. Accept the preassigned MMP;

b. Select a different MMP that is operating in their region; or

c. Opt out of the program altogether and stay in the fee-for-service environment. If an individual does not select an MMP, he shall be passively enrolled into the preassigned MMP.

5. Enrollees shall be assigned to an MMP based on six months of claims prior to preassignment using the rules below in order of priority:

a. Individuals in a nursing facility shall be preassigned to an MMP that includes the individual's nursing facility in its provider network;

b. Individuals in the EDCD Waiver shall be assigned to an MMP that includes the individual's current adult day health care provider in its provider network;

c. If more than one MMP network includes the nursing facility or adult day healthcare provider used by an individual, the individual will be assigned to the MMP with which he has previously been assigned in the past six months. If he has no history of previous MMP assignment, he shall be randomly assigned to an MMP in which his provider participates.

d. Individuals shall be preassigned to an MMP with whom they have previously been assigned within the past six months.

N. The Commonwealth assures that it has an enrollment system that allows individuals who are already enrolled to be given priority to continue that enrollment if the MMP does not have capacity to accept all who are seeking enrollment under the program.

O. The Commonwealth assures that, pursuant to the choice requirements in 42 CFR 438.52, Medicaid individuals who are enrolled in an MMP will have a choice of at least two entities unless the area is considered rural as defined in 42 CFR 438.52(b)(3).

P. The Commonwealth shall apply the automatic reenrollment provision in accordance with 42 CFR 438.56(g) if the individual is disenrolled solely because he loses Medicaid eligibility for a period of two months or less.

Q. The following services shall be excluded from coverage by the MMP in this program:

1. Induced abortions;

2. Targeted case management; and

3. Dental services (see 12VAC30-121-70 for specific coverage).

R. The Commonwealth shall intentionally limit the number of entities it contracts with under the option permitted by § 1932 of the Act. The Commonwealth assures that such limits on the number of contracting entities shall not substantially impair enrollee access to services.

CHAPTER 121
MEDICARE-MEDICAID DEMONSTRATION WAIVER

12VAC30-121-10. Demonstration waiver program authority.

A. Medicare authority. The Medicare elements of the program shall operate according to existing Medicare Parts C and D laws and regulations, as amended or modified, except to the extent these requirements are waived or modified as provided for in the memorandum of understanding (MOU) between the Centers for Medicare and Medicaid Services (CMS) and the department. As a term and condition of the program, participating plans will be required to comply with Medicare Advantage and Medicare Prescription Drug Program requirements in Part C and Part D of Title XVIII of the Social Security Act (the Act) and 42 CFR Parts 422 and 423, as amended from time to time, except to the extent specified in the MOU for waivers and the three-way contract.

B. Medicaid authority. The Medicaid elements of the program shall operate according to existing Medicaid laws and regulations, including but not limited to all requirements of the § 1915(c) of the Act waivers for individuals enrolled in the Elderly or Disabled with Consumer Direction (EDCD) Waiver, as amended or modified, except to the extent waived as provided for in the MOU. As a term and condition of the program, the Commonwealth and participating plans shall comply with Medicaid managed care requirements under Title XIX of the Act and 42 CFR Part 438, other applicable regulations, as amended or modified, except to the extent specified in the MOU, and the three-way contract. The Commonwealth will add concurrent authority to the relevant § 1915(c) programs via amendments in the next update or scheduled renewal, whichever occurs sooner.

C. CMS reserves the right to withdraw programs or expenditure authorities at any time it determines that continuing the programs or expenditure authorities are no longer in the public interest or promote the objectives of Title XVIII of the Social Security Act. CMS will promptly (i) notify DMAS in writing of the determination, the reasons for the withdrawal, and the effective date and (ii) subject to § 1115A(d)(2) of the Social Security Act, afford DMAS a reasonable opportunity to request a reconsideration of the CMS determination prior to the effective date.

D. Termination and phase out would proceed as described in § III L of the MOU between CMS and DMAS. If a program or expenditure authority is withdrawn, federal financial participation (FFP) is limited to normal closeout costs associated with terminating the program or expenditure authority, including covered services and administrative costs of disenrolling enrollees.

12VAC30-121-20. Definitions.

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

"Action" means, consistent with 42 CFR 438.400, an action by the participating plan, subcontractor, service provider, or Virginia Department of Medical Assistance Services that constitutes a denial or limited authorization of a service authorization request, including (i) type or level of service; (ii) reduction, suspension, or termination of a previously authorized service; (iii) failure to act on a service request; (iv) denial in whole or in part of a payment for a covered service; (v) failure by the participating plan to render a decision within the required timeframes; or (vi) denial of an enrollee's request to exercise his right under 42 CFR 438.52(b)(2)(ii) to obtain services outside of the network.

"Appellant" means an applicant for or recipient of Medicaid benefits who seeks to challenge an action taken by the participating plan regarding eligibility for services and payment determinations.

"CPT" means Current Procedural Terminology, Revised 2014, as published by the American Medical Association.

"Capitation payment" means a payment the department makes periodically to a participating plan on behalf of each enrollee enrolled under a contract for the provision of services under the state plan and waivers, regardless of whether the enrollee receives services during the period covered by the payment.

"Capitation rate" means the monthly amount payable to the plan per enrollee for the provision of contract services. The plans shall accept the established capitation rates paid each month by the department and CMS as payment in full for all Medicaid and Medicare services to be provided pursuant to the three-way contract and all associated administrative costs, pending final recoupment, reconciliation, sanctions, or payment of quality withhold amounts.

"Care management" means the collaborative, person-centered process that assists enrollees in gaining access to needed health care services and includes (i) assessing for and planning of health care services; (ii) linking the enrollee to services and supports identified in the plan of care; (iii) working with the enrollee directly for the purpose of locating, developing, or obtaining needed health care services and resources; (iv) coordinating health care services and service planning with other agencies, providers, and family members involved with the enrollee; (v) making collateral contacts to promote the implementation of the plan of care and community integration; (vi) monitoring to assess ongoing progress and ensuring services are delivered; and (vii) education and counseling that guides the enrollee and develops a supportive relationship that promotes the plan of care.

"Carved-out services" means the subset of Medicaid and Medicare covered services for which the plan shall not be fiscally responsible under the demonstration.

"Centers for Medicare and Medicaid Services" or "CMS" means the federal agency of the United States Department of Health and Human Services that is responsible for the administration of Titles XVIII, XIX, and XXI of the Social Security Act.

"Commonwealth Coordinated Care," "CCC," or "the program" means the program for the Virginia Medicare-Medicaid Financial Alignment Demonstration Model.

"Cost sharing" means copayments, coinsurance, or deductibles paid by an enrollee when receiving medical services.

"Covered enrollee" means an enrollee enrolled in the demonstration, including the duration of any month in which his eligibility for the demonstration ends.

"Covered services" means the set of required services offered by the participating plan as set forth in the three-way contract.

"Cultural competency" means understanding those values, beliefs, and needs that are associated with an enrollee's age, gender identity, sexual orientation, or racial, ethnic, or religious background. Cultural competency (i) includes a set of competencies that are required to ensure appropriate, culturally sensitive health care to persons with congenital or acquired disabilities and (ii) is based on the premise of respect for enrollee and cultural differences and on an implementation of a trust-promoting method of inquiry and assistance.

"Demonstration" means the capitated model under the Medicare-Medicaid Financial Alignment Demonstration Model as authorized by the Centers for Medicare and Medicaid Services (CMS) and as set out in the Patient Protection and Affordable Care Act of 2010 and authorized under § 1115A of the Social Security Act. The demonstration requires compliance with (i) Title XIX of the Social Security Act and Medicaid regulations set forth in 42 CFR Chapter IV, (ii) Part C of Title XVIII and Medicare Advantage regulations set forth in 42 CFR Part 4224, and (iii) Part D of Title XVIII and Medicare Part D regulations set forth in 42 CFR Part 4236, except to the extent that waivers and variances are documented in the memorandum of understanding (MOU) between CMS and DMAS. Under the demonstration, states, CMS, and participating plans will enter into three-way contracts through which the plans will receive a capitated rate to cover the full continuum of Medicare and Medicaid benefits provided to dual eligible enrollees. Demonstrations will be for the period as outlined in the MOU, unless terminated earlier as provided for in § 1115A of the Social Security Act, the MOU, and the three-way contract.

"Department of Medical Assistance Services," "the department," or "DMAS" means the Virginia Department of Medical Assistance Services, the single state agency for the Medicaid program in Virginia that is responsible for implementation and oversight of the demonstration.

"Disenrollment" means the process of changing enrollment from one participating plan to another participating plan or returning from the participating plan to the fee-for-service system but shall not include ending eligibility in the Medicare or Medicaid programs.

"Division" or "Appeals Division" means the Appeals Division of the Department of Medical Assistance Services.

"Dual eligible enrollees" means a Medicare enrollee who receives (i) Medicare Parts A, B, and D benefits and also receives full Medicaid benefits and (ii) does not meet any exclusionary reasons as outlined in the MOU. This term will be used to reference enrollees who are eligible for the demonstration.

"Effective date of enrollment" means the date on which a participating plan's coverage begins for an enrollee.

"Elderly or Disabled with Consumer Direction Waiver" or "EDCD Waiver" means, as provided in Part IX (12VAC30-120-900 et seq.) of Waivered Services (12VAC30-120) the CMS-approved waiver that covers a limited range of community support services offered to enrollees who are elderly or who have a disability and meet Virginia nursing facility level of care criteria as set out in 12VAC30-60-300, 12VAC30-60-303, and 12VAC30-60-307.

"Enrollee" means a person eligible for full Medicaid benefits and Medicare Parts A, B and D who is also enrolled in a participating plan to receive services under the demonstration.

"Enrollee appeal" means an enrollee's request for review of a participating plan's coverage or payment determination. In accordance with 42 CFR 438.400, a Medicaid-based appeal is defined as a request for review of an action. An appeal is an enrollee's challenge to the actions regarding services, benefits, and reimbursement provided by the participating plan, its service providers, or the Department of Medical Assistance Services.

"Enrollee communications" means the materials designed to communicate to enrollees plan benefits, policies, processes, and enrollee rights, including pre-enrollment, post-enrollment, and operational materials.

"Enrollment" means the completion of approved enrollment forms by or on behalf of an eligible person and assignment of an enrollee to a participating plan by DMAS in accordance with federal law.

"Enrollment facilitator" means an independent entity contracted with DMAS that (i) enrolls beneficiaries in the plan, (ii) is responsible for the operation and documentation of a toll-free helpline, (iii) educates enrollees about the plan, (iv) assists with and tracks enrollees' grievance resolutions, and (v) may market and perform outreach to potential enrollees.

"Enrollment period" means the time that an enrollee is actually enrolled in a participating plan.

"Evidence of coverage" or "EOC" means a document, prepared by the MMP and provided to the enrollee that is consistent with the requirements of 42 CFR 438.10, 42 CFR 422.11, and 42 CFR 423.128 and includes information about all the services covered by that plan.

"Expedited appeal" means the process by which the department must respond to an appeal by an enrollee if a denial of care decision and the subsequent internal appeal by a participating plan may jeopardize life, health, or ability to attain, maintain, or regain maximum function.

"External appeal" means an appeal, subsequent to the participating plan appeal decision, to the state fair hearing process for Medicaid-based adverse decisions or to the Medicare process for Medicare-based adverse decisions. The department's external appeal decision shall be binding upon the participating plan or plans and not subject to further appeal by the participating plan or plans.

"Fee-for-service" or "FFS" means the traditional health care payment system in which physicians and other providers receive a payment for each service they provide.

"Fiscal/employer agent" or "F/EA" means an organization (i) operating under § 3504 of the IRS Code, IRS Revenue Procedure 70-6, and IRS Notice 2003-70 and (ii) that has a separate federal employer identification number used for the sole purpose of filing federal employment tax forms and payments on behalf of program enrollees who are receiving consumer-directed services.

"Final decision" means a written determination by a hearing officer that is binding on the department, unless modified during or after the judicial process and that may be appealed to the local circuit court.

"Full benefit dual eligible" means an enrollee defined as Dual Eligible-QMB-plus pursuant to 12VAC30-10-320 A.

"Good cause" means to provide sufficient cause or reason for failing to file a timely appeal or for missing a scheduled appeal hearing.

"Health risk assessment" or "HRA" means a comprehensive assessment of an enrollee's medical, psychosocial, cognitive, and functional status in order to determine his medical, behavioral health, long-term care services and supports, and social needs.

"Hearing" means an informal evidentiary proceeding conducted by a department hearing officer during which an enrollee has the opportunity to present his concerns with, or objections to, the participating plan's internal appeal decision.

"Hearing officer" means an impartial decision maker who conducts evidentiary hearings for enrollee appeals on behalf of the department.

"Home and community-based waiver services" or "waiver services" means a variety of home and community-based services eligible for payment by DMAS as authorized under a § 1915(c) waiver designed to offer enrollees an alternative to institutionalization.

"ICF/IID" means an intermediate care facility for individuals with intellectual disabilities.

"Integrated appeals process" means the process that incorporates relevant Medicare and Medicaid requirements and allows enrollees to appeal actions for either Medicare-based services or Medicaid-based services to the MMP with one request.

"Interdisciplinary care team" or "ICT" means a team of professionals who collaborate, either in person or through other means, with the enrollee to develop and implement (employing both medical and social models of care) a plan of care that meets the enrollee's medical, behavioral health, long-term care services and supports, and social needs. ICTs may include physicians, physician assistants, long-term care providers, nurses, specialists, pharmacists, behavior health specialists, and social workers, as may be appropriate for the enrollee's medical diagnoses and health condition, comorbidities, and community support needs.

"Intermediate sanctions" means sanctions that may be imposed on the Medicare-Medicaid Plans (MMP) such as civil money penalties, appointment of temporary management, permission for individuals to terminate enrollment in the Medicare-Medicaid Plan without cause, suspension or default of all enrollment of individuals, and suspension of payment to the Medicare-Medicaid Plan for individuals enrolled pursuant to 42 USC § 1396u-2(e)(2).

"Internal appeal" means an enrollee's initial request for review of a participating plan's coverage or payment determination by his MMP.

"Long-stay hospitals" mean specialty Medicaid facilities that serve enrollees who require a higher intensity of nursing care than that which is normally provided in a nursing facility and who do not require the degree of care and treatment that an acute care hospital is designed to provide.

"Long-term services and supports" or "LTSS" means a variety of services and supports that (i) help elderly enrollees and enrollees with disabilities who need assistance to perform activities of daily living and instrumental activities of daily living to improve the quality of their lives and (ii) are provided over an extended period, predominantly in homes and communities, but also in facility-based settings such as nursing facilities. Examples of these activities include assistance with bathing, dressing, and other basic activities of daily life and self-care, as well as support for everyday tasks such as laundry, shopping, and transportation.

"Medicaid" means the program of medical assistance benefits under Title XIX of the Social Security Act and various demonstrations and waivers thereof.

"Medically necessary" or "medical necessity" means, per Medicare, services that are reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member, or otherwise medically necessary under 42 USC § 1395y. Per Virginia Medicaid, an item or service provided for the diagnosis or treatment of a patient's condition consistent with community standards of medical practice and in accordance with Medicaid policy (12VAC30-130-600). Furthermore, as defined in 42 CFR 440.230, services must be sufficient in amount, duration, and scope to reasonably achieve their purpose. Services must be provided in a way that provides all protections to covered enrollees provided by Medicare and Virginia Medicaid.

"Medicare" means Title XVIII of the Social Security Act, the federal health insurance program for people age 65 or older, people younger than 65 years of age who have certain disabilities, and people with end stage renal disease (ESRD) or amyotrophic lateral sclerosis (ALS).

"Medicare independent review entity" means an independent organization contracted by CMS to review appeals for Medicare-covered services that have been denied by the enrollee's MMP

"Medicare-Medicaid enrollees" means, for the purposes of this demonstration, enrollees who are (i) entitled to Medicare Part A and enrolled in Medicare Parts B and D (ii) receive full benefits under the Virginia State Plan for Medical Assistance, and (iii) otherwise meet eligibility criteria for the demonstration.

"Medicare Part A" means hospital insurance that helps cover inpatient care in hospitals, skilled nursing facilities, hospice, and home health care.

"Medicare Part B" means insurance that helps cover medically necessary services such as doctors services, outpatient care, durable medical equipment, home health services, other medical services, and some preventive services.

"Medicare Part C" or "Medicare Advantage" means plans that (i) provide all of an enrollee's Medicare Part A and Medicare Part B coverage; (ii) may offer extra coverage, such as vision, hearing, dental, or health and wellness programs; and (iii) may include Medicare prescription drug coverage (Part D).

"Medicare Part D" means Medicare prescription drug coverage.

"Memorandum of understanding" or "MOU" means the Memorandum of Understanding between the Centers for Medicare and Medicaid Services (CNS) and the Commonwealth of Virginia Regarding a Federal-State Partnership to Test a Capitated Financial Alignment Model for Medicare-Medicaid Enrollees (5/2013), the document that sets out the mutually agreed to understanding of this program between CMS and DMAS.

"Minimum Data Set" or "MDS" means part of the federally-mandated process for assessing enrollees receiving care in certified skilled nursing facilities in order to record their overall health status, regardless of payer source.

"Model of care" means a comprehensive plan that (i) describes the plan's population; (ii) identifies measurable goals for providing high quality care and improving the health of the enrolled population; (iii) describes the plan's staff structure and care management roles; (iv) describes the interdisciplinary care team and the system for disseminating the model of care to plan staff and network providers; and (vi) contains other information designed to ensure that the plans provide services that meet the needs of enrollees.

"Money Follows the Person" or "MFP" means a demonstration project administered by DMAS that is designed to create a system of long-term services and supports that better enable enrollees to transition from certain long-term care institutions into the community.

"Network" means doctors, hospitals, or other health care providers that participate or contract with a participating plan and, as a result, agree to accept a mutually-agreed upon payment amount or fee schedule as payment in full for covered services that are rendered to eligible enrollees.

"Nursing facility" means any skilled nursing facility, skilled care facility, intermediate care facility, nursing care facility, or nursing facility, whether freestanding or a portion of a freestanding medical care facility, that is certified for participation as a Medicare or Medicaid provider, or both, pursuant to Title XVIII and Title XIX of the United States Social Security Act, as amended, and § 32.1-137 of the Code of Virginia.

"Opt-out option" means the process by which an enrollee can choose to not participate in the demonstration.

"Participating plan," "Medicare-Medicaid Plan," or "MMP" means a health plan selected to participate in Virginia's Medicare-Medicaid Financial Alignment Demonstration Model and that is a party to the three-way contract with CMS and DMAS.

"Passive enrollment" means an enrollment process through which an eligible enrollee is enrolled by DMAS (or its vendor) into a participating plan, when not otherwise affirmatively electing one following a minimum 60-day advance notification that includes the opportunity to make another enrollment decision or opt out of the demonstration prior to the enrollment effective date.

"Plan of care" or "POC" means a plan, primarily directed by the enrollee and family members of the enrollee as appropriate with the assistance of the enrollee's interdisciplinary care team to meet the enrollee's medical, behavioral health, long-term care services and supports, and social needs.

"Preadmission screening" means the process to (i) evaluate the functional, nursing, and social supports of enrollees referred for preadmission screening; (ii) assist enrollees in determining what specific services the enrollees need; (iii) evaluate whether a service or a combination of existing community services are available to meet the enrollees' needs; and (iv) refer enrollees to the appropriate entity for either Medicaid-funded nursing facility services or home and community-based care for those enrollees who meet the criteria for nursing facility level of care.

"Preadmission screening team" means the entity contracted with DMAS that is responsible for performing preadmission screening pursuant to § 32.1-330 of the Code of Virginia.

"Previously authorized" means, in relation to continuation of benefits, as described in 42 CFR 438.420, a prior approved course of treatment and is best clarified by the following example: If the plan authorizes 20 visits and then later reduces this authorization to 10 visits, this exemplifies a "previously authorized service" that is being reduced. Conversely, "previously authorized" does not include the following example: (i) the plan authorizes 10 visits; (ii) the 10 visits are rendered; and (iii) another 10 visits are requested but are denied by the plan. In this case, the fact that the plan had authorized 10 visits on a prior request for authorization is not germane to continuation of benefits requirements for previously authorized services that are terminated, suspended, or reduced.

"Primary care provider" or "PCP" means a practitioner who provides preventive and primary medical care and certifies service authorizations and referrals for medically necessary specialty services. PCPs may include pediatricians, family and general practitioners, internists, obstetrician/gynecologists, geriatricians, and specialists who perform primary care functions (such as surgeons) and clinics including, but not limited to, local health departments, federally qualified health centers (FQHCs), rural health clinics (RHCs).

"Privacy" means the requirements established in the Health Insurance Portability and Accountability Act of 1996, and implementing regulations, Medicaid regulations, including 42 CFR 431.300 through 431.307, as well as relevant Virginia privacy laws.

"Program of All-Inclusive Care for the Elderly" or "PACE" means the program in which the PACE provider provides the entire spectrum of health services (preventive, primary, and acute) and long-term services and supports to its enrollees without limit as to duration or cost of services pursuant to 12VAC30-50-320 et seq.

"Provider appeal" means an appeal filed by a Medicare, Medicaid or other service provider that has already provided a service and has received an action regarding payment or audit result.

"Quality withhold amounts" means percentages of the respective components, with the exception of Medicare Part D amounts, of the capitation rate due to the participating plans to be retained by CMS and DMAS until such time as the plan's performance is consistent with established quality thresholds.

"Remand" means the return of a case by the hearing officer to the participating plan for further review, evaluation, and action.

"Remote patient monitoring" means monitoring a patient remotely and is often used for patients with one or more chronic conditions, such as congestive heart failure, cardiac arrhythmias, diabetes, pulmonary diseases, or the need for anticoagulation treatment and must be agreed to by the enrollee. Examples of remote patient monitoring activities include, but are not limited to, transferring vital signs such as weight, blood pressure, blood sugar, and heart rate from the enrollee to the physician's office.

"Representative" means an attorney or other individual who has been authorized to represent an enrollee pursuant to these regulations.

"Reverse" means to overturn the participating plan's action and internal appeal decision and to direct that the participating plan fully approve the amount, duration, and scope of requested services.

"Secretary" means the Secretary of the U.S. Department of Health and Human Services.

"Social Security Act" means the federal act, codified through Chapter 7 of Title 42 of the United States Code, that established social insurance programs including Medicare and Medicaid.

"Spend down" means when a Medicaid applicant meets all Medicaid eligibility requirements other than income, Medicaid eligibility staff conduct a "medically needy" calculation that compares the enrollee's income to a medically needy income limit for a specific period of time referred to as the "budget period" (not to exceed six months). When a Medicaid applicant's incurred medical expenses equal the spend down amount, the applicant is eligible for full benefit Medicaid for the remainder of the spend down budget period.

"State fair hearing" means the DMAS evidentiary hearing process as administered by the Appeals Division of DMAS.

"State Plan for Medical Assistance" or "State Plan" means the comprehensive written statement submitted to CMS by the department describing the nature and scope of the Virginia Medicaid program and giving assurance that it will be administered in conformity with the requirements, standards, procedures, and conditions for obtaining federal financial participation. DMAS has the authority to administer such State Plan for the Commonwealth pursuant to the authority of the § 32.1-325 of the Code of Virginia, as amended.

"Store and forward" means when prerecorded images, such as x-rays, video clips, and photographs are captured and then forwarded to and retrieved, viewed, and assessed by a provider at a later time. Some common applications include: (i) teledermatology, where digital pictures of a skin problem are transmitted and assessed by a dermatologist; (ii) teleradiology, where x-ray images are sent to and read by a radiologist; and (iii) teleretinal imaging, where images are sent to and evaluated by an ophthalmologist to assess for diabetic retinopathy.

"Sustain" means to uphold the participating plan's appeal decision.

"Targeted case management" or "TCM" means the Medicaid-funded State Plan case management service provided by private providers for enrollees with substance use disorders or developmental disabilities and by community services boards or behavioral health authorities for enrollees with behavioral health disorders or intellectual disabilities, and encompasses both referral and transition management and clinical services such as monitoring, self-management support, and medication review and adjustment. TCM is separate from "care management" as defined in the MOU.

"Telehealth" or "telemedicine" means the real time or near real time two-way transfer of data and information using an interactive audio/video connection for the purposes of medical diagnosis and treatment.

"Three-way contract" means the three-way agreement between CMS, DMAS, and a participating plan specifying the terms and conditions pursuant to which a participating plan shall participate in CCC.

"Uniform Assessment Instrument" or "UAI" means the standardized multidimensional questionnaire that is completed by a preadmission screening team, or a hospital discharge planner for applicants residing in a hospital setting, that assesses an enrollee's psychosocial health, physical health, mental health, and functional abilities to determine if an applicant meets level of care criteria for long-term services and supports that are funded through Medicaid.

"Vulnerable subpopulation" means, at a minimum, individuals from the following groups: (i) individuals who are enrolled in the Elderly or Disabled with Consumer Direction (EDCD) Waiver (12VAC30-120-900 et seq.); (ii) individuals who have either intellectual or developmental disabilities, or both; (iii) individuals who have cognitive or memory problems, or both, (e.g., dementia and traumatic brain injury); (iv) individuals with physical or sensory disabilities; (v) individuals who are residing in nursing facilities; (vi) individuals who have serious and persistent mental illness or illnesses; (vii) individuals who have end stage renal disease; and (viii) individuals who have complex or multiple chronic health conditions, or both.

"Withdrawal" means a written request from the enrollee or the enrollee's representative for the department to terminate the appeal process without a final decision on the merits.

12VAC30-121-30. Selected localities.

A. The demonstration shall operate in specific regions within the Commonwealth.

B. The department and CMS will implement the demonstration in Central Virginia, Northern Virginia, Roanoke, Tidewater, and Western/Charlottesville regions.

C. Under the demonstration, DMAS will conduct a regional phase-in. Phase I will impact Central Virginia and Tidewater. Phase II will impact Western/Charlottesville, Northern Virginia, and Roanoke.

D. Participating plans must cover all eligible enrollees in all localities within the region or regions in which such plans participate.

12VAC30-121-40. Eligible enrollees.

A. Medicaid-eligible enrollees who qualify as follows may be eligible to be enrolled in the demonstration:

1. Individuals who are 21 years of age and older at the time of enrollment;

2. Individuals who are entitled to benefits under Medicare Part A, enrolled under Medicare Parts B and D, and who are receiving full Medicaid benefits. This includes enrollees participating in the EDCD Waiver and those residing in nursing facilities;

3. Individuals who reside in a program region; and

4. Individuals who do not meet any of the exclusions identified in 12VAC30-121-45.

B. Individuals who have been excluded from CCC, for any reason, shall be permitted to opt in to the program once the reason for their exclusion no longer exists.

12VAC30-121-45. Individuals excluded from enrollment.

Individuals who meet at least one of the following criteria shall be excluded from the program:

1. Individuals who are younger than 21 years of age.

2. Individuals who are required to "spend down" income in order to meet Medicaid eligibility requirements.

3. Individuals for whom DMAS only pays a limited amount each month toward their cost of care (e.g., deductibles), including non-full-benefit Medicaid beneficiaries. These Individuals may receive Medicaid coverage for the following: (i) Medicare monthly premiums for Medicare Part A, Medicare Part B, or both (carved-out payment); (ii) coinsurance, copayment, and deductible for Medicare-allowed services; and (iii) Medicaid-covered services, including those that are not covered by Medicare.

These individuals may include:

a. Qualified Medicare Beneficiaries (QMBs);

b. Special Low Income Medicare Beneficiaries (SLMBs);

c. Qualified Disabled Working Individuals (QDWIs); or

d. Qualifying Individuals (QIs).

4. Individuals who are inpatients in state mental hospitals, including but not limited to Catawba Hospital, Central State Hospital, Eastern State Hospital, Hiram W. Davis Medical Center, Northern Virginia Mental Health Institute, Piedmont Geriatric Hospital, Southern Virginia Mental Health Institute, Southwestern State HM&S, Southwestern Virginia Mental Health Institute, Western State HM&S, and Western State Hospital.

5. Individuals who are residents of state hospitals, ICF/IID facilities, residential treatment facilities, or long stay hospitals.

6. Individuals who are participating in federal waiver programs for home and community-based Medicaid coverage other than the EDCD Waiver (e.g., Individual and Family Developmental Disabilities Support, Intellectual Disability, Day Support, Technology Assisted Waiver, and Alzheimer's Assisted Living Waivers).

7. Individuals receiving hospice services at the time of enrollment will be excluded from the program. If an enrollee enters a hospice program while enrolled in the waiver, he will be disenrolled from the program. If such enrollees opt out of this program, they shall not be permitted to reenter it. If enrollees do not opt out but leave this program due to program action, they shall be permitted to return to the program upon their leaving the hospice program. However, participating plans shall refer these individuals to the preadmission screening team for additional LTSS if not already in place.

8. Individuals receiving the end stage renal disease (ESRD) Medicare benefit at the time of enrollment into the program. However, an enrollee who develops ESRD while enrolled in the waiver will remain in the program unless he opts out. If he opts out, the enrollee shall not be permitted to opt back into the program.

9. Individuals with other comprehensive group or enrollee health insurance coverage, other than full benefit Medicare, insurance provided to military dependents, and any other insurance purchased through the Health Insurance Premium Payment Program.

10. Individuals who have a Medicaid eligibility period that is less than three months.

11. Individuals who have a Medicaid eligibility period that is only retroactive.

12. Individuals enrolled in the Virginia Birth-Related Neurological Injury Compensation Program established pursuant to Chapter 50 (§ 38.2-5000 et seq.) of Title 38.2 of the Code of Virginia.

13. Individuals enrolled in the MFP program.

14. Individuals residing outside of the program coverage regions.

15. Individuals enrolled in a Program of All-Inclusive Care for the Elderly (PACE). However, PACE participants may enroll in the waiver if they choose to disenroll from their PACE provider.

16. Individuals participating in the CMS Independence at Home (IAH) demonstration or any other demonstration that bases some or all payment on achievement of Medicare savings.

12VAC30-121-50. Enrollment process.

Individuals who qualify as indicated in 12VAC30-121-40 and are not excluded as provided in 12VAC30-121-45 shall be enrolled as follows, except if they choose to opt out:

1. Enrollees shall be assigned to a participating plan based on their previous six months of Medicaid claims history prior to preassignment using the rules in this order of priority:

a. Enrollees in a nursing facility shall be preassigned to a participating plan that includes the enrollee's nursing facility in its provider network;

b. Enrollees in the EDCD Waiver shall be assigned to a participating plan that includes the enrollee's current adult day health care provider in the MMP's existing provider network;

c. If more than one participating plan network includes the nursing facility or adult day health care provider used by an enrollee, he shall be assigned to the participating plan with which he has previously been assigned in the past six months. If he has no history of previous participating plan assignment, he shall be randomly assigned to a participating plan in which his provider participates.

d. Enrollees shall be preassigned to a participating plan, first the Medicare plan and secondly the Medicaid participating plan, with whom they have previously been assigned within the past six months.

2. Utilizing passive enrollment, eligible enrollees will be notified of their right to select among contracted participating plans no fewer than 60 days prior to the effective date of enrollment.

3. Eligible enrollees shall receive a notice that indicates the participating plan to which they have been preassigned. The notice shall have instructions for the enrollee to contact the department's contracted enrollment broker to (i) accept the preassigned participating plan; (ii) select a different participating plan that is operating in their region; or (iii) to opt out of the program and remain in the fee-for-service environment. If an enrollee does not select a participating plan, he shall be passively enrolled into the preassigned participating plan.

4. Prior to the effective date of their plan enrollment, enrollees who would be passively enrolled will have the opportunity to opt out and will receive sufficient notice and information with which to do so.

5. All enrollment effective dates shall be prospective. Enrollee-elected enrollment is effective the first day of the month following an enrollee's request to enroll, so long as the request is received on or before five days before the end of the month. Enrollment requests, including requests to change among participating plans, received later than five days before the end of the month, will become effective the first of the second month following the request. Passive enrollment is effective not sooner than 60 days after enrollee notification.

6. Disenrollment from participating plans and transfers between participating plans shall be allowed on a month-to-month basis any time during the year; however, coverage for these enrollees will continue through the end of the month. All disenrollment requests will be effective the first day of the month following an enrollee's request to disenroll from the CCC Program.

7. CMS and DMAS will monitor enrollments and disenrollments for both evaluation purposes and for compliance with applicable marketing and enrollment laws, regulations, and CMS policies, for the purposes of identifying any inappropriate or illegal marketing practices. As part of this analysis, CMS and DMAS will monitor any unusual shifts in enrollment by enrollees identified for passive enrollment into a particular participating plan to a Medicare Advantage plan operated by the same parent organization. If those shifts appear to be due to inappropriate or illegal marketing practices, CMS or DMAS, or both, may require corrective action. Any illegal marketing practices will be referred to appropriate agencies for investigation.

8. As mutually agreed upon in the three-way contract, CMS and DMAS shall utilize an independent third party entity to facilitate all enrollments into the participating plans.

9. Participating plan enrollments, transfers, and opt-outs shall become effective on the same day for both Medicare and Medicaid. For enrollees who lose Medicaid eligibility during a month, coverage and federal financial participation will continue through the end of the month in which Medicaid eligibility is ended.

12VAC30-121-60. (Reserved.)

12VAC30-121-70. Covered services.

A. CMS and DMAS shall contract with participating plans that demonstrate the capacity to provide directly, or by subcontracting with other qualified entities, the full continuum of medically necessary Medicare and Medicaid covered services to enrollees, in accordance with (i) the MOU; (ii) CMS guidance; (iii) the three-way contract; (iv) 42 CFR Part 422, 42 CFR Part 423, and 42 CFR Part 438; (v) the requirements in the State Plan for Medical Assistance, including any applicable State Plan amendments and § 1915(c) of the Act; (vi) the EDCD Waiver (12VAC30-120-900 et seq.); (vii) 42 USC § 1395y; (viii) 12VAC30-130-600; (ix) the ADA; and (x) the Olmstead decision (Olmstead v. L.C. (98-536) 527 U.S. 581 (1999)). Furthermore, as defined in 42 CFR 440.230, services shall be sufficient in amount, duration, and scope to reasonably achieve their purpose. Participating plans shall be required to provide services in a way that preserves all protections to enrollees and provides enrollees with coverage to at least the same extent provided by Medicare and Medicaid. Where there is overlap between Medicare and Medicaid benefits, coverage and rules shall be delineated in the three-way contract. Participating plans will be required to abide by the more generous of the applicable Medicare, Medicaid, or the combined Medicare-Medicaid standard.

B. With the exception of those services that are specifically carved out of this program as set out in subdivision C of this section, the required covered services shall include, but not be limited to:

1. Medicare Parts A, B, and D services.

2. Medically necessary procedures. Participating plans will be responsible for medically necessary procedures, including but not limited to, the following:

a. CPT codes billed for dental services performed as a result of a dental accident (i.e., an accident that damages the mouth);

b. Preparation of the mouth for radiation therapy, maxillary or mandibular frenectomy when not related to a dental procedure, orthognathic surgery to attain functional capacity, and surgical services on the hard or soft tissue in the mouth where the main purpose is not to treat or help the teeth and their supporting structures.

c. Anesthesia and hospitalization for medically necessary services.

d. At their option, additional flexible dental services for program enrollees.

e. For participants of auxiliary grants, case management services. Although not widely used, this service is included as part of the annual reassessment screening process for assisted living recipients and will be provided under fee-for-service.

3. Acute care services provided under the State Plan for Medical Assistance as found in 12VAC30-50, and further defined by written DMAS regulations, policies, and instructions, except as otherwise modified or excluded in the three-way contract;

4. Covered LTSS provided under the EDCD Waiver, including adult day health care, personal care (agency and consumer-directed options), personal emergency response services with or without medication monitoring, respite care (agency and consumer-directed options), transition coordination, and transition service.

5. The integrated formulary for prescription drugs, including Medicaid-covered drugs that are excluded by Medicare Part D. Participating plans must also cover drugs covered by Medicare Parts A or B. In all respects, unless stated otherwise in the MOU or the three-way contract, Medicare Part D requirements continue to apply.

6. Nursing facility services as defined in 42 CFR 440.40.

7. Health risk assessments.

a. Each enrollee shall receive and be an active participant in a timely, comprehensive, assessment of medical, behavioral health, LTSS, and social needs completed by the participating plan's care management team. All health risk assessment tools are subject to approval by DMAS. Assessment domains will include, but not be limited to, the following: medical, psychosocial, functional, cognitive, and behavioral health. Relevant and comprehensive data sources, including the enrollee, providers, family, caregivers, and additional significant others as may be designated by the enrollee, shall be used by the participating plans.

b. During the first year of the program, all enrollees meeting any of the following criteria shall receive a health risk assessment to be completed no later than 60 days from the onset of these enrollees' enrollment:

(1) Individuals enrolled in the EDCD Waiver;

(2) Individuals with intellectual or developmental disabilities;

(3) Individuals with cognitive or memory problems (e.g., dementia or traumatic brain injury);

(4) Individuals with physical or sensory disabilities;

(5) Individuals residing in nursing facilities;

(6) Individuals with serious and persistent mental illnesses;

(7) Individuals with end stage renal disease; and

(8) Individuals with complex or multiple chronic health conditions.

c. During the first year of the program and for all other enrollees, health risk assessments must be conducted within 90 days of enrollment.

d. Health risk assessments for individuals enrolled in the EDCD Waiver and for individuals residing in nursing facilities must be conducted face to face. The health risk assessments for individuals residing in nursing facilities must also incorporate the MDS.

e. During subsequent years of the program, individuals enrolled in the EDCD Waiver must receive a health risk assessment within 30 days of enrollment and all other enrollees must receive a health risk assessment within 60 days of enrollment.

8. Level of care (LOC) determinations.

a. Initial LOC determinations shall be conducted by hospitals and local preadmission screening teams as defined in § 32.1-330 of the Code of Virginia.

b. Participating plans must ensure that LOC annual reassessments are conducted timely for EDCD Waiver participants (minimum within 365 days of the last annual reassessment or as the participants' needs change). Participating plans shall conduct annual face-to-face assessments for continued nursing facility LOC eligibility requirements for the EDCD Waiver.

c. The plans shall establish criteria that includes health status change (i.e., the triggering events that precipitate a need for reassessment, including a change in the ability to perform activities of daily living and instrumental activities of daily living) for reassessments to be performed prior to the reassessment.

d. The LOC annual reassessment shall include all the elements required by the three-way contract for enrollees who are in the EDCD Waiver who have a change in status.

e. LOC annual reassessments for EDCD Waiver enrollees shall be performed by providers with the following qualifications: (i) a registered nurse (RN) licensed in Virginia with at least one year of experience as an RN; (ii) a social worker licensed in Virginia; or (iii) an individual who holds at least a bachelor's degree in a health or human services field and has at least two years of experience working with individuals who are elderly or have disabilities, or both.

f. Participating plans shall ensure that quarterly and annual assessments are conducted timely for nursing facility residents based on the MDS process and shall work cooperatively with nursing facilities to provide information regarding the completion of the assessments for continued nursing facility placement.

g. Participating plans shall communicate annual LOC reassessment data for EDCD Waiver enrollees and nursing facility residents to DMAS according to requirements in the three-way contract.

9. Plans of care (POCs).

a. Participating plans shall develop a person-centered POC for each enrollee. The POC shall be tailored to the individual enrollee's needs and be agreed to and signed by the enrollee or the enrollee's employer of record.

b. Participating plans shall implement a person-centered and culturally competent POC development process. Participating plans shall also develop a process that will incorporate but not duplicate targeted case management for applicable enrollees.

c. During the first year of the CCC, participating plans shall ensure that plans of care for all enrollees are completed within 90 days of the enrollees' enrollment. Participating plans shall honor all existing plans of care and service authorizations until the authorization ends or 180 days from enrollees' enrollment, whichever is sooner. For EDCD Waiver individuals, the plan of care shall be developed and implemented by the participating plan no later than the end date of any existing service authorization.

d. During subsequent years of the program, participating plans shall ensure that plans of care are developed within the following timeframes:

(1) Within 30 days of enrollment for EDCD Waiver participants;

(2) Within 60 days of enrollment for vulnerable subpopulations (excluding EDCD Waiver participants); and

(3) Within 90 days of enrollment for all other enrollees.

e. Participating plans shall incorporate information from the UAI and the LOC determinations into the POCs for individuals in the EDCD Waiver.

f. Participating plans shall develop a process for obtaining nursing facility MDS data and incorporating that information into the POC. Participating plans shall ensure that nursing facilities' residents who wish to move to the community will be referred to the preadmission screening teams or the MFP program. If the individual enrolls in the MFP program, he will be disenrolled from this program.

g. Participating plans shall develop a process for addressing health, safety (including minimizing risk), and welfare of the enrollee in the POC.

h. The POC shall contain the following:

(1) Prioritized list of enrollee's concerns, needs, and strengths;

(2) Attainable goals, outcome measures, and target dates selected by the enrollee or caregiver, or both;

(3) Strategies and actions, including interventions and services to be implemented, the providers responsible for specific interventions and services, and the frequency of the interventions and strategies;

(4) Progress noting success, barriers, or obstacles;

(5) Enrollee's informal support network and services;

(6) Back up plans as appropriate for EDCD Waiver enrollees using personal care and respite services in the event that the scheduled provider or providers are unable to provide services;

(7) Determined need and plan to access community resources and noncovered services;

(8) Enrollee choice of services (including consumer-direction) and service providers; and

(9) Elements included in the DMAS-97AB form, (which can be downloaded from https://www.virginiamedicaid.dmas.virginia.gov/wps/portal) for individuals enrolled in the EDCD Waiver.

i. Participating plans shall ensure that reassessments and POC reviews are conducted:

(1) By the POC anniversary for vulnerable subpopulations (excluding EDCD Waiver participants and nursing facility residents) and all other enrollees;

(2) By the POC anniversary, not to exceed 365 days for EDCD Waiver enrollees (must be face to face); and

(3) Following MDS guidelines and timeframes for quarterly and annual POC development for nursing facility residents.

j. Participating plans must ensure that POCs are revised based on triggering events, such as hospitalizations or significant changes in health or functional status.

10. Interdisciplinary care team (ICT).

a. For each enrollee, participating plans shall support an ICT to ensure the integration of the enrollee's medical, behavioral health, substance use, LTSS, and social needs. The team will be person centered, built on the enrollee's specific preferences and needs, and deliver services with transparency, individualization, respect, linguistic and cultural competency, and dignity.

b. Participating plans ICTs shall employ both medical and social models of care, as appropriate for their enrollees' documented needs.

c. Participating plan members of the team shall agree to participate in approved training on the person-centered planning processes, cultural competency, accessibility and accommodations, independent living and recovery, ADA/Olmstead requirements, and wellness principles, along with other required training as specified by the Commonwealth. Participating plans will offer training to additional members of the team such as primary care providers and specialists, as appropriate.

d. If an enrollee is receiving Medicaid State Plan for Medical Assistance targeted case management services, the participating plans shall develop a mechanism to include the targeted case manager as a member of the ICT.

e. If an enrollee is identified to be eligible to transition into the community through the Department of Justice Settlement Agreement (Case: 3:12-CV-00059-JAG, available at http://www.dbhds.virginia.gov/settlement/FullAgreement.pdf), the participating plan's ICT shall collaborate with the locality's community services board (CSB) or behavioral health authority, as appropriate, and the Department of Behavioral Health and Developmental Services to successfully transition the enrollee into the community. The enrollee's CSB case manager shall participate as a part of the participating plan's ICT to monitor the enrollee's service needs. If the enrollee transitions into either the Individuals with Intellectual Disabilities Waiver or Developmental Disability Waiver, the enrollee shall be disenrolled from this program. If the enrollee transitions to the EDCD Waiver, the enrollee may remain in the program.

11. State requirements for care coordination.

a. The participating plan shall provide person-centered care management functions for all enrollees.

b. All enrollees shall have access to the following supports depending on their needs and preferences; however, care management for vulnerable subpopulations shall include the items described below in subdivisions (6) through (12):

(1) A single, toll-free point of contact for all questions;

(2) Ability to develop, maintain and monitor the POC;

(3) Assurance that referrals result in timely appointments;

(4) Communication and education regarding available services and community resources;

(5) Assistance developing self-management skills to effectively access and use services;

(6) Assistance in receiving needed medical and behavioral health services, preventive services, medications, LTSS, social services, and enhanced benefits; this includes (i) setting up appointments, (ii) in-person contacts as appropriate, (iii) strong working relationships between care managers and physicians; (iv) evidence-based enrollee education programs, and (v) arranging transportation as needed;

(7) Monitoring of functional and health status;

(8) Seamless transitions of care across specialties and care settings;

(9) Assurance that enrollees with disabilities have effective communication with health care providers and participate in making decisions with respect to treatment options;

(10) Connecting enrollees to services that promote community living and help avoid premature or unnecessary nursing facility placements;

(11) Coordination with social service agencies (e.g., local departments of health, local departments of social services, and community services boards) and referrals for enrollees to state, local, and other community resources; and

(12) Collaboration with nursing facilities to promote adoption of evidence-based interventions to reduce avoidable hospitalizations and to include management of chronic conditions, medication optimization, prevention of falls and pressure ulcers, and coordination of services beyond the scope of the nursing facility benefit.

c. Participating plans shall develop innovative arrangements to provide care management such as:

(1) Partnering or contracting, or both, with entities, such as community services boards, adult day care centers, and nursing facilities, that currently perform care management and offer support services to individuals eligible for the program;

(2) Medical homes;

(3) Subcapitation, such as payment arrangement where the MMP pays its contracted providers on a capitated basis rather than a fee-for-service basis;

(4) Shared savings; and

(5) Performance incentives.

d. Participating plans and DMAS shall collaborate to avoid duplication of care management services provided under the program.

e. Participating plans shall be required to use one statewide F/EA to manage the F/EA services for individuals using consumer direction.

12. Participating plans shall be permitted to use and reimburse telehealth for Medicare and Medicaid services as an innovative, cost effective means to decrease hospital admissions, reduce emergency department visits, address disparities in care, increase access, and increase timely interventions. Participating plans shall also encourage the use of telehealth to promote community living and improve access to behavioral health services. Participating plans shall be permitted to use telehealth in rural and urban settings and reimburse for store and forward applications. Participating plans shall also have the ability to cover remote patient monitoring. All telehealth and remote patient monitoring activities shall be compliant with HIPAA requirements and will be further outlined in the three-way contract.

13. Skilled nursing level care may be provided in a long-term care facility without a preceding acute care inpatient stay for enrollees enrolled in the program when the provision of this level of care can avert the need for an inpatient hospital stay.

C. The following services shall be carved out of the program and provided under the fee-for-service system:

1. Abortions, induced (this service shall be provided under limited circumstances, e.g., when the life of the mother is endangered, through fee-for-service);

2. Targeted case management services (these services will be provided under fee-for-service) and;

3. Dental services (in limited cases, these services will be provided under fee-for-service).

12VAC30-121-75. Flexible benefits.

A. Flexible benefits are those that MMPs may elect to offer to their enrollees.

B. Examples of such benefits are (i) annual physical examinations, (ii) meal benefits, (iii) preventive and comprehensive dental services for adults, (iv) eye examinations, (v) prescription eyeglasses, (vi) hearing examinations, and (vii) hearing aids.

12VAC30-121-80. (Reserved.)

12VAC30-121-90. Capitation payment rates.

A. Capitation rates and payment rules shall be established in the MOU and three-way contract and may be adjusted by state or federal regulatory changes.

B. If other state or federal statutory changes enacted after the annual baseline determination and rate development process are jointly determined by CMS and DMAS to have a material change in baseline estimates for any given payment year, baseline estimates and corresponding standardized payment rates shall be updated outside of the annual rate development process.

C. Any and all costs incurred by the participating plan in excess of the capitation payment shall be borne in full by the plan.

D. Additional costs shall not be balance billed to the plan's enrollees.

12VAC30-121-100. (Reserved.)

12VAC30-121-110. Cost sharing requirements.

A. Participating plans shall not charge a Medicare Part C or D premium nor assess any cost sharing for Medicare Parts A and B services.

B. For drugs and pharmacy products (including those covered by both Medicare Part D and Medicaid), participating plans shall be permitted to charge co-pays to enrollees currently eligible to make such payments consistent with co-pays applicable for Medicare and Medicaid drugs, respectively. Co-pays charged by participating plans for Part D drugs shall not exceed the applicable amounts for brand and generic drugs established yearly by CMS under the Part D Low Income Subsidy. Plans may elect to reduce this cost sharing for all enrollees as a way of testing whether reducing enrollee cost sharing for pharmacy products improves health outcomes and reduces overall health care expenditures through improved medication adherence under the waiver.

C. Patient pay requirements, which are applicable to long term-care services, shall be detailed in the contract between CMS, DMAS, and the participating plans.

D. Participating plans shall not assess any cost sharing for DMAS services, beyond the pharmacy cost sharing amounts allowed under Medicaid coverage rules.

E. No enrollee may be balance billed by any provider for any reason for covered services or flexible benefits (see 12VAC30-121-75).

12VAC30-121-120. (Reserved.)

12VAC30-121-130. Access standards.

A. Participating plans shall have the capacity to provide, directly or by subcontracting with other qualified entities, the full continuum of Medicare and Medicaid covered services to enrollees, in accordance with the MOU, CMS guidance, and the three-way contract.

B. Network adequacy. State Medicaid standards shall be utilized for long-term services and supports or for other services for which Medicaid is exclusively responsible for payment, and Medicare standards shall be utilized for pharmacy benefits and for other services for which Medicare is primary, unless applicable Medicaid standards for such services are more stringent. Home health and durable medical equipment requirements, as well as any other services for which Medicaid and Medicare may overlap, shall be subject to the more stringent of the applicable Medicare and Medicaid standards.

C. Participating plans shall ensure that they maintain a network of providers that is sufficient in number, mix of primary care and specialty providers, and geographic distribution to meet the complex and diverse needs of the anticipated number of enrollees in the service area as defined by CMS for Medicare and defined by DMAS for Medicaid.

D. For services for which Medicaid is the traditional primary payer (including, but not limited to, LTSS and community mental health and substance abuse services), each enrollee shall have a choice of at least two providers of each covered service type located within no more than 30 minutes travel time from any enrollee in urban areas unless the participating plan has a DMAS-approved alternative time standard. Travel time shall be determined based on driving during normal traffic conditions (i.e., not during commuting hours).

E. The participating plan shall ensure that each enrollee shall have a choice of at least two providers of each covered service type located within no more than 60 minutes travel time from any enrollee in rural areas unless the participating plan has a DMAS-approved alternative time standard.

F. DMAS shall require contractual agreements between nursing facilities and participating plans. Payment for services shall be made to nursing facilities directly by the participating plans. Participating plans will be required to contract with any nursing facility that is eligible to participate in Medicare and Medicaid and is willing to accept the participating plan payment rates and contract requirements for the time duration of the demonstration period.

G. For any covered services for which Medicare requires a more rigorous network adequacy standard than Medicaid (including time, distance, or minimum number of providers or facilities), the participating plan shall meet the Medicare requirements.

12VAC30-121-140. MMPs having low performance.

A. Provided that the MMP is determined by DMAS to meet all plan selection requirements in the three-way contract, an interested organization that (i) is an outlier in the CMS past performance analysis for the upcoming contract year, (ii) has a low performance indicator (LPI) on the Medicare Plan Finder website for the upcoming year, or (iii) both may qualify to offer CCC services.

B. Such MMPs shall not be eligible to receive passive enrollment until the MMP is either (i) no longer considered by CMS to be a past performance outlier or (ii) no longer has an LPI on the Medicare Plan Finder.

C. CMS or DMAS, or both, shall determine if an MMP is eligible to accept passive enrollment prior to the scheduled date of execution of the three-way contract.

D. An MMP that is ineligible to receive passive enrollment shall only be able to enroll (i) individuals who are currently enrolled in another Medicare or Medicaid managed care plan sponsored by the same organization and (ii) individuals who opt in to the organization's MMP.

12VAC30-121-145. Sanctions for noncompliance.

A. DMAS may impose intermediate sanctions, which may include any of the types described in subsection C of this section, or terminate the MMP if the MMP:

1. Fails substantially to provide medically necessary items and services that are required under law or under the MMP's contract with DMAS to be provided to an enrollee covered under the contract;

2. Imposes premiums or charges on enrollees in excess of the premiums or charges permitted under this chapter;

3. Acts to discriminate among enrollees on the basis of their health status or requirements for health care services, including expulsion or refusal to reenroll an individual, except as permitted by this chapter, or engaging in any practice that would reasonably be expected to have the effect of denying or discouraging enrollment with the organization by eligible individuals whose medical conditions or histories indicate a need for substantial future medical services;

4. Misrepresents or falsifies information that is furnished to either:

a. The secretary or DMAS under this chapter; or

b. To an enrollee, potential enrollee, or a health care provider under this chapter; or

5. Fails to comply with the applicable requirements of 42 USC § 1396b(m)(2)(A)(x).

B. DMAS may also impose such intermediate sanction against an MMP if DMAS determines that the MMP distributed directly or through any agent or independent contractor marketing materials in violation of 12VAC30-121-250.

C. The sanctions shall be as follows:

1. Civil money penalties:

a. Except as provided in subdivision 1 b, 1 c, or 1 d of this subsection, not more than $25,000 for each determination under subsection A of this section.

b. With respect to a determination under subdivision A 3 or A 4 a of this section, not more than $100,000 for each such determination.

c. With respect to a determination under subdivision A 2 of this section, double the excess amount charged in violation, and the excess amount charged shall be deducted from the penalty and returned to the individual concerned.

d. Subject to subsection 1 b of this subsection, with respect to a determination under subdivision A 3 of this section, $15,000 for each individual not enrolled as a result of a practice described in subdivision A 3.

2. The appointment of temporary management:

a. To oversee the operation of the MMP upon a finding by DMAS that there is continued egregious behavior by the organization or there is a substantial risk to the health of enrollees;

b. To assure the health of the organization's enrollees if there is a need for temporary management while there is an orderly termination or reorganization of the organization; or

c. To make improvements to remedy the violations found under subsection A of this section except that temporary management under this subdivision 2 may not be terminated until DMAS has determined that the MMP has the capability to ensure that the violations shall not recur.

3. Requiring the MMP (i) to permit individuals enrolled with the MMP to terminate enrollment without cause and (ii) to notify such individuals of such right to terminate enrollment.

4. Suspension or default of all enrollment of individuals under this chapter after the date the Secretary or DMAS notifies the MMP of a determination of a violation of any requirement of 42 USC § 1396b(m) or this section.

5. Suspension of payment to the entity under this chapter for individuals enrolled after the date the secretary or DMAS notifies the MMP of such a determination and until the secretary or DMAS is satisfied that the basis for such determination has been corrected and is not likely to recur.

12VAC30-121-150. Continuity of care.

A. As provided by the MOU and the three-way contract, participating plans shall be required to provide or arrange for all medically necessary services, whether by subcontract or by single-case agreement, in order to meet the health care and support needs of their enrollees.

B. Participating plans shall allow enrollees to maintain their current Medicaid providers (including out-of-network providers) for 180 days from enrollment. Participating plans shall also allow enrollees to maintain their preauthorized Medicaid services, including frequency and payment rate, for the duration of the prior authorization or for 180 days from enrollment, whichever is less. This shall not apply to enrollees residing in a nursing facility on the date of each region's program implementation.

C. Enrollees in nursing facilities at the time of program implementation may remain in the facility, or move to another nursing facility, as long as they continue to meet DMAS criteria for nursing facility care. In order to move to another nursing facility, the enrollee or his family, or both as may be appropriate, has to agree to the move.

D. During the 180-day period specified in subsection B of this section, change from an existing Medicaid provider can only occur in the following circumstances:

1. The enrollee requests a change;

2. The provider chooses to discontinue providing services to an enrollee as currently allowed by Medicare or Medicaid;

3. The participating plan, CMS, or DMAS identify provider performance issues that affect the enrollee's health and welfare; or

4. The provider is excluded from participation in Medicare and Medicaid under state or federal exclusion requirements pursuant to the U.S. Department of Health and Human Services Office of Inspector General List of Excluded Individuals or Entities (LEIE) website. Immediately report in writing to DMAS any exclusion information discovered to (i) DMAS, ATTN: Program Integrity/Exclusions, 600 East Broad Street, Suite 1300, Richmond, VA 23219 or (ii) providerexclusion@dmas.virginia.gov;

E. Out-of-network reimbursement rules.

1. In an urgent or emergency situation, participating plans shall reimburse an out-of-network provider of emergency or urgent care at the Medicare or Medicaid FFS rate applicable for that service, or as otherwise required under Medicare Advantage rules for Medicare services. For example, where this service would traditionally be covered under Medicare FFS, the participating plan will pay out-of-network providers the lesser of providers' charges or the Medicare FFS.

2. During the 180-day transition period as outlined in the MOU, the participating plan shall honor existing service authorization timeframes and continue to provide access to the same services and providers at the same levels and rates of Medicare or Medicaid FFS payment (not to exceed 180 days) as enrollees were receiving prior to entering the participating plan.

3. Beyond this six-month period, under certain defined circumstances, participating plans will be required to offer single-case out-of-network agreements to providers that are currently serving enrollees and are willing to continue serving them at the participating plan's in-network payment rate, but are not willing to accept new patients or enroll in the participating plan's network.

12VAC30-121-170. Model of care.

A. All participating plans (in partnership with contracted providers) shall implement an evidence-based model of care (MOC). Participating plans must meet all CMS MOC standards for Special Needs Plans as well as additional requirements established by the Commonwealth. The Virginia-specific MOC elements are in addition to CMS elements; likewise, the CMS and DMAS reviews and approvals are separate processes. Participating plans shall obtain approvals from both CMS and DMAS before a MOC is considered final and approved.

B. Participating plans shall be permitted to cure problems with their MOC submissions after their initial submissions. Participating plans with MOCs scoring below 85% will have the opportunity to improve their scores based on CMS and DMAS feedback on the elements and factors that require improvement. At the end of the review process, MOCs that do not meet CMS standards for approval will not be eligible for selection as participating plans. CMS standards for approval are issued to the states and made available on the DMAS website at http://www.dmas.virginia.gov/Content_atchs/altc/altc-fp1.pdf.

12VAC30-121-180. (Reserved.)

12VAC30-121-190. State fair hearing process.

A. Notwithstanding the provisions of 12VAC30-110-10 through 12VAC30-110-370, the following regulations govern state fair hearings for dual eligible individuals enrolled in the demonstration.

B. The Appeals Division maintains an appeals and fair hearings system for enrollees (also referred to as appellants) to challenge appeal decisions rendered by participating plans in response to enrollee appeals of actions related to Medicaid services. Exhaustion of the participating plan's appeals process is a prerequisite to filing for a state fair hearing with the department. Appellants who meet criteria for a state fair hearing shall be entitled to a hearing before a department hearing officer.

C. The participating plan shall conduct the initial appeal hearing, pursuant to 42 CFR Part 431 Subpart E, 42 CFR Part 438, and 12VAC30-110-10 through 12VAC30-110-370, and issue a written decision that includes its findings and information regarding the appellant's right to file an appeal with DMAS for a state fair hearing for Medicaid appeals.

D. Enrollees must be notified in writing of the participating plan's integrated appeals process:

1. At the time of the request for services;

2. With the evidence of coverage; and

3. Upon receipt of a notice of action from the participating plan.

E. Enrollees must be notified in writing of their right to an external appeal upon receipt of the participating plan's internal appeal decision.

F. An appellant shall have the right to representation by an attorney or other individual of his choice at all stages of an appeal.

1. For those appellants who wish to have a representative, a representative shall be designated in a written statement that is signed by the appellant whose Medicaid benefits were adversely affected. If the appellant is physically unable to sign a written statement, the division shall allow a family member or other person acting on the appellant's behalf to be the representative. If the appellant is mentally unable to sign a written statement, the division shall require written documentation that a family member or other person has been appointed or designated as his legal representative.

2. If the representative is an attorney or a paralegal working under the supervision of an attorney, a signed statement by such attorney or paralegal that he is authorized to represent the appellant prepared on the attorney's letterhead shall be accepted as a designation of representation.

3. A member of the same law firm as a designated representative shall have the same rights as the designated representative.

4. An appellant may revoke representation by another person at any time. The revocation is effective when the department receives written notice from the appellant.

G. Any written communication from an enrollee or his representative that clearly expresses that he wants to present his case to a reviewing authority shall constitute an appeal request.

1.This communication should explain the basis for the appeal of the participating plan's internal appeal decision.

2. The enrollee or his representative may examine witnesses or documents, or both, provide testimony, submit evidence, and advance relevant arguments during the hearing.

H. Appeals to the state fair hearing process shall be made to the Appeals Division in writing, with the exception of expedited appeals, and may be made via U.S. mail, fax transmission, hand delivery, or electronic transmission.

I. Expedited appeals referenced in subsection L of this section may be filed by telephone, or any of the methods set forth in subsection H of this section.

J. Participating plans shall continue benefits while the participating plan's appeal or the state fair hearing is pending when all of the following criteria are met:

1. The enrollee or representative files the appeal within 10 calendar days of the mail date of the participating plan's internal appeal decision;

2. The appeal involves the termination, suspension, or reduction of a previously authorized course of treatment;

3. The services were ordered by an authorized provider;

4. The original period covered by the initial authorization has not expired; and

5. The enrollee requests continuation of benefits.

K. After the final resolution and if the final resolution of the appeal is adverse to the enrollee (e.g., participating plan's internal appeal is upheld), the participating plan may recover the costs of services furnished to the enrollee while the appeal was pending, to the extent they were furnished solely because of the pending appeal.

L. The department shall maintain an expedited process for appeals when an appellant's treating provider certifies that taking the time for a standard resolution could seriously jeopardize the enrollee's life or health or ability to attain, maintain, or regain maximum function. Expedited appeal decisions shall be issued as expeditiously as the enrollee's health condition requires, but no later than three business days after the agency receives a fair hearing request on an appeal decision to uphold denial of a service that it determines meets the criteria for expedited resolution.

12VAC30-121-195. Appeal timeframes.

A. Appeals to the Medicaid state fair hearing process must be filed with the DMAS Appeals Division within 60 days of the date of the participating plan's internal appeal decision, unless the time period is extended by DMAS upon a finding of good cause in accordance with state fair hearing regulations.

B. It is presumed that appellants will receive the participating plan's internal appeal decision five days after the participating plan mails it.

C. A request for appeal on the grounds that the participating plan has not acted with reasonable promptness in response to an internal appeal request may be filed at any time until the participating plan has acted.

D. The date of filing shall be the date the request is postmarked, if mailed, or the date the request is received by the department, if delivered other than by mail.

E. Documents postmarked on or before a time limit's expiration shall be accepted as timely.

F. In computing any time period under these regulations, the day of the act or event from which the designated period of time begins to run shall be excluded and the last day included. If a time limit would expire on a Saturday, Sunday, or state or federal holiday, it shall be extended until the next regular business day.

G. An extension of the 60-day period for filing a request for appeal may be granted for good cause shown. Examples of good cause include, but are not limited to, the following situations:

1. Appellant was seriously ill and was prevented by illness from contacting DMAS;

2. The participating plan's decision was not sent to the appellant. The plan may rebut this claim by evidence that the decision was mailed to the appellant's last known address or that the decision was received by the appellant.

3. Appellant sent the request for appeal to another government agency or another division within DMAS that is not the Appeals Division in good faith within the time limit; or

4. Unusual or unavoidable circumstances prevented a timely filing.

H. During the first year of the program, appeals shall be heard and decisions issued within 90 days of the postmark date (if delivered by U.S. mail) or receipt date (if delivered by any method other than U.S. mail).

I. The timeframes for issuing decisions will change to 75 days (during the second year of the program), and 30 days (during the third year of the program and thereafter).

J. Exceptions to standard appeal resolution timeframes. Decisions may be issued beyond the standard appeal resolution timeframes when the appellant or his representative requests or causes a delay. Decisions may also be issued beyond the standard appeal resolution timeframe when any of the following circumstances exist:

1. The appellant or representative requests to reschedule or continue the hearing;

2. The appellant or representative provides good cause for failing to keep a scheduled hearing appointment, and the Appeals Division reschedules the hearing;

3. Inclement weather, unanticipated system outage, or the department's closure that prevents the hearing officer's ability to work;

4. Following a hearing, the hearing officer orders an independent medical assessment as described in 12VAC30-121-210;

5. The hearing officer leaves the hearing record open after the hearing in order to receive additional evidence or argument from the appellant;

6. The hearing officer receives additional evidence from a person other than the appellant or his representative and the appellant requests to comment on such evidence in writing or to have the hearing reconvened to respond to such evidence or;

7. The Appeals Division determines that there is a need for additional information and documents how the delay is in the appellant's best interest.

K. For delays requested or caused by an appellant or his representative the delay date for the decision will be calculated as follows:

1. If an appellant or representative requests or causes a delay within 30 days of the request for a hearing, the 90-day time limit will be extended by the number of days from the date when the first hearing was scheduled until the date to which the hearing is rescheduled.

2. If an appellant or representative requests or causes a delay within 31 to 60 days of the request for a hearing, the 90-day time limit will be extended by 1.5 times the number of days from the date when the first hearing was scheduled until the date to which the hearing is rescheduled.

3. If an appellant or representative requests or causes a delay within 61 to 90 days of the request for a hearing, the 90-day time limit will be extended by two times the number of days from the date when the first hearing was scheduled until the date to which the hearing is rescheduled.

L. Post hearing delays requested or caused by an appellant or representative (e.g., requests for the record to be left open) will result in a day-for-day delay for the decision date. The department shall provide the appellant and representative with written notice of the reason for the decision delay and the delayed decision date, if applicable.

12VAC30-121-200. Prehearing decisions.

A. If the Appeals Division determines that any of the conditions as described in this subsection exist, a hearing will not be held and the appeal process shall be terminated.

1. The appeal request was not filed within the time limit imposed by 12VAC30-121-195 or extended pursuant to 12VAC30-121-195 J, and

a. The appellant did not reply to the hearing officer's request for an explanation that met good cause criteria, or

b. The appellant did reply and the hearing officer had sufficient facts to determine that the reply did not meet good cause criteria pursuant to 12VAC30-121-195.

2. The individual who filed the appeal is not the appellant and has not submitted any authorization to represent the appellant under the provisions of 12VAC30-121-190 G.

3. The participating plan's internal appeals process was not exhausted prior to the enrollee's request for a state fair hearing.

4. The services denied or terminated were Medicare covered services. In that instance, the appeal request shall be handled by the Medicare external review entity.

5. The action being appealed was not taken by DMAS, its agent, or contractor, or the issue of the appeal is not related to the MMP's internal appeal decision.

6. Subsequent to the appeal request, the appellant's request for services was approved for the full amount, duration, and scope of the services requested.

7. The appellant or his representative failed to appear at the scheduled hearing, and

a. Did not reply to the hearing officer's request for an explanation that met good cause criteria, or

b. Did reply and the hearing officer had sufficient facts to determine that the reply did not meet good cause criteria pursuant to 12VAC30-121-195.

8. After a written notice of the telephonic hearing has been agreed to by the appellant and sent to the appellant and the appellant or his representative failed to respond to the hearing officer's request for a telephone number at which he could be reached for the telephonic hearing.

9. The appellant or his representative withdrew the appeal request.

10. The sole issue is a federal or state law requiring an automatic change adversely affecting some or all beneficiaries.

11. The hearing officer determined from the record, without conducting a hearing, that the participating plan's decision was clearly in error and that the case should be resolved in the appellant's favor. The hearing officer may issue a decision pursuant to 12VAC30-121-210 I.

B. If the hearing officer determined from the record, without conducting a hearing, that the case might be resolved in the appellant's favor if the participating plan obtains and develops additional information, documentation, or verification, the hearing officer may remand the case to the participating plan for action consistent with the hearing officer's written instructions pursuant to 12VAC30-121-210 I.

C. A letter shall be sent to the appellant or his representative that explains the determination made on his appeal.

D. The appellant shall have no opportunity to seek judicial review except in cases where the hearing officer receives and analyses a submission or response from the appellant or representative, or the hearing officer analyzes the merits of the agency's action.

12VAC30-121-210. Hearing process and final decision.

A. All hearings must be scheduled at a reasonable time, date, and place, and the appellant and his representative shall be notified in writing at least 15 days before the hearing.

1. The hearing location will be determined by the Appeals Division.

2. A hearing shall be rescheduled at the appellant's request no more than twice unless compelling reasons exist.

3. Rescheduling the hearing at the appellant's request will result in automatic waiver of the 90-day (or 75-day or 30-day) deadline for resolution of the appeal. The delay date for the decision will be calculated as set forth in 12VAC30-121-195 K.

B. The hearing shall be conducted by one or more hearing officers or other impartial individuals who have not been directly involved in the initial determination of the action in question or in the participating plan's appeal decision process. The hearing officer shall review the complete record for all participating plan decisions that are properly appealed, conduct informal, fact-gathering hearings, evaluate evidence presented, research the issues, and render a written final decision.

C. Subject to the requirements of all applicable federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information, the appeal record shall be made accessible to the appellant and representative at a convenient place and time before the date of the hearing, as well as during the hearing. The appellant and his representative may examine the content of the appellant's case file and all documents and records the department will rely on at the hearing except those records excluded by law.

D. Appellants who require the attendance of witnesses or the production of records, memoranda, papers, and other documents at the hearing may request in writing the issuance of a subpoena. The request must be received by the department at least 10 working days before the scheduled hearing. Such request shall (i) include the witness's or respondent's name, home and work addresses, county or city of work and residence, and (ii) identify the sheriff's office that will serve the subpoena.

E. The hearing officer shall conduct the hearing; decide on questions of evidence, procedure, and law; question witnesses; and assure that the hearing remains relevant to the issue or issues being appealed. The hearing officer shall control the conduct of the hearing and decide who may participate in or observe the hearing.

F. Hearings shall be conducted in an informal, nonadversarial manner. The appellant or his representative shall have the right to bring witnesses, establish all pertinent facts and circumstances; present an argument without undue interference, and question or refute the testimony or evidence, including the opportunity to confront and cross-examine agency representatives.

G. The rules of evidence shall not strictly apply. All relevant, nonrepetitive evidence may be admitted, but the probative weight of the evidence will be evaluated by the hearing officer.

H. The hearing officer may leave the hearing record open for a specified period of time after the hearing in order to receive additional evidence or argument from the appellant or his representative.

1. The hearing officer may order an independent medical assessment when the appeal involves medical issues, such as a diagnosis, an examining physician's report, or a medical review team's decision, and the hearing officer determines that it is necessary to have an assessment by someone other than the person or team who made the original decision (e.g., to obtain more detailed medical findings about the impairments, to obtain technical or specialized medical information, or to resolve conflicts or differences in medical findings or assessments in the existing evidence). A medical assessment ordered pursuant to this regulation shall be at the department's expense and shall become part of the record.

2. The hearing officer may receive evidence that was not presented by either party if the record indicates that such evidence exists, and the appellant or his representative requests to submit it or requests that the hearing officer secure it.

3. If the hearing officer receives additional evidence from an entity other than the appellant or his representative, the hearing officer shall send a copy of such evidence to the appellant and his representative, and give the appellant or his representative the opportunity to comment on such evidence in writing or to have the hearing reconvened to respond to such evidence.

4. Any additional evidence received will become a part of the hearing record, but the hearing officer must determine whether or not it will be used in making the decision.

I. After conducting the hearing, reviewing the record, and deciding questions of law, the hearing officer shall issue a written final decision that either sustains or reverses the participating plan's action or remands the case to the participating plan for further evaluation consistent with his written instructions. Some decisions may be a combination of these dispositions. The hearing officer's final decision shall be considered as the department's final administrative action pursuant to 42 CFR 431.244(f). The final decision shall include:

1. Identification of the issue or issues;

2. Relevant facts, to include a description of the procedural development of the case;

3. Conclusions of law, regulations, and policy that relate to the issue or issues;

4. Discussions, analysis of the accuracy of the participating plan's decision, conclusions, and hearing officer's decision;

5. Further action, if any, to be taken by the participating plan to implement the decision;

6. The deadline date by which further action must be taken; and

7. A cover letter informing the appellant and his representative of the hearing officer's decision. The letter must indicate that the hearing officer's decision is final, and that the final decision may be appealed directly to circuit court.

J. A copy of the hearing record shall be forwarded to the appellant and his representative with the final decision.

K. An appellant who disagrees with the hearing officer's final decision described in this section may seek judicial review pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and Rules of the Supreme Court of Virginia, Part Two A. Written instructions for requesting judicial review must be provided to the appellant or his representative with the hearing officer's decision, and upon request by the appellant or representative.

12VAC30-121-220. Division appeal records.

A. No person shall take from the division's custody any original record, paper, document, or exhibit that has been certified to the division except as the Appeals Division director or his designee authorizes, or as may be necessary to furnish or transmit copies for other official purposes.

B. Information in the appellant's record can be released only to the appellant, his authorized representative, the participating plan, other entities for official purposes, and other persons named in a release of information authorization signed by an appellant or his representative.

C. The fees to be charged and collected for any copy of division records will be in accordance with Virginia's Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) or other controlling law.

D. When copies are requested from records in the division's custody, the required fee shall be waived if the copies are requested in connection with an enrollee's own appeal.

12VAC30-121-230. Provider appeals.

A. The Appeals Division maintains an appeal process for enrolled providers of Medicaid services who have rendered services and are requesting to challenge a participating plan's internal appeal of an adverse decision regarding payment. The participating plan's internal appeal process is a prerequisite to filing for an external appeal to the department's appeal process. The appeal process is available to (i) enrolled Medicaid service providers that have rendered services and have been denied payment in whole or part for Medicaid covered services and (ii) enrolled Medicaid service providers who have received a Notice of Program Reimbursement or overpayment demand from the department or its contractors.

B. Department provider appeals shall be conducted in accordance with the department's provider appeal regulations (12VAC30-20-500 et seq.), § 32.1-325 et seq. of the Code of Virginia, and the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. The department's external appeal decision shall be binding upon the participating plan or plans and not subject to further appeal by the participating plan or plans.

D. If the provider is successful in its appeal, then the MMP shall reimburse it for the appealed issue.

12VAC30-121-240. (Reserved.)

12VAC30-121-250. Marketing and enrollee communication standards for participating plans.

A. Participating plans shall be subject to rules governing their marketing and enrollee communications as specified under §§ 1851(h) and 1932(d)(2) of the Social Security Act; 42 CFR 422.111, 42 CFR 422.2260 et. seq., 42 CFR 423.120(b) and (c), 42 CFR 423.128, and 42 CFR 423.2260 et. seq.; and the Medicare Marketing Guidelines (Chapter 2 of the Medicare Managed Care Manual and Chapter 3 of the Prescription Drug Benefit Manual).

1. Participating plans shall not be allowed to market directly to potential enrollees. Instead, plans may participate in group marketing events, provide general audience materials (such as general circulation brochures, and media and billboard advertisements), and provide responses to individual-initiated requests for enrollment.

2. Participating plans shall receive prior approval of all marketing and enrollee communications materials except those that are exempt pursuant to 42 CFR 422.2262(b) and 423.2262(b).

3. Plans shall not begin marketing activity earlier than 90 days prior to the effective date of enrollment for the contract year.

B. At a minimum, participating plans will provide current and prospective enrollees the following materials, subject to the rules regarding content and timing of enrollee receipt as applicable under § 1851(h) of the Social Security Act: 42 CFR 422.111, 42 CFR 422.2260 et. seq., 42 CFR 423.120(b) and (c), 42 CFR 423.128, 42 CFR 423.2260 et. seq., 42 CFR 438.10, 42 CFR 438.104, the three way contract, and the Medicare Marketing Guidelines.

C. Notification of formulary changes. The requirement at 42 CFR 423.120(b)(5) that participating plans provide at least 60 days advance notice regarding Medicare Part D formulary changes also applies to participating plans for outpatient prescription or over-the-counter drugs or products covered under Medicaid or as additional benefits.

FORMS (12VAC30-121)

Agency or Consumer Direction Provider Plan of Care, DMAS-97A/B (rev. 3/10)

DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-121)

Memorandum of Understanding (MOU) Between the Centers for Medicare & Medicaid Services (CMS) and the Commonwealth of Virginia Regarding a Federal-State Partnership to Test a Capitated Financial Alignment Model for Medicare-Medicaid Enrollees (Commonwealth Coordinated Care), signed May 21, 2013

Medical Marketing Guidelines, Centers for Medicare & Medicaid Services, revised June 17, 2014

Titles of Regulations: 12VAC30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (adding 12VAC30-50-415).

12VAC30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-110).

12VAC30-120. Waivered Services (amending 12VAC30-120-380).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 28, 2015.

Effective Date: February 13, 2015.

Agency Contact: Molly Carpenter, Policy Analyst, Department of Medical Assistance Services, Division of Maternal and Child Health, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 786-1493, FAX (804) 786-1680, or email molly.carpenter@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the Plan for Medical Assistance. 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 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.

Part C of the Individuals with Disabilities Education Act (20 USC § 1431 et seq.) was designed to assist each state to maintain and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency system to provide early intervention services for infants and toddlers with disabilities and their families. Pursuant to Chapter 53 (§ 2.2-5300 et.seq.) of Title 2.2 of the Code of Virginia, the Department of Behavioral Health and Developmental Services (DBHDS) was appointed state lead agency for Part C services in the Commonwealth (§ 2.2-5304 of the Code of Virginia and 12VAC35-220-10). The Code of Virginia also designates DMAS as a participating agency with a duty to identify and maximize coordination of public and private resources for early intervention services.

Under the authority of Item 297 UUUU of Chapter 890 of the 2011 Acts of the Assembly, DMAS promulgated an emergency regulation for this issue:

Purpose: This regulatory action creates a new model for Medicaid coverage of case management services for children younger than three years of age who receive services under Chapter 53 (§ 2.2-5300 et seq.) of Title 2.2 of the Code of Virginia in accordance with Part C of the Individuals with Disabilities Education Act (20 USC § 1431 et seq.). These children 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.

The planned regulatory action is one component of this administration's initiative to revise the system of financing for Part C early intervention services in Virginia to make more efficient use of federal and state funds. Obtaining Medicaid reimbursement for required case management services ensures that the Commonwealth will draw down the maximum available federal Medicaid match for those Part C services currently paid with state-only funds. DBHDS is proposing new regulations for certification of early intervention case managers in tandem with this regulatory action. DMAS consulted with DBHDS and other stakeholders in developing these regulations.

The regulation continues to protect the health and welfare of this population.

Rationale for Using Fast-Track Process: This regulatory action represents a shifting of funding from 100% general fund (GF) to 50% GF and 50% nongeneral fund (NGF). This service was already being provided by the Commonwealth's early intervention system. By having DMAS assume payment responsibility for children who are eligible for Title XIX (Medicaid), it frees up half of the GF dollars for use for children who are not eligible for these two programs, thereby doubling the numbers of children who can be served with state funds. DMAS met with the affected provider community during the development of the current emergency regulations, and they were very supportive of this concept and have received it positively since implementation via the emergency regulations. Consequently, DMAS is not expecting any objections to the fast-track process.

Substance: Currently, there is no defined Medicaid case management service that meets the needs of infants and toddlers with developmental disabilities who are being served by the Part C early intervention program. Community services boards (CSBs) are billing Medicaid for targeted case management services for some of these children under provisions designed for individuals receiving services for mental health or intellectual disabilities (12VAC30-50-420, 12VAC30-50-430, 12VAC30-50-440, and 12VAC30-50-450). Although many children receiving early intervention services may technically fall within the definition of these other target groups, these case management models were not designed to be used for early intervention participants. These models include requirements that are not applicable to the early intervention population, and service providers are limited to CSBs.

Prior to promulgation of emergency regulations, CSBs billed Medicaid for targeted case management under the mental health or intellectual disabilities services models for approximately 35% of the children who are covered by Medicaid and enrolled in the Part C early intervention program, reimbursed at an average rate of $326.50 per month.

These regulations define a new approach to payment for case management services under Medicaid that supports the Part C early intervention model. The new early intervention case management service will meet federal Part C requirements for care coordination as well as federal Medicaid requirements for case management reimbursement. Case managers will be certified by DBHDS to ensure that they have the expertise to effectively address the needs of children with developmental delays and their families under the federal Part C program. In addition to coordinating specialized services needed to ameliorate the child's developmental delay, this new case management model will facilitate coordination with the child's primary care provider and support quality preventive services such as well child care, immunizations, and lead testing, which are covered under the early and periodic screening, diagnosis and treatment (EPSDT) program for all children enrolled in Medicaid.

Some infants who receive services through the Part C early intervention program may also receive targeted case management services for high-risk pregnant women and children (12VAC30-50-410). These services are designed to improve birth outcomes and reduce infant mortality by increasing access to care and promoting continuity of care for women with a high-risk pregnancy through the prenatal period and infancy. Providers of this targeted case management service are limited to registered nurses and trained social workers with experience working with pregnant women. Early intervention case management providers will be required to coordinate services with these case managers to avoid duplication of services.

The early intervention targeted case management service will reimburse for coordination services that are federally required by the Part C early intervention program to assist children and their families. All local lead agencies under contract with DBHDS or their designees will be eligible to receive Medicaid reimbursement for targeted case management services. All private and governmental fee-for-service providers will be paid according to the same methodology. Early intervention targeted case management providers will be reimbursed by DMAS outside of the Medallion II managed care contracts. This is consistent with Medicaid reimbursement for services provided by early intervention practitioners under EPSDT as well as for most targeted care management.

DMAS anticipates implementing this regulatory action without increased cost to the Commonwealth or localities. The General Assembly established a rate of $132 per month for this service effective July 1, 2012. The projected savings associated with the elimination of payment for case management under the mental health and intellectual disabilities models for children served by the Part C early intervention program will offset the new costs incurred under the new model for the entire Part C population covered by Medicaid. The agency fee scale will define rates that are budget neutral with the amount of money that is currently being spent on early intervention participants who previously utilized Medicaid case management services designed for other target groups.

Issues: The fast-track regulatory action is needed to support early intervention services as provided under Chapter 53 (§ 2.2-5300 et seq.) of Title 2.2 of the Code of Virginia and in accordance with Part C of the Individuals with Disabilities Education Act (20 USC § 1431 et seq.), which are designed to address developmental problems in young children. These services are provided to children from birth to three years of age 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. Research suggests that these problems are most effectively addressed by a multidisciplinary approach working in partnership with the child's family.

Case management is an integral component of the Part C early intervention program. Case management services are designed to assist individuals in gaining access to needed medical, social, educational, and other services. Case management includes comprehensive assessment and periodic reassessment to determine the need for medical, educational, social, or other services; development and periodic revision of an individualized family service plan (IFSP) to address identified needs; referral and assistance to help the family obtain the needed services; and monitoring and follow-up to ensure that the IFSP is implemented and addresses the identified needs.

DBHDS receives Virginia's federal Part C allotment and administers the statewide early intervention program through contracts with local lead agencies. 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.

Qualified providers are needed for case management services to effectively address the special health needs of the Part C population. An advantage for the public and the Commonwealth is that this new early intervention case management service is designed to ensure that providers have the specific expertise to effectively address developmental problems in young children and their families as provided for in Part C.

There are no disadvantages to the public or the Commonwealth associated with the suggested regulatory action.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 890, Item 297 UUUU of the 2011 Acts of the Assembly, the proposed regulations create a new model for Medicaid coverage of case management services for certain children.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes. There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.

Estimated Economic Impact. Pursuant to Chapter 890, Item 297 UUUU of the 2011 Acts of the Assembly, the proposed regulations create a new model for Medicaid coverage of case management services for children younger than three years of age who receive services in accordance with Part C of the federal Individuals with Disabilities Education Act. These children 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. The proposed changes have already been implemented under emergency regulations that became effective in October 2011.

Prior to the emergency regulations, there was no defined Medicaid case management service that met the needs of infants and toddlers with developmental disabilities who are being served by the Part C early intervention program. Community services boards (CSBs) were billing Medicaid for targeted case management services for some of these children under provisions designed for individuals receiving services for mental health or intellectual disabilities. Although many children receiving early intervention services may technically fall within the definition of these other target groups, these case management models were not designed to be used for early intervention participants. These models included requirements that are not applicable to the early intervention population, and service providers are limited to CSBs.

The proposed regulations define a new approach to payment for case management services under Medicaid that supports the Part C early intervention model. The new Early Intervention Case Management service meets federal Part C requirements for care coordination as well as federal Medicaid requirements for case management reimbursement. Case managers are certified by the Department of Behavioral Health and Developmental Services (DBHDS) to ensure that they have the expertise to effectively address the needs of children with developmental delays and their families under the federal Part C program.

In addition to coordinating specialized services needed to ameliorate the child's developmental delay, this new case management model facilitates coordination with the child's primary care provider and supports quality preventive services such as well child care, immunizations, and lead testing, which are covered under the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program for all children enrolled in Medicaid. Some infants who receive services through the Part C early intervention program may also receive targeted case management services for high risk pregnant women and children. These services are designed to improve birth outcomes and reduce infant mortality by increasing access to care and promoting continuity of care for women with a high risk pregnancy through the prenatal period and infancy.

The proposed regulations revise the system of financing for Part C early intervention services in Virginia to make more efficient use of federal and state funds. Obtaining Medicaid reimbursement for required case management services ensures that the Commonwealth draws down available federal Medicaid match for those Part C services currently paid with state-only funds. With the new system, DBHDS no longer pays for services from state-only funds for the children who are now served through Medicaid. However, the magnitude of savings in state-only funds is not available at this time.

In addition, the reimbursement rate for services provided under the new model decreased. The average reimbursement rate under the old model was $326.50 per child per month. Under the new model, the reimbursement rate is currently $132 per child per month. Thus, the proposed changes make it possible to serve a larger population with the same amount of funds. For example, one year before the emergency regulations were implemented, $4.9 million (state and federal funds combined) were spent to serve 2,724 children through Medicaid. The following year the total expenditures through Medicaid went down to $4.3 million, and 6,952 children were served. In short, the proposed new financing model not only eliminated the state-only funds expended by DBHDS, but also reduced Medicaid expenditures while serving more children.

Businesses and Entities Affected. According to DMAS, there were 6,952 children served by this program within one year of the implementation of the emergency regulations. There are approximately 70 businesses providing early intervention services, of which 53 are enrolled with Medicaid.

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

Projected Impact on Employment. The proposed new financing of early intervention services eliminates state-only expenditures for early intervention services now paid through Medicaid. These funds now may be spent on other goods and services having a positive impact on employment in other sectors. On the other hand, reduction in reimbursement rates may discourage some of the early intervention providers from providing their services and have a negative impact on employment.

Effects on the Use and Value of Private Property. Under the proposed regulations, some businesses in other sectors may see an increase in their revenues that would have a positive impact on their asset values. On the other hand, early intervention providers would see a decline in their revenues due to reduction in the reimbursement rate that would negatively affect their profitability and asset values.

Small Businesses: Costs and Other Effects. Most if not all of the 70 businesses providing early intervention services in the Commonwealth are small businesses. Thus, the economic effects on providers discussed above apply to them.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no known alternative that minimizes the adverse impact on small businesses while accomplishing the same goals.

Real Estate Development Costs. No impact on real estate development costs is expected.

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 regulations create a new model for Medicaid coverage of early intervention case management services for children younger than three years of age who receive services under Chapter 53 (§ 2.2-5300 et seq.) of Title 2.2 of the Code of Virginia in accordance with Part C of the Individuals with Disabilities Education Act (20 USC § 1431 et seq.). The new early intervention targeted case management service meets federal requirements under Part C for care coordination as well as federal Medicaid requirements for targeted case management reimbursement. The regulations provide that case managers will be certified by the Department of Behavioral Health and Developmental Services to ensure that case managers have the expertise to effectively address the needs of children with developmental delays and their families under Part C. In addition to coordinating specialized services needed to ameliorate the child's developmental delay, this model will facilitate coordination with the child's primary care provider and support quality preventive services such as well child care, immunizations, and lead testing, which are covered under the early and periodic screening, diagnosis and treatment program for all children enrolled in Medicaid.

12VAC30-50-415. Case management for individuals receiving early intervention (Part C) services.

A. Target group for early intervention case management. Medicaid eligible children from birth up to three years of age 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 who participate in the early intervention services system described in Chapter 53 (§ 2.2-5300 et seq.) of Title 2.2 of the Code of Virginia are the target group.

B. Services are provided throughout the Commonwealth.

C. Services are not comparable in amount, duration, and scope. The authority of § 1915(g)(1) of the Social Security Act (the Act) is invoked to provide services without regard to the requirements of § 1902(a)(10)(B) of the Act.

D. Definition of services. Early intervention case management services are services furnished to assist individuals eligible under the State Plan who reside in a community setting in gaining access to medical, social, educational, and other services. Early intervention case management includes the following assistance:

1. Comprehensive assessment and at least annual reassessment of individual needs to determine the need for any medical, educational, social, or other services, including EPSDT services.

2. Development and at least annual revision of an individualized family service plan (IFSP) as defined in coverage of early intervention services under Part C of Individuals with Disabilities Education Act (IDEA) (12VAC30-50-131) based on the information collected through the assessment. A face-to-face contact with the child's family is required for the initial development and revision of the IFSP. The case manager shall be responsible for determining if the family's particular situation warrants additional face-to-face visits.

3. Referral and related activities to help the eligible individual obtain needed services, including activities that help link the individual with medical, social, and educational providers or other programs and services that are capable of providing needed services to address identified needs and achieve goals specified in the IFSP.

4. Monitoring and follow-up activities, including activities and contacts that are necessary to ensure that the IFSP is effectively implemented and adequately addresses the needs of the eligible individual. At a minimum one telephone, email, or face-to-face contact shall be made with the child's family every three calendar months, or attempts of such contacts. This contact or attempted contact shall be documented. The case manager shall be responsible for determining if the family's particular situation warrants additional family contacts.

5. Early intervention case management includes contacts with family members, service providers, and other noneligible individuals and entities who have direct knowledge of the eligible individual's needs and care.

E. Qualifications of providers. Individual providers of early intervention case management must be certified as early intervention case managers by the Department of Behavioral Health and Developmental Services.

F. Freedom of choice. The Commonwealth assures that the provision of case management services will not restrict an eligible individual's freedom of choice of providers.

1. Eligible recipients shall have free choice of the providers of early intervention case management services within the specified geographic area identified in this plan.

2. Eligible recipients shall have free choice of the providers of other medical care under the plan.

3. Providers of early intervention case management shall be limited to entities designated by the local lead agencies under contract with the Department of Behavioral Health and Developmental Services pursuant to § 2.2-5304.1 of the Code of Virginia.

G. Access to services. The Commonwealth assures the following:

1. Case management services shall be provided in a manner consistent with the best interest of recipients and shall not be used to restrict an individual's access to other Medicaid services.

2. Individuals shall not be compelled to receive case management services. The receipt of other Medicaid services shall not be a condition for the receipt of case management services, and the receipt of case management services shall not be a condition for receipt of other Medicaid services.

3. Providers of case management services do not exercise DMAS authority to authorize or deny the provision of other Medicaid services.

H. Payment for early intervention case management services shall not duplicate payments made to public agencies or private entities under other program authorities for this same purpose.

I. Case records. Case management services shall be documented and maintained in individual case records in accordance with 42 CFR 441.18(a)(7). Case records shall include:

1. The name of the individual;

2. The dates of the case management services;

3. The name of the provider agency and the person providing the case management services;

4. The nature, content, and units of the case management services received and whether the goals specified in the care plan have been achieved;

5. Whether the individual has declined services in the care plan;

6. The need for, and occurrences of, coordination with other case managers;

7. A timeline for obtaining needed services; and

8. A timeline for reevaluation of the plan.

J. Limitations.

1. Early intervention case management shall not include the following:

a. Activities not consistent with the definition of case management services in 42 CFR 440.169.

b. The direct delivery of an underlying medical, educational, social, or other service to which an eligible individual has been referred.

c. Activities integral to the administration of foster care programs.

d. Activities for which third parties are liable to pay, except for case management that is included in an IFSP consistent with § 1903(c) of the Social Security Act.

2. Providers shall not be reimbursed for case management services provided for these groups when these children also fall within the target group for early intervention case management as set out in this subdivision:

a. Seriously mentally ill adults and emotionally disturbed children (12VAC30-50-420);

b. Youth at risk of serious emotional disturbance (12VAC30-50-430);

c. Individuals with intellectual disability (12VAC30-50-440); or

d. Individuals with intellectual disability and related conditions who are participants in the home and community-based care waivers for persons with intellectual disability and related conditions (12VAC30-50-450).

3. Case management shall be reimbursed only when all of the following conditions are met:

a. A least one documented case management service is furnished during the month; and

b. The provider is certified by the Department of Behavioral Health and Developmental Services and enrolled with DMAS as an early intervention case management provider.

12VAC30-80-110. Fee-for-service: case management.

A. Targeted case management for high-risk pregnant women and infants up to age two years of age, for community mental health and mental retardation intellectual disability services, and for individuals who have applied for or are participating in the Individual and Family Developmental Disability Support Waiver program (IFDDS Waiver) shall be reimbursed at the lowest of: state agency fee schedule, actual charge, or Medicare (Title XVIII) allowances.

B. Targeted case management for early intervention (Part C) children.

1. Targeted case management for children from birth to three years of age who have developmental delay and who are in need of early intervention is reimbursed at the lower of the state agency fee schedule or actual charge (charge to the general public). The unit of service is monthly. All private and governmental fee-for-service providers are reimbursed according to the same methodology. The agency's rates are effective for services on or after October 11, 2011. Rates are published on the agency's website at www.dmas.virginia.gov.

2. Case management shall not be billed when it is an integral part of another Medicaid service including, but not limited to, intensive community treatment services and intensive in-home services for children and adolescents.

3. Case management defined for another target group shall not be billed concurrently with this case management service except for case management services for high risk infants provided under 12VAC30-50-410. Providers of early intervention case management shall coordinate services with providers of case management services for high risk infants, pursuant to 12VAC30-50-410, to ensure that services are not duplicated.

4. Each entity receiving payment for services as defined in 12VAC30-50-415 shall be required to furnish the following to DMAS, upon request:

a. Data, by practitioner, on the utilization by Medicaid beneficiaries of the services included in the unit rate; and

b. Cost information by practitioner.

5. Future rate updates will be based on information obtained from the providers. DMAS monitors the provision of targeted case management through post-payment review (PPR). PPRs ensure that paid services were rendered appropriately, in accordance with state and federal policies and program requirements, provided in a timely manner, and paid correctly.

12VAC30-120-380. Medallion II MCO responsibilities.

A. The MCO shall provide, at a minimum, all medically necessary covered services provided under the State Plan for Medical Assistance and further defined by written DMAS regulations, policies and instructions, except as otherwise modified or excluded in this part.

1. Nonemergency services provided by hospital emergency departments shall be covered by MCOs in accordance with rates negotiated between the MCOs and the emergency departments.

2. Services that shall be provided outside the MCO network shall include, but are not limited to, those services identified and defined by the contract between DMAS and the MCO. Services reimbursed by DMAS include, but shall not be limited to, dental and orthodontic services for children up to age 21; for all others, dental services (as described in 12VAC30-50-190), school health services (as defined in 12VAC30-120-360), community mental health services (rehabilitative, targeted case management and the following substance abuse treatment services: emergency services (crisis); intensive outpatient services; day treatment services; substance abuse case management services; and opioid treatment services), as defined in 12VAC30-50-228 and 12VAC30-50-491, EPSDT Early Intervention services provided pursuant to Part C of the Individuals with Disabilities Education Act (IDEA) of 2004 (as defined in 12VAC30-50-131) 12VAC30-50-131 and 12VAC30-50-415), and long-term care services provided under the § 1915(c) home-based and community-based waivers including related transportation to such authorized waiver services.

3. The MCOs shall pay for emergency services and family planning services and supplies whether they are provided inside or outside the MCO network.

B. EPSDT services shall be covered by the MCO and defined by the contract between DMAS and the MCO. The MCO shall have the authority to determine the provider of service for EPSDT screenings.

C. The MCOs shall report data to DMAS under the contract requirements, which may include data reports, report cards for clients, and ad hoc quality studies performed by the MCO or third parties.

D. Documentation requirements.

1. The MCO shall maintain records as required by federal and state law and regulation and by DMAS policy. The MCO shall furnish such required information to DMAS, the Attorney General of Virginia or his authorized representatives, or the State Medicaid Fraud Control Unit on request and in the form requested.

2. Each MCO shall have written policies regarding enrollee rights and shall comply with any applicable federal and state laws that pertain to enrollee rights and shall ensure that its staff and affiliated providers take those rights into account when furnishing services to enrollees in accordance with 42 CFR 438.100.

E. The MCO shall ensure that the health care provided to its clients meets all applicable federal and state mandates, community standards for quality, and standards developed pursuant to the DMAS managed care quality program.

F. The MCOs shall promptly provide or arrange for the provision of all required services as specified in the contract between the state and the contractor. Medical evaluations shall be available within 48 hours for urgent care and within 30 calendar days for routine care. On-call clinicians shall be available 24 hours per day, seven days per week.

G. The MCOs must meet standards specified by DMAS for sufficiency of provider networks as specified in the contract between the state and the contractor.

H. Each MCO and its subcontractors shall have in place, and follow, written policies and procedures for processing requests for initial and continuing authorizations of service. Each MCO and its subcontractors shall ensure that any decision to deny a service authorization request or to authorize a service in an amount, duration, or scope that is less than requested, be made by a health care professional who has appropriate clinical expertise in treating the enrollee's condition or disease. Each MCO and its subcontractors shall have in effect mechanisms to ensure consistent application of review criteria for authorization decisions and shall consult with the requesting provider when appropriate.

I. In accordance with 42 CFR 447.50 through 42 CFR 447.60, MCOs shall not impose any cost sharing obligations on enrollees except as set forth in 12VAC30-20-150 and 12VAC30-20-160.

J. An MCO may not prohibit, or otherwise restrict, a health care professional acting within the lawful scope of practice, from advising or advocating on behalf of an enrollee who is his patient in accordance with 42 CFR 438.102.

K. An MCO that would otherwise be required to reimburse for or provide coverage of a counseling or referral service is not required to do so if the MCO objects to the service on moral or religious grounds and furnishes information about the service it does not cover in accordance with 42 CFR 438.102.

Titles of Regulations: 12VAC30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (amending 12VAC30-50-130, 12VAC30-50-226).

12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-61, 12VAC30-60-143; adding 12VAC30-60-5).

12VAC30-130. Amount, Duration and Scope of Selected Services (adding 12VAC30-130-2000, 12VAC30-130-3000, 12VAC30-130-3010, 12VAC30-130-3020, 12VAC30-130-3030).

Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Effective Date: January 30, 2015.

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.

Summary:

The amendments comply with items in the budget bill that require changes in the provisions of intensive in-home services and community mental health support services to ensure appropriate utilization, cost efficiency, and provider qualifications appropriate to render these services. This action includes: (i) changes to provider qualifications including meeting licensing standards; (ii) marketing requirements and restrictions; (iii) new assessment requirements; and (iv) language enhancements for utilization review requirements to help providers avoid payment retractions. New independent clinical assessments, conducted by local community services boards or behavioral health authorities, are required prior to the onset of specified services until the department's behavioral health services administrator contractor can assume this responsibility. Providers that are permitted to claim Medicaid reimbursement for specific services are specified by license type.

Changes made since publication of the proposed regulation include: (i) terminology changes; (ii) permitting additional provider types to render services (e.g., in addition to Licensed Mental Health Professionals (LMHPs), LMHP-supervisees, LMHP-residents, and LMHP-residents in psychology are added); (iii) adding full-time equivalency of part-time work experience; (iv) providing for different professional employees of the same provider to use electronic health records; (v) providing that the provider secure written permission from the individual before communicating with the individual's primary care provider concerning the receipt of community mental health services; (vi) correctly identifying the Department of Behavioral Health and Developmental Services licenses that certain providers are required to secure prior to becoming a Medicaid provider and rendering services; and (vii) removing the limitation of intensive community treatment services to adults in response to a directive from the Centers for Medicare and Medicaid Services.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

12VAC30-50-130. Skilled nursing facility services, EPSDT, school health services, and family planning.

A. Skilled nursing facility services (other than services in an institution for mental diseases) for individuals 21 years of age or older.

Service must be ordered or prescribed and directed or performed within the scope of a license of the practitioner of the healing arts.

B. Early and periodic screening and diagnosis of individuals under 21 years of age, and treatment of conditions found.

1. Payment of medical assistance services shall be made on behalf of individuals under 21 years of age, who are Medicaid eligible, for medically necessary stays in acute care facilities, and the accompanying attendant physician care, in excess of 21 days per admission when such services are rendered for the purpose of diagnosis and treatment of health conditions identified through a physical examination.

2. Routine physicals and immunizations (except as provided through EPSDT) are not covered except that well-child examinations in a private physician's office are covered for foster children of the local social services departments on specific referral from those departments.

3. Orthoptics services shall only be reimbursed if medically necessary to correct a visual defect identified by an EPSDT examination or evaluation. The department shall place appropriate utilization controls upon this service.

4. Consistent with the Omnibus Budget Reconciliation Act of 1989 § 6403, early and periodic screening, diagnostic, and treatment services means the following services: screening services, vision services, dental services, hearing services, and such other necessary health care, diagnostic services, treatment, and other measures described in Social Security Act § 1905(a) to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services and which are medically necessary, whether or not such services are covered under the State Plan and notwithstanding the limitations, applicable to recipients ages 21 and over, provided for by the Act § 1905(a).

5. Community mental health services. [ These services in order to be covered (i) shall meet medical necessity criteria based upon diagnoses made by LMHPs who are practicing within the scope of their licenses and (ii) are reflected in provider records and on providers' claims for services by recognized diagnosis codes that support and are consistent with the requested professional services. ]

a. Definitions. The following words and terms when used in [ these regulations this section ] shall have the following meanings unless the context clearly indicates otherwise:

"Activities of daily living" means personal care activities and includes bathing, dressing, transferring, toileting, feeding, and eating.

"Adolescent or child" means the individual receiving the services described in this section. [ For the purpose of the use of these terms, adolescent means an individual ages 12-20 years of age; a child means an individual from birth up to 12 years of age. ]

"Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS.

"Care coordination" means collaboration and sharing of information among health care providers, who are involved with an individual's health care, to improve the care.

"Certified [ pre-screener prescreener ]" means an employee of [ either DMAS, a BHSA, or ] the local community services board or behavioral health authority, or its designee, who is skilled in the assessment and treatment of mental illness and has completed a certification program approved by the Department of Behavioral Health and Developmental Services.

"Clinical experience" means [ , ] for the purpose of Medicaid reimbursement of (i) intensive in-home services, (ii) day treatment for children and adolescents, (iii) community-based residential services for children and adolescents who are younger than 21 (Level A), and (iv) therapeutic behavioral services (Level B), providing direct behavioral health services [ on a full-time basis or equivalent hours of part-time work ] to children and adolescents who have diagnoses of mental illness and includes supervised internships, supervised practicums, and supervised field experience [ for the purpose of Medicaid reimbursement of (i) intensive in-home services, (ii) day treatment for children and adolescents, (iii) community-based residential services for children and adolescents who are younger than 21 years of age (Level A), or (iv) therapeutic behavioral services (Level B) ]. Experience shall not include unsupervised internships, unsupervised practicums, and unsupervised field experience. [ The equivalency of part-time hours to full-time hours for the purpose of this requirement shall be as established by DBHDS in the document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013. ]

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

"DMAS" means the Department of Medical Assistance Services and its contractor or contractors.

"Human services field" means [ , for the purpose of (i) intensive in-home, (ii) day treatment for children and adolescents, (iii) community-based residential services for children and adolescents younger than 21 (Level A), and (iv) therapeutic behavioral services (Level B), social work, psychology, sociology, counseling, special education, human child or family development, cognitive or behavioral sciences, marriage and family therapy, or art or music therapy the same as the term is defined by DBHDS in the document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013 ].

"Individual service plan" or "ISP" means the same as the term is defined in 12VAC30-50-226.

"Licensed mental health professional" or "LMHP" means [ the same as the term defined in 12VAC35-105-20 a licensed physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed substance abuse treatment practitioner, licensed marriage and family therapist, or certified psychiatric clinical nurse specialist.

"LMHP-resident" or "LMHP-R" means the same as "resident" as defined in (i) 18VAC115-20-10 for licensed professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment practitioners. An LMHP-resident shall be in continuous compliance with the regulatory requirements of the applicable counseling profession for supervised practice and shall not perform the functions of the LMHP-R or be considered a "resident" until the supervision for specific clinical duties at a specific site has been preapproved in writing by the Virginia Board of Counseling. For purposes of Medicaid reimbursement to their supervisors for services provided by such residents, they shall use the title "Resident" in connection with the applicable profession after their signatures to indicate such status.

"LMHP-resident in psychology" or "LMHP-RP" means the same as an individual in a residency, as that term is defined in 18VAC125-20-10, program for clinical psychologists. An LMHP-resident in psychology shall be in continuous compliance with the regulatory requirements for supervised experience as found in 18VAC125-20-65 and shall not perform the functions of the LMHP-RP or be considered a "resident" until the supervision for specific clinical duties at a specific site has been preapproved in writing by the Virginia Board of Psychology. For purposes of Medicaid reimbursement by supervisors for services provided by such residents, they shall use the title "Resident in Psychology" after their signatures to indicate such status.

"LMHP-supervisee in social work," "LMHP-supervisee," or "LMHP-S" means the same as "supervisee" as defined in 18VAC140-20-10 for licensed clinical social workers. An LMHP-supervisee in social work shall be in continuous compliance with the regulatory requirements for supervised practice as found in 18VAC140-20-50 and shall not perform the functions of the LMHP-S or be considered a "supervisee" until the supervision for specific clinical duties at a specific site is preapproved in writing by the Virginia Board of Social Work. For purposes of Medicaid reimbursement to their supervisors for services provided by supervisees, these persons shall use the title "Supervisee in Social Work" after their signatures to indicate such status. ]

"Progress notes" means individual-specific documentation that contains the unique differences particular to the individual's circumstances, treatment, and progress that is also signed and contemporaneously dated by the provider's professional staff who have prepared the notes. Individualized and member-specific progress notes are part of the minimum documentation requirements and shall convey the individual's status, staff interventions, and, as appropriate, [ the individual's ] progress [ , or lack of progress, ] toward goals and objectives in the ISP. The progress notes shall also include, [ as at ] a minimum, the name of the service rendered, the date of the service rendered, the signature and credentials of the person who rendered the service, the setting in which the service was rendered, and the amount of time or units/hours required to deliver the service. The content of each progress note shall corroborate the time/units billed. Progress notes shall be documented for each service that is billed.

[ "Psychoeducation" means (i) a specific form of education aimed at helping individuals who have mental illness and their family members or caregivers to access clear and concise information about mental illness and (ii) a way of accessing and learning strategies to deal with mental illness and its effects in order to design effective treatment plans and strategies.

"Psychoeducational activities" means systematic interventions based on supportive and cognitive behavior therapy that emphasizes an individual's and his family's needs and focuses on increasing the individual's and family's knowledge about mental disorders, adjusting to mental illness, communicating and facilitating problem solving and increasing coping skills. ]

"Qualified mental health professional-child" or "QMHP-C" means the same as the term is defined in 12VAC35-105-20.

[ "Qualified mental health professional-eligible" or "QMHP-E" means the same as the term is defined in 12VAC35-105-20 and consistent with the requirements of 12VAC35-105-590. ]

"Qualified paraprofessional in mental health" or "QPPMH" means the same as the term is defined in 12VAC35-105-20 [ and consistent with the requirements of 12VAC35-105-1370 ].

"Service-specific provider [ assessment" intake" ] means the face-to-face interaction in which the provider obtains information from the child or adolescent, and parent or other family member or members, as appropriate, about [ the child's or adolescent's mental ] health status. It includes documented history of the severity, intensity, and duration of [ mental ] health care problems and issues and shall contain all of the following elements: (i) the presenting issue/reason for referral, (ii) mental health history/hospitalizations, (iii) previous interventions by providers and timeframes and response to treatment, (iv) medical profile, (v) developmental history including history of abuse, if appropriate, (vi) educational/vocational status, (vii) current living situation and family history and relationships, (viii) legal status, (ix) drug and alcohol profile, (x) resources and strengths, (xi) mental status exam and profile, (xii) diagnosis, (xiii) professional [ assessment ] summary and clinical formulation, (xiv) recommended care and treatment goals, and (xv) the dated signature of the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ].

a. b. Intensive in-home services [(IIH)] to children and adolescents under age 21 shall be time-limited interventions provided [ typically but not solely in the residence in the individual's residence and when clinically necessary in community settings. All interventions and the settings of the intervention shall be defined in the Individual Service Plan. All IIH services shall be designed to specifically improve family dynamics, provide modeling, and the clinically necessary interventions that increase functional and therapeutic interpersonal relations between family members in the home. IIH services are designed to promote psychoeducational benefits in the home setting ] of a child an individual who is at risk of being moved into an out-of-home placement or who is being transitioned to home from an out-of-home placement due to a documented medical need of the child individual. These services provide crisis treatment; individual and family counseling; and communication skills (e.g., counseling to assist the child individual and his parents or guardians, as appropriate, to understand and practice appropriate problem solving, anger management, and interpersonal interaction, etc.); case management activities and care coordination with other required services; and 24-hour emergency response.

(1) These services shall be limited annually to 26 weeks. After an initial period, prior authorization is required for Medicaid reimbursement. Service authorization shall be required for Medicaid reimbursement prior to the onset of services. Services rendered before the date of authorization shall not be reimbursed.

(2) Service authorization shall be required for services to continue beyond the initial 26 weeks.

(3) Service-specific provider [ assessments intakes ] shall be required at the onset of services and ISPs shall be required during the entire duration of services. Services based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for service-specific provider [ assessments intakes ] and ISPs are set out in [ 12VAC30-50-130 this section ] .

(4) These services may only be rendered by an LMHP [ or, LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C [ , or a QMHP-E ].

b. c. Therapeutic day treatment [ (TDT) ] shall be provided two or more hours per day in order to provide therapeutic interventions. Day treatment programs, limited annually to 780 units, provide evaluation; medication; education and management; opportunities to learn and use daily living skills and to enhance social and interpersonal skills (e.g., problem solving, anger management, community responsibility, increased impulse control, and appropriate peer relations, etc.); and individual, group and family [ psychotherapy counseling ].

(1) Service authorization shall be required for Medicaid reimbursement.

(2) Service-specific provider [ assessments intakes ] shall be required at the onset of services and ISPs shall be required during the entire duration of services. Services based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for service-specific provider [ assessments intakes ] and ISPs are set out in [ 12VAC30-50-130 this section ].

(3) These services may be rendered only by an LMHP [ or, LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C [ , or a QMHP-E ].

c. d. Community-based services for children and adolescents under 21 [ years of age ] (Level A).

(1) Such services shall be a combination of therapeutic services rendered in a residential setting. The residential services will provide structure for daily activities, psychoeducation, therapeutic supervision, care coordination, and psychiatric treatment to ensure the attainment of therapeutic mental health goals as identified in the individual service plan (plan of care). Individuals qualifying for this service must demonstrate medical necessity for the service arising from a condition due to mental, behavioral or emotional illness that results in significant functional impairments in major life activities in the home, school, at work, or in the community. The service must reasonably be expected to improve the child's condition or prevent regression so that the services will no longer be needed. DMAS will reimburse only for services provided in facilities or programs with no more than 16 beds. The application of a national standardized set of medical necessity criteria in use in the industry, such as McKesson InterQual^® Criteria [ , ] or an equivalent standard authorized in advance by DMAS [ , ] shall be required for this service.

(2) In addition to the residential services, the child must receive, at least weekly, individual psychotherapy that is provided by a licensed mental health professional an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ].

(3) Individuals must shall be discharged from this service when other less intensive services may achieve stabilization.

(4) Authorization is shall be required for Medicaid reimbursement. Services that were rendered before the date of service authorization shall not be reimbursed.

(5) Room and board costs are shall not be reimbursed. Facilities that only provide independent living services are not reimbursed. DMAS shall reimburse only for services provided in facilities or programs with no more than 16 beds.

(6) Providers These residential providers must be licensed by the Department of Social Services, Department of Juvenile Justice, or Department of Education Department of Behavioral Health [ and ] Developmental Services under the Standards for Interdepartmental Regulation of Licensed Children's Residential Facilities (22VAC40-151), Standards for Interim Regulation of Children's Residential Facilities (6VAC35-51), or Regulations for Children's Residential Facilities (22VAC42-10) (12VAC35-46).

(7) Daily progress notes shall document a minimum of seven psychoeducational activities per week. Psychoeducational programming must include, but is not limited to, development or maintenance of daily living skills, anger management, social skills, family living skills, communication skills, [ and ] stress management [ , and any care coordination activities ].

(8) The facility/group home must coordinate services with other providers. Such care coordination shall be documented in the individual's medical record. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

(9) Service-specific provider [ assessments intakes ] shall be required at the onset of services and ISPs shall be required during the entire duration of services. Services based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for [ assessments intakes ] and ISPs are set out in 12VAC30-60-61.

(10) These services may only be rendered by an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C, [ a QMHP-E, ] or a QPPMH.

d. e. Therapeutic behavioral services (Level B).

(1) Such services must be therapeutic services rendered in a residential setting that provides structure for daily activities, psychoeducation, therapeutic supervision, care coordination, and psychiatric treatment to ensure the attainment of therapeutic mental health goals as identified in the individual service plan (plan of care). Individuals qualifying for this service must demonstrate medical necessity for the service arising from a condition due to mental, behavioral or emotional illness that results in significant functional impairments in major life activities in the home, school, at work, or in the community. The service must reasonably be expected to improve the child's condition or prevent regression so that the services will no longer be needed. DMAS will reimburse only for services provided in facilities or programs with no more than 16 beds. The application of a national standardized set of medical necessity criteria in use in the industry, such as McKesson InterQual^® Criteria, or an equivalent standard authorized in advance by DMAS shall be required for this service.

(2) Authorization is required for Medicaid reimbursement. Services that are rendered before the date of service authorization shall not be reimbursed.

(3) Room and board costs are shall not be reimbursed. Facilities that only provide independent living services are not reimbursed. DMAS shall reimburse only for services provided in facilities or programs with no more than 16 beds.

(4) Providers These residential providers must be licensed by the Department of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS) Behavioral Health and Developmental Services (DBHDS) under the Standards Regulations for Interdepartmental Regulation of Children's Residential Facilities (22VAC42-10) (12VAC35-46).

(5) Daily progress notes shall document that a minimum of seven psychoeducational activities per week occurs. Psychoeducational programming must include, but is not limited to, development or maintenance of daily living skills, anger management, social skills, family living skills, communication skills, and stress management. This service may be provided in a program setting or a community-based group home.

(6) The child individual must receive, at least weekly, individual psychotherapy and, at least weekly, group psychotherapy that is provided as part of the program.

(7) Individuals must shall be discharged from this service when other less intensive services may achieve stabilization.

(8) Service-specific provider [ assessments intakes ] shall be required at the onset of services and ISPs shall be required during the entire duration of services. Services that are based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for [ assessments intakes ] and ISPs are set out in 12VAC30-60-61.

(9) These services may only be rendered by an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C, [ a QMHP-E, ] or a QPPMH.

(10) The facility/group home shall coordinate necessary services with other providers. Documentation of this care coordination shall be maintained by the facility/group home in the individual's record. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

6. Inpatient psychiatric services shall be covered for individuals younger than age 21 for medically necessary stays for the purpose of diagnosis and treatment of mental health and behavioral disorders identified under EPSDT when such services are rendered by:

a. A psychiatric hospital or an inpatient psychiatric program in a hospital accredited by the Joint Commission on Accreditation of Healthcare Organizations; or a psychiatric facility that is accredited by the Joint Commission on Accreditation of Healthcare Organizations, the Commission on Accreditation of Rehabilitation Facilities, the Council on Accreditation of Services for Families and Children or the Council on Quality and Leadership.

b. Inpatient psychiatric hospital admissions at general acute care hospitals and freestanding psychiatric hospitals shall also be subject to the requirements of 12VAC30-50-100, 12VAC30-50-105, and 12VAC30-60-25. Inpatient psychiatric admissions to residential treatment facilities shall also be subject to the requirements of Part XIV (12VAC30-130-850 et seq.) of [ this chapter Amount, Duration and Scope of Selected Services ].

c. Inpatient psychiatric services are reimbursable only when the treatment program is fully in compliance with 42 CFR Part 441 Subpart D, as contained in 42 CFR 441.151 (a) and (b) and 441.152 through 441.156. Each admission must be preauthorized and the treatment must meet DMAS requirements for clinical necessity.

7. Hearing aids shall be reimbursed for individuals younger than 21 years of age according to medical necessity when provided by practitioners licensed to engage in the practice of fitting or dealing in hearing aids under the Code of Virginia.

C. School health services.

1. School health assistant services are repealed effective July 1, 2006.

2. School divisions may provide routine well-child screening services under the State Plan. Diagnostic and treatment services that are otherwise covered under early and periodic screening, diagnosis and treatment services, shall not be covered for school divisions. School divisions to receive reimbursement for the screenings shall be enrolled with DMAS as clinic providers.

a. Children enrolled in managed care organizations shall receive screenings from those organizations. School divisions shall not receive reimbursement for screenings from DMAS for these children.

b. School-based services are listed in a recipient's individualized education program (IEP) and covered under one or more of the service categories described in § 1905(a) of the Social Security Act. These services are necessary to correct or ameliorate defects of physical or mental illnesses or conditions.

3. Service providers shall be licensed under the applicable state practice act or comparable licensing criteria by the Virginia Department of Education, and shall meet applicable qualifications under 42 CFR Part 440. Identification of defects, illnesses or conditions and services necessary to correct or ameliorate them shall be performed by practitioners qualified to make those determinations within their licensed scope of practice, either as a member of the IEP team or by a qualified practitioner outside the IEP team.

a. Service providers shall be employed by the school division or under contract to the school division.

b. Supervision of services by providers recognized in subdivision 4 of this subsection shall occur as allowed under federal regulations and consistent with Virginia law, regulations, and DMAS provider manuals.

c. The services described in subdivision 4 of this subsection shall be delivered by school providers, but may also be available in the community from other providers.

d. Services in this subsection are subject to utilization control as provided under 42 CFR Parts 455 and 456.

e. The IEP shall determine whether or not the services described in subdivision 4 of this subsection are medically necessary and that the treatment prescribed is in accordance with standards of medical practice. Medical necessity is defined as services ordered by IEP providers. The IEP providers are qualified Medicaid providers to make the medical necessity determination in accordance with their scope of practice. The services must be described as to the amount, duration and scope.

4. Covered services include:

a. Physical therapy, occupational therapy and services for individuals with speech, hearing, and language disorders, performed by, or under the direction of, providers who meet the qualifications set forth at 42 CFR 440.110. This coverage includes audiology services;.

b. Skilled nursing services are covered under 42 CFR 440.60. These services are to be rendered in accordance to the licensing standards and criteria of the Virginia Board of Nursing. Nursing services are to be provided by licensed registered nurses or licensed practical nurses but may be delegated by licensed registered nurses in accordance with the regulations of the Virginia Board of Nursing, especially the section on delegation of nursing tasks and procedures. the licensed practical nurse is under the supervision of a registered nurse.

(1) The coverage of skilled nursing services shall be of a level of complexity and sophistication (based on assessment, planning, implementation and evaluation) that is consistent with skilled nursing services when performed by a licensed registered nurse or a licensed practical nurse. These skilled nursing services shall include, but not necessarily be limited to dressing changes, maintaining patent airways, medication administration/monitoring and urinary catheterizations.

(2) Skilled nursing services shall be directly and specifically related to an active, written plan of care developed by a registered nurse that is based on a written order from a physician, physician assistant or nurse practitioner for skilled nursing services. This order shall be recertified on an annual basis.

c. Psychiatric and psychological services performed by licensed practitioners within the scope of practice are defined under state law or regulations and covered as physicians' services under 42 CFR 440.50 or medical or other remedial care under 42 CFR 440.60. These outpatient services include individual medical psychotherapy, group medical psychotherapy coverage, and family medical psychotherapy. Psychological and neuropsychological testing are allowed when done for purposes other than educational diagnosis, school admission, evaluation of an individual with [ mental retardation intellectual disability ] prior to admission to a nursing facility, or any placement issue. These services are covered in the nonschool settings also. School providers who may render these services when licensed by the state include psychiatrists, licensed clinical psychologists, school psychologists, licensed clinical social workers, professional counselors, psychiatric clinical nurse specialist, marriage and family therapists, and school social workers.

d. Personal care services are covered under 42 CFR 440.167 and performed by persons qualified under this subsection. The personal care assistant is supervised by a DMAS recognized school-based health professional who is acting within the scope of licensure. This practitioner develops a written plan for meeting the needs of the child, which is implemented by the assistant. The assistant must have qualifications comparable to those for other personal care aides recognized by the Virginia Department of Medical Assistance Services. The assistant performs services such as assisting with toileting, ambulation, and eating. The assistant may serve as an aide on a specially adapted school vehicle that enables transportation to or from the school or school contracted provider on days when the student is receiving a Medicaid-covered service under the IEP. Children requiring an aide during transportation on a specially adapted vehicle shall have this stated in the IEP.

e. Medical evaluation services are covered as physicians' services under 42 CFR 440.50 or as medical or other remedial care under 42 CFR 440.60. Persons performing these services shall be licensed physicians, physician assistants, or nurse practitioners. These practitioners shall identify the nature or extent of a child's medical or other health related condition.

f. Transportation is covered as allowed under 42 CFR 431.53 and described at State Plan Attachment 3.1-D. Transportation shall be rendered only by school division personnel or contractors. Transportation is covered for a child who requires transportation on a specially adapted school vehicle that enables transportation to or from the school or school contracted provider on days when the student is receiving a Medicaid-covered service under the IEP. Transportation shall be listed in the child's IEP. Children requiring an aide during transportation on a specially adapted vehicle shall have this stated in the IEP.

g. Assessments are covered as necessary to assess or reassess the need for medical services in a child's IEP and shall be performed by any of the above licensed practitioners within the scope of practice. Assessments and reassessments not tied to medical needs of the child shall not be covered.

5. DMAS will ensure through quality management review that duplication of services will be monitored. School divisions have a responsibility to ensure that if a child is receiving additional therapy outside of the school, that there will be coordination of services to avoid duplication of service.

D. Family planning services and supplies for individuals of child-bearing age.

1. Service must be ordered or prescribed and directed or performed within the scope of the license of a practitioner of the healing arts.

2. Family planning services shall be defined as those services that delay or prevent pregnancy. Coverage of such services shall not include services to treat infertility nor services to promote fertility.

12VAC30-50-226. Community mental health services.

A. Definitions. The following words and terms when used in [ these regulations this section ] shall have the following meanings unless the context clearly indicates otherwise:

"Certified prescreener" means an employee of either the local community services board community services board/behavioral health authority [ , behavioral health service administrator ] or its designee who is skilled in the assessment and treatment of mental illness and who has completed a certification program approved by DBHDS.

"Clinical experience" means [ , for the purpose of rendering (i) mental health day treatment/partial hospitalization, (ii) intensive community treatment, (iii) psychosocial rehabilitation, (iv) mental health support, (v) crisis stabilization, and (vi) crisis intervention services, ] practical experience in providing direct services on a full-time basis [ (or the equivalent part-time experience as determined by DBHDS in the document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013) ] to individuals with medically-documented diagnoses of mental illness or mental retardation intellectual/developmental disability or the provision of direct geriatric services or full-time [ (or the equivalent part-time experience) ] special education services [ , for the purpose of rendering (i) mental health day treatment/partial hospitalization, (ii) intensive community treatment, (iii) psychosocial rehabilitation, (iv) mental health support, (v) crisis stabilization, or (vi) crisis intervention services ]. Experience may shall include supervised internships, supervised practicums, and or supervised field experience. Experience shall not include unsupervised internships, unsupervised practicums, and unsupervised field experience. This required clinical experience shall be calculated as set forth in [ 12VAC35-105-20 DBHDS document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013 ].

"Code" means the Code of Virginia.

"DBHDS" means the Department of Behavioral Health and Developmental Services consistent with Chapter 3 (§ 37.2-300 et seq.) of Title 37.2 of the Code of Virginia.

"DMAS" means the Department of Medical Assistance Services and its contractor or contractors consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"Human services field" means [ for the purpose of (i) mental health day treatment/partial hospitalization, (ii) intensive community treatment, (iii) psychosocial rehabilitation, (iv) mental health support, (v) crisis stabilization, and (vi) crisis intervention services, social work, gerontology, psychology, psychiatric rehabilitation, special education, sociology, counseling, vocational rehabilitation, behavioral sciences, marriage and family therapy, art or music therapy, and human services counseling ] or other degrees deemed equivalent by DMAS [ the same as defined by DBHDS in the document entitled Human Services and Related Fields Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013 ].

"Individual" means the patient, client, or recipient of services set out herein described in this section.

"Individual service plan" or "ISP" means a comprehensive and regularly updated statement treatment plan specific to the individual being treated containing, but not necessarily limited to, his treatment or training needs, his goals and measurable objectives to meet the identified needs, services to be provided with the recommended frequency to accomplish the measurable goals and objectives, and estimated timetable for achieving the goals and objectives. The provider shall include the individual in the development of the ISP. To the extent that the individual's condition requires assistance for participation, assistance shall be provided. The ISP shall be updated as the needs and progress of the individual changes. individual's unique treatment needs as identified in the clinical assessment. The ISP contains his treatment or training needs, his goals and measurable objectives to meet the identified needs, services to be provided with the recommended frequency to accomplish the measurable goals and objectives, the estimated timetable for achieving the goals and objectives, and an individualized discharge plan that describes transition to other appropriate services. The [ individual shall be included in the development of the ISP and the ] ISP shall be signed by the individual. If the individual is a [ minor ] child, the ISP shall also be signed by the individual's parent/legal guardian. Documentation shall be provided if the individual, who is a [ minor ] child [ or an adult who lacks legal capacity ], is unable or unwilling to sign the ISP.

"Licensed [ Mental Health Professional" mental health professional" ] or "LMHP" means an individual licensed in Virginia as a physician, a clinical psychologist, a professional counselor, a clinical social worker, or a psychiatric clinical nurse specialist [ the same as defined in 12VAC30-105-20 a licensed physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed substance abuse treatment practitioner, licensed marriage and family therapist, or certified psychiatric clinical nurse specialist ].

[ "LMHP-resident" or "LMHP-R" means the same as "resident" as defined in (i) 18VAC115-20-10 for licensed professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment practitioners. An LMHP-resident shall be in continuous compliance with the regulatory requirements of the applicable counseling profession for supervised practice and shall not perform the functions of the LMHP-R or be considered a "resident" until the supervision for specific clinical duties at a specific site has been preapproved in writing by the Virginia Board of Counseling. For purposes of Medicaid reimbursement to their supervisors for services provided by such residents, they shall use the title "Resident" in connection with the applicable profession after their signatures to indicate such status.

"LMHP-resident in psychology" or "LMHP-RP" means the same as an individual in a residency, as that term is defined in 18VAC125-20-10, program for clinical psychologists. An LMHP-resident in psychology shall be in continuous compliance with the regulatory requirements for supervised experience as found in 18VAC125-20-65 and shall not perform the functions of the LMHP-RP or be considered a "resident" until the supervision for specific clinical duties at a specific site has been preapproved in writing by the Virginia Board of Psychology. For purposes of Medicaid reimbursement by supervisors for services provided by such residents, they shall use the title "Resident in Psychology" after their signatures to indicate such status.

"LMHP-supervisee in social work," "LMHP-supervisee,"or "LMHP-S" means the same as "supervisee" is defined in 18VAC140-20-10 for licensed clinical social workers. An LMHP-supervisee in social work shall be in continuous compliance with the regulatory requirements for supervised practice as found in 18VAC140-20-50 and shall not perform the functions of the LMHP-S or be considered a "supervisee" until the supervision for specific clinical duties at a specific site is preapproved in writing by the Virginia Board of Social Work. For purposes of Medicaid reimbursement to their supervisors for services provided by supervisees, these persons shall use the title "Supervisee in Social Work" after their signatures to indicate such status. ]

"Qualified mental health professional" or "QMHP" means a clinician in the human services field who is trained and experienced in providing psychiatric or mental health services to individuals who have a psychiatric diagnosis. If the QMHP is also one of the defined licensed mental health professionals, the QMHP may perform the services designated for the Licensed Mental Health Professionals unless it is specifically prohibited by their licenses. These QMHPs may be either a:

1. Physician who is a doctor of medicine or osteopathy and is licensed in Virginia;

2. Psychiatrist who is a doctor of medicine or osteopathy, specializing in psychiatry and is licensed in Virginia;

3. Psychologist who has a master's degree in psychology from an accredited college or university with at least one year of clinical experience;

4. Social worker who has a master's or bachelor's degree from a school of social work accredited or approved by the Council on Social Work Education and has at least one year of clinical experience;

5. Registered nurse who is licensed as a registered nurse in the Commonwealth and has at least one year of clinical experience; or

6. Mental health worker who has at least:

a. A bachelor's degree in human services or a related field from an accredited college and who has at least one year of clinical experience;

b. Registered Psychiatric Rehabilitation Provider (RPRP) registered with the International Association of Psychosocial Rehabilitation Services (IAPSRS) as of January 1, 2001;

c. A bachelor's degree from an accredited college in an unrelated field with an associate's degree in a human services field. The individual must also have three years clinical experience;

d. A bachelor's degree from an accredited college and certification by the International Association of Psychosocial Rehabilitation Services (IAPSRS) as a Certified Psychiatric Rehabilitation Practitioner (CPRP);

e. A bachelor's degree from an accredited college in an unrelated field that includes at least 15 semester credits (or equivalent) in a human services field. The individual must also have three years clinical experience; or

f. Four years clinical experience.

"Qualified mental health professional-adult" or "QMHP-A" means the same as defined in 12VAC35-105-20.

"Qualified mental health professional-child" or "QMHP-C" means the same as defined in 12VAC35-105-20.

[ "Qualified mental health professional-eligible" or "QMHP-E" means the same as defined in 12VAC35-105-20. ]

"Qualified paraprofessional in mental health" or "QPPMH" means an individual who meets at least one of the following criteria: the same as defined in 12VAC35-105-20.

1. Registered with the International Association of Psychosocial Rehabilitation Services (IAPSRS) as an Associate Psychiatric Rehabilitation Provider (APRP), as of January 1, 2001;

2. Has an associate's degree in one of the following related fields (social work, psychology, psychiatric rehabilitation, sociology, counseling, vocational rehabilitation, human services counseling) and has at least one year of experience providing direct services to persons with a diagnosis of mental illness;

3. An associate's or higher degree, in an unrelated field and at least three years experience providing direct services to persons with a diagnosis of mental illness, gerontology clients, or special education clients. The experience may include supervised internships, practicums and field experience.

4. A minimum of 90 hours classroom training in behavioral health and 12 weeks of experience under the direct personal supervision of a QMHP providing services to persons with mental illness and at least one year of clinical experience (including the 12 weeks of supervised experience).

5. College credits (from an accredited college) earned toward a bachelor's degree in a human service field that is equivalent to an associate's degree and one year's clinical experience.

6. Licensure by the Commonwealth as a practical nurse with at least one year of clinical experience.

"Register" or "registration" means notifying DMAS or its contractor that an individual will be receiving [ either crisis stabilization or crisis intervention services that do not require service authorization ].

"Service authorization" means the [ final determination of Medicaid reimbursement made by either DMAS or its , service authorization contractor for specified medical services for a specified individual to be rendered by a specified provider. process to approve specific services for an enrolled Medicaid, FAMIS Plus, or FAMIS individual by a DMAS service authorization contractor prior to service delivery and reimbursement in order to validate that the service requested is medically necessary and meets DMAS and DMAS contractor criteria for reimbursement. Service authorization does not guarantee payment for the service. ]

B. Mental health services. The following services, with their definitions, shall be covered: day treatment/partial hospitalization, psychosocial rehabilitation, crisis services, intensive community treatment (ICT), and mental health supports. Staff travel time shall not be included in billable time for reimbursement.

[ 1. These services, in order to be covered, shall meet medical necessity criteria based upon diagnoses made by LMHPs who are practicing within the scope of their licenses and are reflected in provider records and on providers' claims for services by recognized diagnosis codes that support and are consistent with the requested professional services.

2. These services are intended to be delivered in a person-centered manner. The individuals who are receiving these services shall be included in all service planning activities. All services which do not require service authorization require registration. This registration shall transmit to DMAS or its contractor (i) the individual's name and Medicaid identification number; (ii) the specific service to be provided, the relevant procedure code and begin date of the service; and (iii) the provider's name and NPI, a provider contact name and phone number, and email address.

1. 3. ] Day treatment/partial hospitalization services shall be provided in sessions of two or more consecutive hours per day, which may be scheduled multiple times per week, to groups of individuals in a nonresidential setting. These services, limited annually to 780 units, include the major diagnostic, medical, psychiatric, psychosocial, and psychoeducational treatment modalities designed for individuals who require coordinated, intensive, comprehensive, and multidisciplinary treatment but who do not require inpatient treatment. One unit of service shall be defined as a minimum of two but less than four hours on a given day. Two units of service shall be defined as at least four but less than seven hours in a given day. Three units of service shall be defined as seven or more hours in a given day. Authorization is required for Medicaid reimbursement.

a. Day treatment/partial hospitalization services shall be time limited interventions that are more intensive than outpatient services and are required to stabilize an individual's psychiatric condition. The services are delivered when the individual is at risk of psychiatric hospitalization or is transitioning from a psychiatric hospitalization to the community. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual is at risk of psychiatric hospitalization or is transitioning from a psychiatric hospitalization to the community.

b. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from mental, behavioral, or emotional illness that results in significant functional impairments in major life activities. Individuals must meet at least two of the following criteria on a continuing or intermittent basis:

(1) Experience difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of hospitalization or homelessness or isolation from social supports;

(2) Experience difficulty in activities of daily living such as maintaining personal hygiene, preparing food and maintaining adequate nutrition, or managing finances to such a degree that health or safety is jeopardized;

(3) Exhibit such inappropriate behavior that requires the individual requires repeated interventions or monitoring by the mental health, social services, or judicial system that have been documented; or

(4) Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

c. Individuals shall be discharged from this service when they are no longer in an acute psychiatric state and other less intensive services may achieve psychiatric stabilization.

d. Admission and services for time periods longer than 90 calendar days must be authorized based upon a face-to-face evaluation by a physician, psychiatrist, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, or psychiatric clinical nurse specialist.

e. These services may only be rendered by either an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A, QMHP-C, [ QMHP-E, ] or a QPPMH.

[ 2. 4. ] Psychosocial rehabilitation shall be provided at least two or more hours per day to groups of individuals in a nonresidential setting. These services, limited annually to 936 units, include assessment, education to teach the patient about the diagnosed mental illness and appropriate medications to avoid complication and relapse, opportunities to learn and use independent living skills and to enhance social and interpersonal skills within a supportive and normalizing program structure and environment. One unit of service is defined as a minimum of two but less than four hours on a given day. Two units are defined as at least four but less than seven hours in a given day. Three units of service shall be defined as seven or more hours in a given day. Authorization is required for Medicaid reimbursement. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service.

a. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from mental, behavioral, or emotional illness that results in significant functional impairments in major life activities. Services are provided to individuals: (i) who without these services would be unable to remain in the community or (ii) who meet at least two of the following criteria on a continuing or intermittent basis:

a. (1) Experience difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of psychiatric hospitalization, homelessness, or isolation from social supports;

b. (2) Experience difficulty in activities of daily living such as maintaining personal hygiene, preparing food and maintaining adequate nutrition, or managing finances to such a degree that health or safety is jeopardized;

c. (3) Exhibit such inappropriate behavior that repeated interventions documented by the mental health, social services, or judicial system are or have been necessary; or

d. (4) Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or significantly inappropriate social behavior.

b. These services may only be rendered by either an LMHP [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A, QMHP-C, [ QMHP-E, ] or a QPPMH.

[ 3. 5. ] Crisis intervention shall provide immediate mental health care, available 24 hours a day, seven days per week, to assist individuals who are experiencing acute psychiatric dysfunction requiring immediate clinical attention. This service's objectives shall be to prevent exacerbation of a condition, to prevent injury to the client or others, and to provide treatment in the context of the least restrictive setting. Crisis intervention activities shall include assessing the crisis situation, providing short-term counseling designed to stabilize the individual, providing access to further immediate assessment and follow-up, and linking the individual and family with ongoing care to prevent future crises. Crisis intervention services may include office visits, home visits, preadmission screenings, telephone contacts, and other client-related activities for the prevention of institutionalization. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service. The provision of this service to an individual shall be registered with either DMAS or the BHSA [ within one business day or the completion of the service-specific provider intake ] to avoid duplication of services and to ensure informed care coordination. [ This registration shall transmit to DMAS or its contractor: (i) the individual's name and Medicaid identification number; (ii) the specific service to be provided, the relevant procedure code, begin date of the service, and the amount of the service that will be provided; and (iii) the provider's name and NPI, a provider contact name and phone number, and email address. ]

a. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from an acute crisis of a psychiatric nature that puts the individual at risk of psychiatric hospitalization. Individuals must meet at least two of the following criteria at the time of admission to the service:

(1) Experience difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of psychiatric hospitalization, homelessness, or isolation from social supports;

(2) Experience difficulty in activities of daily living such as maintaining personal hygiene, preparing food and maintaining adequate nutrition, or managing finances to such a degree that health or safety is jeopardized;

(3) Exhibit such inappropriate behavior that immediate interventions documented by mental health, social services, or the judicial system are or have been necessary; or

(4) Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or significantly inappropriate social behavior.

b. The annual limit for crisis intervention is 720 units per year. A unit shall equal 15 minutes.

c. These services may only be rendered by an LMHP, [ QMHP-A, or QMHP-C and an LMHP-supervisee, LMHP-resident, LMHP-RP, or ] a certified [ pre-screener prescreener ].

[ 4. 6. ] Intensive community treatment (ICT), initially covered for a maximum of 26 weeks based on an initial service-specific provider [ assessment with continuation intake and may be ] reauthorized for [ up to ] an additional 26 weeks annually based on written [ assessment intake ] and certification of need by a [ qualified licensed ] mental health provider [ (QMHP) (LMHP) ], shall be defined [ as by 12VAC35-105-20 or LMHP-S, LMHP-R, and LMHP-RP and shall include ] medical psychotherapy, psychiatric assessment, medication management, and case management care coordination activities offered to outpatients outside the clinic, hospital, or office setting for individuals who are best served in the community. The annual unit limit shall be 130 units with a unit equaling one hour. Authorization is required for Medicaid reimbursement.

a. To qualify for ICT, the individual must meet at least one of the following criteria:

a. (1) The individual must be at high risk for psychiatric hospitalization or becoming or remaining homeless due to mental illness or require intervention by the mental health or criminal justice system due to inappropriate social behavior.

b. (2) The individual has a history (three months or more) of a need for intensive mental health treatment or treatment for co-occurring serious mental illness and substance use disorder and demonstrates a resistance to seek out and utilize appropriate treatment options.

(1) An b. A written, service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, that documents the individual's eligibility and the need for this service must be completed prior to the initiation of services. This [ assessment intake ] must be maintained in the individual's records.

(2) A service plan must c. An individual service plan shall be initiated at the time of admission and must be fully developed, as defined in [ 12VAC30-50-226 this section ], within 30 days of the initiation of services.

d. The annual unit limit shall be 130 units with a unit equaling one hour.

e. These services may only be rendered by [ an LMHP, QMHP-A, QMHP-C, and QPPMH a team that meets the requirements of 12VAC35-105-1370 ].

[ 5. 7. ] Crisis stabilization services for nonhospitalized individuals shall provide direct mental health care to individuals experiencing an acute psychiatric crisis which may jeopardize their current community living situation. Authorization Services may be authorized for up to a 15-day period per crisis episode following a documented face-to-face service-specific provider [ assessment intake ] by [ a ] QMHP which [ QMHP-A or QMHP-C that is reviewed and approved by ] an LMHP [ within 72 hours of the assessment , LMHP-supervisee, LMHP-resident, or LMHP-RP ]. The maximum limit on this service is up to eight hours (with a unit being one hour) per day up to 60 days annually. Only one unit of service shall be reimbursed for this [ assessment intake ]. The provision of this service to an individual shall be registered with either DMAS or the BHSA [ within one calendar day of the completion of the service-specific provider intake ] to avoid duplication of services and to ensure informed care coordination. [ This registration shall transmit to DMAS or its contractor: (i) the individual's name and Medicaid identification number; (ii) the specific service to be provided, the relevant procedure code, begin date of the service, and the amount of the service that will be provided; and (iii) the provider's name and NPI, a provider contact name and phone number, and email address. (See 12VAC30-50-226 B for registration requirements. ]

a. The goals of crisis stabilization programs shall be to avert hospitalization or rehospitalization, provide normative environments with a high assurance of safety and security for crisis intervention, stabilize individuals in psychiatric crisis, and mobilize the resources of the community support system and family members and others for on-going maintenance and rehabilitation. The services must be documented in the individual's records as having been provided consistent with the ISP in order to receive Medicaid reimbursement.

b. The crisis stabilization program shall provide to recipients individuals, as appropriate, psychiatric assessment including medication evaluation, treatment planning, symptom and behavior management, and individual and group counseling.

c. This service may be provided in any of the following settings, but shall not be limited to: (i) the home of a recipient an individual who lives with family or other primary caregiver; (ii) the home of a recipient an individual who lives independently; or (iii) community-based programs licensed by DBHDS to provide residential services but which are not institutions for mental disease (IMDs).

d. This service shall not be reimbursed for (i) recipients individuals with medical conditions that require hospital care; (ii) recipients individuals with primary diagnosis of substance abuse; or (iii) recipients individuals with psychiatric conditions that cannot be managed in the community (i.e., recipients individuals who are of imminent danger to themselves or others).

e. The maximum limit on this service is 60 days annually.

f. Services must be documented through daily [ progress ] notes and a daily log of times spent in the delivery of services. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from an acute crisis of a psychiatric nature that puts the individual at risk of psychiatric hospitalization. Individuals must meet at least two of the following criteria at the time of admission to the service:

a. (1) Experience difficulty in establishing and maintaining normal interpersonal relationships to such a degree that the individual is at risk of psychiatric hospitalization, homelessness, or isolation from social supports;

b. (2) Experience difficulty in activities of daily living such as maintaining personal hygiene, preparing food and maintaining adequate nutrition, or managing finances to such a degree that health or safety is jeopardized;

c. (3) Exhibit such inappropriate behavior that immediate interventions documented by the mental health, social services, or judicial system are or have been necessary; or

d. (4) Exhibit difficulty in cognitive ability such that the individual is unable to recognize personal danger or significantly inappropriate social behavior.

g. These services may only be rendered by an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A, [ or ] QMHP-C [ and, QMHP-E, or ] a certified [ pre-screener prescreener ].

[ 6. 8. ] Mental health support services (MHSS) shall be defined as training and supports to enable individuals to achieve and maintain community stability and independence in the most appropriate, least restrictive environment. Authorization is required for Medicaid reimbursement. Services that are rendered before the date of service authorization shall not be reimbursed. These services may be authorized for up to six consecutive months as long as the individual meets the coverage criteria for this service. The service-specific provider [ assessment intake ], as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service. This program shall provide the following services in order to be reimbursed by Medicaid: training in or reinforcement of functional skills and appropriate behavior related to the individual's health and safety, activities of daily living, and use of community resources; assistance with medication management; and monitoring health, nutrition, and physical condition.

a. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from a condition due to mental, behavioral, or emotional illness that results in significant functional impairments in major life activities. Services are provided to individuals who without these services would be unable to remain in the community. The individual must have meet at least two of the following criteria on a continuing or intermittent basis:

(1) Have difficulty in establishing or maintaining normal interpersonal relationships to such a degree that the individual is at risk of psychiatric hospitalization or homelessness or isolation from social supports;

(2) Require help in basic living skills such as maintaining personal hygiene, preparing food and maintaining adequate nutrition or managing finances to such a degree that health or safety is jeopardized;

(3) Exhibit such inappropriate behavior that repeated interventions documented by the mental health, social services, or judicial system are or have been necessary; or

(4) Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

b. The individual must demonstrate functional impairments in major life activities. This may include individuals with a dual diagnosis of either mental illness and [ mental retardation intellectual disability ], or mental illness and substance abuse disorder.

c. Service-specific provider [ assessments intakes ] shall be required at the onset of services and individual service plans (ISPs) shall be required during the entire duration of services. Services based upon incomplete, missing, or outdated service-specific provider [ assessments intakes ] or ISPs shall be denied reimbursement. Requirements for provider-specific [ assessments intakes ] and ISPs are set out in 12VAC30-50-130.

c. d. The yearly limit for mental health support services is 372 units. One unit is [ at least ] one hour but less than three hours.

e. These services may only be rendered by an LMHP, [ LMHP-supervisee, LMHP-resident, ] QMHP-A, QMHP-C, [ QMHP-E, ] or QPPMH.

[ DOCUMENTS INCORPORATED BY REFERENCE (12VAC30-50)

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

Length of Stay by Diagnosis and Operation, Southern Region, 1996, HCIA, Inc.

Guidelines for Perinatal Care, 4th Edition, August 1997, American Academy of Pediatrics and the American College of Obstetricians and Gynecologists.

Virginia Supplemental Drug Rebate Agreement Contract and Addenda.

Office Reference Manual (Smiles for Children), prepared by DMAS' Dental Benefits Administrator, copyright 2005 (www.dmas.virginia.gov/downloads/pdfs/dental-office_reference_manual_0 6-09-05.pdf).

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

Virginia Medicaid Durable Medical Equipment and Supplies Provider Manual, Appendix B (rev. 1/11), Department of Medical Assistance Services.

Human Services and Related Fields Approved Degrees/Experience, Department of Behavioral Health and Developmental Services (rev. 5/13) ]

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) [ , service authorization contractor, ] or the [ behavioral health ] service authorization contractor shall be fully substantiated throughout individuals' medical records.

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

C. DMAS, or its designee, shall perform reviews of the utilization of all Medicaid covered services pursuant to [ 42 CFR ] 440.260 and [ 456.1 et seq. 42 CFR Part 456. ]

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

E. 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. Utilization review requirements specific to community mental health services, 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) license shall be either a full [ , ] annual, triennial, or conditional license. Providers must be enrolled with DMAS [ or the BHSA ] to be reimbursed. Once a health care entity has been enrolled as a provider, it shall maintain, and update periodically as DMAS requires, a current Provider Enrollment Agreement for each Medicaid service that the provider offers.

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

3. Payments shall not be permitted to health care entities [ who that ] either hold provisional licenses or [ who ] fail to enter into a Medicaid Provider Enrollment Agreement for a service prior to rendering that service.

[ 4. The behavioral health service authorization contractor shall apply a national standardized set of medical necessity criteria in use in the industry, such as McKesson InterQual Criteria, or an equivalent standard authorized in advance by DMAS. Services that fail to meet medical necessity criteria shall be denied service authorization. ]

12VAC30-60-61. Services related to the Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT); community mental health services for children.

A. Definitions. The following words and terms [ when used in this section ] shall have the following meanings unless the context indicates otherwise:

"At risk" means one or more of the following: (i) within [ the ] two weeks [ after completion of before ] the [ assessment intake ], the individual shall be screened by an LMHP for escalating behaviors that have put either the individual or others at immediate risk of physical injury; (ii) the parent/guardian is unable to manage the individual's mental, behavioral, or emotional problems in the home and is actively, within the past two to four weeks, seeking an out-of-home placement; (iii) a representative of either a juvenile justice agency, a department of social services (either the state agency or local agency), a community services board/behavioral health authority, the Department of Education, or an LMHP, as defined in 12VAC35-105-20, and who is neither an employee of [ or nor ] consultant to the [ IIH intensive in-home (IIH) ] services or therapeutic day treatment (TDT) provider, has recommended an out-of-home placement absent an immediate change of behaviors and when unsuccessful mental health services are evident; (iv) the individual has a history of unsuccessful services (either crisis intervention, crisis stabilization, outpatient psychotherapy, outpatient substance abuse services, or mental health support) within the past 30 days; (v) the treatment team or family assessment planning team (FAPT) recommends IIH services or TDT for an individual currently who is either: (a) transitioning out of residential treatment facility Level C services, (b) transitioning out of a group home Level A or B services, (c) transitioning out of acute psychiatric hospitalization, or (d) transitioning between foster homes, mental health case management, crisis intervention, crisis stabilization, outpatient psychotherapy, or outpatient substance abuse services.

"Failed services" or "unsuccessful services" means, as measured by ongoing behavioral, mental, or physical distress, that the service or services did not treat or resolve the individual's mental health or behavioral issues.

"Individual" means the Medicaid-eligible person receiving these services and for the purpose of this section [ is understood to mean includes ] children [ from birth up to 12 years of age ] or adolescents [ ages 12 through 20 years ].

"New service" means a community mental health rehabilitation service for which the individual does not have a current service authorization in effect as of July 17, 2011.

"Out-of-home placement" means placement in one or more of the following: (i) either a Level A or Level B group home; (ii) regular foster home if the individual is currently residing with his biological family and, due to his behavior problems, is at risk of being placed in the custody of the local department of social services; (iii) treatment foster care if the individual is currently residing with his biological family or a regular foster care family and, due to the individual's behavioral problems, is at risk of removal to a higher level of care; (iv) Level C residential facility; (v) emergency shelter for the individual only due either to his mental health or behavior or both; (vi) psychiatric hospitalization; or (vii) juvenile justice system or incarceration.

"Service-specific provider [ assessment" intake" ] means the evaluation that is conducted according to the Department of Medical Assistance Services (DMAS) [ assessment intake ] definition set out in 12VAC30-50-130.

B. [ These The ] services [ described in this section ] shall be rendered consistent with the definitions, service limits, and requirements described in this section and in 12VAC30-50-130.

A. C. Intensive in-home [ (IIH) ] services for children and adolescents.

1. The service definition for intensive in-home (IIH) services is contained in 12VAC30-50-130.

1. 2. Individuals qualifying for this service must shall demonstrate a clinical necessity for the service arising from mental, behavioral or emotional illness which results in significant functional impairments in major life activities. Individuals must meet at least two of the following criteria on a continuing or intermittent basis to be authorized for these services:

a. Have difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of hospitalization or out-of-home placement because of conflicts with family or community.

b. Exhibit such inappropriate behavior that documented, repeated interventions by the mental health, social services or judicial system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

2. At 3. Prior to admission, an appropriate service-specific provider [ assessment intake ] is made, as defined in 12VAC30-50-130, shall be conducted by the LMHP or the QMHP and approved by the LMHP, licensed mental health professional (LMHP), [ as defined in 12VAC35-105-20, LMHP-supervisee, LMHP-resident, or LMHP-RP, ] documenting that the individual's diagnosis and describing how service needs can best be met through intervention provided typically but not solely in the client's individual's residence. An Individual Service Plan (ISP) must be fully completed within 30 days of initiation of services. The service-specific provider [ assessment intake ] shall describe how the individual's clinical needs put the individual at risk of out-of-home placement and shall be conducted face-to-face in the individual's residence. Claims for services that are based upon service-specific provider [ assessments intakes ] that are incomplete, outdated (more than 12 months old), or missing shall not be reimbursed.

4. An individual service plan (ISP) shall be fully completed, signed, and dated by [ either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C, [ as defined in 12VAC35-105-20, or a QMHP-E ] and the individual and individual's parent/guardian within 30 days of initiation of services. The ISP shall meet all of the requirements as defined in 12VAC30-50-226.

5. DMAS shall not reimburse for dates of services in which the progress notes are not individualized and child-specific. Duplicated progress notes shall not constitute the required child-specific individualized progress notes. Each progress note shall demonstrate unique differences particular to the individual's circumstances, treatment, and progress. Claim payments shall be retracted for services that are supported by documentation that does not demonstrate unique differences particular to the individual.

3. 6. Services must shall be directed toward the treatment of the eligible child individual and delivered primarily in the family's residence with the child individual present. In some circumstances, such as lack of privacy or unsafe conditions, services may be provided in the community if supported by the needs assessment and ISP. [ The assessment may be performed and As clinically indicated, ] the services [ may be ] rendered in the community if there is documentation, on that date of service, of the necessity of providing services in the community. The documentation shall describe how the alternative community service location supports the identified clinical needs of the individual and describe how it facilitates the implementation of the ISP. For services provided outside of the home, there shall be documentation reflecting therapeutic treatment as set forth in the ISP provided for that date of service in the appropriately signed and dated progress notes.

4. 7. These services shall be provided when the clinical needs of the child individual put the child him at risk for out-of-home placement, as these terms are defined in this section:

a. When services that are far more intensive than outpatient clinic care are required to stabilize the child individual in the family situation, or

b. When the child's individual's residence as the setting for services is more likely to be successful than a clinic.

The service-specific provider [ assessment intake ] shall describe how the individual meets either subdivision a or b of this subdivision.

5. Services may not be billed when provided to a family while the child is not residing in the home.

8. Services shall not be provided if the individual is no longer a resident of the home.

6. 9. Services shall also be used to facilitate the transition to home from an out-of-home placement when services more intensive than outpatient clinic care are required for the transition to be successful. The child individual and responsible parent/guardian must shall be available and in agreement to participate in the transition.

7. 10. At least one parent [ parent/guardian parent/legal guardian ] or responsible adult with whom the child individual is living must be willing to participate in the intensive in-home services with the goal of keeping the child individual with the family. [ In the instance of this service, a responsible adult shall be an adult who lives in the same household with the child and is responsible for engaging in therapy and service-related activities to benefit the individual. ]

8. 11. The enrolled [ service ] provider must shall be licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services Behavioral Health and Developmental Services (DBHDS) as a provider of intensive in-home services. The provider shall also have a provider enrollment agreement with DMAS or its contractor in effect prior to the delivery of this service that indicates that the provider will offer intensive in-home services.

9. 12. Services must only be provided by an LMHP [ , LMHP-supervisee, LMHP-resident, LMHP-RP, ] or a, QMHP [ or ] QMHP-C [ as defined in, or QMHP-E ] 12VAC30-50-226 [ 12VAC35-105-20 ]. Reimbursement shall not be provided for such services when they have been rendered by a QPPMH as defined in 12VAC30-50-226 12VAC35-105-20.

10. 13. The billing unit for intensive in-home service is shall be one hour. Although the pattern of service delivery may vary, intensive in-home services is an intensive service provided to individuals for whom there is [ a ] plan of care [ an ] ISP in effect which demonstrates the need for a minimum of three hours a week of intensive in-home service, and includes a plan for service provision of a minimum of three hours of service delivery per client/family individual/family per week in the initial phase of treatment. It is expected that the pattern of service provision may show more intensive services and more frequent contact with the client individual and family initially with a lessening or tapering off of intensity toward the latter weeks of service. Service plans must shall incorporate a an individualized discharge plan which identifies that describes transition from intensive in-home to less intensive or nonhome based services.

14. The ISP, as defined in 12VAC30-50-226, shall be updated as the individual's needs and progress changes and signed by either the parent or legal guardian and the individual. Documentation shall be provided if the individual, who is a minor child, is unable or unwilling to sign the ISP. If there is a lapse in services that is greater than 31 consecutive calendar days [ without any communications from family members/legal guardian or the individual with the service provider ], the provider shall discharge the individual. If the individual continues to need services, then a new [ assessment/admission intake/admission ] shall be documented and a new service authorization shall be required.

11. 15. The provider must shall ensure that the maximum staff-to-caseload ratio fully meets the needs of the individual.

12. Since case management services are an integral and inseparable part of this service, case management services may not be billed separately for periods of time when intensive in-home services are being provided.

16. If an individual receiving services is also receiving case management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the [ service ] provider shall contact the case manager and provide notification of the provision of services. In addition, the provider shall send monthly updates to the case manager on the individual's status. A discharge summary shall be sent to the case manager within 30 days of the service discontinuation date. [ Service providers and case managers who are using the same electronic health record for the individual shall meet requirements for delivery of the notification, monthly updates, and discharge summary upon entry of the information in the electronic health records. ]

13. 17. Emergency assistance shall be available 24 hours per day, seven days a week.

18. Providers shall comply with DMAS marketing requirements at 12VAC30-130-2000. Providers that DMAS determines violate these marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E.

19. The provider shall determine who the primary care provider is and [ , upon receiving written consent from the individual or guardian, shall ] inform him of the individual's receipt of IIH services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

B. D. Therapeutic day treatment for children and adolescents.

1. The service definition for therapeutic day treatment (TDT) for children and adolescents is contained in 12VAC30-50-130.

1. 2. Therapeutic day treatment is appropriate for children and adolescents who meet one of the following:

a. Children and adolescents who require year-round treatment in order to sustain behavior or emotional gains.

b. Children and adolescents whose behavior and emotional problems are so severe they cannot be handled in self-contained or resource emotionally disturbed (ED) classrooms without:

(1) This programming during the school day; or

(2) This programming to supplement the school day or school year.

c. Children and adolescents who would otherwise be placed on homebound instruction because of severe emotional/behavior problems that interfere with learning.

d. Children and adolescents who (i) have deficits in social skills, peer relations or dealing with authority; (ii) are hyperactive; (iii) have poor impulse control; (iv) are extremely depressed or marginally connected with reality.

e. Children in preschool enrichment and early intervention programs when the children's emotional/behavioral problems are so severe that they cannot function in these programs without additional services.

3. The service-specific provider [ assessment intake ] shall document the individual's behavior and describe how the individual meets these specific service criteria in subdivision 2 of this subsection.

4. Prior to admission to this service, a service-specific provider [ assessment intake ] shall be conducted by the LMHP as defined in 12VAC35-105-20.

5. An ISP shall be fully completed, signed, and dated by [ an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP-C, [ as defined in 12VAC35-105-20, or QMHP-E ] and by the individual or the parent/guardian within 30 days of initiation of services and shall meet all requirements of an ISP as defined in 12VAC30-50-226. Individual progress notes shall be required for each contact with the individual and shall meet all of the requirements as defined in 12VAC30-50-130.

2. 6. Such services must shall not duplicate those services provided by the school.

3. 7. Individuals qualifying for this service must shall demonstrate a clinical necessity for the service arising from a condition due to mental, behavioral or emotional illness which results in significant functional impairments in major life activities. Individuals must shall meet at least two of the following criteria on a continuing or intermittent basis:

a. Have difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of hospitalization or out-of-home placement because of conflicts with family or community.

b. Exhibit such inappropriate behavior that documented, repeated interventions by the mental health, social services, or judicial system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

4. 8. The enrolled provider of therapeutic day treatment for child and adolescents adolescent services must shall be licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services DBHDS to provide day support services. The provider shall also have a provider enrollment agreement in effect with DMAS prior to the delivery of this service that indicates that the provider offers therapeutic day treatment services for children and adolescents.

5. 9. Services must shall be provided by an LMHP [ , LMHP-supervisee, LMHP-resident, LMHP-RP, ] , a QMHP, or a QPPMH who is supervised by a QMHP or LMHP [ or ] QMHP-C [ as defined in 12VAC35-105-20, or QMHP-E ].

6. 10. The minimum staff-to-youth staff-to-individual ratio as defined by DBHDS licensing requirements shall ensure that adequate staff is available to meet the needs of the youth individual identified on the ISP.

7. 11. The program must shall operate a minimum of two hours per day and may offer flexible program hours (i.e., before or after school or during the summer). One unit of service is shall be defined as a minimum of two hours but less than three hours in a given day. Two units of service shall be defined as a minimum of three but less than five hours in a given day. Three units of service shall be defined as five or more hours of service in a given day.

8. 12. Time required for academic instruction when no treatment activity is going on cannot shall not be included in the billing unit.

9. 13. Services shall be provided following a diagnostic service-specific provider [ assessment intake ] that is authorized conducted by an LMHP [ as defined in 12VAC35-105-20, LMHP-supervisee, LMHP-resident, or LMHP-RP ]. Services must be provided in accordance with an ISP which must be fully completed within 30 days of initiation of the service. An LMHP [ , LMHP-supervisee, or LMHP-resident ] shall make and document the diagnosis. The service-specific provider [ assessment intake ] shall include the elements [ specified in subsection A of this section as defined in 12VAC30-50-130 ].

14. If an individual receiving services is also receiving case management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider shall collaborate with the case manager and provide notification of the provision of services. In addition, the provider shall send monthly updates to the case manager on the individual's status. A discharge summary shall be sent to the case manager within 30 days of the service discontinuation date. [ Service providers and case managers using the same electronic health record for the individual shall meet requirements for delivery of the notification, monthly updates, and discharge summary upon entry of this documentation into the electronic health record. ]

15. The provider shall determine who the primary care provider is and [ , upon receiving written consent from the individual or parent/legal guardian, shall ] inform him of the child's receipt of community mental health rehabilitative services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted. [ The parent/legal guardian shall be required to give written consent that this provider has permission to inform the primary care provider of the child's or adolescent's receipt of community mental health rehabilitative services. ]

16. Providers shall comply with DMAS marketing requirements as set out in 12VAC30-130-2000. Providers that DMAS determines have violated these marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E.

17. If there is a lapse in services greater than 31 consecutive calendar days, the provider shall discharge the individual. If the individual continues to need services, a new [ assessment/admission intake/admission ] documentation shall be prepared and a new service authorization shall be required.

C. E. [ Community-Based Services for Children and Adolescents Community-based services for children and adolescents ] under 21 [ years of age ] (Level A)

1. The staff ratio must be at least 1 to 6 during the day and at least 1 to 10 while asleep between 11 p.m. and 7 a.m. The program director supervising the program/group home must be, at minimum, a qualified mental health professional QMHP-C [ , or QMPH-E ] (as defined in 12VAC35-105-20) with a bachelor's degree and have at least one year of direct work with mental health clients. The program director must be employed full time.

2. At In order for Medicaid reimbursement to be approved, at least 50% of the provider's direct care staff at the group home must meet DMAS DBHDS paraprofessional staff criteria, defined in 12VAC30-50-226 12VAC35-105-20.

3. Authorization is required for Medicaid reimbursement. DMAS shall monitor the services rendered. All Community-Based Services for Children and Adolescents under 21 (Level A) must be authorized prior to reimbursement for these services. Services rendered without such authorization shall not be covered. All community-based services for children and adolescents under 21 (Level A) require authorization prior to reimbursement for these services. Reimbursement shall not be made for this service when other less intensive services may achieve stabilization.

4. Services must be provided in accordance with an [ Individual Service Plan individual service plan ] (ISP) (plan of care), which must be fully completed within 30 days of authorization for Medicaid reimbursement.

5. Prior to admission, a service-specific provider [ assessment intake ] shall be conducted according to DMAS specifications described in 12VAC30-50-130.

6. Such service-specific provider [ assessments intakes ] shall be performed by an LMHP [ as defined in 12VAC35-105-20, an LMHP-supervisee, LMHP-resident, or LMHP-RP ].

7. If an individual receiving community-based services for children and adolescents under 21 (Level A) is also receiving case management services, the provider shall collaborate with the case manager by notifying the case manager of the provision of Level A services and shall send monthly updates on the individual's progress. When the individual is discharged from Level A services, a discharge summary shall be sent to the case manager within 30 days of the service discontinuation date. [ Service providers and case managers who are using the same electronic health record for the individual shall meet requirements for the delivery of the notification, monthly updates, and discharge summary upon entry of this documentation into the electronic health record. ]

D. F. Therapeutic [ Behavioral Services for Children and Adolescents behavioral services for children and adolescents ] under 21 [ years of age ] (Level B).

1. The staff ratio must be at least 1 to 4 during the day and at least 1 to 8 while asleep between 11 p.m. and 7 a.m. The clinical director must be a licensed mental health professional. The caseload of the clinical director must not exceed 16 clients individuals including all sites for which the [ same ] clinical director is responsible. The program director must be full time and be a qualified mental health professional with a bachelor's degree and at least one year's clinical experience.

2. The program director must be full time and be a [ qualified mental health professional QMHP-C or QMHP-E ] with a bachelor's degree and at least one year's clinical experience.

2. At 3. For Medicaid reimbursement to be approved, at least 50% of the provider's direct care staff must at the group home shall meet [ DMAS DBHDS ] paraprofessional staff criteria, as defined in 12VAC30-50-226 12VAC35-105-20. The program/group home must coordinate services with other providers.

3. 4. All [ Therapeutic Behavioral Services therapeutic behavioral services ] (Level B) must shall be authorized prior to reimbursement for these services. Services rendered without such prior authorization shall not be covered.

4. 5. Services must be provided in accordance with an ISP (plan of care), which must shall be fully completed within 30 days of authorization for Medicaid reimbursement.

6. Prior to admission, a service-specific provider [ assessment intake ] shall be performed using all elements specified by DMAS in 12VAC30-50-130.

7. Such service-specific provider [ assessments intakes ] shall be performed by an LMHP [ as defined in 12VAC35-105-20, an LMHP-supervisee, LMHP-resident, or LMHP-RP ].

8. If an individual receiving therapeutic behavioral services for children and adolescents under 21 (Level B) is also receiving case management services, the therapeutic behavioral services provider must collaborate with the care coordinator/case manager by notifying him of the provision of Level B services and the Level B services provider shall send monthly updates on the individual's treatment status. When the individual is discharged from Level B services, a discharge summary shall be sent to the care coordinator/case manager within 30 days of the discontinuation date.

9. The provider shall determine who the primary care provider is and [ , upon receiving written consent from the individual or parent/legal guardian, shall ] inform him of the individual's receipt of these Level B services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted. [ If these individuals are children or adolescents, then the parent/legal guardian shall be required to give written consent that this provider has permission to inform the primary care provider of the individual's receipt of community mental health rehabilitative services. ]

E. G. Utilization review. Utilization reviews for [ Community-Based Services for Children and Adolescents community-based services for children and adolescents ] under 21 [ years of age ] (Level A) and [ Therapeutic Behavioral Services for Children and Adolescents therapeutic behavioral services for children and adolescents ] under 21 [ years of age ] (Level B) shall include determinations whether providers meet all DMAS requirements, including compliance with DMAS marketing requirements. Providers that [ violate DMAS determines have violated ] the DMAS marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E.

12VAC30-60-143. Mental health services utilization criteria; definitions.

A. This section sets out the utilization criteria and standards relative to the community mental health services set out in 12VAC30-50-226. [ This section also contains definitions for the The ] following words and terms [ which when used in this section ] shall have the following meanings unless the context indicates otherwise:

"Licensed mental health professional" or "LMHP" means the same as defined in [ 12VAC35-105-20 12VAC30-50-130.

"LMHP-resident" or "LMHP-R" means the same as defined in 12VAC30-50-130.

"LMHP-resident in psychology" or "LMHP-RP" means the same as defined in 12VAC30-50-130.

"LMHP-supvervisee in social work," "LMHP-supvervisee," or "LMHP-S" means the same as defined in 12VAC30-50-130. ]

"Qualified mental health professional-adult" or "QMHP-A" means the same as defined in [ 12VAC35-105-20 12VAC30-50-130 ].

"Qualified mental health professional-child" or "QMHP-C" means the same as defined in [ 12VAC35-105-20 12VAC30-50-130 ].

[ "Qualified mental health professional-eligible" or "QMHP-E" means the same as defined in [ 12VAC35-105-20 12VAC30-50-130. ]

A. B. Utilization reviews shall include determinations that providers meet the following requirements:

1. The provider shall meet the federal and state requirements for administrative and financial management capacity. The provider shall obtain, prior to the delivery of services, and shall maintain and update periodically as the Department of Medical Assistance Services (DMAS) or its contractor requires, a current provider enrollment agreement for each Medicaid service that the provider offers. DMAS shall not reimburse providers who do not enter into a provider enrollment agreement for a service prior to offering that service.

2. The provider shall document and maintain individual case records in accordance with state and federal requirements.

3. The provider shall ensure eligible recipients individuals have free choice of providers of mental health services and other medical care under the Individual Service Plan.

4. Providers shall comply with DMAS marketing requirements as set out in 12VAC30-130-2000. Providers that DMAS determines have violated these marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E. Providers whose contracts are terminated shall be afforded the right of appeal pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

5. If an individual receiving community mental health rehabilitative services is also receiving case management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider shall collaborate with the case manager by notifying the case manager of the provision of community mental health rehabilitative services and sending monthly updates on the individual's treatment status. A discharge summary shall be sent to the care coordinator/case manager within 30 calendar days of the discontinuation of services. [ Service providers and case managers who are using the same electronic health record for the individual shall meet requirements for delivery of the notification, monthly updates, and discharge summary upon entry of this documentation into the electronic health record. ]

6. The provider shall determine who the primary care provider is and inform him of the individual's receipt of community mental health rehabilitative services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

7. The provider shall include the individual and the family/caregiver, as may be appropriate, in the development of the ISP. To the extent that the individual's condition requires assistance for participation, assistance shall be provided. The ISP shall be updated annually or as the needs and progress of the individual changes. An ISP that is not updated either annually or as the treatment interventions based on the needs and progress of the individual [ changes change ] shall be considered outdated. An ISP that does not include all required elements specified in 12VAC30-50-226 shall be considered incomplete. All ISPs shall be completed, signed, and contemporaneously dated by the [ LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A [ or, ] QMHP-C [ as defined in 12VAC35-105-20 ], [ or QMHP-E ] preparing the ISP within a maximum of 30 days of the date of the completed [ assessment intake ] unless otherwise specified. The [ child's or adolescent's ] ISP shall also be signed by the parent/legal guardian and [ the adult ] individual [ shall sign his own ]. [ Documentation shall be provided if the individual, who is a minor child, is unable or unwilling to sign the ISP. If the individual, whether a child, adolescent, or an adult, is unwilling to sign the ISP, then the service provider shall document the clinical or other reasons why the individual was not able or willing to sign the ISP. Signatures shall be obtained unless there is a clinical reason that renders the individual unable to sign the ISP. ]

[ C. Direct clinical services provided on a part-time basis will be reviewed by DMAS or its contractor based on the number of hours provided and counted based upon how many full-time (40 hours) weeks of service were provided. ]

B. [ D. C. ] Day treatment/partial hospitalization services shall be provided following a diagnostic service-specific provider [ assessment intake ] and be authorized by the physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, or licensed clinical nurse specialist-psychiatric LMHP [ as defined in 12VAC35-105-20, LMHP-supervisee, LMHP-resident, or LMHP-RP ]. An ISP, as defined in 12VAC30-50-226, shall be fully completed, signed, and dated by either the LMHP [ or, LMHP-supervisee, LMHP-resident, LMHP-RP, ] the QMHP QMHP-A, [ as defined QMHP-E, or QMHP-C and reviewed/approved by the LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP ] at 12VAC30-50-226 [ in 12VAC35-105-20, ] within 30 days of service initiation.

1. The enrolled provider of day treatment/partial hospitalization shall be licensed by DMHMRSAS DBHDS as providers of day treatment services.

2. Services shall only be provided by an LMHP, [ LMHP-supervisee, LMHP-resident, or LMHP-RP, ] a QMHP QMHP-A, QMHP-C, [ QMHP-E, ] or a qualified paraprofessional under the supervision of a QMHP QMHP-A, QMHP-C, [ QMHP-E, ] or an LMHP [ as defined at 12VAC30-50-226 in 12VAC35-105-20, LMHP-supervisee, LMHP-resident, or LMHP-RP ].

3. The program shall operate a minimum of two continuous hours in a 24-hour period.

4. Individuals shall be discharged from this service when other less intensive services may achieve or maintain psychiatric stabilization.

C. [ E. D. ] Psychosocial rehabilitation services shall be provided to those individuals who have experienced long-term or repeated psychiatric hospitalization, or who experience difficulty in activities of daily living and interpersonal skills, or whose support system is limited or nonexistent, or who are unable to function in the community without intensive intervention or when long-term services are needed to maintain the individual in the community.

1. Psychosocial rehabilitation services shall be provided following an a service-specific provider [ assessment which intake that ] clearly documents the need for services. The This [ assessment intake that ] shall be completed by either an LMHP, or a QMHP, and [ QMHP-A, or QMHP-C. If the service-specific provider assessment is done by a QMHP-A or a QMHP-C, it shall be approved by a an LMHP within 30 calendar days of admission to services LMHP-supervisee, LMHP-resident, or LMHP-RP ]. An ISP shall be completed by either the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP, ] or the QMHP QMHP-A [ , QMHP-E, or QMHP-C and be reviewed/approved by either an LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP ] within 30 calendar days of service initiation. Every At least every three months, the LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] or the QMHP QMHP-A, [ or the ] QMHP-C [ , or QMHP-E ] must review, modify as appropriate, and update the ISP.

2. Psychosocial rehabilitation services of any individual that continue more than six months must shall be reviewed by an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] who must shall document the continued need for the service. The ISP shall be rewritten at least annually.

3. The enrolled provider of psychosocial rehabilitation services shall be licensed by DMHMRSAS DBHDS as a provider of psychosocial rehabilitation or clubhouse services.

4. Psychosocial rehabilitation services may be provided by [ either ] an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP QMHP-A, [ or, ] QMHP-C, [ QMHP-E, ] or a qualified paraprofessional under the supervision of [ either ] a QMHP QMHP-A, a QMHP-C, [ a QMHP-E, ] or an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ].

5. The program shall operate a minimum of two continuous hours in a 24-hour period.

6. Time allocated for field trips may be used to calculate time and units if the goal is to provide training in an integrated setting, and to increase the client's individual's understanding or ability to access community resources.

D. Admission to crisis [ F. E. ] Crisis intervention services is shall be indicated following a marked reduction in the individual's psychiatric, adaptive or behavioral functioning or an extreme increase in personal distress.

1. The crisis intervention services provider shall be licensed as a provider of [ outpatient services emergency services ] by DMHMRSAS DBHDS [ pursuant to 12VAC35-105-30 ].

2. Client-related activities provided in association with a face-to-face contact are reimbursable.

3. An [ Individual Service Plan individual service plan ] (ISP) shall not be required for newly admitted individuals to receive this service. Inclusion of crisis intervention as a service on the ISP shall not be required for the service to be provided on an emergency basis.

4. For individuals receiving scheduled, short-term counseling as part of the crisis intervention service, an ISP must shall be developed or revised by the fourth face-to-face contact to reflect the short-term counseling goals by the fourth face-to-face contact.

5. Reimbursement shall be provided for short-term crisis counseling contacts occurring within a 30-day period from the time of the first face-to-face crisis contact. Other than the annual service limits, there are no restrictions (regarding number of contacts or a given time period to be covered) for reimbursement for unscheduled crisis contacts.

6. Crisis intervention services may be provided to eligible individuals outside of the clinic and billed, provided the provision of out-of-clinic services is clinically/programmatically appropriate. Travel by staff to provide out-of-clinic services is shall not be reimbursable. Crisis intervention may involve contacts with the family or significant others. If other clinic services are billed at the same time as crisis intervention, documentation must clearly support the separation of the services with distinct treatment goals.

7. An LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] a QMHP [ QMHP-A, QMHP-C, ] or a certified prescreener [ , as defined in 12VAC30-50-226, ] must shall conduct a face-to-face service-specific provider [ assessment intake ]. [ If the QMHP QMHP-A or QMHP-C performs the service-specific provider assessment, it must be reviewed and approved by an LMHP or a certified prescreener within 72 hours of the face-to-face service-specific provider assessment. The service-specific provider assessment shall document the need for and the anticipated duration of the crisis service. ] Crisis intervention will be provided by an LMHP, a certified prescreener, or a QMHP.

8. Crisis intervention shall be provided by either an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, or ] a certified prescreener [ , a QMHP-A, or a QMHP-C ].

8. [ 9. Crisis intervention shall not require an ISP. ]

[ 9. 10. ] For an admission to a freestanding inpatient psychiatric facility for individuals younger than age 21, federal regulations (42 CFR 441.152) require certification of the admission by an independent team. The independent team must include mental health professionals, including a physician. Preadmission These preadmission screenings cannot be billed unless the requirement for an independent team certification, with a physician's signature, is met.

[ 10. 11. ] Services must shall be documented through daily notes and a daily log of time spent in the delivery of services.

E. [ G. F. ] Case management services (pursuant to 12VAC30-50-226) pursuant to 12VAC30-50-420 (seriously mentally ill adults and emotionally disturbed children) or 12VAC30-50-430 (youth at risk of serious emotional disturbance).

1. Reimbursement shall be provided only for "active" case management clients, as defined. An active client for case management shall mean an individual for whom there is a plan of care an ISP in effect which that requires regular direct or client-related contacts or activity or communication with the client individuals or families, significant others, service providers, and others including a minimum of one face-to-face client individual contact within a 90-day period. Billing can be submitted only for months in which direct or client-related contacts, activity, or communications occur.

2. The Medicaid eligible individual shall meet the DMHMRSAS DBHDS criteria of serious mental illness, serious emotional disturbance in children and adolescents, or youth at risk of serious emotional disturbance.

3. There shall be no maximum service limits for case management services. Case management shall not be billed for persons in institutions for mental disease.

4. The ISP must shall document the need for case management and be fully completed within 30 calendar days of initiation of the service, and the. The case manager shall review the ISP at least every three months. The review will be due by the last day of the third month following the month in which the last review was completed. A grace period will be granted up to the last day of the fourth month following the month of the last review. When the review was completed in a grace period, the next subsequent review shall be scheduled three months from the month the review was due and not the date of actual review.

5. The ISP shall also be updated at least annually.

6. The provider of case management services shall be licensed by DMHMRSAS DBHDS as a provider of case management services.

F. [ H. G. ] Intensive community treatment (ICT) [ for adults ].

1. An A service-specific provider [ assessment which intake that ] documents eligibility and the need for this service shall be completed by either the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] or the QMHP [ , QMHP-A, or the QMHP-C ] prior to the initiation of services. This [ assessment intake ] must shall be maintained in the individual's records. Proper completion of the service-specific provider [ assessment intake ] shall comport with the requirements of 12VAC30-50-130.

2. An individual service plan, based on the needs as determined by the service-specific provider [ assessment intake ], must be initiated at the time of admission and must be fully developed by either the LMHP [ , LMHP-supervisee, LMHP-resident, LMHP-RP ] or the QMHP, QMHP-A, [ or ] QMHP-C [ , or QMHP-E ] and approved by the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] within 30 days of the initiation of services.

3. ICT may be billed if the client individual is brought to the facility by ICT staff to see the psychiatrist. Documentation must be present in the individual's record to support this intervention.

4. The enrolled ICT provider shall be licensed by the DMHMRSAS DBHDS as a provider of intensive community services or as a program of assertive community treatment, and must provide and make available emergency services 24-hours per day, seven days per week, 365 days per year, either directly or on call.

5. ICT services must be documented through a daily log of time spent in the delivery of services and a description of the activities/services provided. There must also be at least a weekly note documenting progress or lack of progress toward goals and objectives as outlined on the ISP.

G. [ I. H. ] Crisis stabilization services.

1. This service must shall be authorized following a face-to-face service-specific provider [ assessment intake ] by either an LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, or ] a certified prescreener, [ as defined in 12VAC30-50-226 ] or [ a ] QMHP [ QMHP-A, or QMHP-C ]. [ This assessment must be reviewed and approved by a licensed mental health professional within 72 hours of the assessment. ]

2. The service-specific provider [ assessment intake ] must document the need for crisis stabilization services [ and anticipated duration of need ].

3. The Individual Service Plan (ISP) must be developed or revised within 10 business days of the approved assessment or reassessment [ 24 hours three calendar days ] of admission to this service. The LMHP, [ LMHP-supervisee, LMHP-resident, LMHP-RP, ] certified prescreener, QHMP-A, [ or ] QMHP QHMP-C [ , or QHMP-E ] shall develop the ISP.

4. Room and board, custodial care, and general supervision are not components of this service.

5. Clinic option services are not billable at the same time crisis stabilization services are provided with the exception of clinic visits for medication management. Medication management visits may be billed at the same time that crisis stabilization services are provided but documentation must clearly support the separation of the services with distinct treatment goals.

6. Individuals qualifying for this service must demonstrate a clinical necessity for the service arising from a condition due to an acute crisis of a psychiatric nature which puts the individual at risk of psychiatric hospitalization.

7. Providers of [ residential ] crisis stabilization shall be licensed by DMHMRSAS DBHDS as providers of [ outpatient services mental health residential crisis stabilization ]. [ Providers of community-based crisis stabilization shall be licensed by DBHDS as providers of mental health nonresidential crisis stabilization. ]

H. [ J. I. ] Mental health support services. Refer to 12VAC30-50-226 for criteria, service authorization requirements, and service-specific provider [ assessments intakes ] that shall apply for individuals in order to qualify for this service.

1. At Prior to admission, an appropriate face-to-face service-specific provider [ assessment intake ] must be made completed, signed, and dated, and documented by the LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] or the QMHP indicating that service needs can best be met through mental health support services. The assessment must be performed by the LMHP or the QMHP and approved by the LMHP within 30 days of the date of admission. The LMHP or the QMHP will complete the ISP within 30 days of the admission to this service.

2. The ISP must , as defined in 12VAC30-50-226, shall be completed, signed, and dated by [ either ] a [ LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, ] QMHP-A [ or, ] QMHP-C [ , or QMHP-E ] within 30 calendar days of service initiation, and shall indicate the specific supports and services to be provided and the goals and objectives to be accomplished. The LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] or QMHP will QMHP-A [ , QMHP-C, or QMHP-E ] shall supervise the care if delivered by the qualified paraprofessional. [ If the care is supervised by the QMHP-A, QMHP-E, or QMHP-C, then the LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP shall review and approve the supervision of the care delivered by the qualified paraprofessional. ]

2. 3. Every three months, the LMHP [ , LMHP-supervisee, LMHP-resident, LMHP-RP, ] or the QMHP must QMHP-A, [ or ] QMHP-C [ , or QMHP-E ] shall review, modify as appropriate, and update the ISP showing a new signature and date of each revision. [ If the ISP review is conducted by the QMHP-A, QMHP-C, or QMHP-E, then it shall be reviewed/approved/signed/dated by the LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP. ] The ISP must shall be rewritten, signed, and dated by either a QMHP-A, QMHP-C, [ or QMHP-E, ] an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] at least annually.

3. 4. Only direct face-to-face contacts and services to individuals shall be reimbursable.

4. 5. Any services provided to the client individual that are strictly academic in nature shall not be billable. These include, but are not limited to, such basic educational programs as instruction in reading, science, mathematics, or the individual's work towards obtaining a GED.

5. 6. Any services provided to clients individuals that are strictly vocational in nature shall not be billable. However, support activities and activities directly related to assisting a client an individual to cope with a mental illness to the degree necessary to develop appropriate behaviors for operating in an overall work environment shall be billable.

6. 7. Room and board, custodial care, and general supervision are not components of this service.

7. 8. This service is not billable for individuals who reside in facilities where staff are expected to provide such services under facility licensure requirements.

8. 9. Provider qualifications. The enrolled provider of mental health support services must shall be licensed by DMHMRSAS DBHDS as a provider of supportive in-home services, intensive community treatment, or as a program of assertive community treatment. Individuals employed or contracted by the provider to provide mental health support services must shall have training in the characteristics of mental illness and appropriate interventions, training strategies, and support methods for persons with mental illness and functional limitations.

9. 10. Mental health support services, which continue for six consecutive months, must shall be reviewed and renewed at the end of the six-month period of authorization by an LMHP [ , LMHP-supervisee, LMHP-resident, or LMHP-RP ] who must shall document the continued need for the services.

10. 11. Mental health support services must shall be documented through a daily log of time involved in the delivery of services and a minimum of a weekly summary note of services provided.

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

Virginia Medicaid Rehabilitation Manual

Virginia Medicaid Hospice Manual

Virginia Medicaid School Division Manual

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.

Medicaid Special Memo, Subject: New Service Authorization Requirement for an Independent Clinical Assessment for Medicaid and FAMIS Children's Community Mental Health Rehabilitative Services, dated June 16, 2011, Department of Medical Assistance Services

Medicaid Special Memo, Subject: Changes to Children Community Mental Health Rehabilitative Services - Children's Services, July 1, 2010 & September 1, 2010, dated July 23, 2010, Department of Medical Assistance Services

Medicaid Special Memo, Subject: Changes to Community Mental Health Rehabilitative Services - Adult-Oriented Services, July 1, 2010 & September 1, 2010, dated July 23, 2010, Department of Medical Assistance Services

Part XVII
Marketing of Provider Services

12VAC30-130-2000. Marketing requirements and restrictions.

A. Purpose. The purpose of these rules shall be to define how providers shall be permitted to market their services to potential Medicaid or FAMIS beneficiaries and individuals who may or may not be currently enrolled with the particular provider. This shall apply to providers of community mental health services (12VAC30-50-226) and Early and Periodic Screening, Diagnosis, and Treatment Program (EPSDT) community mental health services (12VAC30-50-130) with the exception of Part C services.

B. Definitions.

"Beneficiaries" means individuals of any age and their families who are using or who may use community mental health rehabilitative services.

"DMAS" means the Department of Medical Assistance Services.

"FAMIS" means Family Access to Medical Insurance Security.

[ "Marketing materials" means any material created to promote services through any media including, but not limited to, written materials, television, radio, websites, and social media. ]

"Provider" means an individual or organizational entity that is appropriately licensed as required and enrolled as a DMAS provider of community mental health and substance abuse services.

C. Requirements.

1. Marketing and promotional activities (including provider promotional activities) shall comply with all [ relevant applicable ] federal and state laws.

2. Providers shall provide clearly written materials that completely and accurately describe the Medicaid or FAMIS behavioral health service or services offered, the beneficiary eligibility requirements to receive the service or services, applicable fees and other charges, and all other information required for beneficiaries and their families to make fully informed decisions about enrollment into the service or services offered by the provider that is marketing its services.

3. Providers shall distribute their marketing materials only in the service locations approved within the license issued by the Licensing Division of the Department of Behavioral Health and Developmental Services.

4. Providers shall receive DMAS approval of all marketing materials and all changes to prior-approved marketing materials prior to their use or dissemination. Providers shall receive the DMAS marketing plan approval before engaging in any marketing activity.

a. Within 30 calendar days of receipt of providers' submissions, DMAS shall review submitted individual marketing materials and services and either approve them or deny their use or direct that specified modifications be made.

b. Providers failing to implement DMAS' required changes, or those which use [ unapproved or ] disapproved materials, shall be subject to termination of the provider agreement pursuant to 12VAC30-130-2000 E.

D. Limits and prohibitions.

1. Providers shall not offer cash or [ other ] noncash incentives to their enrolled or prospective members for the purposes of marketing, retaining beneficiaries within the providers' services, or rewarding behavior changes in compliance with goals and objectives stated in beneficiaries' individual service plans.

2. While engaging in marketing activities, providers shall not:

a. Engage in any marketing activities that could misrepresent the service or DMAS;

b. Assert or state that the beneficiary must enroll with the provider in order to prevent the loss of Medicaid or FAMIS benefits;

c. Conduct door-to-door, telephone, unsolicited school presentations, or other cold call marketing directed at potential or current beneficiaries;

d. Conduct any marketing activities or use marketing materials that are not specifically approved by DMAS;

e. Make home visits for direct or indirect marketing or enrollment activities except when specifically requested by the beneficiary or family;

f. Collect or use Medicaid or FAMIS confidential information or Medicaid or FAMIS protected health information (PHI), as that term is defined in Health Insurance Portability and Accountability Act of 1996 (HIPPA), that may be either provided by another entity or obtained by marketing provider, to identify and market services to prospective beneficiaries;

g. Violate the confidential information or confidentiality of PHI by sharing or selling or sharing lists of information about beneficiaries for any purposes other than the performance of the provider's obligations relative to its DMAS provider agreement;

h. Contact, after the effective date of disenrollment, beneficiaries who choose to disenroll from the provider except as may be specifically required by DMAS;

i. Conduct service assessment or enrollment activities at any marketing or community event; or

j. Assert or state (either orally or in writing) that the provider is endorsed either by the Centers for Medicare and Medicaid Services, DMAS, or any other federal or state governmental entities.

E. Termination. Providers [ who that (i) ] conduct any marketing activity, that is not specifically approved by DMAS [ or who, (ii) ] violate any of the [ above ] prohibitions [ in this section, ] or [ (iii) fail to meet ] requirements shall be subject to termination of their provider agreements for the services affected by the marketing plan/activity. [ Providers whose contracts are terminated shall be afforded the right of appeal pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). ]

Part XVIII
Behavioral Health Services

12VAC30-130-3000. Behavioral health services.

A. Behavioral health services that shall be covered only for individuals from birth through 21 years of age are set out in 12VAC30-50-130 B 5 and include: (i) intensive in-home services (IIH), (ii) therapeutic day treatment (TDT), (iii) community based services for children and adolescents (Level A), and (iv) therapeutic behavioral services (Level B).

B. Behavioral health services that shall be covered for individuals regardless of age are set out in 12VAC30-50-226 and include: (i) day treatment/partial hospitalization, (ii) psychosocial rehabilitation, (iii) crisis intervention, (iv) case management as set out in 12VAC30-50-420 and 12VAC30-50-430, (v) intensive community treatment (ICT), (vi) crisis stabilization services, and (vii) mental health support services (MHSS).

12VAC30-130-3010. Definitions.

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

"Behavioral health authority" or "BHA" means the local agency that administers services set out in § 37.2-601 of the Code of Virginia.

[ "Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS. ]

"Community services board" or "CSB" means the local agency that administers services set out in § 37.2-500 of the Code of Virginia.

[ "Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS. ]

"DMAS" means the Department of Medical Assistance Services.

"Independent assessor" means a professional who performs the independent clinical assessment who may be employed by either the behavioral health services administrator, community services boards/behavioral health authorities (CSBs/BHAs) or their subcontractors.

"Independent clinical assessment" or "ICA" means the assessment that is performed under contract with DMAS either by the behavioral health services administrator or the CSB/BHA, or its subcontractor, prior to the initiation of (i) intensive in-home (IIH) services or therapeutic day treatment (TDT) as set out in 12VAC30-50-130 and (ii) mental health support services (MHSS) for children and adolescents (MHSS) as set out in 12VAC30-50-226.

"VICAP" means the form entitled Virginia Independent Clinical Assessment Program that is required to record an individual's independent clinical assessment information.

12VAC30-130-3020. Independent clinical assessment requirements [ ; behavioral health level of care determinations and service eligibility ].

A. The independent clinical assessment (ICA), as set forth in the Virginia Independent Assessment Program (VICAP-001) form, shall contain the Medicaid individual-specific elements of information and data that shall be required for an individual younger than the age of 21 to be approved for intensive in-home (IIH) services, therapeutic day treatment (TDT), or mental health support services (MHSS) or any combination thereof. [ Eligibility requirements for IIH are in 12VAC30-50-130 B 5 b. Eligibility requirements for TDT are in 12VAC30-50-130 B 5 c. Eligibility requirements for MHSS are in 12VAC30-50-226 B 8. ]

1. The required elements in the ICA shall be specified in the VICAP form with either the BHSA or CSBs/BHAs and DMAS.

2. Service recommendations set out in the ICA shall not be subject to appeal.

B. Independent clinical assessment requirements.

1. Effective July 18, 2011, an ICA shall be required as a part of the service authorization process for Medicaid and Family Access to Medical Insurance Security (FAMIS) intensive in-home (IIH) services, therapeutic day treatment (TDT), or mental health support services (MHSS) for individuals up to the age of 21. This ICA shall be performed prior to the request for service authorization and initiation of treatment for individuals who are not currently receiving or authorized for services. The ICA shall be completed prior to the service provider conducting an [ assessment intake ] or providing treatment.

a. Each individual shall have at least one ICA prior to the initiation of either IIH or TDT, or MHSS for individuals up to the age of 21.

b. For individuals who are already receiving IIH services or TDT, or MHSS, as of July 18, 2011, the requirement for a completed ICA shall be effective for service reauthorizations for dates of services on and after September 1, 2011.

c. Individuals who are being discharged from residential treatment (DMAS service Levels A, B, or C) or inpatient psychiatric hospitalization do not need an ICA prior to receiving community IIH services or TDT, or MHSS. They shall be required, however, to have an ICA as part of the first subsequent service reauthorization for IIH services, TDT, MHSS, or any combination thereof.

2. The ICA shall be completed and submitted to DMAS or its service authorization contractor by the independent assessor prior to the service provider submitting the service authorization or reauthorization request to the DMAS service authorization contractor. Failure to meet these requirements shall result in the provider's service authorization or reauthorization request being returned to the provider.

3. A copy of the ICA shall be retained in the service provider's individual's file.

4. If a service provider receives a request from parents or legal guardians to provide IIH services, TDT, or MHSS for individuals who are younger than 21 years of age, the service provider shall refer the parent or legal guardian to the BHSA or the local CSB/BHA to obtain the ICA prior to providing services.

a. In order to provide services, the service provider shall be required to conduct a service-specific provider [ assessment intake ] as defined in 12VAC30-50-130.

b. If the selected service provider concurs that the child meets criteria for the service recommended by the independent assessor, the selected service provider shall submit a service authorization request to DMAS service authorization contractor. The service-specific provider's [ assessment intake ] for IIH services, TDT, or MHSS shall not occur prior to the completion of the ICA by the BHSA or CSB/BHA, or its subcontractor.

c. If within 30 days after the ICA a service provider identifies the need for services that were not recommended by the ICA, the service provider shall contact the independent assessor and request a modification. The request for a modification shall be based on a significant change in the individual's life that occurred after the ICA was conducted. Examples of a significant change may include, but shall not be limited to, hospitalization; school suspension or expulsion; death of a significant other; or hospitalization or incarceration of a parent or legal guardian.

d. If the independent assessment is greater than 30 days old, a new ICA must be obtained prior to the initiation of IIH services, TDT, or MHSS for individuals younger than 21 years of age.

e. If the parent or legal guardian disagrees with the ICA recommendation, [ the parent or legal guardian may appeal the recommendation in accordance with Part I (12VAC30-110-10 et seq.) In the alternative, ] the parent or legal guardian may request that a service provider perform his own evaluation. If after conducting a service-specific provider [ assessment intake ] the service provider identifies additional documentation previously not submitted for the ICA that demonstrates the service is medically necessary and clinically indicated, the service provider may submit the supplemental information with a service authorization request to the DMAS service authorization contractor. The DMAS service authorization contractor will review the service authorization submission and the ICA and make a determination. If the determination results in a service denial, the individual, parent or legal guardian, and service provider will be notified of the decision and [ the appeals process their appeal rights pursuant to Part I (12VAC30-110-10 et seq.) ].

5. If the individual is in immediate need of treatment, the independent clinical assessor shall refer the individual to the appropriate enrolled Medicaid emergency services providers in accordance with 12VAC30-50-226 and shall also alert the individual's managed care organization.

C. Requirements for behavioral health services administrator and community services boards/behavioral health authorities.

1. When the BHSA, CSB, or BHA has been contacted by the parent or legal guardian, the ICA appointment shall be offered within five business days of a request for IIH services and within 10 business days for a request for TDT or MHSS, or both. The appointment may be scheduled beyond the respective time frame at the documented request of the parent or legal guardian.

2. The independent assessor shall conduct the ICA with the individual and the parent or legal guardian using the VICAP-001 form and make a recommendation for the most appropriate medically necessary services, if indicated. Referring or treating providers shall not be present during the assessment but may submit supporting clinical documentation to the assessor.

3. The ICA shall be effective for a 30-day period.

4. The independent assessor shall enter the findings of the ICA into the DMAS service authorization contractor's web portal within one business day of conducting the assessment. The independent clinical assessment form (VICAP-001) shall be completed by the independent assessor within three business days of completing the ICA.

D. The individual or his parent or legal guardian shall have the right to freedom of choice of service providers.

12VAC30-130-3030. Application to services.

A. Intensive in-home (IIH) services.

1. Prior to the provision of IIH services, an independent clinical assessment shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is either employed by or contracted with a behavioral health services administrator (BHSA), community services board (CSB), behavioral health authority (BHA), or a subcontractor to the BHSA, CSB, or BHA in accordance with DMAS approval.

2. IIH services that are rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

B. Therapeutic day treatment (TDT) [ services ].

1. Prior to the provision of TDT services, an independent clinical assessment shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is employed by or contracted with a BHSA, CSB, BHA, or the subcontractor of the BHSA, CSB, or BHA in accordance with DMAS approval.

2. TDT services that are rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

C. Mental health support services (MHSS).

1. Prior to the provision of MHSS, an independent clinical assessment, as defined in 12VAC30-130-3010, shall be conducted by a person who meets the licensed mental health professional definition found at 12VAC35-105-20 and who is employed by or contracted with a BHSA, CSB or BHA, or a subcontractor of a BHSA, CSB, or BHA in accordance with DMAS approval.

2. MHSS rendered in the absence of the required prior independent clinical assessment shall not be reimbursed.

[ D. Other Medicaid-covered community mental health services. DMAS may apply the independent clinical assessment requirement to any of the other Medicaid-covered community mental health services set out in 12VAC30-50-130 and 12VAC30-50-226 with appropriate and timely notice to providers. In such situations, DMAS shall not deny coverage to providers' claims for these affected services absent at least a 30-day notice of this change. ]

FORMS (12VAC30-130)

Forms accompanying Part II of this chapter:

Virginia Uniform Assessment Instrument.

Forms accompanying Part III of this chapter:

MI/MR Supplement Level I (form and instructions).

MI/MR Supplement Level II.

Forms accompanying Part VII of this chapter:

Request for Hospice Benefits DMAS-420, Revised 5/91.

Forms accompanying Part VIII of this chapter:

Inventory for Client and Agency Planning (ICAP) Response Booklet, D9200/D9210, 1986.

Forms accompanying Part IX of this chapter:

Patient Information form.

Instructions for Completion DMAS-122 form.

Forms accompanying Part XII of this chapter:

Health Insurance Premium Payment (HIPP) Program Insurance Information Request Form.

Health Insurance Premium Payment (HIPP) Program Medical History Form (HIPP Form-7, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Employers Insurance Verification Form (HIPP Form-2, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Employer Agreement (HIPP Form-3, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Determination (HIPP Form-4, Rev. 11/92).

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Approval.

Health Insurance Premium Payment (HIPP) Program Notice of HIPP Status (HIPP Form-6, Rev. 11/92).

Inventory for Client and Agency Planning (ICAP) Response Booklet, D9200/D9210, 1986.

Forms accompanying Part XIV of this chapter:

Residential Psychiatric Treatment for Children and Adolescents, FH/REV (eff. 10/20/99).

Forms accompanying Part XV of this chapter:

Treatment Foster Care Case Management Agreement, TFC CM Provider Agreement DMAS-345, FH/REV (eff. 10/20/99).

Forms accompanying Part XVIII of this chapter:

Virginia Independent Clinical Assessment Program (VICAP) (eff. 6/11).