Title of Regulation: 6VAC35-170. Regulation Governing Minimum Standards for Juvenile Information Requests from and Research Involving Human Subjects within the Department of Juvenile Justice (amending 6VAC35-170-10, 6VAC35-170-20, 6VAC35-170-50, 6VAC35-170-60, 6VAC35-170-65, 6VAC35-170-70 through 6VAC35-170-110, 6VAC35-170-130 through 6VAC35-170-200, 6VAC35-170-220; adding 6VAC35-170-55, 6VAC35-170-67, 6VAC35-170-69, 6VAC35-170-230; repealing 6VAC35-170-62).

Statutory Authority: §§ 66-10 and 66-10.1 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 31, 2021.

Effective Date: April 15, 2021.

Agency Contact: Kristen Peterson, Regulatory Coordinator, Department of Juvenile Justice, P.O. Box 1110, Richmond, VA 23218-1110, telephone (804) 588-3902, FAX (804) 371-6497, or email kristen.peterson@djj.virginia.gov.

Basis: The Board of Juvenile Justice is entrusted with general, discretionary authority to promulgate regulations by § 66-10 of the Code of Virginia, which authorizes the board to promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth. Section 66-10.1 of the Code of Virginia imposes upon the board the duty to promulgate regulations for human research conducted or authorized by the department in accordance with Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 of the Code of Virginia.

Purpose: During the last periodic review and amendment of this chapter, which took effect on December 1, 2016, the board revised the regulation to address how external data requests and research proposals within the Commonwealth's juvenile justice system would be coordinated, reviewed, and approved or denied. Rather than providing clarity and enhancing compliance, some of these changes generated additional confusion among the regulated community or created an unsustainable process for department staff and researchers. The proposed changes are intended to clarify the processes applicable for individuals or organizations seeking to conduct research on or requesting data regarding youth under the authority of the department or a department-regulated facility. These amendments provide the regulated community with needed guidance regarding the requirements for submitting data requests and research proposals and the process for handling and approving or denying these requests. New provisions that further protect sensitive data regarding these youth and that allow for more severe consequences for researchers who fail to comply with approved proposals or laws or regulations are needed to ensure the protection of youth under the care of the Department of Juvenile Justice (DJJ) or a DJJ-regulated facility or program and will be essential to protect their safety and welfare.

In addition, the department's participation in the Virginia Longitudinal Data System (VLDS) has generated inquiries among staff and researchers as to whether the existing regulatory requirements apply when external data requests for DJJ-maintained data are submitted through the VLDS. VLDS is a data system that seeks to create usable information for policy and generate cross-agency research by providing de-identified case-specific data from various participating agencies to qualified researchers. Researchers submit data requests through the VLDS portal and work with participating agencies to access whatever data the participating agency elects to make available to the researcher on a case-by-case basis. As the number of requests submitted through VLDS increase, DJJ and researchers should have clear guidance regarding the rules and expectations for submitting such requests.

Rationale for Use of Fast-Track Rulemaking Process: The department does not expect the changes to generate controversy. The amendments seek to simplify the process for external researchers to obtain requested data, protect information deemed sensitive, create a separate process for data requests submitted through the Virginia Longitudinal Data System, and provide additional clarity and guidance to the regulated community.

Substance: The proposed language clarifies the scope of the regulatory provisions regarding human research and specifies that individuals under the care, custody, or supervision of a facility or program regulated by the department or the Board of Juvenile Justice, as well as under the care or supervision of the department, may constitute a human subject for purposes of the regulation. A conforming change is made in the definition of organizational unit head to demonstrate that the head of facilities or programs regulated by the department also may endorse human research conducted on residents or youth under their supervision or care.

The amendments:

Add the Confidentiality Form that must be submitted to the department for external case-specific data requests, remove a few of the identifiers currently required to be removed from case-specific data before the department or department-regulated facility or program provides this information to researchers, and place restrictions on the director's existing authority to allow the dissemination of data with some of these identifiers.

Exempt external-case specific data requests submitted through the VLDS from the requirements applicable to other such data requests and establishes new rules for these requests.

Allow for an expedited review conducted by the chair of the Human Research Review Committee when minor amendments are made to previously approved data requests.

Add two exceptions to the categories of research exempt from the requirements governing human research to conform to federal regulatory provisions contained in 45 CFR 46.101(b).

Remove provisions directing the researcher, as part of the required proposal mandated for external research, to include the endorsement of an academic advisor for student research and the appropriate juvenile and domestic relations judge for records involving juveniles at state and local court service units.

Insert an additional potential consequence for researchers who fail to comply with the approved proposal or who violate state statutes or regulations. In addition to restricting or terminating further research and prohibiting the researcher from presenting or publishing the research results, as authorized under the existing regulation, the proposal allows the department to bar the researcher from conducting studies in the future.

Require an overview of the annual report currently mandated in the regulation be completed and posted on the department's website unless the information is exempt from disclosure under the Freedom of Information Act.

Remove provisions requiring the regulant to comply with various mandates in accordance with department procedures. These provisions violate the Virginia Code Commission's 2016 regulation (1VAC7-10-140) prohibiting state agencies from incorporating into their regulations documents established by that agency. To alert regulants to department-developed procedures pertaining to data requests and research proposals, the amendments add a new section that allows the department to establish written procedures to comply with the regulatory requirements contained in this chapter and that requires the department to place such procedures on its website.

Make minor changes intended to promote clarity including, for example, establishing a new term (internal committee), to distinguish between the human research review committee and the committee that oversees de-identified case specific data.

Issues: Advantages of the action include (i) promoting uniformity for department-regulated facilities and programs seeking to respond to external data requests and research proposals for youth under such facilities' care; (ii) protecting sensitive data and ensure that protected records and information concerning court-involved youth remain confidential; (iii) ensuring that the department's regulations more closely reflect federal and state statutes and regulations; and (iv) removing several needless, impractical, and burdensome requirements that tend to delay or hamper research efforts. These changes may help to advance research that ultimately could reduce recidivism and otherwise benefit the public and court-involved youth in the Commonwealth. A disadvantage to the public is that allowing the department to bar the researcher from conducting studies in the future, however, could quell such research efforts, which ultimately may harm the public.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. External researchers seeking data on incarcerated minors under the supervision or custody of the Department of Juvenile Justice (DJJ) must adhere to the application and review process established in 6 VAC 35-170. The Board of Juvenile Justice (Board) proposes to amend this regulation to remove provisions that are no longer valid, address data requests submitted through the Virginia Longitudinal Data System (VLDS), and impose additional data security requirements. The Board also seeks to make a number of amendments to simplify the language and clarify existing requirements to reduce confusion amongst regulants.

Background. The Board proposes to make several changes to this regulation at the recommendation of DJJ staff; in particular, the coordinator of external research maintained a log of frequently asked questions and issues raised by researchers who sought access to DJJ data. The most substantive changes are summarized as follows:

1. In the interest of simplicity, the Board wishes to shorten the title of the regulation to Regulation Governing Juvenile Data Requests and Research Involving Human Subjects;

2. The Board seeks to amend two existing definitions to clarify existing policy. First, the definition of "human subject" would be amended to also include an individual who is "under the care, custody or supervision of a facility or program regulated by [DJJ or the Board]," as well as an individual who is "employed in or provides contractual services to a juvenile correctional center or other facility or program regulated by [DJJ or the Board] and who is or who is proposed to be a subject of human research." That is, any research that directly involves DJJ staff or contractors and any youth under their authority at any facility either directly run by or contracted by DJJ would be considered "human research."

The Board also seeks to amend the definition of "legally authorized representative" to fully clarify that "for the purposes of this chapter, "legally authorized representative" shall not include an official or employee of the institution or agency conducting or authorizing the research." Although the current definition includes the statement, "No official or employee of the institution or agency conducting or authorizing the research shall act as a legally authorized representative," DJJ reported that "Some researchers believed that this definition meant that DJJ could provide consent on behalf of juveniles, as if they were a "ward of the state."

1. The Board also seeks to clarify 6 VAC 35-170-65 (section 65), which lays out the process for external researchers to use when seeking case specific data, by adding two new definitions and updating procedural language. First, the Board proposes to add a definition of "internal committee" to mean "the committee established by the department pursuant to 6 VAC 35-170-65 to oversee de-identified case specific data." Second, the Board would add a definition of "sensitive data" to mean "data, the compromise of which, with respect to the confidentiality, integrity, or availability, could have a material adverse effect on agency programs or the privacy to which individuals are entitled."

These definitional changes, when used in conjunction with certain identifying information listed in section 65, would clarify which data elements would be considered sensitive data and would therefore have to be removed for the data to be considered de-identified. These identifiers include names, dates of birth, postal street addresses, telephone numbers, email addresses (a proposed addition to the list), social security numbers, and medical record numbers. Thus, the amendments serve to clarify the existing process: that once the coordinator of external research ascertains that the data request does not include any sensitive data, the director would then designate an internal committee to review the proposal and make a written recommendation to the director.

The Board seeks to further amend section 65 to specify that any request for sensitive data would require a review by the Human Research Review Committee (HRRC). Once again, the Board is not amending the process so much as explaining the circumstances that would warrant HRRC review. Further the Board seeks to clarify that the director could make an exception if the request was for only a limited number of the identifiers listed above, provided the researchers agree to the confidentiality requirements as stated in 6 VAC 35-170-40.

1. DJJ is one of several agencies that participates in the Virginia Longitudinal Data System (VLDS), which has prompted questions from researchers using the VLDS portal as to how requests submitted via the VLDS are evaluated vis-a-vis the existing regulation. Hence, the Board proposes to add a new section explicitly addressing VLDS requests.

The Board seeks to add a definition of "Virginia Longitudinal Data System or VLDS" to mean "a data system that provides de-identified case-specific data from participating agencies to qualified researchers through a process that involves submission of requests and approval or denial by each sponsoring agency from which data are sought in an effort to create usable information for policy and generate cross-agency research."

The new section 6 VAC 35 170-67 titled "VLDS requests" would essentially require researchers using the portal to comply with the same requirements as they would for a request directly submitted to DJJ. However, rather than go through review and approval by the director or an internal committee, the chair of the HRRC would have the primary responsibility for reviewing and approving requests made through the VLDS portal. Moreover, the data being requested would need to already be available in the VLDS database. By addressing the requirements and process in a separate section, the Board seeks to provide clear and simple directions for researchers choosing to adopt this route for accessing data.

1. The Board proposes to repeal 6 VAC 35-170-62 (Review and approval of aggregate data requests) and replace it with 6 VAC 35-170-55 with the same title. This change is intended to clarify how this process works in relationship to section 60, which prohibits any research involving a case specific data request or human research request from beginning until all reviews required by this chapter have been completed and the principal researcher receives a copy of the research agreement signed by the director. Moving the section regarding aggregate data before section 60 is intended to distinguish between aggregate data requests in the proposed section 55, and case specific data requests or human research requests in section 60, and to clarify that aggregate data requests fall outside the requirements in section 60. The actual process of reviewing and approving aggregate data requests would not be changed.

2. The Board proposes to add a new section 6 VAC 35-170-69 titled "Minor amendment to data requests" to allow researchers to submit amendments to existing data requests as long as the scope of the original data request or research proposal remains unchanged. DJJ staff offered the following examples of minor amendments: revising the recruitment method due to low enrollment (e.g. putting up a recruitment poster in a court service unit office when that method was not previously used), revising the wording of a question previously considered confusing, or changing the order of questions on a survey for better flow. The section would allow the chair of the HRRC to conduct an expedited review of the amendment, and would not require the director or internal committee to review the amendment.

3. The Board proposes to add a new section 6 VAC 35-170-230 titled "Written procedures" that requires DJJ to establish written procedures for requesting approval of a research proposal by a DJJ unit head. DJJ may also use written procedures to provide additional guidelines for the submission, approval, and review of research proposals or data requests. The proposed section also serves to notify regulants that these procedures may be accessed through DJJ's website.¹ Compliance with these procedures would not be required, but they would serve to streamline the process for researchers who choose to use them.

4. The Board seeks to add a subsection to section 190 "Committee reports required," which would require that the HRRC post a summary of approved human research projects, unless the research is explicitly protected under the Virginia Freedom of Information Act.

5. Throughout the regulation, the Board proposes to make explicit exactly which parties within DJJ would be responsible for making decisions regarding data requests and for communicating those decisions in writing to the principal investigators making the request.

Estimated Benefits and Costs. The proposed amendments would help streamline the process for different types of data and research requests, clarify the requirements for each type of request, and identify the relevant DJJ personnel who would be responsible for reviewing and approving each type of request. The proposed amendments would not create new costs for researchers requesting data or human research, while continuing to safeguard the privacy and protection of incarcerated juveniles and/or staff at DJJ facilities. Since the requirements themselves are no more onerous or restrictive than they were before, and to the extent that researchers seeking data are able to better understand and follow DJJ procedures, both the researchers and DJJ staff stand to benefit.

Businesses and Other Entities Affected. The proposed amendments would affect researchers at universities or private non-profit organizations or foundations that conduct social science research in facilities operated (or sub-contracted) by DJJ. The proposed amendments do not introduce any additional costs to conducting such research.

Small Businesses² Affected. Small businesses are unlikely to be affected by the proposed amendments. The proposed amendments create no new costs.

Localities³ Affected.⁴ The proposed amendments do not disproportionately affect any specific localities, nor do they introduce new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect employment.

Effects on the Use and Value of Private Property. To proposed amendments would not affect the value of private property. Real estate development costs would not be affected.

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¹See http://www.djj.virginia.gov/pages/admin/data-research-requests.htm for details.

²Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

³"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁴§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget's economic impact analysis and are in agreement with the analysis.

Summary:

The amendments (i) remove invalid provisions consistent with recent regulatory amendments, (ii) add provisions addressing external case-specific data requests submitted through the Virginia Longitudinal Data System, (iii) impose additional requirements to ensure that sensitive data disseminated to external entities are protected from unauthorized access, and (iv) make changes to clarify and simplify existing requirements.

6VAC35-170-10. Definitions.

Unless the context clearly indicates otherwise, the The following words and terms when used in this chapter shall have the following meanings, consistent with the definitions offered in § 32.1-162.16 of the Code of Virginia unless the context clearly indicates otherwise:

"Aggregate data" means statistics that relate to broad classes, groups, or categories so that it is not possible to distinguish the properties of individuals within those classes, groups, or categories.

"Case-specific data" means nonaggregated data that provides information about individuals within a group.

"Coordinator of external research" is means the department employee designated by the director to receive research proposals and data requests from external entities and to ensure that the proposals are reviewed in accordance with this chapter and related department procedures.

"De-identified data" means data with common identifiers, such as names, phone numbers, social security numbers, and addresses, etc., removed in order to eliminate the ability of an individual viewing the data to determine the identity of an individual.

"Department" means the Department of Juvenile Justice.

"Director" means the Director director of the Department of Juvenile Justice department or the director's designee.

"Encrypted" means the transformation of data through the use of an algorithmic process into a form in which there is a low probability of assigning meaning without the use of a confidential process or key or the securing of the information by another method that renders the data elements unreadable or unusable.

"External research" means research conducted at or using the resources of a facility, program, or organization that is owned, operated, or regulated by the department or the Board of Juvenile Justice by researchers who are not part of the department or under contract to with the department, or who are not employees of another state agency conducting a study at the direction of the General Assembly.

"Human research" means any a systematic investigation, including research development, testing, and evaluation, utilizing human subjects that is designed to develop or contribute to generalized knowledge. Human research shall not be deemed to include research exempt from federal research regulation pursuant to 45 CFR 46.101(b).

"Human Research Review Committee" or "HRRC" means the committee established by the department to oversee human research proposals and activities in accordance with 6VAC35-170-130 and § 32.1-162.19 of the Code of Virginia.

"Human subject" means any an individual who is: under the department's care, custody, or supervision, or; under the care, custody, or supervision of a facility or program regulated by the department or the Board of Juvenile Justice; or a member of the family of such an individual, and who is, or who is proposed to be, a subject of human research. For purposes of this definition, human subject also means an individual who is employed in or provides contractual services to a juvenile correctional center or other facility or program regulated by the department or the Board of Juvenile Justice and who is or who is proposed to be a subject of human research.

"Informed consent" means the knowing and voluntary agreement without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion of a person who is capable of exercising free choice. The basic elements necessary for informed consent regarding human research include:

1. A reasonable and comprehensible explanation to the person of the proposed procedures and protocols to be followed,; their purposes, including descriptions of attendant discomforts,; and the risks and benefits reasonably to be expected;

2. A disclosure of alternative procedures or therapies that might be helpful to the person;

3. An instruction that the person may withdraw his consent and stop participating in the human research at any time without prejudice to him;

4. An explanation of costs or compensation that may accrue to the person and whether third party reimbursement is available for the proposed procedures or protocols; and

5. An offer to answer, and answers to, questions by the person about the procedures and protocols.

"Internal committee" means the committee established by the department pursuant to 6VAC35-170-65 to oversee de-identified case specific data.

"Legally authorized representative" means the parent or parents having custody of a prospective subject; the legal guardian of a prospective subject; or any person or judicial or other body authorized by law to consent on behalf of a prospective subject to such subject's participation in the particular human research, including an attorney in fact appointed under a durable power of attorney, provided the power grants the authority to make such a decision and the attorney in fact is not employed by the person, institution, or agency conducting the human research. No official or employee of the institution or agency conducting or authorizing the research shall act as a legally authorized representative. For purposes of this chapter, "legally authorized representative" shall not include an official or employee of the institution or agency conducting or authorizing the research.

"Minimal risk" means that the risks of harm anticipated in the proposed research are not greater, considering probability and magnitude, than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.

"Nontherapeutic research" means human research in which there is no reasonable expectation of direct benefit to the physical or mental condition of the human subject.

"Organizational unit head" means the person in charge of a juvenile correctional center, court service unit, or other organizational unit of the department or a Board of Juvenile Justice-regulated facility, program, or service.

"Principal researcher" means the individual who is responsible for the research design, the conduct of research implementation, supervision of research staff, and the research findings.

"Research" means the systematic development of knowledge essential to effective planning and rational decision-making. It involves the assessment of current knowledge on conceptual problems selected, the statement of those problems in researchable format, the design of methodologies appropriate to the problems, and the application of statistical techniques to organize and analyze data. Research findings should provide valuable information to management for policy options.

"Researcher" means an individual conducting research.

"Research project" means the systematic collection of information, analysis of the data, and the preparation of a report of findings.

"Sensitive data" means data, the compromise of which, with respect to confidentiality, integrity, or availability, could have a material adverse effect on agency programs or the privacy to which individuals are entitled.

"Virginia Longitudinal Data System" or "VLDS" means a data system that provides de-identified case-specific data from participating agencies to qualified researchers through a process that involves submission of requests and approval or denial by each sponsoring agency from which data are sought in an effort to create usable information for policy and generate cross-agency research.

"Written" means the required information is communicated in writing. Such writing may be available in either in hard copy or electronic form.

6VAC35-170-20. General requirements of external researchers.

A. The principal researcher shall have academic or professional standing in the pertinent field or job-related experience in the areas of study or be directly supervised by such a person.

B. The principal researcher is shall be responsible for (i) the conduct of the research staff, (ii) the protection of the rights of subjects involved in the project, and (iii) providing the provision of information required by the coordinator of external research, organizational unit heads, and the Human Research Review Committee HRRC.

6VAC35-170-50. Conditions for department approval of external research and data requests.

The department may approve research projects and data requests only when it determines, in its sole discretion, that the following conditions have been met:

1. The department has sufficient financial resources and staff resources to support the research project, request and that, on balance, the benefits of the research request justify the department's involvement;

2. The proposed research request will not interfere significantly with department programs or operations, particularly those of the operating units that would participate in the proposed research; and

3. The proposed research request is compatible with the purposes and goals of the juvenile justice system and with the department's organization, operations, and resources; and.

4. The proposed research requests for aggregate data or de-identified data, and the human research proposals, comply with all department procedures, which shall be posted on the department's website.

6VAC35-170-55. Review and approval of aggregate data requests.

A. The department shall determine the following prior to approving aggregate data requests:

1. That the request meets the conditions for department approval of research identified in 6VAC35-170-30 and 6VAC35-170-50;

2. That the data requested is accessible;

3. An estimate of the time required to process the data request; and

4. Based on staff workload, whether staff resources are available to process the request.

B. The department may approve and coordinate the provision of data.

C. The department shall provide the principal researcher with a written notification of the approval or denial of the data request within 20 business days of the department’s receipt of the proposal.

1. If the department denies the data request, documentation of the rationale for the denial shall accompany the proposal.

2. If the department approves the data request, it shall provide the principal researcher with a written estimated timeline for receipt of the data.

6VAC35-170-60. Formal agreement required.

No external research case-specific data request or human research request shall begin until all reviews required by this regulation and department procedure chapter have been completed and the principal researcher is given receives a copy of the research agreement signed by the director.

6VAC35-170-62. Review and approval of aggregate data requests. (Repealed.)

A. Aggregate data requests shall be submitted to the department in accordance with procedures posted on the department's website.

B. The department shall determine the following prior to approving the request:

1. The request meets the conditions for department approval of research identified in 6VAC35-170-30 and 6VAC35-170-50;

2. The data requested is accessible;

3. An estimate of the time required to process the data request; and

4. Based on staff workload, if staff resources are available to process the data request.

C. The department may approve and coordinate the provision of data.

D. The principal researcher shall be notified in writing of the approval or denial of the data request within 20 business days of the department receiving the proposal.

1. The department shall provide the principal researcher with documentation of the rationale for the denial of the request when applicable.

2. The department shall provide the principal researcher with a written estimated timeline for receipt of the data when applicable.

6VAC35-170-65. External case-specific data requests.

A. External case-specific data requests shall be submitted to the department via using the Confidentiality Agreement Form, the Research Proposal Form, and the Research Agreement Form, and any attachment required by department procedures.

B. The Research Agreement Form shall be signed by the principal researcher and the student researcher, if applicable, at the time of submission.

C. The coordinator of external research shall determine the following within 10 business days of receiving the research proposal data request:

1. The That the request meets the conditions for department approval of research identified in 6VAC35-170-30 and 6VAC35-170-50;

2. The That the proposal is not a human research proposal and is not required to be reviewed by the Human Research Review Committee HRRC; however, requests that include sensitive data shall be reviewed by the HRRC;

3. The That the principal researcher has appropriate academic or professional standing or job-related experience in the area to be studied;

4. The That the proposal is in the required format and includes all required information;

5. The That the proposal complies with basic research standards and applicable laws;

6. The That the data requested is accessible;

7. Department staff and That department resources are available to process the data request; and

8. An estimate of the time required to compile the data request.

D. The Except as provided in subsection E of this section, the following identifiers are considered sensitive data and shall be removed from the data provided to researchers:

1. Names;

2. Dates (date of birth, date of admission, date of release, etc.) Dates of birth;

3. Postal address information, other than town or city, state, and zip code street addresses;

4. Telephone numbers;

5. Email addresses;

6. Social security numbers;

6. 7. Medical record numbers;

7. Account numbers (Juvenile Tracking System, Direct Care, etc.);

8. Biometric identifiers, including finger and voice prints; and

9. Full face photographic images and any comparable image.

E. The director or his designee may on a case-by-case basis approve the dissemination of data containing a limited number of the identifiers listed in subsection D of this section for research benefiting the department provided the researcher agrees that any such information shall be kept confidential in accordance with 6VAC35-170-40 or released or published only in aggregate form.

F. The human research review process shall be followed when the data requested by a researcher are such that a reasonable person could identify the research participants.

G. Industry standard levels of encryption shall be required to protect all juvenile record information provided to researchers.

H. Upon determining the requirements in subsection C of this section are met, the director or his designee shall designate a an internal committee to, which shall meet within 20 business days of receiving the proposal. The internal committee shall:

1. Review the data requested and determine if it is necessary to restrict the scope of the information provided. The scope of information may be restricted for any reason.

2. Determine the research is beneficial to the department.

3. Ensure juvenile confidential information will be adequately protected adequately.

4. Make a written recommendation to the director or his designee to approve or disapprove the request.

I. The director shall approve or deny the proposal within 10 business days of receiving the recommendation.

J. The department shall notify the researcher of the director's decision within five business days of the director making the decision.

1. If the director denies the proposal, the notification shall include a written rationale for the denial.

2. If the director approves the proposal, the notification shall include the research agreement containing the director's signature. The agreement shall outline the respective responsibilities of the parties and shall specify:

a. When progress reports shall be required. If the external research request also involves human research, this schedule of progress reports shall be developed in consultation with the HRRC;

b. That the department shall have unrestricted permission to use the research findings in accordance with professional standards of research;

c. That a final report shall be submitted electronically to the department;

d. That unless waived by the director or the director's designee, all external articles, reports, and presentations made from the data collected shall be submitted electronically to the department and shall include the statement "The findings of this study are the responsibility of the researchers, and cooperation by the Virginia Department of Juvenile Justice in facilitating this research should not be construed as an endorsement of the conclusions drawn by the researchers;" and

e. That the research agreement shall not be effective until signed by both the principal researcher and the director.

K. Notification of the denial of a proposal shall include a written rationale.

L. Notification of the approval of a proposal shall include the research agreement. The research agreement shall outline the respective responsibilities of the parties and will specify:

1. When progress reports shall be required. If the external research also involves human research, this schedule of progress reports shall be developed in consultation with the Human Research Review Committee;

2. The department shall have unrestricted permission to use the research findings in accordance with professional standards of research;

3. A final report shall be submitted electronically to the department;

4. Unless waived by the director or designee, all external articles, reports, and presentations made from the data collected shall be submitted electronically to the department and shall include the statement, "The findings of this study are the responsibility of the researchers, and cooperation by the Virginia Department of Juvenile Justice in facilitating this research should not be construed as an endorsement of the conclusions drawn by the researchers."; and

5. The research agreement is not effective until signed by both the principal researcher and the director or his designee.

M. K. The department shall provide the principal researcher, by first class mail, electronic mail, or facsimile, a final signed copy of the research agreement to the principal researcher containing the director's signature by first class mail, electronic mail, or facsimile.

L. External case-specific data requests submitted through the VLDS shall not be subject to the requirements of this section. Researchers submitting such requests shall adhere to the provisions of 6VAC35-170-67.

6VAC35-170-67. VLDS requests.

A. External case-specific data requests submitted through the VLDS shall be submitted to the department using the VLDS portal.

B. The researcher shall comply with all VLDS procedures in order to access data through the VLDS.

C. The chair of the HRRC shall have primary responsibility for reviewing and approving requests submitted through the VLDS portal. The chair of the HRRC may not approve an external case-specific data request unless the request meets the following requirements:

1. The request satisfies the conditions for department approval of research identified in 6VAC35-170-30 and 6VAC35-170-50;

2. The request is not a human research proposal and does not require the HRRC's review;

3. The request is in the required format and includes all required information;

4. The request complies with basic research standards and applicable laws; and

5. The data requested are accessible and available in the VLDS.

D. Upon reviewing the data request, the chair of the HRRC may restrict the scope of the data, provided the data requested are unrelated to the purpose of the research study.

6VAC35-170-69. Minor amendments to data requests.

If the researcher offers a minor amendment to an external data request that the director previously approved in accordance with the provisions of this chapter, the chair of the HRRC may conduct an expedited review of the amendment, provided the amendment does not alter the scope of the request. Additional review or approval by the internal committee or director shall not be required.

6VAC35-170-70. Requirements specific to human research.

A. All human research shall comply with all applicable laws, particularly Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 of the Code of Virginia and all other applicable laws regarding human research.

B. Research Human research involving known and substantive physical, mental, or emotional risk to subjects, including the withholding of any prescribed program of treatment, and all experimental medical, pharmaceutical or cosmetic research, are specifically prohibited.

C. Offering incentives to participate in research is discouraged, but not prohibited. Incentives offered shall be appropriate to the juveniles' custodial status and shall be proportionate to the situation.

D. If sensitive data are provided, the researchers must comply with appropriate security and non-disclosure requirements.

D. E. No human research shall be conducted without the approval of the Human Research Review Committee HRRC.

6VAC35-170-80. Informed consent required for human research (§ 32.1-162.18 of the Code of Virginia).

A. Except as provided elsewhere in this chapter, no researcher may involve a human subject in human research without first obtaining the informed consent of the human subject or his legally authorized representative. A researcher shall seek such consent only under circumstances that provide the human subject or the legally authorized representative sufficient opportunity to consider whether to participate and that minimize the possibility of coercion or undue influence.

A. B. If a human subject is competent, informed consent shall be given in writing by the subject and witnessed.

B. C. If a human subject is not competent, informed consent shall be given in writing by the subject's legally authorized representative and witnessed.

C. D. If a human subject is a minor who is otherwise capable of giving informed consent, informed consent shall be given in writing by both the minor and his legally authorized representative.

D. E. If two or more persons who qualify as legally authorized representatives with decision-making authority inform the researcher that they disagree as to the participation of the prospective subject in human research subject, the subject shall not be enrolled in the human research that is the subject of the consent.

E. F. Notwithstanding consent by a legally authorized representative, no person who is otherwise capable of giving informed consent shall be forced to participate in any human research.

F. G. A legally authorized representative may not consent to nontherapeutic research unless the Human Research Review Committee HRRC determines that such nontherapeutic the research will present no more than a minimal risk to the human subject.

G. No H. The informed consent form shall not include any language through which the human subject waives or appears to waive any legal right, including any the release of any an individual, institution, or agency or any agent thereof from liability for negligence (see § 32.1-162.18 of the Code of Virginia).

6VAC35-170-90. Exemptions from the requirements governing human research.

In accordance with § 32.1-162.17 of the Code of Virginia, the A. The following categories of human research are not subject to this regulation's chapter's provisions governing human research. Except when as otherwise provided for by law or regulation, these activities may shall be subject to the nonhuman research review and approval process established by the department.

1. Activities of the Virginia Department of Health conducted pursuant to § 32.1-39 of the Code of Virginia.

2. Research or student learning outcomes assessments conducted in educational settings involving regular or special education instructional strategies; the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods; or the use of educational tests, whether cognitive, diagnostic, aptitude, or achievement, if the data from such tests are recorded in a manner so that subjects cannot be identified, directly or through identifiers linked to the subject.

3. Research involving solely the observation of public behavior, including observation by participants, or research involving survey or interview procedures unless subjects can be identified from the data either directly or through identifiers linked to the subjects, and either:

a. The information about the subject, if it become became known outside the research, could reasonably could place the subject at risk of criminal or civil liability or be damaging to the subject's financial standing or employability; or

b. The research deals with sensitive aspects of the subject's own behavior, such as sexual behavior, drug or alcohol use, or illegal conduct.

4. The collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publicly available or if the subjects cannot be identified from the information either directly or through identifiers linked to the subjects.

5. Medical treatment of an experimental nature intended to save or prolong the life of the subject in danger of death, to prevent the subject from becoming disfigured, or physically or mentally incapacitated, or to improve the quality of the subject's life.

B. Pursuant to 45 CFR 46.101, the exemptions outlined in this section shall not apply to research conducted upon individuals involuntarily confined in a penal institution, including individuals committed to a juvenile correctional center or juvenile secure detention center.

C. Pursuant to 45 CFR 46.101, the exemptions outlined in subdivision A 3 of this section shall not apply to research conducted on children who have not attained age 18 years.

6VAC35-170-100. Proposal for external research.

A. If the external research is proposed to take place in a particular organizational unit, the principal researcher shall present a preliminary research proposal to the head of that organizational unit head and get the organizational unit head's endorsement of the proposal, in accordance with procedures established by the department.

B. The principal researcher shall submit to the coordinator of external research a complete research proposal describing the research project, and containing:

1. Name, address, telephone numbers number, email address, title, and affiliation of the principal researcher;

2. Name, telephone number, and email address of the person who will immediately supervise coordinate the project, if different from the principal researcher;

3. Funding source, if any;

4. Date of the proposal's submission to the department;

5. Title or descriptive name of the proposed research project;

6. Statement of the specific purpose or purposes of the proposed research project with anticipated results, including benefit to the department;

7. A concise description of the research design and techniques for data collection and analysis, and of the likely effects of the research methodology on existing programs and institutional operations;

8. Timeframes indicating proposed beginning and ending dates for (i) data collection, (ii) analysis, (iii) preliminary report, and (iv) final report;

9. A listing list of resources the researcher will require from the department or its units, such as staff, supplies, materials, equipment, work spaces, or access to clients and files;

10. A The written endorsement from the head of the organizational unit where the research will be conducted, if applicable head in accordance with subsection A of this section;

11. For student research, endorsement from the researcher's academic advisor or other appropriate persons;

12. For research involving records of juveniles at state and local court service units, a written endorsement from the appropriate juvenile and domestic relations judge or judges;

13. For human research, a 11. A written endorsement from the institutional review board of the institution or organization with which the researcher is affiliated; and

14. For all research projects, a 12. A signed and dated statement that the principal researcher and research staff have read, understand, and agree to abide by these regulations.

6VAC35-170-110. Initial review by coordinator of external research.

The coordinator of external research shall receive all research proposals from external researchers and shall:

1. Ensure that the proposals are in the required format and include all required information;

2. Confirm that the proposal complies with basic research standards and applicable laws; and

3. Refer the proposals to appropriate department personnel for review, which shall include, for all proposed human research, shall include the department's human research review committee HRRC.

6VAC35-170-130. Human Research Review Committee.

A. In accordance with § 32.1-162.19 of the Code of Virginia, the The department shall establish a human research review committee an HRRC composed of persons of various backgrounds to ensure the competent, complete, and professional review of human research activities conducted or proposed to be conducted or authorized by the department. No member of the committee HRRC shall be directly involved in the proposed human research or have administrative approval authority over the proposed research except in connection with his role on the committee HRRC.

B. The committee HRRC may ask persons with pertinent expertise and competence to assist in the review of any research proposal or ongoing human research activities.

C. The committee HRRC may require additional information from the researcher before making a recommendation to the director.

6VAC35-170-140. Timeline for review of human research proposals.

A. The Human Research Review Committee will HRCC shall review proposals involving human research within 30 business days of receiving a complete research proposal.

B. At the request of the researcher, the Human Research Review Committee HRRC may conduct an expedited review when the proposed research involves no more than minimal risk to the human subjects and:

1. The proposal has been reviewed and approved by another agency's human research review committee HRRC; or

2. The review involves only minor changes to a previously approved research project that was previously approved.

C. A proposal that undergoes expedited review pursuant to subdivision B 2 of this section shall be approved in writing by the chair of the HRRC before the researcher may proceed. Additional review or approval by the director shall not be required.

6VAC35-170-150. Committee HRRC review of human research proposals.

In reviewing the human research proposal, the committee will HRRC shall consider the potential benefits and risks to the human subjects, and shall recommend approval only when the benefits outweigh the risks. In addition, the committee shall recommend approval only when:

1. The benefits to the human subjects outweigh the risks;

2. The methodology is adequate for the proposed research;

2. 3. The research, if nontherapeutic, presents no more than a minimal risk to the human subjects;

3. 4. The rights and welfare of the human subjects are adequately protected;

4. 5. Appropriate provisions have been made to get informed consent from the human subjects, as detailed in 6VAC35-170-160;

5. 6. The researchers are appropriately qualified;

6. 7. The criteria and means for selecting human subjects are valid and equitable; and

7. 8. The research complies with the requirements set out in this regulation and in applicable department policies and procedures chapter.

6VAC35-170-160. Committee HRRC review of informed consent provisions.

A. The committee HRRC shall review and approve the consent process and all required consent forms for each proposed human research project before recommending approval to the director.

B. The committee may approve a consent procedure that omits or alters some or all of the basic elements of informed consent, or waives the requirement to get informed consent, if the committee HRRC finds and documents that:

1. Research The research involves no more than a minimal risk to the subjects;

2. The omission, alteration, or waiver will not adversely affect the rights and welfare of the subjects;

3. The research could not practicably be performed practicably without the omission, alteration, or waiver; and

4. After participation, the subjects will be given additional pertinent information, when appropriate.

C. The committee HRRC may waive the requirement that the researcher get written informed consent for some or all subjects if the principal risk would be potential harm resulting from a breach of confidentiality, and the only record linking the subject and the research would be the consent document. The committee HRRC may require the researcher to give the subjects and legally authorized representatives a written statement explaining the research. Further, the researcher shall ask each subject shall be asked whether he wants documentation linking him to the research, and the subject's wishes shall govern.

6VAC35-170-170. Recommendation to director and final action.

A. The Human Research Review Committee HRRC shall make a recommendation to the director to deny, approve, or conditionally approve the proposed human research.

B. The director shall approve or deny the proposal within 10 business days of receiving the committee's recommendation.

C. The research agreement shall become effective only after all reviews required by this regulation and department procedures chapter are completed and the director signs the agreement on behalf of the department. The coordinator of external research must shall send a copy of the signed research agreement to the principal researcher before the project may begin.

D. The coordinator of external research shall notify the principal researcher of the director's final decision.

6VAC35-170-180. Annual review of human research activities.

The human research review committee HRRC shall review all human research activities at least annually to ensure that they are being conducted in conformance with the proposals as approved by the director.

6VAC35-170-185. Researcher noncompliance.

A. The researcher shall report noncompliance with the approved research proposal to the Human Research Review Committee HRRC and the institutional review board.

B. Research If the HRRC determines that the research activities identified by the department or the Human Research Review Committee as failing fail to comply with the approved proposal or in violation of violate the Code of Virginia or the Virginia Administrative Code, the department may result in the department restricting (i) restrict or terminating terminate further research and the department may, (ii) prohibit the researcher from presenting or publishing the research results, or (iii) bar the researcher from conducting future studies.

6VAC35-170-190. Committee reports required.

A. In accordance with § 66-10.1 of the Code of Virginia, the Human Research Review Committee HRRC shall submit to the Governor, the General Assembly, and the director at least annually a report on human research projects approved by the committee HRRC and the status of such research, including any significant deviation from the proposals as approved.

B. The Human Research Review Committee HRRC also shall also annually submit annually to the Board of Juvenile Justice the same report as required by subsection A of this section.

C. The HRRC shall ensure that an overview of the report required in subsection A of this section, containing a summary of approved human research projects and the results of such projects, is posted on the department's website unless otherwise exempt from disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

6VAC35-170-200. Progress reports.

A. The department may require periodic reports on the progress of any research project. The principal researcher shall be responsible for providing such reports, and any supplementary information requested by the department, in a timely manner.

B. The researcher shall submit an annual progress report to the coordinator of external research when the research is not completed within one year of approval.

6VAC35-170-220. Final report.

A. The department shall require that the principal researcher to submit a formal final report be submitted to the coordinator of external research and may require up to 10 copies of the report.

B. The report shall contain, unless waived by the director or designee, contain the following statement:

"The findings of this study are the responsibility of the researchers, and cooperation by the Virginia Department of Juvenile Justice in facilitating this research should not be construed as an endorsement of the conclusions drawn by the researchers."

6VAC35-170-230. Written procedures.

A. The department shall establish written procedures regarding the process for obtaining the organizational unit head's endorsement for any external research proposal, as required in 6VAC35-170-100.

B. The department may establish written procedures that outline additional requirements for the submission, approval, and review of research projects and data requests authorized in this chapter. The written procedures also may identify additional data elements that the department deems to be sensitive data.

C. The department shall ensure that any written procedures established pursuant to this chapter are posted on the agency website.

FORMS (6VAC35-170)

Research Agreement (rev. 1/2016)

Research Proposal Summary (rev. 1/2016)

Confidentiality Agreement (eff. 2/2021)

Title of Regulation: 8VAC20-23. Licensure Regulations for School Personnel (amending 8VAC20-23-10, 8VAC20-23-20, 8VAC20-23-40, 8VAC20-23-50, 8VAC20-23-90, 8VAC20-23-100, 8VAC20-23-110, 8VAC20-23-130, 8VAC20-23-190, 8VAC20-23-720).

Statutory Authority: §§ 22.1-16 and 22.1-298 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 31, 2021.

Effective Date: April 15, 2021.

Agency Contact: Patty Pitts, Assistant Superintendent for Teacher Education and Licensure, State Board of Education, 101 North 14th Street, Richmond, VA 23219, telephone (804) 371-2522, or email patty.pitts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the State Board of Education to promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of Title 22 of the Code of Virginia. In addition, this action is taken pursuant to legislative changes to the following sections of the Code of Virginia enacted in the 2017 through 2020 Sessions of the General Assembly: (i) in 2017, §§ 22.1-298.1 and 22.1-307; (ii) in 2018, §§ 22.1-298.1, 22.1-299, 22.1-299.5, and 22.1-299.6; and (ii) in 2019, §§ 22.1-298.1, 22.1-298.2, 22.1-305.2, and 23.1-902.

Purpose: The amendments to the regulations are required to comport with legislation enacted in the 2017 though 2020 Sessions of the General Assembly. The proposed changes to this regulation are required to comport with legislation passed by the Virginia General Assembly. The alignment of the regulations ensures compliance with the Code of Virginia and that teacher licensure applicants have access to the most current information when they apply. These proposed changes benefit the public's health, safety and welfare by ensuring that applicants are highly qualified and that licenses are not issued erroneously.

Rationale for Use of Fast-Track Rulemaking Process: The regulatory changes are required by the Virginia General Assembly. The requirements are noncontroversial as all requirements are mandated by the General Assembly.

Substance: The following are the chapters and summaries of the substantive provisions mandated by the General Assembly:

2017 Acts of Assembly - Chapters 247 and 255 permit each local school board or division superintendent to waive certain enumerated licensure requirements for any individual whom it seeks to employ as a career and technical education teacher and who is also seeking initial licensure or renewal of a license with an endorsement in the area of career and technical education. Chapter 783 specifies that the certification or training in emergency first aid, cardiopulmonary resuscitation, and the use of automated external defibrillators that is required of every person seeking initial licensure or renewal of a license as a teacher shall include hands-on practice of the skills necessary to perform cardiopulmonary resuscitation. Chapter 688 exempts from any professional teacher's assessment requirements any individual who has obtained a valid out-of-state license, with full credentials and without deficiencies, that is in force at the time the application for a Virginia license is received by the Department of Education, subject to the approval of the division superintendent or the school board in the school division in which such individual is employed. (Section 22.1-298.1 of the Code of Virginia regarding reciprocity was also amended in the 2018 Session of the General Assembly.) Chapter 240 requires the State Board of Education to include in its regulations governing the licensure of teachers and other school personnel procedures for the immediate and thorough investigation by the division superintendent or the division superintendent's designee of any complaint alleging that a license holder has engaged in conduct that may form the basis for the revocation of the license holder's license, including requirements for (i) the division superintendent to petition for the revocation of the license upon completing such investigation and finding that there is reasonable cause to believe that the license holder has engaged in conduct that forms the basis for revocation of a license; (ii) the school board to proceed to a hearing on such petition for revocation within 90 days of the mailing of a copy of the petition to the license holder, unless the license holder requests the cancellation of his license in accordance with board regulations; and (iii) the school board to provide a copy of the investigative file and such petition for revocation to the Superintendent of Public Instruction at the time that the hearing is scheduled. The bill clarifies that in the case of a teacher who is or becomes the subject of a founded complaint of child abuse and neglect, such teacher shall be dismissed after all rights to any administrative appeal have been exhausted. Chapter 520 requires every person seeking initial licensure or renewal of a license with an endorsement as a school counselor to complete training in the recognition of mental health disorder and behavioral distress, including depression, trauma, violence, youth suicide, and substance abuse.

2018 Acts of Assembly - Chapters 745 and 746 require the State Board of Education to provide for teacher licensure by reciprocity for any spouse of an active duty member of the Armed Forces of the United States or the Commonwealth who has obtained a valid out-of-state license, with full credentials and without deficiencies, that is in force at the time the application for a Virginia license is received by the Department of Education. The chapters provide that no service requirements or licensing assessments shall be required for any such individual. Chapter 747 requires the State Board of Education, in its regulations providing for teacher licensure by reciprocity, to permit applicants to submit third-party employment verification forms. Chapter 711 requires the board to establish an experiential route to licensure, issuing a one-year renewable license. Chapters 748 and 749 make several changes to the teacher licensure process, including (i) permitting teachers with a valid out-of-state license, with full credentials and without deficiencies, to receive licensure by reciprocity without passing additional licensing assessments and (ii) permitting a local school board or division superintendent to waive certain licensure requirements for any individual who holds a provisional license and is employed by the local school board.

On January 24, 2019, the Board of Education approved 270 professional development points for license renewal for a 10-year renewable license and approved including in the Licensure Renewal Manual the following maximum professional development points for each option until the renewal requirements are comprehensively reviewed. Individuals who hold a five-year renewable license must complete 180 professional development points. All statutory requirements for renewal shall be required. The points are College Credit 270 points, Professional Conference 60 points, Curriculum Development 135 points, Publication of Article 135 points, Publication of Book 135 points, Mentor/Supervision 135 points, Educational Project 135 points, and Professional Development Activities 270 points.

2019 Acts of Assembly - Chapter 767 grants to the Chancellor of the Virginia Community College System voting privileges as a member of the Advisory Board on Teacher Education and Licensure (the Advisory Board). The chapter requires the Advisory Board to report to the Board of Education and the Chairmen of the House Committee on Education and the Senate Committee on Education and Health no later than December 1, 2019, recommendations relating to licensure qualifications for individuals employed by an institution of higher education to teach (i) career and technical education courses in a high school setting and (ii) dual enrollment courses in a high school setting. The chapter also requires the State Board of Education to provide for the issuance of a three-year license to solely teach career and technical education courses or dual enrollment courses at public high schools in the Commonwealth to any individual who is employed as an instructor by an institution of higher education that is accredited by a nationally recognized regional accreditation body, is teaching in the specific career and technical education or dual enrollment subject area at such institution in which the individual seeks to teach at a public school, and complies with certain additional requirements. Chapters 63 and 407 require the State Board of Education to issue a license to an individual seeking initial licensure who has not completed the professional assessments prescribed by the board, if such individual (i) holds a provisional license that will expire within three months; (ii) is employed by a school board; (iii) is recommended for licensure by the division superintendent; (iv) has attempted, unsuccessfully, to obtain a qualifying score on the professional assessments prescribed by the board; (v) has received an evaluation rating of proficient or above on the performance standards for each year of the provisional license, and such evaluation was conducted in a manner consistent with the Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents; and (vi) meets all other requirements for initial licensure. Chapter 409 requires the State Board of Education in its regulations providing for licensure by reciprocity to grant special consideration to individuals who have successfully completed a program offered by a provider that is accredited by the Council for the Accreditation of Educator Preparation.

Issues: The regulatory revisions need to be made to ensure the public is informed of amended provisions of the Code of Virginia. Chapter 767 of the 2019 Acts of Assembly provides the Chancellor of the Virginia Community College voting privileges as a member of the Advisory Board on Teacher Education and Licensure. Other significant changes expand reciprocity for individuals who apply for licensure in Virginia, require hands-on Cardiopulmonary Resuscitation (CPR), created a One-Year High School License and a Career and Technical Education or Dual Language Endorsement License, and make technical revisions to the section of the Licensure Regulations for School Personnel governing the revocation, denial, and cancellation and suspension of teaching licenses.

The licensure regulations changes do not disadvantage the public or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation: The Board of Education (Board) proposes to amend 8 VAC 20-23 Licensure Regulations for School Personnel to reflect 2016, 2017, 2018, 2019, and 2020 Acts of Assembly.

Background. Except for where noted, the proposal essentially inserts text from the legislation described below into the regulation.

Length of Renewable Licenses and Professional Development Points - Chapters 748 and 749 of the 2018 Acts of Assembly changed the length of time for renewable licenses from five to ten years.¹ The second enactment clause of the chapters states "That the Board of Education shall amend its regulations for the establishment of requirements for teacher licensure renewal set forth in 8VAC20-22-110 to require teachers to complete no more than 360 professional development points within the 10-year license renewal period established by this act." The Board proposes to require 270 professional development points within a ten-year period to renew the license.

Provisional Licenses - Chapters 748 and 749 of the 2018 Acts of Assembly also state that the Board shall extend for at least one additional year, but for no more than two additional years, the three-year Provisional License of a teacher upon receiving from the division superintendent (i) a recommendation for such extension and (ii) satisfactory performance evaluations for such teacher for each year of the original three-year Provisional License.

Chapter 63 and 407 of the 2019 Acts of Assembly² states that the Board shall issue another Provisional License to an individual seeking initial licensure who has not completed professional assessments as prescribed by the Board, if such individual (i) holds a Provisional License that will expire within three months; (ii) is employed by a school board; (iii) is recommended for licensure by the division superintendent; (iv) has attempted, unsuccessfully, to obtain a qualifying score on the professional assessments as prescribed by the Board; (v) has received an evaluation rating of proficient or above on the performance standards for each year of the provisional license, and such evaluation was conducted in a manner consistent with the Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents; and (vi) meets all other requirements for initial licensure.

One-Year High School License - Chapter 711 of the 2018 Acts of Assembly³ created a one-year annually renewable license to teach in public high schools. The candidate must have: 1) received a graduate degree from a regionally accredited institution of higher education, 2) completed at least 30 credit hours of teaching experience as an instructor at a regionally accredited institution of higher education, 3) received qualifying scores on the professional teacher's assessments prescribed by the Board, including the communication and literacy assessment and the content-area assessment for the endorsement sought, 4) completed study in child abuse recognition and intervention in accordance with curriculum guidelines developed by the Board of Education in consultation with the Department of Social Services, and 5) completed certification or training in emergency first aid, cardiopulmonary resuscitation, and the use of automated external defibrillators.⁴

Career and Technical Education, Dual Enrollment - Chapters 247 and 255 of the 2017 Acts of Assembly⁵ state that a local school board or division superintendent may waive any of the following applicable licensure requirements for any individual whom it seeks to employ as a career and technical education teacher and who is also seeking initial licensure or renewal of a license with an endorsement in the area of career and technical education: 1) demonstrated proficiency in the relevant content area, communication, literacy, and other core skills for educators by achieving a qualifying score on professional assessments or meeting alternative evaluation standards as prescribed by the Board, 2) study in attention deficit disorder, 3) study in gifted education, including the use of multiple criteria to identify gifted students, 4) study in methods of improving communication between schools and families and ways of increasing family involvement in student learning at home and at school, 5) renewal requirements, including professional development in a manner prescribed by the Board, 6) demonstrated proficiency in reading and writing Braille, and 7) initial or renewal requirement to complete awareness training, provided by the Department of Education (DOE), on the indicators of dyslexia, as that term is defined by the Board pursuant to regulations, and the evidence-based interventions and accommodations for dyslexia.

Chapter 651 of the 2016 Acts of Assembly⁶ established a three-year Career and Technical Education License. The three-year license is issued to teach high school career and technical education courses in a specific subject area to an individual who: 1) is recommended for the license by a local school board, 2) meets certain basic conditions for licensure as prescribed by the Board,⁷ 3) holds a relevant baccalaureate degree, professional license, or industry certification credential,⁸ 4) has at least four years of full-time work experience or its equivalent in the specific career and technical education subject area in which the individual seeks to teach, and 5) if appropriate, has obtained qualifying scores on the communication and literacy professional teacher's assessment prescribed by the Board. The employing local board is required to assign a mentor to supervise the individual issued the Career and Technical Education License. Chapter 651 specified that the individual so licensed was to teach for no more than 50 percent of the instructional day or year, on average. Chapters 748 and 749 of the 2018 Acts of Assembly removed that restriction.

Chapter 767 of the 2019 Acts of Assembly⁹ established the Career and Technical Education or Dual Enrollment License. The Career and Technical Education or Dual Enrollment License is a three-year license to solely teach career and technical education courses or dual enrollment courses at public high schools in the Commonwealth issued to any individual who (i) is employed as an instructor by an institution of higher education that is accredited by a nationally recognized regional accreditation body, (ii) is teaching in the specific career and technical education or dual enrollment subject area at such institution in which the individual seeks to teach at a public school, and (iii) complies with the requirements set forth in subsections E and F of 8VAC20-23-40. Such instructor must maintain continuous employment in such position at the institution of higher education as a condition of continued licensure. The statutory authority for issuing this license shall expire on July 1, 2021; however, any such license issued prior to July 1, 2021, shall remain in effect for three years from the date it was issued unless such license is revoked by the Board.

Licensure by Reciprocity - Chapters 745 and 746 of the 2018 Acts of Assembly¹⁰ state that licensure by reciprocity is provided for any spouse of an active duty member of the Armed Forces of the United States or the Commonwealth who has obtained a valid out-of-state license, with full credentials and without deficiencies, that is in force at the time the application for a Virginia license is received by DOE. Each such individual shall establish a file in DOE by submitting a complete application packet, which shall include official student transcripts. No service requirements or licensing assessments shall be required for any such individual.

Chapters 748 and 749 of the 2018 Acts of Assembly state that licensure by reciprocity is provided for individuals who have obtained a valid out-of-state license, with full credentials and without deficiencies, that is in force at the time the application for a Virginia license is received by the DOE. Each such individual shall establish a file in DOE by submitting a complete application packet, which shall include official student transcripts. No service requirements or licensing assessments shall be required for any such individual.

Cardiopulmonary Resuscitation - The current regulation requires that every person seeking initial licensure or renewal of a license provide evidence of completion of certification or training in emergency first aid, cardiopulmonary resuscitation (CPR) , and the use of automated external defibrillators. The certification or training program shall be based on the current national evidence-based emergency cardiovascular care guidelines for CPR and the use of an automated external defibrillator, such as a program developed by the American Heart Association or the American Red Cross. Chapter 783 of the 2017 Acts of Assembly¹¹ added that the training must include hands-on practice of the skills necessary to perform CPR.

School Counselors - Chapter 520 of the 2017 Acts of Assembly¹² established that every person seeking initial licensure or renewal of a license with an endorsement as a school counselor shall complete training in the recognition of mental health disorder and behavioral distress, including depression, trauma, violence, youth suicide, and substance abuse.

Training Concerning Student Behavior - Chapter 870 of the 2020 Acts of Assembly¹³ states that every person seeking initial licensure as a teacher who has not received the instruction described in subsection D of §23.1-902 of the Code of Virginia¹⁴ shall receive instruction or training on positive behavior interventions and supports, crisis prevention and de-escalation, the use of physical restraint and seclusion, consistent with regulations of the Board, and appropriate alternative methods to reduce and prevent the need for the use of physical restraint and seclusion.

Estimated Benefits and Costs.

Length of Renewable Licenses and Professional Development Points - The doubling of the length of renewable licenses from five to ten years saves time and effort for licensees by only requiring them to assemble renewal applications half as often. Renewal fees are not in the regulation, but the Board did double the fees (from $25 to $50). Thus, the fee cost per year stays the same.

Under the current regulation, the requirement for renewing the five-year license is 180 professional development points. The Board's proposal to require 270 professional development points within the ten-year period to renew the license effectively reduces burden on licensees. When 180 professional development points are required over five years, that is 36 professional development points per year. When 270 professional development points are required over ten years, that is 27 professional development points per year.

Provisional Licenses - The enabling of the extension, or essentially the one-time renewal of a Provisional License, is beneficial for teachers who have difficulty fulfilling all of the requirements for full licensure. In practice, these teachers are granted extra time to fulfill all such requirements. Given the ongoing teacher shortage,¹⁵ the increase in time allowed with a Provisional License helps alleviate the shortage to a degree.

One-Year High School License - The One-Year High School License makes it easier for people with experience teaching college to become licensed to teach high school. This may also help alleviate the teacher shortage to a degree.

Career and Technical Education, Dual Enrollment - The provision to allow the waiving of applicable licensure requirements for any individual whom it seeks to employ as a career and technical education teacher, and the introduced Career and Technical Education License, were both intended to help alleviate the shortage of career and technical education teachers. According to DOE, no school board or division superintendent has requested that requirements be waived for their career and technical education teachers since that provision became effective in 2017, and no applications have been received for the Career and Technical Education License since it was established in 2018.

Licensure by Reciprocity - The new licensure by reciprocity effectively differs from the existing language in one regard, teaching experience. The current regulation requires a minimum of three years of full-time, successful teaching experience in order for an individual with an out-of-state license with full credentials and without deficiencies to be granted Virginia licensure. The language proposed to be added to the regulation from Chapters 745, 746, 748 and 749 of the 2018 Acts of Assembly does not require a specific amount of teaching experience. This may also help alleviate the teacher shortage to a degree in that more individuals with valid out-of-state licenses would qualify for Virginia licensure.

CPR - Prior to Chapter 783 of the 2017 Acts of Assembly, the training requirement for CPR could be satisfied with an online course. Now, as discussed above, the training must include hands-on practice of the skills necessary to perform CPR. An all online course costs about $35 and takes approximately 2 hours 10 minutes to complete. An online and classroom course with hands-on practice with a qualified instructor costs about $79 and takes about 3 hours and 35 minutes plus travel time to and from the class.¹⁶ Though the course with hands-on practice with a qualified instructor is more expensive, it seems likely that there would greater assurance that the individual taking the training could perform CPR correctly.

School Counselors - According to DOE, training in the recognition of mental health disorders and behavioral distress, including depression, trauma, violence, youth suicide, and substance abuse is available for free for school counselors through online modules. Thus, the only cost for the school counselors from the required training would be their time to complete the modules.

Training Concerning Student Behavior - The requirement that every person seeking initial licensure as a teacher who has not received the instruction described in subsection D of §23.1-902 of the Code of Virginia¹⁷ shall receive such instruction or training can also be satisfied through free online modules.¹⁸ Similarly, the only cost for the required training would be the time to complete the modules.

Businesses and Other Entities Affected. The proposed amendments affect the 132 local school divisions in the Commonwealth, teachers, and school counselors. School divisions that are particularly affected by teacher shortages may be particularly affected by the changes that introduce new paths to licensure or extend the length of provisional licensure.

Small Businesses¹⁹ Affected. The proposed amendments do not appear to adversely affect small businesses.

Localities²⁰ Affected.²¹ The proposal affects all Virginia localities in that all have public schools. Localities that have school divisions that are particularly affected by teacher shortages may be particularly affected by the changes that introduce new paths to licensure or extend the length of provisional licensure. The proposal would not likely substantively increase costs for local governments.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed regulation would not likely have a substantive effect on the use and value of private property.

_________________________

¹See Chapter 748: https://lis.virginia.gov/cgi-bin/legp604.exe?181 ful CHAP0748. Chapter 749 is identical.

²See Chapter 63: https://lis.virginia.gov/cgi-bin/legp604.exe?191 ful CHAP0063. Chapter 407 is identical.

³See Chapter 711: https://lis.virginia.gov/cgi-bin/legp604.exe?181 ful CHAP0711

⁴The certification or training program shall be (i) based on the current national evidence-based emergency cardiovascular care guidelines for cardiopulmonary resuscitation and the use of an automated external defibrillator, such as a program developed by the American Heart Association or the American Red Cross and (ii) include hands-on practice of the skills necessary to perform cardiopulmonary resuscitation. The Board shall provide a waiver for this requirement for any person with a disability whose disability prohibits such person from completing the certification or training.

⁵See Chapter 247: https://lis.virginia.gov/cgi-bin/legp604.exe?171 ful CHAP0247. Chapter 255 is identical.

⁶See Chapter 651: https://lis.virginia.gov/cgi-bin/legp604.exe?161 ful CHAP0651&161 ful CHAP0651

⁷The "certain basic conditions" are not specified in either the Code of Virginia or the proposed regulation.

⁸Specifically, the candidate must: (i) hold, at a minimum, a baccalaureate degree from a regionally accredited institution of higher education and has completed coursework in the career and technical education subject area in which the individual seeks to teach, (ii) hold the required professional license in the specific career and technical education subject area in which the individual seeks to teach, where applicable, or (iii) hold an industry certification credential, as that term is defined in § 22.1-298.1 of the Code of Virginia, in the specific career and technical education subject area in which the individual seeks to teach.

⁹See Chapter 767: https://lis.virginia.gov/cgi-bin/legp604.exe?191 ful CHAP0767

¹⁰See Chapter 745: https://lis.virginia.gov/cgi-bin/legp604.exe?181 ful CHAP0745. Chapter 746 is identical.

¹¹See Chapter 783: https://lis.virginia.gov/cgi-bin/legp604.exe?171 ful CHAP0783

¹²See Chapter 520: https://lis.virginia.gov/cgi-bin/legp604.exe?171 ful CHAP0520

¹³See Chapter 870: https://lis.virginia.gov/cgi-bin/legp604.exe?201 ful CHAP0870

¹⁴See §23.1-902: https://law.lis.virginia.gov/vacode/23.1-902/

¹⁵Source: DOE. See https://www.doe.virginia.gov/teaching/workforce_data/index.shtml and

https://www.education.virginia.gov/media/governorvirginiagov/secretary-of-education/pdf/final-acts-report.pdf

¹⁶Data source: https://www.redcross.org/take-a-class/cpr/cpr-training

¹⁷Specifically, instruction on positive behavior interventions and supports, crisis prevention and de-escalation, the use of physical restraint and seclusion, consistent with regulations of the Board, and appropriate alternative methods to reduce and prevent the need for the use of physical restraint and seclusion

¹⁸See https://www.odu.edu/eps/programs/ciees/initiatives/restraint-and-seclusion.html

¹⁹Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

²⁰"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

²¹§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The action conforms the regulations to legislation enacted in the 2017, 2018, and 2019 Sessions of the General Assembly, as follows: Chapters 240, 247, 255, 520, 688, and 783 of the 2017 Acts of Assembly; Chapters 711, 745, 746, 747, 748, and 749 of the 2018 Acts of Assembly; and Chapters 63, 407, 409, and 767 of the 2019 Acts of Assembly regarding teacher licensure.

8VAC20-23-10. Definitions.

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

"Accredited institution" means an institution of higher education accredited by a regional accrediting agency recognized by the United States Department of Education.

"Accredited virtual school or program" means a virtual school or program accredited by one of the accrediting agencies recognized by the Virginia Department of Education. School divisions operating as multi-division online providers may be deemed as meeting accreditation requirements if a majority of their schools are fully accredited by the Virginia Board of Education.

"Alternate route to licensure" means a nontraditional route to licensure available to individuals who meet the criteria specified in guidelines developed by the board or 8VAC20-23-90.

"Approved program" means a professional education program recognized as meeting state standards for the content and operation of such programs so that graduates of the program will be eligible for state licensure. The Virginia Board of Education has the authority to approve programs in Virginia.

"Cancellation" means the withdrawal of a license following the voluntary return of the license by the license holder.

"Career and Technical Education License" means a three-year license available to qualified individuals to teach, either full time or part time, high school career and technical education courses in specific subject areas who meet requirements set forth in this chapter. Individuals issued a three-year Career and Technical Education License shall not be eligible for continuing contract status while teaching under such license and shall be subject to the probationary terms of employment specified in § 22.1-303 of the Code of Virginia.

"Certified program provider" means a provider certified by the Virginia Department of Education to provide preparation and training for applicants seeking the Provisional License specified in 8VAC20-23-90.

"Career and Technical Education or Dual Enrollment License" means a three-year license to solely teach career and technical education courses or dual enrollment courses at public high schools in the Commonwealth issued to any individual who (i) is employed as an instructor by an institution of higher education that is accredited by a nationally recognized regional accreditation body, (ii) is teaching in the specific career and technical education or dual enrollment subject area at such institution in which the individual seeks to teach at a public school, and (iii) complies with the requirements set forth in subdivisions D 1 and D 3 of § 22.1-298.1 of the Code of Virginia. The Virginia Board of Education shall require any such instructor to maintain continuous employment in such position at the institution of higher education as a condition of continued license. The provisions of this regulation shall expire on July 1, 2021, however, any license issued pursuant to the act prior to July 1, 2021, shall remain in effect for three years from the date it was issued unless such license is revoked by the Virginia Board of Education.

"Collegiate Professional License" means a five-year 10-year, renewable teaching license available to an individual who has satisfied all requirements for licensure set forth in this chapter, including an earned baccalaureate degree from a regionally accredited college or university and the professional teacher's assessments prescribed by the Virginia Board of Education.

"Denial" means the refusal to grant a license.

"Division Superintendent License" means a five-year 10-year, renewable license available to an individual who has completed an earned master's degree from a regionally accredited college or university and meets the requirements specified in 8VAC20-23-630. The individual's name shall be listed on the Virginia Board of Education's list of eligible division superintendents.

"Experiential learning" means a process of applying for an initial license through the alternate route as prescribed by the Virginia Board of Education and meeting the criteria specified in 8VAC20-23-90 E to be eligible to request experiential learning credits in lieu of the coursework for the endorsement (teaching) content area.

"Industry certification credential" means an active career and technical education credential that is earned by successfully completing a Virginia Board of Education-approved industry certification examination, being issued a professional license in the Commonwealth, or successfully completing an occupational competency examination.

"International Educator License" means a professional teaching license issued for no more than five years to an exchange teacher with citizenship in a nation other than the United States of America who meets requirements by a state-approved, federally-designated Exchange Visitor Program and who is employed as a teacher in a Virginia public school or an accredited nonpublic school.

"Licensure by reciprocity" means a process used to issue a license to an individual coming into Virginia from another state when that individual meets certain conditions specified in this chapter.

"Mentor" means a classroom teacher hired by the local school division who has achieved continuing contract status or other instructional personnel including retired teachers who meet local mentor selection criteria. The mentor should work in the same building as the beginning teacher or be instructional personnel who is assigned solely as a mentor. A mentor should be assigned a limited number of teachers at any time. Instructional personnel who are not assigned solely as mentors should not be assigned to more than four teachers at any time. Mentors guide teachers in the program through demonstrations, observations, and consultations.

"One-Year High School License" means a license valid for one-year and renewable thereafter in one-year increments to teach in public high schools for individuals who have met requirements for such license as set forth in this chapter.

"Online Teacher License" means a five-year 10-year, renewable license valid only for teaching online courses. Teachers who hold a five-year or 10-year renewable license issued by the Virginia Board of Education may teach online courses for which they are properly endorsed and do not need to seek this license.

"Postgraduate Professional License" means a five-year 10-year, renewable license available to an individual who has qualified for the Collegiate Professional License and who holds an appropriate earned graduate degree from a regionally accredited college or university.

"Professional studies" means courses and other learning experiences designed to prepare individuals in the areas of human development and learning, curriculum and instruction, assessment of and for learning, classroom and behavior management, foundations of education and the teaching profession, language and literacy, and supervised clinical experiences.

"Professional teacher assessment" means those tests or other requirements mandated for licensure as prescribed by the Virginia Board of Education.

"Provisional License" means a nonrenewable license valid for a specified period of time not to exceed three years issued to an individual who has allowable deficiencies for full licensure as set forth in this chapter. The individual shall have a minimum of an earned baccalaureate degree from a regionally accredited college or university, with the exception of those individuals seeking the Technical Professional License. The Provisional License will be issued for a three-year validity period, with the exception of the Provisional (Career Switcher) License that will be initially issued for a one-year validity period and Teach For America Provisional License that will be initially issued for a two-year validity period. Individuals shall complete all requirements for licensure, including passing all licensure assessments, for a renewable license within the validity period of the Provisional License.

"Pupil Personnel Services License" means a five-year 10-year, renewable license available to an individual who has earned an appropriate graduate degree from a regionally accredited college or university with an endorsement as a school counselor, school psychologist, school social worker, or vocational evaluator. This license does not require teaching experience unless otherwise outlined under the specific endorsement's requirements.

"Renewable license" means a license issued by the Virginia Board of Education for five 10 years, unless otherwise specified, to an individual who meets all requirements specified in this chapter.

"Revocation" means the withdrawal of a license.

"School Manager License" means a five-year 10-year, renewable license intended to provide for a differentiation of administrative responsibilities in a school setting. A school manager is licensed to administer noninstructional responsibilities in an educational setting. A school manager is restricted from evaluating teachers, supervising instruction, developing and evaluating curriculum, and serving as a school's student disciplinarian. The license is available to a candidate who holds a baccalaureate degree from a regionally accredited college or university; has three years of successful managerial experience; and is recommended for the license by a Virginia school division superintendent.

"Suspension" means the temporary withdrawal of a license.

"Technical Professional License" means a five-year 10-year, renewable license available to an individual who has graduated from a public or accredited nonpublic high school (or possesses a Virginia Board of Education-approved high school equivalency credential); has exhibited academic proficiency, technical competency, and successful occupational experience; and meets the requirements specified in 8VAC20-23-50 A 4.

"Teach For America License" means a two-year provisional license available to an individual who is a participant in Teach For America and meets the requirements specified in 8VAC20-23-50.

8VAC20-23-20. Administering this chapter.

A. In administering this chapter, modifications may be made in exceptional cases by the Superintendent of Public Instruction. Proposed modifications shall be made in writing to the Superintendent of Public Instruction, Commonwealth of Virginia, Virginia Department of Education, P.O. Box 2120, Richmond, Virginia 23218-2120.

B. In administering this chapter, competencies required for endorsement areas are outlined in the Regulations Governing the Review and Approval of Education Programs in Virginia (8VAC20-543). This document should be referenced for detailed information regarding coursework content for endorsements. Individuals shall complete the semester hours required for endorsement areas, or the equivalent, that shall be documented and approved by the Virginia Department of Education.

C. Virginia school divisions may submit requests to the Virginia Department of Education for determination of appropriate endorsements for blended or integrated course options.

D. A local school board or division superintendent may waive any of the following applicable licensure requirements for any individual whom it seeks to employ as a career and technical education teacher and who is also seeking initial licensure or renewal of a license with an endorsement in the area of career and technical education:

1. Demonstrated proficiency in the relevant content area, communication, literacy, and other core skills for educators by achieving a qualifying score on professional assessments or meeting alternative evaluation standards as prescribed by the Virginia Board of Education;

2. Study in attention deficit disorder;

3. Study in gifted education, including the use of multiple criteria to identify gifted students;

4. Study in methods of improving communication between schools and families and ways of increasing family involvement in student learning at home and at school;

5. Renewal requirements, including professional development in a manner prescribed by the Virginia Board of Education;

6. Demonstrated proficiency in reading and writing Braille; and

7. Initial or renewal requirement to complete awareness training, provided by the Virginia Department of Education, on the indicators of dyslexia, as that term is defined by the Virginia Board of Education pursuant to regulations, and the evidence-based interventions and accommodations for dyslexia.

E. Upon the effective date of this chapter, the Virginia Board of Education grants a one-year transition period for the implementation of this chapter.

8VAC20-23-40. Conditions for licensure.

A. Applicants for licensure shall:

1. Be at least 18 years of age;

2. Pay the appropriate fees as determined by the Virginia Board of Education and complete the application process;

3. Have earned a baccalaureate degree, with the exception of the Technical Professional License, from a regionally accredited college or university and meet requirements for the license sought. Persons seeking initial licensure through approved programs from Virginia institutions of higher education shall only be licensed as instructional personnel if the education endorsement programs have approval by the Virginia Board of Education; individuals who have earned a degree from an institution in another country shall hold the equivalent of a regionally accredited college or university degree in the United States, as verified by a Virginia Department of Education-approved credential evaluation agency, for the required degree for the license; and

4. Possess good moral character and be free of conditions outlined in Part VII (8VAC20-23-720 et seq.) of this chapter.

B. All candidates who hold at least a baccalaureate degree from a regionally accredited college or university and who seek an initial Virginia teaching license shall obtain passing scores on professional teacher's assessments prescribed by the Virginia Board of Education. With the exception of the career switcher program that requires assessments as prerequisites, individuals shall complete the professional teacher's assessment requirements within the three-year validity of the initial provisional license. Candidates seeking a Technical Professional License, International Educator License, School Manager License, or Pupil Personnel Services License are not required to take the professional teacher's assessments. Individuals who hold a valid out-of-state license (full credential without deficiencies) and who have completed a minimum of three years of full-time, successful teaching experience in a public or an accredited nonpublic school, kindergarten through grade 12, outside of Virginia are exempt from the professional teacher's assessment requirements. Documentation shall be submitted to verify the school's status as a public or an accredited nonpublic school.

C. All individuals seeking an initial endorsement in early/primary education preK-3, elementary education preK-6, special education-general curriculum, special education-deaf and hard of hearing, special education-blindness and visual impairments, and individuals seeking an endorsement as a reading specialist shall obtain passing scores on a reading instructional assessment prescribed by the Virginia Board of Education.

D. Licensure by reciprocity is set forth in 8VAC20-23-100. A school leaders licensure assessment prescribed by the Virginia Board of Education shall be met for all individuals who are seeking an endorsement authorizing them to serve as principals and assistant principals in the public schools. Individuals seeking an initial administration and supervision endorsement who are interested in serving as central office instructional personnel are not required to take and pass the school leaders licensure assessment prescribed by the Virginia Board of Education.

E. Individuals seeking initial licensure shall demonstrate proficiency in the use of educational technology for instruction,complete study in child abuse recognition and intervention in accordance with curriculum guidelines developed by the Virginia Board of Education in consultation with the Virginia Department of Social Services, and receive professional development in instructional methods tailored to promote student academic progress and effective preparation for the Virginia Standards of Learning end-of-course and end-of-grade assessments relevant content area, communication, literacy, and other core skills for educators by achieving a qualifying score on professional assessments or meeting alternatives evaluation standards as prescribed by the board; complete study in attention deficit disorder; complete study in gifted education, including the use of multiple criteria to identify gifted students; complete study in methods of improving communication between schools and families and ways of increasing family involvement in student learning at home and at school.

F. Every person seeking initial licensure shall (i) complete awareness training, provided by the Department of Education on the indicators of dyslexia, as that term is defined by the Board pursuant to regulations, and the evidence-based interventions and accommodations for dyslexia; (ii) complete study in child abuse recognition and intervention in accordance with curriculum guidelines, developed by the Virginia Board of Education in consultation with the Virginia Department of Social Services; and (iii) provide evidence of completion of certification or training in emergency first aid, cardiopulmonary resuscitation, and the use of automated external defibrillators. The certification or training program shall (a) be based on the current national evidenced-based emergency cardiovascular care guidelines for cardiopulmonary resuscitation and the use of an automated external defibrillator, such as a program developed by the American Heart Association or the American Red Cross; and (b) include hands-on practice of the skills necessary to perform cardiopulmonary resuscitation. The Virginia Board of Education shall provide a waiver for this requirement for any person with a disability whose disability prohibits such person from completing the certification or training.

G. Every person seeking initial licensure as a teacher who has not received the instruction described in subsection D of § 23.1-902 of the Code of Virginia shall receive instruction or training on positive behavior interventions and supports; crisis prevention and de-escalation; the use of physical restraint and seclusion, consistent with regulations of the Virginia Board of Education; and appropriate alternative methods to reduce and prevent the need for the use of physical restraint and seclusion.

H. The teacher of record for verified credit courses for high school graduation shall hold a Virginia license with the appropriate content endorsement.

H. I. Every teacher seeking an initial license in the Commonwealth with an endorsement in the area of career and technical education shall have an industry certification credential, as defined in 8VAC20-23-10, in the area in which the teacher seeks endorsement. If a teacher seeking an initial license in the Commonwealth has not attained an industry certification credential in the area in which the teacher seeks endorsement, the Virginia Board of Education may, upon request of the employing school division or educational agency, issue the teacher a provisional license to allow time for the teacher to attain such credential.

I. J. Effective July 1, 2017, every Every person seeking renewal of a license shall complete awareness training, provided by the Virginia Department of Education, on the indicators of dyslexia, as that term is defined by the Virginia Board of Education pursuant to regulations, and the evidence-based interventions and accommodations for dyslexia.

K. No teacher who seeks a provisional license shall be required to meet any requirement set forth in subdivision F, G, or I as a condition of such licensure, but each teacher shall complete each such requirement during the first year of provisional licensure.

L. Every person seeking initial licensure of a license with an endorsement as a school counselor shall complete training in the recognition of mental health disorder and behavioral distress, including depression, trauma, violence, youth suicide, and substance abuse.

8VAC20-23-50. Types of licenses; dating licenses.

A. The following types of licenses are available:

1. Provisional License. The Provisional License is a nonrenewable license valid for a period not to exceed three years issued to an individual who has allowable deficiencies for full licensure as set forth in this chapter. The Provisional License will be issued for a three-year validity period, with the exceptions of the Provisional (Career Switcher) License that will initially be issued for a one-year validity period and the Provisional Teach For America License issued for a two year validity period. Individuals shall complete all requirements for licensure, including passing all licensure assessments, for a renewable license within the validity period of the Provisional License. The individual shall have a minimum of an earned baccalaureate degree from a regionally accredited college or university, with the exception of those individuals seeking the Technical Professional License.

The Virginia Board of Education shall extend for at least one additional year, but for no more than two additional years, the three-year provisional license of a teacher upon receiving from the division superintendent (i) a recommendation for such extension and (ii) satisfactory performance evaluations for such teacher for each year of the original three-year provisional license. If a teacher employed in the Commonwealth under a provisional license is activated or deployed for military service within a school year (July 1 through June 30), an additional year shall be added to the teacher's provisional license for each school year or portion thereof during which the teacher is activated or deployed. The additional year shall be granted the year following the return of the teacher from deployment or activation.

The Virginia Board of Education shall issue a license to an individual seeking initial licensure who has not completed professional assessments as prescribed by the board if such individual (i) holds a provisional license that will expire within three months; (ii) is employed by a school board; (iii) is recommended for licensure by the division superintendent; (iv) has attempted, unsuccessfully, to obtain a qualifying score on the professional assessments as prescribed by the Virginia Board of Education; (v) has received an evaluation rating of proficient or above on the performance standards for each year of the provisional license, and such evaluation was conducted in a manner consistent with the Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents; and (vi) meets all other requirements for initial licensure.

2. Collegiate Professional License. The Collegiate Professional License is a five-year 10-year, renewable license available to an individual who has satisfied all requirements for licensure, including an earned baccalaureate degree from a regionally accredited college or university and the professional teacher's assessments prescribed by the Virginia Board of Education.

3. Postgraduate Professional License. The Postgraduate Professional License is a five-year 10-year, renewable license available to an individual who has qualified for the Collegiate Professional License and who holds an appropriate earned graduate degree from a regionally accredited college or university.

4. Technical Professional License. The Technical Professional License is a five-year 10-year, renewable license available to a person who has graduated from a public or an accredited nonpublic high school or possesses a Virginia Board of Education-approved high school equivalency credential; has exhibited academic proficiency, skills in literacy and communication, technical competency, and successful occupational experience; has completed nine semester hours of specialized professional studies credit from a regionally accredited college or university; and has completed one year of successful, full-time teaching experience in a public school or accredited nonpublic school in the area of endorsement. The nine semester hours of professional studies coursework shall include three semester hours of human development and learning, three semester hours of curriculum and instruction, and three semester hours of applications of instructional technology or classroom and behavior management. The Technical Professional License is issued at the recommendation of a Virginia employing educational agency in the areas of career and technical education, educational technology, and military science. Individuals seeking an endorsement to teach military science shall have the appropriate credentials issued by the United States military. The employing Virginia educational agency shall ensure the credentials issued by the United States military are active during the period the individual is teaching. In addition to demonstrating competency in the endorsement area sought, the individual shall:

a. Hold a valid license issued by the appropriate Virginia board for those program areas requiring a license and a minimum of two years of successful experience at the journeyman level or an equivalent. The employing Virginia educational agency shall ensure that the valid license issued by the appropriate Virginia board for the occupational program area is active during the period the individual is teaching;

b. Have completed a registered apprenticeship program and two years of successful experience at the journeyman level or an equivalent level in the trade; or

c. Have four years of successful work experience at the management or supervisory level or equivalent or have a combination of four years of training and successful work experience at the management or supervisory level or equivalent.

Individuals holding the Technical Professional License who seek the Collegiate Professional or Postgraduate Professional License shall meet the requirements of the respective licenses.

5. School Manager License. The school manager license is a five-year 10-year, renewable license intended to provide for the differentiation of administrative responsibilities in a school setting. A school manager is licensed to administer noninstructional responsibilities in an educational setting. A school manager is restricted from evaluating teachers, supervising instruction, developing and evaluating curriculum, and serving as a school's student disciplinarian. The license is available to a candidate who holds a baccalaureate degree from a regionally accredited college or university, has three years of successful managerial experience, and is recommended for the license by a Virginia school division superintendent.

6. Pupil Personnel Services License. The Pupil Personnel Services License is a five-year 10-year, renewable license available to an individual who has earned an appropriate graduate degree from a regionally accredited college or university with an endorsement for school counselor, school psychologist, school social worker, or vocational evaluator. This license does not require teaching experience, unless otherwise outlined under the specific endorsement's requirements.

7. Division Superintendent License. The Division Superintendent License is a five-year 10-year, renewable license available to an individual who has completed an earned master's degree from a regionally accredited college or university and meets the requirements specified in 8VAC20-23-630. The individual's name shall be listed on the Virginia Board of Education's list of eligible division superintendents.

8. International Educator License. The International Educator License provides a five-year cultural exchange opportunity for Virginia students and international teachers. The International Educator License is a professional teaching license issued for no more than five years to an exchange teacher with citizenship in a nation other than the United States of America who is employed as a teacher in a Virginia public or accredited nonpublic school. To be issued the five-year, nonrenewable International Educator License, an individual serving as a cultural exchange teacher in Virginia shall:

a. Be employed by a Virginia public or an accredited nonpublic school;

b. Hold non-United States citizenship and be a nonpermanent resident; and

c. Meet the following requirements as verified by a state-approved, federally-designated Exchange Visitor Program (22 CFR Part 62):

(1) Be proficient in written and spoken English;

(2) Demonstrate competence in the appropriate academic subject area or areas by meeting the credential requirements for a qualified teacher in the exchange country;

(3) Hold the United States equivalent of a baccalaureate degree or higher as determined by an approved credential evaluation agency; and

(4) Complete at least two years of successful full-time teaching experience that enables the educator to fulfill a similar assignment in his home country or is comparable to those requirements for Virginia teachers.

If an individual meets requirements of subdivisions 8 a, 8 b, 8 c (1), 8 c (2), and 8 c (3) of this subsection and has completed at least one year, but less than two years, of successful full-time teaching experience that would enable the educator to fulfill a similar assignment in his home country or is comparable to those requirements for Virginia teachers, the International Educator License will be issued for three years with an option to extend the nonrenewable International Educator License for the additional two years upon passing all teacher assessments prescribed by the Virginia Board of Education and a recommendation of the Virginia employing school division or accredited nonpublic school.

Individuals who have been issued an International Educator License who seek a five-year 10-year, renewable license shall meet all licensure and endorsement requirements, including passing applicable assessments prescribed by the Virginia Board of Education.

9. Online Teacher License. The Online Teacher License is a five-year 10-year, renewable license valid only for teaching online courses. Teachers who hold a five-year or 10-year renewable license issued by the Virginia Board of Education may teach online courses for which they are properly endorsed and do not need to seek this license.

a. In order to be issued an Online Teacher License, the individual shall meet the requirements for an endorsement in a content (teaching) area and professional studies and achieve qualifying scores on professional teacher's assessments as prescribed by the Virginia Board of Education. In addition, the individual shall complete a three-semester-hour course in online instructional procedures.

Online instructional procedures: Three semester hours. Skills in this area shall contribute to an understanding of the principles of online learning and online instructional strategies and the application of skills and the ability to use the Internet for teaching, learning, and management; design, deliver, and support instruction in an online environment; adapt strategies for a variety of course models, such as synchronous and asynchronous; select, adapt, and create rich multimedia for instruction; adapt individualized education program requirements to online course practices, as appropriate; use data to meet individual student's needs; and employ innovative teaching strategies in an online environment. Demonstrated proficiency of advanced skills in the following areas shall be addressed: use of communication technologies to interact with and engage students, parents, and mentors; use of education technologies; management of instructional activities in a technology-mediated environment; and nontraditional content delivery methods.

b. Online teaching experience is not acceptable to meet the full-time teaching experience for other license types, such as a Division Superintendent License, or for endorsements, such as for the reading specialist, school counselor, or administration and supervision endorsements. The Online Teacher License may be issued if requirements have been met as one of the following licenses to individuals teaching only online courses:

(1) Online Teacher (Postgraduate Professional) License - a five-year 10-year, renewable license available to an individual who has qualified for the Online Teacher (Collegiate Professional) License and who holds an appropriate earned graduate degree from a regionally accredited college or university.

(2) Online Teacher (Collegiate Professional) License - a five-year 10-year, renewable teaching license available to an individual who has satisfied all requirements for licensure, including an earned baccalaureate degree from a regionally accredited college or university, endorsement and professional studies requirements, and passed the professional teacher's assessments prescribed by the Virginia Board of Education, or

(3) Online Teacher (Technical Professional) License - a five-year 10-year, renewable teaching license available to an individual who has graduated from a public or an accredited nonpublic high school or possesses a Virginia Board of Education-approved high school equivalency credential; has exhibited academic proficiency, technical competency, and occupational experience; and meets the requirements specified in subdivision 4 of this subsection. An individual seeking an Online Teacher (Technical Professional) License shall be recommended for the license by a Virginia public school, a Virginia accredited nonpublic school, or an accredited virtual school program.

c. A nonrenewable Online Teacher (Provisional) License may be issued for a period not to exceed three years to an individual who has allowable deficiencies for full licensure as set forth in 8VAC20-23-90 B. The Online (Provisional) License will be issued for three years. The individual shall have a minimum of an earned baccalaureate degree from a regionally accredited college or university, with the exception of those individuals seeking the Technical Professional License. Individuals shall complete all requirements for a renewable Online Teacher License within the validity period of the license.

10. Teach For America License. The Teach For America License is a two-year provisional license.

a. This provisional license is available to any participant in Teach For America, a nationwide nonprofit organization focused on closing the achievement gaps between students in high-income and low-income areas, who submits an application and meets the following requirements:

(1) Holds, at minimum, a baccalaureate degree from a regionally accredited institution of higher education;

(2) Has met the requirements prescribed by the Virginia Board of Education for all endorsements sought or has met the qualifying scores on the content area assessment prescribed by the board for the endorsements sought;

(3) Possesses good moral character according to criteria developed by the Virginia Board of Education;

(4) Has been offered and has accepted placement in Teach For America;

(5) Has successfully completed preservice training and is participating in the professional development requirements of Teach For America, including teaching frameworks, curricula, lesson planning, instructional delivery, classroom management, assessment and evaluation of student progress, classroom diversity, and literacy development;

(6) Has an offer of employment from a local school board to teach in a public elementary or secondary school in the Commonwealth or a preschool program that receives state funds pursuant to subsection C of § 22.1-199.1 of the Code of Virginia; and

(7) Receives a recommendation from the employing school division for a Teach For America License in the endorsement area in which the individual seeks to be licensed.

b. In addition to the criteria set forth in subdivision 10 a of this subsection, any individual who seeks an endorsement in early childhood, early/primary, or elementary education shall either (i) agree to complete such coursework in the teaching of language and literacy as may be prescribed by the Virginia Board of Education pursuant to 8VAC20-23-130 during the first year of employment or (ii) achieve a passing score on a reading instructional assessment prescribed by the Virginia Board of Education.

c. Teachers issued a Teach For America provisional license shall not be eligible for continuing contract status while employed under the authority of a Teach For America license and shall be subject to the probationary terms of employment specified in § 22.1-303 of the Code of Virginia.

d. The Virginia Board of Education may extend any Teach For America License for one additional year upon request of the employing school division, provided that no Teach For America License shall exceed a total of three years in length.

e. Notwithstanding any provision of law to the contrary, upon completion of at least two years of full-time teaching experience in a public elementary or secondary school in the Commonwealth or a preschool program that receives state funds pursuant to subsection C of § 22.1-199.1 of the Code of Virginia, an individual holding a Teach For America License shall be eligible to receive a renewable license if he has (i) achieved satisfactory scores on all professional teacher assessments required by the Virginia Board of Education and (ii) received satisfactory evaluations at the conclusion of each year of employment.

f. Notwithstanding any provision of law to the contrary, the Virginia Board of Education shall issue a Teach For America License to any individual who (i) has completed two years of successful teaching in the Teach For America program in another state, (ii) is not eligible to receive a renewable license, and (iii) meets the criteria set forth in subdivision 10 a of this subsection.

11. Career and Technical Education License. The Career and Technical Education License is a three-year license.

a. This license is available to qualified individuals to teach, either full time or part time, high school career and technical education courses in specific subject areas.

b. The three-year license is issued to teach high school career and technical education courses in a specific subject area to an individual who:

(1) Submits an application to the Virginia Board of Education, in the form prescribed by the Virginia Board of Education, that includes a recommendation for such a license from the local school board;

(2) Meets certain basic conditions for licensure as prescribed by the Virginia Board of Education;

(3) Meets one of the following requirements:

(a) Holds, at a minimum, a baccalaureate degree from a regionally accredited institution of higher education and has completed coursework in the career and technical education subject area in which the individual seeks to teach,

(b) Holds the required professional license in the specific career and technical education subject area in which the individual seeks to teach, where applicable, or

(c) Holds an industry certification credential, as that term is defined in § 22.1-298.1 of the Code of Virginia, in the specific career and technical education subject area in which the individual seeks to teach;

(4) Has at least four years of full-time work experience or its equivalent in the specific career and technical education subject area in which the individual seeks to teach; and

(5) If appropriate, has obtained qualifying scores on the communication and literacy professional teacher's assessment prescribed by the Virginia Board of Education.

c. The employing school board shall assign a mentor to supervise an individual issued a three-year license pursuant to this section during the individual's first two years of teaching.

d. Except as otherwise provided in subdivision A 11 e of this section, any individual issued a three-year license pursuant to this section may be granted subsequent three-year extensions of such license by the Virginia Board of Education upon recommendation of the local school board.

e. Any individual issued a three-year license pursuant to this section who completes (i) nine semester hours of specialized professional studies credit from a regionally accredited institution of higher education or (ii) an alternative course of professional studies proposed by the local school board and approved by the Virginia Department of Education shall be granted a three-year extension of such license by the board and may be granted subsequent three-year extensions of such license by the board upon recommendation of the local school board. Any such specialized professional studies credit or alternative course of professional studies may be completed through distance learning programs and shall include human growth and development; curriculum, instructional, and technology procedures; and classroom and behavior management.

f. No three-year license issued by the board pursuant to this section shall be deemed a provisional license or a renewable license, as those terms are defined in § 22.1-298.1 of the Code of Virginia.

g. Individuals issued a three-year license pursuant to this section shall not be eligible for continuing contract status while teaching under such license and shall be subject to the probationary terms of employment specified in § 22.1-303 of the Code of Virginia.

h. The provisions of this section and of Virginia Board of Education regulations governing the denial, suspension, cancellation, revocation, and reinstatement of licensure shall apply to three-year licenses.

12. One-Year High School License. The One-Year High School License is for individuals seeking licensure through an alternate route. The license is a renewable, one-year license issued to teach in public high schools for individuals who:

a. Received a graduate degree from a regionally accredited institution of higher education;

b. Completed at least 30 credit hours of teaching experience as an instructor at a regionally accredited institution of higher education;

c. Received qualifying scores on the professional teacher's assessments prescribed by the Virginia Board of Education, including the communication and literacy assessment and the content-area assessment for the endorsement sought; and

d. Met the following requirements:

(1) Complete study in child abuse recognition and intervention in accordance with curriculum guidelines developed by the Virginia Board of Education in consultation with the Department of Social Services that are relevant to the specific teacher licensure route; and

(2) Provide evidence of completion of certification or training in emergency first aid, cardiopulmonary resuscitation, and the use of automated external defibrillators. The certification or training program shall be (i) based on the current national evidence-based emergency cardiovascular care guidelines for cardiopulmonary resuscitation and the use of an automated external defibrillator, such as a program developed by the American Heart Association or the American Red Cross and (ii) include hands-on practice of the skills necessary to perform cardiopulmonary resuscitation. The Virginia Board of Education shall provide a waiver for this requirement for any person with a disability whose disability prohibits such person from completing the certification or training.

The license may be renewed for one year by the submission of an application for renewal and verification from the division superintendent that the individual received a satisfactory performance evaluation.

13. Career and Technical Education or Dual Enrollment License. The Career and Technical Education or Dual Enrollment License is a three-year license to solely teach career and technical education courses or dual enrollment courses at public high schools in the Commonwealth issued to any individual who (i) is employed as an instructor by an institution of higher education that is accredited by a nationally recognized regional accreditation body, (ii) is teaching in the specific career and technical education or dual enrollment subject area at such institution in which the individual seeks to teach at a public school, and (iii) complies with the requirements set forth in subsections E and F of 8VAC20-23-40. The Virginia Board of Education shall require any such instructor to maintain continuous employment in such position at the institution of higher education as a condition of continued licensure. Subsections E and F of 8VAC20-23-40 shall expire on July 1, 2021, however, any license issued pursuant to this regulation prior to July 1, 2021, shall remain in effect for three years from the date the license was issued unless such license is revoked by the Virginia Board of Education.

B. All licenses will be effective from July 1 in the school year in which the application is made. An employing Virginia public school division, agency, or accredited nonpublic school is required to notify employees in writing at the time of employment of the need to meet appropriate assessment requirements for licensure.

8VAC20-23-90. Alternate routes to licensure.

A. Career switcher alternate route to licensure for career professionals - Provisional (Career Switcher) License. An alternate route is available to career switchers who seek teaching endorsements preK through grade 12 with the exception of special education.

1. An individual seeking a Provisional (Career Switcher) License through the career switcher program shall meet the following prerequisite requirements:

a. An application process;

b. An earned baccalaureate degree from a regionally accredited college or university;

c. The completion of requirements for an endorsement in a teaching area or the equivalent through verifiable experience or academic study;

d. At least three years of successful full-time work experience or its equivalent; and

e. Virginia qualifying scores on the professional teacher's assessments as prescribed by the Virginia Board of Education.

2. The Provisional (Career Switcher) License is awarded at the end of Level I preparation for an initial validity period of one school year. All components of the career switcher alternate route for career professionals shall be completed by the candidate.

3. The Level I requirements shall be completed during the course of a single year and may be offered through a variety of delivery systems, including distance learning programs. If an employing agency recommends extending the Provisional (Career Switcher) License for a second year, the candidate will enter Level III of the program. Career switcher programs shall submit program documentation as set forth by the Virginia Department of Education for review and be certified every seven years by the Virginia Department of Education.

a. Level I preparation. Intensive Level I preparation includes a minimum of 180 clock hours of instruction, including field experience. This phase includes human development and learning; curriculum and instruction, including technology; language and literacy; specific course content relating to the Virginia Standards of Learning; foundations of education and the teaching profession; classroom and behavior management; and assessment of and for learning.

b. Level II preparation during first year of employment.

(1) Candidate seeks employment in Virginia with the one-year Provisional (Career Switcher) License.

(2) Continued Level II preparation during the first year of employment with a minimum of five seminars that expand the intensive preparation requirements listed in subdivision 3 a of this subsection. The five seminars will include a minimum of 20 cumulative instructional hours. A variety of instructional delivery techniques will be utilized to implement the seminars.

(3) One year of successful, full-time teaching experience in a Virginia public or accredited nonpublic school under a one-year Provisional (Career Switcher) License. A trained mentor shall be assigned to assist the candidate during the first year of employment. Responsibilities of the mentor include the following:

(a) Collaborate with the beginning teacher in the development and implementation of an individualized professional development plan;

(b) Observe, assess, coach, and provide opportunities for constructive feedback, including strategies for self-reflection;

(c) Share resources and materials;

(d) Share best instructional, assessment, and organizational practices; classroom and behavior management strategies; and techniques for promoting varied and effective methods of communication with and among students; and

(e) Provide general support and direction regarding school policies and procedures.

(4) Upon successful completion of the Levels I and II preparation requirements of the career switcher alternate route to licensure program and submission of a recommendation from the employing Virginia educational agency, the candidate will be eligible to apply for a five-year 10-year, renewable license. Renewal requirements for the regular license will be subject to current regulations of the Virginia Board of Education.

c. Level III preparation, if required.

(1) Post preparation, if required, will be conducted by the employing Virginia educational agency to address the areas where improvement is needed as identified in the candidate's professional improvement plan; and

(2) Upon successful completion of Levels I, II, and, if required, Level III of the career switcher alternate route to licensure program and submission of a recommendation from the employing Virginia educational agency, the candidate will be eligible to receive a five-year 10-year renewable license.

4. Verification of program completion will be documented by the certified program provider and the division superintendent or designee.

5. Certified providers implementing a career switcher program may charge a fee for participation in the program.

B. An alternate route is available to individuals employed by a Virginia educational agency who seek teaching endorsements preK through grade 12. The employing Virginia educational agency may request a nonrenewable Provisional License on behalf of the individual if the individual has completed an allowable portion of professional studies and endorsement requirements. An employed teacher may demonstrate meeting the teaching endorsement requirements by passing a rigorous academic subject test for endorsements in which a test is prescribed by the Virginia Board of Education. This testing option does not apply to individuals (i) who are seeking an early/primary education preK-3 or elementary education preK-6 endorsement, special education endorsements, or a reading specialist endorsement or (ii) who hold a Technical Professional License, Vocational Evaluator License, Pupil Personnel Services License, School Manager License, or Division Superintendent License. This route also is available to individuals who are employed by a Virginia public school, a Virginia accredited nonpublic school, or an accredited virtual school or program and who are seeking the Online Teacher License that is issued to teachers who teach only online courses. The Provisional License will be issued for a validity period not to exceed three years. The Provisional License is a nonrenewable teaching license valid for a period not to exceed three years. Individuals shall complete all licensure requirements to become eligible for the five-year 10-year, renewable license.

1. An individual seeking a license through this alternate route shall have met the following requirements:

a. Entered the teaching field through the alternate route to licensure upon the recommendation of the employing Virginia educational agency. For the Online Teacher Provisional License, individuals shall be employed by a Virginia public school division, a Virginia accredited nonpublic school, or an accredited virtual school or program;

b. Earned a baccalaureate degree from a regionally accredited college or university with the exception of individuals seeking the Technical Professional License;

c. Have met requirements for the endorsement area; and

d. Need to complete an allowable portion of professional studies and licensure requirements.

2. The professional studies requirements for the appropriate level of endorsement sought shall be completed. A Virginia educational agency may submit to the Superintendent of Public Instruction for approval an alternate program to meet the professional studies requirements. The alternate program shall include training such as seminar, internship, or coursework in human development and learning; curriculum and instruction, including technology; assessment of and for learning; classroom and behavior management; foundations of education and the teaching profession, including legal status of teachers and students, federal and state laws, and teacher evaluation as prescribed by the Virginia Board of Education's guidelines for performance standards and evaluation criteria established pursuant to § 22.1-253.13:5 B of the Code of Virginia and language and literacy.

3. One year of successful, full-time teaching experience in the appropriate teaching area in a Virginia public or an accredited nonpublic school shall be completed. For the Online Teacher License only, one year of successful online teaching experience in the endorsement area in a public school division, an accredited nonpublic school, or an accredited virtual school or program may be accepted in lieu of the supervised teaching experience. A fully licensed experienced teacher shall be available in the school building to assist the beginning teacher employed through the alternate route.

C. Alternate route in special education. The Provisional (Special Education) License is a nonrenewable teaching license issued for a validity period not to exceed three years to an individual employed as a special education teacher in a public school or a nonpublic school in Virginia who does not hold the appropriate special education endorsement. The Provisional (Special Education) License will be issued only with endorsements in special education. The Provisional License is a nonrenewable teaching license valid for a period not to exceed three years. This alternate route to special education endorsement is not applicable to individuals seeking the Online Teacher License. To be issued the Provisional (Special Education) License through this alternate route, an individual shall:

1. Be employed by a Virginia public or accredited nonpublic school as a special education teacher and have the recommendation of the employing educational agency;

2. Have earned a baccalaureate degree from a regionally accredited college or university;

3. Have an assigned mentor with an active Virginia teaching license with an endorsement in special education; and

4. Have a planned program of study in the assigned endorsement area, make progress toward meeting the endorsement requirements each of the three years of the license, and have completed at least three semester hours of coursework in the competencies of foundations for educating students with disabilities and have an understanding and application of the legal aspects and regulatory requirements associated with identification, education, and evaluation of students with disabilities. A survey course integrating these competencies would satisfy this requirement.

The Provisional (Special Education) License issued through this alternate route shall not be issued without the completion of these prerequisites.

D. Alternate programs at institutions of higher education or Virginia school divisions. Alternate programs developed by institutions of higher education (i) recognize the unique strengths of prospective teachers from nontraditional backgrounds and (ii) prepare these individuals to meet the same standards that are established for others who are granted a license through an alternate route.

E. Experiential learning. Individuals applying for an initial teaching license through the alternate route as prescribed by the Virginia Board of Education shall meet the following criteria to be eligible to request that experiential learning satisfy the coursework for the endorsement (teaching) content area:

1. Have earned a baccalaureate degree from a regionally accredited college or university;

2. Have at least three years of documented successful full-time work experience that may include specialized training related to the endorsement sought; and

3. Have met the Virginia qualifying score on the content knowledge assessment prescribed by the Virginia Board of Education.

Experiential learning does not apply to individuals seeking special education and preK-3 and preK-6 endorsements or endorsements in which there is no Virginia Board of Education - prescribed content or subject assessment.

8VAC20-23-100. Conditions for licensure for out-of-state candidates by reciprocity.

A. An individual coming into Virginia from any state may qualify for a Virginia teaching license with comparable endorsement areas if the individual (i) has completed a state-approved teacher preparation program through a regionally accredited four-year college or university or (ii) holds a valid out-of-state teaching license (full credential without deficiencies) that shall be in force at the time the application for a Virginia license is made. An individual shall meet licensure requirements set forth in the Code of Virginia. An individual seeking licensure shall establish a file in the Virginia Department of Education by submitting a complete application packet that includes official student transcripts. Unless exempted by the criteria in subsection C of this section chapter, professional teacher's assessment requirements prescribed by the Virginia Board of Education shall be satisfied.

B. An individual coming into Virginia will qualify for a Virginia teaching license with comparable endorsement areas if the individual holds an active national certification from the National Board for Professional Teaching Standards (NBPTS) or a nationally recognized certification program approved by the Virginia Board of Education.

C. Individuals who hold a valid out-of-state license (full credential without deficiencies) and who have completed a minimum of three years of full-time, successful teaching experience in a public or an accredited nonpublic school, kindergarten through grade 12, outside of Virginia are exempt from the professional teacher's assessment requirements. Documentation shall be submitted to verify the school's status as a public or accredited nonpublic school.

C. Licensure by reciprocity is provided for any spouse of an active duty member of the Armed Forces of the United States or the Commonwealth who has obtained a valid out-of-state license, with full credentials and without deficiencies, that is in force at the time the application for a Virginia license is received by the Virginia Department of Education. Each such individual shall establish a file in the Virginia Department of Education by submitting a complete application packet, which shall include official student transcripts. No service requirements or licensing assessments shall be required for any such individual.

D. Licensure by reciprocity is provided for individuals who have obtained a valid out-of-state license, with full credentials and without deficiencies, that is in force at the time the application for a Virginia license is received by the Virginia Department of Education. Each such individual shall establish a file in the Virginia Department of Education by submitting a complete application packet, which shall include official student transcripts. No service requirements or licensing assessments shall be required for any such individual.

E. For licensure by reciprocity, applicants may submit third-party employment verification forms.

F. For licensure by reciprocity, the board shall grant special consideration to individuals who have successfully completed a program offered by a provider that is accredited by the Council for the Accreditation of Educator Preparation.

8VAC20-23-110. Requirements for renewing a license.

A. The Division Superintendent, Postgraduate Professional, Collegiate Professional, Technical Professional, Pupil Personnel Services, Online Teacher, and School Manager Licenses may be renewed upon the completion of 180 270 professional development points within a five-year 10-year validity period based on an individualized professional development plan that includes ongoing, sustained, and high-quality professional development. Individuals renewing a five-year renewable license must complete 180 professional development points. Every person seeking renewal of a license shall complete all renewal requirements, including professional development in a manner prescribed by the Virginia Board of Education, except that no person seeking renewal of a license shall be required to satisfy any such requirement by completing coursework and earning credit at an institution of higher education.

B. An individual seeking renewal shall submit a completed licensure application at the time a renewal request is submitted.

C. Any individual licensed and endorsed to teach (i) middle school civics or economics or (ii) high school government or history who is seeking renewal of such license is required to demonstrate knowledge of Virginia history or state and local government by completing a module or professional development course specifically related to Virginia history or state and local government that has a value of five professional development points.

D. Every person seeking renewal of a license shall provide evidence of completion of certification or training in emergency first aid, cardiopulmonary resuscitation, and the use of automated external defibrillators. The certification or training program shall (i) be based on the current national evidence-based emergency cardiovascular care guidelines for cardiopulmonary resuscitation and the use of an automated external defibrillator, such as a program developed by the American Heart Association or the American Red Cross, and (ii) include hands-on practice of the skills necessary to perform cardiopulmonary resuscitation. The Virginia Board of Education shall provide a waiver for this requirement for any person with a disability whose disability prohibits such person from completing the certification or training.

E. Every person seeking renewal of a license shall demonstrate proficiency in the use of educational technology for instruction with an endorsement as a school counselor shall complete training in the recognition of mental health disorder and behavioral distress, including depression, trauma, violence, youth suicide, and substance abuse.

F. Every person seeking renewal of a license shall complete awareness training, provided by the Virginia Department of Education, on the indicators of dyslexia, as that term is defined by the Virginia Board of Education pursuant to regulations, and the evidence-based interventions and accommodations for dyslexia.

G. Training in instructional methods tailored to promote academic progress and effective preparation for the Virginia Standards of Learning tests and end-of-grade assessments is required for licensure renewal.

H. G. Every person seeking renewal or initial license shall complete a study in child abuse recognition and intervention in accordance with curriculum guidelines developed by the Virginia Board of Education in consultation with the Virginia Department of Social Services.

I. H. When provided by the state, individuals shall complete other professional development activities prescribed by the Virginia Board of Education.

J. I. Professional development points may be accrued by the completion of professional development activities to improve and increase instructional personnel's knowledge of the academic subjects the teachers teach or the area assigned from one or more of the following eight options, in accordance with Virginia Board of Education guidelines set forth in the Virginia Licensure Renewal Manual.

1. College credit. Acceptable coursework offers content that provides new information and is offered on campus, off campus, or through extension by any regionally accredited two-year or four-year college or university. College coursework shall develop further experiences in subject content taught, teaching strategies, uses of technologies, leadership, and other essential elements in teaching to high standards and increasing student learning. No person seeking renewal of a license shall be required to complete coursework and earn credit at an institution of higher learning.

2. Professional conference. A professional conference is a workshop, institute, or seminar of four or more hours that contributes to ongoing, sustained, and high-quality professional development.

3. Curriculum development. Curriculum development is a group activity in which the license holder contributes to the improvement of the curriculum of a school, a school division, or an educational institution in the teaching area assigned. This includes the alignment of curriculum frameworks, instructional materials, and assessments to provide a system with clear expectations of what is to be taught and learned.

4. Publication of article. The article shall contribute to the education profession or to the body of knowledge of the license holder's teaching area or instructional position. This article shall be published in a recognized professional journal. Grant reports that present the results of educational research are acceptable provided the license holder had an active role in planning, analyzing, interpreting, demonstrating, disseminating, or evaluating the study or innovation.

5. Publication of book. Books shall be published for purchase and shall contribute to the education profession or to the body of knowledge of the license holder's teaching area or instructional position. The published book shall increase the field of content knowledge; provide information on planning and assessment for evaluating and providing students with feedback that encourages student progress and measures student achievement; reference instruction, safety, and learning environment; expand upon and communication and community relations working with students, parents, and members of the community to promote broad support for student learning. Points will not be awarded for self-published books.

6. Mentorship. Mentoring is the process by which an experienced professional who has received mentorship training provides assistance to one or more persons for the purpose of improving their performance. Assistance may involve role modeling, direct instruction, demonstration, observation with feedback, developing of plans, and consultation to promote instructional excellence and increased student achievement. Mentoring may include the supervision of a field experience of a pre-service student teacher or an intern in an approved teacher or principal preparation program, as well as mentoring as part of the induction process for a beginning teacher or a first-year administrator. Individuals serving in this role and submitting documentation for license renewal based on the mentorship option shall receive training as a mentor prior to the assignment and at least once during the five-year 10-year renewal cycle.

7. Educational project. Educational projects shall be planned, focused projects based on high standards of teaching and learning. Projects shall result in a written report or other tangible product. Projects shall contribute to the education profession or to the body of knowledge of the license holder's teaching area or instructional position. A project could include participation in new professional responsibilities, such as leading a school improvement initiative.

8. Professional development activity. Professional development activities shall focus on student learning and achievement, schoolwide educational improvement, leadership, subject content, teaching strategies, and use of technologies or other essential elements in teaching to high standards. Activities shall be planned, rigorous, systematic, and promote continuous inquiry and reflection. Local employing educational agencies are encouraged to design professional development activities that are conducted in school settings and linked to student learning and achievement.

K. J. The 180 270 points may be accrued by activities drawn from one or more of the eight renewal options. Individuals renewing a five-year renewable license must complete 180 professional development points as prescribed by the Virginia Board of Education. Renewal work is designed to provide licensed personnel with opportunities for professional development relative to the grade levels or teaching fields to which they are assigned or for which they seek an added endorsement. Such professional development encompasses (i) responsible remediation of any area of an individual's knowledge or skills that fails to meet the standards of competency and (ii) responsible efforts to increase the individual's knowledge of new developments in his field and to respond to new curricular demands within the individual's area of professional competence.

L. K. The proposed work toward renewal in certain options shall be approved in advance by the chief executive officer or designee of the employing educational agency. Persons who are not employed by an educational agency may renew their license by submitting to the Office of Professional Licensure, Virginia Department of Education, a renewal application, fee, the individualized renewal record, and verification of the completion of all renewal requirements, including official student transcripts of coursework taken at a regionally accredited two-year or four-year college or university.

M. L. Virginia school divisions and accredited nonpublic schools shall recommend renewal of licenses using the renewal point system.

8VAC20-23-130. Professional studies requirements for early/primary education, elementary education, and middle education endorsements.

Professional studies requirements for early/primary education, elementary education, and middle education: 21 semester hours. These requirements may be taught in integrated coursework or modules.

1. Human development and learning (birth through adolescence): 3 semester hours.

a. Skills in this area shall contribute to an understanding of the physical, social, emotional, speech and language, and intellectual development of children and the ability to use this understanding in guiding learning experiences and relating meaningfully to students.

b. The interaction of children with individual differences - economic, social, racial, ethnic, religious, physical, and cognitive- should be incorporated to include skills contributing to an understanding of developmental disabilities and developmental issues related to, but not limited to, low socioeconomic status; attention deficit disorders; developmental disorders; gifted education, including the use of multiple criteria to identify gifted students; substance abuse; trauma, including child abuse and neglect and other adverse childhood experiences; and family disruptions.

2. Curriculum and instruction: 3 semester hours.

a. Early/primary education preK-3 or elementary education preK-6 curriculum and instruction: 3 semester hours.

(1) Skills in this area shall contribute to an understanding of the principles of learning; the application of skills in discipline-specific methodology; varied and effective methods of communication with and among students; selection and use of materials, including media and contemporary technologies; and selection, development, and use of appropriate curricula, methodologies, and materials that support and enhance student learning and reflect the research on unique, age-appropriate, and culturally relevant curriculum and pedagogy.

(2) Understanding of the principles of online learning and online instructional strategies and the application of skills to deliver online instruction shall be included.

(3) Instructional practices that are sensitive to culturally and linguistically diverse learners, including English learners, gifted and talented students, and students with disabilities, and appropriate for the preK-3 or preK-6 endorsement shall be included.

(4) Teaching methods shall be tailored to promote student engagement and student academic progress and effective preparation for the Virginia Standards of Learning assessments.

(5) Study in (i) methods of improving communication between schools and families; (ii) communicating with families regarding social and instructional needs of children; (iii) ways of increasing family engagement in student learning at home and in school; (iv) the Virginia Standards of Learning; and (v) Virginia Foundation Blocks for Early Learning: Comprehensive Standards for Four-Year-Olds prepared by the Virginia Department of Education's Office of Humanities and Early Childhood shall be included.

(6) Early childhood educators shall understand the role of families in child development and in relation to teaching educational skills.

(7) Early childhood educators shall understand the role of the informal and play-mediated settings for promoting students' skills and development and shall demonstrate knowledge and skill in interacting in such situations to promote specific learning outcomes as reflected in Virginia's Foundation Blocks for Early Learning: Comprehensive Standards for Four-Year-Olds.

(8) Demonstrated proficiency in the use of educational technology for instruction shall be required. Study in child abuse recognition and intervention in accordance with curriculum guidelines developed by the Virginia Board of Education in consultation with the Virginia Department of Social Services and training or certification in emergency first aid, cardiopulmonary resuscitation, and the use of automated external defibrillators shall be included. The certification or training program shall (i) be based on the current national evidenced-based emergency cardiovascular care guidelines for cardiopulmonary resuscitation and the use of automated external defibrillator, such as a program developed by the American Heart Association or the American Red Cross, and (ii) include hands-on practice of the skills necessary to perform cardiopulmonary resuscitation.

(9) Pre-student teaching experiences (field experiences) should be evident within these skills.

b. Middle education 6-8 curriculum and instruction: 3 semester hours.

(1) Skills in this area shall contribute to an understanding of the principles of learning; the application of skills in discipline-specific methodology; varied and effective methods of communication with and among students; selection and use of materials, including media and contemporary technologies; and evaluation of pupil performance.

(2) Understanding of the principles of online learning and online instructional strategies and the application of skills to deliver online instruction shall be included.

(3) Instructional practices that are sensitive to culturally and linguistically diverse learners including English learners, gifted and talented students, and students with disabilities, and shall be appropriate for the middle education endorsement shall be included.

(4) Teaching methods shall be tailored to promote student engagement and student academic progress and effective preparation for the Virginia Standards of Learning assessments.

(5) Study in methods of improving communication between schools and families, ways of increasing family engagement in student learning at home and in school, and family engagement with the Virginia Standards of Learning shall be included.

(6) Demonstrated proficiency in the use of educational technology for instruction shall be included. Study in child abuse recognition and intervention in accordance with curriculum guidelines developed by the Virginia Board of Education in consultation with the Virginia Department of Social Services and training or certification in emergency first aid, cardiopulmonary resuscitation, and the use of automated external defibrillators shall be included. The certification or training program shall (i) be based on the current national evidenced-based emergency cardiovascular care guidelines for cardiopulmonary resuscitation and the use of automated external defibrillator, such as a program developed by the American Heart Association or the American Red Cross, and (ii) include hands-on practice of the skills necessary to perform cardiopulmonary resuscitation.

(7) Pre-student teaching experiences (field experiences) should be evident within these skills.

3. Classroom and behavior management: 3 semester hours.

a. Skills in this area shall contribute to an understanding and application of research-based classroom and behavior management techniques, classroom community building, positive behavior supports, and individual interventions, including techniques that promote emotional well-being and teach and maintain behavioral conduct and skills consistent with norms, standards, and rules of the educational environment.

b. This area shall address diverse approaches based upon culturally responsive behavioral, cognitive, affective, social and ecological theory and practice.

c. Approaches should support professionally appropriate practices that promote positive redirection of behavior, development of social skills, and of self-discipline.

d. Knowledge and an understanding of various school crisis management and safety plans and the demonstrated ability to create a safe, orderly classroom environment shall be included.

e. The link between classroom management and students' ages shall be understood and demonstrated in techniques used in the classroom.

4. Assessment of and for learning: 3 semester hours.

a. Skills in this area shall be designed to develop an understanding and application of creating, selecting, and implementing valid and reliable classroom-based assessments of student learning, including formative and summative assessments. Assessments designed and adapted to meet the needs of diverse learners shall be addressed.

b. Analytical skills necessary to inform ongoing planning and instruction, as well as to understand and help students understand their own progress and growth shall be included.

c. Skills shall also include the ability to understand the relationships among assessment, instruction, and monitoring student progress to include student performance measures in grading practices, the ability to interpret valid assessments using a variety of formats in order to measure student attainment of essential skills in a standards-based environment, and the ability to analyze assessment data to make decisions about how to improve instruction and student performance.

d. Understanding of state assessment programs and accountability systems, including assessments used for student achievement goal-setting as related to teacher evaluation and determining student academic progress shall be included.

e. Knowledge of legal and ethical aspects of assessment and skills for developing familiarity with assessments used in preK-12 education, such as diagnostic, college admission exams, industry certifications, and placement assessment shall be included.

5. Foundations of education and the teaching profession: 3 semester hours.

a. Skills in this area shall be designed to develop an understanding of the historical, philosophical, and sociological foundations underlying the role, development, and organization of public education in the United States.

b. Attention shall be given to the legal status of teachers and students, including federal and state laws and regulations; school as an organization and culture; and contemporary issues and current trends in education, including the impact of technology on education. Local, state, and federal governance of schools, including the roles of teachers and schools in communities, shall be included.

c. Professionalism and ethical standards, as well as personal integrity shall be addressed.

d. Knowledge and understanding of Virginia's Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers shall be included.

6. Language and literacy: 6 semester hours.

a. Early/primary preK-3 and elementary education preK-6 - language acquisition and reading and writing: 6 semester hours. Skills listed for these endorsement areas represent the minimum competencies that a beginning teacher shall be able to demonstrate. These skills are not intended to limit the scope of a beginning teacher's program. Additional knowledge and skills that add to a beginning teacher's competencies to deliver instruction and improve student achievement should be included as part of a quality learning experience.

(1) Language acquisition: 3 semester hours. Skills in this area shall be designed to impart a thorough understanding of the Virginia English Standards of Learning, as well as the complex nature of language acquisition as a precursor to literacy. Language acquisition shall follow the typical development of linguistic competence in the areas of phonetics, semantics, syntax, morphology, phonology, and pragmatics.

(2) Reading and writing: 3 semester hours. Skills in this area shall be designed to impart a thorough understanding of the Virginia English Standards of Learning, as well as the reciprocal nature of reading and writing. Reading shall include phonemic and other phonological awareness, concept of print, phonics, fluency, vocabulary development, and comprehension strategies. Writing shall include writing strategies and conventions as supporting composing and written expression and usage and mechanics domains. Additional skills shall include proficiency in understanding the stages of spelling development and the writing process, as well as the ability to foster appreciation of a variety of fiction and nonfiction texts and independent reading.

b. Middle education - language acquisition and reading development: 3 semester hours and literacy in the content areas: 3 semester hours.

(1) Language acquisition and reading development: 3 semester hours. Skills in this area shall be designed to impart a thorough understanding of the complex nature of language acquisition and reading, to include phonemic and other phonological awareness, phonics, fluency, vocabulary development, and comprehension strategies for adolescent learners. Additional skills shall include proficiency in writing strategies, as well as the ability to foster appreciation of a variety of fiction and nonfiction texts and independent reading for adolescent learners.

(2) Literacy in the content areas: 3 semester hours. Skills in this area shall be designed to impart an understanding of vocabulary development and comprehension skills in English, mathematics, science, history and social science, and other content areas. Strategies include teaching students how to ask effective questions, summarize and retell both verbally and in writing, and to listen effectively. Teaching strategies include literal, interpretive, critical, and evaluative comprehension, as well as the ability to foster appreciation of a variety of fiction and nonfiction texts and independent reading for adolescent readers.

7. Supervised clinical experiences. Supervised clinical experiences shall be continuous and systematic and comprised of early field experiences and a minimum of 10 weeks of successful full-time student teaching in the endorsement area sought under the supervision of a cooperating teacher with demonstrated effectiveness in the classroom. The summative supervised student teaching experience shall include at least 150 clock hours spent in direct teaching at the level of endorsement in a public or accredited nonpublic school. One year of successful full-time teaching experience in the endorsement area in a public or accredited nonpublic school may be accepted in lieu of the supervised teaching experience. For the Online Teacher License only, one year of successful online teaching experience in the endorsement area in a public school, an accredited nonpublic school, or an accredited virtual school or program may be accepted in lieu of the supervised teaching experience. A fully licensed, experienced teacher shall be available in the school building to assist a beginning teacher employed through the alternate route.

8VAC20-23-190. Professional studies requirements for PreK-12, special education, secondary grades 6-12, and adult education endorsements.

Professional studies requirements for preK-12, secondary grades 6-12, and adult education endorsements: 18 semester hours. Professional studies requirements for special education endorsements: 21 semester hours. These requirements may be taught in integrated coursework or modules.

1. Human development and learning (birth through adolescence): 3 semester hours.

a. Skills in this area shall contribute to an understanding of the physical, social, emotional, speech and language, and intellectual development of children and the ability to use this understanding in guiding learning experiences and relating meaningfully to students.

b. The interaction of children with individual differences - economic, social, racial, ethnic, religious, physical, and cognitive - should be incorporated to include skills contributing to an understanding of developmental disabilities and developmental issues related to, but not limited to, low socioeconomic status; attention deficit disorders; developmental disabilities; gifted education, including the use of multiple criteria to identify gifted students; substance abuse; trauma, including child abuse and neglect and other adverse childhood experiences; and family disruptions.

2. Curriculum and instruction: 3 semester hours.

a. Skills in this area shall contribute to an understanding of the principles of learning; the application of skills in discipline-specific methodology; varied and effective methods of communication with and among students; selection and use of materials, including media and contemporary technologies; selection, development, and use of appropriate curricula, methodologies, and materials that support and enhance student learning and reflect the research on unique, age-appropriate, and culturally relevant curriculum and pedagogy.

b. Understanding of the principles of online learning and online instructional strategies and the application of skills to deliver online instruction shall be included.

c. Instructional practices that are sensitive to culturally and linguistically diverse learners, including English learners; gifted and talented students and students with disabilities; and appropriate for the level of endorsement sought shall be included.

d. Teaching methods shall be tailored to promote student academic progress and effective preparation for the Virginia Standards of Learning assessments.

e. Methods of improving communication between schools and families, ways of increasing family engagement in student learning at home and in school, and family engagement with the Virginia Standards of Learning shall be included.

f. Demonstrated proficiency in the use of educational technology for instruction shall be included. Study in child abuse recognition and intervention in accordance with curriculum guidelines developed by the Virginia Board of Education in consultation with the Virginia Department of Social Services and training or certification in emergency first aid, cardiopulmonary resuscitation, and the use of automated external defibrillators shall be included. The certification or training program shall (i) be based on the current national evidenced-based emergency cardiovascular care guidelines for cardiopulmonary resuscitation and the use of automated external defibrillator, such as a program developed by the American Heart Association or the American Red Cross, and (ii) include hands-on practice of the skills necessary to perform cardiopulmonary resuscitation.

g. Curriculum and instruction for secondary grades 6-12 endorsements shall include middle and secondary education.

h. Pre-student teaching experiences (field experiences) should be evident within these skills. For preK-12, field experiences shall be at the elementary, middle, and secondary levels.

3. Assessment of and for learning: 3 semester hours.

a. Skills in this area shall be designed to develop an understanding and application of creating, selecting, and implementing valid and reliable classroom-based assessments of student learning, including formative and summative assessments. Assessments designed and adapted to meet the needs of diverse learners shall be addressed.

b. Analytical skills necessary to inform ongoing planning and instruction, as well as to understand, and help students understand their own progress and growth shall be included.

c. Skills shall also include the ability to understand the relationships among assessment, instruction, and monitoring student progress to include student performance measures in grading practices, the ability to interpret valid assessments using a variety of formats in order to measure student attainment of essential skills in a standards-based environment, and the ability to analyze assessment data to make decisions about how to improve instruction and student performance.

d. Understanding of state assessment programs and accountability systems, including assessments used for student achievement goal-setting as related to teacher evaluation and determining student academic progress shall be included.

e. Knowledge of legal and ethical aspects of assessment and skills for developing familiarity with assessments used in preK-12 education such as diagnostic, college admission exams, industry certifications, and placement assessments shall be included.

4. Foundations of education and the teaching profession: 3 semester hours.

a. Skills in this area shall be designed to develop an understanding of the historical, philosophical, and sociological foundations underlying the role, development, and organization of public education in the United States.

b. Attention shall be given to the legal status of teachers and students, including federal and state laws and regulations; school as an organization and culture; and contemporary issues and current trends in education, including the impact of technology on education. Local, state, and federal governance of schools, including the roles of teachers and schools in communities shall be included.

c. Professionalism and ethical standards, as well as personal integrity shall be addressed.

d. Knowledge and understanding of Virginia's Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers shall be included.

5. Classroom and behavior management: 3 semester hours.

a. Skills in this area shall contribute to an understanding and application of research-based classroom and behavior management techniques, classroom community building, positive behavior supports, and individual interventions, including techniques that promote emotional well-being and teach and maintain behavioral conduct and skills consistent with norms, standards, and rules of the educational environment.

b. This area shall address diverse approaches based upon culturally responsive behavioral, cognitive, affective, social and ecological theory and practice.

c. Approaches should support professionally appropriate practices that promote positive redirection of behavior, development of social skills and of self-discipline.

d. Knowledge and an understanding of various school crisis management and safety plans and the demonstrated ability to create a safe, orderly classroom environment shall be included. The link between classroom management and the students' ages shall be understood and demonstrated in techniques used in the classroom.

6. Language and literacy.

a. Adult education, preK-12, and secondary grades 6-12 - literacy in the content areas: 3 semester hours. Skills in this area shall be designed to impart an understanding of vocabulary development and comprehension skills in English, mathematics, science, history and social science, and other content areas. Strategies include teaching students how to ask effective questions, summarize and retell both verbally and in writing, and listen effectively. Teaching strategies include literal, interpretive, critical, and evaluative comprehension, as well as the ability to foster appreciation of a variety of fiction and nonfiction texts and independent reading for adolescent learners.

b. Special education - language acquisition and reading and writing: 6 semester hours. Skills listed for these endorsement areas represent the minimum competencies that a beginning teacher shall be able to demonstrate. These skills are not intended to limit the scope of a beginning teacher's program. Additional knowledge and skills that add to a beginning teacher's competencies to deliver instruction and improve student achievement should be included as part of a quality learning experience.

(1) Language acquisition: 3 semester hours. Skills in this area shall be designed to impart a thorough understanding of the Virginia English Standards of Learning, as well as the complex nature of language acquisition as a precursor to literacy. Language acquisition shall follow the typical development of linguistic competence in the areas of phonetics, semantics, syntax, morphology, phonology, and pragmatics.

(2) Reading and writing: 3 semester hours. Skills in this area shall be designed to impart a thorough understanding of the Virginia English Standards of Learning, as well as the reciprocal nature of reading and writing. Reading shall include phonemic and other phonological awareness, concept of print, phonics, fluency, vocabulary development, and comprehension strategies. Writing shall include writing strategies and conventions as supporting the composing and written expression and usage and mechanics domains. Additional skills shall include proficiency in understanding the stages of spelling development and the writing process and the ability to foster appreciation of a variety of fiction and nonfiction texts and independent reading.

7. Supervised classroom experience. Supervised clinical experiences shall be continuous and systematic and comprised of early field experiences and a minimum of 10 weeks of successful full-time student teaching in the endorsement area sought under the supervision of a cooperating teacher with demonstrated effectiveness in the classroom. The summative supervised student teaching experience shall include at least 150 clock hours spent in direct teaching at the level of endorsement in a public or accredited nonpublic school.

If a preK-12 endorsement is sought, teaching activities shall be at the elementary and middle or secondary levels. Individuals seeking the endorsement in library media shall complete the supervised school library media practicum in a school library media setting. Individuals seeking an endorsement in an area of special education shall complete the supervised classroom experience requirement in the area of special education for which the endorsement is sought. One year of successful full-time teaching experience in the endorsement area in a public or an accredited nonpublic school may be accepted in lieu of the supervised teaching experience. For the Online Teacher License only, one year of successful online teaching experience in the endorsement area in a public school, an accredited nonpublic school, or an accredited virtual school or program may be accepted in lieu of the supervised teaching experience. A fully licensed, experienced teacher shall be available in the school building to assist a beginning teacher employed through the alternate route.

8VAC20-23-720. Revocation.

A. A license issued by the Virginia Board of Education may be revoked for the following reasons:

1. Obtaining or attempting to obtain a license by fraudulent means or through misrepresentation of material facts;

2. Falsification of school records, documents, statistics, or reports;

3. Conviction of any felony;

4. Conviction of any misdemeanor involving moral turpitude;

5. Conviction of any misdemeanor involving a student or minor;

6. Conviction of any misdemeanor involving drugs (not alcohol);

7. Conduct with direct and detrimental effect on the health, welfare, discipline, or morale of a student or minor;

8. Misapplication of or failure to account for school funds or other school properties with which the licensee has been entrusted;

9. Acts related to secure mandatory tests as specified in subsection A of § 22.1-292.1 of the Code of Virginia;

10. Knowingly and willfully with the intent to compromise the outcome of an athletic competition procure, sell, or administer anabolic steroids or cause such drugs to be procured, sold, or administered to a student who is a member of a school athletic team, or fail to report the use of such drugs by a student to the school principal and division superintendent as required by clause (iii) of subsection A of § 22.1-279.3:1 of the Code of Virginia. Any person whose license is suspended or revoked by the board pursuant to this section shall be ineligible for three school years for employment in the public schools of the Commonwealth;

11. Revocation, suspension, surrender, cancellation, invalidation, or denial of, or other adverse action against, a teaching, administrator, pupil personnel services, or other education-related certificate or license by another state, territory, or country; or denial of an application for any such certificate or license;

12. Founded case of child abuse or neglect after all administrative appeals have been exhausted;

13. Notification of dismissal or resignation pursuant to subsection F of § 22.1-313 of the Code of Virginia; or

14. Other good and just cause in the best interest of the public schools of the Commonwealth of Virginia.

B. The Virginia Board of Education shall revoke the license of any person for whom it has received a notice of dismissal or resignation pursuant to subsection F of § 22.1-313 of the Code of Virginia and, in the case of a person who is the subject of a founded complaint of child abuse or neglect, after all rights to any administrative appeal provided by § 63.2-1526 of the Code of Virginia have been exhausted.

C. Procedures.

1. A complaint may be filed by anyone, but it shall be the duty of a division superintendent, principal, or other responsible school employee to file a complaint in any case in which he has knowledge that a basis for the revocation of a license exists, as set forth in subsection A of this section. The person making the complaint shall submit the complaint in writing to the appropriate division superintendent. If the subject of the complaint is the division superintendent, the person making the complaint may submit the complaint to the chair of the local school board.

2. Upon receipt of the complaint against the holder of a license, a division superintendent or his duly authorized representative shall immediately and thoroughly investigate the complaint conduct an immediate and thorough investigation of any complaint alleging that a license holder has engaged in conduct that may form the basis for the revocation of his license. If, on the basis of such investigation, the division superintendent finds the complaint to be without merit, he shall so notify the complaining party or parties in writing and then close his file on the matter. This action shall be final unless the local school board, on its own motion, votes to proceed to a hearing on the complaint.

C. D. Petition for revocation. Should Upon completing an investigation, should the division superintendent or local school board conclude that there is reasonable cause to believe that a basis for revocation of the license exists the license holder has engaged in conduct that forms the basis for revocation of a license, the license holder shall be notified of the complaint by a written petition for revocation of a license signed by the division superintendent. A copy of such petition shall be sent by certified mail, return receipt requested, to the license holder's last known address. The school board shall proceed to a hearing on such petition for revocation within 90 days of the mailing of a copy of the petition to the license holder, unless the license holder requests the cancellation of his license in accordance with this chapter; and the school board shall provide a copy of the investigative file and such petition for revocation to the Superintendent of Public Instruction at the time that the hearing is scheduled.

D. E. Form of petition. The petition for the revocation of a license shall set forth:

1. The name and last known address of the person against whom the petition is being filed;

2. The type of license and the license number held by the person against whom the petition is being filed;

3. The basis for revocation and the specific underlying alleged actions;

4. A statement of rights of the person against whom the petition is being filed. The statement of rights shall notify the person that any adverse action against a license, including revocation, will be reported to the division superintendents in Virginia and, through a national clearinghouse, to chief state school officers of the other states and territories of the United States. The statement also shall include notification to the person of the right to cancel the license if he chooses not to contest the allegations in the petition. The statement shall notify the individual that he shall receive a notice of cancellation that will include the statement: "The license holder voluntarily returned the license in response to a petition for revocation." The individual also shall be notified that the cancellation of the license will be reported to division superintendents in Virginia and, through a national clearinghouse, to chief state school officers of the other states and territories of the United States; and

5. Any other pertinent information.

E. F. Filing of petition. The original petition shall be entered in the files of the local school board where the license holder is or was last employed.

F. G. Response to petition. The license holder shall present his written answer to the petition, if any, within 14 days of delivery or attempted delivery of the petition as certified by the United States Postal Service.

1. If the license holder does not wish to contest the allegations in the petition, he may request cancellation of the license by submitting a written, signed statement requesting cancellation in response to a petition for revocation. The division superintendent shall forward the request for cancellation along with the petition for revocation to the Superintendent of Public Instruction within 14 days of receipt. The Superintendent of Public Instruction shall cancel the license and send a notice of cancellation to the person by certified mail within 14 days of receipt of the request for cancellation.

2. If the license holder files a written answer admitting or denying the allegations in the petition or fails to file a written answer within 14 days of delivery or attempted delivery of the petition, as certified by the United States Postal Service, the local school board shall proceed to a hearing as described in subsection D of this section and subdivisions 3 and 4 of this subsection; and within 90 days of mailing the petition to the license holder and provide the Superintendent of Public Instruction a copy of the petition and investigative file at the time the local school board hearing is scheduled. The local school board shall provide a hearing at the time and place of its regular meeting or at such other reasonable time and place it may specify. The license holder or his representative, if any, shall be given at least 14 days' notice of the hearing.

3. At the hearing, the local school board shall receive the recommendation of the division superintendent and then either deny the petition or recommend license revocation or suspension. A decision to deny the petition shall be final, except as specified in subsection G C of this section, and the investigative file on the petition shall be closed and maintained as a separate file. Any record or material relating to the allegations in the petition shall be placed in the investigative file. Should the local school board recommend the revocation or suspension of a license, the division superintendent shall forward the recommendation, petition, and investigative file to the Superintendent of Public Instruction within 14 days.

G. H. Revocation on motion of the Virginia Board of Education. The Virginia Board of Education reserves the right to act directly to revoke a license when the Virginia Board of Education has reasonable cause to believe that subsection A of this section is applicable. The Superintendent of Public Instruction may send a petition for revocation to the license holder as provided by subsection D E of this section. The license holder shall have the opportunity to present his written answer, if any, to the petition within 14 days of delivery or attempted delivery of the petition, as certified by the United States Postal Service.

1. If the license holder does not wish to contest the allegations in the petition, he may request the cancellation of the license by submitting a written, signed statement requesting cancellation in response to a petition for revocation. The Superintendent of Public Instruction shall cancel the license and send a notice of cancellation to the person by certified mail within 14 day of receipt of the request for cancellation.

2. If the license holder files a written answer admitting the allegations in the petition or fails to file a written answer within 14 days of delivery or attempted delivery of the petition, as certified by the United States Postal Service, the petition shall be forwarded to the Virginia Board of Education for action. No revocation will be ordered without the involved license holder being given the opportunity to appear at a hearing specified in 8VAC20-23-780 C.

3. If the license holder timely files his written answer denying the allegations in the petition, the Superintendent of Public Instruction shall schedule a hearing with the investigative panel provided in 8VAC20-23-780 A. The license holder or his representative, if any, shall be given at least 14 days' notice of the hearing. The investigative panel shall take action on the petition as specified in 8VAC20-23-780 A. No revocation will be ordered without the involved license holder being given the opportunity to appear at a hearing specified in 8VAC20-23-780 C.

H. I. Reinstatement of license. A license that has been revoked may be reinstated by the Virginia Board of Education after five years if the board is satisfied that reinstatement is in the best interest of the public schools of the Commonwealth of Virginia. The individual seeking reinstatement shall submit a written request and completed application to the board. Notification to all appropriate parties will be communicated in writing by the Virginia Department of Education.

Title of Regulation: 8VAC20-131. Regulations Establishing Standards for Accrediting Public Schools in Virginia (amending 8VAC20-131-51).

Statutory Authority: §§ 22.1-16 and 22.1-253.13 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 31, 2021.

Effective Date: April 15, 2021.

Agency Contact: Holly M. Coy, Assistant Superintendent, Policy, Equity, and Communications, Department of Education, P.O. Box 2120, Richmond, VA 23218-2120, telephone (804) 225-2092, or email holly.coy@doe.virginia.gov.

Basis: The State Board of Education's authority to prescribe regulations is established in § 22.1-16 of the Code of Virginia, and the authority for establishing standards for accrediting public schools is found in § 22.1-253.13:3 of the Code of Virginia.

Purpose: This regulatory action is necessary to amend the Standards of Accreditation (SOA) to comport with legislation enacted in Chapters 55, 580, and 874 of the 2020 Acts of Assembly. This regulatory action also advances public welfare by expanding meaningful pathways through which Virginia's public school students can meet graduation requirements and earn a Virginia diploma. A diploma from a Virginia public school is designed to prepare students for success in any post-secondary endeavor, including higher education, additional vocational training, or joining the workforce. In allowing students additional opportunities to meet graduation requirements and develop important, relevant skill sets, this action seeks to ensure these students will be contributing members of their communities and economies.

Rationale for Use of Fast-Track Rulemaking Process: The amendments to the SOA are mandated by legislation enacted in the 2020 Session of the General Assembly. This regulatory action is noncontroversial as its purpose is to comport the regulations to align with legislation.

Substance: This regulatory action is necessary to comport with Chapters 55 and 580 of the 2020 Acts of Assembly, which require that the State Board of Education, in establishing high school graduation requirements, include the options for students to complete a dual enrollment course or high-quality work-based learning experience. Currently students must complete an Advanced Placement Course or International Baccalaureate course or earn a career and technical education credential. Chapter 874 of the 2020 Acts of Assembly requires the State Board of Education, in establishing high school graduation requirements, to permit a student who is pursuing an advanced diploma and whose individualized education program specifies a credit accommodation for world language to substitute two standard units of credit in computer science for two standard units of credit in a world language. The chapter provides that for any student electing to substitute a credit in computer science for credit in world language, the student's school counselor shall provide notice to the student and parent or guardian of possible impacts related to college entrance requirements.

Issues: The advantages of this regulatory action to the public and Commonwealth are the result of ensuring that Virginia public school students have a variety of meaningful opportunities to meet graduation requirements and earn a high school diploma. In doing so, students are able to develop the foundational skills they need to be successful members of their communities and economics. There are no disadvantages to the public, the agency, or the Commonwealth. These revisions are required by amendments to the Code of Virginia adopted by the Virginia General Assembly in its 2020 Session.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. In order to comport with Chapters 55 and 580 of the 2020 Acts of Assembly, the Board of Education (Board) proposes two additional options in order to satisfy a requirement for the Standard and Advanced Studies Diplomas. Additionally, in order to comport with Chapter 874 of the 2020 Acts of Assembly, the Board proposes to allow a student who is pursuing an advanced diploma, and whose individualized education program (IEP) specifies a credit accommodation for world language, to substitute two standard units of credit in computer science for two standard units of credit in a world language.

Background. According to the requirements under the current regulation to earn a Standard Diploma or an Advanced Studies Diploma, the student must either (i) complete an Advanced Placement (AP), honors, or International Baccalaureate course, or (ii) earn a career and technical education credential approved by the board.¹ Pursuant to Chapters 55 and 580, the Board proposes to add (a) completion of a dual enrollment course,² or (b) a high-quality work-based learning experience as defined by Board guidance on work-based learning, as two additional options to satisfy this requirement. According to the Department of Education, the Board guidance would be in a guidance document.³

Pursuant to Chapter 874, the Board proposes to allow a student who is pursuing an advanced diploma, and whose IEP specifies a credit accommodation for world language, to substitute two standard units of credit in computer science for two standard units of credit in a world language. For any student who elects to substitute credit in computer science for credit in world language, his or her school counselor would need to provide notice to the student and parent or guardian of possible impacts related to college entrance requirements.

Estimated Benefits and Costs. As mandated by Chapters 55 and 580, providing additional options to meet a graduation requirement could be beneficial for students who would prefer to avail themselves of these options rather than the existing options. Dual enrollment is when students take a college course simultaneously for high school graduation and college degree credit. Dual enrollment courses could reasonably be considered equivalent to AP courses. Whether the high-quality work-based learning experience could be considered equivalent to a career and technical education credential would depend on how the Board defines high-quality work-based learning experience. The proposed two additional options to satisfy a graduation requirement do not appear to substantially affect costs.

As mandated by Chapter 874, the proposal to allow a student who is pursuing an advanced diploma, and whose IEP specifies a credit accommodation for world language to substitute two standard units of credit in computer science for two standard units of credit in a world language, would be beneficial for students with a disability that affects learning foreign languages. This proposed amendment does not appear to produce a substantial cost.

Businesses and Other Entities Affected. The proposed amendments affect the students and staff at high schools in all 132 local school divisions in the Commonwealth. No school divisions appear to be disproportionately affected. The proposal to add completion of a dual enrollment course as an option to satisfy a graduation requirement may increase the number of students who take dual enrollment courses. This would affect the colleges that are involved in dual enrollment courses with high schools.⁴ The proposal to add completion of a high-quality work-based learning experience as an option to satisfy a graduation requirement may increase the number of students who seek employment. Thus, some employers such as businesses, nonprofit organizations, etc. may also be affected.

Small Businesses⁵ Affected. The proposed amendments do not appear to adversely affect small businesses.

Localities⁶ Affected.⁷

The proposed amendments affect all Virginia localities in that all localities have students and staff associated with public high schools. No localities appear to be disproportionately affected. The proposed amendments do not appear to substantively affect costs for local governments.

Projected Impact on Employment. The proposal to add completion of a high-quality work-based learning experience as an option to satisfy a graduation requirement may increase the number of students who seek employment. Consequently, more high school students may become employed.

Effects on the Use and Value of Private Property. Since the proposal to add completion of a high-quality work-based learning experience as an option to satisfy a graduation requirement may increase the number of students who seek employment, some businesses may find it easier to fill open positions, or at a lower cost. Thus, the proposal may result in a moderate increase in net value for some businesses. The proposed amendments would not likely substantively affect real estate development costs.

_______________________

¹When a career and technical education credential in a particular subject area is not readily available or appropriate or does not adequately measure student competency, the student shall receive satisfactory competency-based instruction in the subject area to satisfy the diploma requirements.

²Dual enrollment is defined as when students "take college courses simultaneously for high school graduation and college degree credit." See https://law.lis.virginia.gov/admincode/title8/agency20/chapter131/section140/

³Guidance documents can be found here: https://townhall.virginia.gov/L/GDocs.cfm

⁴Per the State Council of Higher Education in Virginia's Virginia Public Higher Education Policy on the Offering of Dual Enrollment Courses in Public School Districts by Four-year and Two-year Institutions of Higher Education and in consonance with § 22.1-253.13:1 in the Code of Virginia, community colleges are considered the default providers of dual enrollment in Virginia public school districts. However, public four-year institution can offer dual enrollment courses when the educational opportunity is not otherwise available through the local community college, if there is high demand for a type of course, or if there is a specialized need.

⁵Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁶"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁷§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendments conform the regulation to legislation enacted in the 2020 Session of the General Assembly. The amendments add (i) completion of a dual enrollment course or a high-quality work-based learning experience as two additional options to satisfy requirements for the standard diploma or the advanced studies diploma in accordance with Chapters 55 and 580 and (ii) allow a student who is pursuing an advanced diploma and whose individualized education plan specifies a credit accommodation for world language to substitute two standard units of credit in computer science for two standard units of credit in a world language and, for any student who elects to substitute credit in computer science for credit in world language, require the student's school counselor to provide notice to the student and parent or guardian of possible impacts related to college entrance requirements in accordance with Chapter 874.

8VAC20-131-51. Requirements for graduation (effective with the students who enter the ninth grade in the 2018–2019 school year).

A. The requirements for a student to earn a diploma and graduate from a Virginia high school shall be those in effect when that student enters the ninth grade for the first time. Students shall be awarded a diploma upon graduation from a Virginia high school.

Both the Standard Diploma and the Advanced Studies Diploma shall provide multiple paths toward college, career, and citizenship readiness for students to follow in the later years of high school. Each such pathway shall provide meaningful and rigorous opportunities tied to instruction to achieve workplace and citizenship skills through experiences such as internships, externships, credentialing, and blended learning, which may be offered for credit toward high school graduation.

In accordance with the Profile of a Virginia Graduate approved by the board, the instructional program leading to a Standard Diploma or Advanced Studies Diploma shall ensure that students (i) attain the knowledge, skills, competencies, and experiences necessary to be successful in the evolving global economy whether immediately entering the world of work or pursuing a postsecondary education and (ii) acquire and be able to demonstrate foundational skills in critical thinking, creative thinking, collaboration, communication, and citizenship.

When students below the ninth grade successfully complete courses offered for credit in grades 9 through 12, credit shall be counted toward meeting the standard units required for graduation provided the courses are equivalent in content and academic rigor as those courses offered at the secondary level. To earn a verified unit of credit for these courses, students must meet the requirements of 8VAC20-131-110.

The requirements in this section shall be the only requirements for a diploma, unless a local school board has prescribed additional requirements that have been approved by the board. All additional requirements prescribed by local school boards that have been approved by the board remain in effect until such time as the local school board submits a request to the board to amend or discontinue them.

B. Requirements for a Standard Diploma.

1. Beginning with the ninth-grade class of 2018–2019 and beyond, students shall earn the required standard and verified units of credit described in subdivision 2 of this subsection.

2. Credits required for graduation with a Standard Diploma.

A "standard unit of credit" or "standard credit" is a credit awarded for a course in which the student successfully completes 140 clock hours of instruction and the requirements of the course. Local school boards may develop alternatives to the requirement for 140 clock hours of instruction as provided for in 8VAC20-131-110 and in accordance with board guidelines.

A "verified unit of credit" or "verified credit" is a credit awarded for a course in which a student earns a standard unit of credit and (i) achieves a passing score on a corresponding end-of-course SOL test; (ii) achieves a passing score on an additional test, as defined in 8VAC20-131-5 as part of the Virginia Assessment Program; (iii) meets the criteria for the receipt of a locally awarded verified credit conferred in accordance with board criteria and guidelines as provided in 8VAC20-131-110 B 3 when the student has not passed a corresponding SOL test in English, mathematics, laboratory science, or history and social science; or (iv) meets the criteria for the receipt of a verified credit for English (writing) by demonstrating mastery of the content of the associated course on authentic performance assessments as provided in 8VAC20-131-110 B 4.

No more than one locally awarded verified credit may be used to satisfy these requirements, except as provided in subdivision 3 of this subsection for credit accommodations for students with disabilities.

Discipline Area	Standard Units of Credit Required		Verified Credits Required
English (reading and writing)	4		2
Mathematics	3		1
Laboratory Science	3		1
History and Social Science	3		1
Health and Physical Education	2
World Language, Fine Arts, or Career and Technical Education	2
Economics and Personal Finance	1
Electives	4
Total	22		5
Discipline Area		Specifications
Mathematics		Courses completed to satisfy this requirement shall include at least two different course selections from among: algebra I, geometry, algebra functions, and data analysis, algebra II, or other mathematics courses approved by the board to satisfy this requirement. Per the Standards of Quality, a computer science course credit earned by students may be considered a mathematics course credit.
Laboratory Science		Courses completed to satisfy this requirement shall include course selection from at least two different science disciplines: earth sciences, biology, chemistry, or physics, or completion of the sequence of science courses required for the International Baccalaureate Diploma and shall include interdisciplinary courses that incorporate Standards of Learning content from multiple academic areas. The board shall approve courses to satisfy this requirement. Per the Standards of Quality, a computer science course credit earned by students may be considered a science course credit. A laboratory science verified credit may be awarded to students who complete a career and technical education program sequence and (i) pass two examinations or occupational competency assessments in a career and technical education field that confers certification or an occupational competency credential from a recognized industry, trade, or professional association; (ii) acquire two professional licenses in a career and technical education field from the Commonwealth of Virginia; or (iii) pass one examination or competency assessment from clause (i) and acquire one license from clause (ii). The examination or occupational competency assessment must be approved by the board as an additional test to verify student achievement.
History and Social Science		Courses completed to satisfy this requirement shall include Virginia and U.S. history, Virginia and U.S. government, and one course in either world history or geography or both. The board shall approve courses to satisfy this requirement.
World Language, Fine Arts, or Career and Technical Education		Per the Standards of Quality, credits earned for this requirement shall include one credit in fine or performing arts or career and technical education. Per the Standards of Quality, a computer science course credit earned by students may be considered a career and technical course credit.
Electives		Courses to satisfy this requirement shall include at least two sequential electives as required by the Standards of Quality.
Additional Requirements for Graduation (i) complete an Advanced Placement, honors, or International Baccalaureate course, or (ii) earn a career and technical
Advanced Placement, Honors, or International Baccalaureate Course or Career and Technical Education Credential		In accordance with the Standards of Quality, students shall either (i) complete an Advanced Placement, honors, or International Baccalaureate, or dual enrollment course; (ii) complete a high-quality work-based learning experience, as established by board guidance on work-based learning; or (iii) earn a career and technical education credential approved by the board, except when a career and technical education credential in a particular subject area is not readily available or appropriate or does not adequately measure student competency, in which case the student shall receive satisfactory competency-based instruction in the subject area to satisfy the standard diploma requirements. The career and technical education credential, when required, could include the successful completion of an industry certification, a state licensure examination, a national occupational competency assessment, or the Virginia workplace readiness assessment.
Virtual Course		Students shall successfully complete one virtual course, which may be a non-credit-bearing course or a required or elective credit-bearing course that is offered online.
Training in emergency first aid, cardiopulmonary resuscitation (CPR), and the use of automated external defibrillators (AED)		Students shall be trained in emergency first aid, CPR, and the use of AED, including hands-on practice of the skills necessary to perform cardiopulmonary resuscitation. Students with an individualized education plan (IEP) or 504 Plan that documents that they cannot successfully complete this training shall be granted a waiver from this graduation requirement, as provided in 8VAC20-131-420 B.
Demonstration of the five Cs		Students shall acquire and demonstrate foundational skills in critical thinking, creative thinking, collaboration, communication, and citizenship in accordance with the Profile of a Virginia Graduate approved by the board.

3. The board shall establish through guidelines credit accommodations to the standard and verified credit requirements for a Standard Diploma. Such credit accommodations for students with disabilities may include:

a. Approval of alternative courses to meet the standard credit requirements;

b. Modifications to the requirements for local school divisions to award locally awarded verified credits;

c. Approval of additional tests to earn a verified credit;

d. Adjusted cut scores required to earn verified credit; and

e. Allowance of work-based learning experiences.

The student's IEP or 504 Plan shall specify any credit accommodations applicable for the student.

Students completing the requirements for the Standard Diploma may be eligible to receive an honor deemed appropriate by the local school board as described in subsection H of this section.

C. Requirements for an Advanced Studies Diploma.

1. Beginning with the ninth-grade class of 2018–2019 and beyond, students shall earn the required standard and verified units of credit described in subdivision 2 of this subsection.

2. Credits required for graduation with an Advanced Studies Diploma.

A "standard unit of credit" or "standard credit" is a credit awarded for a course in which the student successfully completes 140 clock hours of instruction and the requirements of the course. Local school boards may develop alternatives to the requirement for 140 clock hours of instruction as provided for in 8VAC20-131-110 and in accordance with board guidelines.

A "verified unit of credit" or "verified credit" is a credit awarded for a course in which a student earns a standard unit of credit and (i) achieves a passing score on a corresponding end-of-course SOL test; (ii) achieves a passing score on an additional test, as defined in 8VAC20-131-5, as part of the Virginia Assessment Program; (iii) meets the criteria for the receipt of a locally awarded verified credit conferred in accordance with board criteria and guidelines as provided in 8VAC20-131-110 B 3 when the student has not passed a corresponding SOL test in English, mathematics, laboratory science, or history and social science; or (iv) meets the criteria for the receipt of a verified credit for English (writing) by demonstrating mastery of the content of the associated course on an authentic performance assessment, as provided in 8VAC20-131-110 B 4.

No more than one locally awarded verified credit may be used to satisfy these requirements.

Discipline Area	Standard Units of Credit Required	Verified Credits Required
English (reading and writing)	4	2
Mathematics	4	1
Laboratory Science	4	1
History and Social Science	4	1
World Language	3
Health and Physical Education	2
Fine Arts or Career and Technical Education	1
Economics and Personal Finance	1
Electives	3
Total	26	5
Discipline Area	Specifications
Mathematics	Courses completed to satisfy this requirement shall include at least three different course selections from among: algebra I, geometry, algebra II, or other mathematics courses above the level of algebra II. The board shall approve courses to satisfy this requirement. Per the Standards of Quality, a computer science course credit earned by students may be considered a mathematics course credit.
Laboratory Science	Courses completed to satisfy this requirement shall include course selections from at least three different science disciplines from among: earth sciences, biology, chemistry, or physics or completion of the sequence of science courses required for the International Baccalaureate Diploma and shall include interdisciplinary courses that incorporate Standards of Learning content from multiple academic areas. The board shall approve additional courses to satisfy this requirement. Per the Standards of Quality, a computer science course credit earned by students may be considered a science course credit.
History and Social Science	Courses completed to satisfy this requirement shall include Virginia and U.S. history, Virginia and U.S. government, and two courses in either world history or geography or both. The board shall approve additional courses to satisfy this requirement.
World Language	Courses completed to satisfy this requirement shall include three years of one language or two years of two languages. A student who is pursuing an advanced diploma and whose individualized education program specifies a credit accommodation for world language may substitute two standard units of credit in computer science for two standard units of credit in a world language. For any student who elects to substitute a credit in computer science for a credit in world language, the student's school counselor must provide notice to the student and parent or guardian of possible impacts related to college entrance requirements.
Fine Arts or Career and Technical Education	Per the Standards of Quality, a computer science course credit earned by students may be considered a career and technical credit.
Electives	Courses to satisfy this requirement shall include at least two sequential electives as required by the Standards of Quality.
Additional Requirements for Graduation
Advanced Placement, Honors, or International Baccalaureate Course or Career and Technical Education Credential	In accordance with the Standards of Quality, students shall either (i) complete an Advanced Placement, honors, or International Baccalaureate, or dual enrollment course; (ii) complete a high-quality work-based learning experience as established by board guidance on work-based learning; or (iii) earn a career and technical education credential approved by the board, except when a career and technical education credential in a particular subject area is not readily available or appropriate or does not adequately measure student competency, in which case the student shall receive satisfactory competency-based instruction in the subject area to satisfy the advanced studies diploma requirements. The career and technical education credential, when required, could include the successful completion of an industry certification, a state licensure examination, a national occupational competency assessment, or the Virginia workplace readiness assessment.
Virtual Course	Students shall successfully complete one virtual course, which may be a non-credit-bearing course or a required or elective credit-bearing course that is offered online.
Training in emergency first aid, cardiopulmonary resuscitation (CPR), and the use of automated external defibrillators (AED).	Students shall be trained in emergency first aid, CPR, and the use of AED, including hands-on practice of the skills necessary to perform cardiopulmonary resuscitation. Students with an IEP or 504 Plan that documents that they cannot successfully complete this training shall be granted a waiver from this graduation requirement, as provided in 8VAC20-131-420 B.
Demonstration of the five Cs	Students shall acquire and demonstrate foundational skills in critical thinking, creative thinking, collaboration, communication, and citizenship in accordance with the Profile of a Virginia Graduate approved by the board.

D. Requirements for an Applied Studies Diploma. In accordance with the requirements of the Standards of Quality, a student with disabilities who completes the requirements of the student's IEP and does not meet the requirements for other diplomas shall be awarded Applied Studies Diplomas in accordance with state and federal laws and regulations regarding special education.

Students who pursue an Applied Studies Diploma shall be allowed to pursue a Standard Diploma or an Advanced Studies Diploma at any time during high school. Such students shall not be excluded from courses or tests required to earn these diplomas.

E. Requirements for Certificates of Program Completion. In accordance with the requirements of the Standards of Quality, students who complete prescribed programs of studies defined by the local school board but do not qualify for a Standard Diploma, an Advanced Studies Diploma, or an Applied Studies Diploma shall be awarded Certificates of Program Completion. The requirements for Certificates of Program Completion are developed by local school boards in accordance with the Standards of Quality.

F. In accordance with the provisions of the compulsory attendance law and 8VAC20-30, Regulations Governing Adult High School Programs, students who do not qualify for diplomas may earn a high school equivalency credential. The requirements for the General Achievement Adult High School Diploma are provided in 8VAC20-30-20.

G. At a student's request, the local school board shall communicate or otherwise make known to institutions of higher education, potential employers, or other applicable third parties, in a manner that the local school board deems appropriate, that a student has attained the state's academic expectations by earning a Virginia diploma and that the value of such a diploma is not affected in any way by the accreditation status of the student's school.

H. Awards for exemplary student performance. Students who demonstrate academic excellence and outstanding achievement may be eligible for one or more of the following awards:

1. The Governor's Seal shall be awarded to students who complete the requirements for an Advanced Studies Diploma with an average grade of "B" or better and successfully complete college-level coursework that shall earn the student at least nine transferable college credits in Advanced Placement (AP), International Baccalaureate (IB), Cambridge, or dual enrollment courses.

2. The Board of Education Seal shall be awarded to students who complete the requirements for a Standard Diploma or an Advanced Studies Diploma with an average grade of "A."

3. The Board of Education's Career and Technical Education Seal shall be awarded to students who earn a Standard Diploma or an Advanced Studies Diploma and complete a prescribed sequence of courses in a career and technical education concentration or specialization that they choose and maintain a "B" or better average in those courses or (i) pass an examination or an occupational competency assessment in a career and technical education concentration or specialization that confers certification or occupational competency credential from a recognized industry, trade, or professional association or (ii) acquire a professional license in that career and technical education field from the Commonwealth of Virginia. The board shall approve all professional licenses and examinations used to satisfy these requirements.

4. The Board of Education's Science, Technology, Engineering, and Mathematics (STEM) Seal shall be awarded to students who meet criteria established by the board.

5. The Board of Education's Seal for Excellence in Civics Education shall be awarded to students who earn either a Standard Diploma or an Advanced Studies Diploma and (i) complete Virginia and United States history and Virginia and United States government courses with a grade of "B" or higher; (ii) have good attendance and no disciplinary infractions as determined by local school board policies; and (iii) complete 50 hours of voluntary participation in community service or extracurricular activities. Activities that satisfy the requirements of clause (iii) of this subdivision include (a) volunteering for a charitable or religious organization that provides services to the poor, sick, or less fortunate; (b) participating in Boy Scouts, Girl Scouts, or similar youth organizations; (c) participating in JROTC; (d) participating in political campaigns or government internships, or Boys State, Girls State, or Model General Assembly; or (e) participating in school-sponsored extracurricular activities that have a civics focus. Any student who enlists in the United States military prior to graduation shall be deemed to have met this community service requirement.

6. The Board of Education's Seal of Biliteracy shall be awarded to students who demonstrate proficiency in English and at least one other language and meet additional criteria established by the board.

7. The Board of Education's Seal for Excellence in Science and the Environment shall be awarded to students who earn either a Standard Diploma or Advanced Studies Diploma and (i) complete at least three different first-level board-approved laboratory science courses and at least one rigorous advanced-level or postsecondary-level laboratory science course, each with a grade of "B" or higher; (ii) complete laboratory or field-science research and present that research in a formal, juried setting; and (iii) complete at least 50 hours of voluntary participation in community service or extracurricular activities that involve the application of science such as environmental monitoring, protection, management, or restoration.

8. Students may receive other seals or awards for exceptional academic, career and technical, citizenship, or other exemplary performance in accordance with criteria defined by the local school board.

I. Students completing graduation requirements in a summer school program shall be eligible for a diploma. The last school attended by the student during the regular session shall award the diploma unless otherwise agreed upon by the principals of the two schools.

J. Students who complete Advanced Placement courses, college-level courses, or courses required for an International Baccalaureate Diploma shall be deemed to have completed the course requirements for graduation under these standards provided they have earned the total number of standard units of credit and verified units of credit in each discipline area in accordance with the requirements for the Standard Diploma and the Advanced Studies Diploma, as specified in subsections B and C of this section.

K. Students shall be counseled annually regarding the opportunities for using additional tests for earning verified credits, as provided in accordance with the provisions of 8VAC20-131-110, and the consequences of failing to fulfill the obligations to complete the requirements for verified units of credit.

Title of Regulation: 9VAC25-190. Virginia Pollutant Discharge Elimination System (VPDES) General Permit Regulation for Nonmetallic Mineral Mining.

Agency Contact: Gary Graham, State Water Control Board, Department of Environmental Quality - Central Office, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4178, TDD, or email gary.graham@deq.virginia.gov.

FORMS (9VAC25-190)

Department of Environmental Quality Water Division Permit Application Fee Form, Form 5 (rev. 10/2018)

Change of Ownership Agreement Form (rev. 3/2014)

Virginia Pollutant Discharge Elimination System Change of Ownership Agreement Form (rev. 4/2018)

VPDES General Permit for Nonmetallic Mineral Mining (VAG84) - Notice of Termination (eff. 7/2014)

VPDES General Permit Registration Statement - Nonmetallic Mineral Mining (rev. 2014)

Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Nonmetallic Mineral Mining (VAG84) Registration Statement, Form VAG84-RS (rev. 7/2019)

Title of Regulation: 9VAC25-196. Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Noncontact Cooling Water Discharges of 50,000 Gallons Per Day or Less.

Agency Contact: Gary Graham, State Water Control Board, Department of Environmental Quality - Central Office, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4178, TDD, or email gary.graham@deq.virginia.gov.

FORMS (9VAC25-196)

Registration Statement for the VPDES General Permit For Noncontact Cooling Water Discharges of 50,000 Gallons Per Day or Less, Form VAG25-RS (rev. 1/2018)

VPDES Change of Ownership Agreement Form (rev. 4/2018)

VPDES General Permit for Noncontact Cooling Water (VAG25) Notice of Termination (rev. 1/2021)

Water Division Permit Application Fee Form, 9VAC25-20 Form 5 (rev. 10/2018)

Title of Regulation: 9VAC25-820. 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 (amending 9VAC25-820-40, 9VAC25-820-70).

Statutory Authority: § 62.1-44.15 of the Code of Virginia.

Public Hearing Information:

April 1, 2021 - 2 p.m. - GoToWebinar - Register at https://attendee.gotowebinar.com/register/6346732272498140686. Once the registration is completed, registrants will receive a confirmation email with a link for participation. Alternatively, those wishing to participate without pre-registering or who prefer to attend the meeting by telephone, without internet access, contact Austen Stevens at austen.stevens@deq.virginia.gov or 804-698-4161 prior to the meeting date. Additional details and information are available on the Virginia Regulatory Town Hall (www.townhall.virginia.gov).

Public Comment Deadline: April 30, 2021.

Agency Contact: Curt Linderman, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4468, FAX (804) 698-4178, or email curt.linderman@deq.virginia.gov.

Summary:

This action amends and reissues the existing general permit for total nitrogen and total phosphorus discharges and nutrient trading in the Chesapeake Bay watershed in Virginia that expires on December 31, 2021. The regulation provides for the permitting of total nitrogen and total phosphorus discharges in the Chesapeake Bay watershed and allows for trading of nutrient credits to minimize costs to the regulated facilities and allow for future growth.

The proposed amendments update and clarify compliance plan requirements, effective dates, consolidation of facilities, schedules of compliance, monitoring frequencies and sample types, registration statement requirements for certain facilities treating domestic sewage, and unit costs of credit acquisitions to the Nutrient Offset Fund.

9VAC25-820-40. Compliance plans.

A. By July 1, 2017, every owner of a facility identified in 9VAC25-820-80 and subject to a limit effective date after January 1, 2017, as defined in Part I C 1 of 9VAC25-820-70 shall either individually or through the Virginia Nutrient Credit Exchange Association submit compliance plans to the department for approval.

1. The compliance plans shall contain any capital projects and implementation schedules needed to achieve total nitrogen and phosphorus reductions sufficient to comply with the individual and combined wasteload allocations of all the permittees in the tributary as soon as possible. Permittees submitting individual plans are not required to account for other facilities' activities.

2. As part of the compliance plan development, permittees shall either:

a. Demonstrate that the additional capital projects anticipated by subdivision 1 of this subsection are necessary to ensure continued compliance with these allocations by the applicable deadline for the tributary to which the facility discharges (Part I C of the permit), or

b. Request that their individual wasteload allocations become effective on January 1, 2017.

3. The compliance plans may rely on the exchange of point source credits in accordance with this general permit, but not the acquisition of credits through payments into the Nutrient Offset Fund (§ 10.1-2128.2 of the Code of Virginia), to achieve compliance with the individual and combined wasteload allocations in each tributary.

B. Every owner of a facility required to submit a registration statement shall either individually or through the Virginia Nutrient Credit Exchange Association submit annual compliance plan updates to the department for approval as required by Part I D of the general permit.

9VAC25-820-70. General permit.

Any owner whose registration statement is accepted by the board will receive the following general permit and shall comply with the requirements of the general permit.

General Permit No.: VAN000000
Effective Date: January 1, 2017 2022

Expiration Date: December 31, 2021 2026

GENERAL PERMIT FOR TOTAL NITROGEN AND TOTAL PHOSPHORUS DISCHARGES AND NUTRIENT TRADING IN THE CHESAPEAKE WATERSHED IN VIRGINIA
AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT DISCHARGE ELIMINATION SYSTEM AND THE VIRGINIA STATE WATER CONTROL LAW

In compliance with the provisions of the Clean Water Act, as amended, and pursuant to the State Water Control Law and regulations adopted pursuant to it, owners of facilities holding a VPDES individual permit or owners of facilities that otherwise meet the definition of an existing facility, with total nitrogen or total phosphorus discharges, or both to the Chesapeake Bay or its tributaries, are authorized to discharge to surface waters and exchange credits for total nitrogen or total phosphorus, or both.

The authorized discharge shall be in accordance with the registration statement filed with DEQ, this cover page, Part I-Special Conditions Applicable to All Facilities, Part II-Special Conditions Applicable to New and Expanded Facilities, and Part III-Conditions Applicable to All VPDES Permits, as set forth herein.

PART I

SPECIAL CONDITIONS APPLICABLE TO ALL FACILITIES

A. Authorized activities.

1. Authorization to discharge for owners of facilities required to register.

a. Every owner of a facility required to submit a registration statement to the department by November 1, 2016 2021, and thereafter upon the reissuance of this general permit, shall be authorized to discharge total nitrogen and total phosphorus subject to the requirements of this general permit upon the department's approval of the registration statement.

b. Any owner of a facility required to submit a registration statement with the department at the time he makes application with the department for a new discharge or expansion that is subject to an offset or technology-based requirement in Part II of this general permit, shall be authorized to discharge total nitrogen and total phosphorus subject to the requirements of this general permit upon the department's approval of the registration statement.

c. Upon the department's approval of the registration statement, a facility will be included in the registration list maintained by the department.

2. Authorization to discharge for owners of facilities not required to register. Any owner of a facility authorized by a VPDES permit and not required by this general permit to submit a registration statement shall be deemed to be authorized to discharge total nitrogen and total phosphorus under this general permit at the time it is issued. Owners of facilities that are deemed to be permitted under this subsection shall have no obligation under this general permit prior to submitting a registration statement and securing coverage under this general permit based upon such registration statement.

3. Continuation of permit coverage.

a. Any owner authorized to discharge under this general permit and who submits a complete registration statement for the reissued general permit by November 1, 2021 2026, in accordance with Part III M or who is not required to register in accordance with Part I A 2 is authorized to continue to discharge under the terms of this general permit until such time as the board either:

(1) Issues coverage to the owner under the reissued general permit, or

(2) Notifies the owner that the discharge is not eligible for coverage under this general permit.

b. When the owner that was covered under the expiring or expired general permit has violated or is violating the conditions of that permit, the board may choose to do any or all of the following:

(1) Initiate enforcement action based upon the 2012 2017 general permit,

(2) Issue a notice of intent to deny coverage under the reissued general permit. If the general permit coverage is denied, the owner would then be required to cease the discharges authorized by the administratively continued coverage under the terms of the 2012 2017 general permit or be subject to enforcement action for operating without a permit, or

(3) Take other actions authorized by the State Water Control Law.

B. Wasteload allocations.

1. Wasteload allocations allocated to permitted facilities pursuant to 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation, or applicable TMDLs, or wasteload allocations acquired by owners of new and expanding facilities to offset new or increased delivered total nitrogen and delivered total phosphorus loads from a new discharge or expansion under Part II B of this general permit, and existing loads calculated from the permitted design capacity of expanding facilities not previously covered by this general permit, shall be incorporated into the registration list maintained by the department. The wasteload allocations contained in this list shall be enforceable as annual mass load limits in this general permit. Credits shall not be generated by facilities whose operations were previously authorized by a Virginia Pollution Abatement (VPA) permit that was issued before July 1, 2005.

2. Except as described in subdivisions 2 c and 2 d of this subsection, an owner of two or more facilities covered by this general permit and discharging to the same tributary may apply for and receive an aggregated mass load limit for delivered total nitrogen and an aggregated mass load limit for delivered total phosphorus reflecting the total of the water quality-based total nitrogen and total phosphorus wasteload allocations or permitted design capacities established for such facilities individually.

a. The permittee (and all of the individual facilities covered under a single registration) shall be deemed to be in compliance when the aggregate mass load discharged by the facilities is less than the aggregate load limit.

b. The permittee will be eligible to generate credits only if the aggregate mass load discharged by the facilities is less than the total of the wasteload allocations assigned to any of the affected facilities.

c. The aggregation of mass load limits shall not affect any requirement to comply with local water quality-based limitations.

d. Facilities whose operations were previously authorized by a Virginia Pollution Abatement (VPA) permit that was issued before July 1, 2005, cannot be aggregated with other facilities under common ownership or operation.

e. Operation under an aggregated mass load limit in accordance with this section shall not be deemed credit acquisition as described in Part I J 2 of this general permit.

3. An owner that consolidates two or more facilities discharging to the same tributary into a single regional facility may apply for and receive an aggregated mass load limit for delivered total nitrogen and an aggregated mass load limit for delivered total phosphorus, subject to the following conditions:

a. Aggregate mass limits will be calculated accounting for delivery factors in effect at the time of the consolidation.

b. If all of the affected facilities have wasteload allocations in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation, the aggregate mass load limit shall be calculated by adding the wasteload allocations of the affected facilities. The regional facility shall be eligible to generate credits.

b. c. If any, but not all, of the affected facilities has a wasteload allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation, the aggregate mass load limit shall be calculated by adding:

(1) Wasteload allocations of those facilities that have wasteload allocations in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation;

(2) Permitted design capacities assigned to affected industrial facilities; and

(3) Loads from affected sewage treatment works that do not have a wasteload allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation, defined as the lesser of a previously calculated permitted design capacity, or the values calculated by the following formulae:

Nitrogen Load (lbs/day year) = flow (MGD) x 8.0 mg/l x 8.345 x 365 days/year

Phosphorus Load (lbs/day year) = flow (MGD) x 1.0 mg/l x 8.345 x 365 days/year

Flows used in the preceding formulae shall be the design flow of the treatment works from which the affected facility currently discharges.

The regional facility shall be eligible to generate credits.

c. d. If none of the affected facilities have a wasteload allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation, the aggregate mass load limit shall be calculated by adding the respective permitted design capacities for the affected facilities.

d. e. Facilities whose operations were previously authorized by a Virginia Pollution Abatement (VPA) permit that was issued before July 1, 2005, may be consolidated with other facilities under common ownership or operation, but their allocations cannot be transferred to the regional facility.

e. f. Facilities whose operations were previously authorized by a VPA permit that was issued before July 1, 2005, can become regional facilities, but they cannot receive additional allocations beyond those permitted in Part II B 1 d of this general permit.

4. Unless otherwise noted, the nitrogen and phosphorus wasteload allocations assigned to permitted facilities are considered total loads, including nutrients present in the intake water from the river, as applicable. On a case-by-case basis, an industrial discharger may demonstrate to the satisfaction of the board that a portion of the nutrient load originates in its intake water. This demonstration shall be consistent with the assumptions and methods used to derive the allocations through the Chesapeake Bay models. In these cases, the board may limit the permitted discharge to the net nutrient load portion of the assigned wasteload allocation.

5. Bioavailability. Unless otherwise noted, the entire nitrogen and phosphorus wasteload allocations assigned to permitted facilities are considered to be bioavailable to organisms in the receiving stream. On a case-by-case basis, a discharger may demonstrate to the satisfaction of the board that a portion of the nutrient load is not bioavailable; this demonstration shall not be based on the ability of the nutrient to resist degradation at the wastewater treatment plant, but instead, on the ability of the nutrient to resist degradation within a natural environment for the amount of time that it is expected to remain in the Chesapeake Bay watershed. This demonstration shall also be consistent with the assumptions and methods used to derive the allocations through the Chesapeake Bay models. In these cases, the board may limit the permitted discharge to the bioavailable portion of the assigned wasteload allocation.

C. Schedule of compliance.

1. The following schedule of compliance pertaining to the load allocations for total nitrogen and total phosphorus applies to the facilities listed in 9VAC25-820-80.

a. Compliance shall be achieved as soon as possible, but no later than the following dates, subject to any compliance plan-based adjustment by the board pursuant to subdivision 1 b of this subsection, for each upgrade phase:

Upgrade Phase	Limit Effective Date
Phase I Total Nitrogen	January 1, 2017
Phase 2 Total Nitrogen	January 1, 2022
Phase 2 Total Phosphorus	January 1, 2017

b. Following submission of compliance plans and compliance plan updates required by 9VAC25-820-40, the board shall reevaluate the schedule of compliance in subdivision 1 a of this subsection, taking into account the information in the compliance plans and the factors in § 62.1-44.19:14 C 2 of the Code of Virginia. When warranted based on such information and factors, the board shall adjust the schedule in subdivision 1 a of this subsection as appropriate by modification or reissuance of this general permit.

2. The registration list shall contain individual dates for compliance with wasteload allocations for dischargers, as follows:

a. Owners of facilities listed in 9VAC25-820-80 will have individual dates for compliance based on their respective compliance plans that may be earlier than the upgrade phase schedule listed in subdivision 1 of this subsection.

b. Owners of facilities listed in 9VAC25-820-80 that waive their compliance schedules in accordance with 9VAC25-820-40 A 2 b shall have an individual compliance date of January 1, 2017.

c. Upon completion of the projects contained in their compliance plans, owners of facilities listed in 9VAC25-820-80 may receive a revised individual compliance date of January 1 for the calendar year immediately following the year in which a Certificate to Operate was issued for the capital projects, but not later than the upgrade phase schedule listed in subdivision 1 of this subsection.

d. Owners of new and expanded facilities will have individual dates for compliance corresponding to the date that coverage under this general permit was extended to discharges from the facility.

3. The significant dischargers in the James River Basin shall meet aggregate discharged wasteload allocations of 8,968,864 lbs/yr TN and 545,558 lbs/yr TP by January 1, 2023.

D. Annual update of compliance plan. Every owner of a facility required to submit a registration statement shall either individually or through the Virginia Nutrient Credit Exchange Association submit updated compliance plans to the department no later than February 1 of each year. The compliance plans shall contain sufficient information to document a plan to achieve and maintain compliance with applicable total nitrogen and total phosphorus individual wasteload allocations on the registration list and aggregate wasteload allocations in Part I C 3. Compliance plans for owners of facilities that were required to submit a registration statement with the department under Part I G 1 a may rely on the acquisition of point source credits in accordance with Part I J of this general permit, but not the acquisition of credits through payments into the Nutrient Offset Fund, to achieve compliance with the individual and combined wasteload allocations in each tributary. Compliance plans for expansions or new discharges for owners of facilities that are required to submit a registration statement with the department under Part I G 1 b and c may rely on the acquisition of allocation in accordance with Part II B of this general permit to achieve compliance with the individual and combined wasteload allocations in each tributary.

E. Monitoring requirements.

1. Discharges shall be monitored by the permittee during weekdays as specified in the table below unless the department determines that weekday only sampling results in a non-representative load. Weekend monitoring or alternative monthly load calculations to address production schedules or seasonal flows shall be submitted to the department for review and approval on a case-by-case basis. Facilities that exhibit instantaneous discharge flows that vary from the daily average discharge flow by less than 10% may submit a proposal to the department to use an alternative sample type; such proposals shall be reviewed and approved by the department on a case-by-case basis.

Parameter	Sample Type and Collection Frequency
STP design flow	≥20.0 MGD		1.0 - 19.999 MGD		0.5 - 0.999 MGD		0.040 - 0.499 MGD			< 0.040 MGD
Effluent TN load limit for industrial facilities			≥100,000 - > 350,000 lb/yr		50,000 - 99,999 lb/yr		487 - 49,999 lb/yr			< 487 lb/yr
Effluent TP load limit for industrial facilities			≥10,000 - > 35,000 lb/yr		5,000 - 9,999 lb/yr		37 - 4,999 lb/yr			< 37 lb/yr
Flow	Totalizing, Indicating, and Recording									1/Day, see individual VPDES permit for sample type
Nitrogen Compounds (Total Nitrogen = TKN NO2- (as N) NO3- (as N))	24 HC 3 Days/Week		24 HC 2 Days/Week*		8 HC 2 Days/Week*		8 HC 2/Month, > 7 days apart			1/Month Grab
Total Phosphorus	24 HC 3 Days/Week		24 HC 2 Days/Week*		8 HC 2 Days/Week*		8 HC 2/Month, > 7 days apart			1/Month Grab
*Two flow composited samples taken in the same calendar week that are then composited by flow into a single weekly composite sample for analysis shall be considered to be in compliance with this requirement.

2. Monitoring for compliance with effluent limitations shall be performed in a manner identical to that used to determine compliance with effluent limitations established in the individual VPDES permit unless specified otherwise in subdivisions 3, 4, and 5 of Part I E. Monitoring or sampling shall be conducted according to analytical laboratory methods approved under 40 CFR Part 136, unless other test or sample collection procedures have been requested by the permittee and approved by the department in writing. All analysis for compliance with effluent limitations shall be conducted in accordance with 1VAC30-45, Certification for Noncommercial Environmental Laboratories, or 1VAC30-46, Accreditation for Commercial Environmental Laboratories. Monitoring may be performed by the permittee at frequencies more stringent than listed in subdivision 1 of Part I E; however, the permittee shall report all results of such monitoring.

3. Loading values greater than or equal to 10 pounds reported in accordance with Part I E and F of this general permit shall be calculated and reported to the nearest pound without regard to mathematical rules of precision. Loading values of less than 10 pounds reported in accordance with Part I E and F of this general permit shall be calculated and reported to at least two significant digits with the exception that all complete calendar year annual loads shall be reported to the nearest pound.

4. Data shall be reported on a form provided by the department, by the same date each month as is required by the owner's individual VPDES permit. The total monthly load shall be calculated in accordance with the following formula:

where:

ML = total monthly load (lb/mo) = average daily load for the calendar month multiplied by the number of days of the calendar month on which a discharge occurred

DL = daily load = daily concentration (expressed as mg/l to the nearest 0.01 mg/l) multiplied by the flow volume of effluent discharged during the 24-hour period (expressed as MGD to at least the nearest 0.01 MGD and in no case less than two significant digits), multiplied by 8.345. Daily loads greater than or equal to 10 pounds may be rounded to the nearest whole number to convert to pounds per day (lbs/day). Daily loads less than or equal to 10 pounds may be rounded to no fewer than two significant figures.

s = number of days in the calendar month in which a sample was collected and analyzed

d = number of discharge days in the calendar month

For total phosphorus, all daily concentration data below the quantification level (QL) for the analytical method used shall be treated as half the QL. All daily concentration data equal to or above the QL for the analytical method used shall be treated as it is reported. If all data are below the QL, then the average shall be reported as half the QL.

For total nitrogen (TN), if none of the daily concentration data for the respective species (i.e., TKN, nitrates/nitrites) are equal to or above the QL for the respective analytical methods used, the daily TN concentration value reported shall equal one half of the largest QL used for the respective species. If one of the data is equal to or above the QL, the daily TN concentration value shall be treated as that data point as reported. If more than one of the data is above the QL, the daily TN concentration value shall equal the sum of the data points as reported.

The quantification levels shall be less than or equal to the following concentrations:

Parameter	Quantification Level
TKN	0.50 mg/l
Nitrite	0.10 mg/l
Nitrate	0.20 mg/l
Nitrite Nitrate	0.20 mg/l

Higher QLs may be approved on a case-by-case basis where a higher QL routinely results in reportable results of the species in question or is otherwise technically appropriate based on standard lab practices.

The total year-to-date mass load shall be calculated in accordance with the following formula:

where:

AL-YTD = calendar year-to-date annual load (lb/yr)

ML = total monthly load (lb/mo)

The total annual mass load shall be calculated in accordance with the following formula:

where:

AL = calendar year annual load (lb/yr)

ML = total monthly load (lb/mo)

5. The department may authorize a chemical usage evaluation as an alternative means of determining nutrient loading for outfalls where the only source of nutrients is that found in the surface water intake and chemical additives used by the facility. Such an evaluation shall be submitted to the department for review and approval on a case-by-case basis. Implementation of approved chemical usage evaluations shall satisfy the requirements specified under Part I E 1 and 2.

F. Annual reporting. On or before February 1, annually, each permittee shall file a discharge monitoring report with the department identifying the annual mass load of total nitrogen and the annual mass load of total phosphorus discharged by the permitted facility during the previous calendar year.

G. Requirement to register; exclusions.

1. The following owners are required to register for coverage under this general permit:

a. Every owner of an existing facility authorized by a VPDES permit to discharge 100,000 gallons or more per day from a sewage treatment work, or an equivalent load from an industrial facility, directly into tidal waters, or 500,000 gallons or more per day from a sewage treatment works, or an equivalent load from an industrial facility, directly into nontidal waters shall submit a registration statement to the department by November 1, 2016, and thereafter upon the reissuance of this general permit in accordance with Part III M. The conditions of this general permit will apply to such owner upon approval of a registration statement.

b. Any owner of a facility authorized by a Virginia Pollutant Discharge Elimination System permit to discharge 40,000 gallons or more per day from a sewage treatment works, or an equivalent load from an industrial facility, directly into tidal or nontidal waters shall submit a registration statement with the department at the time he makes application for an individual permit with the department for a new discharge or expansion that is subject to an offset requirement in Part II of this general permit or to a technology-based requirement in 9VAC25-40-70, and thereafter upon the reissuance of this general permit in accordance with Part III M. The conditions of this general permit will apply to such owner beginning January 1 of the calendar year immediately following approval of a registration statement and issuance or modification of the individual permit.

c. Any owner of a facility treating domestic sewage authorized by a VPDES permit with a discharge greater than 1,000 gallons per day up to and including 39,999 gallons per day that did not commence the discharge of pollutants prior to January 1, 2011, and is subject to offset requirements in accordance with Part II A 1 c of this general permit shall submit a registration statement with the department at the time he the owner makes application for an individual permit with the department or prior to commencing a discharge, whichever occurs first, and thereafter upon the reissuance of this general permit in accordance with Part III M.

2. All other categories of discharges are excluded from registration under this general permit.

H. Registration statement.

1. The registration statement shall contain the following information:

a. Name, mailing address and telephone number, email address, and fax number of the owner (and facility operator, if different from the owner) applying for permit coverage;

b. Name (or other identifier), address, city or county, contact name, phone number, email address, and fax number for the facility for which the registration statement is submitted;

c. VPDES permit numbers for all permits assigned to the facility, or pursuant to which the discharge is authorized;

d. If applying for an aggregated wasteload allocation in accordance with Part I B 2 of this permit, a list of all affected facilities and the VPDES permit numbers assigned to these facilities;

e. For new and expanded facilities, a plan to offset new or increased delivered total nitrogen and delivered total phosphorus loads, including the amount of wasteload allocation acquired. Wasteload allocations or credits sufficient to offset projected nutrient loads must be provided for period of at least five years; and

f. For existing facilities, the amount of a facility's wasteload allocation transferred to or from another facility to offset new or increased delivered total nitrogen and delivered total phosphorus loads from a new discharge or expansion.

2. The registration statement shall be submitted to the DEQ Central Office, Office of VPDES Permits. Following notification from the department of the start date for the required electronic submission of Notices of Intent to Discharge forms (i.e., registration statements), as provided for in 9VAC25-31-1020, such form submitted after that date shall be electronically submitted to the department in compliance with this section and 9VAC25-31-1020. At least three months' notice shall be provided between the notification from the department and the date after which such forms must be submitted electronically.

3. An amended registration statement shall be submitted to DEQ immediately upon the acquisition or transfer of a facility's wasteload allocation to offset new or increased delivered total nitrogen and delivered total phosphorus loads from a new discharge or expansion.

I. Public notice for registration statements proposing modifications or incorporations of new wasteload allocations or delivery factors.

1. All public notices issued pursuant to a proposed modification or incorporation of a (i) new wasteload allocation to offset new or increased delivered total nitrogen and delivered total phosphorus loads from a new discharge or expansion or (ii) delivery factor shall be published once a week for two consecutive weeks in a local newspaper of general circulation serving the locality where the facility is located informing the public that the owner of the facility intends to apply for coverage under this general permit. At a minimum, the notice shall include:

a. A statement of the owner's intent to register for coverage under this general permit;

b. A brief description of the facility and its location;

c. The amount of wasteload allocation that will be acquired or transferred if applicable;

d. The delivery factor for a new discharge or expansion;

e. If applicable, any proposed nonpoint source to point source trading ratio less than 2:1 proposed under Part II B 1 b (1);

f. A statement that the purpose of the public participation is to acquaint the public with the technical aspects of the facility and how the standards and the requirements of this chapter will be met, to identify issues of concern, to facilitate communication, and to establish a dialogue between the owner and persons who may be affected by the discharge from the facility;

g. An announcement of a 30-day comment period and the name, telephone number, and address of the owner's representative who can be contacted by the interested persons to answer questions;

h. The name, telephone number, and address of the DEQ representative who can be contacted by the interested persons to answer questions, or where comments shall be sent; and

i. The location where copies of the documentation to be submitted to the department in support of this general permit notification and any supporting documents can be viewed and copied.

2. The owner shall place a copy of the documentation and support documents in a location accessible to the public in the vicinity of the proposed facility.

3. The public shall be provided 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period will begin on the date the notice is published in the local newspaper.

J. Compliance with wasteload allocations.

1. Methods of compliance. The owner of the permitted facility shall comply with its wasteload allocation contained in the registration list maintained by the department. The owner of the permitted facility shall be in compliance with its wasteload allocation if:

a. The annual mass load is less than or equal to the applicable wasteload allocation assigned to the facility in this general permit (or permitted design capacity for expanded facilities without allocations);

b. The owner of the permitted facility acquires sufficient point source nitrogen or phosphorus credits in accordance with subdivision 2 of this subsection; provided, however, that the acquisition of nitrogen or phosphorus credits pursuant to this section shall not alter or otherwise affect the individual wasteload allocations for each permitted facility; or

c. In the event he is unable to meet the individual wasteload allocation pursuant to subdivision 1 a or 1 b of this subsection, the owner of the permitted facility acquires sufficient nitrogen or phosphorus credits through payments made into the Nutrient Offset Fund pursuant to subdivision 3 of this subsection; provided, however, that the acquisition of nitrogen or phosphorus credits pursuant to this section shall not alter or otherwise affect the individual wasteload allocations for each permitted facility.

2. Credit acquisition from owners of permitted facilities. A permittee may acquire point source nitrogen credits or point source phosphorus credits from one or more owners of permitted facilities only if:

a. The credits are generated and applied to a compliance obligation in the same calendar year;

b. The credits are generated by one or more permitted facilities in the same tributary, except that owners of permitted facilities in the Eastern Shore Basin may also acquire credits from owners of permitted facilities in the Potomac and Rappahannock tributaries. Owners of Eastern Shore Basin facilities may acquire credits from the owners of Potomac tributary facilities at a trading ratio of 1:1. A trading ratio of 1.3:1 shall apply to the acquisition of credits from the owners of a Rappahannock tributary facility by the owner of an Eastern Shore Basin facility;

c. The exchange or acquisition of credits does not affect any requirement to comply with local water quality-based limitations as determined by the board;

d. The credits are acquired no later than June 1 immediately following the calendar year in which the credits are applied;

e. The credits are generated by a facility that has been constructed, and has discharged from treatment works whose design flow or equivalent industrial activity is the basis for the facility's wasteload allocations (until a facility is constructed and has commenced operation, such credits are held, and may be sold, by the Nutrient Offset Fund; and

f. No later than June 1 immediately following the calendar year in which the credits are applied, the permittee certifies on a credit exchange notification form supplied by the department that he has acquired sufficient credits to satisfy his compliance obligations. The permittee shall comply with the terms and conditions contained in the credit exchange notification form submitted to the department.

3. Credit acquisitions from the Nutrient Offset Fund. Until such time as the board finds that no allocations are reasonably available in an individual tributary, permittees that cannot meet their total nitrogen or total phosphorus effluent limit may acquire nitrogen or phosphorus credits through payments made into the Nutrient Offset Fund established in § 10.1-2128.2 of the Code of Virginia only if, no later than June 1 immediately following the calendar year in which the credits are to be applied, the permittee certifies on a form supplied by the department that he has diligently sought, but has been unable to acquire, sufficient credits to satisfy his compliance obligations through the acquisition of point source nitrogen or phosphorus credits with other permitted facilities, and that he has acquired sufficient credits to satisfy his compliance obligations through one or more payments made in accordance with the terms of this general permit. Such certification may include, but not be limited to, providing a record of solicitation or demonstration that point source allocations are not available for sale in the tributary in which the permittee's facility is located. Payments to the Nutrient Offset Fund shall be in the amount of $4.60 $5.08 for each pound of nitrogen and $10.10 $11.15 for each pound of phosphorus and shall be subject to the following requirements:

a. The credits are generated and applied to a compliance obligation in the same calendar year.

b. The credits are generated in the same tributary, except that owners of permitted facilities in the Eastern Shore Basin may also acquire credits from the owners of facilities that discharge to the Potomac and Rappahannock tributaries. Owners of Eastern Shore Basin facilities may acquire credits from the owners of facilities that discharge to a Potomac tributary at a trading ratio of 1:1. A trading ratio of 1.3:1 shall apply to the acquisition of credits from owners of facilities that discharge to a Rappahannock tributary by the owners of an Eastern Shore Basin facility.

c. The acquisition of credits does not affect any requirement to comply with local water quality-based limitations, as determined by the board.

4. This general permit neither requires nor prohibits a municipality or regional sewerage authority's development and implementation of trading programs among industrial users, which are consistent with the pretreatment regulatory requirements at 40 CFR Part 403 and the municipality's or authority's individual VPDES permit.

Part II

SPECIAL CONDITIONS APPLICABLE TO NEW AND EXPANDED FACILITIES

A. Offsetting mass loads discharged by new and expanded facilities.

1. An owner of a new or expanded facility shall comply with the applicable requirements of this section as a condition of the facility's coverage under this general permit.

a. An owner of a facility authorized by a VPDES permit first issued before July 1, 2005, that expands the facility to discharge 40,000 gallons or more per day, or an equivalent load, shall demonstrate to the department that he has acquired wasteload allocations sufficient to offset any increase in his delivered total nitrogen and delivered total phosphorus loads resulting from any expansion beyond his permitted capacity as of July 1, 2005.

b. An owner of a facility authorized by a VPDES permit first issued on or after July 1, 2005, to discharge 40,000 gallons or more per day, or an equivalent load, shall demonstrate to the department that he has acquired wasteload allocations sufficient to offset his delivered total nitrogen and delivered total phosphorus loads.

c. An owner of a facility treating domestic sewage authorized by a VPDES permit with a discharge greater than 1,000 gallons per day up to and including 39,999 gallons per day that did not commence the discharge of pollutants prior to January 1, 2011, shall demonstrate to the department that he has acquired wasteload allocations sufficient to offset his delivered total nitrogen and delivered phosphorus loads prior to commencing the discharge, except when the facility is for short-term temporary use only as determined by the department or when treatment of domestic sewage is not the primary purpose of the facility.

2. Offset calculations shall address the proposed discharge that exceeds:

a. The applicable wasteload allocation assigned to discharges from the facility in this general permit, for expanding significant dischargers with a wasteload allocation listed in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation;

b. The permitted design capacity, for all other expanding dischargers; and

c. Zero, for facilities with a new discharge.

3. An owner of multiple facilities that discharge into the same tributary, and assigned an aggregate mass load limit in accordance with Part I B 2 of this general permit, that undertakes construction of new or expanded facilities shall be required to acquire wasteload allocations sufficient to offset any increase in delivered total nitrogen and delivered total phosphorus loads resulting from any expansion beyond the aggregate mass load limit assigned these facilities.

B. Acquisition of wasteload allocations. wasteload Wasteload allocations required by this section to offset new or increased delivered total nitrogen and delivered total phosphorus loads shall be acquired in accordance with this section.

1. Such allocations may be acquired from one or a combination of the following:

a. Acquisition of all or a portion of the wasteload allocations or point source nitrogen or point source phosphorus credits from the owners of one or more permitted facilities, based on delivered pounds by the respective trading parties as listed by the department;

b. Acquisition of credits certified by the board pursuant to § 62.1-44.19:20 of the Code of Virginia. Credits used to offset new or increased nutrient loads under this subdivision shall be:

(1) Subject to a trading ratio of two pounds reduced for every pound to be discharged if certified as a nonpoint source credit by the board pursuant to § 62.1-44.19:20 of the Code of Virginia. On a case-by-case basis the board may approve nonpoint source to source trading ratios of less than 2:1 (but not less than 1:1) when the applicant demonstrates factors that ameliorate the presumed 2:1 uncertainty ratio for credits generation by nonpoint sources such as:

(a) When direct and representative monitoring of the pollutant loadings from a nonpoint source is performed in a manner and at a frequency similar to that performed at VPDES point sources and there is consistency in the effectiveness of the operation of the nonpoint source best management practice (BMP) approaching that of a conventional point source.

(b) When nonpoint source credits are generated from land conservation that ensures permanent protection through a conservation easement or other instrument attached to the deed and when load reductions can be reliably determined;

(2) Calculated using best management practices efficiency rates and attenuation rates, as established by the latest science and relevant technical information, and approved by the board;

(3) Based on appropriate delivery factors, as established by the latest science and relevant technical information, and approved by the board;

(4) Demonstrated to have achieved reductions beyond those already required by or funded under federal or state law, or by Virginia's Chesapeake Bay TMDL Watershed Implementation Plan;

(5) Generated in accordance with conditions of the facility's individual VPDES permit; and

(6) In the case of credits generated by land use conversions and urban source reduction controls (BMPs), the credits shall represent nutrient reductions beyond those in place as of July 1, 2005;

c. Until such time as the board finds that no allocations are reasonably available in an individual tributary, acquisition of allocations through payments made into the Nutrient Offset Fund established in § 10.1-2128.2 of the Code of Virginia; or

d. Acquisition of allocations through such other means as may be approved by the department on a case-by-case basis. This includes allocations granted by the board to an owner of a facility that is authorized by a VPA permit to land apply domestic sewage if:

(1) The VPA permit was issued before July 1, 2005;

(2) The allocation does not exceed the facility's permitted design capacity as of July 1, 2005;

(3) The waste treated by the facility that is covered under the VPA permit will be treated and discharged pursuant to a VPDES permit for a new discharge; and

(4) The owner installs state-of-the-art nutrient removal technology at such a facility.

2. Acquisition of allocations or point source nitrogen or point source phosphorus credits is subject to the following conditions:

a. The allocations or credits shall be generated and applied to an offset obligation in the same calendar year in which the credit is generated;

b. The allocations or credits shall be generated in the same tributary;

c. Such acquisition does not affect any requirement to comply with local water quality-based limitations, as determined by the board;

d. The allocations are authenticated (i.e., verified to have been generated) by the permittee as required by the facility's individual VPDES permit, utilizing procedures approved by the board, no later than February 1 immediately following the calendar year in which the allocations are applied; and

e. If obtained from the owner of a permitted point source, the allocations shall be generated by a facility that has been constructed, and has discharged from treatment works whose design flow or equivalent industrial activity is the basis for the facility's wasteload allocations.

f. Such allocations or credits shall be secured for a period of five years with each registration under the general permit.

3. Priority of options. The board shall give priority to allocations or credits acquired in accordance with subdivisions 1 a, b, and d of this subsection. The board shall approve allocations acquired in accordance with subdivision 1 c of this subsection only after the owner has demonstrated that he has made a good faith effort to acquire sufficient allocations in accordance with subdivisions 1 a and 1 b of this subsection, and that such allocations are not reasonably available taking into account timing, cost and other relevant factors. Such demonstration may include, but not be limited to, providing a record of solicitation, or other demonstration that point source allocations or nonpoint source allocations are not available for sale in the tributary in which the permittee's facility discharge is located.

4. Annual allocation acquisitions from the Nutrient Offset Fund. The cost for each pound of nitrogen and each pound of phosphorus shall be determined at the time payment is made to the Nutrient Offset Fund, based on the higher of (i) the estimated cost of achieving a reduction of one pound of nitrogen or phosphorus at the facility that is securing the allocation, or comparable facility, for each pound of allocation acquired; or (ii) the average cost, as determined by the department on an annual basis, of reducing two pounds of nitrogen or phosphorus from nonpoint sources in the same tributary for each pound of allocation acquired.

Part III

CONDITIONS APPLICABLE TO ALL VPDES PERMITS

A. Monitoring.

1. Samples and measurements taken as required by this permit shall be representative of the monitored activity.

2. Monitoring shall be conducted according to procedures approved under 40 CFR Part 136 or alternative methods approved by the U.S. Environmental Protection Agency, unless other procedures have been specified in this permit.

3. The permittee shall periodically calibrate and perform maintenance procedures on all monitoring and analytical instrumentation at intervals that will ensure accuracy of measurements.

4. Samples taken as required by this permit shall be analyzed in accordance with 1VAC30-45 (Certification for Noncommercial Environmental Laboratories) or 1VAC30-46 (Accreditation for Commercial Environmental Laboratories).

B. Records.

1. Records of monitoring information shall include:

a. The date, exact place, and time of sampling or measurements;

b. The individuals who performed the sampling or measurements;

c. The dates and times analyses were performed;

d. The individuals who performed the analyses;

e. The analytical techniques or methods used; and

f. The results of such analyses.

2. Except for records of monitoring information required by this permit related to the permittee's sewage sludge use and disposal activities, which shall be retained for a period of at least five years, the permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the registration statement for this permit, for a period of at least three years from the date of the sample, measurement, report, or request for coverage. 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 permittee or as requested by the board.

C. Reporting monitoring results.

1. The permittee shall submit the results of the monitoring required by this permit not later than the 10th day of the month after monitoring takes place, unless another reporting schedule is specified elsewhere in this permit. Monitoring results shall be submitted to the department's regional office.

2. Monitoring results shall be reported on a Discharge Monitoring Report (DMR) or on forms provided, approved, or specified by the department.

3. If the permittee monitors any pollutant specifically addressed by this permit more frequently than required by this permit using test procedures approved under 40 CFR Part 136 or using other test procedures approved by the U.S. Environmental Protection Agency or using procedures specified in this permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted on the DMR or reporting form specified by the department.

4. Calculations for all limitations that require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in this permit.

D. Duty to provide information. The permittee shall furnish to the department, within a reasonable time, any information that the board may request to determine whether cause exists for modifying, revoking and reissuing, or terminating coverage under this permit or to determine compliance with this permit. The board may require the permittee to furnish, upon request, such plans, specifications, and other pertinent information as may be necessary to determine the effect of the wastes from the discharge on the quality of state waters or such other information as may be necessary to accomplish the purposes of the State Water Control Law. The permittee shall also furnish to the department, upon request, copies of records required to be kept by this permit.

E. Compliance schedule reports. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than 14 days following each schedule date.

F. Unauthorized discharges. Except in compliance with this permit or another permit issued by the board, it shall be unlawful for any person to:

1. Discharge into state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances; or

2. Otherwise alter the physical, chemical, or biological properties of such state waters and make them detrimental to the public health, to animal or aquatic life, or to the use of such waters for domestic or industrial consumption, for recreation, or for other uses.

G. Reports of unauthorized discharges. Any permittee that discharges or causes or allows a discharge of sewage, industrial waste, other wastes, or any noxious or deleterious substance into or upon state waters in violation of Part III F, or that discharges or causes or allows a discharge that may reasonably be expected to enter state waters in violation of Part III F, shall notify the department of the discharge immediately upon discovery of the discharge, but in no case later than 24 hours after said discovery. A written report of the unauthorized discharge shall be submitted to the department within five days of discovery of the discharge. The written report shall contain:

1. A description of the nature and location of the discharge;

2. The cause of the discharge;

3. The date on which the discharge occurred;

4. The length of time that the discharge continued;

5. The volume of the discharge;

6. If the discharge is continuing, how long it is expected to continue;

7. If the discharge is continuing, what the expected total volume of the discharge will be; and

8. Any steps planned or taken to reduce, eliminate, and prevent a recurrence of the present discharge or any future discharge not authorized by this permit.

Discharges reportable to the department under the immediate reporting requirements of other regulations are exempted from this requirement.

H. Reports of unusual or extraordinary discharges. If any unusual or extraordinary discharge including a bypass or upset should occur from a treatment works and the discharge enters or could be expected to enter state waters, the permittee shall promptly notify, in no case later than 24 hours, the department by telephone after the discovery of the discharge. This notification shall provide all available details of the incident, including any adverse effects on aquatic life and the known number of fish killed. The permittee shall reduce the report to writing and shall submit it to the department within five days of discovery of the discharge in accordance with Part III I 2. Unusual and extraordinary discharges include, but are not limited to, any discharge resulting from:

1. Unusual spillage of materials resulting directly or indirectly from processing operations;

2. Breakdown of processing or accessory equipment;

3. Failure or taking out of service some or all of the treatment works; and

4. Flooding or other acts of nature.

I. Reports of noncompliance. The permittee shall report any noncompliance that may adversely affect state waters or may endanger public health.

1. An oral report shall be provided within 24 hours from the time the permittee becomes aware of the circumstances. The following shall be included as information that shall be reported within 24 hours under this paragraph:

a. Any unanticipated bypass; and

b. Any upset that causes a discharge to surface waters.

2. A written report shall be submitted within five days and shall contain:

a. A description of the noncompliance and its cause;

b. The period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and

c. Steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

The board may waive the written report on a case-by-case basis for reports of noncompliance under Part III I if the oral report has been received within 24 hours and no adverse impact on state waters has been reported.

3. The permittee shall report all instances of noncompliance not reported under Part III I 1 or 2, in writing, at the time the next monitoring reports are submitted. The reports shall contain the information listed in Part III I 2.

NOTE: The immediate (within 24 hours) reports required in Part III G, H, and I may be made to the department's regional office. Reports may be made by telephone, FAX, or online at http://www.deq.virginia.gov/Programs/PollutionResponsePreparedness/MakingaReport.aspx https://portal.deq.virginia.gov/prep/Report/Create. For reports outside normal working hours, a message may be left and this shall fulfill the immediate reporting requirement. For emergencies, the Virginia Department of Emergency Management maintains a 24-hour telephone service at 1-800-468-8892.

4. Where the permittee becomes aware that it failed to submit any relevant facts in a permit registration statement or submitted incorrect information in a permit registration statement or in any report to the department, the permittee shall promptly submit such facts or information.

J. Notice of planned changes.

1. The permittee shall give notice to the department as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when:

a. The permittee plans alteration or addition to any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:

(1) After promulgation of standards of performance under § 306 of the Clean Water Act (33 USC § 1251 et seq.) that are applicable to such source; or

(2) After proposal of standards of performance in accordance with § 306 of the Clean Water Act that are applicable to such source, but only if the standards are promulgated in accordance with § 306 of the Clean Water Act within 120 days of their proposal;

b. The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants that are subject neither to effluent limitations nor to notification requirements specified elsewhere in this permit; or

c. The alteration or addition results in a significant change in the permittee's sludge use or of disposal practices, and such alteration, addition, or change may justify the application of permit conditions that are different from or absent in the existing permit, including notification of additional use or of disposal sites not reported during the permit application process or not reported pursuant to an approved land application plan.

2. The permittee shall give advance notice to the department of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.

K. Signatory requirements.

1. Registration statement. All registration statements shall be signed as follows:

a. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means (i) 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 (ii) the manager of one or more manufacturing, production, or operating facilities, provided the manager is authorized to make management decisions that govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations and initiating and directing other comprehensive measures to assure long-term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or other actions taken to gather complete and accurate information for permit registration requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;

b. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

c. For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a public agency includes (i) the chief executive officer of the agency or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

2. Reports, etc. All reports required by permits and other information requested by the board shall be signed by a person described in Part III K 1 or by a duly authorized representative of that person. A person is a duly authorized representative only if:

a. The authorization is made in writing by a person described in Part III K 1;

b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and

c. The written authorization is submitted to the department.

3. Changes to authorization. If an authorization under Part III K 2 is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of Part III K 2 shall be submitted to the department prior to or together with any reports, or information to be signed by an authorized representative.

4. Certification. Any person signing a document under Part III K 1 or 2 shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

L. Duty to comply. The permittee shall comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the State Water Control Law and the Clean Water Act, except that noncompliance with certain provisions of this permit may constitute a violation of the State Water Control Law but not the Clean Water Act. Permit noncompliance is grounds for enforcement action; for, permit coverage termination, revocation and reissuance, or modification; or denial of a permit coverage renewal application.

The permittee shall comply with effluent standards or prohibitions established under § 307(a) of the Clean Water Act for toxic pollutants and with standards for sewage sludge use or disposal established under § 405(d) of the Clean Water Act within the time provided in the regulations that establish these standards or prohibitions or standards for sewage sludge use or disposal, even if this permit has not yet been modified to incorporate the requirement.

M. Duty to reapply. If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee shall submit a new registration statement at least 60 days before the expiration date of the existing permit, unless permission for a later date has been granted by the board. The board shall not grant permission for registration statements to be submitted later than the expiration date of the existing permit.

N. Effect of a permit. This permit does not convey any property rights in either real or personal property or any exclusive privileges, nor does it authorize any injury to private property or invasion of personal rights or any infringement of federal, state, or local law or regulations.

O. State law. Nothing in this permit shall be construed to preclude the institution of any legal action under, or relieve the permittee from any responsibilities, liabilities, or penalties established pursuant to, any other state law or regulation or under authority preserved by § 510 of the Clean Water Act. Except as provided in permit conditions on "bypassing" (Part III U) and "upset" (Part III V), nothing in this permit shall be construed to relieve the permittee from civil and criminal penalties for noncompliance.

P. Oil and hazardous substance liability. Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from responsibilities, liabilities, or penalties to which the permittee is or may be subject under §§ 62.1-44.34:14 through 62.1-44.34:23 of the State Water Control Law.

Q. Proper operation and maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) that are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also include effective plant performance, adequate funding, adequate staffing, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems that are installed by the permittee only when the operation is necessary to achieve compliance with the conditions of this permit.

R. Disposal of solids or sludges. Solids, sludges, or other pollutants removed in the course of treatment or management of pollutants shall be disposed of in a manner so as to prevent any pollutant from such materials from entering state waters.

S. Duty to mitigate. The permittee shall take all reasonable steps to minimize or prevent any discharge or sludge use or disposal in violation of this permit that has a reasonable likelihood of adversely affecting human health or the environment.

T. Need to halt or reduce activity not a defense. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

U. Bypass.

1. "Bypass" means the intentional diversion of waste streams from any portion of a treatment facility. The permittee may allow any bypass to occur that does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to ensure efficient operation. These bypasses are not subject to the provisions of Part III U 2 and 3.

2. Notice.

a. Anticipated bypass. If the permittee knows in advance of the need for a bypass, prior notice shall be submitted, if possible, at least 10 days before the date of the bypass.

b. Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in Part III I.

3. Prohibition of bypass.

a. Bypass is prohibited, and the board may take enforcement action against a permittee for bypass, unless:

(1) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and

(3) The permittee submitted notices as required under Part III U 2.

b. The board may approve an anticipated bypass after considering its adverse effects if the board determines that it will meet the three conditions listed in Part III U 3 a.

V. Upset.

1. An upset, defined in 9VAC25-31-10, constitutes an affirmative defense to an action brought for noncompliance with technology-based permit effluent limitations if the requirements of Part III V 2 are met. A determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is not a final administrative action subject to judicial review.

2. A permittee who wishes to establish the affirmative defense of upset shall demonstrate through properly signed, contemporaneous operating logs, or other relevant evidence that:

a. An upset occurred and that the permittee can identify the cause or causes of the upset;

b. The permitted facility was at the time being properly operated;

c. The permittee submitted notice of the upset as required in Part III I; and

d. The permittee complied with remedial measures required under Part III S.

3. In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.

W. Inspection and entry. The permittee shall allow the director, or an authorized representative, including an authorized contractor acting as a representative of the administrator, upon presentation of credentials and other documents as may be required by law, to:

1. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

2. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

3. Inspect at reasonable times facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

4. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act and the State Water Control Law, substances or parameters at any location.

For purposes of this section, the time for inspection shall be deemed reasonable during regular business hours and or whenever the facility is discharging. Nothing contained herein shall make an inspection unreasonable during an emergency.

X. Permit actions. Permits may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, termination, or notification of planned changes or anticipated noncompliance does not stay any permit condition.

Y. Transfer of permits permit coverage. Permits are Permit coverage is not transferable to any person except after notice to the department. Coverage under this permit may be automatically transferred to a new permittee if:

1. The current permittee notifies the department within 30 days of the transfer of the title to the facility or property, unless permission for a later date has been granted by the board;

2. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

3. The board does not notify the existing permittee and the proposed new permittee of its intent to deny the new permittee coverage under the permit. If this notice is not received, the transfer is effective on the date specified in the agreement described in Part III Y 2.

Z. Severability. The provisions of this permit are severable, and if any provision of this permit or the application of any provision of this permit to any circumstance is held invalid, the application of such provision to other circumstances, and the remainder of this permit, shall not be affected thereby.

Title of Regulation: 12VAC5-230. State Medical Facilities Plan (amending 12VAC5-230-10, 12VAC5-230-420, 12VAC5-230-610, 12VAC5-230-620).

Statutory Authority: §§ 32.1-12 and 32.1-102.2 of the Code of Virginia.

Effective Date: March 31, 2021.

Agency Contact: Erik Bodin, Director of COPN, MCHIP, and Cooperative Agreement Division, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-1889, or email erik.bodin@vdh.virginia.gov.

Summary:

The regulatory action updates the State Medical Facilities Plan to (i) correct the definition of cardiac catheterization; (ii) add definitions for simple therapeutic, complex therapeutic, and diagnostic cardiac catheterizations; (iii) update the definition of diagnostic equivalent procedure to reflect the differentiation between the types of cardiac catheterization; (iv) add new review criteria for projects relating to cardiac catheterization and the new differentiation; and (v) makes appropriate changes to the occupancy standard utilized for determining the need for new nursing home beds. The proposed amendment in 12VAC5-230-610 to change "can" to "shall" regarding the exception in subsection A was not adopted in the final regulation by the State Board of Health.

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.

12VAC5-230-10. Definitions.

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

"Acute psychiatric services" means hospital-based inpatient psychiatric services provided in distinct inpatient units in general hospitals or freestanding psychiatric hospitals.

"Acute substance abuse disorder treatment services" means short-term hospital-based inpatient treatment services with access to the resources of (i) a general hospital, (ii) a psychiatric unit in a general hospital, (iii) an acute care addiction treatment unit in a general hospital licensed by the Department of Health, or (iv) a chemical dependency specialty hospital with acute care medical and nursing staff and life support equipment licensed by the Department of Mental Behavioral Health, Mental Retardation and Substance Abuse Developmental Services.

"Bassinet" means an infant care station, including warming stations and isolettes.

"Bed" means that unit, within the complement of a medical care facility, subject to COPN review as required by Article 1.1 (§ 32.1-102.1 et seq.) of the Code of Virginia and designated for use by patients of the facility or service. For the purposes of this chapter, bed does include cribs and bassinets used for pediatric patients, but does not include cribs and bassinets in the newborn nursery or neonatal special care setting.

"Cardiac catheterization" means a an invasive procedure where a flexible tube is inserted into the patient through an extremity blood vessel and advanced under fluoroscopic guidance into the heart chambers or coronary arteries. Cardiac A cardiac catheterization may include therapeutic intervention, be conducted for diagnostic or therapeutic purposes but does not include a simple right heart catheterization for monitoring purposes as might be performed in an electrophysiology laboratory, pulmonary angiography as an isolated procedure, or cardiac pacing through a right electrode catheter.

"Commissioner" means the State Health Commissioner.

"Competing applications" means applications for the same or similar services and facilities that are proposed for the same health planning district, or same health planning region for projects reviewed on a regional basis, and are in the same batch review cycle.

"Complex therapeutic cardiac catheterization" means the performance of cardiac catheterization for the purpose of correcting or improving certain conditions that have been determined to exist in the heart or great arteries or veins of the heart, specifically catheter-based procedures for structural treatment to correct congenital or acquired structural or valvular abnormalities.

"Computed tomography" or "CT" means a noninvasive diagnostic technology that uses computer analysis of a series of cross-sectional scans made along a single axis of a bodily structure or tissue to construct an image of that structure.

"Continuing care retirement community" or "CCRC" means a retirement community consistent with the requirements of Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 of the Code of Virginia.

"COPN" means a Medical Care Facilities Certificate of Public Need for a project as required in Article 1.1 (§ 32.1-102.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia.

"COPN program" means the Medical Care Facilities Certificate of Public Need Program implementing Article 1.1 (§ 32.1-102.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia.

"DEP" means diagnostic equivalent procedure, a method for weighing the relative value of various cardiac catheterization procedures as follows: a diagnostic procedure cardiac catheterization equals 1 DEP, a simple therapeutic procedure cardiac catheterization equals 2 DEPs, a same session procedure (diagnostic and simple therapeutic) equals 3 DEPs, and a pediatric procedure complex therapeutic cardiac catheterization equals 2 5 DEPs. A multiplier of 2 will be applied for a pediatric procedure (i.e., a pediatric diagnostic cardiac catheterization equals 2 DEPs, a pediatric simple therapeutic cardiac catheterization equals 4 DEPs, and a pediatric complex therapeutic cardiac catheterization equals 10 DEPs.)

"Diagnostic cardiac catheterization" means the performance of cardiac catheterization for the purpose of detecting and identifying defects in the great arteries or veins of the heart or abnormalities in the heart structure, whether congenital or acquired.

"Direction" means guidance, supervision, or management of a function or activity.

"Gamma knife®" means the name of a specific instrument used in stereotactic radiosurgery.

"Health planning district" means the same contiguous areas designated as planning districts by the Virginia Department of Housing and Community Development or its successor.

"Health planning region" means a contiguous geographic area of the Commonwealth as designated by the State Board of Health with a population base of at least 500,000 persons, characterized by the availability of multiple levels of medical care services, reasonable travel time for tertiary care, and congruence with planning districts.

"Health system" means an organization of two or more medical care facilities, including but not limited to hospitals, that are under common ownership or control and are located within the same health planning district, or health planning region for projects reviewed on a regional basis.

"Hospital" means a medical care facility licensed as an inpatient hospital or outpatient surgical center by the Department of Health or as a psychiatric hospital by the Department of Mental Behavioral Health, Mental Retardation, and Substance Abuse Developmental Services.

"ICF/MR" means an intermediate care facility for the mentally retarded.

"Indigent" means any person whose gross family income is equal to or less than 200% of the federal Nonfarm Poverty Level or income levels A through E of 12VAC5-200-10 and who is uninsured.

"Inpatient" means a patient who is hospitalized longer than 24 hours for health or health related services.

"Intensive care beds" or "ICU" means inpatient beds located in the following units or categories:

1. General intensive care units are those units where patients are concentrated by reason of serious illness or injury regardless of diagnosis. Special lifesaving techniques and equipment are immediately available and patients are under continuous observation by nursing staff;

2. Cardiac care units, also known as Coronary Care Units or CCUs, are units staffed and equipped solely for the intensive care of cardiac patients; and

3. Specialized intensive care units are any units with specialized staff and equipment for the purpose of providing care to seriously ill or injured patients based on age selected categories of diagnoses, including units established for burn care, trauma care, neurological care, pediatric care, and cardiac surgery recovery, but does not include bassinets in neonatal special care units.

"Lithotripsy" means a noninvasive therapeutic procedure to (i) crush renal and biliary stones using shock waves, (i.e., renal lithotripsy) or (ii) treat certain musculoskeletal conditions and to relieve the pain associated with tendonitis, (i.e., orthopedic lithotripsy).

"Long-term acute care hospital" or "LTACH" means an inpatient hospital that provides care for patients who require a length of stay greater than 25 days and is, or proposes to be, certified by the Centers for Medicare and Medicaid Services as a long-term care inpatient hospital pursuant to 42 CFR Part 412. An LTACH may be either a free standing freestanding facility or located within an existing or host hospital.

"Magnetic resonance imaging" or "MRI" means a noninvasive diagnostic technology using a nuclear spectrometer to produce electronic images of specific atoms and molecular structures in solids, especially human cells, tissues and organs.

"Medical rehabilitation" means those services provided consistent with 42 CFR 412.23 and 412.24.

"Medical/surgical" means those services available for the care and treatment of patients not requiring specialized services.

"Minimum survival rates" means the base percentage of transplant recipients who survive at least one year or for such other period of time as specified by the United Network for Organ Sharing (UNOS).

"Neonatal special care" means care for infants in one or more of the higher service levels designated in 12VAC5-410-443 of the Rules and Regulations for the Licensure of Hospitals.

"Nursing facility" means those facilities or components thereof licensed to provide long-term nursing care.

"Obstetrical services" means the distinct organized program, equipment and care related to pregnancy and the delivery of newborns in inpatient facilities.

"Off-site replacement" means the relocation of existing beds or services from an existing medical care facility site to another location within the same health planning district.

"Open heart surgery" means a surgical procedure requiring the use or immediate availability of a heart-lung bypass machine or "pump." The use of the pump during the procedure distinguishes "open heart" from "closed heart" surgery.

"Operating room" means a room used solely or principally for the provision of surgical procedures involving the administration of anesthesia, multiple personnel, recovery room access, and a fully controlled environment.

"Operating room use" means the amount of time a patient occupies an operating room and includes room preparation and cleanup time.

"Operating room visit" means one session in one operating room in an inpatient hospital or outpatient surgical center, which may involve several procedures. Operating room visit may be used interchangeably with "operation" or "case."

"Outpatient" means a patient who visits a hospital, clinic, or associated medical care facility for diagnosis or treatment, but is not hospitalized 24 hours or longer.

"Pediatric" means patients younger than 18 years of age. Newborns in nurseries are excluded from this definition.

"Perinatal services" means those resources and capabilities that all hospitals offering general level newborn services as described in 12VAC5-410-443 of the Rules and Regulations for the Licensure of Hospitals must provide routinely to newborns.

"PET/CT scanner" means a single machine capable of producing a PET image with a concurrently produced CT image overlay to provide anatomic definition to the PET image. For the purpose of granting a COPN, the State Board of Health pursuant to § 32.1-102.2 A 6 of the Code of Virginia has designated PET/CT as a specialty clinical service. A PET/CT scanner shall be reviewed under the PET criteria as an enhanced PET scanner unless the CT unit will be used independently. In such cases, a PET/CT scanner that will be used to take independent PET and CT images will be reviewed under the applicable PET and CT services criteria.

"Planning horizon year" means the particular year for which bed or service needs are projected.

"Population" means the census figures shown in the most current series of projections published by a demographic entity as determined by the commissioner.

"Positron emission tomography" or "PET" means a noninvasive diagnostic or imaging modality using the computer-generated image of local metabolic and physiological functions in tissues produced through the detection of gamma rays emitted when introduced radio-nuclids radionuclides decay and release positrons. A PET device or scanner may include an integrated CT to provide anatomic structure definition.

"Primary service area" means the geographic territory from which 75% of the patients of an existing medical care facility originate with respect to a particular service being sought in an application.

"Procedure" means a study or treatment or a combination of studies and treatments identified by a distinct ICD-9 ICD-10 or CPT code performed in a single session on a single patient.

"Qualified" means meeting current legal requirements of licensure, registration, or certification in Virginia or having appropriate training, including competency testing, and experience commensurate with assigned responsibilities.

"Radiation therapy" means treatment using ionizing radiation to destroy diseased cells and for the relief of symptoms. Radiation therapy may be used alone or in combination with surgery or chemotherapy.

"Relevant reporting period" means the most recent 12-month period, prior to the beginning of the applicable batch review cycle, for which data is available from VHI or a demographic entity as determined by the commissioner.

"Rural" means territory, population, and housing units that are classified as "rural" by the Bureau of the Census of the United States U.S. Department of Commerce, Economic and Statistics Administration.

"Simple therapeutic cardiac catheterization" means the performance of cardiac catheterization for the purpose of correcting or improving certain conditions that have been determined to exist in the heart, specifically catheter-based treatment procedures for relieving coronary artery narrowing.

"SMFP" means the state medical facilities plan as contained in Article 1.1 (§ 32.1-102.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia used to make medical care facilities and services needs decisions.

"Stereotactic radiosurgery" or "SRS" means the use of external radiation in conjunction with a stereotactic guidance device to very precisely deliver a therapeutic dose to a tissue volume. SRS may be delivered in a single session or in a fractionated course of treatment up to five sessions.

"Stereotactic radiotherapy" or "SRT" means more than one session of stereotactic radiosurgery.

"Substance abuse disorder treatment services" means services provided to individuals for the prevention, diagnosis, treatment, or palliation of chemical dependency, which may include attendant medical and psychiatric complications of chemical dependency. Substance abuse disorder treatment services are licensed by the Department of Mental Behavioral Health, Mental Retardation, and Substance Abuse Developmental Services.

"Supervision" means to direct and watch over the work and performance of others.

"Use rate" means the rate at which an age cohort or the population uses medical facilities and services. The rates are determined from periodic patient origin surveys conducted for the department by the regional health planning agencies, or other health statistical reports authorized by Chapter 7.2 (§ 32.1-276.2 et seq.) of Title 32.1 of the Code of Virginia.

"VHI" means the health data organization defined in § 32.1-276.4 of the Code of Virginia and under contract with the Virginia Department of Health.

12VAC5-230-420. Nonemergent cardiac catheterization.

Proposals to provide elective interventional cardiac procedures such as PTCA, transseptal puncture, transthoracic left ventricle puncture, myocardial biopsy or any valvuoplasty procedures, diagnostic pericardiocentesis or therapeutic procedures should be approved only when open heart surgery services are available on-site in the same hospital in which the proposed non-emergent cardiac service will be located.

A. Simple therapeutic cardiac catheterization. Proposals to provide simple therapeutic cardiac catheterization are not required to offer open heart surgery service available on-site in the same hospital in which the proposed simple therapeutic service will be located. However, these programs shall adhere to the requirements described in subdivisions 1 through 9 of this subsection.

The programs shall:

1. Participate in the Virginia Heart Attack Coalition, the Virginia Cardiac Services Quality Initiative, and the Action Registry-Get with the Guidelines or National Cardiovascular Data Registry to monitor quality and outcomes;

2. Adhere to strict patient-selection criteria;

3. Perform annual institutional volumes of 300 cardiac catheterization procedures, of which at least 75 should be [ PCI percutaneous coronary intervention (PCI) ] or as dictated by American College of Cardiology (ACC)/American Heart Association (AHA) Guidelines for Cardiac Catheterization and Cardiac Catheterization Laboratories effective 1991;

4. Use only AHA/ACC-qualified operators who meet the standards for training and competency;

5. Demonstrate appropriate planning for program development and complete both a primary PCI development program and an elective PCI development program that includes routine care process and case selection review;

6. Develop and maintain a quality and error management program;

7. Provide PCI 24 hours a day, seven days a week;

8. Develop and maintain necessary agreements with a tertiary facility that must agree to accept emergent and nonemergent transfers for additional medical care, cardiac surgery, or intervention; and

9. Develop and maintain agreements with an ambulance service capable of advanced life support and intra-aortic balloon pump transfer that guarantees a 30-minute or less response time.

B. Complex therapeutic cardiac catheterization. Proposals to provide complex therapeutic cardiac catheterization should be approved only when open heart surgery services are available on-site in the same hospital in which the proposed complex therapeutic service will be located. Additionally, these complex therapeutic cardiac catheterization programs will be required to participate in the Virginia Cardiac Services Quality Initiative and the Virginia Heart Attack Coalition.

12VAC5-230-610. Need for new service.

A. A health planning district should be considered to have a need for additional nursing facility beds when:

1. The bed need forecast exceeds the current inventory of existing and authorized beds for the health planning district; and

2. The average median annual occupancy of all existing and authorized Medicaid-certified nursing facility beds in the health planning district was at least 93%, and the average annual occupancy of all existing and authorized Medicaid-certified nursing facility beds in the health planning district was at least 90%, excluding the bed inventory and utilization of the Virginia Veterans Care Centers.

Exception: When there are facilities that have been in operation less than three years one year in the health planning district, their occupancy [ can shall ] be excluded from the calculation of average occupancy if the facilities had an annual occupancy of at least 93% in one of its first three years of operation.

B. No health planning district should be considered in need of additional beds if there are unconstructed beds designated as Medicaid certified. This presumption of "no need" for additional beds extends for three years from the issuance date of the certificate.

C. The bed need forecast will be computed as follows:

PDBN = (UR64 x PP64) (UR69 x PP69) (UR74 x PP74) (UR79 x PP79) (UR84 x PP84) (UR85 x PP85)

Where:

PDBN = Planning district bed need.

UR64 = The nursing home bed use rate of the population aged 0 to 64 in the health planning district as determined in the most recent nursing home patient origin study authorized by VHI.

PP64 = The population aged 0 to 64 projected for the health planning district three years from the current year as most recently published by a demographic program as determined by the commissioner.

UR69 = The nursing home bed use rate of the population aged 65 to 69 in the health planning district as determined in the most recent nursing home patient origin study authorized by VHI.

PP69 = The population aged 65 to 69 projected for the health planning district three years from the current year as most recently published by the a demographic program as determined by the commissioner.

UR74 = The nursing home bed use rate of the population aged 70 to 74 in the health planning district as determined in the most recent nursing home patient origin study authorized by VHI.

PP74 = The population aged 70 to 74 projected for the health planning district three years from the current year as most recently published by a demographic program as determined by the commissioner.

UR79 = The nursing home bed use rate of the population aged 75 to 79 in the health planning district as determined in the most recent nursing home patient origin study authorized by VHI.

PP79 = The population aged 75 to 79 projected for the health planning district three years from the current year as most recently published by a demographic program as determined by the commissioner.

UR84 = The nursing home bed use rate of the population aged 80 to 84 in the health planning district as determined in the most recent nursing home patient origin study authorized by VHI.

PP84 = The population aged 80 to 84 projected for the health planning district three years from the current year as most recently published by a demographic program as determined by the commissioner.

UR85 = The nursing home bed use rate of the population aged 85 and older in the health planning district as determined in the most recent nursing home patient origin study authorized by VHI.

PP85 = The population aged 85 and older projected for the health planning district three years from the current year as most recently published by a demographic program as determined by the commissioner.

Health planning district bed need forecasts will be rounded as follows:

Health Planning District Bed Need	Rounded Bed Need
1–29	0
30–44	30
45–84	60
85–104	90
105–134	120
135–164	150
165–194	180
195–224	210
225	240

Exception: When a health planning district has:

1. Two or more nursing facilities;

2. Had an average a median annual occupancy rate in excess of 93% of all existing and authorized Medicaid-certified nursing facility beds and an annual average occupancy rate of at least 90% of all existing and authorized Medicaid-certified nursing facility beds for each of the most recent two years for which bed utilization has been reported to VHI; and

3. Has a forecasted bed need of 15 to 29 beds, then the bed need for this health planning district will be rounded to 30.

D. No new freestanding nursing facilities of less than 90 beds should be authorized. However, consideration may be given to a new freestanding facility with fewer than 90 nursing facility beds when the applicant can demonstrate that such a facility is justified based on a locality's preference for such smaller facility and there is a documented poor distribution of nursing facility beds within the health planning district.

E. When evaluating the capital cost of a project, consideration may be given to projects that use the current methodology as determined by the Department of Medical Assistance Services.

F. Preference may be given to projects that replace outdated and functionally obsolete facilities with modern facilities that result in the more cost-efficient resident services in a more aesthetically pleasing and comfortable environment.

12VAC5-230-620. Expansion of services.

Proposals to increase an existing nursing facility facility's bed capacity should not be approved unless the facility has operated for at least two years and the average annual occupancy of the facility's existing beds was at least 93% 90% in the relevant reporting period as reported to VHI.

Note: Exceptions will be considered for facilities that operated at less than 93% 90% average annual occupancy in the most recent year for which bed utilization has been reported when the facility offers short stay services causing an average annual occupancy lower than 93% 90% for the facility.

DOCUMENTS INCORPORATED BY REFERENCE

DOCUMENTS INCORPORATED BY REFERENCE (12VAC5-230)

ACC/AHA Guidelines for Cardiac Catheterization and Cardiac Catheterization Laboratories, American College of Cardiology/American Heart Association Ad Hoc Task Force on Cardiac Catheterization, JACC Vol. 18 No. 5, November 1, 1991: 1149-82

Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities (amending 12VAC5-371-410, 12VAC5-371-420).

Statutory Authority: §§ 32.1-127 and 32.1-127.001 of the Code of Virginia.

Effective Date: March 31, 2021.

Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102, FAX (804) 527-4502, or email regulatorycomment@vdh.virginia.gov.

Summary:

The amendments conform the regulation to § 32.1-127.001 of the Code of Virginia, which requires the State Board of Health to adopt minimum standards for design and construction that are consistent with the current edition of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by the American Institute of Architects Academy of Architecture for Health. The American Institute of Architects Academy of Architecture for Health has become the Facility Guidelines Institute (FGI). The latest edition of guidelines published by the FGI for nursing facilities is the 2018 edition of Guidelines for Design and Construction of Residential Health, Care, and Support Facilities. Changes to the proposed regulation restore the requirement for an entity to attain an occupancy and use certification.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

12VAC5-371-410. Architectural drawings and specifications.

A. All construction of new buildings and additions, renovations or, alterations, or repairs of existing buildings for occupancy as a nursing facility shall conform to state and local codes, zoning and building ordinances, and the Virginia Uniform Statewide Building Code (13VAC5-63).

In addition, nursing facilities shall be designed and constructed according to Part consistent with Parts 1 and 2 and [ sections section ] 4.1—1 through 4.2—8 3.1 [ and 3.2 ] of Part 4 3 of the 2010 [ 2014 2018 ] Guidelines for Design and Construction of Residential Health, Care, and Support Facilities of the Facilities Facility Guidelines Institute (formerly of the American Institute of Architects). However, the requirements of the Uniform Statewide Building Code and local zoning and building ordinances shall take precedence pursuant to § 32.1-127.001 of the Code of Virginia.

B. Architectural drawings and specifications for all new construction or for additions, alterations or renovations to any existing building, shall be dated, stamped with licensure professional seal, and signed by the architect. The architect shall certify that the drawings and specifications were prepared to conform to building code requirements the Virginia Uniform Statewide Building Code and be consistent with Parts 1 and 2 and [ sections section ] 3.1 [ and 3.2 ] of Part 3 of the [ 2014 2018 ] Guidelines for Design and Construction of Residential Health, Care, and Support Facilities of the Facility Guidelines Institute. [ The certification shall be forwarded to the OLC. ]

C. Additional approval may include a Certificate of Public Need.

D. Upon completion of the construction, the nursing facility shall maintain a complete set of legible "as built" drawings showing all construction, fixed equipment, and mechanical and electrical systems, as installed or built.

12VAC5-371-420. [ Building inspection and classification. (Repealed.) ].

All buildings shall be inspected and approved as required by the appropriate building regulatory entity. Approval shall be a Certificate of Use and Occupancy indicating the building is classified for its proposed licensed purpose. ]

DOCUMENTS INCORPORATED BY REFERENCE (12VAC5-371)

Guidelines for Design and Construction of Residential Health, Care, and Support Facilities, [ 2014 2018 ] Edition, Facilities Guideline Facility Guidelines Institute (formerly of the American Institute of Architects Academy of Architecture), 2010 Edition, http://www.fgiguidelines.org

Guidelines for Preventing Health Care-Associated Pneumonia, 2003, MMWR 53 (RR03), Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention

Prevention and Control of Influenza, MMWR 53 (RR06), Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention

Title of Regulation: 12VAC5-391. Regulations for the Licensure of Hospice (amending 12VAC5-391-330, 12VAC5-391-340, 12VAC5-391-350, 12VAC5-391-380, 12VAC5-391-440).

Statutory Authority: §§ 32.1-12 and 32.1-162.5 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 31, 2021.

Effective Date: April 15, 2021.

Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102, FAX (804) 527-4502, or email regulatorycomment@vdh.virginia.gov.

Basis: Section 32.1-12 of the Code of Virginia gives the State Board of Health the responsibility to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia. Section 32.1-162.5 of the Code of Virginia requires the board to adopt regulations governing the activities and services provided by hospices as may be necessary to protect the public health, safety and welfare.

Purpose: This regulation is being amended due to public comments and the professional opinions of subject matter experts within the agency. The board is required by the General Assembly to promulgate regulations for the licensure of hospice in order to protect the health, safety, and welfare of citizens utilizing hospices. This regulatory change removes the requirement that the medical director of a hospice have admitting privileges at one or more hospitals and nursing facilities that provide inpatient service to the hospice's patients. Public comment indicated that this requirement was difficult for hospices to meet and disqualified candidates that would otherwise have been suitable. Subject matter experts within the agency agreed that this requirement was burdensome to hospices and did not improve protection of the public health, safety, and welfare. The regulatory change is also intended to update outdated references to other documents and citations.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is expected to be noncontroversial because all public comments received during periodic review supported the repeal of subsection B of 12VAC5-391-330, and the agency's subject matter experts believe that repeal would not jeopardize the protection of public health, safety, and welfare. Further, the additional updates to the regulation do not alter the intent of the regulation or the requirements placed on regulated entities.

Substance: The board has repealed subsection B of 12VAC5-391-330. Updates were made to references to Board of Nursing regulation sections; to the requirements for personal care aide training; to Department of Health Professions references; and to the current edition of the Guidelines for Design and Construction of Residential Health, Care, and Support Facilities. A document regarding personal care aide training that is no longer referenced in the regulation is removed from the documents incorporated by reference list.

Issues: The primary advantages are to hospices and their administrators, who will face less burdensome requirements in employing a medical director. Subject matter experts within the agency have determined that there are no disadvantages to repealing the requirement that hospice medical directors have admitting privileges at hospitals or nursing homes. Further, more up-to-date regulations will ensure that the industry is regulated accurately and efficiently, and will reduce confusion among regulated entities. There are no disadvantages to the public. There are no advantages or disadvantages to the agency or to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Board of Health (Board) proposes to: 1) eliminate the requirement that the medical director have admitting privileges at one or more hospitals and nursing facilities that provide inpatient service to the hospice program's patients, 2) set out requirements that would allow hospice programs to set up in-house training for volunteer home attendants, 3) make clarifying changes, and 4) correct citations and remove obsolete language.

Background. The Board conducted a periodic review¹ of 12 VAC 5-391 Regulations for the Licensure of Hospices, in which it decided to amend the regulation.

The current regulation lists six options for home attendants to qualify to work at a hospice. The first five options are for either paid or volunteer home attendants. Under the regulation volunteer home attendants can also qualify through the sixth option, which is that the individual Have satisfactorily completed training using the Personal Care Aide Training Curriculum, dated 2003, of the Department of Medical Assistance Services (DMAS). According to the Virginia Department of Health (VDH), this training is no longer available. The Board proposes to remove this obsolete option and set out requirements that would allow hospice programs to set up in-house training for volunteer home attendants.

Estimated Benefits and Costs. Public comments have indicated that the requirement that the medical director have admitting privileges at one or more hospitals and nursing facilities that provide inpatient service to the hospice programs patients has made it difficult for hospices to find qualified medical directors. The proposal to remove this requirement may therefore reduce hiring costs for some hospices. Subject matter experts from VDH believe that repealing this requirement would not jeopardize public health, safety, and welfare.

Since the DMAS training for personal care aides is no longer available, volunteer home attendants must currently qualify to serve hospices by one of the five options available to paid home attendants. VDH believes that the proposal to allow hospice programs to set up in-house training for volunteer home attendants would likely have a positive impact on a hospices ability to have qualified volunteers.

Businesses and Other Entities Affected. The proposals potentially affect the 133 licensed hospice agencies in Virginia.² No proposal would increase costs for businesses or other entities. No adverse impact is indicated.

Small Businesses Affected.

Types and Estimated Number of Small Businesses Affected. According to VDH, an estimated 18 of the hospices are independently owned and operated and have fewer than 500 full-time employees, therefore statutorily qualifying as small businesses.³

Costs and Other Effects. The proposal to no longer require that the medical director have admitting privileges at one or more hospitals and nursing facilities that provide inpatient service to the hospice programs patients may reduce the cost for small hospices to hire medical directors.

Alternative Method that Minimizes Adverse Impact. No proposal adversely impacts small businesses.

Localities⁴ Affected.⁵ The proposals do not disproportionately affect any particularly locality nor appear to introduce additional costs for local governments.

Projected Impact on Employment. The proposals do not appear to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposal to no longer require that the medical director have admitting privileges at one or more hospitals and nursing facilities that provide inpatient service to the hospice programs patients may reduce the cost for hospices to hire medical directors, commensurately increasing their value.

The proposals do not affect real estate development costs.

________________________________________

¹See https://townhall.virginia.gov/l/GetFile.cfm?File=C:\TownHall\docroot\Review\1473\PReview_VDH_1473_v1.pdf

²Data source: VDH

³Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁴Locality can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁵§ 2.2-4007.04 "defines particularly affected" as bearing disproportionate material impact."

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

Summary:

The amendments (i) repeal a requirement that a hospice's medical director have admitting privileges at one or more hospitals or nursing homes that provide inpatient service to the hospice's patients; (ii) update references to other regulations and personal aide training curriculum; and (iii) update the documents incorporated by reference.

12VAC5-391-330. Medical direction.

A. There shall be a medical director, who shall be a physician licensed by the Virginia Board of Medicine, responsible for the overall direction and management of the medical component of care. The individual shall have training and experience in the psychological and medical needs of the terminally ill.

B. The medical director shall have admitting privileges at one or more hospitals and nursing facilities that provide inpatient service to the hospice program's patients.

C. B. The duties and responsibilities of the medical director shall include at least the following:

1. Consulting with attending physicians regarding pain and symptom management;

2. Reviewing patient eligibility for hospice services according to the law and the hospice program's admission policies;

3. Acting as a medical resource to the IDG;

4. Coordinating with attending physicians to assure a continuum of medical care in cases of emergency or in the event the attending physician is unable to retain responsibility for the patient's care;

5. Acting as medical liaison with physicians in the community; and

6. Determining, in consultation with the patient's physician, when a patient can no longer remain at home and should be moved to a congregate living facility of the patient's choosing.

12VAC5-391-340. Nursing services.

A. All nursing services shall be provided directly or under the supervision of a registered nurse, currently licensed by the Virginia Board of Nursing, who has education and experience in the needs of the terminally ill. Duties and responsibilities of the supervising nurse shall include:

1. Assuring that nursing services delivered are provided according to established hospice program policies;

2. Assuring that nursing services are available 24 hours a day, 7 days a week and that licensed practical nurses and home attendants work under the direct supervision of a registered nurse;

3. Participating in the development and implementation of orientation and in-service training hospice programs for all levels of nursing staff employed by the hospice program;

4. Acting as nurse liaison with staff and other agencies, hospice programs and individuals that have contractual agreements to provide nursing services;

5. Participating in quality improvement reviews and evaluations of the nursing services provided; and

6. Directing or supervising the delivery of nursing services.

B. Nursing services shall include, but are not limited to:

1. Assessing a patient's needs and admission for service as appropriate;

2. Working with the IDG to develop a plan of care;

3. Implementing the plan of care;

4. Obtaining physician's orders when necessary;

5. Providing those services requiring substantial and specialized nursing skill;

6. Educating the patient and patient's family in the care of the patient, including pain management;

7. Evaluating the outcome of services;

8. Coordinating and communicating the patient's physical or medical condition to the IDG;

9. Preparing clinical notes; and

10. Supervising licensed practical nurses and home attendants providing delegated nursing services.

C. A registered nurse shall coordinate the implementation of each patient's plan of care.

D. If nursing duties are delegated, the hospice program shall develop and implement an organizational plan pursuant to 18VAC90-20-420 18VAC90-19-240 through 18VAC90-20-460 of the Virginia Administrative Code 18VAC90-19-280.

E. Licensed practical nurses shall be currently licensed by the Virginia Board of Nursing.

F. The services provided by a licensed practical nurse may include, but are not limited to:

1. Delivering nursing services according to the hospice program's policies and standard nursing practices;

2. Assisting the registered nurse in performing specialized procedures;

3. Assisting the patient with activities of daily living, including the teaching of self-care techniques;

4. Preparing equipment and supplies for treatment that requires adherence to sterile or aseptic techniques; and

5. Preparing clinical notes.

12VAC5-391-350. Home attendant services.

A. Services of the home attendants may include, but are not limited to:

1. Assisting patients with (i) activities of daily living; (ii) ambulation and prescribed exercise; (iii) other special duties with appropriate training and demonstrated competency;

2. Administration of normally self-administered drugs in a patient's private residence as allowed by § 54.1-3408 of the Virginia Drug Control Act (Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1 of the Code of Virginia);

3. Taking and recording vital signs as indicated in the plan of care;

4. Measuring and recording fluid intake and output;

5. Recording and reporting to the health care professional changes in the patient's physical condition, behavior or appearance;

6. Documenting services and observations in the medical record; and

7. Performing any other duties that the attendant is qualified to do by additional training and demonstrated competency, within state guidelines.

B. Prior to the initial delivery of services, the home attendant shall receive specific written instructions for the patient's care from the appropriate health care professional responsible for the care.

C. Home attendants shall work under the supervision of the appropriate health care professional responsible for the patient's care.

D. The nurse responsible for supervising the home attendant shall make visits to the patient's home as frequently as necessary, but not less than every two weeks. The results of each visit shall be documented in the medical record.

E. Relevant in-service education or training for home attendants shall consist of at least 12 hours annually. In-service training may be in conjunction with on-site supervision.

F. Home attendants shall be able to speak, read and write English and shall meet one of the following qualifications before providing services to the hospice program's patients:

1. Have satisfactorily completed a nursing education hospice program preparing for registered nurse licensure or practical nurse licensure;

2. Have satisfactorily completed a nurse aide education hospice program approved by the Virginia Board of Nursing;

3. Have certification as a nurse aide issued by the Virginia Board of Nursing;

4. Be successfully enrolled in a nursing education hospice program preparing for registered nurse or practical nurse licensure and have currently completed at least one nursing course that includes clinical experience involving patient care; or

5. Have satisfactorily passed a competency evaluation that meets the criteria of 42 CFR 484.36 (b); or.

6. Have satisfactorily completed training using the "Personal Care Aide Training Curriculum," dated 2003, of the Department of Medical Assistance Services. However, the training is permissible for volunteers only.

If the home attendant is a volunteer, the home attendant shall meet one of the qualifications listed in subdivisions 1 through 5 of this subsection or have satisfactorily completed training provided by a hospice program or other entity that meets the requirements of subsection G.

G. Hospice programs may develop a 40-hour training program for volunteers. The program shall:

1. Include education addressing:

a. Goals of personal care;

b. Prevention of skin breakdown;

c. Physical and biological aspects of aging;

d. Physical and emotional needs of older adults;

e. Orientation to types of physical disabilities;

f. Personal care and rehabilitative services;

g. Body mechanics;

h. Home management;

i. Safety and accident prevention in the home;

j. Policies and procedures regarding accidents or injuries;

k. Food, nutrition, and meal preparation;

l. Special considerations in preparation of special diets;

m. Care of the home and personal belongings; and

n. Documentation requirements for Medicaid individuals.

2. Be conducted by a registered nurse who meets the requirements in 18VAC90-26-30.
3. Issue and maintain certificates of completion containing:

a. The instructor's printed name and signature;

b. The participant's printed name; and

c. The date of completion of the program.

12VAC5-391-380. Dietary or nutritional counseling.

Dietary or nutritional counselors shall meet the requirements of 18VAC75-30 pursuant to Chapter 27.1 (§ 54.1-2730 et seq.) of Title 54.1 of the Code of Virginia and have at least two years experience in a health care food or nutrition delivery system.

12VAC5-391-440. General facility requirements.

A. All construction of new buildings and additions, renovations or alterations of existing buildings for occupancy as a hospice facility shall conform to state and local codes, zoning and building ordinances and the Uniform Statewide Building Code.

In addition, hospice facilities shall be designed and constructed according to section 4.2 of Part 4 of the 2006 3.2 of Part 3 of the 2018 Guidelines for Design and Construction of Health Care Residential Health, Care, and Support Facilities of the American Institute of Architects. However, the requirements of the Uniform Statewide Building Code and local zoning and building ordinances shall take precedence. the Facility Guidelines Institute.

B. All buildings shall be inspected and approved as required by the appropriate regional state fire marshal's office or building and fire regulatory official. Approval shall be a Certificate of Use and Occupancy indicating the building is classified for its proposed licensed purpose.

C. The facility must have space for private patient family visiting and accommodations for family members after a patient's death. Patients shall be allowed to receive guests, including small children, at any hour.

D. Patient rooms shall not exceed two beds per room and must be at grade level or above, enclosed by four ceiling-high walls. Each room shall be equipped for adequate nursing care, the comfort and privacy of patients, and with a device for calling the staff member on duty.

E. Designated guest rooms for family members or patient guests and beds for use by employees of the facility shall not be included in the bed capacity of a hospice facility provided such beds and locations are identified and used exclusively by staff, volunteers or patient guests.

Employees shall not utilize patient rooms nor shall bedrooms for employees be used by patients.

F. Waste storage shall be located in a separate area outside or easily accessible to the outside for direct pickup or disposal. The use of an incinerator shall require permitting from the nearest regional permitting office for the Department of Environmental Quality.

G. The facility shall provide or arrange for under written agreement, laboratory, x-ray, and other diagnostic services, as ordered by the patient's physician.

H. There shall be a plan implemented to assure the continuation of essential patient support services in case of power outages, water shortage, or in the event of the absence from work of any portion of the workforce resulting from inclement weather or other causes.

I. No part of a hospice facility may be rented, leased or used for any purpose other than the provision of hospice care at the facility.

J. A separate and distinct entrance shall be provided if the program intends to administer and provide its community-based hospice care from the facility so that such traffic and noise shall be diverted away from patient care areas.

K. The hospice facility shall maintain a complete set of legible "as built" drawings showing all construction, fixed equipment, and mechanical and electrical systems, as installed or built.

DOCUMENTS INCORPORATED BY REFERENCE (12VAC5-391)

Personal Care Aide Training Curriculum, 2003, Department of Medical Assistance Services.

2006 Guidelines for Design and Construction of Health Care Facilities, The Facility Guidelines Institute, The American Institute of Architects Academy of Architecture for Health, 1-800-242-3837.

2018 Guidelines for Design and Construction of Residential Health, Care, and Support Facilities, The Facility Guidelines Institute.

Title of Regulation: 12VAC5-408. Certificate of Quality Assurance of Managed Care Health Insurance Plan Licensees (amending 12VAC5-408-10, 12VAC5-408-170).

Statutory Authority: §§ 32.1-12 and 32.1-137.3 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 31, 2021.

Effective Date: April 15, 2021.

Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102, FAX (804) 527-4502, or email regulatorycomment@vdh.virginia.gov.

Basis: This regulation is promulgated under the authority of §§ 32.1-12 and 32.1-137.3 of the Code of Virginia. Section 32.1-12 grants the State Board of Health the legal authority to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia. Section 32.1-137.3 directs the Department of Health (VDH) to promulgate regulations governing the quality of care provided to covered persons by a managed care health insurance plan licensee.

Purpose: Chapter 703 of the 2018 Acts of Assembly adds § 38.2-3407.10:1 to the Code of Virginia, creating the statutory requirements for reimbursement for services rendered during pendency of a physician's credentialing application, as described in this action. VDH is subject to the legislative mandate to promulgate regulations consistent with the act. Managed Care Health Insurance Plan (MCHIP) licensees employ or otherwise contract with and credential providers other than physicians. As such, and under the authority of § 32.1-137.2 of the Code of Virginia, the provisions regarding reimbursement were expanded to include other credentialed providers in addition to physicians. The change will update a portion of the credentialing process to conform to the statute and will allow new provider applicants to begin seeing covered persons.

The regulatory action is necessary to protect public health, safety, or welfare because requiring MCHIP licensees to reimburse newly credentialied providers at in-network rates for health care services provided to covered persons during the period in which the new provider applicant's completed credentialing application was pending encourages provider applicants to accept patients who otherwise would have less choice in health care providers.

Rationale for Using Fast-Track Rulemaking Process: Chapter 703 of the 2018 Acts of Assembly requires VDH to revise and reenact the regulations promulgated pursuant to § 32.1-137.1 of the Code of Virginia. As this action is being used to conform to the intent of a statutory mandate, VDH believes the proposed regulatory action will be noncontroversial, allowing use of the fast-track rulemaking process.

Substance: The definitions of "health care provider" or "provider," "managed care plan," "new provider applicant," and "participating provider" are added. Provisions are repealed that required the entire credentialing process to be completed before a provider could begin seeing covered persons or enter into a contractual relationship with the MCHIP licensee and text conforming to § 38.2-3407.10:1 are added.

Issues: The primary advantages are to (i) providers applying for credentialing by an MCHIP licensee that may render services to covered persons and seek reimbursement for that care and (ii) MCHIP-covered persons who will be able to be treated by those providers earlier in the credentialing process. The Code of Virginia and regulatory change protect patients from having to pay for services rendered by a new provider applicant if the applicant is subsequently not approved to be credentialed as part of the MCHIP's network of participating providers. As covered persons of an MCHIP will have expanded access to providers, the advantage to VDH for promulgating this regulatory change is the promotion of the public's access to health care. There are no known disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Health (Board) proposes to allow physicians and non-physician health care providers to provide their services while their application for credentialing to a managed care health insurance plan licensee (MCHIP) is pending. After a provider has been credentialed (otherwise known as being in network), the Board also proposes to permit retroactive provider reimbursement for services rendered, starting on the date the providers credentialing application was received by the MCHIP.

Background. In the past, health care providers were not allowed to be reimbursed for services provided to covered patients during the period in which their application for credentialing was being reviewed by the MCHIP (the pendency period). Chapter 703 of the 2018 Acts of Assembly¹ amended the Code of Virginia by adding § 38.2-3407.10:1 to allow physicians to receive reimbursement, at the contracted in-network rates, for covered persons seen during the pendency. This reimbursement would be made after the application had been approved by the MCHIP. At the present time, such physician practice is allowed under the authority of the 2018 legislation.

Additionally, the Board is exercising its authority under § 32.1-137.2(C) of the Code of Virginia to also allow non-physician health care providers to be reimbursed for services they provided during the pendency of the credentialing process and upon approval of their credentialing application, to receive reimbursement at the contracted in-network rates for covered persons seen during the pendency. This regulation would allow such non-physician health care provider practice in a similar fashion to that of physician providers. According to the Virginia Department of Health (VDH), the non-physician health care providers may include any of the professions regulated by the Department of Health Professions except the professions regulated by the Board of Pharmacy.

Credentialing is already required and is a part of an incentive arrangement intended to influence the cost or level of health care services between the MCHIP and one or more health care providers with respect to the delivery of health care services, and must also include minimum standards of professional licensure or certification. During the credentialing process, the MCHIP verifies the validity and history of the applicant's professional license or certification, status of hospital privileges, education and training, and practice or work history among other things, to ensure that physicians meet the MCHIPs standards. The credentialing process is required to be completed within 120 days or within 150 days if the application is incomplete or requires additional information.

According to VDH, once a health care provider is credentialed, they would enter into a contract with the MCHIP that not only addresses reimbursement for services, but also requires the provider to take part in the MCHIPs quality assurance program that monitors quality of care and performance metrics of providers.

Credentialing benefits the MCHIPs in that it enables them to ensure that providers have the minimum professional competence to render high quality care. It also allows them to take into account any disciplinary issues related to professional licensure and any previous quality of care issues.

Credentialing also benefits the providers because being credentialed (that is, being deemed to be in-network) allows them to access a patient population that may otherwise have chosen a different provider with more preferential cost-sharing arrangements. As a part of being in network, a health care provider agrees to charge specific rates for services, which is often lower than the market/out-of-pocket rate; however, they are guaranteed to receive this rate along with a greater access to MCHIP covered patients. A non-credentialed provider (i.e., one who is out-of-network) can submit a claim for reimbursement by the MCHIP, but will be reimbursed at a less preferential rate. The remaining balance is billed to the patient; however, the health care provider is not guaranteed to collect the outstanding balance. Hence, unless a patient's preference for that specific provider outweighs financial considerations, an out-of-network provider will typically not have access to the patient population covered by a particular MCHIP.

Estimated Benefits and Costs. The 2018 legislation provided an option to physicians to start providing their services and receive reimbursement from their MCHIP the in-network rate during the pendency of their application subject to certain conditions. To receive the in-network reimbursement, the legislation requires the applicant physician to provide a written or electronic notification to the patient in advance of treatment, stating that the carrier is in the process of obtaining and verifying credentialing information. The legislation also allows MCHIPs to reimburse physicians at the in-network rates only if the physician is eventually credentialed. In the event that credentialing is denied, the MCHIP would not be required to remit the in-network rate and the patient would not be responsible for any of the charges for the service other than the in-network coinsurance, copayment, or the deductible. The Board proposes the same rules for the non-physician health care providers.

Under the new rules, a health care provider would have the option to start providing services in an MCHIPs network as soon as their completed application has been received. In doing so, the provider can start building a volume of receivables from the MCHIP, but is also taking a risk of forgoing in-network reimbursement rates if the credentialing is denied. However, we can reliably infer that in providing services, the provider reveals that the expected benefits to him are greater than the potential loss of in-network reimbursement rates.² On the other hand, the MCHIP has to evaluate the application once it is submitted, but this requirement is not new and has existed before. In addition, the MCHIP would not be required to remit the in-network rate to the provider if the credentialing is eventually denied. Thus, the MCHIPs do not appear to be worse off either.

The proposed rules also do not appear to make the patients any worse off. First, any provider applicant would have to have a license to practice their profession and it appears that an MCHIP may require higher standards than the license requires, but not lower. Second, the provider applicant would be required to provide disclosures to the patients in advance of any treatment that their credentials are currently being evaluated. Third, in the event credentialing is denied, the patient would only be responsible for paying the in-network coinsurance, copayments, or deductibles, not the out-of-network charges, which are typically higher, for the services provided by that health care provider.

In summary, the health care provider and the patient would both need to consent for provision of services during the credentialing process, and the MCHIPs do not appear to be any worse off. Further, the proposed rules are beneficial in that they allow the health care providers to start providing their services sooner. Such a practice may expedite the provision of services by new MCHIP providers and improve access to care.

Businesses and Other Entities Affected. There are approximately 96 MCHIPs. According to VDH, these plans contract with approximately 90 percent of the regulated health care providers. However, there is no data on the number of credentialing applications received by MCHIPs in a given time period. Also, some patients may be affected to the extent they consent to receive services from a provider whose credentialing application is pending.

Localities³ Affected.⁴ The proposed amendments are unlikely to affect any locality more than others. The proposed amendments do not appear to impose costs on localities.

Projected Impact on Employment. The proposed amendments would allow the health care providers to start providing services 120 days to 150 days earlier than otherwise would be, which would add to the supply of medical and dental services.

Effects on the Use and Value of Private Property. The proposed amendments would allow a health care provider to start building its receivables while the credentialing process is underway and may add to the asset value of the providers business.

Real estate development costs do not appear to be affected.

Adverse Effect on Small Businesses.⁵ The proposed amendments do not appear to adversely affect small businesses.

______________________________________________

¹http://lis.virginia.gov/cgi-bin/legp604.exe?181 ful CHAP0703

²Prior to the 2018 legislation, in 2016, the Medical Society of Virginia submitted a petition for rulemaking requesting substantially the same changes on behalf of their nearly 11,000 members including physicians, medical students and physician assistants to address the issues with significant delays in delivering care to patients as a result of the credentialing process. See https://townhall.virginia.gov/l/viewpetition.cfm?petitionid=236.

³Locality can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁴§ 2.2-4007.04 defines particularly affected" as bearing disproportionate material impact.

⁵Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million.

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

Summary:

Pursuant to Chapter 703 of the 2018 Acts of Assembly, the amendments conform the regulation to § 38.2-3407.10:1 of the Code of Virginia, which requires health insurance carriers that credential physicians in their networks to establish protocols and procedures for reimbursing new provider applicants for health care services provided to covered persons during the period in which the applicant's completed credentialing application is pending, provided that the new provider applicant is ultimately approved by the health insurance carrier. Amendments also extend the protocols and procedures to cover nonphysician providers, allowing them to submit claims to the carrier for services provided during that time period. Carriers are not required to reimburse the new provider applicant for any care rendered if the credentialing application is not approved or the carrier is otherwise unwilling to contract with the new provider applicant. If payment is made by the carrier to a new provider applicant or any entity that employs or engages the new provider applicant for a covered service, the patient is only responsible for any copayment, coinsurance, or deductibles permitted under the insurance contract with the carrier or participating provider agreement with the new provider applicant.

12VAC5-408-10. Definitions.

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

"Adverse decision" means a utilization review determination by the utilization review entity that a health service rendered or proposed to be rendered was not or is not medically necessary, when such determination may result in noncoverage of the health service or health services. When the policy, contract, plan, certificate, or evidence of coverage includes coverage for prescription drugs and the health service rendered or proposed to be rendered is a prescription for the alleviation of cancer pain, any adverse decision shall be made within 24 hours of the request for coverage.

"Appeal" means a formal request by a covered person or a provider on behalf of a covered person for reconsideration of a decision, such as a final adverse decision, a benefit payment, a denial of coverage, or a reimbursement for service.

"Basic health care services" means those health care services, as applicable to the type of managed care health insurance plan, described in § 38.2-5800 of the Code of Virginia which are required to be provided, arranged, paid for, or reimbursed by the managed care health insurance plan licensee for its covered persons.

"Board" means the Board of Health.

"Bureau of Insurance" means the State Corporation Commission acting pursuant to Title 38.2 of the Code of Virginia.

"Center" means the Center for Quality Health Care Services and Consumer Protection of the Virginia Department of Health.

"Certificate" means a certificate of quality assurance.

"Complaint" means a written communication from a covered person primarily expressing a grievance. A complaint may pertain to the availability, delivery, or quality of health care services including claims payments, the handling or reimbursement for such services, or any other matter pertaining to the covered person's contractual relationship with the MCHIP.

"Covered person" means an individual residing in the Commonwealth, whether a subscriber, policyholder, enrollee, or member, of a managed care health insurance plan (MCHIP), who is entitled to health services or benefits provided, arranged for, paid for, or reimbursed pursuant to an MCHIP.

"Delegated service entity" means the entity with which an MCHIP licensee contracts to provide one or more of the services listed in 12VAC5-408-320 A for one or more of its MCHIPs, pursuant to and in accordance with the provisions of Part VI (12VAC5-408-320 et seq.) of this chapter, inclusive.

"Department" means the Virginia Department of Health.

"Emergency services" means those health care services as defined in § 38.2-3438 of the Code of Virginia.

"Evidence of coverage" means any certificate, individual or group agreement or contract, or identification card or related document issued in conjunction with the certificate, agreement or contract, issued to a covered person setting out the coverage and other rights to which a covered person is entitled.

"Final adverse decision" means a utilization review determination made by a physician advisor or peer of the treating health care provider in a reconsideration of an adverse decision, and upon which a provider or patient may base an appeal.

"Health care data reporting system" means the state contracted integrated system for the collection and analysis of data used by consumers, employers, providers, and purchasers of health care to continuously assess and improve the quality of health care in the Commonwealth.

"Health care provider" or "provider" has the same meaning ascribed to the term in § 32.1-127.1:03 B of the Code of Virginia.

"Health care services" means services as defined in § 38.2-3438 of the Code of Virginia.

"Health carrier" means an entity as defined in § 38.2-3438 of the Code of Virginia.

"Managed care health insurance plan" or "MCHIP" means an arrangement for the delivery of health care in which a health carrier, as defined in § 38.2-5800 of the Code of Virginia, undertakes to provide, arrange for, pay for, or reimburse any of the costs of health care services for a covered person on a prepaid or insured basis which (i) contains one or more incentive arrangements, including any credentialing requirements intended to influence the cost or level of health care services between the health carrier and one or more providers with respect to the delivery of health care services and (ii) requires or creates benefit payment differential incentives for covered persons to use providers that are directly or indirectly managed, owned, under contract with or employed by the health carrier. Any health maintenance organization as defined in § 38.2-4300 of the Code of Virginia or health carrier that offers preferred provider contracts or policies as defined in § 38.2-3407 of the Code of Virginia or preferred provider subscription contracts as defined in § 38.2-4209 of the Code of Virginia shall be deemed to be offering one or more managed care health insurance plans. For the purposes of this definition, the prohibition of balance billing by a provider shall not be deemed a benefit payment differential incentive for covered persons to use providers who are directly or indirectly managed, owned, under contract with or employed by the health carrier. A single managed care health insurance plan may encompass multiple products and multiple types of benefit payment differentials; however, a single managed care health insurance plan shall encompass only one provider network or set of provider networks.

"Managed care health insurance plan licensee" or "MCHIP licensee" means a health carrier subject to licensure by the Bureau of Insurance and to quality assurance certification by the department under Title 38.2 of the Code of Virginia who is responsible for a managed care health insurance plan in accordance with Chapter 58 (§ 38.2-5800 et seq.) of Title 38.2 of the Code of Virginia.

"Managed care plan" means a health benefit plan, as defined in § 38.2-3407.10:1 of the Code of Virginia, that requires a covered person to use, or creates incentives, including financial incentives, for a covered person to use health care providers managed, owned, under contract with, or employed by the MCHIP licensee.

"Material" means that which has an effective influence or bearing on, or is pertinent to, the issue in question.

"Medical necessity" or "medically necessary" means appropriate and necessary health care services which are rendered for any condition which, according to generally accepted principles of good medical practice, requires the diagnosis or direct care and treatment of an illness, injury, or pregnancy-related condition, and are not provided only as a convenience.

"Nationally recognized accrediting body" means an organization that sets national standards specifically governing healthcare quality assurance processes, utilization review, provider credentialing, as well as other areas covered by this chapter and provides accreditation to managed care health insurance plans pursuant to national standards. The following entities shall be considered nationally recognized accrediting bodies:

1. The American Accreditation HealthCare Commission/URAC;

2. The National Committee for Quality Assurance (NCQA);

3. The Joint Commission on Accreditation of Healthcare Organizations, (JCAHO); and

4. Other nationally recognized accrediting bodies with national standards as described above that are accepted by the department.

"Network" means a group of providers as defined in § 38.2-3438 of the Code of Virginia.

"New provider applicant" means a provider that has submitted a completed credentialing application to an MCHIP licensee.

"Participating provider" means a provider that is managed, under contract with, or employed by an MCHIP licensee and who has agreed to provide health care services to covered persons with an expectation of receiving payments, other than coinsurance, copayments, or deductibles, directly or indirectly from the MCHIP licensee.

"Person" means any individual, aggregate of individuals, association, business, company, corporation, joint-stock company, Lloyds type of organization, other organization, partnership, receiver, reciprocal or inter-insurance exchange, trustee or society.

"Plan of correction" means an MCHIP'S written plan that outlines the action the MCHIP will take to address compliance issues identified during an administrative review or on-site examination conducted by the department.

"Preferred provider organization" or "PPO" means an arrangement in which a health carrier, as defined in § 38.2-5800 of the Code of Virginia, undertakes to provide, arrange for, pay for, or reimburse any of the costs of health care services, on an insured basis, which creates incentives, including financial incentives, for a covered person to use health care providers directly or indirectly managed, owned, under contract with, or employed by the health carrier, but shall not include a health maintenance organization as defined in § 38.2-4300 of the Code of Virginia.

"Quality assurance program" means the systems, standards and processes including, but not limited to, reasonable and adequate systems to assess, measure, and improve the health status of covered persons, necessary to obtain a certificate of quality assurance from the department in accordance with this chapter and in accordance with § 32.1-137.2 C of the Code of Virginia.

"Service area" means a geographic area as defined in § 38.2-5800 of the Code of Virginia.

"Timely" means the provision of services so as not to impair or jeopardize the integrity of the covered persons' diagnosis or outcomes of illness.

"Treating health care provider" means a licensed health care provider who renders or proposes to render health care services to a covered person.

"Utilization review" means a system for reviewing the necessity, appropriateness, and efficiency of hospital, medical or other health care services rendered or proposed to be rendered to a patient or group of patients for the purpose of determining whether such services should be covered or provided by an insurer, health services plan, managed care health insurance plan licensee, or other entity or person. For purposes of this chapter, "utilization review" shall include, but not be limited to, preadmission, concurrent and retrospective medical necessity determination, and review related to the appropriateness of the site at which services were or are to be delivered. "Utilization review" shall not include (i) review of issues concerning insurance contract coverage or contractual restrictions on facilities to be used for the provision of services, (ii) any review of patient information by an employee of or consultant to any licensed hospital for patients of such hospital, or (iii) any determination by an insurer as to the reasonableness and necessity of services for the treatment and care of an injury suffered by an insured for which reimbursement is claimed under a contract of insurance covering any classes of insurance defined in §§ 38.2-117 through 38.2-119, 38.2-124 through 38.2-126, 38.2-130 through 38.2-132 and 38.2-134 of the Code of Virginia.

"Utilization review entity" means a person or entity performing utilization review.

"Utilization review plan" means a written procedure for performing a utilization review.

12VAC5-408-170. Provider credentialing and recredentialing.

A. The MCHIP licensee shall establish and maintain a comprehensive credentialing verification program to ensure its providers meet the minimum standards of professional licensure or certification. Written supporting documentation for providers who have completed their residency or fellowship requirements for their specialty area more than 12 months prior to the credentialing decision shall include:

1. Current valid license and history of licensure or certification;

2. Status of hospital privileges, if applicable;

3. Valid DEA certificate, if applicable;

4. Information from the National Practitioner Data Bank, as available;

5. Education and training, including post graduate training, if applicable;

6. Specialty board certification status, if applicable;

7. Practice or work history covering at least the past five years; and

8. Current, adequate malpractice insurance and malpractice history of at least the past five years.

B. The MCHIP licensee may grant provisional credentialing for providers who have completed their residency or fellowship requirements for their specialty area within 12 months prior to the credentialing decision. Written supporting documentation necessary to provisionally credential a practitioner shall include:

1. Primary source verification of a current, valid license to practice prior to granting the provisional status;

2. Written confirmation of the past five years of malpractice claims or settlements, or both, from the malpractice carrier or the results of the National Practitioner Data Bank query prior to granting provisional status; and

3. A completed application and signed attestation.

C. Providers provisionally credentialed may remain so for 60 calendar days.

D. Policies for credentialing and recredentialing shall include:

1. Criteria used to credential and recredential;

2. Process used to make credentialing and recredentialing decisions;

3. Type of providers, including network providers, covered under the credentialing and recredentialing policies;

4. Process for notifying providers of information obtained that varies substantially from the information provided by the provider;

5. Process for receiving input from participating providers to make recommendations regarding the credentialing and recredentialing process; and

6. A requirement that the MCHIP licensee notify the applicant within 60 calendar days of receipt of an application if information is missing or if there are other deficiencies in the application. The MCHIP licensee shall complete the credentialing process within 90 calendar days of the receipt of all such information requested by the MCHIP licensee or, if information is not requested from the applicant, within 120 calendar days of receipt of an application. The department may impose administrative sanctions upon an MCHIP licensee for failure to complete the credentialing process as provided herein if it finds that such failure occurs with such frequency as to constitute a general business practice.

The policies shall be made available to participating providers and applicants upon written request.

E. A provider fully credentialed by an MCHIP licensee, who changes his place of employment or his nonMCHIP licensee employer, shall, if within 60 calendar days of such change and if practicing within the same specialty, continue to be credentialed by that MCHIP licensee upon receipt by the MCHIP licensee of the following:

1. The effective date of the change;

2. The new tax ID number and copy of W-9, as applicable;

3. The name of the new practice, contact person, address, telephone and fax numbers; and

4. Other such information as may materially differ from the most recently completed credentialing application submitted by the provider to the MCHIP licensee.

This provision shall not apply if the provider's prior place of employment or employer had been delegated credentialing responsibility by the MCHIP licensee.

Nothing in this section shall be construed to require an MCHIP licensee to contract or recontract with a provider.

F. The appropriate credentialing process shall be completed before the provider:

1. Begins seeing covered persons;

2. Enters into the employment or contractual relationship with the MCHIP licensee; and

3. Is included in the listing of health care providers as a participating provider in any marketing and covered person materials.

G. F. The providers shall be recredentialed at least every three years. Recredentialing documentation shall include:

1. Current valid license or certification;

2. Status of hospital privileges, if applicable;

3. Current valid DEA registration, if applicable;

4. Specialty board eligibility or certification status, if applicable;

5. Data from covered person complaints and the results of quality reviews, utilization management reviews and covered persons satisfaction surveys, as applicable; and

6. Current, adequate malpractice insurance and history of malpractice claims and professional liability claims resulting in settlements or judgments.

H. G. All information obtained in the credentialing process shall be subject to review and correction of any erroneous information by the health care provider whose credentials are being reviewed. Nothing in the previous sentence shall require an MCHIP or MCHIP licensee to disclose to a provider, or any other person or party, information or documents: (i) that the MCHIP or the MCHIP licensee, itself, develops or causes to be developed as part of the MCHIP's credentialing process or (ii) that are privileged under applicable law. The department may require the MCHIP licensee to provide a copy of its credentialing policies.

I. H. Providers shall be required by the MCHIP licensee to notify the MCHIP of any changes in the status of any credentialing criteria.

J. I. The MCHIP licensee shall not refuse to initially credential or refuse to reverify the credentials of a health care provider solely because the provider treats a substantial number of patients who require expensive or uncompensated care.

K. J. The MCHIP licensee shall have policies and procedures for altering the conditions of the provider's participation with the MCHIP licensee. The policies shall include actions to be taken to improve performance prior to termination and an appeals process for instances when the MCHIP licensee chooses to alter the condition of provider participation based on issues of quality of care or service, except in circumstances where an a covered person's health has been jeopardized. Providers shall have complete and timely access to all data and information used by the licensee to identify or determine the need for altering the conditions of participation.

L. K. The MCHIP licensee shall retain the right to approve new providers and sites based on quality issues, and to terminate or suspend individual providers. Termination or suspension of individual providers for quality of care considerations shall be supported by documented records of noncompliance with specific MCHIP expectations and requirements for providers. The provider shall have a prescribed system of appeal of this decision available to them as prescribed in the contract between the MCHIP or its delegated service entity and the provider.

M. L. Providers shall be informed of the appeals process. Profession specific providers actively participating in the MCHIP plan shall be included in reviewing appeals and making recommendations for action.

N. M. The MCHIP licensee shall notify appropriate authorities when a provider's application or contract is suspended or terminated because of quality deficiencies by the health care provider whose credentials are being reviewed.

O. N. There shall be an organized system to manage and protect the confidentiality of personnel files and records. Records and documents relating to a provider's credentialing application shall be retained for at least seven years.

O. The MCHIP licensee shall establish protocols and procedures for reimbursing new provider applicants, after being credentialed by the MCHIP licensee, for health care services provided to covered persons during the period in which the new provider applicant's completed credentialing application was pending. At a minimum, the protocols and procedures shall:

1. Apply only if the new provider applicant's credentialing application is approved by the MCHIP licensee;

2. Permit provider reimbursement for services rendered from the date the new provider applicant's completed credentialing application is received for consideration by the MCHIP licensee;

3. Apply only if a contractual relationship exists between the MCHIP licensee and the new provider applicant or entity for whom the new provider applicant is employed or engaged; and

4. Require that any reimbursement be paid at the in-network rate that the new provider applicant would have received had the provider been, at the time the covered health care services were provided, a credentialed participating provider in the network for the applicable managed care plan.

P. Nothing in this section shall require:

1. Reimbursement of provider-rendered services that are not benefits or services covered by the MCHIP licensee's managed care plan.

2. An MCHIP licensee to pay reimbursement at the contracted in-network rate for any covered health care services provided by the new provider applicant if the new provider applicant's credentialing application is not approved or the MCHIP licensee is otherwise not willing to contract with the new provider applicant.

Q. Payments made or retroactive denials of payments made under this section shall be governed by § 38.2-3407.15 of the Code of Virginia.

R. If a payment is made by the MCHIP licensee to a new provider applicant or any entity that employs or engages a new provider applicant under this section for a covered service, the patient shall only be responsible for any coinsurance, copayments, or deductibles permitted under the insurance contract with the MCHIP licensee or participating provider agreement with the provider.

S. A new provider applicant, in order to submit claims to the MCHIP licensee pursuant to this section, shall provide written or electronic notice to covered persons in advance of treatment that:

1. The provider has submitted a credentialing application to the MCHIP licensee of the covered person; and

2. The MCHIP licensee is in the process of obtaining and verifying the written documentation from the new provider applicant pursuant to subsection A of this section.

The written or electronic notice shall conform to the requirements in § 38.2-3407.10:1 G of the Code of Virginia.

Title of Regulation: 12VAC5-410. Regulations for the Licensure of Hospitals in Virginia (amending 12VAC5-410-10, 12VAC5-410-230, 12VAC5-410-1170).

Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.

Effective Date: March 31, 2021.

Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102, FAX (804) 527-4502, or email regulatorycomment@vdh.virginia.gov.

Summary:

Pursuant to Item 300 F of Chapter 56 of the 2020 Acts of Assembly, Special Session I, the amendments require every medical care facility licensed by the Virginia Department of Health, excluding nursing homes, to permit a person with a disability who requires assistance as a result of such disability to be accompanied by a designated support person at any time during which health care services are provided during the COVID-19 public health emergency and add a definition for "designated support person."

12VAC5-410-10. Definitions.

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

"Board" means the State Board of Health.

"Chief executive officer" means a job descriptive term used to identify the individual appointed by the governing body to act in its behalf in the overall management of the hospital. Job titles may include administrator, superintendent, director, executive director, president, vice-president, and executive vice-president.

"Commissioner" means the State Health Commissioner.

"Consultant" means one who provides services or advice upon request.

"Department" means an organized section of the hospital.

"Designated support person" means a person who is knowledgeable about the needs of a person with a disability and who is designated, orally or in writing, by the individual with a disability, the individual's guardian, or the individual's care provider to provide support and assistance, including physical assistance, emotional support, assistance with communication or decision-making, or any other assistance necessary as a result of the person's disability, to the person with a disability at any time during which health care services are provided.

"Direction" means authoritative policy or procedural guidance for the accomplishment of a function or activity.

"Facilities" means building(s), equipment, and supplies necessary for implementation of services by personnel.

"Full-time" means a 37-1/2 to 40 hour work week.

"General hospital" means institutions as defined by § 32.1-123 of the Code of Virginia with an organized medical staff; with permanent facilities that include inpatient beds; and with medical services, including physician services, dentist services and continuous nursing services, to provide diagnosis and treatment for patients who have a variety of medical and dental conditions that may require various types of care, such as medical, surgical, and maternity.

"Home health care department/service/program" means a formally structured organizational unit of the hospital that is designed to provide health services to patients in their place of residence and meets Part II (12VAC5-381-150 et seq.) of the regulations adopted by the board for the licensure of home care organizations in Virginia.

"Medical" means pertaining to or dealing with the healing art and the science of medicine.

"Nursing care unit" means an organized jurisdiction of nursing service in which nursing services are provided on a continuous basis.

"Nursing home" means an institution or any identifiable component of any institution as defined by § 32.1-123 of the Code of Virginia with permanent facilities that include inpatient beds and whose primary function is the provision, on a continuing basis, of nursing and health related services for the treatment of patients who may require various types of long term care, such as skilled care and intermediate care.

"Nursing services" means patient care services pertaining to the curative, palliative, restorative, or preventive aspects of nursing that are prepared or supervised by a registered nurse.

"Office of Licensure and Certification" or "OLC" means the Office of Licensure and Certification of the Virginia Department of Health.

"Organized" means administratively and functionally structured.

"Organized medical staff" means a formal organization of physicians and dentists with the delegated responsibility and authority to maintain proper standards of medical care and to plan for continued betterment of that care.

"Outpatient hospital" means institutions as defined by § 32.1-123 of the Code of Virginia that primarily provide facilities for the performance of surgical procedures on outpatients. Such patients may require treatment in a medical environment exceeding the normal capability found in a physician's office, but do not require inpatient hospitalization.

"Ownership/person" means any individual, partnership, association, trust, corporation, municipality, county, governmental agency, or any other legal or commercial entity that owns or controls the physical facilities and/or manages or operates a hospital.

"Rural hospital" means any general hospital in a county classified by the federal Office of Management and Budget (OMB) as rural, any hospital designated as a critical access hospital, any general hospital that is eligible to receive funds under the federal Small Rural Hospital Improvement Grant Program, or any general hospital that notifies the commissioner of its desire to retain its rural status when that hospital is in a county reclassified by the OMB as a metropolitan statistical area as of June 6, 2003.

"Service" means a functional division of the hospital. Also used to indicate the delivery of care.

"Special hospital" means institutions as defined by § 32.1-123 of the Code of Virginia that provide care for a specialized group of patients or limit admissions to provide diagnosis and treatment for patients who have specific conditions (e.g., tuberculosis, orthopedic, pediatric, maternity).

"Special care unit" means an appropriately equipped area of the hospital where there is a concentration of physicians, nurses, and others who have special skills and experience to provide optimal medical care for patients assigned to the unit.

"Staff privileges" means authority to render medical care in the granting institution within well-defined limits, based on the individual's professional license and the individual's experience, competence, ability, and judgment.

"Unit" means a functional division or facility of the hospital.

12VAC5-410-230. Patient care management.

A. All patients shall be under the care of a member of the medical staff.

B. Each hospital shall have a plan that includes effective mechanisms for the periodic review and revision of patient care policies and procedures.

C. Each hospital shall establish a protocol relating to the rights and responsibilities of patients based on Joint Commission on Accreditation of Healthcare Organizations' 2000 Hospital Accreditation Standards, January 2000. The protocol shall include a process reasonably designed to inform patients of their rights and responsibilities. Patients shall be given a copy of their rights and responsibilities upon admission.

D. No medication or treatment shall be given except on the signed order of a person lawfully authorized by state statutes.

1. Hospital personnel, as designated in medical staff bylaws, rules and regulations, or hospital policies and procedures, may accept emergency telephone and other verbal orders for medication or treatment for hospital patients from physicians and other persons lawfully authorized by state statute to give patient orders.

2. As specified in the hospital's medical staff bylaws, rules and regulations, or hospital policies and procedures, emergency telephone and other verbal orders shall be signed within a reasonable period of time not to exceed 72 hours, by the person giving the order, or, when such person is not available, cosigned by another physician or other person authorized to give the order.

E. Each hospital shall have a reliable method for identification of each patient, including newborn infants.

F. Each hospital shall include in its visitation policy a provision allowing each adult patient to receive visits from any individual from whom the patient desires to receive visits, subject to other restrictions contained in the visitation policy including the patient's medical condition and the number of visitors permitted in the patient's room simultaneously.

G. If the Governor has declared a public health emergency related to the novel coronavirus (COVID-19), each hospital shall allow a person with a disability who requires assistance as a result of such disability to be accompanied by a designated support person at any time during which health care services are provided.

1. In any case in which health care services are provided in an inpatient setting, and the duration of health care services in such inpatient setting is anticipated to last more than 24 hours, the person with a disability may designate more than one designated support person. However, no hospital shall be required to allow more than one designated support person to be present with a person with a disability at any time.

2. A designated support person shall not be subject to any restrictions on visitation adopted by such hospital. However, such designated support person may be required to comply with all reasonable requirements of the hospital adopted to protect the health and safety of patients and staff of the hospital.

3. Every hospital shall establish policies applicable to designated support persons and shall:

a. Make such policies available to the public on a website maintained by the hospital; and

b. Provide such policies, in writing, to the patient at such time as health care services are provided.

H. Each hospital that is equipped to provide life-sustaining treatment shall develop a policy to determine the medical or ethical appropriateness of proposed medical care, which shall include:

1. A process for obtaining a second opinion regarding the medical and ethical appropriateness of proposed medical care in cases in which a physician has determined proposed care to be medically or ethically inappropriate;

2. Provisions for review of the determination that proposed medical care is medically or ethically inappropriate by an interdisciplinary medical review committee and a determination by the interdisciplinary medical review committee regarding the medical and ethical appropriateness of the proposed health care of the patient;

3. Requirements for a written explanation of the decision of the interdisciplinary medical review committee, which shall be included in the patient's medical record; and

4. Provisions to ensure the patient, the patient's agent, or the person authorized to make the patient's medical decisions in accordance with § 54.1-2986 of the Code of Virginia is informed of the patient's right to obtain the patient's medical record and the right to obtain an independent medical opinion and afforded reasonable opportunity to participate in the medical review committee meeting.

The policy shall not prevent the patient, the patient's agent, or the person authorized to make the patient's medical decisions from obtaining legal counsel to represent the patient or from seeking other legal remedies, including court review, provided that the patient, the patient's agent, person authorized to make the patient's medical decisions, or legal counsel provide written notice to the chief executive officer of the hospital within 14 days of the date of the physician's determination that proposed medical treatment is medically or ethically inappropriate as documented in the patient's medical record.

H. I. Each hospital shall establish a protocol requiring that, before a health care provider arranges for air medical transportation services for a patient who does not have an emergency medical condition as defined in 42 USC § 1395dd(e)(1), the hospital shall provide the patient or the patient's authorized representative with written or electronic notice that the patient (i) may have a choice of transportation by an air medical transportation provider or medically appropriate ground transportation by an emergency medical services provider and (ii) will be responsible for charges incurred for such transportation in the event that the provider is not a contracted network provider of the patient's health insurance carrier or such charges are not otherwise covered in full or in part by the patient's health insurance plan.

I. J. Each hospital shall provide written information about the patient's ability to request an estimate of the payment amount for which the participant will be responsible pursuant to § 32.1-137.05 of the Code of Virginia. The written information shall be posted conspicuously in public areas of the hospital, including admissions or registration areas, and included on any website maintained by the hospital.

J. K. Each hospital shall establish protocols to ensure that any patient scheduled to receive an elective surgical procedure for which the patient can reasonably be expected to require outpatient physical therapy as a follow-up treatment after discharge is informed that the patient:

1. Is expected to require outpatient physical therapy as a follow-up treatment; and

2. Will be required to select a physical therapy provider prior to being discharged from the hospital.

12VAC5-410-1170. Policy and procedures manual.

A. Each outpatient surgical hospital shall develop a policy and procedures manual that shall include provisions covering the following items:

1. The types of emergency and elective procedures that may be performed in the facility.

2. Types of anesthesia that may be used.

3. Admissions and discharges, including:

a. Criteria for evaluating the patient before admission and before discharge; and

b. Protocols to ensure that any patient scheduled to receive an elective surgical procedure for which the patient can reasonably be expected to require outpatient physical therapy as a follow-up treatment after discharge is informed that the patient:

(1) Is expected to require outpatient physical therapy as a follow-up treatment; and

(2) Will be required to select a physical therapy provider prior to being discharged from the hospital.

4. Written informed consent of patient prior to the initiation of any procedures.

5. Procedures for housekeeping and infection control and prevention.

6. Disaster preparedness.

7. Facility security.

B. A copy of approved policies and procedures and revisions thereto shall be made available to the OLC upon request.

C. Each outpatient surgical hospital shall establish a protocol relating to the rights and responsibilities of patients based on Joint Commission on Accreditation of Healthcare Organizations' Standards for Ambulatory Care (2000 Hospital Accreditation Standards, January 2000). The protocol shall include a process reasonably designed to inform patients of their rights and responsibilities. Patients shall be given a copy of their rights and responsibilities upon admission.

D. If the Governor has declared a public health emergency related to the novel coronavirus (COVID-19), each outpatient surgical hospital shall allow a person with a disability who requires assistance as a result of such disability to be accompanied by a designated support person at any time during which health care services are provided.

1. A designated support person shall not be subject to any restrictions on visitation adopted by such outpatient surgical hospital. However, such designated support person may be required to comply with all reasonable requirements of the outpatient surgical hospital adopted to protect the health and safety of patients and staff of the outpatient surgical hospital.

2. Every outpatient surgical hospital shall establish policies applicable to designated support persons and shall:

a. Make such policies available to the public on a website maintained by the outpatient surgical hospital; and

b. Provide such policies, in writing, to the patient at such time as health care services are provided.

E. Each outpatient surgical hospital shall obtain a criminal history record check pursuant to § 32.1-126.02 of the Code of Virginia on any compensated employee not licensed by the Board of Pharmacy whose job duties provide access to controlled substances within the outpatient surgical hospital pharmacy.

Title of Regulation: 12VAC5-410. Regulations for the Licensure of Hospitals in Virginia (amending 12VAC5-410-441).

Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 31, 2021.

Effective Date: April 15, 2021.

Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102, FAX (804) 527-4502, or email regulatorycomment@vdh.virginia.gov.

Basis: Section 32.1-12 of the Code of Virginia gives the State Board of Health the responsibility to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia. Section 32.1-127 of the Code of Virginia requires the board to adopt regulations that include minimum standards for hospitals, nursing homes and certified nursing facilities.

Purpose: This regulation is being amended due to the changes to § 32.1-143.01 of the Code of Virginia. The board is required by § 32.1-127 of the Code of Virginia to promulgate regulations for the licensure of hospitals in order to protect the health, safety, and welfare of citizens receiving care in hospitals. The goal of the regulatory change is to conform the regulations to the statute. It is intended to increase maternity patients' knowledge and awareness of certain information that protects the health, safety, and welfare of new mothers and their infants.

Rationale for Using Fast-Track Rulemaking Process: Chapter 433 of the 2019 Acts of Assembly amended and reenacted § 32.1-134.01 of the Code of Virginia to add perinatal anxiety to the list of information hospitals are required to make available to maternity patients, the father of the infant, and other relevant family members or caretakers prior to such patients' discharge. The existing list of information from that Code section is not currently included in the hospital regulations.

As the rulemaking is being utilized to conform to the statute and no new requirements are being developed, it is expected to be noncontroversial.

Substance: A new provision is added to require the information pursuant to § 32.1-134.01 of the Code of Virginia be provided.

Issues: This action is being used to conform the regulations to existing requirements in the statute. The advantage to the public and the Commonwealth is that the regulations are in compliance with legislative changes enacted by the 2019 General Assembly. There are no disadvantages to the public, the agency, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. One of the requirements of 2VAC5-410 Regulations for the Licensure of Hospitals in Virginia is that the governing board of the hospital adopt written policies and procedures for the management of obstetric patients, to be approved by the medical and nursing staff assigned to the obstetric service. The regulation lists the minimum required contents of the policies and procedures. In addition, § 32.1-134.01 of the Code of Virginia states that prior to releasing each maternity patient, certain specified information be provided. The State Board of Health proposes to add the provision of the information specified in § 32.1-134.01 of the Code of Virginia to the list of minimum required contents of the policies and procedures.

Background. Section 32.1-134.01 of the Code of Virginia states that:

Every licensed nurse midwife, licensed midwife, or hospital providing maternity care shall, prior to releasing each maternity patient, make available to such patient and, if present, to the father of the infant and other relevant family members or caretakers, information about the incidence of postpartum blues, perinatal depression, and perinatal anxiety; information to increase awareness of shaken baby syndrome and the dangers of shaking infants; and information about safe sleep environments for infants that is consistent with current information available from the American Academy of Pediatrics. This information shall be discussed with the maternity patient and the father of the infant and other relevant family members or caretakers who are present at discharge.

Estimated Benefits and Costs. To the extent that the specified information is not already being consistently conveyed to maternity patients and their relevant family members and caretakers, and to the extent that mandating that the provision of this information is added to hospitals written policies and procedures increases the frequency that the information is conveyed, the proposal may be beneficial to the wellbeing of new mothers and babies. Adding the provision of the information specified in § 32.1-134.01 to the policies and procedures would likely require minimal staff time for hospitals.

Businesses and Other Entities Affected. The proposal affects the 106 inpatient hospitals and 63 outpatient surgical hospitals licensed by the Virginia Department of Health (VDH). A minimal amount of staff time would be required to add the provision of specified information to the written policies and procedures.

Small Businesses Affected. Types and Estimated Number of Small Businesses Affected

VDH estimates that three of the outpatient surgical hospitals meet the statutory definition of small business.¹

Costs and Other Effects. As discussed, a minimal amount of staff time would be required to add the provision of specified information to the written policies and procedures.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities² Affected.³ The proposal does not disproportionately affect any particularly locality nor appear to introduce additional costs for local governments.

Projected Impact on Employment. The proposal does not appear to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposal appears to neither substantively affect the use and value of private property, nor affect real estate development costs.

________________________________

¹Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million.

²Locality can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

³§ 2.2-4007.04 defines particularly affected" as bearing disproportionate material impact.

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

Summary:

Pursuant to Chapter 433 of the 2019 Acts of Assembly, the amendment adds perinatal anxiety to the list of information hospitals are required to make available to maternity patients, the father of the infant, and other relevant family members or caretakers prior to such patients' discharge.

12VAC5-410-441. Obstetric service requirements; medical direction; physician consultation and coverage; nurse staffing and coverage; policies and procedures.

A. he The governing body shall appoint a physician as medical director of the organized obstetric service who meets the qualifications specified in the medical staff bylaws.

1. If the medical director is not a board certified obstetrician or board eligible in obstetrics, the hospital shall have a written agreement with one or more board-certified or board-eligible obstetricians to provide consultation on a 24-hour basis. Consultation may be by telephone.

2. The duties and responsibilities of the medical director of obstetric services shall include but not be limited to:

a. The general supervision of the quality of care provided patients admitted to the service;

b. The establishment of criteria for admission to the service;

c. The adherence to standards of professional practices and policies and procedures adopted by the medical staff and governing body;

d. The development of recommendations to the medical staff on standards of professional practice and staff privileges;

e. The identification of clinical conditions and medical or surgical procedures that require physician consultation; and

f. Arranging conferences, at least quarterly, to review obstetrical surgical procedures, complications and infant and maternal mortality and morbidity. Infant mortality and morbidity shall be discussed jointly between the obstetric and newborn service staffs.

B. A physician with obstetrical privileges capable of arriving on-site within 30 minutes of notification shall be on a 24-hour on-call duty roster.

C. A physician with obstetrical privileges shall be accessible for patient treatment within 10 minutes during the administration of an oxytocic agent to an antepartum patient.

D. A physician or a certified nurse-midwife, under the supervision of a physician with obstetrical privileges, shall be in attendance for each delivery. Physician supervision of the nurse-midwife shall be in compliance with the regulations of the Boards of Nursing and Medicine.

E. A physician shall be in attendance during all high-risk deliveries. High-risk deliveries shall be defined by the obstetric service medical staff.

F. A physician or a nurse skilled in neonatal cardiopulmonary resuscitation (CPR) shall be available in the hospital at all times.

G. A current roster of physicians, with a delineation of their obstetrical, newborn, pediatric, medical and surgical staff privileges, shall be posted at each nurses' station in the obstetric suite and in the emergency room.

H. A copy of the 24-hour on-call duty schedule, including the list of on-call consulting physicians, shall be posted at each nurses' station in the obstetric suite and in the emergency room.

I. An occupied unit of the obstetrics service shall be supervised by a registered nurse 24 hours a day.

J. If the postpartum unit is organized as a separate nursing unit, staffing shall be based on a formula of one nursing personnel for every six to eight obstetric patients. Staffing shall include at least one registered nurse for the unit for each duty shift.

K. If the postpartum and general care newborn units are organized as combined rooming-in or modified rooming-in units, staffing shall be based on a formula of one nursing personnel for every four mother-baby units. The rooming-in units shall be staffed at all times with no less than two nursing personnel each shift. At least one of the two nursing personnel on each shift shall be a registered nurse.

L. A registered nurse shall be in attendance at all deliveries. The nurse shall be available on-site to monitor the mother's general condition and that of the fetus during labor, at least one hour after delivery, and longer if complications occur.

M. Nurse staffing of the labor and delivery unit shall be scheduled to ensure that the total number of nursing personnel available on each shift is equal to one half of the average number of deliveries in the hospital during a 24-hour period.

N. At least one of the personnel assigned to each shift on the obstetrics unit shall be a registered nurse. At no time when the unit is occupied shall the nursing staff on any shift be less than two staff members.

O. Patients placed under analgesia or anesthesia during labor or delivery shall be under continuous observation by a registered nurse or a licensed practical nurse for at least one hour after delivery.

P. To ensure adequate nursing staff for labor, delivery, and postpartum units during busy or crisis periods, duty schedules shall be developed in accordance with the following nurse/patient ratios:

1. 1:1 to 2 Antepartum testing

2. 1:2 Laboring patients

3. 1:1 Patients in second stage of labor

4. 1:1 Ill patients with complications

5. 1:2 Oxytocin induction or augmentation of labor

6. 1:2 Coverage of epidural anesthesia

7. 1:1 Circulation for cesarean delivery

8. 1:6 to 8 Antepartum/postpartum patients without complications

9. 1:2 Postoperative recovery

10. 1:3 Patients with complications, but in stable condition

11. 1:4 Mother-newborn care

Q. Student nurses, licensed practical nurses and nursing aides who assist in the nursing care of obstetric patients shall be under the supervision of a registered nurse.

R. At least one registered nurse trained in obstetric and neonatal care shall be assigned to the care of mothers and infants at all times.

S. At least one member of the nursing staff on each shift who is skilled in cardiopulmonary resuscitation of the newborn must be immediately available to the delivery suite.

T. All nursing personnel assigned to the obstetric service shall have orientation to the obstetrical unit.

U. The governing body shall adopt written policies and procedures for the management of obstetric patients approved by the medical and nursing staff assigned to the service.

1. The policies and procedures shall include, but not be limited to, the following:

a. Criteria for the identification and referral of high-risk obstetric patients;

b. The types of birthing alternatives, if offered, by the hospital;

c. The monitoring of patients during antepartum, labor, delivery, recovery and postpartum periods with or without the use of electronic equipment;

d. The use of equipment and personnel required for high-risk deliveries, including multiple births;

e. The presence of family members or chosen companions during labor, delivery, recovery, and postpartum periods;

f. The reporting, to the Department of Health, of all congenital defects;

g. The care of patients during labor and delivery to include the administration of Rh O(D) immunoglobulin to Rh negative mothers who have met eligibility criteria. Administration of RH O(D) immunoglobulin shall be documented in the patient's medical record;

h. The provision of family planning information, to each obstetric patient at time of discharge, in accordance with § 32.1-134 of the Code of Virginia;

i. The use of specially trained paramedical and nursing personnel by the obstetrics and newborn service units;

j. A protocol for hospital personnel to use to assist them in obtaining public health, nutrition, genetic and social services for patients who need those services;

k. The use of anesthesia with obstetric patients;

l. The use of radiological and electronic services, including safety precautions, for obstetric patients;

m. The management of mothers who utilize breast milk with their newborns. Breast milk shall be collected in aseptic containers, dated, stored under refrigeration and consumed or disposed of within 24 48 hours of collection if the breast milk has not been frozen. This policy pertains to breast milk collected while in the hospital or at home for hospital use;

n. Staff capability to perform cesarean sections within 30 minutes of notice;

o. Emergency resuscitation procedures for mothers and infants;

p. The treatment of volume shock in mothers;

q. Training of hospital staff in discharge planning for identified substance abusing, postpartum women and their infants; and

r. Written discharge planning for identified substance abusing, postpartum women and their infants. The discharge plans shall include appropriate referral sources available in the community or locality for mother and infants such as:

(1) Substance abuse treatment services; and

(2) Comprehensive early intervention services for infants and toddlers with disabilities and their families pursuant to Part H of the Individuals with Disabilities Education Act, 20 USC § 1471 et seq.

(3) The discharge planning process shall be coordinated by a health care professional and shall include, to the extent possible:

(a) The father of the infant; and

(b) Any family members who may participate in the follow-up care of the mother or infant.

The discharge plan shall be discussed with the mother and documented in the medical record; and

s. The provision of information pursuant to § 32.1-134.01 of the Code of Virginia about the incidence of postpartum blues, perinatal depression, and perinatal anxiety; information to increase awareness of shaken baby syndrome and the dangers of shaking infants; and information about safe sleep environments for infants that is consistent with current information from the American Academy of Pediatrics.

2. The obstetric service shall adopt written policies and procedures for the use of the labor, delivery and recovery rooms (LDR)/Labor, delivery, recovery and postpartum rooms (LDRP) that include, but are not limited to the following:

a. The philosophy, goals and objectives for the use of the LDR/LDRP rooms;

b. Criteria for patient eligibility to use the LDR/LDRP rooms;

c. Identification of high-risk conditions which disqualify patients from use of the LDR/LDRP rooms;

d. Patient care in LDR/LDRP rooms, including but not limited to, the following;

(1) Defining vital signs, the intervals at which they shall be taken, and requirements for documentation; and

(2) Observing, monitoring, and assessing the patient by a registered nurse, certified nurse midwife, or physician;

e. The types of analgesia and anesthesia to be used in LDR/LDRP rooms;

f. Specifications of conditions of labor or delivery requiring transfer of the patient from LDR/LDRP rooms to the delivery room;

g. Specification of conditions requiring the transfer of the mother to the postpartum unit or the newborn to the nursery;

h. Criteria for early or routine discharge of the mother and newborn;

i. The completion of medical records;

j. The presence of family members or chosen companions in the delivery room or operating room in the event that the patient is transferred to the delivery room or operating room;

k. The number of visitors allowed in the LDR/LDRP room, and their relationship to the mother; and

l. Infection control, including, but not limited to, gowning and attire to be worn by persons in the LDR/LDRP room, upon leaving it, and upon returning.

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 12VAC30-60-143).

12VAC30-130. Amount, Duration and Scope of Selected Services (amending 12VAC30-130-5160, 12VAC30-130-5170, 12VAC30-130-5190).

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

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 31, 2021.

Effective Date: April 14, 2021.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia authorizes the Board of Medical Assistance Services to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia authorizes the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the State Plan for Medical Assistance and to promulgate regulations according to the board's requirements. The Medicaid authority as established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Purpose: These regulatory changes are essential to protect the health, safety, and welfare of citizens in that they ensure (i) that the regulations reflect current practices (i.e., the end of the Behavioral Health Services Administrator (BHSA) contract); (ii) a broader employee pool for Peer Recovery Support Services, and therefore greater member access to these services; and (iii) continued federal financial participation for Peer Recovery Support Services by eliminating outdated annual limits that are in violation of federal regulations under the Mental Health Parity and Addiction Equity Act. The federal regulations may be found in the Federal Register, Volume 81, Number 61, March 30, 2016, pages 18390 through 18445.

Rationale for Use of Fast-Track Rulemaking Process: These changes are expected to be noncontroversial and appropriate for the fast-track rulemaking process for several reasons. First, replacing the references to the Behavioral Health Services Administrator or BHSA with references to DMAS or its contractor does not affect providers, Medicaid members, or members of the public. Second, clarifications are being made to the Peer Recovery Support Services regulations, including changes to correct the inadvertent omission of LMHP-Resident, Resident in Psychology, and Supervisee in Social Work so that they may perform appropriate functions within Peer Recovery Support Services. Fixing this omission will benefit providers and members by ensuring that the rules match current practice. Supervision requirements for peer recovery specialists have also been added to these regulations, which have been in DBHDS guidance documents since June 29, 2017, and are now included in DMAS regulatory text. These changes are noncontroversial because they replicate supervision requirements that have been in place for several years. Neither DHBDS nor DMAS have received concerns or complaints about these requirements from providers, Medicaid members, or members of the public. Finally, DMAS is complying with federal mental health parity rules to remove the annual limits from certain community mental health services. The Centers for Medicare and Medicaid Services required DMAS to remove the service limits from the State Plan, and, as a result, DMAS instructed the BHSA to use medical necessity criteria rather than enforcing the service limits that appeared in the regulations. These changes do not impact providers, Medicaid members, or members of the public.

Substance: This regulatory action contains three different updates:

1. References to the BHSA are stricken and replaced with references to DMAS or its contractor. The BHSA contract was extended for one year and will end in 2020, and these references are being updated in anticipation of that change.

2. Clarifications are being made to the Peer Recovery Support Services regulations, including changes to correct the inadvertent omission of licensed mental health professional (LMHP)-Resident, LMHP-Resident in Psychology, and LMHP-Supervisee in Social Work, so that those professionals may perform appropriate functions within Peer Recovery Support Services. Supervision requirements for peer recovery specialists have also been added to these regulations, which have been in DBHDS guidance documents since June 29, 2017.

3. Changes remove the annual limits from certain community mental health services. These limits are prohibited because they conflict with mental health parity requirements under federal law. There is no cost to this change, because these limits have not been enforced since the Magellan BHSA was brought on to administer these services. The Magellan BHSA has approved requests for community mental health services when the individual meets medical necessity criteria for the service, even if the amount of service will exceed these outdated annual limits.

Issues: The primary advantages of these changes are the removal of references to the BHSA that will soon be out of date; that individuals who are working toward their LMHP, and are appropriately registered with the Department of Health Professions as an LMHP-R, LMHP-RP, or LMHP-S will be permitted to perform certain functions within Peer Recovery Support Services, which will increase the pool of individuals who are available to perform this service, and therefore increase member access to this service; and bringing DMAS into compliance with the federal regulations under the Mental Health Parity and Addiction Equity Act.

There are no disadvantages to the public, the agency, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Director (Director) of the Department of Medical Assistance Services (DMAS) is proposing a fast-track action to update portions of the regulations relating to behavioral health services. Proposed changes include removing annual limits on the provision of peer support services to comply with federal rules, clarifying staff requirements, and replacing references to the Behavioral Health Services Administrator (or BHSA) with references to DMAS or its contractor.

Background. These regulations primarily apply to peer support services, which is an evidence-based mental health model of care intended to help an individual remain engaged in the recovery process by extending the reach of treatment beyond the clinical setting into an individual's community and natural environment. These services are provided by a qualified peer recovery specialist who provides collaborative support and assistance to individuals recovering from a primary diagnosis of mental illness, substance use disorders, or both. Peer recovery specialists are either (a) self-identified consumers who are in a successful and ongoing recovery from mental illness and/or substance use disorders, or (b) family members of individuals who are receiving or have received mental health or substance abuse services.

Estimated Benefits and Costs. The Director proposes to update this regulation to reflect the removal of the annual limits on peer support services¹ for the same or similar diagnosis or treatment plan for psychiatric inpatient hospitalization. On March 30, 2016, the Centers for Medicare and Medicaid Services issued the Mental Health Parity Rule,² which removed service limits for peer support services. The parity rule was designed to ensure that mental health and substance use disorder services are no more difficult to access than medical and surgical services. The proposed changes are intended to allow peer support services to be authorized based on medical necessity and not be limited. DMAS has not applied the annual limits in delivery of peer support services since 2016. Accordingly, this action updates the regulation to reflect the practice that have been followed since 2016.

Removal of the annual limits in 2016 allowed providers to provide, and recipients to receive, peer support services without limits. Based on approximately six months of data since August 1, 2019, claims for eight out of 1,101 individuals exceeded the limits that were previously in place. Claims for one individual exceeded the limit of 60 days of crisis stabilization by 55 days; after the limit was exceeded, 359 units were billed for a total of $31,951. Claims for the other seven individuals exceeded the yearly limit of 130 units of intensive community treatment; the total exceeded units for these seven individuals was 122 for a total cost of $18,666. Thus, the main impact of this change has been provision of peer support services as medically needed at an added cost of $50,617 to the Commonwealth and the federal government in the last six months. However, given that a single individual was solely responsible for a large portion of the additional cost, this estimate should not be taken as a robust estimate of the likely ongoing impact.

The Director also proposes make changes to correct the inadvertent omission of certain licensed mental health professionals (LMHP-Resident, Resident in Psychology, and Supervisee in Social Work) in the regulatory language. According to DMAS, despite the inadvertent omission of the titles of these professionals in the regulation, they have been allowed to provide their services. This change will simply update the regulatory language to conform to practice without any significant economic impact.

Finally, the Director proposes to strike references to the Behavioral Health Services Administrator (or BHSA) and replace it with references to DMAS or its contractor. The BHSA contract was extended for one year, and will end in 2020. In that contract, DMAS plans to discontinue the use of the term BHSA which would make that reference obsolete. This change is also not expected create a significant economic impact other than amending the language to conform to the anticipated changes in the contract.

Businesses and Other Entities Affected. The proposed amendments affect the 59 peer support services providers, 3,938 community mental health services providers, and peer support service recipients in the Commonwealth.³ Medicaid recipients who would otherwise be prevented from receiving medically needed peer support services particularly benefit from the proposed changes.

Small Businesses⁴ Affected. Most if not all of the affected providers are small businesses. The proposed amendments do not appear to adversely affect small businesses.

Localities⁵ Affected⁶. The proposed amendments do not disproportionately affect any particular localities. The proposed amendments do not introduce costs for local governments. Accordingly, no additional funds would be required and no locality would be particularly affected.

Projected Impact on Employment. The proposed amendments do not appear to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed changes do not appear to affect the use and value of private property and real estate development costs.

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¹The annual limits being removed are psychosocial rehab services (936 units), partial hospitalization (780 units), mental health skill building (520 units), crisis intervention (720 units), intensive community treatment (130 units), and crisis stabilization (60 days).

²https://www.govinfo.gov/content/pkg/FR-2016-03-30/pdf/2016-06876.pdf

³Data source: DMAS

⁴Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million.

⁵Locality can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

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

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

Summary:

The amendments (i) remove references to the Behavioral Health Services Administrator and replace them with references to the Department of Medical Assistance Services or its contractor; (ii) correct the inadvertent omission of licensed mental health professional (LMHP)-Resident, LMHP-Resident in Psychology, and LMHP-Supervisee in Social Work so that those professionals may perform appropriate functions within Peer Recovery Support Services; and (iii) remove the annual limits from certain community mental health services, which conflict with mental health parity requirements under federal law; and (iv) add supervision requirements for peer recovery specialists, which have been in Department of Behavioral Health and Developmental Services guidance since June 29, 2017.

12VAC30-50-130. Nursing facility services, EPSDT, including school health services and family planning.

A. 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. General provisions for early and periodic screening, diagnosis, and treatment (EPSDT) of individuals younger than 21 years of age, and treatment of conditions found.

1. Payment of medical assistance services shall be made on behalf of individuals younger than 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 departments of social services 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. DMAS shall place appropriate utilization controls upon this service.

4. Consistent with § 6403 of the Omnibus Budget Reconciliation Act of 1989, 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 that are medically necessary, whether or not such services are covered under the State Plan and notwithstanding the limitations, applicable to recipients 21 years of age and older, provided for by § 1905(a) of the Social Security Act.

C. Community mental health services provided through early and periodic screening diagnosis and treatment (EPSDT) for individuals younger than 21 years of age. 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) shall be are reflected in provider records and on provider providers' claims for services by recognized diagnosis codes that support and are consistent with the requested professional services.

1. Definitions. The following words and terms when used in 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 this term these terms, adolescent means an individual 12 through 20 years of age; child means an individual from birth up to 12 years of age.

"Behavioral health service" means the same as defined in 12VAC30-130-5160.

"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.

"Caregiver" means the same as defined in 12VAC30-130-5160.

"Child" means an individual ages birth through 11 years.

"Certified prescreener" means an employee of 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 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.

"Direct supervisor" means the person who provides direct supervision to the peer recovery specialist. The direct supervisor (i) shall have two consecutive years of documented practical experience rendering peer support services or family support services, have certification training as a PRS under a certifying body approved by DBHDS, and have documented completion of the DBHDS PRS supervisor training; (ii) shall be a qualified mental health professional (QMHP-A, QMHP-C, or QMHP-E) as defined in 12VAC35-105-20 with at least two consecutive years of documented experience as a QMHP, and who has documented completion of the DBHDS PRS supervisor training; or (iii) shall be an LMHP who has documented completion of the DBHDS PRS supervisor training who is acting within his scope of practice under state law. An LMHP providing services before April 1, 2018, shall have until April 1, 2018, to complete the DBHDS PRS supervisor training.

"DMAS" means the Department of Medical Assistance Services and its contractors.

"EPSDT" means early and periodic screening, diagnosis, and treatment.

"Family support partners" means the same as defined in 12VAC30-130-5170.

"Human services field" means the same as the term is defined by the Department of Health Professions DBHDS in the document entitled Approved Degrees in Human Services and Related Fields forQMHP Registration, adoptedNovember3, 2017, revised February9, 2018 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 defined in 12VAC35-105-20.

"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.

"Peer recovery specialist" or "PRS" means the same as defined in 12VAC30-130-5160 12VAC35-250-10.

"Peer recovery support services" means the same as defined in 12VAC35-250-10.

"Person centered" means the same as defined in 12VAC30-130-5160.

"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, 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 or hours required to deliver the service. The content of each progress note shall corroborate the units or hours 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 including a "QMHP-trainee" as defined by the Department of Health Professions.

"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.

"Recovery-oriented services" means the same as defined in 12VAC30-130-5160.

"Recovery, resiliency, and wellness plan" means the same as defined in 12VAC30-130-5160.

"Resiliency" means the same as defined in 12VAC30-130-5160.

"Self-advocacy" means the same as defined in 12VAC30-130-5160.

"Service-specific provider intake" means the face-to-face interaction in which the provider obtains information from the child or adolescent, and parent or other family member, 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 or 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 or 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 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.

"Services provided under arrangement" means the same as defined in 12VAC30-130-850.

"Strength-based" means the same as defined in 12VAC30-130-5160.

"Supervision" means the same as defined in 12VAC30-130-5160.

2. Intensive in-home services (IIH) to children and adolescents younger than 21 years of age shall be time-limited interventions provided 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, and 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 of psychoeducation in the home setting of 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 individual. These services provide crisis treatment; individual and family counseling; communication skills (e.g., counseling to assist the individual and the individual's parents or guardians, as appropriate, to understand and practice appropriate problem solving, anger management, and interpersonal interaction, etc.); care coordination with other required services; and 24-hour emergency response.

a. 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.

b. Service-specific provider intakes shall be required prior to the start 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 intakes or ISPs shall be denied reimbursement. Requirements for service-specific provider intakes and ISPs are set out in this section.

c. These services shall only be rendered by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

3. Therapeutic day treatment (TDT) shall be provided two or more hours per day in order to provide therapeutic interventions (a unit is defined in 12VAC30-60-61 D 11). Day treatment programs 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 counseling.

a. Service authorization shall be required for Medicaid reimbursement.

b. Service-specific provider intakes shall be required prior to the start 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 intakes or ISPs shall be denied reimbursement. Requirements for service-specific provider intakes and ISPs are set out in this section.

c. These services shall be rendered only by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

D. Therapeutic group home services and psychiatric residential treatment facility (PRTF) services for early and periodic screening diagnosis and treatment (EPSDT) of individuals younger than 21 years of age.

1. Definitions. The following words and terms when used in this subsection shall have the following meanings:

"Active treatment" means implementation of an initial plan of care (IPOC) and comprehensive individual plan of care (CIPOC).

"Assessment" means the face-to-face interaction by an LMHP, LMHP-R, LMHP-RP, or LMHP-S to obtain information from the child or adolescent and parent, guardian, or other family member, as appropriate, utilizing a tool or series of tools to provide a comprehensive evaluation and review of the child's or adolescent's mental health status. The assessment shall include a documented history of the severity, intensity, and duration of mental health problems and behavioral and emotional issues.

"Certificate of need" or "CON" means a written statement by an independent certification team that services in a therapeutic group home or PRTF are or were needed.

"Combined treatment services" means a structured, therapeutic milieu and planned interventions that promote (i) the development or restoration of adaptive functioning, self-care, and social skills; (ii) community integrated activities and community living skills that each individual requires to live in less restrictive environments; (iii) behavioral consultation; (iv) individual and group therapy; (v) skills restoration, the restoration of coping skills, family living and health awareness, interpersonal skills, communication skills, and stress management skills; (vi) family education and family therapy; and (vii) individualized treatment planning.

"Comprehensive individual plan of care" or "CIPOC" means a person centered plan of care that meets all of the requirements of this subsection and is specific to the individual's unique treatment needs and acuity levels as identified in the clinical assessment and information gathered during the referral process.

"Crisis" means a deteriorating or unstable situation that produces an acute, heightened emotional, mental, physical, medical, or behavioral event.

"Crisis management" means immediately provided activities and interventions designed to rapidly manage a crisis. The activities and interventions include behavioral health care to provide immediate assistance to individuals experiencing acute behavioral health problems that require immediate intervention to stabilize and prevent harm and higher level of acuity. Activities shall include assessment and short-term counseling designed to stabilize the individual. Individuals are referred to long-term services once the crisis has been stabilized.

"Daily supervision" means the supervision provided in a PRTF through a resident-to-staff ratio approved by the Office of Licensure at the Department of Behavioral Health and Developmental Services with documented supervision checks every 15 minutes throughout a 24-hour period.

"Discharge planning" means family and locality-based care coordination that begins upon admission to a PRTF or therapeutic group home with the goal of transitioning the individual out of the PRTF or therapeutic group home to a less restrictive care setting with continued, clinically-appropriate, and possibly intensive, services as soon as possible upon discharge. Discharge plans shall be recommended by the treating physician, psychiatrist, or treating LMHP responsible for the overall supervision of the plan of care and shall be approved by the DMAS contractor.

"DSM-5" means the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, copyright 2013, American Psychiatric Association.

"Emergency admissions" means those admissions that are made when, pending a review for the certificate of need, it appears that the individual is in need of an immediate admission to a therapeutic group home or PRTF and likely does not meet the medical necessity criteria to receive crisis intervention, crisis stabilization, or acute psychiatric inpatient services.

"Emergency services" means unscheduled and sometimes scheduled crisis intervention, stabilization, acute psychiatric inpatient services, and referral assistance provided over the telephone or face-to-face if indicated, and available 24 hours a day, seven days per week.

"Family engagement" means a family-centered and strengths-based approach to partnering with families in making decisions, setting goals, achieving desired outcomes, and promoting safety, permanency, and well-being for children, adolescents, and families. Family engagement requires ongoing opportunities for an individual to build and maintain meaningful relationships with family members, for example, frequent, unscheduled, and noncontingent telephone calls and visits between an individual and family members. Family engagement may also include enhancing or facilitating the development of the individual's relationship with other family members and supportive adults responsible for the individual's care and well-being upon discharge.

"Family engagement activity" means an intervention consisting of family psychoeducational training or coaching, transition planning with the family, family and independent living skills, and training on accessing community supports as identified in the plan of care. Family engagement activity does not include and is not the same as family therapy.

"Family therapy" means counseling services involving the individual's family and significant others to advance the treatment goals when (i) the counseling with the family member and significant others is for the direct benefit of the individual, (ii) the counseling is not aimed at addressing treatment needs of the individual's family or significant others, and (iii) the individual is present except when it is clinically appropriate for the individual to be absent in order to advance the individual's treatment goals. Family therapy shall be aligned with the goals of the individual's plan of care. All family therapy services furnished are for the direct benefit of the individual, in accordance with the individual's needs and treatment goals identified in the individual's plan of care, and for the purpose of assisting in the individual's recovery.

"FAPT" means the family assessment and planning team.

"ICD-10" means International Statistical Classification of Diseases and Related Health Problems, 10th Revision, published by the World Health Organization.

"Independent certification team" means a team that has competence in diagnosis and treatment of mental illness, preferably in child psychiatry; has knowledge of the individual's situation; and is composed of at least one physician and one LMHP. The independent certification team shall be a DMAS-authorized contractor with contractual or employment relationships with the required team members.

"Individual" means the child or adolescent younger than 21 years of age who is receiving therapeutic group home or PRTF services.

"Individual and group therapy" means the application of principles, standards, and methods of the counseling profession in (i) conducting assessments and diagnosis for the purpose of establishing treatment goals and objectives and (ii) planning, implementing, and evaluating plans of care using treatment interventions to facilitate human development and to identify and remediate mental, emotional, or behavioral disorders and associated distresses that interfere with mental health.

"Initial plan of care" or "IPOC" means a person centered plan of care established at admission that meets all of the requirements of this subsection and is specific to the individual's unique treatment needs and acuity levels as identified in the clinical assessment and information gathered during the referral process.

"Intervention" means scheduled therapeutic treatment such as individual or group psychoeducation; skills restoration; structured behavior support and training activities; recreation, art, and music therapies; community integration activities that promote or assist in the child's or adolescent's ability to acquire coping and functional or self-regulating behavior skills; day and overnight passes; and family engagement activities. Interventions shall not include individual, group, and family therapy; medical or dental appointments; or physician services, medication evaluation, or management provided by a licensed clinician or physician and shall not include school attendance. Interventions shall be provided in the therapeutic group home or PRTF and, when clinically necessary, in a community setting or as part of a therapeutic pass. All interventions and settings of the intervention shall be established in the plan of care.

"Plan of care" means the initial plan of care (IPOC) and the comprehensive individual plan of care (CIPOC).

"Physician" means an individual licensed to practice medicine or osteopathic medicine in Virginia, as defined in § 54.1-2900 of the Code of Virginia.

"Psychiatric residential treatment facility" or "PRTF" means the same as defined in 42 CFR 483.352 and is a 24-hour, supervised, clinically and medically necessary, out-of-home active treatment program designed to provide necessary support and address mental health, behavioral, substance abuse, cognitive, and training needs of an individual younger than 21 years of age in order to prevent or minimize the need for more intensive treatment.

"Recertification" means a certification for each applicant or recipient for whom therapeutic group home or PRTF services are needed.

"Room and board" means a component of the total daily cost for placement in a licensed PRTF. Residential room and board costs are maintenance costs associated with placement in a licensed PRTF and include a semi-private room, three meals and two snacks per day, and personal care items. Room and board costs are reimbursed only for PRTF settings.

"Services provided under arrangement" means services including physician and other health care services that are furnished to children while they are in a freestanding psychiatric hospital or PRTF that are billed by the arranged practitioners separately from the freestanding psychiatric hospital's or PRTF's per diem.

"Skills restoration" means a face-to-face service to assist individuals in the restoration of lost skills that are necessary to achieve the goals established in the beneficiary's plan of care. Services include assisting the individual in restoring self-management, interpersonal, communication, and problem solving skills through modeling, coaching, and cueing.

"Therapeutic group home" means a congregate residential service providing 24-hour supervision in a community-based home having eight or fewer residents.

"Therapeutic pass" means time at home or time with family consisting of partial or entire days of time away from the therapeutic group home or psychiatric residential treatment facility as clinically indicated in the plan of care and as paired with facility-based and community-based interventions to promote discharge planning, community integration, and family engagement activities. Therapeutic passes are not recreational but are a therapeutic component of the plan of care and are designed for the direct benefit of the individual.

"Treatment planning" means development of a person centered plan of care that is specific to the individual's unique treatment needs and acuity levels.

2. Therapeutic group home services pursuant to 42 CFR 440.130(d).

a. Therapeutic group home services for children and adolescents younger than 21 years of age shall provide therapeutic services to restore or maintain appropriate skills necessary to promote prosocial behavior and healthy living, including skills restoration, family living and health awareness, interpersonal skills, communication skills, and stress management skills. Therapeutic services shall also engage families and reflect family-driven practices that correlate to sustained positive outcomes post-discharge for youth and their family members. Each component of therapeutic group home services is provided for the direct benefit of the individual, in accordance with the individual's needs and treatment goals identified in the individual's plan of care, and for the purpose of assisting in the individual's recovery. These services are provided under 42 CFR 440.130(d) in accordance with the rehabilitative services benefit.

b. The plan of care shall include individualized activities, including a minimum of one intervention per 24-hour period in addition to individual, group, and family therapies. Daily interventions are not required when there is documentation to justify clinical or medical reasons for the individual's deviations from the plan of care. Interventions shall be documented on a progress note and shall be outlined in and aligned with the treatment goals and objectives in the IPOC and CIPOC. Any deviation from the plan of care shall be documented along with a clinical or medical justification for the deviation.

c. Medical necessity criteria for admission to a therapeutic group home. The following requirements for severity of need and intensity and quality of service shall be met to satisfy the medical necessity criteria for admission.

(1) Severity of need required for admission. All of the following criteria shall be met to satisfy the criteria for severity of need:

(a) The individual's behavioral health condition can only be safely and effectively treated in a 24-hour therapeutic milieu with onsite behavioral health therapy due to significant impairments in home, school, and community functioning caused by current mental health symptoms consistent with a DSM-5 diagnosis.

(b) The certificate of need must demonstrate all of the following: (i) ambulatory care resources (all available modalities of treatment less restrictive than inpatient treatment) available in the community do not meet the treatment needs of the individual; (ii) proper treatment of the individual's psychiatric condition requires services on an inpatient basis under the direction of a physician; and (iii) the services can reasonably be expected to improve the individual's condition or prevent further regression so that the services will no longer be needed.

(c) The state uniform assessment tool shall be completed. The assessment shall demonstrate at least two areas of moderate impairment in major life activities. A moderate impairment is defined as a major or persistent disruption in major life activities. A moderate impairment is evidenced by, but not limited to (i) frequent conflict in the family setting such as credible threats of physical harm, where "frequent" means more than expected for the individual's age and developmental level; (ii) frequent inability to accept age-appropriate direction and supervision from caretakers, from family members, at school, or in the home or community; (iii) severely limited involvement in social support, which means significant avoidance of appropriate social interaction, deterioration of existing relationships, or refusal to participate in therapeutic interventions; (iv) impaired ability to form a trusting relationship with at least one caretaker in the home, school, or community; (v) limited ability to consider the effect of one's inappropriate conduct on others; and (vi) interactions consistently involving conflict, which may include impulsive or abusive behaviors.

(d) Less restrictive community-based services have been given a fully adequate trial and were unsuccessful or, if not attempted, have been considered, but in either situation were determined to be unable to meet the individual's treatment needs and the reasons for that are discussed in the certificate of need.

(e) The individual's symptoms, or the need for treatment in a 24 hours a day, seven days a week level of care (LOC), are not primarily due to any of the following: (i) intellectual disability, developmental disability, or autistic spectrum disorder; (ii) organic mental disorders, traumatic brain injury, or other medical condition; or (iii) the individual does not require a more intensive level of care.

(f) The individual does not require primary medical or surgical treatment.

(2) Intensity and quality of service necessary for admission. All of the following criteria shall be met to satisfy the criteria for intensity and quality of service:

(a) The therapeutic group home service has been prescribed by a psychiatrist, psychologist, or other LMHP who has documented that a residential setting is the least restrictive clinically appropriate service that can meet the specifically identified treatment needs of the individual.

(b) The therapeutic group home is not being used for clinically inappropriate reasons, including (i) an alternative to incarceration or preventative detention; (ii) an alternative to a parent's, guardian's, or agency's capacity to provide a place of residence for the individual; or (iii) a treatment intervention when other less restrictive alternatives are available.

(c) The individual's treatment goals are included in the service specific provider intake and include behaviorally defined objectives that require and can reasonably be achieved within a therapeutic group home setting.

(d) The therapeutic group home is required to coordinate with the individual's community resources, including schools and FAPT as appropriate, with the goal of transitioning the individual out of the program to a less restrictive care setting for continued, sometimes intensive, services as soon as possible and appropriate.

(e) The therapeutic group home program must incorporate nationally established, evidence-based, trauma-informed services and supports that promote recovery and resiliency.

(f) Discharge planning begins upon admission, with concrete plans for the individual to transition back into the community beginning within the first week of admission, with clear action steps and target dates outlined in the plan of care.

(3) Continued stay criteria. The following criteria shall be met in order to satisfy the criteria for continued stay:

(a) All of the admission guidelines continue to be met and continue to be supported by the written clinical documentation.

(b) The individual shall meet one of the following criteria: (i) the desired outcome or level of functioning has not been restored or improved in the timeframe outlined in the individual's plan of care or the individual continues to be at risk for relapse based on history or (ii) the nature of the functional gains is tenuous and use of less intensive services will not achieve stabilization.

(c) The individual shall meet one of the following criteria: (i) the individual has achieved initial CIPOC goals, but additional goals are indicated that cannot be met at a lower level of care; (ii) the individual is making satisfactory progress toward meeting goals but has not attained plan of care goals, and the goals cannot be addressed at a lower level of care; (iii) the individual is not making progress, and the plan of care has been modified to identify more effective interventions; or (iv) there are current indications that the individual requires this level of treatment to maintain level of functioning as evidenced by failure to achieve goals identified for therapeutic visits or stays in a nontreatment residential setting or in a lower level of residential treatment.

(d) There is a written, up-to-date discharge plan that (i) identifies the custodial parent or custodial caregiver at discharge; (ii) identifies the school the individual will attend at discharge, if applicable; (iii) includes individualized education program (IEP) and FAPT recommendations, if necessary; (iv) outlines the aftercare treatment plan (discharge to another residential level of care is not an acceptable discharge goal); and (v) lists barriers to community reintegration and progress made on resolving these barriers since last review.

(e) The active plan of care includes structure for combined treatment services and activities to ensure the attainment of therapeutic mental health goals as identified in the plan of care. Combined treatment services reinforce and practice skills learned in individual, group, and family therapy such as community integration skills, coping skills, family living and health awareness skills, interpersonal skills, and stress management skills. Combined treatment services may occur in group settings, in one-on-one interactions, or in the home setting during a therapeutic pass. In addition to the combined treatment services, the child or adolescent must also receive psychotherapy services, care coordination, family-based discharge planning, and locality-based transition activities. The child or adolescent shall receive intensive family interventions at least twice per month, although it is recommended that the intensive family interventions be provided at a frequency of one family therapy session per week. Family involvement begins immediately upon admission to therapeutic group home. If the minimum requirement cannot be met, the reasons must be reported, and continued efforts to involve family members must also be documented. Other family members or supportive adults may be included as indicated in the plan of care.

(f) Less restrictive treatment options have been considered but cannot yet meet the individual's treatment needs. There is sufficient current clinical documentation or evidence to show that therapeutic group home level of care continues to be the least restrictive level of care that can meet the individual's mental health treatment needs.

(4) Discharge shall occur if any of the following applies: (i) the level of functioning has improved with respect to the goals outlined in the plan of care, and the individual can reasonably be expected to maintain these gains at a lower level of treatment; (ii) the individual no longer benefits from service as evidenced by absence of progress toward plan of care goals for a period of 60 days; or (iii) other less intensive services may achieve stabilization.

d. The following clinical activities shall be required for each therapeutic group home resident:

(1) An assessment be performed by an LMHP, LMHP-R, LMHP-RP, or LMHP-S.

(2) A face-to-face evaluation shall be performed by an LMHP, LMHP-R, LMHP-RP, or LMHP-S within 30 calendar days prior to admission with a documented DSM-5 or ICD-10 diagnosis.

(3) A certificate of need shall be completed by an independent certification team according to the requirements of subdivision D 4 of this section. Recertification shall occur at least every 60 calendar days by an LMHP, LMHP-R, LMHP-RP, or LMHP-S acting within his scope of practice.

(4) An IPOC that is specific to the individual's unique treatment needs and acuity levels. The IPOC shall be completed on the day of admission by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be signed by the LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual and a family member or legally authorized representative. The IPOC shall include all of the following:

(a) Individual and family strengths and personal traits that would facilitate recovery and opportunities to develop motivational strategies and treatment alliance;

(b) Diagnoses, symptoms, complaints, and complications indicating the need for admission;

(c) A description of the functional level of the individual;

(d) Treatment objectives with short-term and long-term goals;

(e) Orders for medications, psychiatric, medical, dental, and any special health care needs whether or not provided in the facilities, treatments, restorative and rehabilitative services, activities, therapies, therapeutic passes, social services, community integration, diet, and special procedures recommended for the health and safety of the individual;

(f) Plans for continuing care, including review and modification to the plan of care; and

(g) Plans for discharge.

(5) A CIPOC shall be completed no later than 14 calendar days after admission. The CIPOC shall meet all of the following criteria:

(a) Be based on a diagnostic evaluation that includes examination of the medical, psychological, social, behavioral, and developmental aspects of the individual's situation and shall reflect the need for therapeutic group home care;

(b) Be based on input from school, home, other health care providers, FAPT if necessary, the individual, and the family or legal guardian;

(c) Shall state treatment objectives that include measurable short-term and long-term goals and objectives, with target dates for achievement;

(d) Prescribe an integrated program of therapies, activities, and experiences designed to meet the treatment objectives related to the diagnosis; and

(e) Include a comprehensive discharge plan with necessary, clinically appropriate community services to ensure continuity of care upon discharge with the individual's family, school, and community.

(6) The CIPOC shall be reviewed, signed, and dated every 30 calendar days by the LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual or a family member or primary caregiver. Updates shall be signed and dated by the LMHP, LMHP-R, LMHP-RP, or LMHP-S and the individual or a family member or legally authorized representative. The review shall include all of the following:

(a) The individual's response to the services provided;

(b) Recommended changes in the plan as indicated by the individual's overall response to the CIPOC interventions; and

(c) Determinations regarding whether the services being provided continue to be required.

(7) Crisis management, clinical assessment, and individualized therapy shall be provided to address both behavioral health and substance use disorder needs as indicated in the plan of care to address intermittent crises and challenges within the therapeutic group home setting or community settings as defined in the plan of care and to avoid a higher level of care.

(8) Care coordination shall be provided with medical, educational, and other behavioral health providers and other entities involved in the care and discharge planning for the individual as included in the plan of care.

(9) Weekly individual therapy shall be provided in the therapeutic group home, or other settings as appropriate for the individual's needs, by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, which shall be documented in progress notes in accordance with the requirements in 12VAC30-60-61.

(10) Weekly (or more frequently if clinically indicated) group therapy shall be provided by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, which shall be documented in progress notes in accordance with the requirements in 12VAC30-60-61 and as planned and documented in the plan of care.

(11) Family treatment shall be provided as clinically indicated, provided by an LMHP, LMHP-R, LMHP-RP, or LMHP-S, and documented in progress notes in accordance with the requirements in 12VAC30-60-61 and as planned and documented in the plan of care.

(12) Family engagement activities shall be provided in addition to family therapy or counseling. Family engagement activities shall be provided at least weekly as outlined in the plan of care, and daily communication with the family or legally authorized representative shall be part of the family engagement strategies in the plan of care. For each service authorization period when family engagement is not possible, the therapeutic group home shall identify and document the specific barriers to the individual's engagement with the individual's family or legally authorized representatives. The therapeutic group home shall document on a weekly basis the reasons why family engagement is not occurring as required. The therapeutic group home shall document alternative family engagement strategies to be used as part of the interventions in the plan of care and request approval of the revised plan of care by DMAS. When family engagement is not possible, the therapeutic group home shall collaborate with DMAS on a weekly basis to develop individualized family engagement strategies and document the revised strategies in the plan of care.

(13) Therapeutic passes shall be provided as clinically indicated in the plan of care and as paired with facility-based and community-based interventions to promote discharge planning, community integration, and family engagement activities.

(a) The provider shall document how the family was prepared for the therapeutic pass to include a review of the plan of care goals and objectives being addressed by the planned interventions and the safety and crisis plan in effect during the therapeutic pass.

(b) If a facility staff member does not accompany the individual on the therapeutic pass and the therapeutic pass exceeds 24 hours, the provider shall make daily contacts with the family and be available 24 hours per day to address concerns, incidents, or crises that may arise during the pass.

(c) Contact with the family shall occur within seven calendar days of the therapeutic pass to discuss the accomplishments and challenges of the therapeutic pass along with an update on progress toward plan of care goals and any necessary changes to the plan of care.

(d) Twenty-four therapeutic passes shall be permitted per individual, per admission, without authorization as approved by the treating LMHP and documented in the plan of care. Additional therapeutic passes shall require service authorization. Any unauthorized therapeutic passes shall result in retraction for those days of service.

(14) Discharge planning shall begin at admission and continue throughout the individual's stay at the therapeutic group home. The family or guardian, the community services board (CSB), the family assessment and planning team (FAPT) case manager, and the DMAS contracted care manager shall be involved in treatment planning and shall identify the anticipated needs of the individual and family upon discharge and available services in the community. Prior to discharge, the therapeutic group home shall submit an active and viable discharge plan to the DMAS contractor for review. Once the DMAS contractor approves the discharge plan, the provider shall begin actively collaborating with the family or legally authorized representative and the treatment team to identify behavioral health and medical providers and schedule appointments for service-specific provider intakes as needed. The therapeutic group home shall request permission from the parent or legally authorized representative to share treatment information with these providers and shall share information pursuant to a valid release. The therapeutic group home shall request information from post-discharge providers to establish that the planning of pending services and transition planning activities has begun, shall establish that the individual has been enrolled in school, and shall provide individualized education program recommendations to the school if necessary. The therapeutic group home shall inform the DMAS contractor of all scheduled appointments within 30 calendar days of discharge and shall notify the DMAS contractor within one business day of the individual's discharge date from the therapeutic group home.

(15) Room and board costs shall not be reimbursed. Facilities that only provide independent living services or nonclinical services that do not meet the requirements of this subsection are not eligible for reimbursement.

(16) Therapeutic group home services providers shall be licensed by the Department of Behavioral Health and Developmental Services (DBHDS) under the Regulations for Children's Residential Facilities (12VAC35-46).

(17) Individuals shall be discharged from this service when treatment goals are met or other less intensive services may achieve stabilization.

(18) Services that are based upon incomplete, missing, or outdated service-specific provider intakes or plans of care shall be denied reimbursement.

(19) Therapeutic group home services may only be rendered by and within the scope of practice of an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH as defined in 12VAC35-105-20.

(20) The psychiatric residential treatment facility or therapeutic group home shall coordinate necessary services and discharge planning with other providers as medically and clinically necessary. Documentation of this care coordination shall be maintained by the facility or group home in the individual's record. The documentation shall include who was contacted, when the contact occurred, what information was transmitted, and recommended next steps.

(21) Failure to perform any of the items described in this subsection shall result in a retraction of the per diem for each day of noncompliance.

3. PRTF services are a 24-hour, supervised, clinically and medically necessary out-of-home program designed to provide necessary support and address mental health, behavioral, substance use, cognitive, or other treatment needs of an individual younger than 21 years of age in order to prevent or minimize the need for more inpatient treatment. Active treatment and comprehensive discharge planning shall begin prior to admission. In order to be covered for individuals younger than 21 years of age, these services shall (i) meet DMAS-approved psychiatric medical necessity criteria or be approved as an EPSDT service based upon a diagnosis made by an LMHP, LMHP-R, LMHP-RP, or LMHP-S who is practicing within the scope of his license and (ii) be reflected in provider records and on the provider's claims for services by recognized diagnosis codes that support and are consistent with the requested professional services.

a. PRTF services shall be covered for the purpose of diagnosis and treatment of mental health and behavioral disorders when such services are rendered by a psychiatric facility that is not a hospital and 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 by any other accrediting organization with comparable standards that is recognized by the state.

b. Providers of PRTF services shall be licensed by DBHDS.

c. PRTF services are reimbursable only when the treatment program is fully in compliance with (i) 42 CFR Part 441 Subpart D, specifically 42 CFR 441.151 (a) and (b) and 42 CFR 441.152 through 42 CFR 441.156 and (ii) the Conditions of Participation in 42 CFR Part 483 Subpart G. Each admission must be service authorized, and the treatment must meet DMAS requirements for clinical necessity.

d. The PRTF benefit for individuals younger than 21 years of age shall include services defined at 42 CFR 440.160 that are provided under the direction of a physician pursuant to a certification of medical necessity and plan of care developed by an interdisciplinary team of professionals and shall involve active treatment designed to achieve the child's discharge from PRTF services at the earliest possible time. The PRTF services benefit shall include services provided under arrangement furnished by Medicaid enrolled providers other than the PRTF, as long as the PRTF (i) arranges for and oversees the provision of all services, (ii) maintains all medical records of care furnished to the individual, and (iii) ensures that the services are furnished under the direction of a physician. Services provided under arrangement shall be documented by a written referral from the PRTF. For purposes of pharmacy services, a prescription ordered by an employee or contractor of the facility who is licensed to prescribe drugs shall be considered the referral.

e. PRTFs, as defined at 42 CFR 483.352, shall arrange for, maintain records of, and ensure that physicians order these services: (i) medical and psychological services, including those furnished by physicians, licensed mental health professionals, and other licensed or certified health professionals (i.e., nutritionists, podiatrists, respiratory therapists, and substance abuse treatment practitioners); (ii) pharmacy services; (iii) outpatient hospital services; (iv) physical therapy, occupational therapy, and therapy for individuals with speech, hearing, or language disorders; (v) laboratory and radiology services; (vi) durable medical equipment; (vii) vision services; (viii) dental, oral surgery, and orthodontic services; (ix) nonemergency transportation services; and (x) emergency services.

f. PRTF services shall include assessment and reassessment; room and board; daily supervision; combined treatment services; individual, family, and group therapy; care coordination; interventions; general or special education; medical treatment (including medication, coordination of necessary medical services, and 24-hour onsite nursing); specialty services; and discharge planning that meets the medical and clinical needs of the individual.

g. Medical necessity criteria for admission to a PRTF. The following requirements for severity of need and intensity and quality of service shall be met to satisfy the medical necessity criteria for admission:

(1) Severity of need required for admission. The following criteria shall be met to satisfy the criteria for severity of need:

(a) There is clinical evidence that the individual has a DSM-5 disorder that is amenable to active psychiatric treatment.

(b) There is a high degree of potential of the condition leading to acute psychiatric hospitalization in the absence of residential treatment.

(c) Either (i) there is clinical evidence that the individual would be a risk to self or others if the individual were not in a PRTF or (ii) as a result of the individual's mental disorder, there is an inability for the individual to adequately care for his own physical needs, and caretakers, guardians, or family members are unable to safely fulfill these needs, representing potential serious harm to self.

(d) The individual requires supervision seven days per week, 24 hours per day to develop skills necessary for daily living; to assist with planning and arranging access to a range of educational, therapeutic, and aftercare services; and to develop the adaptive and functional behavior that will allow the individual to live outside of a PRTF setting.

(e) The individual's current living environment does not provide the support and access to therapeutic services needed.

(f) The individual is medically stable and does not require the 24-hour medical or nursing monitoring or procedures provided in a hospital level of care.

(2) Intensity and quality of service necessary for admission. The following criteria shall be met to satisfy the criteria for intensity and quality of service:

(a) The evaluation and assignment of a DSM-5 diagnosis must result from a face-to-face psychiatric evaluation.

(b) The program provides supervision seven days per week, 24 hours per day to assist with the development of skills necessary for daily living; to assist with planning and arranging access to a range of educational, therapeutic, and aftercare services; and to assist with the development of the adaptive and functional behavior that will allow the individual to live outside of a PRTF setting.

(c) An individualized plan of active psychiatric treatment and residential living support is provided in a timely manner. This treatment must be medically monitored, with 24-hour medical availability and 24-hour nursing services availability. This plan includes (i) at least once-a-week psychiatric reassessments; (ii) intensive family or support system involvement occurring at least once per week or valid reasons identified as to why such a plan is not clinically appropriate or feasible; (iii) psychotropic medications, when used, are to be used with specific target symptoms identified; (iv) evaluation for current medical problems; (v) evaluation for concomitant substance use issues; and (vi) linkage or coordination with the individual's community resources, including the local school division and FAPT case manager, as appropriate, with the goal of returning the individual to his regular social environment as soon as possible, unless contraindicated. School contact should address an individualized educational plan as appropriate.

(d) A urine drug screen is considered at the time of admission, when progress is not occurring, when substance misuse is suspected, or when substance use and medications may have a potential adverse interaction. After a positive screen, additional random screens are considered and referral to a substance use disorder provider is considered.

(3) Criteria for continued stay. The following criteria shall be met to satisfy the criteria for continued stay:

(a) Despite reasonable therapeutic efforts, clinical evidence indicates at least one of the following: (i) the persistence of problems that caused the admission to a degree that continues to meet the admission criteria (both severity of need and intensity of service needs); (ii) the emergence of additional problems that meet the admission criteria (both severity of need and intensity of service needs); or (iii) that disposition planning or attempts at therapeutic reentry into the community have resulted in or would result in exacerbation of the psychiatric illness to the degree that would necessitate continued PRTF treatment. Subjective opinions without objective clinical information or evidence are not sufficient to meet severity of need based on justifying the expectation that there would be a decompensation.

(b) There is evidence of objective, measurable, and time-limited therapeutic clinical goals that must be met before the individual can return to a new or previous living situation. There is evidence that attempts are being made to secure timely access to treatment resources and housing in anticipation of discharge, with alternative housing contingency plans also being addressed.

(c) There is evidence that the plan of care is focused on the alleviation of psychiatric symptoms and precipitating psychosocial stressors that are interfering with the individual's ability to return to a less-intensive level of care.

(d) The current or revised plan of care can be reasonably expected to bring about significant improvement in the problems meeting the criteria in subdivision 3 c (3) (a) of this subsection, and this is documented in weekly progress notes written and signed by the provider.

(e) There is evidence of intensive family or support system involvement occurring at least once per week, unless there is an identified valid reason why it is not clinically appropriate or feasible.

(f) A discharge plan is formulated that is directly linked to the behaviors or symptoms that resulted in admission and begins to identify appropriate post-PRTF resources including the local school division and FAPT case manager as appropriate.

(g) All applicable elements in admission-intensity and quality of service criteria are applied as related to assessment and treatment if clinically relevant and appropriate.

(4) Discharge criteria. Discharge shall occur if any of the following applies: (i) the level of functioning has improved with respect to the goals outlined in the plan of care, and the individual can reasonably be expected to maintain these gains at a lower level of treatment; (ii) the individual no longer benefits from service as evidenced by absence of progress toward plan of care goals for a period of 30 days; or (iii) other less intensive services may achieve stabilization.

h. The following clinical activities shall be required for each PRTF resident:

(1) A face-to-face assessment shall be performed by an LMHP, LMHP-R, LMHP-RS, or LMHP-S within 30 calendar days prior to admission and weekly thereafter and shall document a DSM-5 or ICD-10 diagnosis.

(2) A certificate of need shall be completed by an independent certification team according to the requirements of 12VAC30-50-130 D 4. Recertification shall occur at least every 30 calendar days by a physician acting within his scope of practice.

(3) The initial plan of care (IPOC) shall be completed within 24 hours of admission by the treatment team. The IPOC shall include:

(a) Individual and family strengths and personal traits that would facilitate recovery and opportunities to develop motivational strategies and treatment alliance;

(b) Diagnoses, symptoms, complaints, and complications indicating the need for admission;

(c) A description of the functional level of the individual;

(d) Treatment objectives with short-term and long-term goals;

(e) Any orders for medications, psychiatric, medical, dental, and any special health care needs, whether or not provided in the facility; education or special education; treatments; interventions; and restorative and rehabilitative services, activities, therapies, social services, diet, and special procedures recommended for the health and safety of the individual;

(f) Plans for continuing care, including review and modification to the plan of care;

(g) Plans for discharge; and

(h) Signature and date by the individual, parent, or legally authorized representative, a physician, and treatment team members.

(4) The CIPOC shall be completed and signed no later than 14 calendar days after admission by the treatment team. The PRTF shall request authorizations from families to release confidential information to collect information from medical and behavioral health treatment providers, schools, FAPT, social services, court services, and other relevant parties. This information shall be used when considering changes and updating the CIPOC. The CIPOC shall meet all of the following criteria:

(a) Be based on a diagnostic evaluation that includes examination of the medical, psychological, social, behavioral, and developmental aspects of the individual's situation and must reflect the need for PRTF care;

(b) Be developed by an interdisciplinary team of physicians and other personnel specified in subdivision 3 d 4 of this subsection who are employed by or provide services to the individual in the facility in consultation with the individual, family member, or legally authorized representative, or appropriate others into whose care the individual will be released after discharge;

(c) Shall state treatment objectives that shall include measurable, evidence-based, and short-term and long-term goals and objectives; family engagement activities; and the design of community-based aftercare with target dates for achievement;

(d) Prescribe an integrated program of therapies, interventions, activities, and experiences designed to meet the treatment objectives related to the individual and family treatment needs; and

(e) Describe comprehensive transition plans and coordination of current care and post-discharge plans with related community services to ensure continuity of care upon discharge with the recipient's family, school, and community.

(5) The CIPOC shall be reviewed every 30 calendar days by the team specified in subdivision 3 d 4 of this subsection to determine that services being provided are or were required from a PRTF and to recommend changes in the plan as indicated by the individual's overall adjustment during the time away from home. The CIPOC shall include the signature and date from the individual, parent, or legally authorized representative, a physician, and treatment team members.

(6) Individual therapy shall be provided three times per week (or more frequently based upon the individual's needs) provided by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the plan of care and progress notes in accordance with the requirements in this subsection and 12VAC30-60-61.

(7) Group therapy shall be provided as clinically indicated by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the plan of care and progress notes in accordance with the requirements in this subsection.

(8) Family therapy shall be provided as clinically indicated by an LMHP, LMHP-R, LMHP-RP, or LMHP-S and shall be documented in the plan of care and progress notes in accordance with the individual and family or legally authorized representative's goals and the requirements in this subsection.

(9) Family engagement shall be provided in addition to family therapy or counseling. Family engagement shall be provided at least weekly as outlined in the plan of care and daily communication with the treatment team representative and the treatment team representative and the family or legally authorized representative shall be part of the family engagement strategies in the plan of care. For each service authorization period when family engagement is not possible, the PRTF shall identify and document the specific barriers to the individual's engagement with his family or legally authorized representatives. The PRTF shall document on a weekly basis the reasons that family engagement is not occurring as required. The PRTF shall document alternate family engagement strategies to be used as part of the interventions in the plan of care and request approval of the revised plan of care by DMAS. When family engagement is not possible, the PRTF shall collaborate with DMAS on a weekly basis to develop individualized family engagement strategies and document the revised strategies in the plan of care.

(10) Three interventions shall be provided per 24-hour period including nights and weekends. Family engagement activities are considered to be an intervention and shall occur based on the treatment and visitation goals and scheduling needs of the family or legally authorized representative. Interventions shall be documented on a progress note and shall be outlined in and aligned with the treatment goals and objectives in the plan of care. Any deviation from the plan of care shall be documented along with a clinical or medical justification for the deviation based on the needs of the individual.

(11) Therapeutic passes shall be provided as clinically indicated in the plan of care and as paired with community-based and facility-based interventions to promote discharge planning, community integration, and family engagement. Therapeutic passes include activities as listed in subdivision 2 d (13) of this section. Twenty-four therapeutic passes shall be permitted per individual, per admission, without authorization as approved by the treating physician and documented in the plan of care. Additional therapeutic passes shall require service authorization from DMAS. Any unauthorized therapeutic passes not approved by the provider or DMAS shall result in retraction for those days of service.

(12) Discharge planning shall begin at admission and continue throughout the individual's placement at the PRTF. The parent or legally authorized representative, the community services board (CSB), the family assessment planning team (FAPT) case manager, if appropriate, and the DMAS contracted care manager shall be involved in treatment planning and shall identify the anticipated needs of the individual and family upon discharge and identify the available services in the community. Prior to discharge, the PRTF shall submit an active discharge plan to the DMAS contractor for review. Once the DMAS contractor approves the discharge plan, the provider shall begin collaborating with the parent or legally authorized representative and the treatment team to identify behavioral health and medical providers and schedule appointments for service-specific provider intakes as needed. The PRTF shall request written permission from the parent or legally authorized representative to share treatment information with these providers and shall share information pursuant to a valid release. The PRTF shall request information from post-discharge providers to establish that the planning of services and activities has begun, shall establish that the individual has been enrolled in school, and shall provide individualized education program recommendations to the school if necessary. The PRTF shall inform the DMAS contractor of all scheduled appointments within 30 calendar days of discharge and shall notify the DMAS contractor within one business day of the individual's discharge date from the PRTF.

(13) Failure to perform any of the items as described in subdivisions 3 h (1) through 3 h (12) of this subsection up until the discharge of the individual shall result in a retraction of the per diem and all other contracted and coordinated service payments for each day of noncompliance.

i. The team developing the CIPOC shall meet the following requirements:

(1) At least one member of the team must have expertise in pediatric behavioral health. Based on education and experience, preferably including competence in child or adolescent psychiatry, the team must be capable of all of the following: assessing the individual's immediate and long-range therapeutic needs, developmental priorities, and personal strengths and liabilities; assessing the potential resources of the individual's family or legally authorized representative; setting treatment objectives; and prescribing therapeutic modalities to achieve the CIPOC's objectives.

(2) The team shall include one of the following:

(a) A board-eligible or board-certified psychiatrist;

(b) A licensed clinical psychologist and a physician licensed to practice medicine or osteopathy; or

(c) A physician licensed to practice medicine or osteopathy with specialized training and experience in the diagnosis and treatment of mental diseases and a licensed clinical psychologist.

(3) The team shall also include one of the following: an LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP.

4. Requirements for independent certification teams applicable to both therapeutic group homes and PRTFs:

a. The independent certification team shall certify the need for PRTF or therapeutic group home services and issue a certificate of need document within the process and timeliness standards as approved by DMAS under contractual agreement with the DMAS contractor.

b. The independent certification team shall be approved by DMAS through a memorandum of understanding with a locality or be approved under contractual agreement with the DMAS contractor. The team shall initiate and coordinate referral to the family assessment and planning team (FAPT) as defined in §§ 2.2-5207 and 2.2-5208 of the Code of Virginia to facilitate care coordination and for consideration of educational coverage and other supports not covered by DMAS.

c. The independent certification team shall assess the individual's and family's strengths and needs in addition to diagnoses, behaviors, and symptoms that indicate the need for behavioral health treatment and also consider whether local resources and community-based care are sufficient to meet the individual's treatment needs, as presented within the previous 30 calendar days, within the least restrictive environment.

d. The LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP, as part of the independent certification team, shall meet with an individual and the individual's parent or legally authorized representative within two business days from a request to assess the individual's needs and begin the process to certify the need for an out-of-home placement.

e. The independent certification team shall meet with an individual and the individual's parent or legally authorized representative within 10 business days from a request to certify the need for an out-of-home placement.

f. The independent certification team shall assess the treatment needs of the individual to issue a certificate of need (CON) for the most appropriate medically necessary services. The certification shall include the dated signature and credentials for each of the team members who rendered the certification. Referring or treatment providers shall not actively participate during the certification process but may provide supporting clinical documentation to the certification team.

g. The CON shall be effective for 30 calendar days prior to admission.

h. The independent certification team shall provide the completed CON to the facility within one calendar day of completing the CON.

i. The individual and the individual's parent or legally authorized representative shall have the right to freedom of choice of service providers.

j. If the individual or the individual's parent or legally authorized representative disagrees with the independent certification team's recommendation, the parent or legally authorized representative may appeal the recommendation in accordance with 12VAC30-110.

k. If the LMHP, as part of the independent certification team, determines that the individual is in immediate need of treatment, the LMHP shall refer the individual to an appropriate Medicaid-enrolled crisis intervention provider, crisis stabilization provider, or inpatient psychiatric provider in accordance with 12VAC30-50-226 or shall refer the individual for emergency admission to a PRTF or therapeutic group home under subdivision 4 m of this subsection and shall also alert the individual's managed care organization.

l. For individuals who are already eligible for Medicaid at the time of admission, the independent certification team shall be a DMAS-authorized contractor with competence in the diagnosis and treatment of mental illness, preferably in child psychiatry, and have knowledge of the individual's situation and service availability in the individual's local service area. The team shall be composed of at least one physician and one LMHP, including LMHP-S, LMHP-R, and LMHP-RP. An individual's parent or legally authorized representative shall be included in the certification process.

m. For emergency admissions, an assessment must be made by the team responsible for the comprehensive individual plan of care (CIPOC). Reimbursement shall only occur when a certificate of need is issued by the team responsible for the CIPOC within 14 calendar days after admission. The certification shall cover any period of time after admission and before claims are made for reimbursement by Medicaid. After processing an emergency admission, the therapeutic group home, PRTF, or institution for mental diseases (IMD) shall notify the DMAS contractor within five calendar days of the individual's status as being under the care of the facility.

n. For all individuals who apply and become eligible for Medicaid while an inpatient in a facility or program, the certification team shall refer the case to the DMAS contractor for referral to the local FAPT to facilitate care coordination and consideration of educational coverage and other supports not covered by DMAS.

o. For individuals who apply and become eligible for Medicaid while an inpatient in the facility or program, the certification shall be made by the team responsible for the CIPOC and shall cover any period of time before the application for Medicaid eligibility for which claims are made for reimbursement by Medicaid. Upon the individual's enrollment into the Medicaid program, the therapeutic group home, PRTF, or IMD shall notify the DMAS contractor of the individual's status as being under the care of the facility within five calendar days of the individual becoming eligible for Medicaid benefits.

5. Service authorization requirements applicable to both therapeutic group homes and PRTFs:

a. Authorization shall be required and shall be conducted by DMAS using medical necessity criteria specified in this subsection.

b. An individual shall have a valid psychiatric diagnosis and meet the medical necessity criteria as defined in this subsection to satisfy the criteria for admission. The diagnosis shall be current, as documented within the past 12 months. If a current diagnosis is not available, the individual will require a mental health evaluation prior to admission by an LMHP affiliated with the independent certification team to establish a diagnosis and recommend and coordinate referral to the available treatment options.

c. At authorization, an initial length of stay shall be agreed upon by the individual and parent or legally authorized representative with the treating provider, and the treating provider shall be responsible for evaluating and documenting evidence of treatment progress, assessing the need for ongoing out-of-home placement, and obtaining authorization for continued stay.

d. Information that is required to obtain authorization for these services shall include:

(1) A completed state-designated uniform assessment instrument approved by DMAS;

(2) A certificate of need completed by an independent certification team specifying all of the following:

(a) The ambulatory care and Medicaid or FAPT-funded services available in the community do not meet the specific treatment needs of the individual;

(b) Alternative community-based care was not successful;

(c) Proper treatment of the individual's psychiatric condition requires services in a 24-hour supervised setting under the direction of a physician; and

(d) The services can reasonably be expected to improve the individual's condition or prevent further regression so that a more intensive level of care will not be needed;

(3) Diagnosis as defined in the DSM-5 and based on (i) an evaluation by a psychiatrist or LMHP that has been completed within 30 calendar days of admission or (ii) a diagnosis confirmed in writing by an LMHP after review of a previous evaluation completed within one year of admission;

(4) A description of the individual's behavior during the seven calendar days immediately prior to admission;

(5) A description of alternate placements and community mental health and rehabilitation services and traditional behavioral health services pursued and attempted and the outcomes of each service;

(6) The individual's level of functioning and clinical stability;

(7) The level of family involvement and supports available; and

(8) The initial plan of care (IPOC).

6. Continued stay criteria requirements applicable to both therapeutic group homes and PRTFs. For a continued stay authorization or a reauthorization to occur, the individual shall meet the medical necessity criteria as defined in this subsection to satisfy the criteria for continuing care. The length of the authorized stay shall be determined by DMAS. A current plan of care and a current (within 30 calendar days) summary of progress related to the goals and objectives of the plan of care shall be submitted to DMAS for continuation of the service. The service provider shall also submit:

a. A state uniform assessment instrument, completed no more than 30 business days prior to the date of submission;

b. Documentation that the required services have been provided as defined in the plan of care;

c. Current (within the last 14 calendar days) information on progress related to the achievement of all treatment and discharge-related goals; and

d. A description of the individual's continued impairment and treatment needs, problem behaviors, family engagement activities, community-based discharge planning and care coordination, and need for a residential level of care.

7. EPSDT services requirements applicable to therapeutic group homes and PRTFs. Service limits may be exceeded based on medical necessity for individuals eligible for EPSDT. EPSDT services may involve service modalities not available to other individuals, such as applied behavioral analysis and neuro-rehabilitative services. Individualized services to address specific clinical needs identified in an EPSDT screening shall require authorization by a DMAS contractor. In unique EPSDT cases, DMAS may authorize specialized services beyond the standard therapeutic group home or PRTF medical necessity criteria and program requirements, as medically and clinically indicated to ensure the most appropriate treatment is available to each individual. Treating service providers authorized to deliver medically necessary EPSDT services in therapeutic group homes and PRTFs on behalf of a Medicaid-enrolled individual shall adhere to the individualized interventions and evidence-based progress measurement criteria described in the plan of care and approved for reimbursement by DMAS. All documentation, independent certification team, family engagement activity, therapeutic pass, and discharge planning requirements shall apply to cases approved as EPSDT PRTF or therapeutic group home service.

8. Inpatient psychiatric services shall be covered for individuals younger than 21 years of age for medically necessary stays in inpatient psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2) for the purpose of diagnosis and treatment of mental health and behavioral disorders identified under EPSDT when such services meet the requirements set forth in subdivision 7 of this subsection.

a. Inpatient psychiatric services shall be provided under the direction of a physician.

b. Inpatient psychiatric services shall be provided by (i) a psychiatric hospital that undergoes a state survey to determine whether the hospital meets the requirements for participation in Medicare as a psychiatric hospital as specified in 42 CFR 482.60 or is accredited by a national organization whose psychiatric hospital accrediting program has been approved by the Centers for Medicare and Medicaid Services (CMS); or (ii) a hospital with an inpatient psychiatric program that undergoes a state survey to determine whether the hospital meets the requirements for participation in Medicare as a hospital, as specified in 42 CFR part 482 or is accredited by a national accrediting organization whose hospital accrediting program has been approved by CMS.

c. Inpatient psychiatric 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.

d. PRTF services are reimbursable only when the treatment program is fully in compliance with (i) 42 CFR Part 441 Subpart D, specifically 42 CFR 441.151(a) and 42 CFR 441.151 (b) and 42 CFR 441.152 through 42 CFR 441.156 and (ii) the Conditions of Participation in 42 CFR Part 483 Subpart G. Each admission must be service authorized and the treatment must meet DMAS requirements for clinical necessity.

e. The inpatient psychiatric benefit for individuals younger than 21 years of age shall include services that are provided pursuant to a certification of medical necessity and plan of care developed by an interdisciplinary team of professionals and shall involve active treatment designed to achieve the individual's discharge from inpatient status at the earliest possible time. The inpatient psychiatric benefit shall include services provided under arrangement furnished by Medicaid enrolled providers other than the inpatient psychiatric facility, as long as the inpatient psychiatric facility (i) arranges for and oversees the provision of all services, (ii) maintains all medical records of care furnished to the individual, and (iii) ensures that the services are furnished under the direction of a physician. Services provided under arrangement shall be documented by a written referral from the inpatient psychiatric facility. For purposes of pharmacy services, a prescription ordered by an employee or contractor of the inpatient psychiatric facility who is licensed to prescribe drugs shall be considered the referral.

f. State freestanding psychiatric hospitals shall arrange for, maintain records of, and ensure that physicians order pharmacy services and emergency services. Private freestanding psychiatric hospitals shall arrange for, maintain records of, and ensure that physicians order the following services: (i) medical and psychological services including those furnished by physicians, licensed mental health professionals, and other licensed or certified health professionals (i.e., nutritionists, podiatrists, respiratory therapists, and substance abuse treatment practitioners); (ii) outpatient hospital services; (iii) physical therapy, occupational therapy, and therapy for individuals with speech, hearing, or language disorders; (iv) laboratory and radiology services; (v) vision services; (vi) dental, oral surgery, and orthodontic services; (vii) nonemergency transportation services; and (viii) emergency services. (Emergency services means the same as is set forth in 12VAC30-50-310 B.)

E. Mental health family support partners.

1. Mental health family support partners are peer recovery support services and are nonclinical, peer-to-peer activities that engage, educate, and support the caregiver and an individual's self-help efforts to improve health recovery resiliency and wellness. Mental health family support partners is a peer support service and is a strength-based, individualized service provided to the caregiver of a Medicaid-eligible individual younger than 21 years of age with a mental health disorder that is the focus of support. The services provided to the caregiver and individual must be directed exclusively toward the benefit of the Medicaid-eligible individual. Services are expected to improve outcomes for individuals younger than 21 years of age with complex needs who are involved with multiple systems and increase the individual's and family's confidence and capacity to manage their own services and supports while promoting recovery and healthy relationships. These services are rendered by a PRS who is (i) a parent of a minor or adult child with a similar mental health disorder or (ii) an adult with personal experience with a family member with a similar mental health disorder with experience navigating behavioral health care services. The PRS shall perform the service within the scope of his knowledge, lived experience, and education.

2. Under the clinical oversight of the LMHP making the recommendation for, LMHP-R, LMHP-RP, or LMHP-S completing the assessment recommending mental health family support partners, the peer recovery specialist in consultation with his direct supervisor shall develop a recovery, resiliency, and wellness plan based on the LMHP's recommendation assessment of the LMHP, LMHP-R, LMHP-RP, or LMHP-S for service, the individual's and the caregiver's perceived recovery needs, and any clinical assessments or service specific provider intakes as defined in this section within 30 calendar days of the initiation of service. Development of the recovery, resiliency, and wellness plan shall include collaboration with the individual and the individual's caregiver. Individualized goals and strategies shall be focused on the individual's identified needs for self-advocacy and recovery. The recovery, resiliency, and wellness plan shall also include documentation of how many days per week and how many hours per week are required to carry out the services in order to meet the goals of the plan. The recovery, resiliency, and wellness plan shall be completed, signed, and dated by (i) the LMHP, LMHP-R, LMHP-RP, or LMHP-S; (ii) the PRS,; (iii) the direct supervisor,; (iv) the individual,; and (v) the individual's caregiver within 30 calendar days of the initiation of service. The PRS shall act as an advocate for the individual, encouraging the individual and the caregiver to take a proactive role in developing and updating goals and objectives in the individualized recovery planning.

3. Documentation of required activities shall be required as set forth in 12VAC30-130-5200 A, C, and E through J.

4. Limitations and exclusions to service delivery shall be the same as set forth in 12VAC30-130-5210.

5. Caregivers of individuals younger than 21 years of age who qualify to receive mental health family support partners shall (i) care for an individual with a mental health disorder who requires recovery assistance and (ii) meet two or more of the following:

a. Individual and his caregiver need peer-based recovery-oriented services for the maintenance of wellness and the acquisition of skills needed to support the individual.

b. Individual and his caregiver need assistance to develop self-advocacy skills to assist the individual in achieving self-management of the individual's health status.

c. Individual and his caregiver need assistance and support to prepare the individual for a successful work or school experience.

d. Individual and his caregiver need assistance to help the individual and caregiver assume responsibility for recovery.

6. Individuals 18, 19, and 20 years of age who meet the medical necessity criteria in 12VAC30-50-226 B 7 e, who would benefit from receiving peer supports directly and who choose to receive mental health peer support services directly instead of through their caregiver, shall be permitted to receive mental health peer support services by an appropriate PRS.

7. To qualify for continued mental health family support partners, medical necessity criteria shall continue to be met, and progress notes shall document the status of progress relative to the goals identified in the recovery, resiliency, and wellness plan.

8. Discharge criteria from mental health family support partners shall be the same as set forth in 12VAC30-130-5180 E.

9. Mental health family support partners services shall be rendered on an individual basis or in a group.

10. Prior to service initiation, a documented recommendation for mental health family support partners services shall be made an assessment shall be conducted and documented by a licensed mental health professional (LMHP) an LMHP, LMHP-R, LMHP-RP, or LMHP-S who is acting within his scope of practice under state law. The recommendation assessment shall verify that the individual meets the medical necessity criteria set forth in subdivision 5 of this subsection. The recommendation shall be valid for no longer than The assessment shall be included as part of the recovery, resiliency, and wellness plan and medical record. Services shall be initiated within 30 calendar days from when the assessment was complete.

11. Effective July 1, 2017, a peer recovery specialist shall have the qualifications, education, experience, and certification required by DBHDS in order to be eligible to register with the Virginia Board of Counseling on or after July 1, 2018. Upon the promulgation of regulations in accordance with 12VAC35-250. Peer recovery specialists shall be registered by the Board of Counseling, registration of peer recovery specialists by the Board of Counseling shall be required. The PRS shall perform mental health family support partners services under the oversight of the LMHP making, LMHP-R, LMHP-RP, or LMHP-S who assessed the individual and made the recommendation for services and providing the clinical oversight of the recovery, resiliency, and wellness plan.

12. The PRS shall be employed by or have a contractual relationship with the enrolled provider licensed for one of the following:

a. Acute care general and emergency department hospital services licensed by the Department of Health.

b. Freestanding psychiatric hospital and inpatient psychiatric unit licensed by the Department of Behavioral Health and Developmental Services.

c. Psychiatric residential treatment facility licensed by the Department of Behavioral Health and Developmental Services.

d. Therapeutic group home licensed by the Department of Behavioral Health and Developmental Services.

e. Outpatient mental health clinic services licensed by the Department of Behavioral Health and Developmental Services.

f. Outpatient psychiatric services provider.

g. A community mental health and rehabilitative services provider licensed by the Department of Behavioral Health and Developmental Services as a provider of one of the following community mental health and rehabilitative services as defined in this section, 12VAC30-50-226, 12VAC30-50-420, or 12VAC30-50-430 for which the individual younger than 21 years meets medical necessity criteria: (i) intensive in home; (ii) therapeutic day treatment; (iii) day treatment or partial hospitalization; (iv) crisis intervention; (v) crisis stabilization; (vi) mental health skill building; or (vii) mental health case management.

13. Only the licensed and enrolled provider as referenced in subdivision (12) of this subsection shall be eligible to bill and receive reimbursement from DMAS or its contractor for mental health family support partner services. Payments shall not be permitted to providers that fail to enter into an enrollment agreement with DMAS or its contractor. Reimbursement shall be subject to retraction for any billed service that is determined not to be in compliance with DMAS requirements.

14. Supervision of the PRS shall meet the requirements set forth in 12VAC30-50-226 B 7 l and m.

F. 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.

G. Addiction and recovery treatment services shall be covered under EPSDT consistent with 12VAC30-130-5000 et seq.

H. Services facilitators shall be required for all consumer-directed personal care services consistent with the requirements set out in 12VAC30-120-935.

I. Behavioral therapy services shall be covered for individuals younger than 21 years of age.

1. Definitions. The following words and terms when used in this subsection shall have the following meanings unless the context clearly indicates otherwise:

"Behavioral therapy" means systematic interventions provided by licensed practitioners acting within the scope of practice defined under a Virginia Department of Health Professions regulatory board and covered as remedial care under 42 CFR 440.130(d) to individuals younger than 21 years of age. Behavioral therapy includes applied behavioral analysis. Family training related to the implementation of the behavioral therapy shall be included as part of the behavioral therapy service. Behavioral therapy services shall be subject to clinical reviews and determined as medically necessary. Behavioral therapy may be provided in the individual's home and community settings as deemed by DMAS or its contractor as medically necessary treatment.

"Counseling" means a professional mental health service that can only be provided by a person holding a license issued by a health regulatory board at the Department of Health Professions, which includes conducting assessments, making diagnoses of mental disorders and conditions, establishing treatment plans, and determining treatment interventions.

"Individual" means the child or adolescent younger than 21 years of age who is receiving behavioral therapy services.

"Primary care provider" means a licensed medical practitioner who provides preventive and primary health care and is responsible for providing routine EPSDT screening and referral and coordination of other medical services needed by the individual.

2. Behavioral therapy services shall be designed to enhance communication skills and decrease maladaptive patterns of behavior, which if left untreated, could lead to more complex problems and the need for a greater or a more intensive level of care. The service goal shall be to ensure the individual's family or caregiver is trained to effectively manage the individual's behavior in the home using modification strategies. All services shall be provided in accordance with the ISP and clinical assessment summary.

3. Behavioral therapy services shall be covered when recommended by the individual's primary care provider or other licensed physician, licensed physician assistant, or licensed nurse practitioner and determined by DMAS or its contractor to be medically necessary to correct or ameliorate significant impairments in major life activities that have resulted from either developmental, behavioral, or mental disabilities. Criteria for medical necessity are set out in 12VAC30-60-61 H F. Service-specific provider intakes shall be required at the onset of these services in order to receive authorization for reimbursement. Individual service plans (ISPs) shall be required throughout the entire duration of services. The services shall be provided in accordance with the individual service plan and clinical assessment summary. These services shall be provided in settings that are natural or normal for a child or adolescent without a disability, such as the individual's home, unless there is justification in the ISP, which has been authorized for reimbursement, to include service settings that promote a generalization of behaviors across different settings to maintain the targeted functioning outside of the treatment setting in the individual's home and the larger community within which the individual resides. Covered behavioral therapy services shall include:

a. Initial and periodic service-specific provider intake as defined in 12VAC30-60-61 H F;

b. Development of initial and updated ISPs as established in 12VAC30-60-61 H F;

c. Clinical supervision activities. Requirements for clinical supervision are set out in 12VAC30-60-61 H F;

d. Behavioral training to increase the individual's adaptive functioning and communication skills;

e. Training a family member in behavioral modification methods as established in 12VAC30-60-61 H F;

f. Documentation and analysis of quantifiable behavioral data related to the treatment objectives; and

g. Care coordination.

J. 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. 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. 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 and 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 dressing changes, maintaining patent airways, medication administration or 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 intellectual or developmental 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 specialists, 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 professional develops a written plan for meeting the needs of the individual, 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. Individuals 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 an individual'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 (12VAC30-50-530). 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 individual is receiving a Medicaid-covered service under the IEP. Transportation shall be listed in the individual's IEP. Individuals 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 an individual'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 individual 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 an individual is receiving additional therapy outside of the school, that there will be coordination of services to avoid duplication of service.

K. 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 or services to promote fertility. Family planning services shall not cover payment for abortion services and no funds shall be used to perform, assist, encourage, or make direct referrals for abortions.

3. Family planning services as established by § 1905(a)(4)(C) of the Social Security Act include annual family planning exams; cervical cancer screening for women; sexually transmitted infection (STI) testing; lab services for family planning and STI testing; family planning education, counseling, and preconception health; sterilization procedures; nonemergency transportation to a family planning service; and U.S. Food and Drug Administration approved prescription and over-the-counter contraceptives, subject to limits in 12VAC30-50-210.

12VAC30-50-226. Community mental health services.

A. Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

"Activities of daily living" or "ADLs" means personal care tasks such as bathing, dressing, toileting, transferring, and eating or feeding. An individual's degree of independence in performing these activities is a part of determining appropriate level of care and service needs.

"Affiliated" means any entity or property in which a provider or facility has a direct or indirect ownership interest of 5.0% or more, or any management, partnership, or control of an entity.

"Behavioral health service" means the same as defined in 12VAC30-130-5160.

"Behavioral health services administrator" or "BHSA" means an entity that manages or directs a behavioral health benefits program under contract with DMAS. DMAS' designated BHSA shall be authorized to constitute, oversee, enroll, and train a provider network; perform service authorization; adjudicate claims; process claims; gather and maintain data; reimburse providers; perform quality assessment and improvement; conduct member outreach and education; resolve member and provider issues; and perform utilization management including care coordination for the provision of Medicaid-covered behavioral health services. Such authority shall include entering into or terminating contracts with providers in accordance with DMAS authority pursuant to 42 CFR Part 1002 and § 32.1-325 D and E of the Code of Virginia. DMAS shall retain authority for and oversight of the BHSA entity or entities.

"Certified prescreener" means an employee of either the local community services board or behavioral health authority 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 skill building, (v) crisis stabilization, or (vi) crisis intervention services, practical experience in providing direct services to individuals with diagnoses of mental illness or intellectual disability or the provision of direct geriatric services or special education services. Experience shall include supervised internships, supervised practicums, or supervised field experience. 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 established by DBHDS in the document titled 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.

"Direct supervisor" means the person who provides direct supervision to the peer recovery specialist. The direct supervisor (i) shall have two consecutive years of documented practical experience rendering peer support services or family support services, have certification training as a PRS under a certifying body approved by DBHDS, and have documented completion of the DBHDS PRS supervisor training; (ii) shall be a qualified mental health professional (QMHP-A, QMHP-C, or QMHP-E) as defined in 12VAC35-105-20 with at least two consecutive years of documented experience as a QMHP, and who has documented completion of the DBHDS PRS supervisor training; or (iii) shall be an LMHP, LMHP-R, LMHP-RP, or LMHP-S who has documented completion of the DBHDS PRS supervisor training who is acting within his scope of practice under state law. An LMHP, LMHP-R, LMHP-RP, or LMHP-S providing services before April 1, 2018, shall have until April 1, 2018, to complete the DBHDS PRS supervisor training.

"DMAS" means the Department of Medical Assistance Services and its contractor consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"DSM-5" means the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, copyright 2013, American Psychiatric Association.

"Human services field" means the same as the term is defined by the Department of Health Professions DBHDS in the guidance document entitled Approved Degrees in Human Services and Related Fields for QMHP Registration, adopted November 3, 2017, revised February 9, 2018 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 described in this section.

"Individual service plan" or "ISP" means a comprehensive and regularly updated treatment plan specific to the individual's unique treatment needs as identified in the service-specific provider intake. The ISP contains, but is not limited to, the individual's treatment or training needs, the individual's 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 or 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.

"Individualized training" means instruction and practice in functional skills and appropriate behavior related to the individual's health and safety, instrumental activities of daily living skills, and use of community resources; assistance with medical management; and monitoring health, nutrition, and physical condition. The training shall be rehabilitative and based on a variety of incremental (or cumulative) approaches or tools to organize and guide the individual's life planning and shall reflect what is important to the individual in addition to all other factors that affect the individual's functioning, including effects of the disability and issues of health and safety.

"Licensed mental health professional" or "LMHP" means the same as defined in 12VAC35-105-20.

"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.

"Peer recovery specialist" or "PRS" means the same as defined in 12VAC30-130-5160 12VAC35-250-10.

"Peer recovery support services" means the same as defined in 12VAC35-250-10.

"Person centered" means the same as defined in 12VAC30-130-5160.

"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 the term is defined in 12VAC35-105-20, including a "QMHP-trainee" as defined by the Department of Health Professions.

"Qualified paraprofessional in mental health" or "QPPMH" means the same as defined in 12VAC35-105-20.

"Recovery-oriented services" means the same as defined in 12VAC30-130-5160.

"Recovery, resiliency, and wellness plan" means the same as defined in 12VAC30-130-5160.

"Register" or "registration" means notifying DMAS or its contractor that an individual will be receiving services that do not require service authorization.

"Resiliency" means the same as defined in 12VAC30-130-5160.

"Review of ISP" means that the provider evaluates and updates the individual's progress toward meeting the individualized service plan objectives and documents the outcome of this review. For DMAS to determine that these reviews are satisfactory and complete, the reviews shall (i) update the goals, objectives, and strategies of the ISP to reflect any change in the individual's progress and treatment needs as well as any newly identified problems; (ii) be conducted in a manner that enables the individual to participate in the process; and (iii) be documented in the individual's medical record no later than 15 calendar days from the date of the review.

"Self-advocacy" means the same as defined in 12VAC30-130-5160.

"Service authorization" means the 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.

"Service-specific provider intake" means the same as defined in 12VAC30-50-130 and also includes individuals who are older than 21 years of age.

"Strength-based" means the same as defined in 12VAC30-130-5160.

"Supervision" means the same as defined in 12VAC30-130-5160.

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 skill building. Staff travel time shall not be included in billable time for reimbursement. These services, in order to be covered, shall meet medical necessity criteria based upon diagnoses made by LMHPs, LMHP-Rs, LMHP-RPs, or LMHP-S 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. 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 service-specific information to DMAS or its contractor in accordance with service authorization requirements.

1. 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 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 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 an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-A, QMHP-C, QMHP-E, or a QPPMH.

2. 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, and 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 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:

(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 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 significantly inappropriate social behavior.

b. These services may only be rendered by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-A, QMHP-C, QMHP-E, or a QPPMH.

3. 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 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, DMAS contractors, or the BHSA or its contactor within one business day or the completion of the service-specific provider intake to avoid duplication of services and to ensure informed care coordination.

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, an LMHP-supervisee, LMHP-resident, LMHP-RP, or a certified prescreener.

4. Intensive community treatment (ICT), initially covered for a maximum of 26 weeks based on an initial service-specific provider intake and may be reauthorized for up to an additional 26 weeks annually shall be provided based on written intake and certification of need by a licensed mental health provider (LMHP), shall be defined by 12VAC35-105-20 or LMHP-S, LMHP-R, and LMHP-RP and shall include medical psychotherapy, psychiatric assessment, medication management, and care coordination activities offered to outpatients outside the clinic, hospital, or office setting for individuals who are best served in the community. Authorization is required for Medicaid reimbursement.

a. To qualify for ICT, the individual must meet at least one of the following criteria:

(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.

(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.

b. A written, service-specific provider 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 intake must be maintained in the individual's records.

c. An individual service plan shall be initiated at the time of admission and must be fully developed, as defined in 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. A unit shall equal one hour.

e. These services may only be rendered by a team that meets the requirements of 12VAC35-105-1370.

5. 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. Services may shall be provided for up to a 15-day period per crisis episode following a face-to-face service-specific provider intake by an LMHP, LMHP-supervisee, LMHP-resident, or LMHP-RP. Only one unit of service shall be reimbursed for this intake. The provision of this service to an individual shall be registered with either DMAS, DMAS contractors, or the BHSA or its contractor within one business day of the completion of the service-specific provider intake to avoid duplication of services and to ensure informed care coordination.

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 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 an individual who lives with family or other primary caregiver; (ii) the home of 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) individuals with medical conditions that require hospital care; (ii) individuals with a primary diagnosis of substance abuse; or (iii) individuals with psychiatric conditions that cannot be managed in the community (i.e., individuals who are of imminent danger to themselves or others).

e. The maximum limit on this service is 60 days annually.

f. e. Services must be documented through daily progress notes and a daily log of times spent in the delivery of services. The service-specific provider 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:

(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;

(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 the mental health, social services, or judicial system are or have been necessary; or

(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, QMHP-C, QMHP-E or a certified prescreener.

6. Mental health skill-building services (MHSS) shall be defined as goal-directed training 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 up to six consecutive months as long as the individual meets the coverage criteria for this service. The service-specific provider intake, as defined at 12VAC30-50-130, shall document the individual's behavior and describe how the individual meets criteria for this service. These services shall provide goal-directed training in the following areas in order to be reimbursed by Medicaid or the DMAS contractor: (i) functional skills and appropriate behavior related to the individual's health and safety, instrumental activities of daily living, and use of community resources; (ii) assistance with medication management; and (iii) monitoring of health, nutrition, and physical condition with goals towards self-monitoring and self-regulation of all of these activities. Providers shall be reimbursed only for training activities defined in the ISP and only where services meet the service definition, eligibility, and service provision criteria and this section. A review of MHSS services by an LMHP, LMHP-R, LMHP-RP, or LMHP-S shall be repeated for all individuals who have received at least six months of MHSS to determine the continued need for this service.

a. Individuals qualifying for this service shall 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 require individualized goal-directed training in order to achieve or maintain stability and independence in the community.

b. Individuals 21 years of age and older shall meet all of the following criteria in order to be eligible to receive mental health skill-building services:

(1) The individual shall have one of the following as a primary mental health diagnosis:

(a) Schizophrenia or other psychotic disorder as set out in the DSM-5;

(b) Major depressive disorder;

(c) Recurrent Bipolar I or Bipolar II; or

(d) Any other serious mental health disorder that a physician has documented specific to the identified individual within the past year and that includes all of the following: (i) is a serious mental illness; (ii) results in severe and recurrent disability; (iii) produces functional limitations in the individual's major life activities that are documented in the individual's medical record; and (iv) requires individualized training for the individual in order to achieve or maintain independent living in the community.

(2) The individual shall require individualized goal-directed training in order to acquire or maintain self-regulation of basic living skills, such as symptom management; adherence to psychiatric and physical health medication treatment plans; appropriate use of social skills and personal support systems; skills to manage personal hygiene, food preparation, and the maintenance of personal adequate nutrition; money management; and use of community resources.

(3) The individual shall have a prior history of any of the following: (i) psychiatric hospitalization; (ii) either residential or nonresidential crisis stabilization; (iii) intensive community treatment (ICT) or program of assertive community treatment (PACT) services; (iv) placement in a psychiatric residential treatment facility (PRTF) as a result of decompensation related to the individual's serious mental illness; or (v) a temporary detention order (TDO) evaluation, pursuant to § 37.2-809 B of the Code of Virginia. This criterion shall be met in order to be initially admitted to services and not for subsequent authorizations of service. Discharge summaries from prior providers that clearly indicate (i) the type of treatment provided, (ii) the dates of the treatment previously provided, and (iii) the name of the treatment provider shall be sufficient to meet this requirement. Family member statements shall not suffice to meet this requirement.

(4) The individual shall have had a prescription for antipsychotic, mood stabilizing, or antidepressant medications within the 12 months prior to the service-specific provider intake date. If a physician or other practitioner who is authorized by his license to prescribe medications indicates that antipsychotic, mood stabilizing, or antidepressant medications are medically contraindicated for the individual, the provider shall obtain medical records signed by the physician or other licensed prescriber detailing the contraindication. This documentation shall be maintained in the individual's mental health skill-building services record, and the provider shall document and describe how the individual will be able to actively participate in and benefit from services without the assistance of medication. This criterion shall be met upon admission to services and shall not be required for subsequent authorizations of service. Discharge summaries from prior providers that clearly indicate (i) the type of treatment provided, (ii) the dates of the treatment previously provided, and (iii) the name of the treatment provider shall be sufficient to meet this requirement. Family member statements shall not suffice to meet this requirement.

c. Individuals 18 to 21 years of age shall meet all of the following criteria in order to be eligible to receive mental health skill-building services:

(1) The individual shall not be living in a supervised setting as described in § 63.2-905.1 of the Code of Virginia. If the individual is transitioning into an independent living situation, MHSS shall only be authorized for up to six months prior to the date of transition.

(2) The individual shall have at least one of the following as a primary mental health diagnosis:

(a) Schizophrenia or other psychotic disorder as set out in the DSM-5;

(b) Major depressive disorder;

(c) Recurrent Bipolar I or Bipolar II; or

(d) Any other serious mental health disorder that a physician has documented specific to the identified individual within the past year and that includes all of the following: (i) is a serious mental illness or serious emotional disturbance; (ii) results in severe and recurrent disability; (iii) produces functional limitations in the individual's major life activities that are documented in the individual's medical record; and (iv) requires individualized training for the individual in order to achieve or maintain independent living in the community.

(3) The individual shall require individualized goal-directed training in order to acquire or maintain self-regulation of basic living skills such as symptom management; adherence to psychiatric and physical health medication treatment plans; appropriate use of social skills and personal support systems; skills to manage personal hygiene, food preparation, and the maintenance of personal adequate nutrition; money management; and use of community resources.

(4) The individual shall have a prior history of any of the following: (i) psychiatric hospitalization; (ii) either residential or nonresidential crisis stabilization; (iii) intensive community treatment (ICT) or program of assertive community treatment (PACT) services; (iv) placement in a psychiatric residential treatment facility as a result of decompensation related to the individual's serious mental illness; or (v) temporary detention order (TDO) evaluation pursuant to § 37.2-809 B of the Code of Virginia. This criterion shall be met in order to be initially admitted to services and not for subsequent authorizations of service. Discharge summaries from prior providers that clearly indicate (i) the type of treatment provided, (ii) the dates of the treatment previously provided, and (iii) the name of the treatment provider shall be sufficient to meet this requirement. Family member statements shall not suffice to meet this requirement.

(5) The individual shall have had a prescription for antipsychotic, mood stabilizing, or antidepressant medications, within the 12 months prior to the assessment date. If a physician or other practitioner who is authorized by his license to prescribe medications indicates that antipsychotic, mood stabilizing, or antidepressant medications are medically contraindicated for the individual, the provider shall obtain medical records signed by the physician or other licensed prescriber detailing the contraindication. This documentation of medication management shall be maintained in the individual's mental health skill-building services record. For individuals not prescribed antipsychotic, mood stabilizing, or antidepressant medications, the provider shall have documentation from the medication management physician describing how the individual will be able to actively participate in and benefit from services without the assistance of medication. This criterion shall be met in order to be initially admitted to services and not for subsequent authorizations of service. Discharge summaries from prior providers that clearly indicate (i) the type of treatment provided, (ii) the dates of the treatment previously provided, and (iii) the name of the treatment provider shall be sufficient to meet this requirement. Family member statements shall not suffice to meet this requirement.

(6) An independent clinical assessment, established in 12VAC30-130-3020, shall be completed for the individual.

d. Service-specific provider 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 intakes or ISPs shall be denied reimbursement. Requirements for service-specific provider intakes and ISPs are set out in 12VAC30-50-130.

e. The yearly limit for mental health skill-building services is 520 units. Only direct face-to-face contacts and services to the individual shall be reimbursable. One unit is 1 to 2.99 hours per day, and two units is 3 to 4.99 hours per day.

f. These services may only be rendered by an LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, QMHP-E, or QPPMH.

g. The provider shall clearly document details of the services provided during the entire amount of time billed.

h. The ISP shall not include activities that contradict or duplicate those in the treatment plan established by the therapeutic group home or assisted living facility. The provider shall coordinate mental health skill-building services with the treatment plan established by the group home or assisted living facility and shall document all coordination activities in the medical record.

i. Limits and exclusions.

(1) Therapeutic group home and assisted living facility providers shall not serve as the mental health skill-building services provider for individuals residing in the provider's respective facility. Individuals residing in facilities may, however, receive MHSS from another MHSS agency not affiliated with the owner of the facility in which they reside.

(2) Mental health skill-building services shall not be reimbursed for individuals who are receiving in-home residential services or congregate residential services through the Intellectual Disability Waiver or Individual and Family Developmental Disabilities Support Waiver.

(3) Mental health skill-building services shall not be reimbursed for individuals who are also receiving services under the Department of Social Services independent living program (22VAC40-151), independent living services (22VAC40-131 and 22VAC40-151), or independent living arrangement (22VAC40-131) or any Comprehensive Services Act-funded independent living skills programs.

(4) Mental health skill-building services shall not be available to individuals who are receiving treatment foster care (12VAC30-130-900 et seq.).

(5) Mental health skill-building services shall not be available to individuals who reside in intermediate care facilities for individuals with intellectual disabilities or hospitals.

(6) Mental health skill-building services shall not be available to individuals who reside in nursing facilities, except for up to 60 days prior to discharge. If the individual has not been discharged from the nursing facility during the 60-day period of services, mental health skill-building services shall be terminated and no further service authorizations shall be available to the individual unless a provider can demonstrate and document that mental health skill-building services are necessary. Such documentation shall include facts demonstrating a change in the individual's circumstances and a new plan for discharge requiring up to 60 days of mental health skill-building services.

(7) Mental health skill-building services shall not be available for residents of psychiatric residential treatment centers except for the intake code H0032 (modifier U8) in the seven days immediately prior to discharge.

(8) Mental health skill-building services shall not be reimbursed if personal care services or attendant care services are being received simultaneously, unless justification is provided why this is necessary in the individual's mental health skill-building services record. Medical record documentation shall fully substantiate the need for services when personal care or attendant care services are being provided. This applies to individuals who are receiving additional services through the Intellectual Disability Waiver (12VAC30-120-1000 et seq.), Individual and Family Developmental Disabilities Support Waiver (12VAC30-120-700 et seq.), the Elderly or Disabled with Consumer Direction Waiver (12VAC30-120-900 et seq.), and EPSDT services (12VAC30-50-130).

(9) Mental health skill-building services shall not be duplicative of other services. Providers shall be required to ensure that if an individual is receiving additional therapeutic services that there will be coordination of services by either the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, QMHP-E, or QPPMH to avoid duplication of services.

(10) Individuals who have organic disorders, such as delirium, dementia, or other cognitive disorders not elsewhere classified, will be prohibited from receiving mental health skill-building services unless their physicians issue signed and dated statements indicating that the individuals can benefit from this service.

(11) Individuals who are not diagnosed with a serious mental health disorder but who have personality disorders or other mental health disorders, or both, that may lead to chronic disability shall not be excluded from the mental health skill-building services eligibility criteria provided that the individual has a primary mental health diagnosis from the list included in subdivision B 6 b (1) or B 6 c (2) of this section and that the provider can document and describe how the individual is expected to actively participate in and benefit from mental health skill-building services.

7. Mental health peer support services.

a. Mental health peer support services are peer recovery support services and are nonclinical, peer-to-peer activities that engage, educate, and support an individual's self-help efforts to improve health recovery, resiliency, and wellness. Mental health peer support services for adults is a person centered, strength-based, and recovery-oriented rehabilitative service for individuals 21 years of age or older provided by a peer recovery specialist successful in the recovery process with lived experience with a mental health disorder, who is trained to offer support and assistance in helping others in the recovery to reduce the disabling effects of a mental health disorder that is the focus of support. Services assist the individual with developing and maintaining a path to recovery, resiliency, and wellness. Specific peer support service activities shall emphasize the acquisition, development, and enhancement of recovery, resiliency, and wellness. Services are designed to promote empowerment, self-determination, understanding, and coping skills through mentoring and service coordination supports, as well as to assist individuals in achieving positive coping mechanisms for the stressors and barriers encountered when recovering from their illnesses or disorders.

b. Under the clinical oversight of the LMHP, LMHP-R, LMHP-RP, or LMHP-S assessing the individual and making the recommendation for mental health support services, the peer recovery specialist in consultation with his direct supervisor shall develop a recovery, resiliency, and wellness plan based on the LMHP's recommendation of the LMHP, LMHP-R, LMHP-RP, or LMHP-S for service, the individual's perceived recovery needs, and any clinical assessments or service specific provider intakes as defined in this section within 30 calendar days of the initiation of service. Development of the recovery, resiliency, and wellness plan shall include collaboration with the individual. Individualized goals and strategies shall be focused on the individual's identified needs for self-advocacy and recovery. The recovery, resiliency, and wellness plan shall also include documentation of how many days per week and how many hours per week are required to carry out the services in order to meet the goals of the plan. The recovery, resiliency, and wellness plan shall be completed, signed, and dated by (i) the LMHP, LMHP-R, LMHP-RP, or LMHP-S; (ii) the PRS,; (iii) the direct supervisor,; and (iv) the individual within 30 calendar days of the initiation of service. The PRS shall act as an advocate for the individual, encouraging the individual to take a proactive role in developing and updating goals and objectives in the individualized recovery planning.

c. Documentation of required activities shall be required as set forth in 12VAC30-130-5200 A, C, and E through J.

d. Limitations and exclusions to service delivery shall be the same as set forth in 12VAC30-130-5210.

e. Individuals 21 years of age or older qualifying for mental health peer support services shall meet the following requirements:

(1) Require recovery-oriented assistance and support services for the acquisition of skills needed to engage in and maintain recovery; for the development of self-advocacy skills to achieve a decreasing dependency on formalized treatment systems; and to increase responsibilities, wellness potential, and shared accountability for the individual's own recovery.

(2) Have a documented mental health disorder diagnosis.

(3) Demonstrate moderate to severe functional impairment because of a diagnosis that interferes with or limits performance in at least one of the following domains: educational (e.g., obtaining a high school or college degree); social (e.g., developing a social support system); vocational (e.g., obtaining part-time or full-time employment); self-maintenance (e.g., managing symptoms, understanding his illness, living more independently).

f. To qualify for continued mental health peer support services, medical necessity criteria shall continue to be met, and progress notes shall document the status of progress relative to the goals identified in the recovery, resiliency, and wellness plan.

g. Discharge criteria from mental health peer support services is the same as set forth in 12VAC30-130-5180 E.

h. Mental health peer support services shall be rendered on an individual basis or in a group.

i. Prior to service initiation, a documented recommendation for mental health peer support services shall be made an assessment shall be conducted and documented by a licensed mental health professional acting an LMHP, LMHP-R, LMHP-RP, or LMHP-S within the scope of practice under state law. The recommendation assessment shall verify that the individual meets the medical necessity criteria set forth in subdivision 7 e of this subsection. The recommendation shall be valid for no longer than The assessment shall be included as part of the recovery, resiliency, and wellness plan and medical record. Services shall be initiated within 30 calendar days from when the assessment was complete.

j. Effective July 1, 2017, a peer recovery specialist shall have the qualifications, education, experience, and certification established by DBHDS in order to be eligible to register with the Board of Counseling on or after July 1, 2018. Upon the promulgation of regulations by in accordance with 12VAC35-250. Effective December 18, 2017, Peer Recovery Specialists shall also be registered with the Board of Counseling, registration of peer recovery specialists by the Board of Counseling shall be required. The PRS shall perform mental health peer support services under the oversight of the LMHP making who assessed the individual and made the recommendation for services and providing the clinical oversight of the recovery, resiliency, and wellness plan. The PRS shall be employed by or have a contractual relationship with an enrolled provider licensed for one of the following:

(1) Acute care general hospital licensed by the Department of Health.

(2) Freestanding psychiatric hospital and inpatient psychiatric unit licensed by the Department of Behavioral Health and Developmental Services.

(3) Outpatient mental health clinic services licensed by the Department of Behavioral Health and Developmental Services.

(4) Outpatient psychiatric services provider.

(5) Rural health clinics and federally qualified health centers.

(6) Hospital emergency department services licensed by the Department of Health.

(7) Community mental health and rehabilitative services provider licensed by the Department of Behavioral Health and Developmental Services as a provider of one of the following community mental health and rehabilitative services defined in this section or 12VAC30-50-420 for which the individual meets medical necessity criteria:

(a) Day treatment or partial hospitalization;

(b) Psychosocial rehabilitation;

(c) Crisis intervention;

(d) Intensive community treatment;

(e) Crisis stabilization;

(f) Mental health skill building; or

(g) Mental health case management.

k. Only the licensed and enrolled provider referenced in subdivision 7 j of this subsection shall be eligible to bill mental health peer support services. Payments shall not be permitted to providers that fail to enter into an enrollment agreement with DMAS or its contractor. Reimbursement shall be subject to retraction for any billed service that is determined to not to be in compliance with DMAS requirements.

l. Supervision of the PRS shall be required as set forth in the definition of "supervision" in 12VAC30-130-5160. Supervision of the PRS shall also meet the following requirements: the direct supervisor shall perform direct supervision of the PRS as needed based on the level of urgency and intensity of service being provided. The direct supervisor shall have an employment or contract relationship with the same provider entity that employs or contracts with the PRS. Direct supervisors shall maintain documentation of all supervisory sessions. In no instance shall supervisory sessions be performed less than as provided in subdivisions 7 l (1) and 7 l (2) of this subsection:

(1) If the PRS has less than 12 months of experience delivering peer support services or family support partners, the PRS shall receive face-to-face, one-to-one supervisory meetings of sufficient length to address identified challenges for a minimum of a 30-minute session, two times a month. The direct supervisor must be available at least by telephone while the PRS is on duty.

(2) If the PRS has been delivering peer support services or family support partners for over 12 months and fewer than 24 months, the PRS must receive monthly face-to-face, one-to-one supervision of sufficient length to address identified challenges for a minimum of 30 minutes. The direct supervisor must be available by telephone for consult within 24 hours of service delivery if needed.

m. The supervisor shall be under the clinical oversight of the LMHP making, LMHP-R, LMHP-RP, or LMHP-S who assessed the individual and made the recommendation for services, and the peer recovery specialist in consultation with his direct supervisor shall conduct and document a review of the recovery, resiliency, and wellness plan every 90 calendar days with the individual and the caregiver, as applicable. The review shall be signed by the PRS and the individual and, as applicable, the identified family member or caregiver. Review of the recovery, resiliency, and wellness plan means the PRS evaluates and updates the individual's progress every 90 calendar days toward meeting the plan's goals and documents the outcome of this review in the individual's medical record. For DMAS to determine that these reviews are complete, the reviews shall (i) update the goals and objectives as needed to reflect any change in the individual's recovery as well as any newly identified needs, (ii) be conducted in a manner that enables the individual to actively participate in the process, and (iii) be documented by the PRS in the individual's medical record no later than 15 calendar days from the date of the review.

12VAC30-60-143. Mental health services utilization criteria; definitions.

A. Definitions. The following words and terms when used in this section shall have the following meanings unless the context indicates otherwise:

"Child or adolescent" means the same as "adolescent or child" defined in 12VAC30-50-130.

"Licensed mental health professional" or "LMHP" means the same as defined in 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-supervisee in social work," "LMHP-supervisee," 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 12VAC30-50-130.

"Qualified mental health professional-child" or "QMHP-C" means the same as defined in 12VAC30-50-130.

"Qualified mental health professional-eligible" or "QMHP-E" means the same as defined in 12VAC35-105-20.

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 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 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-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E preparing the ISP within a maximum of 30 days of the date of the completed 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. 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.

(a) Every three months, the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E shall review the ISP, modify the ISP as appropriate, and update the ISP, and all of these activities shall occur with the individual in a manner in which the individual may participate in the process. The ISP shall be rewritten at least annually.

(b) The goals, objectives, and strategies of the ISP shall be updated to reflect any change or changes in the individual's progress and treatment needs as well as any newly-identified problems.

(c) Documentation of ISP review shall be added to the individual's medical record no later than 15 days from the calendar date of the review as evidenced by the dated signatures of the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E, and the individual.

C. Day treatment/partial hospitalization services shall be provided following a service-specific provider intake and be authorized by the LMHP, LMHP-R, LMHP-RP, or LMHP-S. An ISP, as defined in 12VAC30-50-226, shall be fully completed, signed, and dated by either the LMHP, LMHP-R, LMHP-RP, LMHP-S, the QMHP-A, QMHP-E, or QMHP-C and reviewed/approved by the LMHP, LMHP-R, LMHP-RP, or LMHP-S within 30 days of service initiation.

1. The enrolled provider of day treatment/partial hospitalization shall be licensed by DBHDS as providers of day treatment services.

2. Services shall only be provided by an LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, QMHP-E, or a qualified paraprofessional under the supervision of a QMHP-A, QMHP-C, QMHP-E, or an LMHP, LMHP-R, LMHP-RP, or LMHP-S as defined at 12VAC35-105-20, except for LMHP-R, LMHP-RP, and LMHP-S, which are defined in 12VAC30-50-226.

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.

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 a service-specific provider intake that clearly documents the need for services. This intake shall be completed by either an LMHP, LMHP-R, LMHP-RP, or LMHP-S. An ISP shall be completed by either the LMHP, LMHP-R, LMHP-RP, LMHP-S, or the QMHP-A, QMHP-E, or QMHP-C and be reviewed/approved by either an LMHP, LMHP-R, LMHP-RP, or LMHP-S within 30 calendar days of service initiation. At least every three months, the LMHP, LMHP-R, LMHP-RP, LMHP-S, the QMHP-A, 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 shall be reviewed by an LMHP, LMHP-R, LMHP-RP, or LMHP-S who 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 DBHDS as a provider of psychosocial rehabilitation services.

4. Psychosocial rehabilitation services may be provided by an LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, QMHP-E, or a qualified paraprofessional under the supervision of a QMHP-A, a QMHP-C, a QMHP-E, or an LMHP, LMHP-R, LMHP-RP, or LMHP-S.

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 individual's understanding or ability to access community resources.

E. Initiation of crisis intervention services shall be indicated following a service-specific provider intake that documents a marked reduction in the individual's psychiatric, adaptive or behavioral functioning or an extreme increase in personal distress. In order to receive reimbursement, providers shall register this service with DMAS, DMAS contractors, or the BHSA or its contractor within one business day of the completion of the service-specific provider intake to avoid duplication of services and to ensure informed care coordination.

1. The crisis intervention services provider shall be licensed as a provider of emergency services by DBHDS.

2. Client-related activities provided in association with a face-to-face contact are reimbursable.

3. An 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 shall be developed or revised 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 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 reimbursed, provided the provision of out-of-clinic services is clinically/programmatically appropriate. Travel by staff to provide out-of-clinic services 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-R, LMHP-RP, LMHP-S, or a certified prescreener shall conduct a face-to-face service-specific provider intake. The intake shall document the need for and the anticipated duration of the crisis service.

8. Crisis intervention shall be provided by either an LMHP, LMHP-R, LMHP-RP, LMHP-S, or a certified prescreener.

9. 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. These preadmission screenings cannot be billed unless the requirement for an independent team certification, with a physician's signature, is met.

10. Services shall be documented through daily notes and a daily log of time spent in the delivery of services.

F. Case management services 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 an ISP in effect that requires regular direct or client-related contacts or activity or communication with the individuals or families, significant others, service providers, and others including a minimum of one face-to-face 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 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 shall document the need for case management and be fully completed within 30 calendar days of initiation of the service. 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 DBHDS as a provider of case management services.

G. Intensive community treatment (ICT).

1. A service-specific provider intake that documents eligibility and the need for this service shall be completed by either the LMHP, LMHP-R, LMHP-RP, or LMHP-S prior to the initiation of services. This intake documentation shall be maintained in the individual's records.

2. An individual service plan, based on the needs as determined by the service-specific provider intake, must be initiated at the time of admission and must be fully developed by either the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E and approved by the LMHP, LMHP-R, LMHP-RP, or LMHP-S within 30 days of the initiation of services.

3. ICT may be billed if the 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 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.

H. Crisis stabilization services.

1. This service shall be initiated following a face-to-face service-specific provider intake by either an LMHP, LMHP-R, LMHP-RP, LMHP-S, or a certified prescreener, as defined in 12VAC30-50-226.

2. In order to receive reimbursement, providers shall register this service with DMAS, DMAS contractors, or the BHSA or its contractor within one business day of the completion of the service-specific provider intake to avoid duplication of services and to ensure informed care coordination.

3. The service-specific provider intake must document the need for crisis stabilization services.

4. The Individual Service Plan (ISP) must be developed or revised within three calendar days of admission to this service. The LMHP, LMHP-R, LMHP-RP, LMHP-S, certified prescreener, QMHP-A, QMHP-C, or QMHP-E shall develop the ISP.

5. Room and board, custodial care, and general supervision are not components of this service.

6. 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.

7. 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.

8. Providers of residential crisis stabilization shall be licensed by DBHDS as providers of residential or nonresidential crisis stabilization services. Providers of community-based crisis stabilization shall be licensed by DBHDS as providers of mental health nonresidential crisis stabilization.

I. Mental health skill-building services as defined in 12VAC30-50-226 B 6.

1. At admission, an appropriate face-to-face service-specific provider intake must be conducted, documented, signed, and dated by the LMHP, LMHP-R, or LMHP-RP. Providers shall be reimbursed one unit for each intake utilizing the appropriate billing code. Service-specific provider intakes shall be repeated upon any lapse in services of more than 30 calendar days. Services of any individual that continue more than six months shall be reviewed by the LMHP, LMHP-R, LMHP-RP, or LMHP-S who shall document the continued need for the service in the individual's medical record.

2. The primary psychiatric diagnosis shall be documented as part of the intake. The LMHP, LMHP-R, LMHP-RP, or LMHP-S performing the intake shall document the primary mental health diagnosis on the intake form.

3. The LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E shall complete, sign, and date the ISP within 30 days of the admission to this service. The ISP shall include documentation of how many days per week and how many hours per week are required to carry out the goals in the ISP. The total time billed for the week shall not exceed the frequency established in the individual's ISP. The ISP shall indicate the dated signature of the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E and the individual. The ISP shall indicate the specific training and services to be provided, the goals and objectives to be accomplished, and criteria for discharge as part of a discharge plan that includes the projected length of service. If the individual refuses to sign the ISP, this shall be noted in the individual's medical record documentation.

4. Every three months, the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E shall review with the individual in a manner in which he may participate with the process, modify as appropriate, and update the ISP. The ISP must be rewritten at least annually.

a. The goals, objectives, and strategies of the ISP shall be updated to reflect any change or changes in the individual's progress and treatment needs as well as any newly identified problem.

b. Documentation of this review shall be added to the individual's medical record no later than 15 calendar days from the date of the review, as evidenced by the dated signatures of the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E and the individual.

5. The ISP shall include discharge goals that will enable the individual to achieve and maintain community stability and independence. The ISP shall fully support the need for interventions over the length of the period of service requested from the service authorization contractor.

6. Reauthorizations for service shall only be granted if the provider demonstrates to either DMAS or the service authorization contractor that the individual is benefitting from the service as evidenced by updates and modifications to the ISP that demonstrate progress toward ISP goals and objectives.

7. If the provider knows or has reason to know of the individual's nonadherence to a regimen of prescribed medication, medication adherence shall be a goal in the individual's ISP. If the care is delivered by the qualified paraprofessional, the supervising LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, or QMHP-C shall be informed of any nonadherence to the prescribed medication regimen. The LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, or QMHP-C shall coordinate care with the prescribing physician regarding any concerns about medication nonadherence (provided that the individual has consented to such sharing of information). The provider shall document the following minimum elements of the contact between the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, or QMHP-C and the prescribing physician:

a. Name and title of caller;

b. Name and title of professional who was called;

c. Name of organization that the prescribing professional works for;

d. Date and time of call;

e. Reason for the care coordination call;

f. Description of medication regimen issue or issues to be discussed; and

g. Whether or not there was a resolution of medication regimen issue or issues.

8. Discharge summaries shall be prepared by providers for all of the individuals in their care. Documentation of prior psychiatric services history shall be maintained in the individual's mental health skill-building services medical record.

9. Documentation of prior psychiatric services history shall be maintained in the individual's mental health skill-building services medical record. The provider shall document evidence of the individual's prior psychiatric services history, as required by 12VAC30-50-226 B 6 b (3) and 12VAC30-50-226 B 6 c (4), by contacting the prior provider or providers of such health care services after obtaining written consent from the individual. Documentation of telephone contacts with the prior provider shall include the following minimum elements:

a. Name and title of caller;

b. Name and title of professional who was called;

c. Name of organization that the professional works for;

d. Date and time of call;

e. Specific placement provided;

f. Type of treatment previously provided;

g. Name of treatment provider; and

h. Dates of previous treatment.

Discharge summaries from prior providers that clearly indicate (i) the type of treatment provided, (ii) the dates of the treatment previously provided, and (iii) the name of the treatment provider shall be sufficient to meet this requirement. Family member statements shall not suffice to meet this requirement.

10. The provider shall document evidence of the psychiatric medication history, as required by 12VAC30-50-226 B 6 b (4) and 12VAC30-50-226 B 6 c (5), by maintaining a photocopy of prescription information from a prescription bottle or by contacting the current or previous prescribing provider of health care services or pharmacy after obtaining written consent from the individual. Prescription lists or medical records, including discharge summaries, obtained from the pharmacy or current or previous prescribing provider of health care services that contain (i) the name of the prescribing physician, (ii) the name of the medication with dosage and frequency, and (iii) the date of the prescription shall be sufficient to meet these criteria. Family member statements shall not suffice to meet this requirement.

11. In the absence of such documentation, the current provider shall document all contacts (i.e., telephone, faxes, electronic communication) with the pharmacy or provider of health care services with the following minimum elements: (i) name and title of caller, (ii) name and title of prior professional who was called, (iii) name of organization that the professional works for, (iv) date and time of call, (v) specific prescription confirmed, (vi) name of prescribing physician, (vii) name of medication, and (viii) date of prescription.

12. Only direct face-to-face contacts and services to an individual shall be reimbursable.

13. Any services provided to the individual that are strictly academic in nature shall not be billable. These include, but are not limited to, such basic educational programs as instruction or tutoring in reading, science, mathematics, or GED.

14. Any services provided to individuals that are strictly vocational in nature shall not be billable. However, support activities and activities directly related to assisting 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.

15. Room and board, custodial care, and general supervision are not components of this service.

16. Provider qualifications. The enrolled provider of mental health skill-building services must be licensed by DBHDS as a provider of mental health community support (defined in 12VAC35-105-20). Individuals employed or contracted by the provider to provide mental health skill-building services must have training in the characteristics of mental illness and appropriate interventions, training strategies, and support methods for persons with mental illness and functional limitations. Mental health skill-building services shall be provided by either an LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, QMHP-E, or QPPMH. The LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, or QMHP-C will supervise the care weekly if delivered by the QMHP-E or QPPMH. Documentation of supervision shall be maintained in the mental health skill-building services record.

17. Mental health skill-building services 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. The provider shall clearly document services provided to detail what occurred during the entire amount of the time billed.

18. If mental health skill-building services are provided in a therapeutic group home (Level A or B) or assisted living facility, effective July 1, 2014, there shall be a yearly limit of up to 416 units per fiscal year and a weekly limit of up to 8 units per week, with at least half of each week's services provided outside of the group home or assisted living facility. There shall be a daily limit of a maximum of 2 units. Prior to July 1, 2014, the previous limits shall apply. The ISP shall not include activities that contradict or duplicate those in the treatment plan established by the group home or assisted living facility. The provider shall attempt to coordinate mental health skill-building services with the treatment plan established by the group home or assisted living facility and shall document all coordination activities in the medical record.

19. Limits and exclusions.

a. Group Therapeutic group home (Level A or B) and assisted living facility providers shall not serve as the mental health skill-building services provider for individuals residing in the provider's respective facility. Individuals residing in facilities may, however, receive MHSS from another MHSS agency not affiliated with the owner of the facility in which they reside.

b. Mental health skill-building services shall not be reimbursed for individuals who are receiving in-home residential services or congregate residential services through the Intellectual Disability Waiver or Individual and Family Developmental Disabilities Support Waiver.

c. Mental health skill-building services shall not be reimbursed for individuals who are also receiving independent living skills services, the Department of Social Services independent living program (22VAC40-151), independent living services (22VAC40-131 and 22VAC40-151), or independent living arrangement (22VAC40-131) or any Comprehensive Services Act-funded independent living skills programs.

d. Mental health skill-building services shall not be available to individuals who are receiving treatment foster care (12VAC30-130-900 et seq.).

e. Mental health skill-building services shall not be available to individuals who reside in intermediate care facilities for individuals with intellectual disabilities or hospitals.

f. Mental health skill-building services shall not be available to individuals who reside in nursing facilities, except for up to 60 days prior to discharge. If the individual has not been discharged from the nursing facility during the 60-day period of services, mental health skill-building services shall be terminated and no further service authorizations shall be available to the individual unless a provider can demonstrate and document that mental health skill-building services are necessary. Such documentation shall include facts demonstrating a change in the individual's circumstances and a new plan for discharge requiring up to 60 days of mental health skill-building services.

g. Mental health skill-building services shall not be available for residents of psychiatric residential treatment centers (Level C facilities) except for the intake code H0032 (modifier U8) in the seven days immediately prior to discharge.

h. Mental health skill-building services shall not be reimbursed if personal care services or attendant care services are being received simultaneously, unless justification is provided why this is necessary in the individual's mental health skill-building services record. Medical record documentation shall fully substantiate the need for services when personal care or attendant care services are being provided. This applies to individuals who are receiving additional services through the Intellectual Disability Waiver (12VAC30-120-1000 et seq.), Individual and Family Developmental Disabilities Support Waiver (12VAC30-120-700 et seq.), the Elderly or Disabled with Consumer Direction Waiver (12VAC30-120-900 et seq.), and EPSDT services (12VAC30-50-130).

i. Mental health skill-building services shall not be duplicative of other services. Providers have a responsibility to ensure that if an individual is receiving additional therapeutic services that there will be coordination of services by either the LMHP, LMHP-R, LMHP-RP, LMHP-S, QMHP-A, QMHP-C, or QMHP-E to avoid duplication of services.

j. Individuals who have organic disorders, such as delirium, dementia, or other cognitive disorders not elsewhere classified, will be prohibited from receiving mental health skill-building services unless their physicians issue a signed and dated statement indicating that the individuals can benefit from this service.

k. Individuals who are not diagnosed with a serious mental health disorder but who have personality disorders or other mental health disorders, or both, that may lead to chronic disability, will not be excluded from the mental health skill-building services eligibility criteria provided that the individual has a primary mental health diagnosis from the list included in 12VAC30-50-226 B 6 b (1) or 12VAC30-50-226 B 6 c (2) and that the provider can document and describe how the individual is expected to actively participate in and benefit from mental health support services.

J. Except as noted in subdivision I 18 of this section and in 12VAC30-50-226 B 6 e, the limits described in this regulation and all others identified in 12VAC30-50-226 shall apply to all service authorization requests submitted to either DMAS or the BHSA as of July 27, 2016. As of July 27, 2016, all annual limits, weekly limits, daily limits, and reimbursement for services shall apply to all services described in 12VAC30-50-226 regardless of the date upon which service authorization was obtained.

12VAC30-130-5160. Peer support services and family support partners: definitions.

The following words and terms when used in this part shall have the following meanings:

"Behavioral health service" means treatments and services for mental or substance use disorders.

"Caregiver" means the family members, friends, or neighbors who provide unpaid assistance to a Medicaid member with a mental health or substance use disorder or co-occurring mental health and substance use disorder. "Caregiver" does not include individuals who are employed to care for the member.

"Direct supervisor" means the person who provides direct supervision to the peer recovery specialist. The direct supervisor (i) shall have two consecutive years of documented practical experience rendering peer support services or family support services, have certification training as a PRS under a certifying body approved by DBHDS, and have documented completion of the DBHDS PRS supervisor training; (ii) shall be a practitioner who has documented completion of the DBHDS PRS supervisor training, meets clauses (i) through (xii) of the definition of "credentialed addiction treatment professional" found in 12VAC30-130-5020, and is acting within his scope of practice under state law; or (iii) shall be a certified substance abuse counselor (CSAC) as defined in § 54.1-3507.1 of the Code of Virginia who has documented completion of the DBHDS PRS supervisor training if he is acting under the supervision or direction of a licensed substance use treatment practitioner or licensed mental health professional. If a practitioner referenced in clause (ii) of this definition or a CSAC referenced in clause (iii) of this definition provides services before April 1, 2018, he shall have until April 1, 2018, to complete the DBHDS PRS supervisor training.

"Peer recovery specialist" or "PRS" means a person who has the qualifications, education, and experience established by the Department of Behavioral Health and Developmental Services and who has received certification in good standing by a certifying body recognized by DBHDS. A PRS is professionally qualified and trained (i) to provide collaborative services to assist individuals in achieving sustained recovery from the effects of mental health disorders, substance use disorders, or both; (ii) to provide peer support as a self-identified individual successful in the recovery process with lived experience with mental health disorders or substance use disorders, or co-occurring mental health and substance use disorders; and (iii) to offer support and assistance in helping others in the recovery and community-integration process. A PRS may be a parent of a minor or adult child with a similar mental health or substance use disorder or co-occurring mental health and substance use disorder, or an adult with personal experience with a family member with a similar mental health or substance use disorder or co-occurring mental health and substance use disorder with experience navigating substance use or behavioral health care services. in 12VAC35-250-10.

"Peer recovery support services" means the same as defined in 12VAC35-250-10.

"Person centered" means a collaborative process where the individual participates in the development of his treatment goals and makes decisions about the services provided.

"Recovery-oriented services" means providing support and assistance to an individual with mental health or substance use disorders or both so that the individual (i) improves his health, recovery, resiliency, and wellness; (ii) lives a self-directed life; and (iii) strives to reach his full potential.

"Recovery, resiliency, and wellness plan" means a written set of goals, strategies, and actions to guide the individual and the health care team to move the individual toward the maximum achievable independence and autonomy in the community. The documented comprehensive wellness plan shall be developed by with the LMHP, LMHP-R, LMHP-RP, or LMHP-S who conducted the assessment and made the recommendation, along with the individual or caregiver, as applicable, the PRS, and the direct supervisor within 30 days of the initiation of services and shall describe how the plan for peer support services and activities will meet the individual's needs. This document shall be updated as the needs and progress of the individual change and shall document the individual's or caregiver's, as applicable, request for any changes in peer support services. The recovery, resiliency, and wellness plan is a component of the individual's overall plan of care and shall be maintained by the enrolled provider in the individual's medical record.

"Resiliency" means the ability to respond to stress, anxiety, trauma, crisis, or disaster.

"Self-advocacy" means an empowerment skill that allows the individual to effectively communicate preferences and choice.

"Strength-based" means to emphasize individual strengths, assets, and resiliencies.

"Supervision" means the ongoing process performed by a direct supervisor who monitors the performance of the PRS and provides regular documented consultation and instruction with respect to the skills and competencies of the PRS.

12VAC30-130-5170. Peer support services and family support partners: service definitions.

A. ARTS peer support services and ARTS family support partners are peer recovery support services and are nonclinical, peer-to-peer activities that engage, educate, and support an individual's, and as applicable the caregiver's, self-help efforts to improve health recovery, resiliency, and wellness. These services shall be available to either:

1. Individuals 21 years of age or older with mental health or substance use disorders or co-occurring mental health and substance use disorders that are the focus of the support; or

2. The caregiver of individuals younger than 21 years of age with mental health or substance use disorders or co-occurring mental health and substance use disorders that are the focus of the support.

3. Individuals 18 through 20 years of age who meet the medical necessity criteria set forth in 12VAC30-130-5180 A who would benefit from receiving peer supports directly, and who choose to receive ARTS peer support services directly instead of through their family shall be permitted to receive peer support services by an appropriate PRS.

B. ARTS peer support services for adults is a person centered, strength-based, and recovery-oriented rehabilitative service for individuals 21 years of age or older provided by a peer recovery specialist successful in the recovery process with lived experience with substance use disorders or co-occurring mental health and substance use disorders who is trained to offer support and assistance in helping others in recovery to reduce the disabling effects of a mental health or substance use disorder or co-occurring mental health and substance use disorder that is the focus of support. Services assist the individual with developing and maintaining a path to recovery, resiliency, and wellness. Specific peer support service activities shall emphasize the acquisition, development, and enhancement of recovery, resiliency, and wellness. Services are designed to promote empowerment, self-determination, understanding, and coping skills through mentoring and service coordination supports, as well as to assist individuals in achieving positive coping mechanisms for the stressors and barriers encountered when recovering from their illness or disorder.

C. Family support partners is a peer recovery support service and a strength-based, individualized service provided to the caregiver of a Medicaid-eligible individual younger than 21 years of age with a mental health or substance use disorder or co-occurring mental health and substance use disorder that is the focus of support. The services provided to the caregiver and the individual must be directed exclusively toward the benefit of the Medicaid-eligible individual. Services are expected to improve outcomes for an individual younger than 21 years of age with complex needs who is involved with multiple systems and increase the individual's and family's confidence and capacity to manage their own services and supports while promoting recovery and healthy relationships. These services are rendered by a PRS who is (i) a parent of a minor or adult child with a similar substance use disorder or co-occurring mental health and substance use disorder or (ii) an adult with personal experience with a family member with a similar mental health or substance use disorder or co-occurring mental health and substance use disorder with experience navigating substance use or behavioral health care services. The PRS shall perform the service within the scope of his knowledge, lived experience, and education.

D. ARTS peer recovery support services shall be rendered on an individual basis or in a group.

12VAC30-130-5190. Peer support services and family support partners: provider and setting requirements.

A. Effective July 1, 2017, a peer recovery specialist shall have the qualifications, education, and experience established, and certification required by DBHDS and show certification in good standing by the U.S. Department of Veterans Affairs, NAADAC - the Association of Addiction Professionals, a member board of the International Certification and Reciprocity Consortium, or any other certifying body or state certification with standards comparable to or higher than those specified by DBHDS to be eligible to register with the Board of Counseling on or after July 1, 2018. Upon the promulgation of regulations by the Board of Counseling, registration of peer recovery specialists by the Board of Counseling shall be required. in accordance with 12VAC35-250. Effective December 18, 2017, peer recovery specialists shall also be registered with the Board of Counseling.

B. Prior to service initiation, a documented recommendation for service assessment by a practitioner who meets clauses (i) through (xii) of the definition of "credentialed addiction treatment professional" found in 12VAC30-130-5020 and who is acting within his scope of practice under state law shall be required. A certified substance abuse counselor, as defined in § 54.1-3507.1 of the Code of Virginia, may also provide a documented recommendation for service assessment if he is acting under the supervision or direction of a licensed substance use treatment practitioner or licensed mental health professional. The PRS shall perform ARTS peer services under the oversight of the practitioner described in this subsection making the recommendation for services conducting the assessment and providing the clinical oversight of the recovery, resiliency, and wellness plan. The recommendation assessment shall verify that the individual meets the medical necessity criteria set forth in 12VAC30-130-5180 A or B, as applicable.

C. The PRS shall be employed by or have a contractual relationship with the enrolled provider licensed for one of the following:

1. Acute care general hospital (ASAM Level 4.0) licensed by the Department of Health as defined in 12VAC30-130-5150.

2. Freestanding psychiatric hospital or inpatient psychiatric unit (ASAM Levels 3.5 and 3.7) licensed by the Department of Behavioral Health and Developmental Services as defined in 12VAC30-130-5130 and 12VAC30-130-5140.

3. Residential placements (ASAM Levels 3.1, 3.3, 3.5, and 3.7) licensed by the Department of Behavioral Health and Developmental Services as defined in 12VAC30-130-5110 through 12VAC30-130-5140.

4. ASAM Levels 2.1 and 2.5, licensed by the Department of Behavioral Health and Developmental Services as defined in 12VAC30-130-5090 and 12VAC30-130-5100.

5. ASAM Level 1.0 as defined in 12VAC30-30-5080.

6. Opioid treatment services as defined in 12VAC30-130-5050.

7. Office-based opioid treatment as defined in 12VAC30-130-5060.

8. Hospital emergency department services licensed by the Department of Health.

9. Pharmacy services licensed by the Department of Health.

D. Only a licensed and enrolled provider referenced in subsection C of this section shall be eligible to bill and receive reimbursement from DMAS or its contractor for ARTS peer support services. Payments shall not be permitted to providers that fail to enter into an enrollment agreement with DMAS or its contractor. Reimbursement shall be subject to retraction for any billed service that is determined to not to be in compliance with DMAS requirements.

E. The direct supervisor, as defined in 12VAC30-130-5160, shall perform direct supervision of the PRS as needed based on the level of urgency and intensity of service being provided. The direct supervisor shall have an employment or contract relationship with the same provider entity that employs or contracts with the PRS. Direct supervisors shall maintain documentation of all supervisory sessions. In no instance shall supervisory sessions be performed less than as provided below:

1. If the PRS has less than 12 months of experience delivering ARTS peer support services or ARTS family support partners, he shall receive face-to-face, one-to-one supervisory meetings of sufficient length to address identified challenges for a minimum of 30 minutes, two times a month. The direct supervisor must be available at least by telephone while the PRS is on duty.

2. If the PRS has been delivering ARTS peer recovery services over 12 months and fewer than 24 months, he must receive monthly face-to-face, one-to-one supervision of sufficient length to address identified challenges for a minimum of 30 minutes. The direct supervisor must be available by telephone for consult within 24 hours of service delivery if needed for challenging situations.

F. The caseload assignment of a full-time PRS shall not exceed 15 individuals at any one time allowing for new case assignments as those on the existing caseload begin to self-manage with less support. The caseload assignment of a part-time PRS shall not exceed nine individuals at any one time. There are no minimum limits for full-time or part-time PRS caseloads.

Titles of Regulations: 12VAC30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (amending 12VAC30-50-440, 12VAC30-50-490; repealing 12VAC30-50-450).

12VAC30-120. Waivered Services (repealing 12VAC30-120-700 through 12VAC30-120-777, 12VAC30-120-1000 through 12VAC30-120-1090, 12VAC30-120-1500 through 12VAC30-120-1550).

12VAC30-122. Community Waiver Services for Individuals with Developmental Disabilities (adding 12VAC30-122-10 through 12VAC30-122-570).

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

Effective Date: March 31, 2021.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Summary:

This regulatory action redesigns three of the existing home and community-based waivers as follows: Individual and Family Developmental Disabilities Support Waiver (12VAC30-120-700 et seq.) is changing to the Family and Individual Supports (FIS) Waiver, Intellectual Disability Waiver (12VAC30-120-1000 et seq.) is changing to the Community Living (CL) Waiver, and the Day Support Waiver for Individuals with Mental Retardation (12VAC30-120-1500 et seq.) is changing to the Building Independence (BI) Waiver. The action repeals the existing regulations found in 12VAC30-120-700 et seq., 12VAC30-120-1000 et seq., and 12VAC30-120-1500 et seq. and promulgates a new chapter for the proposed FIS, CL, and BI Waivers in 12VAC30-122.

The action combines the target populations of individuals with intellectual disabilities and other developmental disabilities and offers new services that are designed to promote improved community integration and engagement. New services include (i) crisis support (including center-based and community-based) services, (ii) shared living supports, (iii) independent living supports, (iv) supported living residential, (v) community engagement supports, (vi) community coaching supports, (vii) community guide supports, (viii) workplace assistance services, (ix) private duty nursing, and (x) electronic home based supports.

The action modifies some existing services and repeals the prevocational service. Current services proposed for retention with modifications include (i) skilled nursing services, (ii) therapeutic consultation, (iii) personal emergency response systems, (iv) assistive technology, (v) environmental modifications, (vi) personal assistance services, (vii) companion services, (viii) respite services, (ix) group day services, (x) group home services, (xi) sponsored residential services, (xii) individual and family caregiver training, (xiii) supported living, (xiv) supported employment, (xv) transition services, and (xvi) services facilitation. For personal assistance services, companion services, and respite services, the proposed action retains the consumer-direction model of service delivery as currently permitted with no further expansion of this model to any of the other existing or new services.

Information gathered via the three-part Virginia Individual Developmental Disabilities Eligibility Survey (VIDES) and the Virginia Supplemental Questions plus financial eligibility determination are proposed to be combined with the Supports Intensity Scale^® service needs assessment instrument through the person-centered planning process to develop each individual's unique individual service plan.

The action (i) establishes seven levels of supports to create the most equitable distribution of funding for core waiver services; (ii) uses common definitions of intellectual disability and developmental disability; (iii) establishes standards for a uniform waiting list and criteria for how individuals on the waiting list are provided their choice of available services; (iv) merges the FIS, CL, and BI Waivers target populations under the single definition of developmental disability and the individual eligibility sections into a single set of regulations at 12VAC30-122-30, 12VAC30-122-50, and 12VAC30-122-60; and (v) updates the provisions regarding case management.

Changes to the proposed regulation update citations, program components, and descriptions of current practices; clarify requirements, per public comment received on the proposed regulation; and make terms and requirements more consistent. Specific changes to the proposed regulation include (i) adjustments to timelines for waiver slot acceptance or decline; (ii) addition of language treating impact of overseas active duty military service on waiver status; (iii) clarifications to staff competency determination process by adding deemed competency, clarification of personnel record documentation, replacing Levels 6 or 7 with Tier 4, and timelines for competency; (iv) a change to the assessment tool used for children younger than five years of age; (v) inclusion of benefits planning services, community guide services, employment and community transportation services, and peer support services; and (vi) removal of EPDST consideration from skilled nursing 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.

12VAC30-50-440. Case Support coordination/case management services for individuals with mental retardation intellectual disability.

A. Target Group. Medicaid eligible individuals who are mentally retarded have an intellectual disability as defined in [ state law § 37.2-100 of the Code of Virginia ].

1. An active client individual for mental retardation case intellectual disability support coordination/case management shall mean an individual a person for whom there is a plan of care an individual support plan (ISP) [ (as defined in 12VAC30-122-20) ] in effect which that requires regular direct or client-related individual-related contacts or communication or activity with the client individual, the individual's family or caregiver, service providers, significant others, and others including at least one face-to-face contact with the individual every 90-days 90 days. Billing can be submitted for an active client individual only for months in which direct or client-related individual-related contacts, activity, or communications occur, [ consistent with the ISP ].

2. The unit of service is one month. There shall be no maximum service limits for case management support coordination/case management services except case management services for as related to individuals residing in institutions or medical facilities. For these individuals, reimbursement for case management support coordination/case management shall be limited to thirty 30 days immediately preceding discharge. Case management Support coordination/case management for institutionalized individuals who reside in an institution may be billed for no more than two predischarge periods in twelve within 12 months.

B. Services will be provided in the entire State state.

C. Comparability of Services services: Services are not comparable in amount, duration, and scope. Authority of section § 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 services. Mental retardation Intellectual disability support coordination/case management services to be provided include:

1. Assessment and planning services, to include developing a Consumer Service Plan (does an individual support plan (ISP) [ as defined on 12VAC30-122-20 and in accordance with the requirements of the Final Rule found at 42 CFR 441.725 ], which does not include performing medical and psychiatric assessment but does include referral for such assessment) assessment;

2. Linking the individual to services and supports specified in the consumer service plan ISP;

3. Assisting the individual directly for the purpose of locating, [ developing identifying ], or obtaining needed services and resources;

4. Coordinating services and service planning with other agencies and providers involved with the individual;

5. Enhancing community integration by contacting other entities to arrange community access and involvement, including opportunities to learn community living skills, and to use vocational, civic, and recreational services;

6. Making collateral contacts with the individual's significant others to promote implementation of the service plan ISP and community adjustment integration;

7. Following-up Following up and monitoring to assess ongoing progress and ensuring services are delivered; and

8. Education and counseling which that guides the client individual and develops a supportive relationship that promotes the service plan ISP.

E. Qualifications of providers:

1. [ Services are not comparable in amount, duration, and scope. Authority of § 1915(g)(1) of the Act is invoked to limit ] case [ support Support ] coordination/case management providers for individuals with mental retardation intellectual disability [ and ] serious/chronic [ serious or chronic mental illness shall be limited ] to the Community Services Boards community services boards [ only to enable them to provide services to ] serious/chronically [ seriously or chronically mentally ill or ] mentally retarded [ individuals with an intellectual disability without regard to the requirements of § 1902(a)(10)(B) of the Act ]. References to providers in this section shall refer to enrolled community services boards.

2. To qualify as a provider of services through enrolled with DMAS for rehabilitative mental retardation case intellectual disability support coordination/case management, the provider of the services must shall meet certain criteria. These criteria shall be:

a. The provider must shall guarantee that clients individuals have access to emergency services on a 24-hour basis;

b. The provider must shall demonstrate the ability to serve individuals in need of comprehensive services regardless of the individual's ability to pay or eligibility for Medicaid reimbursement;

c. The provider must shall have the administrative and financial management capacity to meet state and federal requirements;

d. The provider must have the ability to shall document and maintain individual case records in accordance with state and federal requirements;

[ e. The provider shall submit the individual support plan in an electronic format in the state DD home and community-based services (HCBS) waiver management system for service authorization and data management for individuals enrolled in any DD HCBS waiver. The provider shall submit evidence to Department of Medical Assistance Services (DMAS) or the Department of Behavioral Health and Developmental Services (DBHDS) in specified format of follow-up and monitoring to assess ongoing progress of the ISP, ensuring services are delivered and health and safety is maintained;

f. The provider shall participate in activities designed to safeguard participants' health and safety in accordance with approved DD HCBS waiver requirements or DBHDS licensing standards; and

g. The provider shall participate in activities designed to assure ongoing compliance by DD HCBS waiver participants' providers of service subject to the Final Rule Settings Requirements found at 42 CFR 441.301(4) and as described in the approved Statewide Transition Plan; ]

[ e. h. ] The services shall be in accordance with the Virginia Comprehensive [ State Plan for ] Mental Health, Mental Retardation and Substance Abuse Services [ Medical Assistance ]; and

[ f. i. ] The provider must be certified licensed as [ a ] mental retardation case [ an intellectual developmental ] disability support coordination/case management agency by the DMHMRSAS Department of Behavioral Health and Developmental Services.

3. Providers may bill for Medicaid mental retardation case intellectual disability support coordination/case management only when the services are provided by qualified mental retardation case managers support coordinators/case managers. The case manager must support coordinator/case manager shall possess a combination of mental retardation intellectual disability work experience [ or and ] relevant education which that indicates that the individual incumbent, at entry level, possesses the following knowledge, skills, and abilities listed in this subdivision. The incumbent must have at entry level the following knowledge, skills and abilities. These must be documented or observable in the application form or supporting documentation or in observable and documented during the interview (with appropriate supporting documentation).

a. Knowledge of:

(1) The definition, and causes of intellectual disability and program philosophy of mental retardation best practices in supporting individuals who have intellectual disability;

(2) Treatment modalities and intervention techniques, such as behavior management positive behavior supports, person-centered practices, independent living skills training, [ community inclusion/employment skills, ] supportive [ counseling guidance ], family education, crisis intervention, discharge planning, and service support coordination;

(3) Different types of assessments and their uses in program service planning;

(4) Consumers' Individuals' civil and human rights;

(5) Local community resources and service delivery systems, including support services, eligibility criteria and intake process, termination criteria and procedures, and generic community resources;

(6) Types of mental retardation intellectual disability programs and services;

(7) Effective oral, written, and interpersonal communication principles and techniques;

(8) General principles of [ record ] documentation; and

(9) The service planning process and the major components of a service plan an ISP.

b. Skills in:

(1) Interviewing;

(2) Negotiating with consumers individuals and service providers;

(3) Observing, recording and reporting and documenting an individual's behaviors;

(4) Identifying and documenting a consumer's an individual's needs for resources, services, and other assistance;

(5) Identifying services within the established service system to meet the consumer's individual's needs [ and preferences ];

(6) Coordinating the provision of services [ for the individual ] by diverse public and private providers [ , generic and natural supports ];

(7) Using information from assessments, evaluations, observation observations, and interviews to develop [ and revise as needed ] service support plans;

(8) Formulating, writing, and implementing [ individualized consumer ] service [ individual ] support plans to promote goal attainment [ and community integration ] for individuals with mental retardation intellectual disability;

(9) Using [ information from ] assessment tools [ , evaluations, observations, and interviews to develop and revise as needed individual support plans (for example to ensure the ISP is implemented appropriately, identify change in status or to determine risk of crisis/hospitalization) ]; and

(10) Identifying community resources and organizations and coordinating resources and activities.

c. Abilities to:

(1) Demonstrate a positive regard for consumers individuals and their families (e.g., treating consumers people as individuals, allowing risk taking, avoiding stereotypes of people with mental retardation intellectual disability, respecting consumers' individual and families' family privacy, and believing consumers individuals can grow [ and contribute to their communities ]);

(2) Be persistent and remain objective;

(3) Work as team member, maintaining effective inter- interagency and intra-agency working relationships;

(4) Work independently, performing position duties under general supervision;

(5) Communicate effectively, verbally and in writing; and

(6) Establish and maintain ongoing supportive relationships.

F. The State state assures that the provision of case support coordination/case management services will not restrict an individual's free choice of providers in violation of § 1902(a)(23) of the Act [ and the Final Rule at 42 CFR 441.301(c)(1)(vi) ].

1. [ Eligible recipients Enrolled individuals ] will have free choice of the [ available ] providers of case support coordination/case management services.

2. [ Eligible recipients Enrolled individuals ] will have free choice of the providers of other medical care under the plan State Plan [ for Medical Assistance ].

G. Payments for case management support coordination/case management services under the plan does State Plan [ for Medical Assistance ] shall not duplicate payments made to public agencies or private entities under other program authorities for this same purpose.

12VAC30-50-450. Case management services for individuals with mental retardation and related conditions who are participants in the Home and Community-Based Care waivers for such individuals. (Repealed.)

A. Target group: Medicaid eligible individuals with mental retardation and related conditions, or a child under 6 years of age who is at developmental risk, who have been determined to be eligible for Home and Community Based Care Waiver Services for persons with mental retardation and related conditions.

1. An active client for waiver case management shall mean an individual who receives at least one face-to-face contact every 90 days and monthly on-going case management interactions. There shall be no maximum service limits for case management services. Case management services may be initiated up to 3 months prior to the start of waiver services, unless the individual is institutionalized.

2. There shall be no maximum service limits for case management services except case management services for individuals residing in institutions or medical facilities. For these individuals, reimbursement for case management shall be limited to thirty days immediately preceding discharge. Case management for institutionalized individuals may be billed for no more than two predischarge periods in twelve months.

B. Services will be provided in entire State.

C. Comparability of Services. Services are not comparable in amount, duration, and scope. Authority of section 1915(g)(1) of the Act is invoked to provide services without regard to the requirements of section 1902(a)(10)(B) of the Act.

D. Definition of Services. Mental retardation case management services to be provided include:

1. Assessment and planning services, to include developing a Consumer Service Plan (does not include performing medical and psychiatric assessment but does not include referral for such assessment);

2. Linking the individual to services and supports specified in the consumer service plan;

3. Assisting the individual directly for the purpose of locating, developing or obtaining needed services and resources;

4. Coordinating services with other agencies and providers involved with the individual;

5. Enhancing community integration by contacting other entities to arrange community access and involvement, including opportunities to learn community living skills, and use vocational, civic and recreational services;

6. Making collateral contacts with the individual's significant others to promote implementation of the service plan and community adjustment; and

7. Following-up and monitoring to assess ongoing progress and ensuring services are delivered; and

8. Education and counseling which guides the client and develop a supportive relationship that promotes the service plan.

E. Qualifications of Providers:

1. Services are not comparable in amount, duration, and scope. Authority of § 1915(g)(1) of the Act is invoked to limit case management providers for individuals with mental retardation and serious/chronic mental illness to the Community Services Boards only to enable them to provide services to seriously or chronically mentally ill or mentally retarded individuals without regard to the requirements of § 1902(a)(10)(B) of the Act.

2. To qualify as a provider of services through DMAS for rehabilitative mental retardation case management, the provider of the services must meet certain criteria. These criteria shall be:

a. The provider must guarantee that clients have access to emergency services on a 24 hour basis;

b. The provider must demonstrate the ability to serve individuals in need of comprehensive services regardless of the individuals' ability to pay or eligibility for Medicaid reimbursement;

c. The provider must have the administrative and financial management capacity to meet state and federal requirements;

d. The provider must have the ability to document and maintain individual case records in accordance with state and federal requirements;

e. The services shall be in accordance with the Virginia Comprehensive State Plan for Mental Health, Mental Retardation and Substance Abuse Services; and

f. The provider must be certified as a mental retardation case management agency by the DMHMRSAS.

3. Providers may bill for Medicaid mental retardation case management only when the services are provided by qualified mental retardation case managers. The case manager must possess a combination of mental retardation work experience or relevant education which indicates that the individual possesses the following knowledge, skills, and abilities, at the entry level. These must be documented or observable in the application form or supporting documentation or in the interview (with appropriate documentation).

a. Knowledge of:

(1) The definition, causes and program philosophy of mental retardation

(2) Treatment modalities and intervention techniques, such as behavior management, independent living skills training, supportive counseling, family education, crisis intervention, discharge planning and service coordination;

(3) Different types of assessments and their uses in program planning

(4) Consumers' rights

(5) Local service delivery systems, including support services

(6) Types of mental retardation programs and services

(7) Effective oral, written and interpersonal communication principles and techniques

(8) General principles of record documentation

(9) The service planning process and the major components of a service plan

b. Skills in:

(1) Interviewing

(2) Negotiating with consumers and service providers

(3) Observing, records and reporting behaviors

(4) Identifying and documenting a consumer's needs for resources, services and other assistance

(5) Identifying services within the established service system to meet the consumer's needs

(6) Coordinating the provision of services by diverse public and private providers

(7) Analyzing and planning for the service needs of mentally retarded persons

(8) Formulating, writing and implementing individualized consumer service plans to promote goal attainment for individuals with mental retardation

(9) Using assessment tools.

c. Abilities to:

(1) Demonstrate a positive regard for consumers and their families (e.g., treating consumers as individuals, allowing risk taking, avoiding stereotypes of mentally retarded people, respecting consumers' and families' privacy, believing consumers can grow)

(2) Be persistent and remain objective

(3) Work as team member, maintaining effective inter- and intra-agency working relationships

(4) Work independently, performing positive duties under general supervision

(5) Communicate effectively, verbally and in writing

(6) Establish and maintain ongoing supportive relationships.

F. The State assures that the provision of case management services will not restrict an individual's free choice of providers in violation of § 1902(a)(23) of the Act.

1. Eligible recipients will have free choice of the providers of case management services.

2. Eligible recipients will have free choice of the providers of other medical care under the plan.

G. Payment for case management services under the plan shall not duplicate payments made to public agencies or private entities under other program authorities for this same purpose.

12VAC30-50-490. Case Support coordination/case management for individuals with developmental disabilities [ , including autism ].

A. Target group. Medicaid-eligible individuals with developmental disability [ (other than intellectual disability) ] or related conditions [ who are six years of age and older and as defined in § 37.2-100 of the Code of Virginia ] who are on the waiting list or are receiving services under one of the Individual and Family Developmental Disabilities Support (IFDDS) Waiver Developmental Disabilities (DD) Waivers.

1. [ When an individual applies for the DD Waivers and is found to meet the criteria as defined in 12VAC30-122-50, but there is no available slot, the individual will be placed on a waitlist until a slot is available. Individuals on the waitlist shall not receive developmental disability support coordination/case management services unless a special service need (as defined in subdivision 4 of this subsection) is identified, in which case an ISP shall be developed to address the special service need. Support coordinators/case managers shall make face-to-face contact with the individual at least every 90 calendar days to monitor the special service need, and documentation is required to support such contact. The support coordinator/case manager shall assure the ISP addresses the current special service needs of the individual and shall coordinate with the Department of Medical Assistance Services designee to assure actual enrollment into the waiver upon slot availability.

2. ] An active client individual for case [ developmental disability ] support coordination/case management shall mean an individual a person for whom there is a plan of care an individual support plan (ISP), as defined in 12VAC30-122-20, that requires regular direct or client-related individual-related contacts or communication or activity with the client individual, family the individual's family/caregiver, service providers, and significant others and others including at least one face-to-face contact every 90 calendar days. Billing can be submitted for an active client individual only for months in which direct or client-related individual-related contacts, activity, or communications occur, consistent with the [ activities goals or outcomes ] in the individual's ISP. Face-to-face contact between the support coordinator/case manager [ and the individual ] shall occur at least every [ three months 90 calendar days ] in which there is an activity submitted for billing.

[ 2. When an individual applies for the ] IFDDS Waiver [ DD Waivers and is found to meet the criteria as defined in 12VAC30-122-50, but ] there is no available funding (slots) slot, he will be placed on a waitlist until ] funding [ a slot is available. ] The "Initial Waitlist Plan of Care" is completed with the case manager and identifies the services anticipated once a slot is available. Individuals on the waitlist do not have routine case management services unless there is a documented special service need in the plan of care. Case managers may Individuals on the waitlist shall not receive developmental disability support coordination/case management services unless a special service need (as defined in subdivision 4 of this subsection) is identified, in which case an ISP shall be developed to address the special service need. Support coordinators/case managers shall make face-to-face contact with the individual at least every 90 calendar days to monitor the special service need, and documentation is required to support such contact. The ] case manager will [ support coordinator/case manager shall assure the ] plan of care [ ISP addresses the current special service needs of the individual and ] will [ shall coordinate with ] DMAS [ the Department of Medical Assistance Services designee to assure actual enrollment into the waiver upon slot availability. ]

3. The unit of service is one month. There shall be no maximum service limits for case support coordination/case management services except case management services for as related to individuals residing in [ medical ] institutions or medical facilities. For these individuals, reimbursement for case support coordination/case management for institutionalized individuals services [ shall be limited to 90 days immediately preceding discharge from those settings. Support coordination/case management for individuals in a medical institution or facility ] may be billed for no more than two [ months 90-day periods ] in a 12-month cycle period.

4. The unit of service is one month. There shall be no maximum service limits for case management services except case management services for individuals residing in institutions or medical facilities. For these individuals, reimbursement for case management for institutionalized individuals may be billed for no more than two months in a 12-month cycle. A special service need is one that requires linkage to and temporary monitoring of those supports and services identified in the ISP to address an individual's mental health, behavioral, and medical needs or provide assistance related to an acute need that coincides with the allowable activities noted in subsection D of this section. If an activity related to the special service need is provided in a given month, then the support coordinator/case manager would be eligible for reimbursement. Once the special service need is addressed related to the specific activity identified, billing for the service shall not continue until a special service need presents again.

B. Services will be provided in the entire state.

C. Comparability of services. Services are not comparable in amount, duration, and scope. Authority of § 1915(g)(1) of the Social Security Act (Act) is invoked to provide services without regard to the requirements of § 1902(a)(10)(B) of the Act and to limit support coordination/case management providers to the community services boards or behavioral health authorities (CSBs or BHAs). CSBs or BHAs [ may shall ] contract with private support coordinators/case managers for this service [ in accordance with subdivision F 1 of this section ].

D. Definition of services. Case Support coordination/case management services will be provided for Medicaid-eligible individuals with developmental disability or related conditions who are on the [ DD Waivers ] waiting list for or participants enrolled in one of the home and community-based care IFDDS Waiver services DD Waivers. Case Support coordination/case management services to that may be provided include:

1. Assessment and planning services, to include developing a consumer service plan (does an ISP [ as defined on 12VAC30-122-20 and in accordance with the requirements of the Final Rule found at 42 CFR 441.725 ], which does not include performing medical and psychiatric assessment but does include referral for such assessments) assessment;

2. Linking the individual to services and supports specified in the consumer service plan ISP;

3. Assisting the individual directly for the purpose of locating, developing, or obtaining needed services and resources;

4. Coordinating services and service planning with other agencies and providers involved with the individual;

5. Enhancing community integration by contacting other entities to arrange community access and involvement, including opportunities to learn community living skills and to use vocational, civic, and recreational services;

6. Making collateral contacts with the individual's significant others to promote implementation of the service plan ISP and community adjustment integration;

7. Following up and monitoring to assess ongoing progress and ensure services are delivered [ as outlined in the ISP and addressing any change of status; and ];

8. [ 7. ] Education and [ counseling that guides guidance that supports ] the individual and develops a supportive relationship that promotes the service plan ISP [ ; and ].

[ 9. 8. Benefits counseling. ]

E. Qualifications of providers. In addition to meeting the general conditions and requirements for home and community-based care participating providers as specified in 12VAC30-120-730 and 12VAC30-120-740, specific provider qualifications are:

1. To qualify as a provider of services through DMAS for IFDDS Waiver case management, the service provider must meet these criteria:

a. Have the administrative and financial management capacity to meet state and federal requirements;

b. Have the ability to document and maintain recipient case records in accordance with state and federal requirements; and

c. Be enrolled as an IFDDS case management agency by DMAS.

2. Providers may bill for Medicaid case management only when the services are provided by qualified case managers. The case manager must possess a combination of developmental disability work experience or relevant education, which indicates that the individual possesses the following knowledge, skills, and abilities, at the entry level. These must be documented or observable in the application form or supporting documentation or in the interview (with appropriate documentation).

1. CSBs or BHAs shall have current, signed provider agreements with the Department of Medical Assistance Services (DMAS) and shall directly bill DMAS for reimbursement. CSBs or BHAs [ may shall ] contract with other entities to provide support coordination/case management [ in accordance with subdivision F 1 of this section ].

2. Support coordinators/case managers shall not be (i) the direct care staff person, [ as defined in 12VAC30-122-20 ], (ii) the immediate supervisor of the direct care staff person, (iii) otherwise related by business or organization to the direct care staff person, or (iv) an immediate family member of the direct care staff person.

3. Support coordination/case management services shall not be provided to the individual by (i) parents, guardians, spouses, or any family living with the individual or (ii) parents, guardians, spouses, or any family employed by an organization that provides support coordination/case management for the individual except in cases where the family member was employed by the case management entity prior to implementation of this chapter.

4. Providers of developmental disability support coordination/case management services shall meet the following criteria:

a. The provider shall guarantee that individuals have access to emergency services on a 24-hour basis pursuant to § 37.2-500 of the Code of Virginia;

b. The provider shall demonstrate the ability to serve individuals in need of comprehensive services regardless of the individual's ability to pay or eligibility for Medicaid;

c. The provider shall have the administrative and financial management capacity to meet state and federal requirements;

d. The provider shall document and maintain individual case records in accordance with state and federal requirements; and

e. [ The provider shall submit the individual support plan in an electronic format in the state DD home and community-based services (HCBS) waiver management system for service authorization and data management for individuals enrolled in any DD HCBS waiver. The provider shall submit evidence of follow-up and monitoring to assess ongoing progress of the ISP, ensuring services are delivered and health and safety is maintained;

f. The provider shall participate in activities designed to safeguard participants' health and safety in accordance with approved DD HCBS waiver requirements or DBHDS licensing standards;

g. The provider shall participate in activities designed to assure ongoing compliance by DD HCBS waiver participants' providers of service subject to the Final Rule Settings Requirements found at 42 CFS 441.301(4) and as described in the approved Statewide Transition Plan; and

h. ] The provider shall be licensed as a support coordination/case management entity.

5. The provider shall ensure that support coordinators/case managers who provide developmental disability support coordination/case management services and were hired after September 1, 2016, shall possess a minimum of a bachelor's degree in a human services field or be a registered nurse. Support coordinators/case managers hired before September 1, 2016, who do not possess a minimum of a bachelor's degree in a human services field [ or are not a registered nurse ] may continue to provide support coordination/case management if they are employed by or contracting with an entity that has [ or had ] a Medicaid provider participation agreement to provide developmental disability support coordination/case management prior to February 1, 2005, and the support coordinator/case manager has maintained employment with the provider without interruption and that is documented in the personnel record.

6. In addition to the requirements in subdivision 5 of this subsection, the support coordinator/case manager shall possess developmental disability work experience or relevant education that indicates that at entry level he possesses the following knowledge, skills, and abilities that shall be documented in the employment application form or supporting documentation or during the job interview:

a. Knowledge of:

(1) The definition, and causes, of developmental disability and program philosophy of best practices in supporting individuals who have developmental disabilities;

(2) Treatment modalities and intervention techniques, such as behavior management positive behavioral supports, person-centered practices, independent living skills, training, [ community inclusion/employment training, ] supportive [ counseling guidance ], family education, crisis intervention, discharge planning, and service coordination;

(3) Different types of assessments and their uses in program planning determining the specific needs of the individual with respect to his ISP;

(4) Individuals' human and civil rights;

(5) Local service delivery systems, including support services;

(6) Types of developmental disability programs and services [ Programs Types of programs ] and services that support individuals with developmental disabilities;

(7) Effective oral, written, and interpersonal communication principles and techniques;

(8) General principles of [ record ] documentation; and

(9) The service planning process and the major components of a service plan the ISP.

b. Skills in:

(1) Interviewing;

(2) Negotiating with individuals and service providers;

(3) Observing, recording, and reporting and documenting an individual's behaviors;

(4) Identifying and documenting an individual's needs for resources, services, and other assistance;

(5) Identifying services within the established service system to meet the individual's needs [ and preferences ];

(6) Coordinating the provision of services by diverse public and private providers [ and generic and natural supports ];

(7) Analyzing and planning for the service needs of developmentally disabled persons individuals with developmental disability;

(8) Formulating, writing, and implementing individual-specific service support plans to promote goal attainment for recipients with developmental disabilities designed to facilitate attainment of the individual's unique goals for a meaningful, quality life; and

(9) Using [ assessment tools information from assessments, evaluations, observations, and interviews to develop and revise as needed individual support plans tools (e.g., to ensure the ISP is implemented appropriately, identify change in status, or to determine risk of crisis/hospitalization). ]

c. Abilities to:

(1) Demonstrate a positive regard for individuals and their families (e.g., allowing risk taking, avoiding stereotypes of developmentally disabled people with developmental disabilities, respecting individuals' individual and families' family privacy, believing individuals can grow [ and contribute to their community ]);

(2) Be persistent and remain objective;

(3) Work as a team member, maintaining effective inter- interagency and intra-agency working relationships;

(4) Work independently, performing positive position duties under general supervision;

(5) Communicate effectively, orally and in writing; and

(6) Establish and maintain ongoing supportive relationships.

3. In addition, case managers who enroll with DMAS to provide case management services after (insert the effective date of these regulations) must possess a minimum of an undergraduate degree in a human services field. Providers who had a Medicaid participation agreement to provide case management prior to February 1, 2005, and who maintain that agreement without interruption may continue to provide case management using the KSA requirements effective prior to February 1, 2005.

4. Case managers who are employed by an organization must receive supervision within the same organization. Case managers who are self-employed must obtain one hour of documented supervision every three months when the case manager has active cases. The individual who provides the supervision to the case manager must have a master's level degree in a human services field and/or have five years of satisfactory experience in the field working with individuals with related conditions as defined in 42 CFR 435.1009. A case management provider cannot supervise another case management provider.

5. Case managers must complete eight hours of training annually in one or a combination of the areas described in the knowledge, skills and abilities (KSA) subdivision. Case managers must have documentation to demonstrate training is completed. The documentation must be maintained by the case manager for the purposes of utilization review.

6. Parents, spouses, or any person living with the individual may not provide direct case management services for their child, spouse or the individual with whom they live or be employed by a company that provides case management for their child, spouse, or the individual with whom they live.

7. A case manager may provide services facilitation services. In these cases, the case manager must meet all the case management provider requirements as well as the service facilitation provider requirements. Individuals and their family/caregivers, as appropriate, have the right to choose whether the case manager may provide services facilitation or to have a separate services facilitator and this choice must be clearly documented in the individual's record. If case managers are not services facilitation providers, the case manager must assist the individual and his family/caregiver, as appropriate, to locate an available services facilitator.

8. If the case manager is not serving as the individual's services facilitator, the case manager may conduct the assessments and reassessment for CD services if the individual or his family/caregiver, as appropriate, chooses. The individual's choice must be clearly documented in the case management record along with which provider is responsible for conducting the assessments and reassessments required for CD services.

7. Support coordinators/case managers shall receive supervision within the employing organization. The supervisor of the support coordinator/case manager shall have either:

a. A master's degree in a human services field and one year of required documented experience working with individuals who have developmental disabilities as defined in § 37.2-100 of the Code of Virginia;

b. A registered nurse license in the Commonwealth, or hold a multistate licensure privilege and one year of documented experience working with individuals who have developmental disabilities as defined in § 37.2-100 of the Code of Virginia;

c. A bachelor's degree and two years of experience working with individuals who have developmental disabilities as defined in § 37.2-100 of the Code of Virginia;

d. A high school diploma or GED and five years of paid experience in developing, conducting, and approving assessments and ISPs as well as working with individuals who have developmental disabilities as defined in § 37.2-100 of the Code of Virginia;

e. A [ doctor of medicine license or doctor of osteopathy ] license [ to practice medicine or osteopathic medicine ] in the Commonwealth and one year of required documented experience working with individuals who have developmental disabilities as defined in § 37.2-100 of the Code of Virginia; or

f. Requirements as set out in the Department of Behavioral Health and Developmental Disabilities licensing regulations (12VAC35-105-1250).

8. Support coordinators/case managers shall obtain at least one hour of documented supervision at least every [ three months 90 calendar days ].

9. A support coordinator/case manager shall complete a minimum of eight hours of training annually in one or more of a combination of areas described in the knowledge, skills, and abilities in subdivision 6 of this subsection and shall provide documentation to his supervisor that demonstrates that training is completed. The documentation shall be maintained by the supervisor of the support coordinator/case manager in the employee's personnel file for the purposes of utilization review. This documentation shall be provided to the Department of Medical Assistance Services and the Department of Behavioral Health and Developmental Services upon request.

F. The state assures that the provision of case management support coordination/case management services will not restrict an individual's free choice of providers in violation of § 1902(a)(23) of the Act [ and the Final Rule at 42 CFR 441.301(c)(1)(vi) ].

1. Eligible recipients will have free choice of the providers of case management services. To provide choice to individuals who are enrolled in the Developmental Disabilities (DD) Waivers (Building Independence (BI), Community Living (CL), and Family and Individual Supports (FIS)), CSBs or BHAs [ may shall ] contract with private support coordination/case management entities to provide developmental disabilities support coordination/case management services. If there are no qualified providers in that CSB's or BHA's catchment area, then the CSB or BHA shall provide the support coordination/case management services. The CSBs or BHAs shall be the only licensed entities permitted to be reimbursed for developmental disabilities or intellectual disability support coordination/case management services. For those individuals who receive developmental disabilities support coordination/case management services:

a. The CSB or BHA that serves the individual shall be the responsible provider of support coordination/case management. This CSB or BHA shall be the provider responsible for submitting claims to the Department of Medical Assistance Services (DMAS) for reimbursement.

b. The CSB shall inform the individual that the individual has a choice with respect to the support coordination/case management services that he receives. The individual shall be informed that he can choose from among these options:

(1) The individual may have his choice of support coordinator/case manager employed by the CSB or BHA.

(2) The individual may have his choice of another CSB or BHA with which the responsible CSB or BHA provider has a memorandum of agreement if the individual or family decides [ that no choice not to choose ] is desired in the responsible CSB or BHA provider.

(3) The individual may have a choice of a designated private provider with whom the responsible CSB or BHA provider has a contract for support coordination/case management if the individual or family decides not to choose the responsible CSB or BHA provider or another CSB or BHA when there is a memorandum of agreement.

c. At any time, the individual or family may request to change their support coordinator/case manager.

2. Eligible recipients individuals will have free choice of the providers of other medical care under the plan State Plan [ for Medical Assistance ].

[ 3. When the required support coordination/case management services are contracted out to a private entity, the responsible CSB or BHA provider shall remain the Medicaid enrolled provider for the purpose of submitting claims to DMAS for reimbursement. Only the responsible CSB or BHA provider shall be permitted to submit claims to DMAS for reimbursement of support coordination/case management services. ]

G. Payment for case management support coordination/case management services under the plan does State Plan shall not duplicate payments made to public agencies or private entities under other program authorities for this same purpose.

EDITOR'S NOTE: Parts VIII, Individual and Family Developmental Disabilities Support Waiver, consisting of 12VAC30-120-700 through 12VAC30-120-777; Part X, Intellectual Disability Waiver, consisting of 12VAC30-1201000 through 12VAC30-120-1090; and Part XV, consisting of 12VAC30-120-1500 through 12VAC30-120-1550 are being repealed in their entirety in this final action and are not set out below. The full text of the repealed provisions of these Parts was published at the proposed stage in 35:12 VA.R. 1479-1569 February 4, 2019.

Chapter 122

Community Waiver Services for Individuals with Developmental Disabilities

12VAC30-122-10. Purpose; legal authority; covered services; aggregate cost effectiveness; required individual and provider enrollment; individual costs.

1. Supports individuals with developmental disabilities to live integrated and engaged lives in their communities;

2. Standardizes and simplifies access to services;

3. Sets out and defines services that promote community integration and engagement; [ and ]

4. Improves provider capacity and quality to render covered services; [ and

5. Facilitates meeting the Commonwealth's commitments under the community integration mandate of the Americans with Disabilities Act (42 USC § 12101 et seq.), the Supreme Court's decision in Olmstead v. L.C. (527 U.S. 581 (1999)), and the 2012 Settlement Agreement in United States of America v. Commonwealth of Virginia. ]

B. Legal authority.

1. Selected home and community-based waiver services shall be available through § 1915(c) waivers of the Social Security Act (42 USC § 1396n). The waivers shall be named (i) Family and Individual Supports (FIS), (ii) Community Living (CL), and (iii) Building Independence (BI) and are collectively referred to as the Developmental Disabilities (DD) Waivers. These waiver services shall be required, appropriate, and medically necessary to maintain an individual in the community instead of placement in an institution.

2. The Department of Medical Assistance Services (DMAS), the single state agency pursuant to 42 CFR 431.10 responsible for administrative authority over service authorizations, delegates the processing of service authorizations and daily operations to the Department of Behavioral Health and Developmental Services in accordance with the interagency Memorandum of Understanding. DMAS shall be the single state agency authority pursuant to 42 CFR 431.10 for payment of claims for the services covered in the DD Waivers and for obtaining federal financial participation from the Centers for Medicare and Medicaid Services.

C. Covered services. The services covered in the Developmental Disabilities Waivers shall be:

1. Assistive technology service (12VAC30-122-270;

2. Benefits planning service (12VAC30-122-280 [ - reserved ]);

3. Center-based crisis support service (12VAC30-122-290);

4. Community-based crisis support service (12VAC30-122-300);

5. Community coaching service (12VAC30-122-310);

6. Community [ guide engagement ] service (12VAC30-122-320 [ - reserved ]);

7. Community [ engagement guide ] service (12VAC30-122-330 [ - reserved) ]);

8. Companion service (12VAC30-122-340);

9. Crisis support service (12VAC30-122-350);

10. Electronic home-based support service (12VAC30-122-360);

11. Environmental modification service (12VAC30-122-370);

12. Group day service (12VAC30-122-380);

13. Group home residential service (12VAC30-122-390);

14. Group and individual supported employment service (12VAC30-122-400);

15. In-home support service (12VAC30-122-410);

16. Independent living support service (12VAC30-122-420);

17. Individual and family/caregiver training service (12VAC30-122-430);

18. [ Nonmedical transportation service Employment and Community Transportation ] (12VAC30-122-440 [ - reserved ]);

19. Peer support service (12VAC30-122-450 [ - reserved ]);

20. Personal assistance service (12VAC30-122-460);

21. Personal emergency response system service (12VAC30-122-470);

22. Private duty nursing service (12VAC30-122-480);

23. Respite service (12VAC30-122-490);

24. Services facilitation service (12VAC30-122-500);

25. Shared living support service (12VAC30-122-510);

26. Skilled nursing service (12VAC30-122-520);

27. Sponsored residential support service (12VAC30-122-530);

28. Supported living residential service (12VAC30-122-540);

29. Therapeutic consultation service (12VAC30-122-550);

30. Transition service (12VAC30-122-560); and

31. Workplace assistance service (12VAC30-122-570).

D. Aggregate cost effectiveness. Federal waiver requirements, as established in § 1915 of the Social Security Act and 42 CFR 430.25, provide that the average per capita fiscal year expenditures in the aggregate under the DD Waivers shall not exceed the average per capita expenditures in the aggregate for the level of care provided in ICFs/IID, as defined in 42 CFR 435.1010 and 42 CFR 483.440, under the State Plan for Medical Assistance that would have been provided had the DD Waivers not been granted.

E. No waiver services shall be reimbursed until after both the provider enrollment process and the individual eligibility determination process have been completed [ and the individual is enrolled in a waiver ]. A determination of individual eligibility for waiver services shall not determine claim reimbursement. [ Individuals shall be enrolled to receive services in order for provider reimbursement to occur. To be considered for reimbursement, a provider's claims must be for services rendered to individuals enrolled to receive waiver services. ]

1. No back-dated payments shall be made for services that were rendered before the completion of the provider enrollment and the individual [ eligibility determination waiver enrollment ] processes.

2. Individuals who are enrolled in these waivers who choose to employ their own companions or assistants prior to the completion of the provider enrollment process shall be responsible for reimbursing such costs themselves.

3. No back dating of provider enrollment requirements shall be permitted [ in order for ] DMAS [ to will not ] reimburse for prematurely incurred costs.

F. With the exception of costs specified in subsection E of this section that waiver individuals may elect to incur, no costs for evaluations or assessments that may be required by either DMAS or DBHDS shall be borne by the individual.

12VAC30-122-20. Definitions.

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

"AAIDD" means the American Association on Intellectual and Developmental Disabilities.

"Activities of daily living" or "ADLs" means personal care tasks, for example, bathing, dressing, using a toilet, transferring, and eating or feeding. An individual's degree of independence in performing these activities is a part of determining appropriate level of care and service needs.

"Agency-directed model" means a model of service delivery where an agency is responsible for providing direct support staff, for maintaining individuals' records, and for scheduling the dates and times of the direct support staff's presence in an individual's home and in community.

"Appeal" means the process used to challenge actions regarding services, benefits, and reimbursement provided by Medicaid pursuant to 12VAC30-110 and 12VAC30-20-500 through 12VAC30-20-560.

"Assistive technology" or "AT" means specialized medical equipment and supplies, including those devices, controls, or appliances specified in the individual support plan but not available under the State Plan for Medical Assistance that [ (i) ] enable individuals to increase their abilities to perform ADLs [ or to; (ii) enable individuals to ] perceive, control, or communicate with [ the their ] environment [ in which they live; (iii) actively participate in other waiver services that are part of their plan for supports; ] or [ (iv) that ] are necessary to the proper functioning of the specialized equipment.

[ "Back-up plan" means provision for alternative arrangements for the delivery of services that are critical to participant well-being in the event that the provider responsible for furnishing the services fails or is unable to deliver them. ]

"Barrier crime" means those crimes listed in [ § 19.2-392.02 of the Code of Virginia and as they apply to ] §§ 32.1-162.9:1, 37.2-314, 37.2-416, 37.2-506, 37.2-607, and 63.2-1719 of the Code of Virginia.

"Behavioral health authority" or "BHA" means the same as defined in § [ 37.2-600 37.2-100 ] of the Code of Virginia.

[ "Benefits planning" means an individualized analysis and consultation service that assists recipients of a DD waiver and social security (SSI, SSDI, SSI/SSDI) to understand their personal benefits and explore their options regarding working, how to begin employment, and the impact employment will have on their state and federal benefits. ]

"BI" means the Building Independence Waiver as further described in 12VAC30-122-240.

"Center-based crisis support services" means [ crisis prevention and stabilization in a crisis therapeutic home using planned and emergency admissions. The services are designed for those individuals who need ongoing crisis supports. crisis support services provided in a crisis therapeutic home. ]

"Centers for Medicare and Medicaid Services" or "CMS" means the unit of the U.S. Department of Health and Human Services that administers and funds the Medicare and Medicaid programs.

"Challenging behavior" means behaviors of such intensity, frequency, and duration that the physical safety of the individual or others is placed in serious jeopardy or the behavior limits access to the community. Challenging behavior may include withdrawal, self-injury, injury to others, aggression, or self-stimulation.

"CL" means the Community Living Waiver as described in 12VAC30-122-250.

"Community-based crisis support services" means [ crisis support ] services [ for individuals who are experiencing crisis events that put them at risk for homelessness, incarceration, hospitalization, or that create a danger to themselves or others and includes ongoing supports provided ] to individuals in their homes and in community settings.

"Community coaching" means a service designed for individuals who require one-to-one support in a variety of community settings in order to develop specific skills to address barriers that prevent that individual from participating in community engagement services.

"Community engagement" means, for the purpose of building relationships and natural supports, services that support and foster individuals' abilities to acquire, retain, or improve skills necessary to build positive social behavior, interpersonal competence, greater independence, employability, and personal choice necessary to access typical activities and benefits of community life equal to those available to the general population. Community engagement services shall be provided in groups no larger than [ one staff person to ] three individuals [ with a minimum of one DSP ].

[ "Community Guide" means direct assistance to promote individuals' self-determination through brokering specific community resources that lead to connection to and independent participation in integrated, independent housing, or community activities so as to avoid isolation. ]

"Community services board" or "CSB" means the same as defined in § 37.2-100 of the Code of Virginia.

"Companion" means a person who provides companion services for compensation by DMAS.

"Companion services" means nonmedical care, support, and socialization provided to an adult individual age 18 years and older in accordance with a therapeutic goal in the individual support plan. Companion services are not purely recreational in nature [ but and ] shall not provide routine support with ADLs.

"Consumer direction" means a model of service delivery for which the individual or the individual's employer of record, as appropriate, shall be responsible for hiring, training, supervising, and firing of the person who provides the direct support or specific services covered by DMAS and whose wages are paid by DMAS through its fiscal agent.

"Crisis support services" means intensive supports by trained and, where applicable, licensed staff in crisis prevention, crisis intervention, and crisis stabilization for an individual who is experiencing an episodic behavioral or psychiatric event that has the potential to jeopardize his current community living situation.

"Customized rate" means a reimbursement rate [ that may be ] available to group home residential, sponsored residential, supported living residential, group day, community coaching, and in-home support service providers that exceeds the normal rate applicable to the individual receiving these specific services.

"DARS" means the Department for Aging and Rehabilitative Services.

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

"DBHDS staff" means persons employed by or contracted with DBHDS.

[ "Develomental "Developmental ] Disability Waivers" or "DD Waivers" means the waiver program established in [ 12VAC30-122 this chapter ] and consisting of the FIS, CL, and BI waivers.

"Developmental disability" means the same as defined in § 37.2-100 of the Code of Virginia.

"Direct support professional," "direct care staff," or "DSP" means staff members identified by the provider as having the primary role of assisting an individual on a day-to-day basis with routine personal care needs, social support, and physical assistance in a wide range of daily living activities so that the individual can lead a self-directed life in his own community. This term shall exclude consumer-directed staff and services facilitation providers.

"DMAS" means the Department of Medical Assistance Services.

"DMAS staff" means persons employed by or contracted with DMAS.

"Electronic home-based support" or "EHBS" means goods and services based on current technology, such as Smart Home^©, and includes purchasing electronic devices, software, services, and supplies that allow individuals to use technology in their residences to achieve greater independence and self-determination and reduce the need for staff intervention but that are not otherwise covered through other benefits in the DD Waivers or through the State Plan for Medical Assistance.

[ "Electronic visit verification" or "EVV" means a telephone, computer-based system, or other electronic technology used in real time to document, verify, and report the delivery of certain specified information about the provision of in-home or other community location, personal care, respite, companion services, and home health services. The EVV system shall report the precise time that services begin and end. ]

"Employer of record" or "EOR" means the person who performs the functions of the employer in the consumer-directed model of service delivery and may be the individual enrolled in the waiver, a family member, [ a an unpaid ] caregiver, or another designated person.

[ "Employment and community transportation" means a service offered to enable individuals to gain access to an individual's place of employment or volunteer activity, other community services or events, activities and resources, homes of family or friends, civic organizations or social clubs, public meetings or other civic activities, and spiritual activities or events as specified by the support plan and when no other means of access is available.

"Employment services organization" means providers of employment services with DARS. DARS verifies that these providers meet criteria to be providers through a DARS-recognized accrediting body. ]

"Enroll" with respect to an individual means (i) the local department of social services has determined the individual's financial eligibility for Medicaid as set out in 12VAC30-122-60; (ii) the individual has been determined by the support coordinator to be at risk of institutionalization and to meet the functional eligibility requirements in the Virginia Intellectual Developmental Disabilities Eligibility Survey form, which is referenced in 12VAC30-122-70, for the waiver; (iii) the Department of Behavioral Health and Developmental Services has verified the availability of a waiver slot for the individual; and (iv) the individual has agreed to accept the waiver slot.

"Environmental modifications" or "EM" means physical adaptations to the individual's home or primary vehicle that are necessary to ensure the individual's health and welfare or to enable functioning with greater independence.

"EPSDT" means the Early and Periodic Screening, Diagnosis and Treatment program administered by DMAS for children younger than 21 years of age according to federal guidelines that prescribe preventive and treatment services for Medicaid eligible children and as defined in 12VAC30-50-130.

"Face-to-face [ visit" contact" ] means an in-person meeting between the support coordinator and the individual and family/caregiver, as appropriate, for the purpose of assessing the individual's status and determining satisfaction with services, including the need for additional services and supports.

"Family" means, for the purpose of receiving individual and family/caregiver training services, the unpaid people who live with or provide care to an individual served by the waiver and may include a parent, a legal guardian, a spouse, children, relatives, a foster family, or in-laws but shall not include persons who are compensated [ , by any possible means, ] to care for the individual.

"FIS" means the Family and Individual Support Waiver as further described in 12VAC30-122-260.

"General supports" means staff presence to ensure that appropriate action is taken in an emergency or an unanticipated event and includes (i) awake staff during nighttime hours; (ii) routine bed checks; (iii) oversight of unstructured activities; [ or ] (iv) asleep staff at night on premises for [ security or ] safety reasons [ , or both; or (v) on-call staff ].

"Group day services" means services for the individual to acquire, retain, or improve skills of self-help, socialization, community integration, employability, and adaptation via opportunities for peer interactions, community integration, and enhancement of social networks.

"Group home residential services" means skill-building, routine supports, general supports, and safety supports that are provided in a residence licensed by DBHDS [ or an adult foster care home approved by the local department of social services ] that enable the individual to acquire, retain, or improve skills necessary to lead a self-directed life in his own community.

"Home and community-based waiver services," "HCBS," or "waiver services" means the range of community services approved by CMS pursuant to § 1915(c) of the Social Security Act to be offered to persons as an alternative to institutionalization.

"ICF/IID" means a facility or distinct part of a facility that (i) is licensed by DBHDS; (ii) meets the federal certification regulations for an intermediate care facility for individuals with intellectual disabilities and individuals with related conditions; [ and ] (iii) addresses the total needs of the individuals, which include physical, intellectual, social, emotional, and habilitation, and (iv) provides active treatment as defined in 42 CFR 483.440.

"IDEA" means the Individuals with Disabilities Education Act (20 USC § 1400 et seq.).

"Immediate family member" means [ , for the purposes of support coordination/case management services (12VAC30-50-455), ] spouses, parents [ (as "parent" is defined in this section) ], children (biological, adoptive, foster [ , step, ]) and siblings of the individual in the waiver.

[ "Independent living" means an individual living on his own with sufficient opportunities to direct his life and make informed choices, including the freedom to pursue activities fitting his capabilities and interests while maximizing full participation in community life. ]

"Individual" means the Commonwealth's citizen, including a child, who meets the income and resource standards in order to be eligible for Medicaid-covered services, has a diagnosis of developmental disability, and is eligible for the DD [ Waiver Waivers ]. The individual may be a person on the DD Waiver waiting list or an enrolled [ individual person ] who is receiving these waiver services.

"Individual support plan" or "ISP" means a comprehensive, person-centered plan that sets out the supports and actions to be taken during the year by each provider, as detailed in each provider's plan for supports to achieve desired outcomes, [ and ] goals [ , and dreams ]. The individual support plan shall be developed collaboratively by the individual, the individual's family/caregiver, as appropriate, providers, the support coordinator, and other interested parties chosen by the individual and shall contain the DMAS-approved ISP components as set forth in 12VAC30-122-190.

"Individual supported employment" means services that consist of ongoing, one-on-one supports provided by a job coach that enable the individual to be employed in an integrated work setting and may include assisting the individual to locate a job or develop a job on behalf of the individual, as well as activities needed to sustain paid work by the individual.

"Individual's responses to services" means the individual's behaviors in and responses to the [ settings services ]. In the case of an individual who does not communicate through spoken language, this shall mean the individual's condition and observable responses.

"In-home support services" means residential services that take place [ primarily ] in the individual's home, family home, or community settings that typically supplement the primary care provided to himself or by family or another unpaid caregiver and are designed to enable the individual to lead a self-directed life in the community while ensuring his health, safety, and welfare.

"Instrumental activities of daily living" or "IADLs" means skills that are [ more complex than those needed to address ADLs and that are needed to successfully live independently such as meal preparation, shopping, housekeeping, laundry, and money management. needed to successfully live independently such as meal preparation, shopping, housekeeping, laundry, and money management and do not include ADLs. ]

"Job coach" means the person who instructs individuals with disabilities utilizing structured intervention techniques to help the individual learn to perform job tasks to the employer's specifications and to learn the interpersonal skills necessary to be accepted as a worker at the job site and in related community contacts.

"LEIE" means List of Excluded Individuals and Entities. For the purpose of the use of LEIE, the use of the word "individual" shall not refer to the enrolled waiver individual.

"Levels of support" means the level (1-7) that is assigned to an individual based on the SIS^® score, the results of the Virginia Supplemental Questions, and, as needed, a supporting document review verification process.

"Licensed practical nurse" or "LPN" means a person who is licensed or holds multistate licensure privilege pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia to practice practical nursing as defined in § 54.1-3000 of the Code of Virginia.

"LMHP" means a licensed mental health professional as defined in [ 12VAC35-105-20. 12VAC30-50-130. ]

"LMHP-resident" means the same as defined in 12VAC30-50-130.

"LMHP-RP" means the same as defined in 12VAC30-50-130.

"LMHP-supervisee" means the same as defined in 12VAC30-50-130.

"Medically necessary" means an item or service provided for the diagnosis or treatment of an individual's condition consistent with community standards of medical practice [ as determined by DMAS and needed to maintain an individual in the community instead of placement in an institution ].

"Own home" means an individual residence that meets the legal definition of a residential dwelling that can be owned or leased by an individual.

"Parent" means a person who is biologically or naturally related, a foster parent, step-parent, or an adoptive parent to the individual enrolled in the waiver.

"Participating provider" means an entity that meets the standards and requirements set forth by DMAS and has a current, signed provider participation agreement with DMAS.

[ "Peer mentor supports" means information, resources, guidance, and support from an experienced, trained peer mentor to an individual who is a waiver recipient. ]

"Person-centered planning" means a fundamental process that focuses on what is important to and for an individual and the needs and preferences of the individual to create an individual support plan.

"Personal assistance service" means direct support [ or supervision ] with (i) ADLs, (ii) IADLs, (iii) access to the community, (iv) monitoring the self-administration of medication or other medical needs, and (v) monitoring health status and physical condition. Personal assistance services may occur in the home, community, work site, or postsecondary school.

"Personal assistant" means a person who provides personal assistance services employed [ either ] by a provider agency [ or under consumer direction ].

"Personal emergency response system" or "PERS" means an electronic device and monitoring service, and also may include medication monitoring units, that enable individuals to secure help in an emergency.

"Personal profile" means a point-in-time synopsis of what an individual enrolled in the waiver wants to maintain, change, improve in his life, or goals and [ dreams outcomes ] to achieve, and shall be completed by the individual and another person, such as his support coordinator or family/caregiver, chosen by the individual to help him plan before the annual planning meeting where it is discussed and then finalized to inform the individual supports plan process.

"Plan for supports" means each provider's plan for supporting the individual enrolled in the waiver in achieving the individual's desired outcomes and facilitating the individual's health and safety. The provider plan for supports is one component of the individual support plan.

"Positive behavior support" means [ an applied science that uses educational methods to expand an individual's behavior repertoire and systems change methods to redesign an individual's living environment to enhance the individual's quality of life by minimizing his challenging behaviors to enable him to lead a self-directed life in the community. a set of research-based strategies used to increase quality of life and decrease challenging behavior by teaching new skills and making changes in a person's environment. ]

"Primary caregiver" means the primary person who consistently assumes the role of providing direct care and support without compensation for such care to the individual enrolled in the waiver to enable the individual to live a self-directed life in the community.

"Private duty nursing services" means individual and continuous nursing care [ to individuals that may be provided concurrently with other services or be required by for ] individuals who have a serious medical condition or complex health care needs, or both, and that has been certified by a physician as medically necessary to enable the individual to remain in a community setting rather than in a hospital, nursing facility, or ICF/IID. [ This service may be provided concurrently with other services. ]

"Progress notes" means individual-specific written documentation that (i) contains unique differences specific to the individual's circumstances and the supports provided, and the individual's responses to such supports; (ii) is signed and dated by the person who rendered the supports; and (iii) is [ written and ] signed and dated [ as soon as is practicable but no longer than one week after the referenced service. on the day the described supports were provided. Documentation that occurs after the date supports were provided shall be dated for the date the entry is recorded and the date of supports delivery shall be noted in the body of the note. ]

"Qualified developmental disabilities professional" or "QDDP" means a professional who (i) possesses at least one year of documented experience working directly with individuals who have developmental disabilities; (ii) is one of the following: a doctor of medicine or osteopathy, a registered nurse, a provider holding at least a bachelor's degree in a human service field including sociology, social work, special education, rehabilitation engineering, counseling, or psychology; and (iii) possesses the required Virginia or national license, registration, or certification in accordance with his profession, if applicable.

"Quality management review" or "QMR" (i) means a process used by DMAS to monitor provider compliance with DMAS participation standards and policies and to ensure an individual's health, safety, and welfare and individual satisfaction with services and (ii) includes a review of the provision of services to ensure that services are being provided in accordance with DMAS regulations, policies, and procedures.

"Registered nurse" or "RN" means a person who is licensed or holds multistate licensure privilege pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia to practice professional nursing.

"Respite services" means temporary substitute for care that is normally provided by the unpaid primary caregiver and shall be provided on a short-term basis due to the absence of or need for routine or periodic relief of the primary caregiver or other unpaid caregiver.

"Routine supports" means supports that assist the individual with ADLs and IADLs, if appropriate.

"Safety supports" means specialized assistance that is required to ensure an individual's health and safety.

"Service authorization" means the process to approve specific services for an enrolled Medicaid individual by a DMAS service authorization designee prior to service delivery and reimbursement in order to validate that the service requested is medically necessary and meets DMAS requirements for reimbursement. Service authorization does not guarantee payment for the service.

"Services facilitation" means a service that assists the individual or EOR, as appropriate, in arranging for, directing, and managing services provided through the consumer-directed model of service delivery.

"Services facilitator" means (i) a DMAS-enrolled provider, (ii) a DMAS-designated entity, or (iii) one who is employed by or contracts with a DMAS-enrolled services facilitator that is responsible for supporting the individual or EOR, as appropriate, by ensuring the development and monitoring of the plan for supports for consumer-directed services, providing employee management training, and completing ongoing review activities as required. "Services facilitator" shall be deemed to mean the same thing as "consumer-directed services facilitator."

"Shared living" means an arrangement in which a roommate resides in the same household as the individual receiving waiver services and provides an agreed-upon, limited amount of supports in exchange for which a portion of the total cost of rent, food, and utilities that can be reasonably attributed to the roommate is reimbursed to the individual.

"Skill building" means those supports that help the individual gain new skills and abilities and was previously called training.

"Skilled nursing services" means short-term nursing services (i) [ ordered by a physician and ] listed in the plan for supports that [ do not meet home health criteria, (ii) are ] not otherwise available under the State Plan for Medical Assistance, [ (iii) (ii) ] provided within the scope of § 54.1-3000 et seq. of the Code of Virginia and the Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia), and [ (iv) (iii) ] provided by a registered nurse or by a licensed practical nurse under the supervision of a registered nurse who is licensed to practice in the state or who holds a multistate [ licensing licensure ] privilege. Skilled nursing services are to be used to train and provide consultation, using nurse delegation as appropriate, and oversight of direct staff [ as appropriate consistent with the Department of Health Professions requirements for delegation of tasks ].

"Slot" means an opening or vacancy in waiver services.

[ "SSI" means social security income provided by the U.S. Social Security Administration. ]

"Sponsored residential services" means residential services that consist of skill-building, routine supports, general supports, and safety supports provided in the homes of families or persons (sponsors) who provide supports for no more than two individuals under the supervision of a DBHDS-licensed provider that enable the individuals to acquire, retain, or improve the self-help, socialization, and adaptive skills necessary to live a self-directed life in the community.

"State Plan for Medical Assistance" or "Plan" means the Commonwealth's legal document approved by CMS identifying the covered groups, covered services and their limitations, and provider reimbursement methodologies as provided for under Title XIX of the Social Security Act.

"Support coordination/case management" means assessing and planning of services; linking the individual to services and supports identified in the individual support plan; assisting the individual directly for the purpose of locating, developing, or obtaining needed services and resources; coordinating services and service planning with other agencies and providers involved with the individual; enhancing community integration; making collateral contacts to promote the implementation of the individual support plan and community integration; monitoring the individual to assess ongoing progress and ensuring that authorized services are delivered; and educating and counseling the individual to guide him to develop supportive relationships that promote the individual support plan.

"Support coordinator" means the person who provides support coordination services to an individual in accordance with [ 12VAC30-50-455 12VAC30-50-440 and 12VAC30-50-490 ]. Formerly, this was referred to as case manager and may be either an employee of a CSB or of a private entity contracted with the local CSB.

"Supported living residential [ service ]" means a service taking place in [ an apartment a residential ] setting operated by a DBHDS-licensed provider [ of supervised living residential service or supportive in-home service ] that consists of skill-building, routine supports, general supports, and safety supports that enable the individual to acquire, retain, or improve self-help [ , socialization, and adaptive ] skills necessary to live a self-directed life in home and community settings.

"Supporting documentation" means any written or electronic materials used to record and verify the individual's support needs, services provided, and contacts made on behalf of the individual and may include, for example, the personal profile, individual support plan, providers' plans for supports, progress notes, reports, medical orders, contact logs, attendance logs, and assessments.

"Supports" means paid and nonpaid assistance that promotes the accomplishment of an individual's desired outcomes. There shall be four types of supports: (i) routine supports that assist the individual in ADLs and IADLs, if appropriate; (ii) skill building supports to help the individual gain new abilities; (iii) safety supports that are required to ensure the individual's health and safety; and (iv) general supports that provide general oversight.

"Supports Intensity Scale^®" or "SIS^®" means an assessment tool and form that is published by the American Association on Intellectual and Developmental Disabilities and administered through a thorough interview process that measures and documents an individual's practical support requirements in personal, school-related or work-related, social, behavioral, and medical areas to suggest the types and intensity levels of the supports required by that individual to live a self-directed life in the community and to inform the discussion in the person-centered planning process.

"Therapeutic consultation" means professional consultation provided by members of psychology, social work, rehabilitation engineering, behavioral analysis, speech therapy, occupational therapy, psychiatry, psychiatric clinical nursing, therapeutic recreation, physical therapy, or behavior consultation disciplines that are designed to assist individuals, parents, family members, and any other providers of support services with implementing the individual support plan.

[ "Tiers of reimbursement" means four different rates of provider reimbursement associated with certain DD waiver services, which are tied to an individual's level of support need as determined by the Supports Intensity Scale^®. ]

"Transition services" means the same as defined in 12VAC30-120-2010.

"VDSS" means the Virginia Department of Social Services.

[ "Virginia Individual Developmental Disabilities Eligibility Survey" or "VIDES" means the required level of care tool for demonstrating functional eligibility for the DD waivers. There are three types: adult, child, and infant.

"Workplace assistance service" means supports provided to an individual who has completed job development and completed or nearly completed job placement training but requires more than the typical job coach services, as in 12VAC30-122-400, to maintain stabilization in his employment. ]

12VAC30-122-30. Waiver populations; single waiver enrollment; waiver termination upon loss of eligibility.

A. The waiver services set out in 12VAC30-122-240, 12VAC30-122-250, and 12VAC30-122-260 shall be provided for eligible individuals, including children, with a developmental disability (DD) as defined in § 37.2-100 of the Code of Virginia and who have been determined to require the level of care provided in an ICF/IID. These services can only be covered if required by the individual to avoid institutionalization. These services shall be appropriate and [ medically ] necessary to ensure community integration.

B. An individual shall not be simultaneously enrolled in more than one waiver. An individual who has a diagnosis of DD may be on the waiting list for one of the DD Waivers (FIS, CL, or BI) while simultaneously being enrolled in the Elderly or Disabled with Consumer Direction (EDCD) (12VAC30-120-900 et seq.) or the Technology Assisted (12VAC30-120-1700 et seq.) waivers if he meets applicable criteria for either.

C. DMAS or its designee shall ensure only eligible individuals receive home and community-based waiver services and shall terminate the individual from the waiver and such services when the individual is no longer eligible for the waiver. Termination from the DD Waivers shall occur when, for example, (i) the individual's health, safety, and welfare and medical needs can no longer be safely met in the community; (ii) when the individual is no longer eligible for either Medicaid or no longer meets the ICF/IID level of care; or (iii) when the individual was eligible for one of the waivers and accepted a waiver slot but did not start services for five months.

12VAC30-122-40. Waiver services; when not authorized.

A. The FIS, CL, and BI waiver services, collectively known as Developmental Disabilities (DD) Waivers, shall not be authorized or reimbursed by DMAS for an individual who resides outside of the physical boundaries of the Commonwealth.

B. Waiver services [ (with the exception of transition services) ] shall not be furnished to individuals who are inpatients of a hospital, nursing facility, ICF/IID, or inpatient rehabilitation facility. Individuals with DD who are inpatients of these facilities may receive [ service support ] coordination services as described in 12VAC30-50-440 [ or 12VAC30-50-490 ].

1. The support coordinator may recommend waiver services that would promote the individual's exiting from an institutional placement.

2. However, the FIS, CL, or BI waiver services shall not be provided until the individual has exited the institution and has been enrolled in the waiver.

C. DMAS shall not reimburse providers for the costs of room and board [ attributed to the member ], education, services covered by other payers, or participation in social or recreational activities.

12VAC30-122-45. Waiver slot allocation process.

A. When the General Assembly has approved less than 40 slots for a given waiver, the available slots will be allocated by DBHDS to regions or sub-regions of the state for distribution to the individuals in that region or sub-region who are determined to have the most urgent needs. If there are BI slots to be allocated, the BI slots will be allocated by region.

B. When at least 40 new waiver slots are funded by the General Assembly, one slot will be allocated by DBHDS to each CSB. Additional slots up to the total number of available slots for a given waiver will be allocated by DBHDS to CSBs for individuals living within that CSB's catchment area based upon the following objective factors and criteria:

1. The region's population;

2. The percentage of Medicaid eligible individuals in the catchment area; and

3. Each CSB's percentage of individuals on the "Priority One" portion of the statewide waiting list.

12VAC30-122-50. Criteria for all individuals seeking Developmental Disability Waivers services.

The following [ four three ] criteria shall apply to all individuals who seek DD Waivers services:

1. The need for DD Waivers services shall arise from an individual having a diagnosed condition of developmental disability as defined in § 37.2-100 of the Code of Virginia. [ Individuals qualifying for the DD Waivers services shall have a demonstrated need for the covered services due to significant functional limitations in major life activities, as demonstrated on their Virginia Individual Developmental Disabilities Eligibility Survey (VIDES) forms, and shall be at risk of institutionalization. ]

2. Individuals qualifying for the DD Waivers services shall meet the level-of-care provided in an ICF/IID [ as set forth in the VIDES ] and shall demonstrate this need at least annually consistent with 42 CFR 441.302. [ 3. The results of an individual's Virginia Individual Developmental Disabilities Eligibility Survey (VIDES) determination shall be one element in determining if the individual qualifies for the DD Waivers (either in the FIS, CL, or BI waiver). This is demonstrated by having significant functional limitations in major life activities as documented on their VIDES forms. ] The [ Commonwealth shall use ] VIDES forms [ shall be ] conducted in person [ and, unless the individual to be screened resides out of state, ] by a qualified support coordinator to establish [ if the individual meets ] the level of care required for [ its the ] DD Waivers.

a. VIDES for infants shall be used for the evaluation of individuals who are younger than three years of age (DMAS-P235).

b. VIDES for children shall be used for the evaluation of individuals who are three years of age through 17 years of age (DMAS-P-236).

c. VIDES for adults shall be used for the evaluation of individuals who are 18 years of age and older (DMAS-P237).

[ 4. The 3. Once assigned a waiver slot, the ] individual shall meet the financial eligibility criteria set out in 12VAC30-122-60.

[ 5. 4. Individuals shall indicate their willingness to accept waiver services within 30 days of slot assignment. ]

12VAC30-122-60. Financial eligibility standards for individuals.

A. Individuals receiving services under the Family and Individual Supports (FIS) Waiver, Community Living (CL) Waiver, and Building Independence (BI) Waiver, which are collectively known as the DD Waivers, shall meet the following Medicaid eligibility requirements. The Commonwealth shall apply the financial eligibility criteria contained in the State Plan for Medical Assistance for the categorically needy and in 12VAC30-30-10 and 12VAC30-40-10. The Commonwealth covers the optional categorically needy groups under 42 CFR 435.211, 42 CFR 435.217, and 42 CFR 435.230.

B. Patient pay methodology.

1. The income level used for 42 CFR 435.211, 42 CFR 435.217, and 42 CFR 435.230 shall be 300% of the current supplemental security income (SSI) payment standard for one person.

2. Under the DD Waivers, the coverage groups authorized under § 1902(a)(10)(A)(ii)(VI) of the Social Security Act shall be considered as if they were institutionalized for the purpose of applying institutional deeming rules. All individuals under the waivers shall meet the financial and nonfinancial Medicaid eligibility criteria and meet the institutional level-of-care criteria for an ICF/IID. The deeming rules shall be applied to waiver eligible individuals as if the individuals were residing in an ICF/IID or would require that level of care.

3. The Commonwealth shall reduce its payment for home and community-based waiver services provided to an individual who is eligible for Medicaid services under 42 CFR 435.217 by that amount of the individual's total income, including amounts disregarded in determining eligibility, that remains after allowable deductions for personal maintenance needs, other dependents, and medical needs have been made according to the guidelines in 42 CFR 435.735 and § 1915(c)(3) of the Social Security Act as amended by the Consolidated Omnibus Budget Reconciliation Act of 1986 (42 USC § 1395ww). DMAS shall reduce its payment for home and community-based waiver services by the amount that remains after the deductions listed in this subdivision:

a. For individuals to whom § 1924(d) of the Social Security Act applies and for whom the Commonwealth waives the requirement for comparability pursuant to § 1902(a)(10)(B), DMAS shall deduct the following in the respective order:

(1) The basic maintenance needs for an individual under the DD Waivers, which shall be equal to 165% of the SSI payment for one person. Due to expenses of employment, a working individual shall have an additional income allowance. For an individual employed 20 hours or more per week, earned income shall be disregarded up to a maximum of both earned and unearned income up to 300% of SSI; for an individual employed [ at least eight but ] less than 20 hours per week, earned income shall be disregarded up to a maximum of both earned and unearned income up to 200% of SSI. If the individual requires a guardian or conservator who charges a fee, the fee, not to exceed an amount greater than 5.0% of the individual's total monthly income, shall be added to the maintenance needs allowance. However, in no case shall the total amount of the maintenance needs allowance (basic allowance plus earned income allowance plus guardianship fees) for the individual exceed 300% of SSI.

(2) For an individual with only a spouse at home, the community spousal income allowance determined in accordance with § 1924(d) of the Social Security Act.

(3) For an individual with a family at home, an additional amount for the maintenance needs of the family determined in accordance with § 1924(d) of the Social Security Act.

(4) Amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party including Medicare and other health insurance premiums, deductibles, or coinsurance charges, and necessary medical or remedial care recognized under state law but not covered under the State Plan for Medical Assistance.

b. For individuals to whom § 1924(d) does not apply and for whom the Commonwealth waives the requirement for comparability pursuant to § 1902(a)(10)(B), DMAS shall deduct the following in the respective order:

(1) The basic maintenance needs for an individual under the DD Waivers, which is equal to 165% of the SSI payment for one person. Due to expenses of employment, a working individual shall have an additional income allowance. For an individual employed 20 hours or more per week, earned income shall be disregarded up to a maximum of both earned and unearned income up to 300% of SSI; for an individual employed [ at least eight but ] less than 20 hours per week, earned income shall be disregarded up to a maximum of both earned and unearned income up to 200% of SSI. If the individual requires a guardian or conservator who charges a fee, the fee, not to exceed an amount greater than 5.0% of the individual's total monthly income, shall be added to the maintenance needs allowance. However, in no case shall the total amount of the maintenance needs allowance (basic allowance plus earned income allowance plus guardianship fees) for the individual exceed 300% of SSI.

(2) For an individual with a dependent child, an additional amount for the maintenance needs of the child, which shall be equal to the Title XIX medically needy income standard based on the number of dependent children.

(3) Amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party including Medicare and other health insurance premiums, deductibles, or coinsurance charges, and necessary medical or remedial care recognized under state law but not covered under the State Plan for Medical Assistance.

12VAC30-122-70. Assessment and enrollment; Virginia Individual Developmental Disabilities Eligibility Survey.

A. Home and community-based waiver services shall be considered only for individuals eligible for admission to an ICF/IID due to the individuals' diagnoses of developmental disabilities and documented functional support needs. For the support coordinator to make a recommendation for the DD Waivers services, the services shall be determined to be an appropriate service alternative to delay or avoid placement in an ICF/IID or to promote exiting from an ICF/IID or other institutional placement provided that a viable discharge plan that preserves the individual's health, safety, and welfare in the community has been developed.

B. The support coordinator shall confirm diagnostic and functional eligibility for individuals with input from the individual and the individual's family/caregiver, as appropriate, and service or support providers involved in the individual's support prior to DMAS assuming payment responsibility for covered home and community-based waiver services. This confirmation shall be accomplished through the completion of the following:

1. A psychological or other evaluation of the individual that affirms that the individual meets the diagnostic criteria for developmental disability as defined in § 37.2-100 of the Code of Virginia; and

2. The required level-of-care determination through the Virginia [ Intellectual Individual ] Developmental Disabilities Eligibility Survey (VIDES) appropriate to the individual according to his age, completed no more than six months prior to waiver enrollment.

C. To receive waiver services, the individual shall be found to be eligible for Medicaid pursuant to 12VAC30-122-60.

D. The individual who has been found to be eligible for these services consistent with subsections A [ , and ] B [ , and C ] in this section shall be given by the support coordinator his choice of either institutional placement or receipt of home and community-based waiver services.

E. If the individual chooses home and community-based waiver services and an ISP that ensures the individual's safety can be developed, then the support coordinator shall recommend the individual for home and community-based waiver services.

F. [ If Consistent with 12VAC30-122-90 E, if ] the individual selects waiver services and a slot is available, then the support coordinator shall enroll the individual in the waiver. The CSB or BHA shall only enroll the individual following electronic confirmation by DBHDS that a slot is available.

G. If no slot is available, the support coordinator shall place the individual on the DD Waivers waiting list consistent with criteria established for the DD Waivers in 12VAC30-122-90 until such time as a slot becomes available. Once the individual's name has been placed on the DD Waivers waiting list, the support coordinator shall (i) notify the individual in writing within 10 business days of his placement on the DD Waivers waiting list and his assigned prioritization level, as set out in 12VAC30-122-90, and (ii) offer appeal rights pursuant to 12VAC30-110.

H. There shall be documentation of contact with the individual at least annually while the individual is on the waiting list to provide the choice between institutional placement and waiver services consistent with the requirements of 12VAC30-50-440 or 12VAC30-50-490, as applicable.

[ I. Every place in this chapter that requires physician action, DMAS permits nurse practitioners to perform those tasks in accordance with § 54.1-2957 of the Code of Virginia. ]

12VAC30-122-80. Waiver approval process; authorizing and accessing services.

A. The support coordinator [ shall electronically submit enrollment information to DBHDS to confirm level-of-care eligibility once he has determined (i) an individual meets the functional criteria for FIS, CL, or BI waiver services, (ii) that a slot is available, and (iii) the individual has chosen waiver services is notified that a slot is available when the regional supports specialist (RSS) moves the individual to projected enrollment status in the Virginia Waiver Management System (WaMS). The support coordinator shall notify the individual and family/caregiver of slot availability and available services within the offered waiver within seven calendar days of the waiver slot assignment date.

B. The individual/caregiver will confirm acceptance or declination of the slot within 15 calendar days of notification of slot availability.

C. The individual and the individual's family/caregiver, as appropriate, shall meet with the support coordinator within 30 calendar days of the waiver assignment date to (i) discuss the individual's assessed needs, existing supports, and individual preferences; (ii) discuss obtaining a medical examination, which shall have been completed no earlier than 12 months prior to the initiation of waiver services; (iii) begin to develop the personal profile; and (iv) discuss the completion of the assessment as required by 12VAC30-122-200.

D. Prior to or at the meeting to discuss the individual's assessed needs, the support coordinator shall provide the individual with a choice of services identified as needed and available in the assigned waiver, providers, and settings alternatives ].

[ B. Once the individual has been notified of an available waiver slot E. After the individual has accepted the waiver slot offered ] by the CSB or BHA, the support coordinator shall submit a DMAS-225 (Medicaid Long-Term Care Communication Form) along with a computer-generated confirmation of level-of-care eligibility to the local department of social services to determine financial eligibility for Medicaid and the waiver and any patient pay responsibilities. The DMAS-225 is the form used by the support coordinator to report information about patient pay amount changes in an individual's situation.

[ C. F. ] After the support coordinator has received written notification of Medicaid eligibility from the local department of social services, the support coordinator shall inform the individual, submit information to DMAS or its designee to enroll the individual in the waiver, and develop the person-centered individual support plan (ISP).

[ 1. The individual and the individual's family/caregiver, as appropriate, shall meet with the support coordinator within 30 calendar days of the waiver enrollment date to (i) discuss the individual's assessed needs, existing supports, and individual preferences and then obtain a medical examination, which shall have been completed no earlier than 12 months prior to the initiation of waiver services; (ii) begin to develop the personal profile; and (iii) schedule the completion of the assessment as required by 12VAC30-122-200.

2. The support coordinator shall provide the individual with a choice of services identified as needed and available in the assigned waiver, alternative settings, and providers. ]

[ G. ] Once the providers are chosen, a planning meeting shall be held by the support coordinator to develop the ISP based on the individual's assessed needs, the individual's preferences, and the individual's family/caregiver preferences, as appropriate.

[ 3. H. ] Persons invited by the support coordinator to participate in the person-centered planning meeting may include the individual, providers, and others as desired by the individual. During the person-centered planning meeting, the services to be rendered to the individual, the frequency of services, the type of provider, and a description of the services to be offered are identified and included in the ISP. At a minimum, the individual enrolled in the waiver, [ or and ] the family/caregiver as appropriate, and support coordinator shall sign and date the ISP.

[ 4. I. ] The individual, family/caregiver, or support coordinator shall contact chosen providers so that services can be initiated within 30 calendar days of [ receipt of written confirmation of waiver the support coordinator moving the individual to active ] enrollment [ status in WaMS or confirmation of Medicaid eligibility whichever comes last ]. If the services are not initiated by the provider within 30 days, the support coordinator shall notify the local department of social services so that reevaluation of the individual's financial eligibility can be made.

[ 5. In the case of an individual being referred back to a local department of social services for a redetermination of eligibility and to retain the designated slot, the support coordinator shall, at the same time as submission of notification to the local department of social services, electronically submit information to DBHDS requesting retention of the designated slot pending the initiation of services J. In the event services are not initiated within 30 calendar days and the individual wishes to retain the waiver slot, the support coordinator will electronically submit a request in WaMS to retain the designated slot pending the initiation of services ].

[ a. 1. ] A copy of the request shall be provided to the individual and the individual's family/caregiver, as appropriate.

[ b. 2. After receipt and approval of the first request to retain the slot, ] DBHDS shall have the authority to approve the slot-retention request in 30-day extensions, up to a maximum of four consecutive extensions, or deny such request to retain the waiver slot for the individual when at the end of [ this each ] extension time period there is no evidence of the individual's efforts to utilize waiver services. All written denial notifications to the individual, and family/caregiver, as appropriate, shall be accompanied by the standard appeal rights (12VAC30-110).

[ c. 3. ] DBHDS shall provide an electronic response to the support coordinator indicating denial or approval of the slot extension request [ . DBHDS shall submit this response to the support coordinator ] within 10 working days of the receipt of the request for extension.

[ d. 4. ] The support coordinator shall notify the individual in writing of any denial of the slot extension request and the individual's right to appeal.

[ 6. K. ] The providers, in conjunction with the individual and the individual's family/caregiver, as appropriate, and the support coordinator shall develop a plan for supports for each service.

[ a. 1. ] Each provider shall submit a copy of his plan for supports to the support coordinator. The plan for supports from each provider shall be incorporated into the ISP. The ISP shall also contain [ the identified risks and ] the steps for mitigating any identified risks.

[ b. 2. ] The support coordinator shall review and ensure the provider-specific plan for supports meets the established service criteria for the identified needs prior to electronically submitting the plan for supports along with the results of the comprehensive assessment and a recommendation for the final determination of the need for ICF/IID level of care to DMAS or its designee for service authorization. "Comprehensive assessment" means the gathering of relevant social, psychological, medical, and level of care information by the support coordinator that are used as bases for the development of the individual support plan.

[ c. 3. ] DMAS or its designee shall, within 10 working days of receiving all supporting documentation, review and approve, suspend for more information, or deny the individual service requests. DMAS or its designee shall communicate electronically to the support coordinator whether the recommended services have been approved and the amounts and types of services authorized or if any services have been denied.

[ d. 4. ] Only waiver services authorized on the ISP by the state-designated agency or its designee shall be reimbursed by DMAS.

[ 7. L. ] DMAS shall not pay for any home and community-based waiver services delivered prior to the authorization date approved by DMAS or its designee if service authorization is required.

[ 8. M. ] Waiver services shall be approved and authorized by DMAS or its designee only if:

[ a. 1. ] The individual is Medicaid eligible as determined by the local department of social services;

[ b. 2. ] The individual has a diagnosis of developmental disability, as defined by § 37.2-100 of the Code of Virginia, and would, in the absence of waiver services, require the level of care provided in an ICF/IID that would be reimbursed under the State Plan for Medical Assistance;

[ c. 3. ] The individual's ISP can be safely rendered in the community; and

[ d. 4. ] The contents of providers' plans for supports are consistent with the ISP requirements, limitation, units, and documentation requirements of each service.

12VAC30-122-90. Waiting list; criteria; slot assignment; emergency access; reserve slots.

A. There shall be a current and accurate statewide waiting list, called the DD Waivers waiting list, for the DD Waivers. This waiting list shall be created and maintained by DBHDS, which shall update it no less than annually.

B. Individuals on this waiting list shall have (i) a diagnosis of developmental disability pursuant to § 37.2-100 of the Code of Virginia, (ii) a completed VIDES form, and (iii) a priority designation consistent with subsection [ C D ] of this section.

C. [ Individuals who accompany parents or guardians deployed overseas for active duty U.S. military or Foreign Service assignment but retain Virginia residency shall remain on the statewide DD Waivers waiting list and be considered for DD Waivers slot assignment when they are within three months of returning to Virginia. ]

D. ] To be placed in one of the following prioritization levels, the support coordinator shall determine through inquiry of the individual and family/caregiver, as appropriate, and consideration of the information reflected in the individual's diagnosis and VIDES form, which [ priority ] category the individual meets. The individual shall be placed in the prioritization level that best describes his need for waiver services by meeting at least one criterion in the category:

1. Priority One shall include individuals who require a waiver service within one year and are determined to meet at least one of the following criteria:

a. An immediate jeopardy exists to the health and safety of the individual due to the unpaid primary caregiver having a chronic or long-term physical or psychiatric condition that currently significantly limits the ability of the primary caregiver to care for the individual; [ or ] there are no other unpaid caregivers available to provide supports;

b. There is immediate risk to the health or safety of the individual, primary caregiver, or other person living in the home due to either of the following conditions:

(1) The individual's behavior, presenting a risk to himself or others, cannot be effectively managed [ by the primary caregiver or unpaid provider ] even with support coordinator-arranged generic or specialized supports; or

(2) There are physical care needs or medical needs that cannot be managed [ by the primary caregiver ] even with support coordinator-arranged generic or specialized supports;

c. The individual lives in an institutional setting and has a viable discharge plan; or

d. The individual is a young adult who is no longer eligible for IDEA services and [ is transitioning to independent living has expressed a desire to live independently ]. After individuals attain 27 years of age, this criterion shall no longer apply.

2. Priority Two shall include individuals who will need a waiver service in one to five years and are determined to meet at least one of the following criteria:

a. The health and safety of the individual is likely to be in future jeopardy due to:

(1) The unpaid primary caregiver having a declining chronic or long-term physical or psychiatric condition that currently significantly limits his ability to care for the individual;

(2) There are currently no other unpaid caregivers available to provide supports; [ and or ]

(3) The individual's skills are declining as a result of lack of supports;

b. The individual is at risk of losing employment supports;

c. The individual is at risk of losing current housing due to a lack of adequate supports and services; or

d. The individual has needs or desired outcomes that with adequate supports will result in a significantly improved quality of life.

3. Priority Three shall include individuals who will need a waiver slot in five years or longer as long as the current supports and services remain and have been determined to meet at least one of the following criteria:

a. The individual is receiving a service through another funding source that meets current needs;

b. The individual is not currently receiving a service but is likely to need a service in five or more years; or

c. The individual has needs or desired outcomes that with adequate supports will result in a significantly improved quality of life.

[ D. Individuals and family/caregivers shall have the right to appeal the application of the prioritization criteria, emergency criteria, or reserve criteria to their circumstances pursuant to 12VAC30-110. All notifications of appeal shall be submitted to DMAS. ]

E. Waiver slots shall be assigned subject to available funding.

1. A Waiver Slot Assignment Committee (WSAC) is the impartial body of trained volunteers established for each locality or region with responsibility for recommending individuals eligible for a waiver slot according to their urgency of need. All WSACs shall be composed of community members who shall not be employees of a CSB or a private provider of either support coordination or waiver services and shall be knowledgeable and have experience in the developmental disabilities service system.

2. For FIS and CL waiver slots, individuals who are in the Priority One category who are determined to be most in need of supports at the time a slot is available shall be reviewed by an independent WSAC for the area in which the slot is available. [ The determination of which individuals in Priority One are to be reviewed by the WSAC is accomplished through completion by the support coordinator of the Critical Needs Summary-Step 1 Review Form (CNS), which assigns numeric ratings to various circumstances that are deemed to affect urgency of need. A Slot Assignment Review Form (SARF), also completed by the support coordinator, is given to the WSAC members for each individual in the review pool in order to provide the committee with information about the individuals' needs, current services, and DD Waiver services that would best meet their needs.

3. ] The individual who has the highest need as designated by the committee shall be recommended for the available waiver slot. DBHDS shall make the final determination for slot assignment [and to the most appropriate waiver to address the assessed needs of the individual. FIS slots will be offered unless the individual demonstrates an immediate need for sponsored residential, group home residential, or support living which are only offered in the CL waiver ].

3. For BI waiver slots, each of five regional WSACs composed of one representative from each existing WSAC within the region shall make assignment recommendations for BI waiver slots. If the number of individuals interested in a BI waiver slot with Priority One status for all CSBs in a region is less than the number of available slots, those individuals are assigned a slot without a regional WSAC session occurring. A regional WSAC session will then be held for the remainder of available slots, reviewing those individuals meeting criteria for Priority Two and then Priority Three.

F. If the individual determines at any time that he no longer wishes to be on the DD Waiver waiting list, he may contact his support coordinator to request removal from the waiting list. The support coordinator shall notify DBHDS so that the individual's name can be removed from the waiting list.

G. Eligibility criteria for emergency access to either the FIS, CL, or BI waiver.

1. Subject to available funding of waiver slots and a finding of eligibility under 12VAC30-122-50 and 12VAC30-122-60, individuals shall meet at least one of the emergency criteria of this subdivision to be eligible for immediate access to waiver services without consideration to the length of time they have been waiting to access services. The criteria shall be one of the following:

a. Child protective services has substantiated abuse or neglect against the primary caregiver and has removed the individual from the home; or for adults where (i) adult protective services has found that the individual needs and accepts protective services or (ii) abuse or neglect has not been founded, but corroborating information from other sources (agencies) indicate that there is an inherent risk present and there are no other caregivers available to provide support services to the individual.

b. Death of primary caregiver or lack of alternative caregiver coupled with the individual's inability to care for himself and endangerment to self or others without supports.

[ c. An individual who transitioned from one of the DD Waivers to the Medicaid Works program who chooses to resume DD Waiver services. ]

2. Requests for emergency slots shall be forwarded by the CSB or BHA to DBHDS.

a. Emergency slots may be assigned by DBHDS to individuals until the total number of available emergency slots statewide reaches 10% of the emergency slots funded for a given fiscal year, or a minimum of three slots. At that point, the next nonemergency waiver slot that becomes available at the CSB or BHA in receipt of an emergency slot shall be reassigned to the emergency slot pool to ensure emergency slots remain to be assigned to future emergencies within the Commonwealth's fiscal year.

b. Emergency slots shall also be set aside for those individuals [ not previously identified but newly known as needing supports resulting from an emergent situation meeting eligibility criteria and not on the DD Waivers waiting list but newly identified as meeting all eligibility criteria and in need of supports resulting from an emergent situation described in subdivision 1 of this subsection ].

H. Reserve slots and the reserve waiting list.

1. Reserve slots may be used for transitioning an individual who, due to (i) [ a ] documented [ changes change ] in his [ assessed ] support needs [ , which requires a service that is not available in the DD Waiver in which the individual is presently enrolled ] or (ii) a preference for supports found in a waiver with a less comprehensive array of supports, requires [ or and ] requests a move from the DD Waiver in which he is presently enrolled into another of the DD Waivers to access necessary services.

a. An individual who needs to transition between the DD Waivers shall not be placed on the DD Waivers waiting list.

[ b. A documented change in an individual's assessed needs, which requires a service that is not available in the DD Waivers in which the individual is presently enrolled, shall exist for an individual to be considered for a reserve slot.

c. b. ] CSBs or BHAs shall document and notify DBHDS in writing when an individual meets the criteria in subdivision 1 b of this subsection within three business days of knowledge of need. The assignment of reserve slots shall be managed by DBHDS, which will maintain a chronological list of individuals in need of a reserve slot in the event that the reserve slot supply is exhausted. Within three business days of adding an individual's name to the reserve slot list, DBHDS shall advise the individual in writing that his name is on the reserve slot list and his chronological placement on the list.

[ d. c. ] Within three business days of receiving a request from an individual for a status update regarding his placement on the list, DBHDS shall advise the individual of his current chronological list number.

2. When a reserve slot becomes available and an individual is identified from the chronological list to access the slot, the support coordinator will assure to DBHDS that the service that warranted the transfer to the new waiver (e.g., group home residential) is (i) identified and (ii) a targeted date of service initiation is in place prior to the reserve slot assignment to the new waiver.

3. When an individual transitions to a new DD waiver using a reserve slot, the waiver slot vacated by that individual shall be offered to the next individual in that CSB's chronological queue for a reserve slot by DBHDS. If the individual chooses to accept the slot, DBHDS will assign in accordance with subdivision 2 of this subsection. [ The individual receiving that slot must initiate services with the service that made him eligible for the reserve waiting list within 60 calendar days. If he is unable to initiate those services, he will remain in the slot he currently occupies and may remain on the reserve slot waiting list until another slot becomes available.

4. ] If there is not an individual in that CSB's chronological queue for a reserve slot, the vacated slot will be assigned to an individual on the statewide waiting list who resides in the CSB's or BHA's catchment area by DBHDS after review and recommendations from the local WSAC.

[ 4. 5. ] When a slot is vacated in one of the DD Waivers (e.g., due to the death of an individual), the slot shall be assigned to the next individual in that CSB's chronological queue for a reserve slot in accordance with the procedures outlined in subdivision 3 of this subsection.

[ I. Individuals and family/caregivers shall have the right to appeal the application of the prioritization criteria, emergency criteria, or reserve criteria to their circumstances pursuant to 12VAC30-110. All notifications of appeal shall be submitted to DMAS. ]

12VAC30-122-100. Modifications to or termination of services.

A. DMAS or its designee shall have the authority to approve modifications to an individual's ISP, based on the recommendations of the support [ coordination provider coordinator ].

B. The provider shall be responsible for modifying an individual's plan for supports, with the involvement of the individual enrolled in the waiver and the individual's family/caregiver, as appropriate, and submitting such revised plan for supports to the support coordinator any time there is a modification in the individual's condition or circumstances that may warrant a change in the amount or type of service rendered by the provider.

1. The support coordinator shall review the need for a modification and may recommend a modification to the plan for supports to DBHDS. If the support coordinator does not recommend a modification to the plan for supports and that results in the denial of the requested service, the support coordinator shall inform the individual of his right to appeal.

2. DBHDS shall approve, deny, or pend for additional information the provider's requested modification to the individual's plan for supports as recommended by the support coordinator. DBHDS shall communicate its determination to the support coordinator within 10 business days of receiving all supporting documentation regarding the request for modification or in the case of an emergency, within three business days of receipt of the request for modification.

3. The individual enrolled in the waiver and the individual's family/caregiver, as appropriate, shall be notified in writing by the support coordinator of his right to appeal, pursuant to DMAS client appeals regulations (12VAC30-110), all decisions to reduce, [ suspend, ] deny, or terminate services. The support coordinator shall submit this written notification to the individual enrolled in the waiver or the family/caregiver, as appropriate, within 10 business days of the decision. Once the individual or family/caregiver receives the written notification, the clock for filing an appeal, as set forth in the DMAS client appeals regulations, shall begin to run.

C. In an emergency situation when the health, safety, or welfare of the individual enrolled in the waiver, other individuals in that setting, or provider personnel are endangered, the support coordinator and DBHDS shall be notified by the provider prior to discontinuing services. The 10-business-day prior written notification period shall not be required. The local department of social services adult protective services unit or child protective services unit, as appropriate, and the DBHDS Offices of Licensing and Human Rights and DMAS shall be notified immediately of the emergency discontinuation of services by the support coordinator and the provider when the individual's health, safety, or welfare may be in danger.

D. In a nonemergency situation, when a provider determines that his provision of supports to an individual enrolled in the waiver will be discontinued, the provider shall give the individual and the individual's family/caregiver, as appropriate, and support coordinator written notification of the provider's intent to discontinue services. The notification letter shall provide the reasons for the planned discontinuation and the effective date the provider will be discontinuing services. The effective date of the service discontinuation shall be at least 10 business days after the date of the notification letter. The individual enrolled in the waiver may seek services from another enrolled provider. When an individual is transitioning to a different provider, the former provider that served [ said the ] individual shall, at the request of the [ new ] provider, provide all medical records and documentation of services to the new provider [ (consistent with confidentiality requirements, including the Health Insurance Portability and Accountability Act and 12VAC35-115, Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services) ] to ensure high quality continuity of care and service provision.

E. To discontinue services in both emergency and nonemergency situations, providers of group home residential services, supported living residential services, and sponsored residential services shall comply with the terms set forth in an individual's home and community-based settings residency or lease agreement as described in 42 CFR 441.301.

F. [ Support coordinators must inform DBHDS when an individual transitions from one of the DD Waivers to the Medicaid Works program. Such individuals may retain their DD Waiver slot for 180 days after the date of transition, although DD Waiver services must be closed. After the 150-day period, DBHDS will notify the support coordinator of the need to take action to terminate the slot. The support coordinator will notify the individual and family/caregiver, as appropriate, of this determination and the right to appeal, pursuant to 12VAC30-110, such termination in advance of the action.

G. ] The support coordinator shall have the responsibility to identify those individuals who no longer meet the level of functioning criteria [ (VIDES) ] or for whom home and community-based waiver services are no longer an appropriate alternative. In such situations, DMAS or its designee shall terminate such individuals from the waiver.

1. The support coordinator shall notify the individual and family/caregiver, as appropriate, of this determination and the right to appeal, pursuant to 12VAC30-110, such termination.

2. The individual shall be given the option to continue his waiver services pending the final outcome of his appeal. Should the outcome of the appeal confirm the determination by DMAS or its designee that the individual should be terminated from the waiver, the individual [ shall may ] be responsible for the costs of his waiver services incurred by DMAS during his appeal [ as required by 12VAC 30-110-100 ].

12VAC30-122-110. Waiver provider enrollment.

DMAS or its designee shall be responsible for assuring continued adherence to provider participation standards. DMAS or its designee shall conduct ongoing monitoring of compliance with provider participation standards and applicable laws [ and, ] regulations [ , and DMAS policies ]. A provider's noncompliance with applicable federal and state Medicaid laws [ and, ] regulations, [ and DMAS policies ] as required in the provider's participation agreement, may result in termination of the provider participation agreement. For DMAS to approve enrollment of a provider for home and community-based waiver services, the following standards shall be met:

1. Licensure or certification requirements, or both as applicable, for services that have licensure or certification requirements;

2. Disclosure of ownership pursuant to 42 CFR 455.104, 42 CFR 455.105, and 42 CFR 455.106; and

3. The ability to document and maintain individual records in accordance with federal and state requirements.

12VAC30-122-120. Provider requirements.

A. Providers approved for participation shall at a minimum perform the following activities:

1. On a monthly basis, screen and document the names of all new and existing employees and contractors to determine whether any are excluded from eligibility for payment from federal health care programs, including Medicaid (i.e., via the U.S. Department of Health and Human Services Office of Inspector General List of Excluded Individuals and Entities (LEIE) website). Immediately upon learning of an exclusion, report in writing to DMAS such exclusion information to: DMAS, ATTN: Program Integrity/Exclusions, 600 East Broad Street, Suite 1300, Richmond, VA 23219 or email to providerexclusion@dmas.virginia.gov.

2. Immediately notify DMAS in writing of any change in the information that the provider previously submitted for the purpose of the provider agreement to DMAS.

3. Assure the individual's freedom to refuse medical care, treatment, and services and document that potential adverse outcomes that may result from refusal of services were discussed with the individual.

4. Accept referrals for services only when staff is available to initiate services within 30 calendar days of the referral and perform such services on an ongoing basis.

5. [ Accept training on Crisis Education and Prevention Plans (CEPPs) by DBHDS, or its contractor, based on individual needs.

6. Participate in the completion of Quality Service Reviews conducted by DBHDS or its contractor. ]

7. ] Provide medically necessary services and [ supplies supports ] for individuals in accordance with the ISP and in full compliance with 42 CFR 441.301, which provides for person-centered planning and other requirements for home and community-based settings including the additional requirements for provider-owned and controlled residential settings; Title VI of the Civil Rights Act of 1964, as amended (42 USC § 2000d et seq.), which prohibits discrimination on the grounds of race, color, or national origin; the Virginians with Disabilities Act (Title 51.5 (§ 51.5-1 et seq.) of the Code of Virginia); § 504 of the Rehabilitation Act of 1973, as amended (29 USC § 794), which prohibits discrimination on the basis of a disability; and the Americans with Disabilities Act, as amended (42 USC § 12101 et seq.) [ , which provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications ].

[ 6. 8. ] Provide services and [ supplies supports ] to individuals of the same quality and in the same mode of delivery as provided to the general public.

[ 7. 9. ] In addition to compliance with the general conditions and requirements, all providers enrolled by DMAS shall adhere to the requirements outlined in federal and state laws, regulations, DMAS provider manuals, and their individual provider participation agreements.

[ 8. 10. ] Submit reimbursement claims to DMAS for the provision of covered services and supplies for individuals in amounts not to exceed the provider's usual and customary charges to the general public and accept as payment in full the amount established by the DMAS payment methodology from the individual's authorization date for that waiver service.

[ 9. 11. ] Use program-designated billing forms for submission of claims for reimbursement.

[ 10. 12. ] Maintain and retain business records (e.g., licensing or certification records as appropriate) and professional records (e.g., staff training and criminal record check documentation). All providers, including services facilitation providers, shall also document fully and accurately the nature, scope, and details of the services provided to support claims for reimbursement. Provider documentation that fails to fully and accurately document the nature, scope, and details of the services provided may be subject to recovery actions by DMAS or its designee. Provider documentation responsibilities include the following:

a. Retain records for at least six years from the last date of service or as provided by applicable state and federal laws, whichever period is longer. Records of minors shall be kept for at least six years after such minor has reached the age of 18 years.

b. If an audit is initiated of the provider's records within the required retention period, the records shall be retained until the audit is completed and every exception resolved. No business or professional records that are subject to the audit shall be created or modified by providers, employees, or any other interested parties, either with or without the provider's knowledge, once an audit has been initiated.

c. Policies regarding retention of records shall apply even if the provider discontinues operation. Providers shall notify DMAS in writing of storage, location, and procedures for obtaining records for review should the need arise. The location, agent, or trustee of the provider's records shall be within the Commonwealth of Virginia.

[ d. Providers shall develop a plan for supports that shall include at a minimum for each individual enrolled in one of the three DD Waivers:

(1) The individual's desired outcomes that describe what is important to and for the individual in observable terms;

(2) Support activities and support instructions that are inclusive of skill-building as may be required by the service provided and that are designed to assist in achieving the individual's desired outcomes;

(3) The services to be rendered and the schedule for such services to accomplish the desired outcomes and support activities, a timetable for the accomplishment of the individual's desired outcomes and support activities, the estimated duration of the individual's need for services, and the provider staff responsible for overall coordination and integration of the services specified in the plan for supports; and

(4) Documentation regarding any restrictions on the freedoms of everyday life in accordance with 12VAC35-115, Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services and the requirements of 42 CFR 441.301. ]

[ d. e. ] Providers shall prepare and maintain unique person-centered [ progress note ] written documentation [ in the form of progress notes or supports checklist as defined by the service. These shall be ] in each individual's [ medical ] record about the individual's responses to [ services and rendered ] supports [ and specific circumstances that prevented provision of the scheduled service, should that occur ]. Such documentation shall be provided to DMAS or its designee upon request. Such documentation shall be written [ , signed, and dated ] on the [ date of service delivery. day the described supports were provided. Documentation that occurs after the date services were provided shall be dated with the date the documentation was completed and also include the date the services were provided within the body of the note. ] In instances when the individual does not communicate through words, the provider shall note his observations about the individual's condition and observable responses, if any, at the time of service delivery.

[ e. Examples of unacceptable f. Unacceptable ] person-centered progress [ note written documentation notes ] include:

(1) Standardized or formulaic notes;

(2) Notes copied from previous service dates and simply redated;

(3) Notes that are not signed and dated by staff who deliver the service, with the date services were rendered; and

(4) Person-centered progress [ note written documentation notes ] that [ does do ] not document the individual's unique opinions or observed responses to supports.

[ f. g. ] Providers shall maintain an attendance log or similar document that indicates the date services were rendered, type of services rendered, and number of hours or units provided (including specific timeframe [ for services with a unit of service shorter than one day ]) for each service type except for one-time services such as assistive technology service, environmental modifications service, transition service, individual and family caregiver training service, electronic home-based support service, services facilitation service, and personal emergency response system support service, where initial documentation to support claims shall suffice.

[ g. Providers shall develop a plan for supports that shall include at a minimum for each individual in its caseload:

(1) The individual's desired outcomes that describe what is important to and for the individual in observable terms;

(2) Support activities and support instructions that are inclusive of skill-building as may be required by the service provided and that are designed to assist in achieving the individual's desired outcomes;

(3) The services to be rendered and the schedule for such services to accomplish the desired outcomes and support activities, a timetable for the accomplishment of the individual's desired outcomes and support activities, the estimated duration of the individual's need for services, and the provider staff responsible for overall coordination and integration of the services specified in the plan for supports; and

(4) Documentation regarding any restrictions on the freedoms of everyday life in accordance with human rights regulations (12VAC35-115) and the requirements of 42 CFR 441.301.

11. 13. ] Agree to furnish information and record documentation on request and in the form requested to DMAS, DBHDS, the Attorney General of Virginia or his authorized representatives, federal personnel (e.g., Office of the Inspector General), and the State Medicaid Fraud Control Unit. The Commonwealth's right of access to provider premises and records shall survive any termination of the provider participation agreement.

[ 12. 14. ] Disclose, as requested by DMAS, all financial, beneficial, ownership, equity, surety, or other interests in any and all firms, corporations, partnerships, associations, business enterprises, joint ventures, agencies, institutions, or other legal entities providing any form of health care services to individuals enrolled in Medicaid.

[ 13. 15. ] Perform criminal history record checks for barrier crimes in accordance with applicable licensure requirements at §§ 37.2-416, 37.2-506, and [ 37.2-600 37.2-607 ] of the Code of Virginia, as applicable. If the individual enrolled in the waiver is a minor child, also perform a search of the VDSS Child Protective Services Central Registry. The provider shall not be compensated for services provided to the individual enrolled in the waiver effective on the date and afterwards that any of these records checks verifies that [ the provider has been convicted of barrier crime, as is applicable to the provider's license, or if the provider has a finding in the VDSS Child Protective Services Central Registry (if applicable). the staff person providing services was ineligible to do so pursuant to the applicable statute. ]

a. For consumer-directed (CD) services, the CD employee shall submit to a criminal history records check conducted by the [ DMAS designated ] fiscal employer agent [ within 30 days of employment ]. [ If the individual enrolled in the waiver is a minor child, the CD employee shall also submit to a search within the same 30 days of employment of the VDSS Child Protective Services Central Registry. The CD employee shall not be compensated for services provided to the waiver individual effective The CD employee shall be compensated for up to 30 days of employment while the background check is being processed or to ] the date on which [ the employer of record learned, or should have learned, that ] the [ record background ] check verifies that the CD employee has been convicted of [ a ] barrier [ crimes crime ] pursuant to § 37.2-416 of the Code of Virginia or if the CD employee has a founded complaint confirmed by the VDSS Child Protective Services Central Registry (if applicable) [ , whichever comes first ].

[ b. The DMAS-designated fiscal employer agent shall require the CD employee to notify the employer of record of all convictions occurring subsequent to the initial record check. CD employees who refuse to consent to criminal background checks and VDSS Child Protective Services Central Registry checks shall not be eligible for Medicaid reimbursement.

c. b. ] The CD employer of record shall require CD employees to notify the employer of record of all convictions occurring subsequent to the initial record check. CD employees who refuse to consent to criminal background checks and VDSS Child Protective Services registry checks shall not be eligible for Medicaid reimbursement.

[ 14. 16. ] Report suspected abuse or neglect immediately at first knowledge to the local Department for Aging and Rehabilitative Services, adult protective services agency or the local department of social services, child protective services agency; to DMAS or its designee; and to the DBHDS [ Offices of Licensing and Office of ] Human Rights, if applicable pursuant to §§ 63.2-1509 and 63.2-1606 of the Code of Virginia when the participating provider knows or suspects that an individual receiving home and community-based waiver services is being abused, neglected, or exploited.

[ 15. 17. ] Refrain from engaging in any type of direct marketing activities to Medicaid individuals or their families/caregivers. "Direct marketing" means (i) conducting directly or indirectly door-to-door, telephonic, or other cold call marketing of services at residences and provider sites; (ii) mailing directly; (iii) paying finder's fees; (iv) offering financial incentives, rewards, gifts, or special opportunities to eligible individuals and the individual's family/caregivers, as appropriate, as inducements to use the provider's services; (v) continuous, periodic marketing activities to the same prospective individual and the individual's family/caregiver, for example, monthly, quarterly, or annual giveaways, as inducements to use the provider's services; or (vi) engaging in marketing activities that offer potential customers rebates or discounts in conjunction with the use of the provider's services or other benefits as a means of influencing the individual and the individual's family/caregivers use of the provider's services.

[ 16. 18. ] Providers shall ensure that staff providing waiver services read and write English to the degree required to create and maintain the required documentation.

[ 19. Providers shall document and maintain written semiannual supervision notes for each DSP and supervisor of DSPs that are signed and dated by the supervisor. Additionally,

a. For DBHDS-licensed entities, the provider shall provide ongoing supervision of all DSP staff, including those employees such as supervisors, that are directly involved with individuals being served, consistent with the requirements of 12VAC35-105.

b. For providers who are licensed by VDH or have accreditation from a CMS-recognized organization to be a personal care or respite care provider, they shall provide ongoing supervision of companion or DSP staff consistent with those regulatory requirements.

20. Providers shall ensure that all employees or contractors without pertinent or medical clinical licenses who will be responsible for medication administration demonstrate competency of this set of skills under direct observation prior to performing this task without direct supervision.

21. DBHDS-licensed providers shall ensure all employees or contractors who will be responsible for performing de-escalation or behavioral interventions demonstrate competency of this set of skills under direct observation prior to performing these tasks with any individual service recipient. ]

B. Providers of services under any of the DD Waivers shall not be parents or guardians of individuals enrolled in the waiver who are minor children, or [ in the case of an adult enrolled in the waiver, ] the adult individual's spouse. Payment shall not be made for services furnished by other family members who are living under the same roof as the individual receiving services unless there is objective, written documentation, as defined in this subsection, as to why there are no other providers available to provide the care. Such other family members, if approved to provide services for the purpose of receiving Medicaid reimbursement, shall meet the same provider requirements as all other licensed providers. "Objective, written documentation" means documentation that demonstrates there are no persons available to provide supports to the individual other than the unpaid family/caregiver who lives in the home with the individual. Examples of such documentation may be (i) copies of advertisements showing efforts to hire; (ii) copies of interview notes; (iii) documentation indicating high turnover in consumer-directed assistants who provide, via the consumer-directed model of services, personal assistance services, companion services, respite services, or any combination of these three services; (iv) documentation supporting special medical or behavioral needs; or (v) documentation indicating that language is a factor in service delivery. [ The service provider shall provide such documentation as is necessary or requested by DBDHS for service authorization. ]

C. Providers shall not be reimbursed while the individual enrolled in a waiver is receiving inpatient services in either an acute care hospital, [ psychiatric hospital, ] nursing facility, rehabilitation facility, ICF/IID, or any other type of facility. [ Providers shall not be reimbursed while the individual enrolled in a waiver is subject to an Emergency Custody Order (ECO) or Temporary Detention Order (TDO). ]

D. Providers with a history of noncompliance, which may include [ (i) ] multiple records with citations of failure to comply with regulations [ or; (ii) ] multiple citations related to health and welfare for one [ service support ] plan [ ; or (iii) citation by either DMAS or DBHDS in key identified areas ], resulting in a corrective action plan or citation [ by either DMAS or DBHDS in key identified areas ] will be required to undergo mandatory training and technical assistance in the specific areas of noncompliance [ as part of a corrective action plan ]. These areas of noncompliance may include health, safety, or failure to address the identified needs of the individual. Failure to [ complete the mandatory training or identified technical assistance may comply with any areas in the corrective action plan shall ] result in referral to DMAS Program Integrity [ or and initiation of proceedings related to ] termination of the provider Medicaid participation agreement.

12VAC30-122-130. Provider termination.

A. Except as otherwise provided by applicable federal or state law, the Medicaid provider agreement may be terminated by DMAS (i) pursuant to § 32.1-325 of the Code of Virginia, (ii) as may be required by federal law for federal financial participation, and (iii) in accordance with the provider participation agreement, including termination at will on 30 days written notice. The agreement may be terminated if DMAS determines that the provider poses a threat to the health, safety, or welfare of any individual enrolled in a DMAS administered program. DMAS may also terminate a provider's participation agreement if the provider does not fulfill its obligations as described in the provider participation agreement. Such provider agreement terminations shall be in accordance with § 32.1-325 of the Code of Virginia, 12VAC30-10-690, and Part XII (12VAC30-20-500 et seq.) of 12VAC30-20. Termination precludes further payment by DMAS for services provided for individuals subsequent to the date specified in the termination notice.

B. A provider who has been convicted of a felony, or who has otherwise pled guilty to a felony, in Virginia or in any other [ of the 50 states state ], the District of Columbia, or the United States territories shall, within 30 days of such conviction, notify DMAS of this conviction and relinquish his provider agreement. Such provider agreement terminations shall be effective immediately and conform to § 32.1-325 of the Code of Virginia and 12VAC30-10-690. Providers shall not be reimbursed for services that may be rendered between the conviction of a felony and the provider's notification to DMAS of the conviction.

C. A participating provider may voluntarily terminate his participation with DMAS by providing 30 days written notification.

12VAC30-122-140. Provider confidentiality; change of ownership; completion of assessment instruments.

A. Pursuant to subpart F of 42 CFR Part 431, 12VAC30-20-90, and any other applicable federal or state law or regulation, all providers shall hold confidential and use for DMAS or DBHDS authorized purposes only all medical assistance information regarding individuals served. A provider shall disclose information in his possession only when the information is used in conjunction with a claim for health benefits or the data are necessary for purposes directly related to the administration of the State Plan for Medical Assistance and related waivers.

B. When ownership of the provider changes, the provider shall notify DMAS pursuant to 42 CFR 420.206.

C. For ICF/IID facilities covered by § 1616(e) of the Social Security Act in which respite care as a home and community-based waiver service will be provided, the facilities shall be in compliance with applicable regulatory standards.

D. Providers shall make available, as may be requested, specific, relevant information about the individual enrolled in the waiver.

12VAC30-122-150. Requirements for consumer-directed model of service delivery.

A. Criteria for consumer-directed model of service delivery.

1. The [ DD FIS and CL ] Waivers have three services that may be provided through a consumer-directed (CD) model: companion services, personal assistance services, and respite services. [ In addition to this chapter, consumer-direction shall comport with the requirements of § 54.1-2901 A 31 of the Code of Virginia. ]

2. Requirements for individual.

a. The individual or a person designated by the individual shall serve as the employer of record (EOR). If an individual is unable to direct his own care or is younger than 18 years of age, he [ may shall ] designate another person older than 18 years of age to serve as the [ employer of record (EOR) EOR ] on his behalf. [ If the individual is younger than 18 years of age, a legally responsible individual shall serve as the EOR. ]

b. The EOR shall be the employer in this service and shall be responsible for [ advertising recruiting ], interviewing, hiring, training, supervising, and firing CD [ employee ] assistants. Specific EOR duties include checking references of assistants, determining that assistants meet basic qualifications, training assistants, supervising the assistant's performance, and submitting and approving the assistant's timesheets to the [ DMAS designated ] fiscal employer agent on a consistent and timely basis.

c. The individual, the family/caregiver, or EOR, as appropriate, shall have [ an emergency a ] back-up plan in case the assistant does not show up for work.

d. Individuals choosing consumer-directed services may receive support from a CD services facilitator. Services facilitators shall assist the individual or his EOR, as appropriate, in accessing and receiving consumer-directed services. This function shall include providing the individual or EOR, as appropriate, with employer of record management training including a review and explanation of the employee management manual and routine and reassessment visits to monitor the CD services.

e. If an individual choosing consumer-directed services chooses not to receive support from a CD services facilitator, then [ the individual or the family/caregiver serving as another family member or caregiver other than ] the EOR shall perform all of the duties and meet all of the requirements of a CD services facilitator, including documentation requirements identified for services facilitation. However, the [ individual or family/caregiver family member or caregiver ] serving as the [ EOR services facilitator ] shall not be reimbursed by DMAS for performing these duties or meeting these requirements.

[ f. ] The individual's support coordinator/case manager may also function as the [ paid ] services facilitator.

12VAC30-122-160. Voluntary or involuntary disenrollment of consumer-directed services.

Either voluntary or involuntary disenrollment of the consumer-directed (CD) model of personal assistance, companion, or respite services may occur. In either voluntary or involuntary disenrollment, the individual enrolled in the waiver shall be permitted to select an agency from which to continue to receive his personal assistance services, companion services, or respite services. If the individual either fails to select an agency or refuses to do so, then personal [ care assistance ] services, companion services, or respite services, as appropriate, will be discontinued.

1. An individual who has chosen consumer direction may choose, at any time, to change to the agency-directed model as long as he continues to qualify for the specific services. The services facilitator or support coordinator shall assist the individual with the change of services from consumer-directed to agency-directed.

2. The services facilitator or support coordinator, as appropriate, shall initiate involuntary disenrollment from consumer direction of an individual enrolled in the waiver when any of the following conditions occur:

a. The health, safety, or welfare of the individual enrolled in the waiver is at risk;

b. The individual or EOR demonstrates consistent inability to hire and retain a CD [ personal ] assistant; or

c. The individual or EOR, as appropriate, is consistently unable to manage the CD [ personal ] assistant, as may be demonstrated by a pattern of serious discrepancies with timesheets.

[ d. ] If the individual does not choose a services facilitator and [ the individual/family a family member, other ] caregiver [ , or the support coordinator ] is not willing or able to assume the services facilitation duties, then the support coordinator shall notify DMAS or its designated service authorization contractor and the consumer-directed services shall be discontinued.

3. Prior to involuntary disenrollment, the services facilitator or support coordinator, as appropriate, shall:

a. Verify that essential training has been provided to the EOR to improve the problem condition or conditions;

b. Document in the individual's record the conditions creating the necessity for the involuntary disenrollment and actions taken by the services facilitator or support coordinator, as appropriate;

c. Discuss with the individual and the EOR, if the individual is not the EOR, the [ agency-direction agency-directed ] option that is available and the actions needed to arrange for such services while providing a list of potential providers;

d. Provide written notice to the individual and EOR, if the individual is not the EOR, of the action, the reasons for the action, and the right of the individual to appeal, pursuant to 12VAC30-110, such involuntary termination of consumer-direction. Except in emergency situations in which the health or safety of the individual is at serious risk, such notice shall be given at least 10 business days prior to the effective date of the termination of consumer-direction. In cases of an emergency situation, notice of the right to appeal shall be given to the individual but the requirement to provide notice at least 10 business days in advance shall not apply; and

e. If the services facilitator initiates the involuntary disenrollment from consumer-direction, inform the support coordinator of such action and the reasons for the action.

[ 4. Refer to 12VAC30-122-340, 12VAC30-122-460 and 12VAC30-122-490 for further requirements and limitations for companion services, personal assistance services, and respite services. ]

12VAC30-122-170. Fiscal employer/agent requirements.

A. Pursuant to a duly negotiated contract or interagency agreement, the [ DMAS designated ] fiscal employer/agent shall be reimbursed by DMAS to perform certain employer functions, including payroll and bookkeeping functions, on behalf of [ employer the EOR ] or individual who is receiving consumer-directed personal assistance services, companion services, and respite services. "Fiscal employer/agent" means a state agency or other entity as determined by DMAS to meet the requirements of 42 CFR 441.484 and the Virginia Public Procurement Act (Chapter 43 (§ 2.2-4300 et seq.) of Title 2.2 of the Code of Virginia) that performs an employer's salary payment and tax reporting functions for assistants employed for consumer-directed services.

B. The [ DMAS designated ] fiscal employer/agent shall be responsible for administering payroll services on behalf of the individual enrolled in the waiver [ including:. ]

[ 1. Collecting and maintaining citizenship and alien status employment eligibility information required by the U.S. Department of Homeland Security;

2. Submitting requests for criminal record checks within 15 calendar days of the assistant's employment on behalf of the individual or family/caregiver, as appropriate, and reporting results of such checks to the individual or family/caregiver, as appropriate;

3. Securing all necessary Internal Revenue Service authorizations and approvals in accordance with state and federal tax requirements;

4. Deducting and filing state and federal income and employment taxes and other withholdings;

5. Verifying that assistants' or companions' submitted timesheets do not exceed the maximum hours prior authorized for individuals enrolled in the waiver;

6. Processing timesheets for payment;

7. Making all deposits of income taxes, Federal Insurance Contributions Act, and other withholdings according to state and federal requirements; and

8. Distributing biweekly payroll checks to individuals' companions and assistants.

C. All timesheet discrepancies shall be reported promptly upon their identification to DMAS for investigation and resolution.

D. The fiscal employer/agent shall maintain records and information as required by DMAS and state and federal laws and regulations and make such records available upon request by DMAS in the needed format.

E. The fiscal employer/agent shall establish and operate a customer service center to respond to payroll and related inquiries by individuals and their assistants or companions.

F. The fiscal employer/agent shall maintain confidentiality of all Medicaid information pursuant to the Health Insurance Portability and Accountability Act (42 USC § 1320d et seq.), federal and state Medicaid requirements, and DMAS requirements. Should any breaches of confidential information occur, the fiscal/employer agent shall assume all liabilities under both state and federal law. ]

12VAC30-122-180. Orientation testing; professional competency requirements; advanced competency requirements.

A. Orientation training and testing for [ DBHDS licensed ] providers of agency-directed personal assistance services, agency-directed companion services, agency-directed respite services, center-based crisis [ support, community-based crisis services, supports, ] crisis support services, community engagement services, community coaching services, group day services, group home residential services, independent living support services, [ individual and group supported employment, ] in-home support services, sponsored residential services, supported living residential services, and workplace assistance.

1. Providers shall ensure that direct support professionals (DSPs) and DSP supervisors providing services to individuals with developmental disabilities receive or have received training on the following knowledge, skills, and abilities [ consistent with DBHDS licensing requirements ]. These knowledge, skills, and abilities are addressed in the DMAS-approved orientation training.

a. The characteristics of developmental disabilities and Virginia's DD Waivers;

b. Person-centeredness, positive behavioral supports, and effective communication;

c. Identified potential health risks of individuals with developmental disabilities and the appropriate interventions; [ and ]

d. [ Community integration and social inclusion; and

e. ] Best practices in the support of individuals with developmental disabilities.

2. Providers shall ensure that DSPs and DSP supervisors pass or have passed, with a minimum score of 80%, a DMAS-approved objective, standardized test of knowledge, skills, and abilities demonstrating knowledge of the topics referenced in subdivision 1 of this subsection prior to providing direct, reimbursable services. Other qualified staff who have passed the knowledge-based test shall work alongside any DSP or supervisor who has not yet passed the test.

3. [ A For DSPs, a ] copy of the DSP orientation test completed by the DSP with the test score will be filed in the personnel file along with the assurance document with DSP and [ supervisor or ] designee signatures and shall be subject to review by DBHDS for licensing compliance purposes [ , as applicable, ] and by DMAS for quality management reviews, utilization reviews, and financial audit purposes. [ For supervisors, a certificate of completion from a DMAS approved supervisory training shall be retained in place of a copy of the written test. ]

[ B. Orientation training and testing for non-DBHDS licensed providers.

1. Providers of agency directed personal assistance, companion, and respite services shall ensure that DSPs and DSP supervisors providing services to individuals with developmental disabilities receive or have received training on the following:

a. The characteristics of developmental disabilities and Virginia's DD Waivers;

b. Person-centeredness, positive behavioral supports, and effective communication;

c. Identified potential health risks of individuals with developmental disabilities and the appropriate interventions; and

d. Best practices in the support of individuals with developmental disabilities.

2. Providers shall ensure that DSPs and DSP supervisors pass or have passed, with a minimum score of 80%, a DMAS-approved objective, standardized test of knowledge, skills, and abilities demonstrating knowledge of topics referenced in subdivision 1 of this subsection prior to providing direct, reimbursable services. Other qualified staff who have passed the knowledge-based test shall work alongside the DSP or DSP supervisor who has not yet passed the test.

3. A copy of the DSP orientation test completed by the DSP with the test score will be filed in the personnel file along with the assurance document with DSP and designee signatures and shall be subject to review by DBHDS for licensing compliance purposes and by DMAS for quality management reviews, utilization reviews, and financial audit purposes.

C. B. ] The following [ DBHDS licensed ] waiver providers shall ensure that [ new ] DSPs [ or and ] DSP supervisors, including relief and contracted staff, complete [ the ] competency [ training observation ] and [ the competency ] checklist within 180 days from date of hire: agency-directed personal assistance service, agency-directed companion service, agency-directed respite service, center-based crisis support service, [ community-based crisis service, ] community engagement service, community coaching service, [ crisis support service, ] group day service, group home residential service, independent living service, [ individual and group supported employment, ] in-home support service, sponsored residential service, support living residential service, and workplace assistance service.

1. Evidence of completed core competency [ training observation ] and demonstrated proficiency, and documentation of assurances (DMAS Form P242a or P245a), shall be retained in the [ provider personnel ] record.

2. Such provider documentation shall be subject to review by DBHDS for licensing compliance purposes [ as applicable ] and by DMAS for quality management review, utilization reviews, and financial audit purposes.

3. The director of the provider organization or the director's designee shall complete the competencies checklist (DMAS Form P241a) for each DSP supervisor within 180 days from date of hire with annual updates thereafter.

4. Providers shall ensure that supervisors of DSPs complete the competencies checklist (DMAS Form P241a) for each DSP they supervise within 180 days of the DSP hire date and complete annual updates thereafter. [ For sponsored residential services, the date of hire can be the date that the sponsor begins providing service in the sponsored home setting. For all services listed in subsection B of this section, the health and safety related direct support skills contained in the competencies checklist will only be performed under direct supervision, including observations and guidance, of qualified staff until competence is observed and documented. ] Contracted and relief staff are also required to complete the competencies within 180 days from the first date of hire or original contract. The purpose of this checklist shall be to document the DSP's proficient mastery of the stated core competencies.

5. [ If upon review a DSP or DSP supervisor does not demonstrate proficiency in one or more competency areas, then within 180 days of this review the DSP or DSP supervisor shall review the training information, and orientation retesting shall be completed achieving a score of at least 80% documenting proficiency in the identified area or areas. DMAS shall not reimburse for those services provided by DSPs or DSP supervisors who have failed to pass the orientation test or demonstrate competencies as required. If at any time after the initial 180 days, a DSP or DSP Supervisor is found to be deficient in any competency area, the following actions must be taken to permit the continuation of billing by the agency related to the areas of the person's identified deficiencies. "Deficient" is defined as an established pattern of inability to demonstrate one or more competency skills.

a. Upon discovery of a staff person's inability to demonstrate proficiency, the provider has seven calendar days to begin remediation of the identified skills and document the issue and the actions taken by the agency to confirm proficiency. This initial seven-day process is considered a first episode of one or more identified deficiencies

b. If proficiency is not reconfirmed within seven days following discovery of a second episode, occurring within three months of the staff person's inability to demonstrate proficiency, the skills being remediated shall only be performed under direct supervision, observation, and guidance of qualified staff who document the provision of these supports in the person's record.

c. Once proficiency with these skills have been demonstrated, the provider shall maintain a signed confirmation that describes the actions taken and is completed by the DSP supervisor for DSPs and the agency director or designee for DSP supervisors and may resume billing for these related supports provided by the DSP or DSP supervisor from that date forward. ]

6. These DSP and DSP supervisor-specific checklists along with the annual updates shall be retained in the provider personnel records and shall be subject to review by DBHDS for licensing compliance purposes [ as applicable ] and by DMAS for quality management reviews, utilization reviews, and financial audit purposes.

[ D. Non-DBHDS licensed waiver providers shall ensure that new DSPs or DSP supervisors, including relief and contracted staff, complete the professional assurances within 180 days from date of hire for agency-directed personal assistance services, agency-directed companion services, and agency-directed respite services.

1. Evidence and documentation of assurances (DMAS Form P243a or P246a) shall be retained in the provider record

2. DSP supervisors shall maintain completed documentation of the online certificate from the DBHDS Learning Management System.

3. Such provider documentation shall be subject to review by DBHDS for licensing compliance purposes and by DMAS for quality management review, utilization reviews, and financial audit purposes. ]

[ E. C. ] Advanced core competency requirements for DSPs and DSP supervisors serving individuals with developmental disabilities with the most intensive needs, as [ identified as ] assigned to [ Level 6 or 7 (as referenced in 12VAC30-122-200) Tier 4 (described in 12VAC30-122-210) ], shall be as follows:

1. Providers shall ensure that DSPs and DSP supervisors supporting individuals identified as having the most intensive needs, as determined by [ assignment to Level 6 or 7 Tier 4 ], shall receive training that is developed or approved by a qualified professional in the areas of health, behavioral needs, autism, or all three, as defined by DMAS and based on the identified needs of the individuals supported.

2. DSPs and DSP supervisors supporting individuals with [ identified ] health support needs and [ assignment toLevel 6 or 7 at Tier 4 ] shall receive training in the area of medical supports and based on the identified needs of the individuals supported.

3. DSPs and DSP supervisors supporting individuals with [ identified ] behavioral support needs and [ assignment to Level 6 or 7 at Tier 4 ] shall receive training in the area of behavioral supports and based on the identified needs of the individuals supported.

4. DSPs and DSP supervisors supporting individuals with autism and [ assignment to Level 6 or 7 at Tier 4 ] shall receive training on characteristics of autism and based on the identified needs of the individuals supported.

5. DSPs and DSP supervisors supporting individuals at other support levels but who are receiving a customized rate shall receive training in the appropriate areas related to the needs of the individual.

6. Evidence of training completed by DSPs and DSP supervisors shall be retained in the personnel file and be subject to review by DBHDS for licensing compliance and by DMAS for quality management review, utilization review, and financial audit purposes.

7. The director of the provider agency or designee shall complete the appropriate advanced core competencies checklists (DMAS Forms P240a, P244a, and P201) specific to the needs [ and level ] of the individuals supported by each DSP supervisor within 180 days of the date of hire [ , or within 180 days of the first admission of a person with related needs or identification of the individual's level, ] with completed annual updates thereafter. The checklists shall be retained in the personnel file and be subject to review by DBHDS for licensing compliance and by DMAS for quality management review, utilization review, and financial audit purposes.

8. Providers shall ensure that DSP supervisors complete the advanced core competencies checklists (DMAS Forms P240a, P244a, and P201) specific to the needs [ and service levels ] of the individuals supported for each DSP that the DSP supervisors supervise within 180 days of hiring the DSP [ or within 180 days of initiating services to an individual with related support needs ], with annual competency checklist updates thereafter. These checklists shall be used to document proficient mastery of the stated core competencies.

9. [ If upon review a DSP or DSP supervisor does not demonstrate proficiency in one or more advanced competency areas, then within 180 days of such review the DSP or DSP supervisor shall review the training information, and orientation retesting shall be completed as appropriate with a score of at least 80% demonstrating proficiency in the identified area. DMAS shall not reimburse for those services provided by DSPs or DSP supervisors who have failed to demonstrate competencies as required. If at any time after the initial 180 days, a DSP or DSP supervisor is found to be deficient in any competency area, the following actions must be taken to permit the continuation of billing by the agency related to the areas of the person's identified deficiencies. "Deficient" is defined as an established pattern of inability to demonstrate one or more competency skills.

a. Upon discovery of a staff person's inability to demonstrate proficiency, the provider has seven calendar days to begin remediation of the identified skills and document the issue and the actions taken by the agency to confirm proficiency.

b. If proficiency is not reconfirmed within seven days following discovery of a second episode occurring within three months of the staff person's inability to demonstrate proficiency, the skills being remediated shall only be performed under direct supervision, observation, and guidance of qualified staff who document the provision of these supports in the person's record.

c. Once proficiency with these skills have been demonstrated, the provider shall maintain a signed confirmation that describes the actions taken and is completed by the DSP supervisor for DSPs and by the agency director or designee for DSP supervisors. The provider may resume billing for these related supports provided by the DSP or DSP supervisor from that date forward. ]

10. Providers shall retain these checklists in the personnel files that are subject to review by DBHDS for licensing compliance and by DMAS for quality management review, utilization review, and financial audit purposes. Continued knowledge of the advanced core competencies by DSP supervisors shall be confirmed in accordance with subdivisions 6 and 7 of this subsection.

12VAC30-122-190. Individual support plan; plans for supports; reevaluation of service need.

A. Every individual who has been approved to receive FIS, CL, or BI waiver services shall have a unique person-centered individual support plan (ISP) that sets out his unique, specific needs and the services designed to meet those needs.

1. The ISP shall be collaboratively developed at the onset of waiver services and redeveloped, at a minimum, annually by the support coordinator with the individual and the individual's family/caregiver, as appropriate, other providers, consultants as may be needed, and other interested parties at the individual's discretion.

2. The support coordinator shall be responsible for continuously monitoring the appropriateness of the individual's services and making timely revisions to the ISP as indicated by the changing needs of the individual.

3. Any modification to the amount or type of services in the ISP shall be service authorized by DMAS or its designee.

4. The support coordinator shall monitor the providers' plans for supports to ensure that all providers are working toward the desired outcomes with the individuals supported.

5. Support coordinators shall be required to conduct and document evidence of monthly onsite visits for all individuals enrolled in the DD Waivers who are residing in VDSS-licensed assisted living facilities or approved adult foster care homes.

6. Support coordinators shall conduct and document a minimum of quarterly [ face-to-face ] visits to all other individuals with at least one visit annually occurring in the home.

7. All requests for [ increased increases in DD ] waiver services [ for individuals enrolled in one of the DD Waivers ] shall be reviewed by the support coordinator [ to. The support coordinator shall ] ensure that the [ individual's health, safety, and welfare in the community request ] is [ dependent based ] on the [ finding that the individual demonstrates a individual's demonstrated ] need for the [ increased ] service, [ based on as documented by ] appropriate assessment criteria and a written plan for supports, and that those services [ are necessary to promote the individual's health, safety, and welfare in the community and ] can be safely and cost effectively provided in the community.

8. [ Individuals Support coordinators shall provide an individual ] and the family/caregiver [ shall be provided, as appropriate, ] with a copy of the individual's ISP.

B. Providers shall develop and keep updated, to include changing needs, a plan for supports for every individual supported. The contents of the plan for supports shall at a minimum contain the items specified in 12VAC30-122-120 A 10 [ f g ]. Services that are exempt from provider plans for supports requirements can be found in each service's specific regulation section.

C. Reevaluation of service need.

1. At a minimum, the support coordinator shall review the ISP [ at least ] quarterly to determine whether the individual's desired outcomes and support activities are being met and whether any modifications to the ISP are necessary. The results of such reviews shall be documented, signed, and dated in the individual's record even if no change occurred during the review period. This documentation shall be provided to DMAS and DBHDS upon request.

2. Components of annual person-centered plan review.

a. The support coordinator shall complete a reassessment annually, at a minimum, in coordination with the individual and the individual's family/caregiver, as appropriate, providers, and others as desired by the individual. The reassessment shall be signed and dated by the support coordinator and shall include an update of the level of care [ (VIDES) ] and personal profile, risk assessment, and any other appropriate assessment information. "Risk assessment" means an assessment used to determine areas of high risk of danger to the individual or others based on the individual's serious medical or behavioral factors and shall be used to plan risk mitigating supports for the individual in the individual support plan.

[ b. ] The ISP shall be revised as appropriate for consistency with this reassessment. If this annual level of care reassessment demonstrates that the individual no longer meets waiver requirements, the support coordinator shall inform DMAS and DBHDS that the individual must be terminated from waiver services.

[ b. c. ] A medical examination shall be completed in accordance with [ 12VAC35-105-740 12VAC30-122-180 and, for adults, as needed thereafter ].

[ c. d. ] Medical examinations and screenings for children ages birth to 21 years shall be completed according to the recommended frequency and periodicity of the EPSDT program (42 CFR 440.40 and 12VAC30-50-130).

[ d. e. ] A new psychological or other diagnostic evaluation shall be required whenever the individual's functioning has undergone significant change, such as deterioration of abilities that is expected to last longer than 30 days, and is no longer reflective of the past evaluation. "Significant change" means a change in an individual's condition that is expected to last longer than 30 calendar days but shall not include short-term changes that resolve with or without intervention, a short-term acute illness or episodic event, or a well-established, predictive, cyclical pattern of clinical signs and symptoms associated with a previously diagnosed condition where an appropriate course of treatment is in progress.

[ f. ] The [ psychological or other diagnostic ] evaluation shall be completed by a qualified examiner, as defined in this subdivision, and reflect the current diagnosis, adaptive level of functioning, and presence of a functional delay that arose during the developmental period. "Qualified examiner" means a credentialed professional, for example a licensed physician, licensed psychologist, or licensed therapist, who is practicing pursuant to the requirements and limits of his license.

[ e. g. ] The individual shall be allowed to select other entities, either persons or organizations, at his discretion to participate in the annual review of his person-centered plan.

12VAC30-122-200. Supports Intensity Scale® requirements; Virginia Supplemental Questions; levels of support; supports packages.

A. The Supports Intensity Scale (SIS^®) requirements.

1. The SIS^® is an assessment tool that identifies the practical supports required by individuals to live successfully in their communities. DBHDS shall use the SIS^® [ Child Children's Version™ (SIS-C™) ] for individuals who are five years through 15 years of age. DBHDS shall use the SIS^® Adult [ Version^® (SIS-A^®) ] for individuals who are 16 [ to 72 ] years of age [ and older ]. Individuals who are younger than five years of age shall be assessed using [ either the SIS^® or an age-appropriate alternative instrument, such as the Early Learning Assessment Profile, as approved by DBHDS. an age-appropriate standardized living skills assessment. ]

2. A SIS^® assessment and [ the current version of ] the Virginia Supplemental Questions (VSQ), as appropriate, shall be completed with the individual and other appropriate parties who have knowledge of the individual's circumstances and needs for support:

a. [ At least every four years for those individuals who are 22 years of age and older.

b. ] At least every three years for those individuals who are 16 years of age [ and older through 21 years of age ].

[ b. c. ] Every two years for individuals five years through 15 years of age when the individual is using a tiered service, such as group home residential, sponsored residential, supported living residential, group day, or community engagement. Another developmentally appropriate standardized living skills assessment approved by DBHDS, such as the Brigance Inventory, Vineland, or Choosing Outcomes and Accommodations for Children shall be completed every two years for service planning purposes for those in this age grouping who do not receive a SIS® assessment.

[ d. For a, b, and c of this subdivision A 2, when the individual's support needs have been deemed to have changed significantly for a sustained period of at least six months. ]

[ c. e. ] For children younger than five years of age, an alternative industry assessment instrument approved by DBHDS, such as the Early Learning Assessment Profile, shall be completed every two years for service planning purposes.

[ d. When the individual's support needs change significantly for a sustained period of at least six months. ]

3. The SIS^® shall be used in conjunction with VSQ, the person-centered planning process, [ VIDES, ] and other assessment information to develop each individual's ISP. The SIS^® shall be used to assess individuals' patterns and intensity of needed supports across life activities such as (i) home [ and community ] living activities; (ii) [ community living activities school activities for children ]; (iii) lifelong learning [ and employment activities for adults; (iv) employment; (v) ] health [ , and ] safety [ activities ], social activities, and [ self-advocacy advocacy activities ]; [ (vi) (v) exceptional ] medical and behavioral support needs; and [ (vii) (vi) ] what is important to and important for individuals who are enrolled in a waiver.

4. [ The sum of (i) the standard scale scores Scores ] from [ SIS^® Adult Parts SIS-A^® and SIS-C™ Section 1 (Exceptional Medical Needs, Exceptional Behavioral Needs), Section 2 Subsections ] A, B, and E [ (ABE) in Section 1; (ii) scale scores associated with SIS^® Section 3 Part A and B; and (iii) and ] responses to Supplemental Questions shall be used to assign levels of supports [ (Levels 1 through 7, as defined in 12VAC30-122-250) ] to each [ adult ] individual [ , as follows:. ]

[ Seven Levels of Supports	SIS® Sum Scales Parts ABE	Section 3 Part A Medical Support	Section 3 Part B Behavior Support
Least support needs (Level 1)	0 to 22	0 to 6	0 to 6
Modest or moderate support needs (Level 2)	23 to 30	0 to 6	0 to 6
Least/moderate support needs with some behavioral needs (Level 3)	0 to 30	0 to 6	7 to 10
Moderate to high support needs (Level 4)	31 to 36	0 to 6	7 to 10
High to maximum support needs (Level 5)	37 to 52	0 to 6	0 to 10
Extraordinary medical support needs (Level 6)	Any	7 to 32 or verified extraordinary medical risk	0 to 10
Extraordinary behavioral support needs (Level 7)	Any	Any	11 to 26 or verified danger to others or extreme self-injury risk ]

5. The SIS^® shall be administered and analyzed by qualified, trained interviewers designated by DBHDS.

B. The [ current version of the ] Virginia Supplemental Questions (VSQ version [ 10/26/2014 10/2017 ] ) shall also be used to identify individuals who have unique needs falling outside of the needs identifiable by the SIS^® instrument. The VSQ shall also be administered and analyzed by the same qualified, trained interviewers designated by DBHDS.

1. The Virginia Supplemental Questions shall address these topics:

a. Severe medical risk;

b. Severe community safety risk for people with a related legal conviction;

c. Severe community safety risk for people with no related legal conviction; [ and ]

d. Severe risk of harm to self [ .; and ]

[ e. Fall risk. ]

2. [ Each Supplemental Question shall have five individual items labeled A through E. A 'yes' response to any of these items shall require a review of the individual's record for verification. Specified affirmative responses to the items in subdivisions B 1 a through B 1 d of this section shall require a review of the individual's record for verification. ] After such review, the individual may or may not be assigned to Level 6 ([ exceptional ] medical) or Level 7 ([ exceptional ] behavioral).

C. The results of the SIS^®, Virginia Supplemental Questions, and, as needed, a document review verification process shall determine the individual's required level of supports. The results of the SIS^®, other assessment information, and the person-centered planning process shall establish the basis for the individual support plan.

D. Establishment of supports packages, which means [ a profile of the mix and extent of services anticipated to be needed by individuals with similar levels, needs, and abilities. (Reserved.) a set of assumptions regarding the types and amounts of supports that an individual needs to be adequately supported in the community. It is a model that reflect reasonable services levels based on common expectations for persons who share similar characteristics. ]

12VAC30-122-210. Payment for covered services (tiers).

A. Waiver services shall be reimbursed according to the agency fee schedule unless otherwise specified in this section. Units of service and service limits are set out in the section for each service. There shall be no designated formal schedule for annual cost of living or other adjustments and any adjustments to provider rates shall be subject to available funding and approval by the General Assembly. Rate methodologies shall also be subject to the approval of the Centers for Medicare and Medicaid services.

1. [ All Those ] services [ shall that ] have a Northern Virginia and Rest of State rate [ and ] shall be paid based on the individual's place of residence.

2. The following services shall have variable rates based on size:

a. Group homes rates shall vary based on licensed bed size;

b. Group supported employment rates shall vary by group size; and

c. In-home residential rates shall vary by the number of individuals being served in the same home by one direct service professional.

3. There shall be up to four tiers of reimbursement for these services: community engagement, group day support, group home, independent living, sponsored residential support, and supported living residential. Four reimbursement tiers for [ an individual providers ] shall be based on seven levels of support (as detailed in 12VAC30-122-200) from resultant scores of the SIS^®, the responses to the Virginia Supplemental Questions, and, as needed, a document review verification process. The DMAS designee shall verify the scores and levels of the individuals, as appropriate.

a. Levels of supports [ : range from Level 1 to Level 7 based on the needs of the individuals. ]

[ (1) Level 1 shall mean low support needs;

(2) Level 2 shall mean low to moderate support needs;

(3) Level 3 shall mean moderate support needs plus some behavior challenges;

(4) Level 4 shall mean moderate to high support needs;

(5) Level 5 shall mean maximum support needs;

(6) Level 6 shall mean significant support needs due to medical challenges, and;

(7) Level 7 shall mean significant support needs due to behavioral challenges. ]

b. Tiers of reimbursement:

(1) Tier 1 shall be used for individuals having Level 1 support needs.

(2) Tier 2 shall be used for individuals having Level 2 support needs.

(3) Tier 3 shall be used for individuals having either Level 3 or Level 4 support needs.

(4) Tier 4 shall be used for individuals having either Level 5, Level 6, or Level 7 support needs.

[ For the purposes of this subdivision A 3, "tiers of reimbursement" means tiers that are tied to an individual's level of support so that providers are reimbursed for services provided to individuals consistent with that level of support. ]

4. Individual-specific support needs, such as the [ extraordinary intense and significant ] medical or behavioral supports needs, may warrant customized rates for additional supports as described in this section, in the following service settings: community coaching service, group day service, in-home support service, group home residential service, sponsored residential service, and supported living residential service.

a. In these cases, providers [ and support coordinators ] shall submit to the DMAS designee a [ written ] request for a customized reimbursement rate exceeding the reimbursement rate for the assessed level of support of the individual. The request shall include [ , for example, ] contact information [ , and a detailed explanation of the basis for the request, such as the individual's support needs, ] increased staffing supports needed for the individual, the types of service for which the request is made, increased program oversight needed for the individual, the individual's behavior or medical support needs, or the individual's need for staff with certain qualifications.

b. The request shall be reviewed by a team of clinical and administrative personnel from the DMAS designee to determine that the documentation substantiates the intense needs of the individual, whether medical, behavioral, or both, and that the provider has employed staff with higher qualifications (e.g., direct support professionals with four-year degrees) or increased the ratio of staff-to-individual support of one staff person to one individual (1:1) or, in the case of services already required to be provided at a 1:1 ratio, a two staff persons to one individual (2:1) ratio.

c. The customized rate methodology shall modify the existing rate methodology assumptions for the following components in the existing rate methodologies: additional hours related to increased or specialized staffing supports and program costs.

d. Customized reimbursement rate determinations may be appealed pursuant to 12VAC30-20-500 et seq.

e. [ For those individuals approved for customized rates, providers shall submit to the DMAS designee at least annually a request if seeking continuation of the customized reimbursement rate. The request shall include the items specified in 12VAC30-122-210 A 4 a, as well as documentation of continued need for a reimbursement rate exceeding the reimbursement rate for the assessed level of support of the individual. ] The DMAS designee shall review [ on at least an annual basis in order for the affected provider to continue to receive the customized reimbursement rate the request in the manner specified in subdivision A 4 b of this section ]. After the review, adjustment determinations for the customized rate may be made. All such adjustment determinations may be appealed pursuant to 12VAC30-20-500 et seq.

B. Reimbursement rates for individual supported employment shall be the same as set by the Department for Aging and Rehabilitative Services for each individual supported employment provider agency.

C. Reimbursement for assistive technology (AT) service (12VAC30-122-270), electronic home-based support service (12VAC30-122-360), environmental modifications (EM) service (12VAC30-122-370), individual and family/caregiver training service (12VAC30-122-430), and transition service (12VAC30-122-560) shall be reimbursed based on approved costs subject to the following limits:

1. AT and EM approved costs for items and labor shall be reimbursed up to a per individual [ , per service ] maximum of $5,000 per calendar year across all home and community-based waivers.

2. Transition services approved costs shall be reimbursed up to a per individual maximum of $5,000 per lifetime across all home and community-based waivers.

3. Electronic home-based support approved costs shall be reimbursed up to a per individual maximum of $5,000 per [ calendar ISP ] year.

4. Individual and family/caregiver training approved costs shall be reimbursed up to a per individual maximum of $4,000 per [ calendar ISP ] year.

D. Duplication of services.

1. DMAS shall not duplicate the reimbursement for services that are required as a reasonable accommodation as a part of the Americans with Disabilities Act (42 USC § 12131 through 42 USC § 12165), the Rehabilitation Act of 1973 (29 USC § 701 et seq.), the Virginians with Disabilities Act (Title 51.5 (§ 51.5-1 et seq.) of the Code of Virginia), or any other applicable statute.

2. Payment for services under individual ISPs shall not duplicate payments made to public agencies or private entities under other program authorities for this same purpose.

3. Payment for services under individual ISPs shall not be made for services that are duplicative of each other.

4. Payment for services shall only be provided for services as set out in an individual's ISP.

5. Payments that are determined to have been made contrary to these limitations shall be recovered by either DMAS or its designee.

12VAC30-122-220. Appeals.

A. Providers shall have the right to appeal actions taken by DMAS or its designee in accordance with § 32.1-325.1 of the Code of Virginia, the Virginia Administrative Process Act (Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia), 12VAC30-10-1000, and 12VAC30-20-500 et seq.

B. Individuals shall have the right to appeal an action taken by DMAS or its designee in accordance with 12VAC30-110-10 through 12VAC30-110-370 and 42 CFR Part 431 subpart E. The individual shall be advised in writing of the action and of his right to appeal consistent with federal requirements and DMAS client appeals regulations (12VAC30-110-10 through 12VAC30-110-370).

12VAC30-122-230. Utilization review and quality management review.

A. Quality management review shall be performed by DMAS or its designee. Utilization review of rendered services shall be conducted by DMAS or its designee.

B. DMAS staff shall conduct utilization review of individual-specific provider documentation, which shall be forwarded by providers upon DMAS or DBHDS request.

[ C. Utilization review requirements specific to services in the developmental disability waivers shall be as follows:

1. To apply to be reimbursed as a Medicaid provider, the required DBHDS license shall be either a conditional or full (either annual or triennial) license.

2. Providers with provisional licenses issued by DBHDS shall not be reimbursed as Medicaid providers beginning 60 days from the issuance of the provisional license. Providers shall not request or receive authorizations or reauthorizations for services for new or currently supported individuals upon the issuance of the provisional license.

3. Reimbursement shall not be permitted to providers that fail to enter into a provider agreement with DMAS for a service prior to rendering that service or fail to maintain a current Medicaid Provider Enrollment Agreement. ]

12VAC30-122-240. Services covered in the Building Independence Waiver.

A. The Building Independence Waiver is designed to support individuals who reside in an integrated, independent living arrangement who can be supported through the provision of a minimal level of supports.

B. The services covered in the Building Independence Waiver for adults who are 18 years of age or older shall be:

1. Assistive technology service (12VAC30-122-270).

2. Benefits planning service [ (12VAC30-122-1070 - reserved) (12VAC30-122-280) ].

3. Center-based crisis support service (12VAC30-122-290).

4. Community-based crisis support service (12VAC30-122-300).

5. Community coaching service (12VAC30-122-310).

6. Community engagement service (12VAC30-122-320).

7. Community guide service (12VAC30-122-330 [ - reserved ]).

8. Crisis support service (12VAC30-122-350).

9. Electronic home-based support service (12VAC30-122-360).

10. Environmental modifications service (12VAC30-122-370).

11. Group day service (12VAC30-122-380).

12. Group and individual supported employment service (12VAC30-122-400).

13. Independent living support service (12VAC30-122-420).

14. [ Nonmedical Employment and community ] transportation service (12VAC30-122-440 [ - reserved ]).

15. Peer [ support mentor supports ] service (12VAC30-122-450 [ - reserved ]).

16. Personal emergency response system service (12VAC30-122-470).

17. Shared living [ support ] service (12VAC30-122-510).

18. Transition service (12VAC30-122-560).

C. Services shall be rendered in compliance with all of the requirements set out in 12VAC30-122-120 [ and the DD Waivers policy manual ]. Providers claims for reimbursement shall be supported by record documentation in accordance with federal requirements and DMAS regulatory requirements. Claims not supported by [ record ] documentation [ in the record ] may be subject to recovery of expenditures.

12VAC30-122-250. Services covered in the Community Living Waiver.

A. The Community Living Waiver is the developmental disabilities waiver designed particularly to support those individuals who require some form of a residential service 24 hours per day, seven days per week.

B. The services covered in the Community Living Waiver are:

1. Assistive technology service (12VAC30-122-270).

2. Benefits planning service (12VAC30-122-280 [ - reserved ]).

3. Center-based crisis support service (12VAC30-122-290).

4. Community-based crisis support service (12VAC30-122-300).

5. Community coaching service (12VAC30-122-310).

6. Community engagement service (12VAC30-122-320).

7. Community guide service (12VAC30-122-330 [ - reserved ]).

8. Companion service (12VAC30-122-340).

9. Crisis support service (12VAC30-122-350).

10. Electronic home-based support service (12VAC30-122-360).

11. Environmental modifications service (12VAC30-122-370).

12. Group day service (12VAC30-122-380).

13. Group home [ residential ] service (12VAC30-122-390).

14. Group and individual supported employment service (12VAC30-122-400).

15. In-home support service (12VAC30-122-410).

16. [ Nonmedical Employment and community ] transportation service (12VAC30-122-440 [ - reserved ]).

17. Peer [ support mentor supports ] service (12VAC30-122-450 [ - reserved ]).

18. Personal assistance service (12VAC30-122-460).

19. Personal emergency response system service (12VAC30-122-470).

20. Private duty nursing service (12VAC30-122-480).

21. Respite service (12VAC30-122-490).

22. Services facilitation service (12VAC30-122-500).

23. Shared living [ support ] service (12VAC30-122-510).

24. Skilled nursing service (12VAC30-122-520).

25. Sponsored residential service (12VAC30-122-530).

26. Supported living residential service (12VAC30-122-540).

27. Therapeutic consultation service (12VAC30-122-550).

28. Transition service (12VAC30-122-560).

29. Workplace assistance service (12VAC30-122-570).

C. Services shall be rendered in compliance with all of the requirements set out in 12VAC30-122-120. Providers claims for reimbursement shall be supported by [ record ] documentation [ in the record ] in accordance with federal requirements and DMAS regulatory requirements. Claims not supported by [ record ] documentation [ in the record ] may be subject to recovery of expenditures.

12VAC30-122-260. Services covered in the Family and Individual Support Waiver.

A. The Family and Individual Support Waiver is designed to support individuals who live with their families or in their own homes.

B. The services covered in the Family and Individual Support Waiver are:

1. Assistive technology service (12VAC30-122-270).

2. Benefits planning service (12VAC30-122-280 [ - reserved ]).

3. Center-based crisis support service (12VAC30-122-290).

4. Community-based crisis support service (12VAC30-122-300).

5. Community coaching service (12VAC30-122-310).

6. Community engagement service (12VAC30-122-320).

7. Community guide service (12VAC30-122-330 [ - reserved ]).

8. Companion service (12VAC30-122-340).

9. Crisis support service (12VAC30-122-350).

10. Electronic home-based support service (12VAC30-122-360).

11. Environmental modifications service (12VAC30-122-370).

12. Group day service (12VAC30-122-380).

13. Group and individual supported employment service (12VAC30-122-400).

14. In-home support service (12VAC30-122-410).

15. Individual and family/caregiver training service (12VAC30-122-430).

16. [ Nonmedical Employment and community ] transportation service (12VAC30-122-440 [ - reserved ]).

17. Peer [ support mentor supports ] service service (12VAC30-122-450 [ - reserved ]).

18. Personal assistance service (12VAC30-122-460).

19. Personal emergency response system service (12VAC30-122-470).

20. Private duty nursing service (12VAC30-122-480).

21. Respite service (12VAC30-122-490).

22. [ Services facilitation service (12VAC30-122-500)

23. ] Shared living [ support ] service (12VAC30-122-510).

[ 23. 24. ] Skilled nursing service (12VAC30-122-520).

[ 24. 25. ] Supported living residential service (12VAC30-122-540).

[ 25. 26. ] Therapeutic consultation service (12VAC30-122-550).

[ 26. 27. ] Transition service (12VAC30-122-560).

[ 27. 28. ] Workplace assistance service (12VAC30-122-570).

C. Services shall be rendered in compliance with all of the requirements set out in 12VAC30-122-120. Providers claims for reimbursement shall be supported by [ record ] documentation [ in the record ] in accordance with federal requirements and DMAS regulatory requirements. Claims not supported by [ record ] documentation [ in the record ] may be subject to recovery of expenditures.

12VAC30-122-270. Assistive technology service.

A. Service description. Assistive technology (AT) service shall entail the provision of specialized medical equipment and supplies including those devices, controls, or appliances specified in the individual support plan but that are not available under the State Plan for Medical Assistance that (i) enable individuals to increase their abilities to perform activities of daily living (ADLs); (ii) enable individuals to perceive, control, or communicate with [ the their ] environment [ in which they live ; (iii) actively participate in other waiver services that are part of their plan for supports ]; or [ (iii) (iv) ] are necessary for life support, including the ancillary supplies and equipment necessary to the proper functioning of such items. The AT service shall be covered in the FIS, CL, and BI waivers.

B. Criteria and allowable activities.

1. To qualify for the assistive technology service, the individual shall have a demonstrated need for equipment for remedial or direct medical benefit in the individual's primary home, primary vehicle, community activity setting, or day program to [ specifically improve the individual's personal functioning increase his ability to control his environment, support ISP outcomes as identified, and live safely and independently in the least restrictive community setting ]. The AT service shall be covered in the least expensive, most cost-effective manner and shall be limited to $5,000 per calendar year. There shall be no carryover of unspent funds from year to year. The [ covered ] equipment and activities shall include:

a. Specialized medical equipment and ancillary equipment;

b. Durable or nondurable medical equipment and supplies that are not otherwise available through the State Plan for Medical Assistance;

c. Adaptive devices, appliances, and controls that enable an individual to be independent in areas of personal care and ADLs; and

d. Equipment and devices that enable an individual to communicate more effectively.

2. Service requirements.

a. An independent professional consultation to determine the level of need that is not performed by the AT service provider shall be obtained from staff knowledgeable of that item for each AT service request prior to approval by DMAS or its designee. Equipment, supplies, or technology not available as durable medical equipment through the State Plan for Medical Assistance may be purchased and billed as the AT service as long as the request for such equipment, supplies, or technology is documented and justified in the individual's ISP, recommended by the support coordinator, service authorized by DMAS or its designee, and provided in the least expensive, most cost-effective manner possible.

b. If required, a rehabilitation engineer or certified rehabilitation specialist may be utilized if (i) the assistive technology will be initiated in combination with environmental modifications involving systems that are not designed to be compatible or (ii) an existing device must be modified or a specialized device must be designed and fabricated.

c. All AT service items to be covered shall meet applicable standards of manufacture, design, and installation.

d. The AT service provider shall obtain, install, and demonstrate, as necessary, that the service was authorized prior to submitting his claim to DMAS for reimbursement. The provider shall provide all warranties or guarantees from the AT manufacturer to the individual and family/caregiver, as appropriate.

C. Service units and limitations. The AT service shall be available to individuals who are receiving at least one other waiver service and may be provided in a residential or nonresidential setting described in subdivision B 1 of this section. The AT service shall be provided in the least expensive manner possible that will accomplish the modification required by the individual enrolled in the waiver.

1. The maximum funded expenditure per individual for all covered procedure codes (combined total of AT service items and labor related to these items) shall be $5,000 per calendar year and shall be completed within the calendar year. The service unit shall always be one for the total cost of all AT service being requested for a specific timeframe.

2. The AT service shall not be approved for purposes of convenience of the caregiver, [ or ] restraint of the individual, [ or ] recreation or leisure activities [ , or educational purposes ].

3. AT service providers shall not be the spouse, parent, or guardian of the individual enrolled in the waiver.

4. Requests for AT service via a DD Waiver shall be denied if AT service is available for children under EPSDT (12VAC30-50-130). No duplication of payment for the AT service shall be permitted between the waiver and services covered for adults that are reasonable accommodation requirements of the Americans with Disabilities Act (42 USC § 12101 et seq.), the Virginians with Disabilities Act (Title 51.5 (§ 51.5-1 et seq.) of the Code of Virginia), and the Rehabilitation Act (29 USC § 701 et seq.).

D. Provider qualifications and requirements.

1. Providers shall meet all of the requirements of 12VAC30-122-110 through 12VAC30-122-140.

2. AT service shall be provided by DMAS-enrolled durable medical equipment (DME) providers or DMAS-enrolled CSBs or BHAs with a signed, current waiver provider agreement with DMAS to provide the AT service. DME shall be provided in accordance with 12VAC30-50-165.

3. Independent assessments for the AT service shall be conducted by independent professional consultants. Independent, professional consultants include, for example, speech-language therapists, physical therapists, occupational therapists, physicians, behavioral therapists, certified rehabilitation specialists, or rehabilitation engineers.

4. Providers that supply AT service for an individual shall not perform assessment or consultation or write specifications. [ Providers of services shall not be spouses, parents, or guardians of the individual.

5. The AT service shall be delivered within the calendar year or within a year from the start date of the authorization. ]

[ 6. 5. ] The plan for supports and service authorization request shall include justification and explanation if a rehabilitation engineer or certified rehabilitation specialist is needed.

[ 7. 6. ] Providers shall develop and maintain individual-specific documentation that supports the provider's claims for payment. Claims that are not supported by individual-specific documentation shall be subject to payment recovery actions by DMAS.

[ 8. 7. ] Additional charges for shipping, freight, or delivery are prohibited because these services are considered all-inclusive in a provider's charge for the product.

[ 9. 8. ] All products must be delivered, demonstrated, installed, and in working order prior to submitting any claim for the products to Medicaid.

[ 10. Providers of the AT service shall not be spouses, parents, or guardians of the individual who is receiving waiver services. 9. ] Providers that supply the AT service for the waiver individual may not perform assessments or consultation or write specifications for that individual. Any request for a change in cost, either an increase or a decrease, requires justification and supporting documentation of [ medical need necessity ] and service authorization by DMAS or its designee. The provider shall receive a copy of the professional evaluation to purchase the items recommended by the professional. If a change is necessary, then the provider shall notify the assessor to ensure the changed items meet the individual's needs.

[ 11. 10. ] All equipment or supplies already covered by a service provided for in the State Plan shall not be purchased under the AT service.

E. Service documentation and requirements.

1. Providers shall include signed and dated documentation of the following in each individual's record:

a. [ The plan for supports per requirements detailed in 12VAC30-122-120. ] The service authorization to be completed by the support coordinator may serve as the plan for supports for the provision of AT service. The service authorization request shall be submitted to DMAS or its designee in order for service authorization to occur;

b. [ For AT services, written Written ] documentation regarding the process and results of ensuring that the item is not covered by the State Plan for Medical Assistance as durable medical equipment and supplies;

c. Documentation of the recommendation for the item by an independent professional consultant;

d. Documentation of the date services are rendered and the amount of service that is needed;

e. Any other relevant information regarding the device or modification;

f. Documentation in the support coordination record of notification by the designated individual or individual's representative family/caregiver of satisfactory completion or receipt of the service or item; and

g. Instructions regarding any warranty, repairs, complaints, or servicing that may be needed.

2. Provider documentation shall support all claims submitted for DMAS reimbursement. Claims for payment that are not [ supported substantiated ] by supporting documentation shall be subject to recovery by DMAS or its designee as a result of utilization reviews or audits.

12VAC30-122-280. Benefits planning service. [ (Reserved.) ].

[ A. Service description. Benefits planning is an individualized analysis and consultation service. This service assists recipients of a DD Waiver and social security (SSI, SSDI, SSI/SSDI) to understand their personal benefits and explore their options regarding working, how to begin employment, and the impact employment will have on their state and federal benefits. This service includes education and analysis about current benefits status and implementation and management of state and federal work incentives as appropriate. Benefits planning involves the development of written resource materials that aid individuals and their families/legal representatives in understanding current and future rewards that come from working, thereby reducing uncertainties associated with losing necessary supports and benefits if they choose to work or stay on the job. This service facilitates individuals in making informed choices concerning the initiation of work. Furthermore, it provides information and education to individuals currently employed in making successful transition to financial independence.

B. Criteria and allowable activities. Each of the allowable activities is available contingent on the individual meeting criteria for receipt of the service activity. Receipt of this service shall not be tied to the receipt of any other covered waiver or Medicaid service. This service may be authorized one time per allowable activity per individual per calendar year. However, a service may be reauthorized within a calendar year if the individual's situation has changed in terms of disability conditions, benefit type, or employment status. Allowable activities include the following, which may be appropriate for the individual as documented in his plan for supports:

1. Pre-employment benefits review that may include:

a. Benefits planning query (BPQY) from Social Security Administration (SSA). Description: A BPQY provides information about an individual's disability cash benefits, health insurance, scheduled continuing disability reviews, representative payee, and work history, as stored in SSA's electronic records. The BPQY is an important planning tool for the individual or other person who may be developing customized services for an individual who expresses interest in employment or remaining on the job.

b. Pre-employment benefits summary and analysis (BS&A). Description: Work with and on behalf of the individual to develop a benefits and net income analysis report with both a current scenario and at least two other potential scenarios involving Social Security work incentives.

c. Employment change benefits summary and analysis. Description: Work with and on behalf of the individual when the individual experiences a change in employment status to develop a benefits and net income analysis report with both a current scenario and at least two other potential scenarios involving Social Security work incentives.

2. Work incentives development or revisions (PASS, IRWE, BWE, IDA): Work with the individual and family/legal representative to develop:

a. Plan to achieve self-support (PASS):

(1) Part 1 description: In collaboration with the individual and support system, develop a plan to achieve self-support (PASS) and ensure submission to the SSA.

(2) Part 2 description: Ensure the approval of the PASS plan from the SSA PASS cadre through modifications or other appropriate services.

b. Impairment related work expenses (IRWE). Description: IRWEs reduce the amount of income that Social Security counts against an individual's benefits by deducting the expense from their total countable wages. In order to qualify for the IRWE, the expense shall be related to the individual's disability, work, and be an expense without which the individual cannot work. This service involves working with the individual to develop and submit appropriate forms and supporting documents to SSA to successfully obtain the IRWE work incentive.

c. Blind work expenses (BWE). Description: Work with and on behalf of an individual confirmed to be blind to develop and submit appropriate forms and supporting documents to SSA to successfully obtain the BWE work incentive. Given these circumstances, SSI will not count any earned income when the primary diagnosis is blindness and the expense is reasonably attributed to earning the income, that is, guide dog, transportation to and from work, etc.

d. Individual development accounts (IDA). Description: Work with and on behalf of the individual to develop matched savings accounts to assist the individual in saving toward the purchase of a lifelong asset such as a home.

e. Student earned income exclusion (SEIE). Description: Work with and on behalf of the individual to develop and submit appropriate documents to SSA to receive benefits under the SEIE work incentive. SEIE allows individuals younger than 22 years of age who regularly attend school or are involved in a vocational education program to exclude earned income up to a certain amount per a month.

f. Medicaid while working (Social Security Act § 1619(b)). Description: Work with and on behalf of the individual to develop and submit an appropriate letter and supporting documents to SSA, Virginia Department of Social Services (VDSS), and Medicaid to receive benefits under § 1619(b), which provides the continuation of Medicaid when a beneficiary loses his SSI due to earnings above the SSI threshold.

g. Medicaid works (Virginia's Medicaid Buy-In Program). Description: Work with and on behalf of the individual who is currently eligible for or receiving Medicaid to complete and submit the Medicaid Works agreement and supporting documents to the VDSS to enroll in the Medicaid Buy-In Program (may include Medicaid application or updating the resource section of the Medicaid application). This enables workers with disabilities the opportunity to earn higher income and retain more in savings or resources than is typically allowed by Medicaid.

h. Work incentive revisions. Description: Work with and on behalf of the individual to revise one of the work incentives plans listed in this subdivision B 2 as determined necessary by a significant change in status.

3. Resolution of SSA benefits issues (e.g., overpayments, subsidies, student earned income exclusion, Medicaid while working):

a. Overpayments. Description: Work with and on behalf of the individual to address Social Security overpayments that arise.

b. Subsidies. Description: Work with and on behalf of the individual to develop and submit appropriate documents to SSA to receive the subsidy work incentive.

c. Work activity reports. Description: Assist the individual family/legal representative in filling out and returning forms to SSA.

4. Other services:

a. ABLEnow. Description: Work with and on behalf of the individual and family, if applicable, to open an ABLEnow account.

b. Financial health assessment. Description: The financial health assessment (FHA) is a tool used to gauge an individual's understanding of his current financial situation.

C. Service units and limitations. Providers may not bill for waiver benefits planning services while the eligible individual has an open employment services case with DARS and is eligible for the same service through DARS.

1. The annual year limit for benefits planning services is $3,000. No unspent funds from one plan year may be accumulated and carried over to subsequent plan years.

2. Hourly limits per activity:

a. Plan for Achieving Self-Support-Part 1 7.0 hours.

b. Plan for Achieving Self Support-Part 2 12.5 hours.

c. Impairment Related Work Expense 9.0 hours.

d. Blind Work Expense 9.0 hours.

e. Section 1619(b) Medicaid 4.5 hours.

f. Student Earned Income Exclusion 9.0 hours.

g. Subsidy 9.0 hours.

h. Work Activity Reports: 6.0 hours.

i. Medicaid Works 5.5 hours.

j. Overpayment 3.5 hours.

k. Benefits Planning Query 1.0 hours.

l. Pre-Employment BSA 7.0 hours.

m. WorkWORLD Summary and Analysis 7.0 hours.

n. Individual Development Accounts 7.0 hours.

o. Section 301/Able Now 4.5 hours.

p. Financial Health Assessment 3.5 hours.

q. WI Revisions 7.0 hours.

D. Provider qualifications and requirements.

1. All providers of benefits planning services shall maintain and adhere to current, signed participation agreements with DMAS. The provider designated in this agreement shall directly submit claims to DMAS for reimbursement.

2. Eligible providers for benefits planning services shall possess written verification that they are one of the following:

a. A nationally certified SSA community work incentive coordinator (CWIC); or

b. A DARS certified work incentive specialist advocate (WISA) approved vendor.

3. Only providers that have completed required community financial empowerment and financial literacy training from the Consumer Financial Protection Bureau (CFPB) and Your Money, Your Goals will be eligible to receive payment for a completed financial health assessment.

E. Documentation requirements for service providers.

1. Providers shall include in each individual's record:

a. The provider's plan for supports per requirements detailed in 12VAC30-122-120.

b. Documentation that shall confirm the amount of time spent with the individual, as well as the amount of time dedicated to completion of the work surrounding the benefits planning activity/document.

c. Documentation to support units of service delivered, and the documentation shall correspond with billing. Providers shall maintain separate documentation for each type of service rendered for an individual.

d. All documents shall be completed as they relate to benefits planning activities. If the individual or the family has withdrawn from the process prior to the document's completion, all portions that were completed should be documented along with a note that describes the circumstances during each session.

e. A written review supported by documentation in the individual's record shall be submitted to the support coordinator quarterly, during any quarters in which the service was provided, with the plan for supports if modified.

f. Documentation that all available and appropriate funding sources (including those offered by Virginia Medicaid State Plan, DARS, and the Department of Education), have been explored and exhausted.

g. All correspondence to the individual and the individual's family/caregiver, as appropriate, the support coordinator, DMAS, and DBHDS.

2. Provider documentation shall support all claims submitted for DMAS reimbursement. Claims that are not supported by appropriate documentation shall be subject to recovery by DMAS as a result of utilization reviews and audits. ]

12VAC30-122-290. Center-based crisis support service.

A. Service description. Center-based crisis support service means planned crisis prevention and emergency crisis stabilization services in a crisis therapeutic home using planned and emergency admissions. [ This service is designed for individuals who will need ongoing crisis supports. ] Planned admissions shall be provided to individuals receiving crisis services and who need temporary, therapeutic interventions outside of their home setting to maintain stability. Emergency admissions shall be provided to individuals who are experiencing an identified behavioral health need or behavior challenge that is preventing them from reaching stability within their home settings. Center-based crisis support service shall be covered in the FIS, CL, and BI waivers.

B. Criteria and allowable activities.

1. Center-based crisis support service is designed for individuals with a history of at least one of the following:

a. Psychiatric hospitalization;

b. Incarceration;

c. Residential or day placement that was terminated; or

d. Behavior that has significantly jeopardized placement.

2. In addition, the individual shall meet at least one of the following:

a. Is currently experiencing a marked reduction in psychiatric, adaptive, or behavioral functioning;

b. Is currently experiencing an increase in emotional distress;

c. Currently needs continuous intervention to maintain stability; or

d. Is causing harm to himself or others.

3. The individual shall also be:

a. At risk of psychiatric hospitalization;

b. At risk of emergency ICF/IID placement;

c. At immediate risk of loss of community service due to severe situational reaction; or

d. Actually causing harm to himself or others.

4. Allowable activities shall include as appropriate for the individual as documented in the plan for supports:

a. A variety of types of face-to-face assessments (e.g., psychiatric, neuropsychiatric, psychological, behavioral) and stabilization techniques;

b. Medication management and monitoring;

c. Behavior assessment and positive behavior support;

d. Intensive care coordination with other agencies or providers to maintain the individual's community placement;

e. Training for family members/caregivers and providers in positive behavior supports;

f. Skill building related to the behavior creating the crisis such as self-care or ADLs, independent living skills, self-esteem, appropriate self-expression, coping skills, and medication compliance; and

g. Supervising the individual in crisis to ensure his safety and that of other persons in the environment.

C. Service units and limitations. Center-based crisis support service shall be limited to six months per ISP year and shall be authorized in increments of up to a maximum of 30 consecutive days with each authorization. Center-based crisis support service shall not be provided during the occurrence of the following waiver services and shall not be billed concurrently (i.e., same dates and times): (i) group home residential service, (ii) sponsored residential service, (iii) supported living residential service, or (iv) respite service. Center-based crisis support service is available through a waiver only when it is not available through the State Plan.

D. Provider qualifications and requirements.

1. Providers shall meet all of the requirements set out in 12VAC30-122-110 through 12VAC30-122-140.

2. Providers shall have current signed participation agreements with DMAS and shall directly provide the services and bill DMAS for Medicaid reimbursement.

3. Providers shall renew their participation agreements as directed by DMAS.

4. Providers for adults shall be licensed by DBHDS as providers of Group Home Service-REACH (Regional Education Assessment Crisis Services Habilitation) or, for children, a residential group home-REACH for children and adolescents with co-occurring diagnosis of developmental disability and behavioral health needs.

5. Center-based crisis support service shall be provided by a licensed mental health professional (LMHP), LMHP-supervisee, LMHP-resident, LMHP-RP, certified pre-screener, QMHP, QDDP, or [ for skill-building and supervising the individual in crisis, ] a DSP under the supervision of one of the professionals listed in this subdivision D 5.

6. Providers shall ensure that [ DSP ] staff meet provider [ training and ] competency training requirements as specified in 12VAC30-122-180.

7. Providers shall develop and maintain individual-specific contemporaneous documentation that supports the provider's claims for payment. Claims that are not supported by individual-specific documentation shall be subject to payment recovery actions by DMAS.

E. Service documentation and requirements.

1. Providers shall include signed and dated documentation of the following in each individual's record:

a. The provider's plan for supports per requirements detailed in 12VAC30-122-120.

b. Supporting documentation that has been developed (or revised, in the case of a request for an extension) and submitted to the to the support coordinator for authorization within 72 hours of the face-to-face assessment or reassessment.

c. Documentation [ indicating the dates and times of crisis services, the amount and type of service provided, and specific information about the individual's response to the services and supports shall be recorded in the individual's record as detailed in 12VAC30-122-120 ].

d. Documentation maintained for routine supervision and oversight of all services provided by direct support professional staff. All significant contacts shall be documented and dated.

2. [ A supervisor meeting the requirements of 12VAC35-105 shall provide supervision of direct support professional staff. Documentation of supervision shall be (i) completed, (ii) signed by the staff person designated to perform the supervision and oversight, and (iii) include the following: Supervision of DSPs shall be provided consistent with the requirements in 12VAC30-122-120 by a supervisor meeting the requirements of 12VAC35-105-590. Providers shall make available for inspection documentation of supervision, and this documentation shall be completed and signed by the staff person designated to perform the supervision and oversight. This documentation shall include, at a minimum, the following: (i) date of contact or observation, (ii) person contacted or observed, (iii) a summary about the direct support professional's performance and service delivery, and (iv) any action planned or taken to correct problems identified during supervision and oversight. ]

[ a. Date of contact or observation;

b. Person contacted or observed;

c. Summary about direct support professional staff performance and service delivery; and

d. Any action planned or taken to correct problems identified during supervision and oversight. ]

3. Provider documentation shall support all claims submitted for DMAS reimbursement. Claims for payment that are not supported by supporting documentation shall be subject to recovery by DMAS or its designee as a result of utilization reviews or audits.

12VAC30-122-300. Community-based crisis support service.

A. Service description. Community-based crisis support service means [ a service planned crisis prevention and emergency crisis stabilization services ] provided to individuals experiencing crisis events that put them at risk for homelessness, incarceration, or hospitalization or that creates danger to self or others. This service shall provide [ ongoing ] supports to individuals in their homes and other community settings. This service provides temporary intensive services and supports that avert emergency psychiatric hospitalization or institutional placement or prevent other out-of-home placement. This service shall be designed to stabilize the individual and strengthen the current living situation so that the individual can be maintained during and beyond the crisis period. Community-based crisis support service shall be covered in the FIS, CL, and BI waivers.

B. Criteria and allowable activities.

1. Community-based crisis support service provides ongoing supports to the individual who may have:

a. A history of multiple psychiatric hospitalizations, frequent medication changes, or setting changes; or

b. A history of requiring enhanced staffing due to the individual's mental health or behavioral issues.

2. To be approved to receive this service, the individual shall have a history of at least one of the following:

a. Previous psychiatric hospitalization;

b. Previous incarceration;

c. Residential or day placement that was terminated; or

d. Behavior that has significantly jeopardized placement.

3. In addition, the individual shall meet at least one of the following:

a. Is experiencing a marked reduction in psychiatric, adaptive, or behavioral functioning;

b. Is experiencing an increase in extreme emotional distress;

c. Needs continuous intervention to maintain stability; or

d. Is actually causing harm to himself or others.

4. The individual shall also be:

a. At risk of psychiatric hospitalization;

b. At risk of emergency ICF/IID placement;

c. At immediate threat of loss of community service due to a severe situational reaction; or

d. Actually causing harm to himself or others.

5. Community-based crisis support service allowable activities shall be provided in either the individual's home or in community settings, or both. Crisis staff shall work directly with the individual and with his current support provider or his family/caregiver, or both. [ This service includes supports during the provision of any other waiver service and may be billed concurrently (i.e., same dates and times). ]

6. This service is provided using, for example, coaching, teaching, modeling, role-playing, problem solving, or direct assistance. Allowable activities shall include, as may be appropriate for the individual as documented in his plan for supports:

a. Psychiatric, neuropsychiatric psychological, and behavioral assessments and stabilization techniques;

b. Medication management and monitoring;

c. Behavior assessment and positive behavior support;

d. Intensive care coordination with agencies or providers to maintain the individual's community placement;

e. Family/caregiver training in positive behavioral supports to maintain the individual in the community;

f. Skill building related to the behavior creating the crisis such as self-care or ADLs, independent living skills, self-esteem, appropriate self-expression, coping skills, and medication compliance; and

g. Supervision to ensure the individual's safety and the safety of others in the environment.

C. Service units and limitations. Community-based crisis support service is provided in an hourly service unit and may be authorized for up to 24 hours per day if necessary in increments of no more than 15 days at a time. The annual limit is 1,080 hours. Requests for additional community-based crisis support service in excess of the 1,080-hour annual limit will be considered if justification of [ medical necessity individual need ] is provided. This service is only available through a waiver when it is not available through the State Plan.

D. Provider qualifications and requirements.

1. Providers shall meet all of the requirements set out in 12VAC30-122-110 through 12VAC30-122-140.

2. Providers of all community-based crisis support service shall have current signed participation agreements with DMAS and shall directly provide the service and bill DMAS for Medicaid reimbursement. These providers shall renew their participation agreements as directed by DMAS.

3. Providers shall be licensed by DBHDS as providers of [ mental health outpatient or ] crisis stabilization service-REACH (Regional Education Assessment Crisis Services Habilitation). Community-based crisis support service shall be provided by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a certified pre-screener, QMHP, or QDDP.

[ 4. Providers shall ensure that staff providing community-based crisis support service meet provider competency training requirements as specified in 12VAC30-122-180. ]

E. Service documentation and requirements.

1. Providers shall include signed and dated documentation of the following in each individual's record:

a. The provider's plan for supports per requirements detailed in 12VAC30-122-120.

b. Supporting documentation that has been developed (or revised, in the case of a request for an extension) and submitted to the support coordinator for authorization within 72 hours of the face-to-face assessment or reassessment.

c. Documentation [ indicating the dates and times of service, the amount and type of service provided, and specific information about the individual's responses to the services and supports as detailed in 12VAC30-122-120 ].

[ d. Documentation confirming the individual's amount of time in the service and providing specific information regarding the individual's response to various settings and supports as agreed to in the plan for supports. Observation of the individual's responses to the service shall be available in at least a daily note. Data shall be collected as described in the plan for supports, analyzed to determine if the strategies are effective, summarized, then clearly documented in the progress notes or support checklist.

e. d. ] Documentation to support units of service delivered, and the documentation shall correspond with billing. Providers shall maintain separate documentation for each type of service rendered for an individual. Documentation shall include all correspondence and contacts related to the individual.

2. Provider documentation shall support all claims submitted for DMAS reimbursement. Claims for payment that are not supported by supporting contemporaneous documentation shall be subject to recovery by DMAS or its designee as a result of utilization reviews or audits.

12VAC30-122-310. Community coaching service.

A. Service description. Community coaching is a service designed for individuals who need one-to-one support in a variety of community settings in order to build a specific skill or set of skills to address particular barriers that prevent individuals from participating in activities of community engagement. In addition to skill building, this service includes routine and safety supports. Community coaching service shall be covered in the FIS, CL, and BI waivers.

B. Criteria and allowable activities. Community coaching service shall be provided to individuals who require one-to-one support to address identified barriers in their plans for supports that prevent them from participating in the community engagement service. Community coaching activities shall be documented in the plan for supports and be sensitive to the individual's age, abilities, and personal preferences. Allowable activities shall include, as may be appropriate for the individual as documented in his plan for supports:

1. One-on-one skill building and coaching to facilitate participation in community activities and opportunities such as:

a. Activities and public events in the community;

b. Community education, activities, and events; and

c. Use of public transportation if available and accessible.

2. Skill building and support in positive behavior, relationship building, and social skills.

3. Routine supports with the individual's self-management, eating, and personal care needs in the community.

4. Assuring the individual's safety through one-to-one supervision in a variety of community settings.

[ 5. Monitoring the individual's health and physical condition and providing supports with medication and other medical needs.

6. Providing routine supports and safety supports with transportation to and from community locations and resources. ]

C. Service units and limitations.

1. The unit of service shall be one hour.

2. The community coaching service, alone or in combination with the community engagement service, group day service, workplace assistance service, or supported employment service shall not exceed 66 hours per week.

3. This service shall be provided at a ratio of one staff to one individual. This service shall not be provided within a group setting. [ The service may be provided in the community in conjunction with other Medicaid services delivered in a group of individuals for the purpose of addressing socialization needs when supported by the plan for supports. Group participation will be permitted on a limited basis. ]

D. Provider qualifications and requirements.

1. Providers shall meet all of the requirements set out in 12VAC30-122-110 through 12VAC30-122-140.

2. Providers shall be licensed by DBHDS as providers of the non-center-based day support service.

3. Providers shall have a current, signed provider participation agreement with DMAS to provide this service. The provider designated in the participation agreement shall directly provide the service and bill DMAS for reimbursement.

4. Providers shall ensure that staff who provide the community coaching service meet provider [ competency ] training [ and competency ] requirements as specified in 12VAC30-122-180.

5. The DSP providing community coaching service shall not be an immediate family member of an individual receiving the community coaching service. For an individual receiving the sponsored residential service, the DSP providing the community coaching service shall not be a member of the sponsored family residing in the sponsored residential home.

E. Service documentation and requirements.

1. Providers shall include signed and dated documentation of the following in each individual's record:

a. A copy of the completed, standard, age-appropriate assessment form as detailed in 12VAC30-122-200.

b. The provider's plan for supports per requirements detailed in 12VAC30-122-120.

c. Documentation [ confirming attendance and the amount of the individual's time in service and providing specific information regarding the individual's response to various settings and supports. Observations of the individual's responses to service shall be available in at least a daily note. as detailed in 12VAC30-122-120. ] Data shall be collected as described in the ISP, analyzed to determine if the strategies are effective, summarized, and then clearly documented in the progress notes or supports checklist.

d. Documentation to support units of service delivered, and the documentation shall correspond with billing. Providers shall maintain separate documentation for each type of service rendered for an individual.

e. A written review supported by documentation in the individuals' record, which is submitted to the support coordinator at least quarterly with the plan for supports, if modified. [ For the annual review and every time supporting documentation is updated, the supporting documentation shall be reviewed with the individual or family/caregiver, as appropriate, and such review shall be documented. ]

f. An attendance log or similar document maintained by the provider that indicates the date, type of service rendered, and the number of hours and units provided, including specific timeframe.

g. All correspondence to the individual and the individual's family/caregiver, as appropriate, the support coordinator, DMAS, and DBHDS.

h. Written documentation of all contacts with the individual's family/caregiver, physicians, providers, and all professionals regarding the individual.

2. [ A supervisor meeting the requirements of 12VAC35-105 shall provide supervision on a semiannual basis of direct support professional staff. Providers shall make available for inspection documentation of supervision, and this documentation shall be completed, signed by the staff person designated to perform the supervision and oversight, and include the following: Supervision of DSPs shall be provided consistent with the requirements in 12VAC30-122-120 by a supervisor meeting the requirements of 12VAC35-105-590. Providers shall make available for inspection documentation of supervision, and this documentation shall be completed and signed by the staff person designated to perform the supervision and oversight. This documentation shall include, at a minimum, the following: (i) date of contact or observation; (ii) person contacted or observed; (iii) a summary about the direct support professional's performance and service delivery; and (iv) any action planned or taken to correct problems identified during supervision and oversight. ]

[ a. Date of contact or observation;

b. Person contacted or observed;

c. A summary about direct support professional staff performance and service delivery;

d. Any action planned or taken to correct problems identified during supervision and oversight; and

e. On a semiannual basis, the supervisor shall document observations concerning the individual's satisfaction with service provision. ]

3. Provider documentation shall support all claims submitted for DMAS reimbursement. Claims for payment that are not supported by supporting documentation shall be subject to recovery by DMAS or its designee as a result of utilization reviews or audits.

12VAC30-122-320. Community engagement service.

A. Service description.

1. Community engagement service means a service that supports and fosters an individual's abilities to acquire, retain or improve skills necessary to build positive social behavior, interpersonal competence, greater independence, employability, and personal choices necessary to access typical activities and functions of community life such as those chosen by the general population. The community engagement service may include community education or training and volunteer activities.

2. The community engagement service shall provide a wide variety of opportunities to facilitate and build relationships and natural supports in the community, while utilizing the community as a learning environment. These activities are conducted at naturally occurring times and in a variety of natural settings in which the individual may actively interact with persons without disabilities, other than those who are being paid to support the individual. The activities shall enhance the individual's involvement with the community and facilitate the development of relationships and natural supports.

3. The community engagement service shall be covered in the FIS, CL, and BI waivers.

B. Criteria and allowable activities.

1. The community engagement service shall be provided in the least restrictive and most integrated community settings possible according to the individual's plan for supports and individual choice.

2. Allowable activities shall include, as appropriate for the individual as documented in his plan for supports:

a. Skill building, education, support, and monitoring that assists the individual with the acquisition and retention of skills in the following areas: (i) [ participation in ] activities and public events in the community, (ii) [ participation in ] community educational activities and events, (iii) [ development of ] interests and activities that encourage therapeutic use of leisure time, (iv) [ participation in ] volunteer experiences, [ and ] (v) [ maintaining maintenance of ] contact with family and friends [ , and (vi) development of independence in activities of daily living ].

b. Skill building and education in self-direction designed to enable the individual to achieve one or more of the following outcomes, particularly through community collaborations and social connections developed by the provider (e.g., partnerships with community entities such as senior centers, arts councils): (i) development of self-advocacy skills; (ii) exercise of civil rights; (iii) acquisition of skills that promote the ability to exercise self-control and responsibility over services and supports received or needed; (iv) acquisition of skills that enable the individual to become more independent, integrated, or productive in the community; (v) development of communication skills and abilities; (vi) [ furthering furtherance of ] spiritual practices as desired by the individual; (vii) participation in cultural activities as desired by the individual; (viii) [ developing development of ] skills that enhance career planning goals in the community; (ix) [ developing development of ] living skills; (x) promotion of health and wellness [ , including administration of medication ]; (xi) [ developing development of ] orientation to the community and mobility in the community; (xii) access to and utilization of public transportation [ and so as to develop ] the ability to achieve the desired destination; or (xiii) interaction with volunteers from the community in program activities.

[ c. Providing routine supports and safety supports with transportation to and from community locations and resources. ]

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