Virginia Law

A. Definitions. The following words and terms when used in this section shall have the following meanings unless the context indicates otherwise:

"At risk" means one or more of the following: (i) within the two weeks before the, comprehensive needs assessment, the individual shall be screened by a licensed mental health professional (LMHP), licensed mental health professional-resident (LMHP-R), licensed mental health professional--resident in psychology LMHP-RP, or licensed mental health professional-supervisee (LMHP-S) for escalating behaviors that have put either the individual or others at immediate risk of physical injury; (ii) the parent or guardian is unable to manage the individual's mental, behavioral, or emotional problems in the home and is actively, within the past two to four weeks, seeking an out-of-home placement; (iii) a representative of either a juvenile justice agency, a department of social services (either the state agency or local agency), a community services board/behavioral health authority, the Department of Education, or an LMHP, LMHP-R, LMHP-RP, or LMHP-S, and who is neither an employee of nor consultant to the intensive in-home (IIH) services or therapeutic day treatment (TDT) provider, has recommended an out-of-home placement absent an immediate change of behaviors and when unsuccessful mental health services are evident; (iv) the individual has a history of unsuccessful services (either crisis intervention, crisis stabilization, outpatient psychotherapy, outpatient substance abuse services, or mental health skill-building) within the past 30 calendar days; or (v) the treatment team or family assessment planning team (FAPT) recommends IIH services or TDT for an individual currently who is either: (a) transitioning out of psychiatric residential treatment facility (PRTF) services, (b) transitioning out of a therapeutic group home, (c) transitioning out of acute psychiatric hospitalization, or (d) transitioning between foster homes, mental health case management, crisis intervention, crisis stabilization, outpatient psychotherapy, or outpatient substance abuse services.

"Comprehensive needs assessment" means the same as defined in 12VAC30-50-130.

"Licensed assistant behavior analyst" means a person who has met the licensing requirements of 18VAC85-150 and holds a valid license issued by the Department of Health Professions.

"Licensed behavior analyst" means a person who has met the licensing requirements of 18VAC85-150 and holds a valid license issued by the Department of Health Professions.

"Out-of-home placement" means placement in one or more of the following: (i) therapeutic group home; (ii) regular foster home if the individual is currently residing with the individual's biological family and, due to his behavior problems, is at risk of being placed in the custody of the local department of social services; (iii) treatment foster care if the individual is currently residing with the individual's biological family or a regular foster care family and, due to the individual's behavioral problems, is at risk of removal to a higher level of care; (iv) psychiatric residential treatment facility; (v) emergency shelter for the individual only due either to his mental health or behavior or both; (vi) psychiatric hospitalization; or (vii) juvenile justice system or incarceration.

"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 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 plan of care.

"Qualified paraprofessional in mental health" or "QPPMH" means the same as the term is defined in 12VAC35-105-20.

"Unsuccessful services" means, as measured by ongoing behavioral, mental, or physical distress, that the services did not treat or resolve the individual's mental health or behavioral issues.

"Youth" means an individual younger than 21 years of age who is receiving community mental health or behavioral therapy services.

B. Utilization review requirements for all services in this section.

1. The services described in this section shall be rendered consistent with the definitions, service limits, and requirements described in this section and in 12VAC30-50-130.

2. Providers shall be required to refund payments made by Medicaid if they fail to maintain adequate documentation to support billed activities.

3. Individual service plans (ISPs) shall meet all of the requirements set forth in 12VAC30-60-143 B 8.

4. The provider shall meet the federal and state requirements for administrative and financial management capacity. The provider shall obtain, prior to 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 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.

5. The provider shall document and maintain individual case records in accordance with state and federal requirements.

6. The provider shall ensure eligible individuals have free choice of providers of mental health services and other medical care under the individual service plan.

7. The comprehensive needs assessment shall include documented history of the severity, intensity, and duration of mental health care problems and issues. all of the following elements: (i) the presenting issue or reason for referral; (ii) mental health history or history of 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.

8. Progress notes shall 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.

C. Utilization review of intensive in-home (IIH) services for youth.

1. The service definition for intensive in-home (IIH) services is contained in 12VAC30-50-130.

2. Youth qualifying for this service shall demonstrate a clinical necessity for the service arising from mental, behavioral or emotional illness that results in significant functional impairments in major life activities. Youth must meet at least two of the following criteria on a continuing or intermittent basis to be authorized for these services:

a. Have difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of hospitalization or out-of-home placement because of conflicts with family or community.

b. Exhibit such inappropriate behavior that documented, repeated interventions by the mental health, social services or judicial system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

3. Prior to admission, an appropriate comprehensive needs assessment shall be conducted by the licensed mental health professional (LMHP), LMHP-supervisee, LMHP-resident, or LMHP-RP, documenting the youth's diagnosis and describing how service needs can best be met through intervention provided typically but not solely in the youth's residence. The comprehensive needs assessment shall describe how the youth's clinical needs put the youth at risk of out-of-home placement and shall be conducted face-to-face. Comprehensive needs assessments shall meet all of the requirements set forth in 12VAC30-60-143 B 7.

4. An individual service plan (ISP) shall be fully completed, signed, and dated by either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a qualified mental health professional-child (QMHP-C), or a qualified mental health professional-eligible (QMHP-E) and the youth and youth's parent or guardian within 30 calendar days of initiation of services.

5. DMAS shall not reimburse for dates of services in which the progress notes are not individualized to the specific youth. Duplicated progress notes shall not constitute the required individualized progress notes. Each progress note shall demonstrate unique differences particular to the youth's circumstances, treatment, and progress. Claim payments shall be retracted for services that are supported by documentation that does not demonstrate unique differences particular to the youth.

6. Services shall be directed toward the treatment of the eligible youth and delivered primarily in the family's residence with the youth present. As clinically indicated, the services may be rendered in the community if there is documentation, on that date of service, of the necessity of providing services in the community. The documentation shall describe how the alternative community service location supports the identified clinical needs of the youth and describe how it facilitates the implementation of the ISP. For services provided outside of the home, there shall be documentation reflecting therapeutic treatment as set forth in the ISP provided for that date of service in the appropriately signed and dated progress notes.

7. These services shall be provided when the clinical needs of the youth put youth at risk for out-of-home placement, as these terms are defined in this section:

a. When services that are far more intensive than outpatient clinic care are required to stabilize the youth in the family situation; or

b. When the youth's residence as the setting for services is more likely to be successful than a clinic.

The comprehensive needs assessment shall describe how the youth meets either subdivision 7 a or 7 b of this subsection.

8. Services shall not be provided if the youth is no longer a resident of the home.

9. Services shall also be used to facilitate the transition to home from an out-of-home placement when services more intensive than outpatient clinic care are required for the transition to be successful. The youth and responsible parent or guardian shall be available and in agreement to participate in the transition.

10. At least one parent or legal guardian or responsible adult with whom the youth is living must be willing to participate in the intensive in-home services with the goal of keeping the individual youth with the family. In the instance of this service, a responsible adult shall be an adult who lives in the same household with the youth and is responsible for engaging in therapy and service-related activities to benefit the youth.

11. The enrolled provider shall be licensed by the Department of Behavioral Health and Developmental Services (DBHDS) as a provider of intensive in-home services. The provider shall also have a provider enrollment agreement with DMAS or its contractor in effect prior to the delivery of this service that indicates that the provider will offer intensive in-home services.

12. Services must only be provided by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E. Reimbursement shall not be provided for such services when they have been rendered by a QPPMH.

13. The billing unit for intensive in-home service shall be one hour. Although the pattern of service delivery may vary, intensive in-home services is an intensive service provided to youth for whom there is an ISP in effect which demonstrates the need for a minimum of three hours a week of intensive in-home service, and includes a plan for service provision of a minimum of three hours of service delivery per youth or family per week in the initial phase of treatment. It is expected that the pattern of service provision may show more intensive services and more frequent contact with the youth and family initially with a lessening or tapering off of intensity toward the latter weeks of service. Service plans shall incorporate an individualized discharge plan that describes transition from intensive in-home to less intensive or nonhome based services.

14. The ISP, as defined in 12VAC30-50-226, shall be updated as the youth's needs and progress changes and signed by either the parent or legal guardian and the youth. Documentation shall be provided if the youth, who is a minor child, is unable or unwilling to sign the ISP. If there is a lapse in services that is greater than 31 consecutive calendar days without any communications from family members or legal guardian or the youth with the provider, the provider shall discharge the youth.

15. The provider shall ensure that the maximum staff-to-caseload ratio fully meets the needs of the youth.

16. If an youth receiving services is also receiving case management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider shall contact the case manager and provide notification of the provision of services. In addition, the provider shall send monthly updates to the case manager on the youth's status. A discharge summary shall be sent to the case manager within 30 calendar days of the service discontinuation date. Providers and case managers who are using the same electronic health record for the youth shall meet requirements for delivery of the notification, monthly updates, and discharge summary upon entry of the information in the electronic health records.

17. Emergency assistance shall be available 24 hours per day, seven days a week.

18. Providers shall comply with DMAS marketing requirements at 12VAC30-130-2000. Providers that DMAS determines violate these marketing requirements shall be terminated as a Medicaid provider pursuant to 12VAC30-130-2000 E.

19. The provider shall determine who the primary care provider is and, upon receiving written consent from the youth or guardian, shall inform the primary care provider of the youth's receipt of IIH services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

D. Utilization review of therapeutic day treatment for youth.

1. The service definition for therapeutic day treatment (TDT) for youth is contained in 12VAC30-50-130.

2. Therapeutic day treatment is appropriate for youth who meet one of the following criteria:

a. Youth who require year-round treatment in order to sustain behavior or emotional gains.

b. Youth whose behavior and emotional problems are so severe they cannot be handled in self-contained or resource emotionally disturbed (ED) classrooms without:

(1) This programming during the school day; or

(2) This programming to supplement the school day or school year.

c. Youth who would otherwise be placed on homebound instruction because of severe emotional or behavior problems that interfere with learning.

d. Youth who (i) have deficits in social skills, peer relations or dealing with authority; (ii) are hyperactive; (iii) have poor impulse control; or (iv) are extremely depressed or marginally connected with reality.

e. Children in preschool enrichment and early intervention programs when the children's emotional or behavioral problems are so severe that the children cannot function in these programs without additional services.

3. The comprehensive needs assessment shall document the youth's behavior and describe how the youth meets these specific service criteria in subdivision 2 of this subsection.

4. Prior to admission to this service, a comprehensive needs assessment shall be conducted by an LMHP, LMHP-R, LMHP-RP, or LMHP-S who shall make and document the diagnosis. Comprehensive needs assessments shall meet all of the requirements set forth in 12VAC30-60-143 B 7.

5. An ISP shall be fully completed, signed, and dated by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E and by the youth or the parent or guardian within 30 calendar days of initiation of services. Individual progress notes shall be required for each contact with the youth and shall meet all of the requirements as defined in this section.

6. Such services shall not duplicate those services provided by the school.

7. The youth 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. The youth shall meet at least two of the following criteria on a continuing or intermittent basis:

a. Have difficulty in establishing or maintaining normal interpersonal relationships to such a degree that they are at risk of hospitalization or out-of-home placement because of conflicts with family or community.

b. Exhibit such inappropriate behavior that documented, repeated interventions by the mental health, social services, or judicial system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are unable to recognize personal danger or recognize significantly inappropriate social behavior.

8. The enrolled provider of therapeutic day treatment for youth services shall be licensed by DBHDS to provide day support services. The provider shall also have a provider enrollment agreement in effect with DMAS prior to the delivery of this service that indicates that the provider offers therapeutic day treatment services for youth.

9. Services shall be provided by an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

10. The minimum staff-to-individual ratio as defined by DBHDS licensing requirements shall ensure that adequate staff is available to meet the needs of the youth identified on the ISP.

11. The program shall operate a minimum of two hours per day and may offer flexible program hours (i.e., before or after school or during the summer). One unit of service shall be defined as a minimum of two hours but less than three hours in a given day. Two units of service shall be defined as a minimum of three but less than five hours in a given day. Three units of service shall be defined as five or more hours of service in a given day.

12. Time required for academic instruction when no treatment activity is going on shall not be included in the billing unit.

13. If a youth receiving services is also receiving case management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider shall collaborate with the case manager and provide notification of the provision of services. In addition, the provider shall send monthly updates to the case manager on the youth's status. A discharge summary shall be sent to the case manager within 30 calendar days of the service discontinuation date. Providers and case managers using the same electronic health record for the youth shall meet requirements for delivery of the notification, monthly updates, and discharge summary upon entry of this documentation into the electronic health record.

14. The provider shall determine who the primary care provider is and, upon receiving written consent from the youth or the youth's parent or legal guardian, shall inform the primary care provider of the youth's receipt of community mental health rehabilitative services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted. The parent or legal guardian shall be required to give written consent that this provider has permission to inform the primary care provider of the youth's receipt of community mental health rehabilitative services.

15. 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.

16. If there is a lapse in services greater than 31 consecutive calendar days, the provider shall discharge the youth.

E. Utilization review of therapeutic group home services.

1. The staff ratio must be approved by the Office of Licensure at the Department of Behavioral Health and Developmental Services. The clinical director shall be a licensed mental health professional. The caseload of the clinical director must not exceed 16 individuals including all sites for which the same clinical director is responsible.

2. The program director shall be full time and meet the requirements for a program director as defined in 12VAC35-46-350.

3. For Medicaid reimbursement to be approved, at least 50% of the provider's direct care staff at the therapeutic group home shall meet DBHDS qualified paraprofessional in mental health (QPPMH) criteria, as defined in 12VAC35-105-20. The therapeutic group home shall coordinate services with other providers.

4. All therapeutic group home services shall be authorized prior to reimbursement for these services. Services rendered without such prior authorization shall not be covered.

5. Services must be provided in accordance with a comprehensive individual plan of care as defined in 12VAC30-50-130, which shall be fully completed within 30 calendar days of authorization for Medicaid reimbursement.

6. Prior to admission, an assessment shall be performed using all elements specified by DMAS in 12VAC30-50-130.

7. Such assessments shall be performed by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

8. If a youth receiving therapeutic group home services is also receiving case management services, the therapeutic group home services provider must collaborate with the care coordinator/case manager by notifying him of the provision of therapeutic group home services and the therapeutic group home services provider shall send monthly updates on the youth's treatment status.

9. The provider shall determine who the primary care provider is and shall inform the primary care provider of the youth's receipt of therapeutic group home services. The documentation shall include who was contacted, when the contact occurred, and what information was transmitted.

F. Utilization review of behavioral therapy services for youth.

1. In order for Medicaid to cover behavioral therapy services, the provider shall be enrolled with DMAS or its contractor as a Medicaid provider. The provider enrollment agreement shall be in effect prior to the delivery of services for Medicaid reimbursement.

2. Behavioral therapy services shall be covered for youth when recommended by the youth's primary care provider, 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.

3. Behavioral therapy services require service authorization. Services shall be authorized only when eligibility and medical necessity criteria are met.

4. Prior to treatment, an appropriate behavioral therapy assessment shall be conducted, documented, signed, and dated by a licensed behavior analyst (LBA), licensed assistant behavior analyst (LABA), LMHP, LMHP-R, LMHP-RP, or LMHP-S, acting within the scope of his practice, documenting the youth's diagnosis (including a description of the behaviors targeted for treatment with their frequency, duration, and intensity) and describing how service needs can best be met through behavioral therapy. The behavioral therapy assessment shall be conducted face-to-face in the youth's residence with the youth and parent or guardian.

5. The ISP shall be developed upon admission to the service and reviewed within 30 days of admission to the service to ensure that all treatment goals are reflective of the youth's clinical needs and shall describe each treatment goal, targeted behavior, one or more measurable objectives for each targeted behavior, the behavioral modification strategy to be used to manage each targeted behavior, the plan for parent or caregiver training, care coordination, and the measurement and data collection methods to be used for each targeted behavior in the ISP. The ISP as defined in 12VAC30-50-226 shall be fully completed, signed, and dated by an LBA, LABA, LMHP, LMHP-R, LMHP-RP, or LMHP-S. Every three months, the LBA, LABA, LMHP, LMHP-R, LMHP-RP, or LMHP-S shall review the ISP, modify the ISP as appropriate, and update the ISP, and all of these activities shall occur with the youth in a manner in which the youth may participate in the process. The ISP shall be rewritten at least annually.

6. Reimbursement for the initial behavioral therapy assessment and the initial ISP shall be limited to five hours without service authorization. If additional time is needed to complete these documents, service authorization shall be required.

7. Clinical supervision shall be required for Medicaid reimbursement of behavioral therapy services that are rendered by an LABA, LMHP-R, LMHP-RP, or LMHP-S or unlicensed staff consistent with the scope of practice as described by the applicable Virginia Department of Health Professions regulatory board. Clinical supervision of unlicensed staff shall occur at least weekly. As documented in the youth's medical record, clinical supervision shall include a review of progress notes and data and dialogue with supervised staff about the youth's progress and the effectiveness of the ISP. Clinical supervision shall be documented by, at a minimum, the contemporaneously dated signature of the clinical supervisor.

8. Family training involving the youth's family and significant others to advance the treatment goals of the youth shall be provided when (i) the training with the family member or significant other is for the direct benefit of the youth, (ii) the training is not aimed at addressing the treatment needs of the youth family or significant others, (iii) the youth is present except when it is clinically appropriate for the youth to be absent in order to advance the youth's treatment goals, and (iv) the training is aligned with the goals of the youth's treatment plan.

9. The following shall not be covered under this service:

a. Screening to identify physical, mental, or developmental conditions that may require evaluation or treatment. Screening is covered as an EPSDT service provided by the primary care provider and is not covered as a behavioral therapy service under this section.

b. Services other than the initial behavioral therapy assessment that are provided but are not based upon the youth's ISP or linked to a service in the ISP. Time not actively involved in providing services directed by the ISP shall not be reimbursed.

c. Services that are based upon an incomplete, missing, or outdated behavioral therapy assessment or ISP.

d. Sessions that are conducted for family support, education, recreational, or custodial purposes, including respite or child care.

e. Services that are provided by a provider but are rendered primarily by a relative or guardian who is legally responsible for the youth's care.

f. Services that are provided in a clinic or provider's office without documented justification for the location in the ISP.

g. Services that are provided in the absence of the youth or a parent or other authorized caregiver identified in the ISP with the exception of treatment review processes described in subdivision 12 e of this subsection, care coordination, and clinical supervision.

h. Services provided by a local education agency.

i. Provider travel time.

10. Behavioral therapy services shall not be reimbursed concurrently with community mental health services described in 12VAC30-50-130 C or 12VAC30-50-226 B, or behavioral, psychological, or psychiatric therapeutic consultation described in 12VAC30-120-756, 12VAC30-120-1000, or 12VAC30-135-320.

11. If the youth is receiving targeted case management services under the State Plan (defined in 12VAC30-50-410 through 12VAC30-50-491), the provider shall notify the case manager of the provision of behavioral therapy services unless the parent or guardian requests that the information not be released. In addition, the provider shall send monthly updates to the case manager on the youth's status pursuant to a valid release of information. A discharge summary shall be sent to the case manager within 30 days of the service discontinuation date. A refusal of the parent or guardian to release information shall be documented in the medical record for the date the request was discussed.

12. Other standards to ensure quality of services:

a. Services shall be delivered only by an LBA, LABA, LMHP, LMHP-R, LMHP-RP, LMHP-S, or clinically supervised unlicensed staff consistent with the scope of practice as described by the applicable Virginia Department of Health Professions regulatory board.

b. Individual-specific services shall be directed toward the treatment of the eligible individual and delivered in the family's residence unless an alternative location is justified and documented in the ISP.

c. Individual-specific progress notes shall be created contemporaneously with the service activities and shall document the name and Medicaid number of each youth; the provider's name, signature, and date; and time of service. Documentation shall include activities provided, length of services provided, the youth's reaction to that day's activity, and documentation of the youth's and the parent or caregiver's progress toward achieving each behavioral objective through analysis and reporting of quantifiable behavioral data. Documentation shall be prepared to clearly demonstrate efficacy using baseline and service-related data that shows clinical progress and generalization for the youth and family members toward the therapy goals as defined in the service plan.

d. Documentation of all billed services shall include the amount of time or billable units spent to deliver the service and shall be signed and dated on the date of the service by the practitioner rendering the service.

e. Billable time is permitted for the LBA, LABA, LMHP, LMHP-R, LMHP-RP, or LMHP-S to better define behaviors and develop documentation strategies to measure treatment performance and the efficacy of the ISP objectives, provided that these activities are documented in a progress note as described in subdivision 12 c of this subsection.

13. Failure to comply with any of the requirements in 12VAC30-50-130 or in this section shall result in retraction.