Administrative Code

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Virginia Administrative Code
Title 12. Health
Agency 30. Department Of Medical Assistance Services
Chapter 122. Community Waiver Services for Individuals with Developmental Disabilities
6/16/2021

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 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.) .

8. Provide services and supports to individuals of the same quality and in the same mode of delivery as provided to the general public.

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.

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.

11. Use program-designated billing forms for submission of claims for reimbursement.

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.

e. Providers shall prepare and maintain unique person-centered written documentation in the form of progress notes or supports checklist as defined by the service. These shall be in each individual's record about the individual's responses to 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 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.

f. Unacceptable person-centered progress 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 notes that do not document the individual's unique opinions or observed responses to supports.

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.

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.

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.

15. Perform criminal history record checks for barrier crimes in accordance with applicable licensure requirements at §§ 37.2-416, 37.2-506, and 37.2-607 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 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. 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 background check verifies that the CD employee has been convicted of a barrier 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 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.

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 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.

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.

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 ; (ii) multiple citations related to health and welfare for one support plan; or (iii) citation by either DMAS or DBHDS in key identified areas, resulting in a corrective action plan or citation 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 comply with any areas in the corrective action plan shall result in referral to DMAS Program Integrity and initiation of proceedings related to termination of the provider Medicaid participation agreement.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from Virginia Register Volume 37, Issue 14, eff. March 31, 2021.

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