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Virginia Administrative Code
Title 14. Insurance
Agency 10. Virginia Birth-Related Neurological Injury Compensation Program
Chapter 10. Virginia Birth-Related Neurological Injury Compensation Program Regulations
5/24/2020

14VAC10-10-50. Personal Nursing and Assistive Care.

A. The Virginia Birth-Related Neurological Injury Compensation Program (Program) will pay for appropriate medically necessary and reasonable nursing care or assistive care as recommended in writing by the admitted claimant's primary care physician.

B. The Program will review or consult periodically with medical professionals concerning the continued appropriateness of the nursing hours.

C. The Program utilizes nursing agencies when available. All nursing agencies utilized by the Program must provide to the Program copies of their employment policies regarding the criminal history records checks and sex offender searches conducted on their employees. All nursing agencies utilized by the Program must provide a certification to the Program for each employee the agencies places for care of admitted claimants that verifies that the named employee has not been convicted of any offense listed as a barrier crime pursuant to § 37.2-314, 37.2-416, or 37.2-506 of the Code of Virginia. No nursing agency shall be reimbursed for any hours worked by an agency employee for which such certification has not been provided to the Program. Signed and dated time sheets and monthly care summaries must be submitted with each request for reimbursement. If an agency is unable to provide care, the Executive Director of the Program is authorized to approve other arrangements.

D. If a nursing agency is not available, or the admitted claimant's parent or legal guardian chooses to employ a relative or legal guardian of the admitted claimant to provide prescribed nursing or attendant care authorized by the admitted claimant's primary care physician or appropriate treating specialist physician, the Program may reimburse the admitted claimant's parent or legal guardian for care providers who are employed by the admitted claimant's family as independent contractors or household employees, as the case may be, upon approval of the Executive Director of the Program. The Program will reimburse admitted claimant families for employment-related taxes such as FICA or unemployment tax, related to the hiring of an independent contractor upon receipt of proper documentation of payment of these taxes. The parent or legal guardian of the admitted claimant must provide a certification to the Program for each independent contractor or household employee who the parent or legal guardian hires for an admitted claimant's care that verifies that the named independent contractor or household employee has not been convicted of any offense listed as a barrier crime pursuant to § 37.2-314, 37.2-416, or 37.2-506 of the Code of Virginia. No parent or legal guardian shall be reimbursed for any hours worked by an independent contractor for which such certification has not been provided to the Program. The parent or legal guardian of the admitted claimant will pay any application fees associated with requesting these background checks of the Virginia State Police. Upon receipt of the certification and a receipt from the Virginia State Police or an authenticated copy of the canceled check, the Program will reimburse those application fees associated with the application of the independent contractor or household employee actually hired. Signed and dated time sheets, signed and dated receipts of payment, and monthly care summaries must be submitted with each request for reimbursement.

E. The Program will not reimburse a care provider for more than a 16-hour shift within a 24-hour period unless there is an emergency and no other care provider is available to care for the admitted claimant. Overtime is not paid unless preauthorized by the Program. The Program will not reimburse for work by a full-time caregiver for more than 40 hours per week unless preauthorized by the Program.

F. The Program will not provide a private duty nurse while an admitted claimant is hospitalized unless the attending physician considers it medically necessary and a written order for private duty nursing is provided to the Program. The Program will pay for a sitter who is not a family member and may not have medical experience while the child is hospitalized, if requested, and with prior approval from the Program and a letter of medical necessity from the attending physician.

G. The Program will provide nurses or caregivers to accompany admitted claimants during school hours provided such care is deemed medically necessary and is not otherwise available. This care counts toward the total approved nursing hours.

H. The Program will reimburse medically necessary care provider expenses if they have not been previously filed with the tax authorities as deductions or credits. If they have been filed with the tax authorities as deductions or credits, then an amended tax report must be filed with the tax authorities and a copy of the amended tax report provided to the Program before the family will be reimbursed for these expenses.

I. The Program may reimburse for medically necessary and reasonable nursing and attendant care that is provided by a relative or legal guardian of an admitted claimant so long as that care is beyond the scope of childcare duties and services normally and gratuitously provided by family members to uninjured children and so long as such care and reimbursement requests are in accordance with other applicable provisions and the following:

1. The relative or legal guardian providing the care must be at least 18 years of age.

2. The parent or legal guardian of the admitted claimant must submit a letter of medical necessity from the admitted claimant's primary care physician or appropriate treating specialist physician that sets forth the number of nursing or attendant care hours needed per day; the physician's assessment regarding the level of care required; and certification that the intended caregiver is appropriately trained, qualified, and physically capable of performing the required home medical and attendant care duties. Medically necessary care to be provided by a relative or legal guardian of an admitted claimant shall be performed only at the direction and control of the admitted claimant's primary care physician or appropriate treating specialist physician.

3. The parent or legal guardian of the admitted claimant must provide a certification to the Program for each caregiver the parent or legal guardian hires for an admitted claimant's care that verifies that the named caregiver has not been convicted of any offense listed as a barrier crime pursuant to §§ 37.2-314, 37.2-416, or 37.2-506 of the Code of Virginia. No parent or legal guardian shall be reimbursed for any hours worked by a caregiver for whom such certification has not been provided to the Program. The parent or legal guardian of the admitted claimant will pay any application fees associated with requesting these background checks of the Virginia State Police. Upon receipt of the certification and a receipt from the Virginia State Police or an authenticated copy of the canceled check, the Program will reimburse those application fees associated with the application of the caregiver actually hired.

4. Any relative or legal guardian of an admitted claimant providing caregiver services must provide a signed release of liability form to the Program regarding any potential injury sustained during the course of providing services to the admitted claimant.

5. Any parent or legal guardian of an admitted claimant choosing to utilize nursing or attendant care that is provided by a relative or legal guardian in lieu of nursing or other professional caregiver services must provide a signed release of liability form to the Program regarding any potential injury sustained by the admitted claimant during the course of receiving care.

6. Signed and dated time sheets, signed and dated receipts of payment, and monthly care summaries must be submitted with each request for reimbursement.

7. The Program will not reimburse for care provided by a nurse or other professional caregiver and by a relative or legal guardian for the same hours. Hours of care provided by a relative or legal guardian of an admitted claimant cannot be used to supplement hours of care provided by professional caregivers or nursing agencies to the extent that those hours would exceed the total hours deemed medically necessary and authorized by the Program.

8. No more than 12 hours within a 24-hour period may be reimbursed for care provided by any single relative or legal guardian of an admitted claimant.

9. The rate of reimbursement for nursing and attendant care that is provided by a relative or legal guardian of an admitted claimant shall be the average hourly rate for a home health aide (combined all industries) as reported by the Commonwealth of Virginia's Labor Market Data report for the applicable metropolitan statistical area in the most recently published data available. The Program will reimburse an admitted claimant's parent or legal guardian for employment-related taxes, such as FICA or unemployment tax, resulting from that parent or legal guardian's employment of a relative or legal guardian as the admitted claimant's caregiver as set forth in this chapter, upon receipt of proper documentation of payment of these taxes.

10. The Program's Executive Director and staff reserve the right to have reviewed each nursing or attendant care plan or physician order for medical necessity.

J. The Program generally follows Medicaid payment rates depending on the locality or state where the care is delivered.

K. Travel expenses associated with nursing care are reimbursable only if the travel is medically necessary. No travel expenses will be paid for nurses or caregivers accompanying families on vacation or other nonmedically necessary travel. Travel expenses for medically necessary nursing or attendant care during medically necessary travel will only be paid for one person in addition to the admitted claimant. All such payments or reimbursements are made to the parent or guardian of the admitted claimant not to the caregiver.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

Derived from Volume 33, Issue 23, eff. July 10, 2017.

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