Administrative Code

Virginia Administrative Code
11/28/2021

Chapter 10. Virginia Birth-Related Neurological Injury Compensation Program Regulations

Part I
General Procedural Requirements

14VAC10-10-10. Payer of last resort.

The Virginia Birth-Related Neurological Injury Compensation Program (Program) is a payer of last resort. Each admitted claimant's primary insurance and other sources of coverage should be billed for covered services before the Program is asked to pay for a service. An admitted claimant may not receive reimbursement or compensation from the Program for expenses for items or services, or for reimbursements, that he has received or is entitled to receive by contract, state law, or federal law, or from another source, except to the extent that it is prohibited by federal law.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-20. Primary insurance.

A. Medical services that are required to be precertified, preauthorized, or authorized by the admitted claimant's primary insurance provider may not be payable by the Virginia Birth-Related Neurological Injury Compensation Program (Program) if the primary insurance carrier's certification or authorization process has not been satisfied.

B. Admitted claimants must utilize the primary insurer's in-network providers and facilities unless otherwise authorized by the Program. Utilizing non-network or nonparticipating providers or facilities may result in reduced payment or nonpayment of incurred expenses.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-30. Medical review.

The Virginia Birth-Related Neurological Injury Compensation Program reserves the right to submit requests for services or equipment for independent medical review to determine medical necessity or appropriateness of care prior to authorizing payment.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

Part II
Benefits

14VAC10-10-40. Counseling.

The Virginia Birth-Related Neurological Injury Compensation Program will pay for counseling for family members related to the needs of an admitted claimant. After primary insurance, a maximum of $1,500 per calendar year will be paid for this service. Services must be provided by a licensed clinical social worker, counselor, psychologist, or psychiatrist.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

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 Virginia Register Volume 33, Issue 23, eff. July 10, 2017.

14VAC10-10-60. Dental care.

The Virginia Birth-Related Neurological Injury Compensation Program will pay for the admitted claimant's dental care costs if they are medically necessary not cosmetic and are not covered by other sources.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-70. Therapy.

A. The Virginia Birth-Related Neurological Injury Compensation Program (Program) will pay for therapy that is determined to be medically necessary and reasonable and for which there is a letter of medical necessity provided by the admitted claimant's primary care physician or appropriate treating specialist physician.

B. The Program may consult periodically with appropriate medical professionals regarding the necessity for continuing various therapies including behavioral, physical, horseback, and speech therapy.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-80. Transportation; vans.

A. The Virginia Birth-Related Neurological Injury Compensation Program (Program) will fund the purchase of a van when it becomes medically necessary for wheelchair transportation. Van options for admitted claimants are available from the Program. The Program will have the primary lien on the van's certificate of title, although the van itself will be titled in the name of the admitted claimant's parents or legal guardians. The Program will pay the personal property taxes on and sales taxes resulting from the initial purchase of the medically necessary van and also will pay an amount equal to the uninsured motorist fee, or the insurance premium for the van, whichever is less. Other operating costs, such as city or county decals and tags, maintenance, repairs, and tires will be the responsibility of the parents or guardians. Mileage and other transportation costs will be reimbursed as set out under 14VAC10-10-150. The Program will reimburse the admitted claimant's family for the cost of insuring the lift and tie downs if an additional cost is incurred for this and a receipt is provided.

B. Vans will be replaced at approximately 100,000 miles. Documentation of the vehicle's service history and condition will be considered in determining the timing of van replacement.

C. In the event a van provided by the Program is no longer necessary for transportation of the admitted claimant, the van must be returned, and the title must be transferred to the Program within three months. The family may purchase the van if an agreeable purchase price is agreed upon with the Executive Director of the Program.

D. All vans returned to the Program should be in good working order and be able to pass a Virginia state inspection. If the van is not in good working order or cannot pass a Virginia state inspection, the admitted claimant's parent or legal guardian must have the defects repaired at his own cost if the expense is not covered by insurance prior to returning the vehicle to the Program.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-90. Equipment.

A. Equipment documented as medically necessary by the admitted claimant's physician will be provided by the Virginia Birth-Related Neurological Injury Compensation Program (Program). Because there is a gamut of equipment that may be provided, no attempt is made to list all such equipment in this section. Equipment provided to date, however, includes oxygen concentrators, bipap machines, feeding pumps, gait trainers, wheelchairs, Wizard strollers, suction machines, apnea monitors, IV poles, pulse oximeters, therapy balls, therapy mats, Gorilla car seats, wheelchair lifts, and wheelchair tie-downs.

B. All medically necessary equipment (except vans) purchased entirely by the Program remains the property of the Program. Depending upon the type of equipment and its condition, it is expected that equipment will be returned to the Program when no longer required by the admitted claimant. The family may purchase the equipment if a purchase price is agreed upon with the Executive Director of the Program. If the equipment is not purchased entirely by the Program it does not have to be returned to the Program.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-100. Augmentative communication technology.

A. The Virginia Birth-Related Neurological Injury Compensation Program (Program) will pay for devices, equipment, and computer software for the purpose of aiding in communication of an admitted claimant who otherwise is unable to communicate verbally. The Program may require an evaluation be completed by a Program assigned augmentative communication consultant to ensure the appropriate equipment is recommended or purchased.

B. For all equipment supplied by the Program, it is expected that the admitted claimant and those involved in the care of the admitted claimant will utilize the equipment as intended and invest the time and effort required for the equipment to be utilized successfully.

C. In accordance with the Program's general policy on purchasing medically necessary equipment, all augmentative communication technology equipment remains the property of the Program. If for any reason the equipment no longer is necessary or not utilized by the admitted claimant, it should be returned to the Program. Because the Program is a payer of last resort, all measures for obtaining coverage through primary insurance or other sources must be exhausted before the Program will cover augmentative technology services.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-110. Privately owned housing assistance.

A. The Virginia Birth-Related Neurological Injury Compensation Program (Program) Board of Directors statutory authority concerns awards for the medical needs of the admitted claimants it serves. However, if an admitted claimant has medically necessary housing needs that can be addressed in the nonrental home currently owned and occupied by the admitted claimant's family or guardian, the board will provide one-time funding for medically necessary modification to, or construction of, an accessible bedroom and bathroom if such modification or construction is feasible and reasonable. This modification or construction must be within the Program's allowable standards for cost, space, and other factors before funding for an accessible bedroom and bathroom will be authorized. The Program's construction manager or other qualified professional will determine the feasibility of these modifications or construction and whether the admitted claimant's needs will be met in the contemplated project.

B. The maximum lifetime housing benefit per admitted claimant for any one or combination of housing benefits (rental or construction) is up to $175,000.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-120. Rental housing assistance.

A. If the admitted claimant resides in a non-handicapped-accessible rental unit and moves to a handicapped accessible rental unit, the Virginia Birth-Related Neurological Injury Compensation Program (Program) will reimburse the difference between the former monthly rental payment and the cost for the appropriate handicapped accessible rental unit of similar size and quality based on cost per square foot. Any substantial increases in the square footage of the handicapped accessible unit to be reimbursed must be attributable to medically necessary requirements and not exceed the overall guidelines utilized when the Program constructs additional space for an admitted claimant.

B. The handicapped accessible rental unit should meet all applicable regulations of the Americans with Disabilities Act (ADA (42 USC § 1201 et seq.)). Exceptions to meeting the ADA regulations must be approved by the Virginia Birth-Related Neurological Injury Compensation Program's Board of Directors. Prior to providing reimbursement the Program may require certification of the rental unit's suitability for the admitted claimant or compliance with this policy.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-130. Funeral expenses.

The Virginia Birth-Related Neurological Injury Compensation Program will pay a maximum of $5,000 for the funeral and burial expenses of an admitted claimant.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-140. Attorney fees.

Virginia law authorizes payment of reasonable attorney fees incurred in the initial filing of a claim to enter the Virginia Birth-Related Neurological Injury Compensation Program, subject to the approval and award of the Virginia Workers' Compensation Commission.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-150. Miscellaneous expenses.

A. Transportation. Upon submission of receipts, the Virginia Birth-Related Neurological Injury Compensation Program (Program) will reimburse parking fees associated with medically necessary travel. The Program will reimburse documented mileage for medically necessary travel at the following rates:

1. Mileage will be reimbursed at 50% of the U.S. Internal Revenue Service's mileage rate for vans provided by the Program. Mileage reimbursement typically covers gasoline and other costs of operation. Because the Program provides the van in this instance, the Program's mileage reimbursement is intended only to cover the cost of gasoline associated with medically necessary transportation. Mileage is based on the distance from the home to the appointment location. Verification may be required by the Program.

2. For use of personal vehicles, reimbursement will be at the U.S. Internal Revenue Service's mileage rate. In the event a van provided by the Program is unavailable, the mileage reimbursement allowance provided would be that allowed for vans purchased by the Program. Upon submission of receipts, the Program will reimburse other medically necessary transportation expenses not otherwise reimbursed.

B. Postage. The Program will pay postage for reimbursement requests submitted to the Program and for information requested by the Program.

C. Cell phones. If the Program receives a prescription from the admitted claimant's primary care physician or appropriate treating specialist physician that a cellular telephone is medically necessary, the Program will pay for basic monthly emergency service. If basic emergency service is unavailable, the Program will pay for basic monthly service only. If installation of the cellular telephone is required, the phone must be installed in the vehicle in which the admitted claimant is transported. An admitted claimant's parent or guardian must contact the Program for the current allowable amounts.

D. Diapers. Beginning at age three years, the Program will pay for diapers for an admitted claimant when deemed medically necessary pursuant to the Program's purchasing guidelines. If the parent or guardian of an admitted claimant does not have receipts for the period of time between the child's third birthday and the child's admission into the Program, the parent or guardian may submit the reimbursement request with the prescription and receive reimbursement based upon the Medicaid reimbursement rate.

E. Therapeutic toys. The Program will provide therapeutic toys with documentation of the therapeutic benefit of the toys. These toys are not to exceed $300 per calendar year. Once the admitted claimant has no need for these toys and if the toys are in good condition, the Program will accept their return to be used to stock a lending program. The toys will be sanitized prior to use by other families.

F. Other expenses. The Program may pay other medically necessary expenses of the admitted claimant as determined by the Program's Board of Directors in its discretion. Requests for medically necessary services, etc., that are not addressed in this chapter should be sent to the Executive Director of the Program who will refer these requests to the board for action.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

Part III
Other Procedures

14VAC10-10-160. Insurance.

A. Because the Virginia Birth-Related Neurological Injury Compensation Program (Program) generally is a payer of last resort, each admitted claimant's parent or legal guardian must purchase private health insurance to provide coverage for the actual medically necessary and reasonable expenses as described in § 38.2-5009 A 1 of the Code of Virginia that were, or are, incurred as a result of the admitted claimant's birth-related neurological injury and for the admitted claimant's benefit. The admitted claimant's parent or legal guardian may request the assistance of the Program facilitator in obtaining a suitable health insurance policy for the admitted claimant if he has no preexisting coverage for the admitted claimant upon the admitted claimant's admission into the Program. The Program will reimburse, upon receipt of proof of payment, solely the portion of the premiums that is attributable to the admitted claimant's post-admission coverage and paid for by the admitted claimant's parent or legal guardian. The Program must be provided with a copy of the applicable health insurance policy before benefits are paid by the Program. It is the responsibility of the parents or guardians to seek benefits for which an admitted claimant is eligible by submitting requests to the Program third-party administrator or other appropriate staff person, as indicated on the Program's website. In addition, the parents or guardians of the admitted claimant must identify a primary care physician.

B. Claimants must utilize the primary insurer's in-network providers and facilities unless otherwise authorized by the Program. Utilizing non-network or nonparticipating providers or facilities may result in reduced payment, nonpayment, or nonreimbursement of incurred expenses.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 33, Issue 23, eff. July 10, 2017; amended, Virginia Register Volume 34, Issue 15, eff. March 9, 2018.

14VAC10-10-170. Reimbursement.

Although an admitted claimant has been determined eligible for benefits from the Virginia Birth-Related Injury Compensation Program (Program), parents or caregivers must contact the Program before committing to the purchase of equipment or incurring other expenses for which they may seek reimbursement. Failure to do so may jeopardize reimbursement from the Program. In the case of emergency care rendered or sought during nonbusiness hours, the admitted claimant's family is responsible for contacting the Program the next business day for authorization of services for which the Program is expected to pay.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-180. Claims for reimbursement.

Requests for reimbursement of expenses from medical providers, pharmacies, equipment providers, medically necessary mileage, or other expenses will not be honored if submitted after one year from the date they are incurred. All reimbursement requests must be accompanied by documentation of medical necessity and receipts from providers. This time limit does not apply to expenses incurred prior to acceptance into the Virginia Birth-Related Neurological Injury Compensation Program (Program). All requests for reimbursement for expenses prior to entry into the Program must be submitted within two years of entry into the Program.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-190. Requests for authorization; services outside insurance plan covered area or network.

A. In the event it is medically necessary to take an admitted claimant outside the admitted claimant's applicable insurance plan's covered service area or the primary insurance's provider network for evaluation, surgery, etc., it must be ascertained if the primary insurance plan will pay for benefits and if so, what amount it will pay. After this is determined, the Virginia Birth-Related Neurological Injury Compensation Program (Program) must be contacted for authorization prior to seeking services or the Program may determine not to pay any balance remaining on the bill for these services.

B. If an in-network provider is available for a service and an out-of-network provider is utilized, the Program will reimburse or pay only an amount equal to what the Program would have paid if an in-network provider had been utilized.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-200. Medically necessary travel greater than 100 miles from primary residence.

In the event it is medically necessary to take an admitted claimant outside the local service area (more than 100 miles from the admitted claimant's primary residence) for evaluation, surgery, or other medically necessary care, it must be ascertained prior to the travel if the travel-related expenses will be reimbursed by the Virginia Birth-Related Neurological Injury Compensation Program (Program). If preauthorization is not obtained, the Program may not pay for these travel-related expenses.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-210. Request for benefits not specifically addressed.

This chapter authorizes the Executive Director of the Virginia Birth-Related Neurological Injury Compensation Program (Program) to provide the benefits described without referral to the Board of Directors of the Program except in exceptional circumstances, and in the executive director's discretion. The board, however, realizes that there may be programs, equipment, or other items, which may be of value to an admitted claimant that this chapter does not address. If the parents or guardians feel a benefit not described in this chapter would be of value to the admitted claimant (the executive director is not authorized to provide those benefits without board approval), the parents or guardians should write the board via the executive director, who will bring these requests to the board at its next meeting.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-220. Experimental treatment and therapy.

A. Experimental treatments or therapy not typically covered by health insurance, including conductive education, may be covered up to a maximum of $6,000 per year, combined, with written prior authorization from the Executive Director of the Virginia Birth-Related Neurological Injury Compensation Program (Program). The Board of Directors of the Program recognizes that such therapies or treatments may be useful for some admitted claimants and, therefore, grants this discretionary benefit on a case-by-case basis. Because this benefit is not provided expressly by the Virginia Birth-Related Neurological Injury Compensation Act (§ 38.2-5000 et seq. of the Code of Virginia), however, there is no guarantee of coverage for experimental therapy or treatment. This completely discretionary benefit may be rescinded at any time; especially if such rescission is warranted by the Board of Directors fiduciary obligations set forth in § 38.2-5016 F of the Code of Virginia. Upon such rescission, benefits under this policy will terminate immediately and no admitted claimant will have any further recourse or any basis for a claim for further benefits under this policy.

B. A written request for authorization of experimental treatment or therapy must be submitted to the Program in accordance with the following process:

1. A letter of medical necessity from the admitted claimant's physiatrist, neurologist, or other appropriate treating specialist physician, who also regularly treats other patients with cerebral palsy, must be received by the Program. A letter of medical necessity from a physical therapist is not acceptable.

2. The letter of medical necessity must be received in the Program's offices at least 60 days prior to the desired start of treatment.

3. Evidence as to whether the primary insurers or other payers will cover any portion of the cost must be submitted with the request.

4. At the Program's discretion, all requests for experimental treatments or therapies may be reviewed for medical necessity by an objective qualified physician.

C. All other Program regulations regarding therapies, including the travel policy, are applicable to authorized experimental treatments or therapies. These include:

1. Payment for travel, lodging, and meals on a per diem basis based on current Commonwealth of Virginia rates.

2. For travel other than by car or van, prior authorization must be obtained.

D. Written authorization from the Program must be obtained by the admitted claimant prior to any payments or reimbursements being made by the Program.

E. Total combined costs for experimental treatments or therapies, related equipment, and travel expenses during any single calendar year may not exceed $6,000.

F. Following any experimental therapy treatment, a complete and thorough progress report prepared by the treating facility must be submitted to the Program within 60 days of completion of the therapy.

G. No further sessions or treatments will be authorized prior to the Program's receiving such progress reports. The receipt of the reports does not guarantee that further treatments will be authorized.

H. The Program may request an independent progress evaluation by a qualified physician prior to any reauthorization for subsequent treatments. If the admitted claimant's insurance will not cover this evaluation, the Program will pay for the evaluation at usual and customary rates. If the Program pays for the evaluation, that cost will not be considered to be part of the cost of the treatment.

I. A local qualified provider of the experimental therapy or treatment requested should be utilized unless the Program grants an exception for a specific treatment provider.

J. For any therapy or treatment proposed, no more than 100 hours will be authorized upon initial request. Additional authorization may be provided only after the procedures in subsection F of this section have been followed.

K. Nursing, certified nurse aide, or other personal assistance will not be provided for extended experimental therapy sessions of more than two hours per day unless a letter of medical necessity is received by the Program from an appropriate treating specialist physician. The letter must state specifically that a nurse must be present due to specified health risks to the admitted claimant.

L. In determining whether authorization will be granted for experimental therapy or treatment, the Program will consider, including the following:

1. The overall cost associated with the experimental treatment or therapy. The cost for one person to accompany the admitted claimant, if stated to be medically necessary by the treating physician; the duration of the Program; the expected benefits to the admitted claimant; and the availability of the experimental program in Virginia.

2. The report from the admitted claimant's treating physician regarding the medical necessity for the admitted claimant to participate in the experimental program.

3. Whether there is medically recognized proof of results that the experimental therapy or treatment has benefitted other patients in similar circumstances.

4. The expected frequency and duration of the experimental treatment or therapy requested.

5. The Program may require third party medical reviews to evaluate the potential success, safety, or results of the experimental treatment or therapy.

M. The Program encourages families to seek out clinical trials being conducted by accredited medical facilities, medical schools, or other highly regarded and medically accepted facilities or organizations to help establish the medical efficacy of experimental treatments or therapies.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

14VAC10-10-230. Disagreements.

A. Disagreements concerning whether a service or item of equipment should be paid for or reimbursed by the Virginia Birth-Related Neurological Injury Compensation Program (Program) may arise. If Program staff and the Program's Executive Director cannot make a determination regarding a request, or cannot resolve a disagreement, then the executive director has been authorized by the Program's Board of Directors to place the admitted claimant's request on the agenda for the board's consideration and determination at its next regular meeting.

B. The parents or guardians, within 30 days of receiving the Program staff's or executive director's written denial of a claim, may submit a written explanation of the dispute, provide documentation supporting the request and demonstrating that procedures for the submission of claims pursuant to this chapter have been followed, and request that the board make a determination regarding the claim at its next regular meeting.

C. The parents or guardians of the admitted claimant may attend a meeting of the board to make a presentation and to provide documentation in support of the request in addition to submitting written materials to the Program.

D. If a dispute is not resolved by the board, a petition of appeal may be filed with the Clerk of the Virginia Workers' Compensation Commission at 1000 DMV Drive, Richmond, Virginia 23220, within 30 days of receipt of written notification of the board's decision.

Statutory Authority

§ 38.2-5002.1 of the Code of Virginia.

Historical Notes

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

FORMS (14VAC10-10).

Certification Regarding Agency Caregiver's Prior Criminal History (filed 6/2017)

Caregiver Timesheet (rev. 10/2014)

Patient Nursing and Caregiver Form (filed 6/2017)

Release and Waiver of Liability, Discharge, Covenant Not to Sue, and Indemnity Agreement of Admitted Claimant (filed 6/2017)

Release and Waiver of Liability, Discharge, Covenant Not to Sue, and Indemnity Agreement by Caregiver (filed 6/2017)

Family Member Caregiver Competency Certification (filed 6/2017)

Certification, Waiver and Release Regarding Family Member Caregiver's Prior Criminal History for Two Parents/Guardians (filed 6/2017)

Certification, Waiver, and Release Regarding Family Member Caregiver's Prior Criminal History for Single Parent/Guardian (filed 6/2017)

Certification, Waiver, and Release by Single Parent/Guardian Regarding Independent Caregiver's Prior Criminal History (filed 6/2017)

Certification, Waiver, and Release by Parents/Guardians Regarding Independent Caregiver's Prior Criminal History (filed 6/2017)

Monthly Care Summary (filed 6/2017)

Sample Van Agreement (filed 6/2017)

Sample Award Disbursement Agreement (Housing Modifications Allowance) (filed 6/2017)

Claim Reimbursement Form (filed 6/2017)

Medical Appointment Verification Forms (rev. 12/2008)

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