Administrative Code

Virginia Administrative Code
11/28/2021

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.

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