Emily McClellan, Regulatory Supervisor

Policy Division, DMAS

600 E. Broad Street, Suite 1300

Richmond, VA 23219

Dear Ms. McClellan

The disAbility Law Center of Virginia (dLCV), Virginia’s designated protection and advocacy system for individuals with disabilities, appreciates the opportunity to comment on the action to define the parameters of Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) Behavioral Therapy Services.  We have a few concerns we hope that you can address.

Our first concern relates to Intensive in-home services (IIH).  We believe that the language gives the impression that the service is limited in ways that you do not intend.   In 12VAC30-50-130 (B)(b) you state that ‘(1) These services shall be limited annually to 26 weeks.’ As you are aware, while federal law allows states to limit services under EPSDT, medical necessity must be individualized and services must still be provided if determined to be medically necessary for an individual child.

The regulations acknowledge this in 12VAC30-50-130 (B)(6)(3) where you state:  ‘d. Service limits may be exceeded based on medical necessity for individuals eligible for EPSDT.’

The same issue arises in In 12VAC30-50-130 (B)(c) where you state: ‘c. Therapeutic day treatment (TDT) shall be provided two or more hours per day in order to provide therapeutic interventions. Day treatment programs, limited annually to 780 units.’

dLCV recommends adding ‘Service limits may be exceeded based on medical necessity for individuals eligible for EPSDT’ directly to the language of both the IIH and TDT sections, to minimize confusion

Our final concern relates to the new section 12VAC30-50-130 (B)(8) which defines behavioral therapy services. The section states: ‘c. These services shall be provided in settings that are natural or normal for a child or adolescent without a disability, such as his home, unless there is justification in the ISP, which has been authorized for reimbursement, to include service settings that promote a generalization of behaviors across different settings to maintain the targeted functioning outside of the treatment setting in the patient's residence and the larger community within which the individual resides.’

dLCV worked with children need behavioral therapy to return to a home or community setting. We have learned that children can’t get funding for the full amount recommended and are unable to request the additional amount through EPSDT because a child is in a residential placement.

The new language in 12VAC30-50-130 (B)(8) seems to suggest that behavioral therapy coverage outside of the home is possible, but our recent experience seems to indicate that is not always the case. dLCV requests clarification on this important issue.

dLCV appreciates the opportunity to comment on this important action and we look forward to your response on this matter. 

Sincerely,

Colleen Miller

Executive Director