As a professional in the human services field for over 25 years, I have observed many community services that offer “quick-fixes” and do not result in sustained change. Yet, MHSS is in a unique position to be able to work with seriously mentally ill individuals in their homes and community to truly “build skills” to promote lasting independence and autonomy.

These regulation changes will remove least-restrictive community-based service options for the most vulnerable of the mentally ill population—those who have not had previous access to treatment or cannot report treatment history. Their access to treatment may have been limited by the very illness that led to their need for services. For an individual experiencing the onset of mental illness, they will not have a "treatment history," yet could be in serious need of skills training and services in order to remain independent in the community. If an individual does have a treatment history, the very nature of serious mental illness often means difficulty in accurately recalling details of treatment, or in some cases even acknowledgement by the individual that they have a treatment history. Some individuals have not been prescribed medications because they have had no access to medical care. As numerous studies support, a large percentage of those incarcerated, and an even larger percentage of the chronically homeless suffer from serious mental illness, but do not necessarily have a history of "treatment" as defined in these regulations.

Changes to regulations in 2010 required intensive involvement and oversight in treatment planning by Licensed Mental Health Professionals. LMHP’s complete assessments for admission to services and are licensed by the State of Virginia. These professionals are highly trained specifically in regard to mental health and are more than qualified to make the determinations outlined in these regulations. How can a physician accurately and fully determine a patient’s “functional limitations” when there is no access to the patient’s home and they are completely dependent on patient report, or the report of others?

The emphasis of these emergency regulations on documentation both for psychiatric treatment and prescription of psychotropic medications creates bureaucracy with the sole purpose to stop access to services. The lack of documentation of treatment or medication as a reason to deny someone who is seriously mentally ill the services they are assessed as needing raises not only serious ethical questions, but human rights questions as well. Virginia DBHDS Human Rights Rules and Regulations state that “Providers shall ensure that all services…are at all times delivered in accordance with sound therapeutic practice.” If an individual meets the clinical standard established for a service and other criteria, such as a history of treatment, HOW can services be denied simply because there is not supporting documentation (that may not be available)? If providers are held to a standard to ensure clinically indicated services are not denied to qualifying individuals, it seems only fitting that the agencies overseeing those providers be held to the same standards. Accessing treatment records presents other challenges. There are state facilities that closed and records are not available. There are also clients who have received treatment, but because of their mental illness, cannot or will not provide information that allows records to be obtained. New regulations require that at a minimum, a phone call be made to verify services—yet this action is a violation of HIPAA.

If regulators are concerned that providers are misrepresenting the services they are providing, or are misrepresenting the seriousness of a person’s illness, there are already regulations in place to deal with those individuals/providers. Providers are licensed by the State of Virginia, and are subject to auditing by DMAS, yet there are providers out there who have NEVER been audited, and who have never received more than a cursory licensing review. There are well established agencies that have been repeatedly audited with limited corrective actions and few sanctions because they DO operate ethically and honestly. New regulations will not control unethical or dishonest providers—they will serve only to prevent services from being provided to people who need these services. It is shameful that the state’s failure to adequately oversee services and regulate growth will result in a denial of services to the seriously mentally ill who have no voice.

DMAS’ Agency Statement in the regulatory documents states “MHSS is being inappropriately utilized as evidenced by reports from DBHDS' licensing specialists and DMAS' auditors. Individuals who have been receiving the services are not measurably improving and this service is costing the Commonwealth millions of dollars.” This begs the question, WHY was this not dealt with on an individual basis with those providers?? The report also states “Imprecise Medicaid eligibility criteria and service definitions have allowed individuals who do not have a serious mental illness or a serious emotional disturbance to access Medicaid's MHSS.” Yet current regulations DO state that MHSS is to provide training to individuals with “significant psychiatric functional limitations” and additionally outlines very specific criteria that an individual must demonstrate to be eligible. Existing regulations ALSO require that measurable improvement be documented on a quarterly basis and that changes be made to service plans to reflect the progress of the individual.

DMAS and DBHDS have the ability to fine, demand corrective action, or close programs under current regulations. Yet, even while costs were increasing, new programs have continued to be licensed by the State of Virginia, and credentialed by Department of Medical Assistance Services. A failure to regulate this growth, using tools already available to those agencies, should not result in the loss of services for seriously mentally ill individuals who demonstrate a sound clinical need for services.