CHAPTER 67:16:41

MENTAL HEALTH SERVICES BY INDEPENDENT PRACTITIONERS

Section

67:16:41:01        Definitions.

67:16:41:02        Mental health service requirements.

67:16:41:03        Mental health provider.

67:16:41:04        Diagnostic assessment requirements.

67:16:41:04.01    Diagnostic assessment components.

67:16:41:05        Mental disorder diagnosis codes -- Limits.

67:16:41:06        Treatment plan requirements.

67:16:41:07        Treatment plan reviews.

67:16:41:08        Clinical record requirements.

67:16:41:09        Covered mental health services -- Limits -- Payments.

67:16:41:10        Noncovered services.

67:16:41:11        Prior authorization.

67:16:41:12        Repealed.

67:16:41:13        Claim requirements.

67:16:41:14        Billing requirements.

67:16:41:15        Utilization review.

67:16:41:16        Repealed.

67:16:41:17        Application of other chapters.

    67:16:41:01.  Definitions. As used in this chapter:

    (1)  "Certified social worker - private, independent practice" means an individual certified under SDCL 36-26-17;

    (2)  "Certified social worker - private, independent practice candidate" means an individual who is licensed as a certified social worker under SDCL 36-26-14 and is working toward becoming a certified social worker - private, independent practice under an approved supervision agreement, as required by § 20:59:05:05;

    (3)  "Clinical nurse specialist" means an individual who is licensed under SDCL 36-9-85 to perform the functions contained in SDCL 36-9-87;

    (4)  "Collateral contact" means telephone or face-to-face contact with an individual, other than the recipient receiving treatment, to plan appropriate treatment, to assist others in responding therapeutically regarding the recipient's difficulty or illness, or to link the recipient, family, or both, to other necessary and therapeutic community support;

    (5)  "Diagnostic assessment" means a written comprehensive evaluation of symptoms that indicate a diagnosis of a mental disorder and which meet the requirements of § 67:16:41:04;

    (6)  "Family" means a unit of two or more persons, related by blood or by past or present marriage. A family may also include other individuals living in the same household with the recipient, individuals who will reside in the home in the future, or individuals who reside elsewhere, if the individual's participation is necessary to accomplish treatment plan goals, and the individual is considered an essential and integral part of the family unit identified in the treatment plan;

    (7)  "Group" means a unit of at least two, but no more than ten, individuals who, because of the commonality and the nature of their diagnoses, can derive mutual benefit from psychotherapy and the therapy can be demonstrated to be medically necessary for the individuals to jointly participate, in order to accomplish treatment plan goals through a group psychotherapy session;

    (8)  "Licensed professional counselor - mental health" means an individual certified under SDCL 36-32-65 to 36-32-67, inclusive;

    (9)  "Licensed professional counselor working toward a mental health designation" means an individual who is licensed as a licensed professional counselor under SDCL 36-32-64 and is working toward a mental health designation under the supervision required by SDCL subdivision 36-32-65(4);

    (10)  "Licensed marriage and family therapist" means an individual licensed under SDCL 36-33-43 to 36-33-45, inclusive;

    (11)  "Mental disorder" means an organic disorder of the brain or a clinically significant disorder of thought, mood, perception, orientation, or behavior;

    (12)  "Mental health services" means nonresidential psychiatric or psychological diagnostic and treatment that is goal-oriented and designed for the care and treatment of an individual having a primary diagnosis of a mental disorder;

    (13)  "Mental health treatment" means goal-oriented therapy designed for the care and treatment of an individual having a primary diagnosis of a mental disorder;

    (14)  "Psychologist" means, for services provided in South Dakota, a person licensed under SDCL 36-27A-12 or 36-27A-13; for services provided in another state, a person licensed as a psychologist in the state where the services are provided. For purposes of the medical assistance program, a person practicing under SDCL 36-27A-11 is specifically excluded from this definition;

    (15)  "Psychotherapy" means the face-to-face or telehealth treatment of a recipient, through a psychological or psychiatric method. The treatment is a planned, structured program based on a primary diagnosis of mental disorder and is directed to influence and produce a response for a mental disorder and to accomplish measurable goals and objectives specified in the recipient's individual treatment plan;

    (16)  "Psychotherapy session" means a planned and structured face-to-face or telehealth treatment episode between a mental health provider and one or more recipients;

    (17)  "Telehealth" means a method of delivering services, including interactive audio-visual or audio-only technology, in accordance with SDCL chapter 34-52; and

    (18)  "Treatment plan" means a written, individual, and comprehensive plan that is based on the information and outcome of the recipient's diagnostic assessment and which is designed to improve the recipient's mental disorder.

    Source: 22 SDR 6, effective July 26, 1995; 26 SDR 168, effective July 1, 2000; 37 SDR 53, effective September 23, 2010; 45 SDR 82, effective December 10, 2018; 48 SDR 39, effective October 3, 2021.

    General Authority: SDCL 28-6-1(1)(2)(4).

    Law Implemented: SDCL 28-6-1.

    67:16:41:02.  Mental health service requirements. To be covered under this chapter, mental health services are limited to services that are established in this chapter and meet the following requirements:

    (1)  There must be a diagnostic assessment prepared by a mental health provider in accordance with § 67:16:41:04;

    (2)  The diagnostic assessment must contain a primary mental health disorder diagnosis code set forth in § 67:16:41:05;

    (3)  There must be an individual trreatment plan that is prepared by a mental health provider and meets the requirements of §§ 67:16:41:06 and 67:16:41:07;

    (4)  The treatment must be provided directly to the recipient or via collateral contact;

    (5)  The treatment must be documented in the recipient's clinical record in accordance with § 67:16:41:08; and

    (6)  The treatment must be medically necessary in accordance with § 67:16:01:06.02.

    If the requirements set forth in this section are not met, the department may determine that the mental health services are noncovered.

    Mental health services may be provided to a recipient during the 30-day time period the mental health provider has to complete the diagnostic assessment, if the requirements set forth in this section are met and the mental health provider has made a provisional diagnosis of a mental health disorder.

    Source: 22 SDR 6, effective July 26, 1995; 45 SDR 82, effective December 10, 2018; 49 SDR 21, effective September 12, 2022.

    General Authority: SDCL 28-6-1.

    Law Implemented: SDCL 28-6-1(1)(2).

    67:16:41:04.  Diagnostic assessment requirements.

    A diagnostic assessment must be completed within 30 days of the recipient's first face-to-face or telehealth visit with a mental health provider. On-going assessment and identification of changes in the recipient's needs and strengths must occur throughout treatment and must be documented in progress notes or other clinical documentation. Three face-to-face or telehealth interviews designed to assist in the formulation of a diagnostic assessment are covered. For children under 18 years of age, the mental health staff shall obtain permission from the parent or legal guardian to meet with the child, and at least one parent or legal guardian shall participate in the assessment. Psychiatric therapeutic procedures or psychiatric somatotherapy, provided before the diagnostic assessment is completed, are considered noncovered services.

    The mental health provider must complete, sign, and date the diagnostic assessment before providing mental health treatment. The signature is a certification by the mental health provider that the findings of the diagnostic assessment are accurate. The certification date is the effective date of the diagnostic assessment.

    Source: 22 SDR 6, effective July 26, 1995; 37 SDR 53, effective September 23, 2010; 46 SDR 50, effective October 10, 2019; 48 SDR 39, effective October 3, 2021.

    General Authority: SDCL 28-6-1(1)(2).

    Law Implemented: SDCL 28-6-1.

    Cross-Reference: Clinical record requirements, § 67:16:41:08.

    67:16:41:04.01.  Diagnostic assessment components. A diagnostic assessment must include:

    (1)  A face-to-face or telehealth interview with the recipient;

    (2)  Identification of the strengths of the recipient and the recipient's family, if appropriate; previous periods of success and the strengths that contributed to that success; and potential resources within the family, if applicable;

    (3)  Presenting problems or issues that indicate a need for mental health services;

    (4)  Identification of readiness for change for problem areas, including motivation and supports for making such changes;

    (5)  Relevant family history, including family relationship dynamics and family psychiatric and substance abuse history;

    (6)  Behavioral observations and an examination of the recipient's mental status, including a description of anomalies in the recipient's appearance, general behavior, motor activity, speech, alertness, mood, cognitive functioning, and attitude toward the symptoms;

    (7)  Current substance use and relevant treatment history, including previous mental health and substance use disorder or gambling treatment and periods of success, psychiatric hospital admissions, psychotropic and other medications, relapse history or potential for relapse, physical illness, and hospitalization;

    (8)  A review of the records that pertain to the recipient's medical and social background and history, if available;

    (9)  Contact with the recipient's relatives and significant others to the extent necessary to complete an accurate psychological evaluation for the purpose of writing the assessment report and developing the treatment plan;

    (10)  Formulation of a diagnosis that is consistent with the findings of the evaluation of the recipient's condition, including documentation of co-occurring medical, developmental disability, mental health, substance use disorder or gambling issues, or a combination of these based on the diagnostic evaluation;

    (11)  Educational history and needs, if applicable;

    (12)  Legal issues, if applicable;

    (13)  Living environment or housing, if applicable;

    (14)  Safety needs and risks with regard to physical acting-out, health conditions, acute intoxication, or risk of withdrawal, if applicable;

    (15)  Past or current indications of trauma, domestic violence, or both, if applicable; and

    (16) Vocational and financial history and needs, if applicable.

    Source: 48 SDR 39, effective October 3, 2021.

    General Authority: SDCL 28-6-1(1)(2).

    Law Implemented: SDCL 28-6-1.

    Cross-Reference: Clinic record requirements, § 67:16:41:08.

    67:16:41:06.  Treatment plan requirements. A mental health provider shall develop a treatment plan for each recipient who is receiving medically necessary, covered mental health treatment based on a primary diagnosis of a mental disorder. The plan must be relevant to the diagnosis, be developmentally appropriate, and relate to each covered mental health treatment to be delivered. The mental health provider shall document in the recipient's clinical file evidence of participation by the recipient or the recipient's legal guardian and evidence of the recipient's meaningful involvement in formulating the plan.

    The treatment plan must:

        (1)  Be developed jointly by the recipient, or the recipient's legal guardian, and the mental health provider who will be providing the covered mental health treatment;

        (2)  Be understandable by the recipient and the recipient's legal guardian, if applicable;

        (3)  Include a list of other professionals known to be involved in the case;

        (4)  Contain written goals, objectives, or both, which are individualized, clear, specific, and measurable so that the recipient and the mental health provider can determine if progress has been made towards the recipient's treatment goals;

        (5)  Be based on the findings of the diagnostic assessment and contain the recipient's mental disorder diagnosis code;

        (6)  List the specific therapies, interventions, and activities that match the recipient's readiness for change for identified issues, and which are prescribed for meeting the treatment goals;

        (7)  Include the specific treatment goals for improving the recipient's condition to a point of no longer needing mental health treatment; and

        (8)  Include a specific schedule of treatment services including the prescribed frequency and duration of each mental health service to be provided to meet the treatment plan goals.

    The mental health provider must complete, sign, and date the treatment plan within thirty days of intake. The signature is a certification by the mental health provider that the treatment plan is accurate. The certification date is the effective date of the treatment plan. The provider shall give a copy of the treatment plan to the recipient and to the recipient's parent or guardian, if applicable.

    Mental health treatment provided after thirty days of intake if a treatment plan has not been completed, is not covered.

    Source: 22 SDR 6, effective July 26, 1995; 37 SDR 53, effective September 23, 2010; 46 SDR 50, effective October 10, 2019; 48 SDR 39, effective October 3, 2021; 50 SDR 63, effective November 27, 2023.

    General Authority: SDCL 28-6-1.

    Law Implemented: SDCL 28-6-1.

    Cross-Reference: Clinical record requirements, § 67:16:41:08.

          67:16:41:07.  Treatment plan reviews. As long as mental health services continue, the mental health provider must review the recipient's treatment plan at least semiannually with the first review completed no later than six months from the effective date of the initial treatment plan. Each semiannual review must contain a written review of the progress made toward the established treatment goals, significant changes to the treatment goals, and a justification for continued mental health services. When there is a significant change in the recipient's treatment goals, the mental health provider must review the treatment plan and record the changes in the treatment plan.

          The mental health provider who conducted the review and prepared the written documentation must sign and date the documentation.

          Covered mental health services provided without the required semiannual treatment plan review or without significant changes added into the treatment plan, as required in this section, are considered noncovered services.

          Source: 22 SDR 6, effective July 26, 1995.

          General Authority: SDCL 28-6-1.

          Law Implemented: SDCL 28-6-1.

          Cross-Reference: Clinical record requirements, § 67:16:41:08.

    67:16:41:09.  Covered mental health services -- Limits -- Payments. Payment for mental health services is the lesser of the provider's usual and customary charge or the fee listed on the department's fee schedule website. If no fee is listed, payment is 40 percent of the provider's usual and customary charge.

    Mental health services and associated rates of payment are subject to review and amendment under § 67:16:01:28.

    Payment for psychiatric therapeutic procedures is limited to those recipients who have received a primary diagnosis of a mental health disorder or a provisional diagnosis of a mental health disorder during the 30-day time period that the mental health provider has to complete the diagnostic assessment.

    Time units are for face-to-face or telehealth session times with the recipient or a collateral contact and do not include time used for traveling, reporting, charting, or other administrative functions outside the scope of the covered procedure codes.

    The maximum allowable coverage for psychotherapy services may not exceed 40 hours of therapy in a 12-month period, unless prior authorization has been received from the department. For purposes of this limit, procedure codes without an associated time are considered to be one hour.

    Source: 22 SDR 6, effective July 26, 1995; 25 SDR 104, effective February 17, 1999; 35 SDR 49, effective September 10, 2008; 37 SDR 53, effective September 23, 2010; 42 SDR 51, effective October 13, 2015; 45 SDR 82, effective December 10, 2018; 48 SDR 39, effective October 3, 2021; 49 SDR 21, effective September 12, 2022.

    General Authority: SDCL 28-6-1.

    Law Implemented: SDCL 28-6-1(1)(2)(4), 28-6-1.1.

    67:16:41:10.  Noncovered services. The department does not cover and the provider may not submit a claim for:

    (1)  Mental health services not defined in § 67:16:41:01;

    (2)  Mental health treatment provided without the recipient physically present in a face-to-face session with the mental health provider, except for telehealth treatment and collateral contact;

    (3)  Treatment for a mental health disorder not included in the diagnosis codes set forth in § 67:16:41:05;

    (4)  Mental health treatment provided before a diagnostic assessment is completed, except treatment provided with a provisional diagnosis of a mental health disorder during the thirty-day time period the mental health provider has to complete the diagnostic assessment;

    (5)  Mental health treatment provided after thirty days from the date of intake, if a treatment plan has not been completed;

    (6)  Mental health treatment provided if a required treatment plan review has not been completed;

    (7)  Court appearance, staffing sessions, or treatment team appearances;

    (8)  Mental health services provided to a recipient incarcerated in a correctional facility;

    (9)  Mental health services provided to a recipient in an institution for mental diseases or an intermediate care facility for individuals with intellectual disabilities;

    (10)  Mental health treatment that does not demonstrate a reasonably timed continuum of progress toward the specific goals stated in the treatment plan, as determined by the peer review entity;

    (11)  Mental health treatment that is not listed in the treatment plan or documented in the recipient's clinical record, even though the service is allowable under this chapter;

    (12)  Mental health treatment provided to a recipient who is:

        (a)  Incapable of cognitive functioning due to age or mental incapacity; or

        (b)  Unable to receive any benefit from the service;

    (13)  Mental health services performed without relationship to evaluations or psychotherapy for a specific condition, symptom, or complaint;

    (14)  Time spent preparing reports, treatment plans, or clinical records outside the scope of covered procedure codes;

    (15)  A service designed to assist a recipient regulate a bodily function controlled by the autonomic nervous system, by using an instrument to monitor the function and signal the changes in the function;

    (16)  Alcohol or drug rehabilitation therapy;

    (17)  Missed or canceled appointments;

    (18)  Interpretation or explanation of results of psychiatric, other medical examinations and procedures, or other accumulated data to family members or another responsible person;

    (19)  Medical hypnotherapy;

    (20)   Field trips and other off-site activities;

    (21)  Consultations or meetings between an employer and employee;

    (22)  Review of work product by the treating mental health provider;

    (23)  Telephone consultations with or on behalf of the recipient, except for collateral contact;

    (24)  Educational, vocational, socialization, or recreational services, or components of services, including:

        (a)  Activity group therapy;

        (b)  Assertiveness training;

        (c)  Bioenergetics therapy;

        (d)  Consciousness training;

        (e)  Dance therapy;

        (f)  Day care;

        (g)  Educational activities;

        (h)  Family counseling;

        (i)  Growth groups or psychotherapy for nonspecific conditions of distress;

        (j)  Guided imagery;

        (k)  Marital counseling;

        (l)  Marriage enrichment;

        (m)  Milieu therapy;

        (n)  Music therapy;

        (o)  Obesity control therapy;

        (p)  Occupational therapy;

        (q)  Parental counseling or bonding;

        (r)  Peer relations therapy;

        (s)  Play observation;

        (t)  Primal scream therapy;

        (u)  Recorded psychotherapy;

        (v)  Recreational therapy;

        (w)  Religious counseling;

        (x)  Rolfing or structural integration;

        (y)  Sensitivity training;

        (z)  Sex therapy;

        (aa)  Sleep observation;

        (bb)  Tape therapy;

        (cc)  Training disability service;

        (dd)  Vocational counseling; and

        (ee)  Z-therapy; and

    (25)  Mental health treatment delivered in excess of the frequency prescribed in the treatment plan.

    Source: 22 SDR 6, effective July 26, 1995; 26 SDR 168, effective July 1, 2000; 37 SDR 53, effective September 23, 2010; 40 SDR 122, effective January 8, 2014; 45 SDR 82, effective December 10, 2018; 46 SDR 50, effective October 10, 2019; 48 SDR 39, effective October 3, 2021; 49 SDR 21, effective September 12, 2022; 50 SDR 63, effective November 27, 2023.

    General Authority: SDCL 28-6-1.

    Law Implemented: SDCL 28-6-1.

    Cross-References:

    Treatment plan, § 67:61:07:06.

    Treatment plan, § 67:62:08:07.

    Treatment plan review -- Six month review, § 67:62:08:08.

    67:16:41:14.  Billing requirements. The following requirements apply to services billed under this chapter:

    (1)  Each claim must contain the medical assistance provider identification number of the individual delivering the service;

    (2)  A claim may not be submitted for a diagnostic assessment that exceeds four hours, unless there has been a break of at least 12 months in the delivery of mental health treatment to the recipient;

    (3)  A claim may not be submitted for a diagnostic assessment until the assessment is completed and recorded in the recipient's clinical record;

    (4)  A claim may not be submitted for mental health treatment provided before the diagnostic assessment is completed, except for treatment provided with a provisional diagnosis of a mental health disorder during the 30-day time period the mental health provider has to complete the diagnostic assessment;

    (5)  A claim may not be submitted for mental health services provided after the fourth face-to-face or telehealth session with the recipient and before the effective date of the treatment plan;

    (6)  If a psychotherapy session is provided to more than one individual, the service must be billed as family or group psychotherapy, whichever is appropriate, even if the individual is the only one eligible for the medical assistance program;

    (7)  If a recipient is involved in a psychotherapy session only as part of a family or group session for the treatment of another family member who is a mental health client, a claim for the session may not be submitted for that recipient;

    (8)  Except for a psychiatric diagnostic interview examination and a diagnostic assessment, a claim may not be submitted for mental health treatment, unless the recipient has a primary diagnosis of a mental health disorder; and

    (9)  A claim may be submitted for each eligible recipient who is in a family or group psychotherapy session and is actively receiving psychotherapy, if each family or group member for whom services are billed to the medical assistance program has a complete clinical record that meets the requirements of § 67:16:41:08.

    A provider shall submit claims at the provider's usual and customary charge. A claim may contain only those procedure codes listed on the department's fee schedule website.

    Source: 22 SDR 6, effective July 26, 1995; 26 SDR 168, effective July 1, 2000; 37 SDR 53, effective September 23, 2010; 46 SDR 50, effective October 10, 2019; 48 SDR 39, effective October 3, 2021; 49 SDR 21, effective September 12, 2022.

    General Authority: SDCL 28-6-1.

    Law Implemented: SDCL 28-6-1(1)(2).

          67:16:41:15.  Utilization review. Utilization review may be conducted on the following levels:

          (1)  Computerized claim processing;

          (2)  Postpayment review; and

          (3)  Peer review.

          A peer review entity appointed by the department shall review claims to determine and ensure the appropriate quality, quantity, and medical necessity of mental health services provided.

          Source: 22 SDR 6, effective July 26, 1995.

          General Authority: SDCL 28-6-1.

          Law Implemented: SDCL 28-6-1.

          67:16:41:17.  Application of other chapters. In addition to the rules contained in this chapter, providers and recipients must meet the requirements of chapters 67:16:01, 67:16:26, 67:16:33, 67:16:34, 67:16:35, and if applicable, 67:16:39.

          Source: 22 SDR 6, effective July 26, 1995.

          General Authority: SDCL 28-6-1.

          Law Implemented: SDCL 28-6-1.