TITLE 12. HEALTH

DEPARTMENT OF MEDICAL ASSISTANCE SERVICES

Fast-Track Regulation

Title of Regulation: 12VAC30-20. Administration of Medical Assistance Services (amending 12VAC30-20-520).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 17, 2024.

Effective Date: August 1, 2024.

Agency Contact: Meredith Lee, Policy, Regulations, and Manuals Supervisor, Department of Medical Assistance Services, 600 East Broad Street, Richmond, VA 23219, telephone (804) 371-0552, FAX (804) 786-1680, TDD (800) 343-0634, or email meredith.lee@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the Plan for Medical Assistance and to promulgate regulations, and § 32.1-324 of the Code of Virginia grants the Director of the Department of Medical Assistance Services (DMAS) the authority of the board when it is not in session.

Purpose: These changes are essential to protect the health, safety, and welfare of citizens because they clarify when documents are considered filed during the provider appeals process, including when documents are filed via the Appeals Information Management System (AIMS) Portal. This makes it easier for providers to understand the appeals process, which in turn may increase the likelihood that they continue to serve Medicaid members.

Rationale for Using Fast-Track Rulemaking Process: The changes in this regulatory action are expected to be noncontroversial because they do not represent changes in practice and do not involve any costs to Medicaid providers or to the Commonwealth. Instead, the changes clarify when documents are considered filed and add the AIMS portal to regulation. The AIMS portal neither restricts access to provider appeals nor negatively impacts providers. Providers without easy access to the AIMS portal can continue to use other methods to submit appeals and associated documents.

Substance: A provider appeal is a request for a neutral party to review the action taken by DMAS or one of its contractors that impacts either a provider's reimbursement for services rendered to a Medicaid recipient or a provider's enrollment as a Medicaid participating provider. It is a two-step process that begins with an informal appeal. If the provider disagrees with the decision issued, the second step is to file a formal appeal. Documents submitted during the provider appeals process are considered filed when they are either physically date-stamped by the DMAS Appeals Division or date-stamped through electronic means when the item completes transmission to the Appeals Division, including via the AIMS portal. In 2021, DMAS launched the AIMS portal as a way for providers and their authorized representatives to submit informal and formal provider appeals, track the status of appeals, upload documents, review appeal documents, and withdraw appeals. AIMS helps ensure that provider appeals are processed pursuant to regulations governing Medicaid appeals, particularly the application of dismissal penalties for DMAS and providers if certain steps are not completed within specified timeframes. Providers without easy access to the AIMS portal can continue to use email and facsimile to electronically submit documents. They can also use regular United States mail or a delivery service.

Issues: The primary advantage is that the amendments clarify that documents submitted during the provider appeals process are considered filed when they are either physically date-stamped by the Appeals Division or date-stamped through electronic means when the item completes transmission to the Appeals Division, including via the AIMS portal. AIMS provides a convenient way for providers to file an appeal, submit documents that can be electronically time-stamped, and monitor the status of appeals online throughout the process. AIMS also helps ensure that provider appeals are processed pursuant to regulations governing Medicaid appeals. There are no disadvantages to the public, the agency, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Director of the Department of Medical Assistance Services, on behalf of the Board of Medical Assistance Services, proposes to update the regulation to reflect that with the implementation in 2021 of the new online portal for provider appeals, date stamps can be applied to documents electronically.

Background. A provider appeal is a request for a neutral party to review the action taken by the Department of Medical Assistance Services (DMAS) or one of its contractors that impacts either a provider's reimbursement for services rendered to a Medicaid recipient or a provider's enrollment as a Medicaid participating provider. It is a two-step process that begins with an informal appeal. If the provider disagrees with the decision issued, the second step is to file a formal appeal. When a document is required to be filed in a provider appeal, the current regulatory language states that the document is considered filed when it is date-stamped by DMAS. In 2021, however, DMAS launched the Appeals Information Management System (AIMS) portal² as a way for providers and their authorized representatives to submit informal and formal provider appeals, track the status of appeals, upload documents, review appeal documents, and withdraw appeals, free of charge. AIMS helps ensure provider appeals are processed pursuant to regulations governing Medicaid appeals, particularly the dismissals for DMAS and providers if certain steps are not completed within specified timeframes. The use of AIMS is optional as such providers without easy access to the portal can continue to use regular U.S. mail, a delivery service, or submit documents via electronic mail or facsimile. This action would add to the regulation that when DMAS or a provider uses the appeals portal, the date stamp will be automatically applied electronically to any submitted document, and this date stamp will be considered the date of the filing.

Estimated Benefits and Costs. Since the appeals portal was made available in 2021, a date stamp has been automatically applied to any documents filed via the portal, which has been considered as the date when the document is filed. The proposed amendments to the regulation would incorporate this practice into the regulatory text. Because the proposed changes update the regulatory text to incorporate a current practice, the main benefit of this change is to clarify that documents submitted during a provider appeal via the portal will be electronically date-stamped and considered filed on that date.

Businesses and Other Entities Affected. All Medicaid enrolled providers have the right to appeal adverse actions. DMAS currently has approximately 80,000 unique enrolled providers. The proposed amendments primarily affect providers that file an informal or a formal appeal. In 2022 and 2021, there were 7,199 and 6,102 total appeals (both informal and formal) filed respectively.³ No providers appear to be disproportionately affected.

The Code of Virginia requires the DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the proposed changes would update the regulatory text to reflect the current practice of electronically applying a date stamp to documents filed through the portal the use of which is optional and free of charge. Thus, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ Although most of the 80,000 unique enrolled providers in Medicaid are small businesses, the proposed amendments do not appear to adversely affect them.

Localities⁷ Affected.⁸ The proposed amendments do not disproportionally affect any particular localities, nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed changes do not appear to affect the use and value of private property nor real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://appeals-registration.dmas.virginia.gov/provider.

³ Data source: DMAS.

⁴ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁶ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department of Medical Assistance Services has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Background: The Appeals Information Management System (AIMS) is a secure web-based portal that provides a convenient way for providers and their authorized representatives to submit provider appeals, track the status of appeals, upload documents, review appeal documents, and withdraw appeals. AIMS helps ensure provider appeals are processed pursuant to regulations governing Medicaid appeals, particularly the application of dismissal penalties if certain steps are not completed within specified timeframes. Providers without easy access to the AIMS portal can continue to use email and facsimile to electronically submit documents or regular United States mail or a delivery service.

Summary:

The amendments clarify when documents are considered filed and adds AIMS to the regulation in accordance with current Department of Medical Assistance Services provider appeals practices.

12VAC30-20-520. Provider appeals: general provisions.

A. This part governs all DMAS informal and formal provider appeals and supersedes any other provider appeals regulations.

B. A provider may appeal any DMAS action that is subject to appeal under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), including DMAS' the DMAS interpretation and application of payment methodologies. A provider may not appeal the actual payment methodologies.

C. DMAS shall transmit all items to the last known address of the provider. It is presumed that DMAS transmits items on the date noted on the item. It is presumed that providers receive items transmitted by United States mail to their last known address within three days after DMAS transmits the item by United States mail. It is presumed that providers receive items transmitted by facsimile, electronic mail email, or other electronic submission on the date transmitted. It is presumed that providers receive items transmitted by courier or other hand delivery on the date of delivery to the provider's last known address. These presumptions in this section shall apply unless the provider, through evidence beyond a mere denial of receipt, introduces evidence sufficient to rebut the presumption. If a provider requests a copy of an item, the transmittal date for the item remains the date originally noted on the item, and not the date that the copy of the requested item is transmitted. A provider's failure to accept delivery of an item transmitted by DMAS, or a provider's failure to open an item upon receipt, shall not result in an extension of any of the timelines established by this part.

D. Whenever DMAS or a provider is required to file a document, the document shall be considered filed when it is date stamped date-stamped by the DMAS Appeals Division in Richmond, Virginia. When DMAS or a provider is using the online appeals portal administered by the DMAS Appeals Division, the date stamp will be automatically applied when the item completes transmission to the Appeals Division. When email or facsimile is used, the date stamp will be reflected on the date and time of the transmission. If other means are used, such as postal mail or hand delivery, the date stamp will be applied physically by the DMAS Appeals Division upon receipt.

E. Whenever the last day specified for the filing of any document or the performance of any other act falls on a day on which DMAS is officially closed for the full or partial day, the time period shall be extended to the next day on which DMAS is officially open.

F. Conferences and hearings shall be conducted at DMAS' the DMAS main office in Richmond, Virginia, or at such other place as agreed upon in writing by DMAS, the provider, and the informal appeals agent for informal appeals. For formal appeals, this agreement shall be between DMAS, the provider, and the hearing officer.

G. Whenever DMAS or a provider is required to attend a conference or hearing, failure by one of the parties to attend the conference or hearing shall result in dismissal of the appeal in favor of the other party.

H. DMAS shall reimburse a provider for reasonable and necessary attorneys' attorney fees and costs associated with an informal or formal appeal if the provider substantially prevails on the merits of the appeal and DMAS' the DMAS position is not substantially justified, unless special circumstances would make an award unjust. In order to substantially prevail on the merits of the appeal, the provider must be successful on more than 50% of the dollar amount involved in the issues identified in the provider's notice of appeal.

I. Any document that is filed with the DMAS Appeals Division after 5 p.m. Eastern Time shall be date stamped date-stamped on the next day DMAS is officially open. Any document that is filed with the DMAS Appeals Division after 5 p.m. Eastern Time on the due date shall be untimely.