Title of Regulation: 12VAC30-110. Eligibility and Appeals (amending 12VAC30-110-10, 12VAC30-110-20, 12VAC30-110-70, 12VAC30-110-80, 12VAC30-110-100, 12VAC30-110-110, 12VAC30-110-140, 12VAC30-110-160, 12VAC30-110-350; adding 12VAC30-110-285).

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

Effective Date: May 6, 2015.

Agency Contact: Emily McClellan, Regulatory Supervisor, Department of Medical Assistance Services, Policy Division, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Summary:

The amendments incorporate federally mandated changes derived from the Affordable Care Act and implemented in federal regulations (i) providing individuals with a choice to receive notices and information in electronic format or by regular mail and permitting changes in that choice; (ii) increasing the amount of time from three days to five days in which individuals will be considered to have received notices; (iii) mandating that the Department of Medical Assistance Services (DMAS) hearing officers have access to agency records required to formulate appeal decisions, and (iv) implementing other technical changes such as changing the name of the DMAS Division of Client Appeals to Appeals Division.

12VAC30-110-10. Definitions.

The following words and terms, when used in these regulations, shall have the following meanings unless the context clearly indicates otherwise:

"Action" means a termination, suspension, or reduction of Medicaid eligibility or covered services. It also means (i) determinations by skilled nursing facilities and nursing facilities to transfer or discharge residents and (ii) adverse determinations made by a state with regard to the preadmission screening and annual resident review requirements of § 1919(e)(7) of the Social Security Act.

"Adverse determination" means a determination made in accordance with § 1919(b)(3)(F) or 1919(e)(7)(B) of the Social Security Act that the individual does not require the level of services provided by a nursing facility or that the individual does or does not require specialized services.

"Agency" means:

1. An agency which that, on the department's behalf, makes determinations regarding applications for benefits provided by the department; and

2. The department itself.

"Appellant" means (i) an applicant for or recipient of medical assistance benefits from the department who seeks to challenge an adverse action regarding his benefits or his eligibility for benefits and (ii) a nursing facility resident who seeks to challenge a transfer or discharge. Appellant also means an individual who seeks to challenge an adverse determination regarding services provided by a nursing facility.

"Date of action" means the intended date on which a termination, suspension, reduction, transfer, or discharge becomes effective. It also means the date of the determination made by a state with regard to the preadmission screening and annual resident review requirements of § 1919(e)(7) of the Social Security Act.

"Department" means the Department of Medical Assistance Services.

"Division" means the department's Appeals Division of Client Appeals.

"Final decision" means a written determination by a hearing officer which that is binding on the department, unless modified on appeal or review.

"Hearing" means the evidentiary hearing described in this regulation, conducted by a hearing officer employed by the department.

"Representative" means an attorney or agent who has been authorized to represent an appellant pursuant to these regulations.

"Send" means to deliver by mail or in electronic format consistent with 42 CFR 431.201.

Article 2
The Appeal System

12VAC30-110-20. Appeals Division of Client Appeals.

The division maintains an appeals system for appellants to challenge adverse actions regarding services and benefits provided by the department. Appellants shall be entitled to a hearing before a hearing officer. See Subpart II of these regulations.

A. The division maintains an appeals system for appellants to challenge (i) actions, as defined in 42 CFR 431.201, regarding services and benefits provided by the department, and (ii) adverse determinations regarding services provided by a nursing facility in accordance with § 1919(b)(3)(F) or 1919(e)(7)(B). Appellants shall be entitled to a hearing before a hearing officer. See Subpart II (12VAC30-110-130 et seq.) of this chapter.

B. In accordance with 42 CFR 435.918, the agency makes electronic appeal correspondence available to applicants and recipients. Applicants and recipients may elect to receive appeal correspondence in electronic format or by regular mail and may change such election.

Article 4
Notice and Appeal Rights

12VAC30-110-70. Notification of adverse agency action.

The agency which that takes action or makes an initial adverse determination shall inform the applicant or recipient in a written notice:

1. What action or adverse determination the agency intends to take;

2. The reasons for the intended action or adverse determination;

3. The specific regulations that support or the change in law that requires the action or adverse determination;

4. The right to request an evidentiary hearing, and the methods and time limits for doing so;

5. The circumstances under which benefits are continued if a hearing is requested (see 12VAC30-110-100); and

6. The right to representation.

12VAC30-110-80. Advance notice.

When the agency plans to terminate, suspend, or reduce an individual's eligibility or covered services, the agency must mail send the notice described in 12VAC30-110-70 at least 10 days before the date of action, except as otherwise permitted by federal law.

12VAC30-110-100. Maintaining services.

A. If the agency mails sends the 10-day notice described in 12VAC30-110-80 and the appellant files his Request for Appeal before the date of action, his services shall not be terminated or reduced until the hearing officer issues a final decision unless it is determined at the hearing that the sole issue is one of federal or state law or policy and the appellant is promptly informed in writing that services are to be terminated or reduced pending the final decision.

B. If the agency's action is sustained on appeal, the agency may institute any available recovery procedures against the appellant to recoup the cost of any services furnished to the appellant, to the extent they were furnished solely by reason of subsection A of this section.

Article 5
Miscellaneous Provisions

12VAC30-110-110. Appeals Division records.

A. Removal of records. No person shall take from the division's custody any original record, paper, document, or exhibit which that has been certified to the division except as the Director of Client the Appeals Division authorizes, or as may be necessary to furnish or transmit copies for other official purposes.

B. Confidentiality of records. Information in the appellant's record can be released only to a properly designated representative or other person(s) person or persons named in a release of information authorization signed by an appellant, his guardian, or power of attorney.

C. Fees. The fees to be charged and collected for any copies will be in accordance with Virginia's Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) or other controlling law.

D. Waiver of fees. When copies are requested from records in the division's custody, the required fee shall be waived if the copies are requested in connection with an individual's own review or appeal.

12VAC30-110-140. Place of filing a Request for Appeal.

A Request for Appeal shall be delivered or mailed sent to the Appeals Division of Client Appeals.

12VAC30-110-160. Time limit for filing.

A Request for Appeal shall be filed within 30 days of the appellant's receipt of the notice of an adverse action or adverse determination described in 12VAC30-110-70. It is presumed that appellants will receive the notice three five days after the agency mails the notice unless the appellant shows that he did not receive the notice within the five-day period. A Request for Appeal on the grounds that an agency has not acted with reasonable promptness may be filed at any time until the agency has acted.

12VAC30-110-285. Appeals Division access to agency records.

A hearing officer shall have access to agency information necessary to issue a proper hearing decision that is sound and legally supportable, including information concerning state policies and regulations.

12VAC30-110-350. Dismissal of Request for Appeal.

A Request for Appeal may be dismissed if:

1. The appellant or his representative withdraws the request in writing; or

2. The appellant or his representative fails to appear at the scheduled hearing without good cause, and does not reply within 10 days after the hearing officer mails sends an inquiry as to whether the appellant wishes further action on the appeal.