Title of Regulation: 12VAC30-20. Administration of Medical Assistance Services (amending 12VAC30-20-500 through 12VAC30-20-560).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 1, 2016.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@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 State Plan for Medical Assistance. Sections 32.1-324 and 32.1-325 of the Code of Virginia authorize the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the State Plan for Medical Assistance according to the board's requirements. Section 32.1-325.1 of the Code of Virginia provides for a provider appeal process. The Medicaid authority as established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Purpose: The purpose of this regulatory action is to comply with the legislative mandate and address recent case law and administrative decisions. The case law and administrative decisions have created the need to clarify existing appeals processes and codify emerging processes made urgent by court and administrative case decisions. An increase in the volume of appeals, generated by provider audits and other utilization review mandates, has also created a need for this regulatory action. Additionally, recent case decisions, such as VA Department of Medical Assistance Services v. Patient Transportation System, 58 Va.App.328, 709 S.E. 2d 188 (2011), and its predecessor appeal in circuit court, have necessitated clarifying the means by which documentation can be transmitted and the manner in which alleged deficiencies in case summaries can be addressed. This regulatory action is necessary for the public health, safety, and welfare in that it provides for clarifications to the provider appeals process to help assure for proper notice and due process for providers, Medicaid members, and the general public. The proper functioning of the appeals process helps assure that all providers are held to the same standards regarding the quality of services they provide and the accuracy of the medical record documentation that they create for Medicaid members. A fair, efficient, and clear set of appeals rules enable the Medicaid system to function effectively.

Substance: The section of the State Plan for Medical Assistance that is affected by this action is Part XII, Provider Appeals (12VAC30-20-500 et seq.) of 12VAC30-20.

Current Policy: These appeal regulations were originally promulgated in 2000 and have been substantively revised only once since that time. From the onset of these regulations, the number of appeal actions has more than tripled to the current day. In 2000 and 2009, no need to provide for administrative dismissals was necessary, such as those that (i) exist for client/recipient appeals, (ii) provide for mutually agreed upon time extensions, (iii) establish a timely process for providers to challenge alleged deficiencies in case summaries, and (iv) provide consistent and effective timelines for appeal actions resulting from a remand by court order. The current process also permits exchange of documentation solely via United States postal mail, with no provision for electronic transmittal.

The increased volume of provider appeals over the past decade has taxed the resources of the department's appeals process in a manner that is not sustainable without updating, clarifying, and providing greater consistency for the appeals regulations. Specifically, a consistent timeline and method for filing documentation within normal business hours and one that allows for transmission methods in addition to United States postal mail, including electronic transmission, is essential to functioning. Recent case decisions, such as VA Department of Medical Assistance Services v. Patient Transportation System, 58 Va.App.328, 709 S.E. 2d 188 (2011), and its predecessor appeal in circuit court, have necessitated clarifying the means by which documentation can be transmitted and the manner in which alleged deficiencies in case summaries can be addressed. Clarification as to the content of case summaries and the provider's identification of issues that the provider wants addressed in the case summary are critical for the agency to comply with the law and to provide a thorough case summary. Increases in the number of case remands necessitate a uniform method of processing remanded cases by all hearing officers. The growth in the number of appeals over the last decade necessitates that DMAS streamline the process for administratively dismissing untimely, unauthorized, and insufficient appeal requests while maintaining due process through the right to appeal such action. The elements of recommended decisions in formal hearings are also streamlined and clarified. Lastly, the volume of appeals necessitates that the parties to the appeal be permitted some consistent and defined level of flexibility to extend and adjust appeal timelines for their specific circumstances, where the timeline is not dictated by state or federal statute.

Recommendations: The proposed amendments specifically address the issues identified above, including clarity and consistency regarding DMAS's timelines for appeals and remands, specifications for time and method of filing required documentation, the process for challenging the sufficiency of case summaries, and clarification of the department's process for administrative dismissals. This action is critical to keeping abreast of the caseload increases due to enrollment growth and the increase in number, type, and complexity of provider audits and initiatives aimed at fraud, waste, and abuse. Improved consistency in methodology ensures fair and equal processing of appeals and maintenance of due process.

Issues: Appeal regulatory timetables were established a decade ago and at that time the volume of appeals was less than one-third of the present day. Over time, the volume of appeals has significantly increased, requiring regulatory clarification and updating. These recommended changes reflect the realities that the hearing officers and all affected parties face in attempting to process appeals and meet timelines that have become outdated. A consistent timeline and method for filing documentation within normal business hours and one that allows for methods other than United States postal mail for delivery, including electronic transmission, is essential to functioning efficiently. Recent case decisions, such as VA Department of Medical Assistance Services v. Patient Transportation System, 58 Va.App.328, 709 S.E. 2d 188 (2011), and its predecessor appeal in circuit court, have necessitated clarifying the means by which documentation can be transmitted and the manner in which alleged deficiencies in case summaries can be addressed. Clarification as to the content of case summaries and the provider's identification of issues that the provider wants addressed in the case summary are critical for the agency to comply with the law and provide a sufficient case summary that addresses all of the provider's issues. Increases in the number of case remands necessitate a uniform method of processing such cases by all hearing officers.

The growth in the number and complexity of appeals over the decade necessitates that DMAS streamline the process for administratively dismissing untimely, unauthorized, and insufficient appeal requests while maintaining due process. The elements of recommended decisions in formal hearings are also streamlined and clarified. Lastly, the volume of appeals necessitates that the parties to the appeal be permitted some consistent and defined level of flexibility to extend and adjust appeal timelines for their specific circumstances, by mutual consent, where the timeline is not dictated by state or federal statute.

The primary advantage of the proposed action is to guarantee that provider appeals are afforded due process through clear and consistent processes that are not compromised as volume increases. The public is served through the agency's ability to address concerns of the courts in their recent decisions and assure that efficiency of available limited resources is maximized without compromising due process. Updating the existing regulations to reflect the practices of an increasingly digital and electronic business model improves efficiency and quality of service to providers and the public. DMAS sees no disadvantages to the proposed modifications herein.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Medical Assistance Services (DMAS) proposes to 1) address the manner in which alleged deficiencies in case summaries can be resolved and the means by which documentation can be transmitted in an informal appeal, 2) allow extension of 45 days limitation in which the hearing officer must conduct a formal hearing if agreed by all parties, and 3) update the regulations by clarifying and reorganizing the current requirements.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The main purposes of the proposed changes are to address the manner in which alleged deficiencies in case summaries can be resolved and the means by which documentation can be transmitted in an informal appeal. In a recent case, a Circuit Court ruled and the Appeals Court affirmed an adverse decision against DMAS's decision on a provider appeal.¹ According to DMAS, the case has necessitated new rules for addressing the alleged deficiencies in case summaries and the means by which documentation can be transmitted.

To address the manner in which alleged deficiencies in case summaries can be resolved, one of the proposed changes will require the providers to notify DMAS of alleged deficiencies within 12 days of the due date of the case summary. Upon receipt of the provider's notice, DMAS will have 12 days to address the alleged deficiency. With this change, DMAS will be assured to know if there are any issues with its case summary, and if so be able to address them in a given time frame. The providers on the other hand will be afforded a chance to bring to DMAS's attention any deficiencies and have DMAS address it.

Another change will clarify that documents can be transmitted by courier or hand delivery, facsimile, electronic mail, or electronic submission. Current language uses the term "mail" and the provider in the appealed case challenged whether electronic mailing of case summary was sufficient. In order to remove any ambiguity the current use of "mail" may create, the proposed regulations clarify that electronic transmittal of documents is allowed.

These two changes will address two issues the current regulation has which came out during the recent litigation. Thus, the proposed changes should produce a net benefit in that they will improve communications regarding the sufficiency of case summaries and allow more modern and cost effective means of document transmittal between the providers and DMAS.

The proposed changes will also allow an extension of a 45 days limitation in which the hearing officer shall conduct a formal hearing if agreed to by the hearing officer, DMAS, and the provider. This change is likely to produce a net benefit as it would allow additional time to hold a hearing only if agreed to by all parties.

Finally, DMAS states that these appeal regulations were originally promulgated in 2000 and have been substantively revised only once since that time. Consequently DMAS proposes a number of updates. These updates include clarifications of the current requirements and authorities the regulation provides and reorganization of sections within the regulation. For example, they clarify the conditions when an administrative dismissal may occur; clarify whenever an informal appeal is required pursuant to a remand by a court order, all time periods run effective as of the date stamped by DMAS on documentation containing the remand; move the timelines set in section 560 (E) to 560 (B). These changes do not contain any new rules or modify existing rules. Thus, they are not expected to produce any significant economic impact other than improving the clarity and readability of already existing requirements.

Businesses and Entities Affected. These regulations apply to approximately 52,000 providers. Most of the providers, with the exception of 108 hospitals and 273 nursing facilities, are considered small businesses. In fiscal year 2014, there were 6,260 informal appeals of which 113 turned into formal appeals.

Localities Particularly Affected. The proposed regulations apply statewide.

Projected Impact on Employment. No significant impact on employment is expected.

Effects on the Use and Value of Private Property. No significant impact on the use and value of private property is expected.

Small Businesses: Costs and Other Effects. Most of the 52,000 providers these regulations apply to are considered small businesses. Expected economic effects discussed above apply to them.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are not anticipated to have an adverse impact on small businesses.

Real Estate Development Costs. No effect on real estate development costs is expected.

Legal Mandate.

General: 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 Number 17 (2014). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulation would apply,

• the identity of any localities and types of businesses or other entities particularly affected,

• the projected number of persons and employment positions to be affected,

• the projected costs to affected businesses or entities to implement or comply with the regulation, and

• the impact on the use and value of private property.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• 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,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

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, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

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¹ See VA Department of Medical Assistance Services v. Patient Transportation System, 58 Va.App.328, 709 S. E. 2d 188 (2011) for details.

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

Summary:

The proposed amendments (i) address the manner in which alleged deficiencies in case summaries can be resolved and the means by which documentation can be transmitted in an informal appeal; (ii) clarify and adjust timelines and filing specifications, for example an extension of a 45-day limitation in which the hearing officer must conduct a formal hearing if agreed to by all parties and delivery using electronic means are added; and (iii) update and clarify the department's authority to take administrative action to dismiss untimely, unauthorized, or insufficient appeal requests.

Part XII
Provider Appeals

12VAC30-20-500. Definitions.

The following words, and terms when used in this part, shall have the following meanings:

"Administrative dismissal" means a dismissal that requires only the issuance of a decision with appeal rights but does not require the submission of a case summary or any further proceeding.

"Day" means a calendar day unless otherwise stated.

"DMAS" means the Virginia Department of Medical Assistance Services or its agents or contractors.

"Hearing officer" means an individual selected by the Executive Secretary of the Supreme Court of Virginia to conduct the formal appeal in an impartial manner pursuant to §§ 2.2-4020 and 32.1-325.1 of the Code of Virginia and this part.

"Informal appeals agent" means a DMAS employee who conducts the informal appeal in an impartial manner pursuant to §§ 2.2-4019 and 32.1-325.1 of the Code of Virginia and this part.

"Last known address" means the provider's physical or electronic correspondence address on record in the DMAS Medicaid Management Information System as of the date DMAS transmits an item to the provider or the address of the provider's counsel of record. Nothing herein shall prevent DMAS and the provider from agreeing in writing during the course of an audit or an appeal to use an alternative location for the transmittal of an item or items related to the audit or the appeal.

"Provider" means an individual or entity that has a contract with DMAS to provide covered services and that is not operated by the Commonwealth of Virginia.

"Transmit" means to send by means of the United States mail, courier or other hand delivery, facsimile, electronic mail, or electronic submission.

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

A. This part governs all DMAS informal and formal provider appeals and shall supersede 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' interpretation and application of payment methodologies. A provider may not appeal the actual payment methodologies.

C. DMAS shall mail transmit all items to the last known address of the provider. It is presumed that DMAS mails transmits items on the date noted on the item. It is presumed that providers receive items mailed transmitted by United States mail to their last known address within three days after DMAS mails transmits the item by United States mail. It is presumed that providers receive items transmitted by electronic mail or facsimile to their last known electronic mail address or facsimile number on the date transmitted. It is presumed that the items are received upon the date and time of delivery to the provider's last known address by a courier. 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 by the DMAS Appeals Division in Richmond, Virginia.

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' main office in Richmond, Virginia, or at such other place as agreed to upon in writing by the parties 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' fees and costs associated with an informal or formal administrative appeal if the provider substantially prevails on the merits of the appeal and 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 on the due date shall be untimely.

12VAC30-20-540. Informal appeals.

A. Providers appealing a DMAS decision shall file a written notice of informal appeal with the DMAS Appeals Division within 30 days of the provider's receipt of the decision. Notice of informal appeal.

1. Providers appealing the termination or denial of their Medicaid agreement pursuant to § 32.1-325 D of the Code of Virginia shall file a written notice of informal appeal with the DMAS Appeals Division within 15 days of the provider's receipt of the notice of termination or denial.

2. Providers appealing adjustments to a cost report shall file a written notice of informal appeal with the DMAS Appeals Division within 90 days of the provider's receipt of the notice of program reimbursement. The written notice of informal appeal shall identify the issues being appealed, adjustments, or items that the provider is appealing.

3. Providers appealing all other DMAS decisions shall file a written notice of informal appeal with the DMAS Appeals Division within 30 days of the provider's receipt of the decision. The written notice of informal appeal shall identify each adjustment, patient, service date, or other disputed matter that the provider is appealing.

B. Administrative dismissals.

1. Failure to timely file a written notice of informal appeal within 30 days of receipt of the decision or within 90 days of receipt of the notice of program reimbursement shall result in dismissal of the appeal. Failure to file a written notice of informal appeal for termination or denial of a Medicaid agreement pursuant to § 32.1-325 D of the Code of Virginia within 15 days of receipt of the notice of termination or denial shall result in dismissal of the appeal with the information required by subdivision A 2 or A 3 of this section shall result in an administrative dismissal.

2. A representative, billing company, or other third-party entity filing a written notice of appeal on behalf of a provider shall submit to DMAS, at the time of filing or upon request, a written authorization to act on the provider's behalf, signed by the provider. The authorization shall reference the specific adverse action or actions being appealed including, if applicable, each patient's name and date of service. Failure to submit a written authorization as specified in this subdivision shall result in an administrative dismissal. This requirement shall not apply to an appeal filed by a Virginia licensed attorney.

3. If a provider has not exhausted any applicable DMAS or contractor reconsideration or review process or contractor's internal appeals process that the provider is required to exhaust before filing a DMAS informal appeal, the provider's written notice of informal appeal shall be administratively dismissed.

4. If DMAS has not issued a decision with appeal rights, the provider's attempt to file a written notice of informal appeal, prior to the issuance of a decision by DMAS that has appeal rights, shall be administratively dismissed.

B. C. Written case summary.

1. DMAS shall file a written case summary with the DMAS Appeals Division within 30 days of the filing of the provider's notice of informal appeal. DMAS and shall mail transmit a complete copy of the case summary to the provider on the same day that the case summary is filed with the DMAS Appeals Division.

The case summary shall address each adjustment, patient, service date, or other disputed matter and shall state DMAS' position for each adjustment, patient, service date, or other disputed matter. The case summary shall contain the factual basis for each adjustment, patient, service date, or other disputed matter and any other information, authority, or documentation DMAS relied upon in taking its action or making its decision. 2. For each adjustment, patient, and service date or other disputed matter identified by the provider in its notice of informal appeal, the case summary shall explain the factual basis upon which DMAS relied in taking its action or making its decision and identify any authority or documentation upon which DMAS relied in taking its action or making its decision.

3. Failure to file a written case summary with the DMAS Appeals Division in the detail specified within 30 days of the filing of the provider's notice of informal appeal within 30 days of the filing of the written notice of informal appeal shall result in dismissal in favor of the provider on those issues not addressed in the detail specified.

4. The provider shall have 12 days following the due date of the case summary to file with the DMAS Appeals Division and transmit to the author of the case summary a written notice of all alleged deficiencies in the case summary that the provider knows, or reasonably should know, exist. Failure of the provider to timely file a written notice of deficiency with the DMAS Appeals Division shall be deemed a waiver of all deficiencies, alleged or otherwise, with the case summary.

5. Upon timely receipt of the provider's notice of deficiency, DMAS shall have 12 days to address the alleged deficiency or deficiencies. If DMAS does not address the alleged deficiency or does not address the alleged deficiency to the provider's satisfaction, the alleged deficiency or deficiencies shall become an issue to be addressed by the informal appeals agent as part of the informal appeal decision.

6. The informal appeals agent shall make a determination as to each deficiency that is alleged by the provider as set forth in this subsection. In making that determination, the informal appeals agent shall determine whether the alleged deficiency is such that it could not reasonably be determined from the case summary the factual basis and authority for the DMAS action, relating to the alleged deficiency, so as to require a dismissal in favor of the provider on the issue or issues to which the alleged deficiency pertains.

C. D. Conference.

1. The informal appeals agent shall conduct the conference within 90 days from the filing of the notice of informal appeal. If DMAS and, the provider, and the informal appeals agent agree, the conference may be conducted by way of written submissions. If the conference is conducted by way of written submissions, the informal appeals agent shall specify the time within which the provider may file written submissions, not to exceed 90 days from the filing of the notice of informal appeal. Only written submissions filed within the time specified by the informal appeals agent shall be considered.

D. 2. The conference may be recorded at the discretion of the informal appeals agent and solely for the convenience of the informal appeals agent. Since Because the conference is not an adversarial or evidentiary proceeding, recordings shall not be made part of the administrative record and shall not be made available to anyone other than the informal appeals agent no other recordings or transcriptions shall be permitted. Any recordings made for the convenience of the informal appeals agent shall not be released to DMAS or to the provider.

E. 3. Upon completion of the conference, the informal appeals agent shall specify the time within which the provider may file additional documentation or information, if any, not to exceed 30 days. Only documentation or information filed within the time specified by the informal appeals agent shall be considered.

F. E. Informal appeals decision. The informal appeal decision shall be issued within 180 days of receipt of the notice of informal appeal.

F. Remand. Whenever an informal appeal is required pursuant to a remand by court order, final agency decision, agreement of the parties, or otherwise, all time periods set forth in this section shall begin to run effective with the date that the document containing the remand is date-stamped by the DMAS Appeals Division in Richmond, Virginia.

12VAC30-20-560. Formal appeals.

A. Any A provider appealing a DMAS informal appeal decision shall file a written notice of formal appeal with the DMAS Appeals Division within 30 days of the provider's receipt of the informal appeal decision. The notice of formal appeal shall identify the issues being appealed each adjustment, patient, service date, or other disputed matter that the provider is appealing. Failure to file a written notice of formal appeal in the detail specified within 30 days of receipt of the informal appeal decision shall result in dismissal of the appeal. Pursuant to § 2.2-4019 A of the Code of Virginia, DMAS shall ascertain the fact basis for decisions through informal proceedings unless the parties consent in writing to waive such a conference or proceeding to go directly to a formal hearing, and therefore only issues that were addressed pursuant to § 2.2-4019 shall be addressed in the formal appeal, unless DMAS and the provider consent to waive the informal fact-finding process under § 2.2-4019 A of the Code of Virginia.

B. DMAS and the provider shall exchange and file with the hearing officer all documentary evidence on which DMAS or the provider relies within 21 days of the filing of the notice of formal appeal. Only documents filed within 21 days of the filing of the notice of formal appeal shall be considered. DMAS and the provider shall file any objections to the admissibility of documentary evidence within seven days of the filing of the documentary evidence. Only objections filed within seven days of the filing of the documentary evidence shall be considered. The hearing officer shall rule on any objections within seven days of the filing of the objections. Documentary evidence.

1. Objections to documentary evidence, opening briefs, and reply briefs shall be filed with the DMAS Appeals Division on the date specified in this subsection. The hearing officer shall only consider those documents or pleadings that are filed within the required timeline. DMAS and the provider shall also transmit any required document to the other party and to the hearing officer on the date of filing.

a. All documentary evidence upon which DMAS or the provider relies shall be filed within 21 days of the filing of the notice of formal appeal.

b. Any objections to the admissibility of documentary evidence shall be filed within seven days of the filing of the documentary evidence. The hearing officer shall rule on any such objections within seven days of the filing of the objections.

c. The opening brief shall be filed by DMAS and the provider within 30 days of the completion of the hearing.

d. Any reply brief from DMAS or the provider shall be filed within 10 days of the filing of the opening brief to which the reply brief responds.

2. If there has been an extension to the time for conducting the hearing pursuant to subsection C of this section, the hearing officer is authorized to alter the due dates for filing opening and reply briefs to permit the hearing officer to be in compliance with the due date for the submission of the recommended decision as required by § 32.1-325.1 B of the Code of Virginia and subsection E of this section.

C. The hearing officer shall conduct the hearing within 45 days from the filing of the notice of formal appeal, unless the hearing officer, DMAS, and the provider all mutually agree to extend the time for conducting the hearing. Notwithstanding the foregoing, the due date for the hearing officer to submit the recommended decision to the DMAS director, as required by § 32.1-325.1 B of the Code of Virginia and subsection E of this section, shall not be extended or otherwise changed.

D. Hearings shall be transcribed by a court reporter retained by DMAS.

E. Upon completion of the hearing, DMAS and the provider shall have 30 days to exchange and file with the hearing officer an opening brief.Only opening briefs filed within 30 days after the hearing shall be considered. DMAS and the provider shall have 10 days to exchange and file with the hearing officer a reply brief after the opening brief has been filed. Only reply briefs filed within 10 days after the opening brief has been filed shall be considered.

F. E. The hearing officer shall submit a recommended decision to the DMAS director with a copy to the provider within 120 days of receipt the filing of the formal appeal request notice. If the hearing officer does not submit a recommended decision within 120 days of the filing of the notice of formal appeal, then DMAS shall give written notice to the hearing officer and the Executive Secretary of the Supreme Court that a recommended decision is due.

G. F. Upon receipt of the hearing officer's recommended decision, the DMAS director shall notify DMAS and the provider in writing that any written exceptions to the hearing officer's recommended decision shall be filed with the DMAS Appeals Division within 30 14 days of receipt of the DMAS director's letter. Only exceptions filed within 30 14 days of receipt of the DMAS director's letter shall be considered. The DMAS director shall issue the final agency case decision within 60 days of receipt of the hearing officer's recommended decision.

G. The DMAS director shall issue the final agency decision within 60 days of receipt of the hearing officer's recommended decision in accordance with § 32.1-325.1 B of the Code of Virginia.