Vol. 34 Iss. 6 - November 13, 2017

Chapter 110
Final Regulation

REGISTRAR'S NOTICE: The following regulatory action is exempt from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations, provided such regulations do not differ materially from those required by federal law or regulation. The Department of Medical Assistance Services will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 12VAC30-110. Eligibility and Appeals (amending 12VAC30-110-10, 12VAC30-110-20, 12VAC30-110-30, 12VAC30-110-70, 12VAC30-110-80, 12VAC30-110-130, 12VAC30-110-170, 12VAC30-110-350; adding 12VAC30-110-35).

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

Effective Date: December 13, 2017.

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


To comply with final regulations of the federal Centers for Medicare and Medicaid Services published in 81 FR 86832 (November 30, 2016), the amendments update provisions regarding eligibility, appeals, and enrollment changes.

Part I
Client Appeals

Subpart I

Article 1

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 of, suspension of, or reduction of in covered benefits or services; a termination, suspension, or reduction in Medicaid eligibility; or covered services an increase in beneficiary liability, including a determination that a beneficiary must incur a greater amount of medical expenses in order to establish income eligibility in accordance with 42 CFR 435.121(e)(4) or 42 CFR 435.831 or is subject to an increase in premiums or cost-sharing charges under Subpart A of 42 CFR Part 447. It also means (i) determinations by a skilled nursing facilities and facility or nursing facilities facility to transfer or discharge residents a resident and (ii) an adverse determinations 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.

"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 that, on the department's behalf, makes determinations regarding applications for benefits provided by the department; and or

2. The department itself.

"Appellant" means (i) an applicant for or recipient of medical assistance benefits from the department who seeks to challenge an 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.

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

"Hearing" means the evidentiary hearing described in this regulation chapter, 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 and 42 CFR 435.918.

Article 2
Appeal System

12VAC30-110-20. Appeals Division.

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) that complies with all federal legal authority for appellants to challenge actions, as defined in 42 CFR 431.201, regarding services and benefits provided by the agency or a nursing facility.  Appellants shall be entitled to a hearing before a hearing officer. See Subpart II (12VAC30-110-130 et seq.) of this chapter.

B. The appeals system shall be accessible to persons who are limited English proficient and persons who have disabilities, consistent with 42 CFR 435.905(b).

C. 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.

12VAC30-110-30. Time limitation for appeals.

Hearing officer appeals shall be scheduled and conducted to comply with the 90-day time limitation limitations for standard and expedited appeals imposed by federal regulations, unless waived in writing by the appellant or the appellant's representative.:

1. The agency cannot reach a decision because the appellant requests a delay or fails to take a required action; or

2. There is an administrative or other emergency beyond the agency's control.

All instances in which there is a delay shall be documented in the appellant's record.

12VAC30-110-35. Expedited appeals.

A. An appellant may request and the agency shall provide an expedited appeals process for claims for which the agency determines that the 90-day timeframe for conducting an appeal could jeopardize the individual's life, health, or ability to attain, maintain, or regain maximum function.

B. If an expedited appeal request is granted, the following timeframes for conducting the appeal apply from receipt of the appeal request:

1. Seventy-two hours for:

a. A claim related to services or benefits described in 42 CFR 431.220(a)(1);

b. A MCO, PIHP, or PAHP enrollee who is entitled to a hearing under Subpart F of 42 CFR Part 438;

c. An enrollee in a nonemergency medical transportation prepaid ambulatory health plan who has an action; and

d. An enrollee who is entitled to a hearing under Subpart B of 42 CFR Part 438.

2. Seven business days forS

a. Eligibility claims;

b. Nursing facility claims related to transfer or discharge; or

c. Nursing facility claims related to the agency's preadmission determination or annual resident review.

C. The department shall notify the individual whether the request is granted or denied as expeditiously as possible. Such notice may be provided orally or through the electronic means found in 12VAC30-110-130.

Article 4
Notice and Appeal Rights

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

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

1. What action or adverse determination the agency intends to take and the effective date of such action;

2. The A clear statement of the specific reasons for supporting 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 right to request an expedited evidentiary hearing;

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

6. 7. 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 send the notice described in 12VAC30-110-70 at least 10 days before the date of action, except as otherwise permitted by federal law in 42 CFR 431.213 and 42 CFR 431.214.

Subpart II
Hearing Officer Review

Article 1
Commencement of Appeals

12VAC30-110-130. Request for appeal.

A.  An appeal may be filed by any of the following methods:

1. By telephone;

2. Via email;

3. In person; and

4. Through other commonly available electronic means supported by the agency.

B. Any written communication in the formats specified in subsection A of this section from an appellant or his representative which that clearly expresses that he wants to present his case to a reviewing authority shall constitute an appeal request. This communication should explain the basis for the appeal.

12VAC30-110-170. Extension of time for filing.

An extension of the 30-day period for filing a Request for Appeal may be granted for good cause shown. Examples of good cause include, but are not limited to, the following situations:

1. Appellant was seriously ill and was prevented from contacting the division;

2. Appellant did not receive notice of the agency's decision action or adverse determination;

3. Appellant sent the Request for Appeal to another government agency in good faith within the time limit;

4. Unusual or unavoidable circumstances prevented a timely filing.

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

A. A Request for Appeal may be dismissed if:

1. The appellant or his representative withdraws the request in writing via any of the methods in 12VAC30-110-130. For telephonic appeal withdrawals, the agency shall record the individual's statement and telephonic signature; 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 sends an inquiry as to whether the appellant wishes further action on the appeal.

B. Subsequent to the dismissal, the appellant shall receive the written order of dismissal via regular mail or electronic notification in accordance with the individual's election under 42 CFR 435.918(a).

VA.R. Doc. No. R18-5093; Filed October 16, 2017, 6:58 a.m.