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Virginia Administrative Code
Title 12. Health
Agency 30. Department of Medical Assistance Services
Chapter 120. Waivered Services
1/23/2020

12VAC30-120-420. Member Grievances and Appeals.

A. The MCOs shall comply with (i) the Grievance and Appeal System as identified in 42 CFR 438 Subpart F, (ii) the Enrollee Rights and Protections requirements in 42 CFR 438 Subpart C, (iii) the Medallion contract between DMAS and the MCO, and (iv) any other applicable state or federal statutory or regulatory requirements.

B. MCOs shall at (i) the initiation of new member enrollment, (ii) the initiation of new provider or subcontractor contracts, or (iii) the request of the member, provide to every member the information described in 42 CFR 438.10(g) concerning grievance and appeal rights and procedures.

C. Disputes between the MCO and the member concerning any aspect of service delivery, including medical necessity and specialist referral, shall be resolved through a verbal or written grievance or appeals process operated by the MCO or through the DMAS appeals process. A provider or other representative who has the member's written consent may act on behalf of a member in the MCO grievance or appeals or the DMAS appeals process.

1. The member, provider, or representative acting on behalf of the member with the member's written consent may file an oral or written grievance or internal appeal with the MCO. The MCO must accept grievances filed at any time. Internal appeal requests must be submitted within 60 days from the date of the notice of adverse benefit determination. Oral requests for internal appeals must be followed up in writing by the member, provider, or the representative acting on behalf of the member with the member's consent, unless the request is for an expedited internal appeal.

2. The member must exhaust the MCO's internal appeals process before appealing to the DMAS Appeals Division. The member may also file a written request for a standard or expedited internal appeal of the MCO's adverse benefit determination with the DMAS Appeals Division within 120 days of the member's receipt of the MCO's internal appeal decision, in accordance with 42 CFR 431 Subpart E; 42 CFR Part 438 Subpart F; and 12VAC30-110-10 through 12VAC30-110-370.

3. As specified in 12VAC30-110-100, pending the resolution of a grievance, internal appeal, or appeal filed by a member or his representative (including a provider acting on behalf of the member) prior to the effective date of the adverse benefit determination, coverage shall not be terminated or reduced for the member for any reason that is the subject of the grievance or appeal.

4. The MCO shall ensure that neither the individuals nor agents, nor a subordinate of any such individual, who makes decisions on grievances and internal appeals were involved in any previous level of review or decision making. Additionally, where the reason for the grievance or internal appeal involves clinical issues or relates to a denial of a request for an expedited appeal, or where the appeal is based on a lack of medical necessity, the MCO shall ensure that the decision makers are health care professionals with the appropriate clinical expertise in treating the member's condition or disease.

5. The MCO shall provide the member and any representative a reasonable opportunity in person and in writing to present evidence and testimony and to make legal and factual arguments in accordance with 42 CFR 438.406(b)(4). The MCO shall inform the member of the limited time available for this sufficiently in advance of the resolution timeframe for appeals in accordance with 42 CFR 438.406(b)(4).

6. The MCO shall provide the member and any representative the member's case file, including medical records, and any new or additional evidence considered, relied upon, or generated by the MCO in connection with the appeal of the adverse benefit determination. This information must be provided free of charge and sufficiently in advance of the resolution timeframe for appeals in accordance with 42 CFR 438.406(b)(5).

D. The MCO shall develop written materials describing the grievance or appeals system and its procedures and operation.

E. The MCO shall maintain a recordkeeping, reporting, and tracking system for complaints, grievances, and appeals that complies with the Medallion contract between DMAS and the MCO. The system shall include a copy of the original complaint, grievance, or internal appeal; the decision; the nature of the decision; and data on the number of internal appeals filed, the average time to resolve internal appeals, and the total number of internal appeals open as of the reporting date. This system shall distinguish Medicaid from commercial members if the MCO does not have a separate system for Medicaid members.

F. At the time of enrollment and at the time of any adverse benefit determination, the MCO shall notify the member in writing that:

1. An adverse benefit determination may be resolved through a system of grievances and appeals, first within the MCO and then through the DMAS client appeals process;

2. Members have the right to request an expedited internal appeal;

3. Members shall exhaust their internal appeals with the MCO before being given the right to appeal to DMAS; and

4. The MCO shall promptly provide grievance or appeal forms, reasonable assistance, and written procedures to members who wish to register written grievances or appeals, including auxiliary aids and services upon request such as providing interpreter services and toll-free numbers that have adequate TTY/TTD and interpreter capability.

G. The MCO shall issue grievance or internal appeal decisions as defined by 42 CFR 438.408 and the contract between DMAS and the MCO. Oral grievance decisions are not required to be in writing.

H. The MCO shall issue standard internal appeal decisions within 30 days from the date of initial receipt of the internal appeal in accordance with 42 CFR 438.408 and as defined by the Medallion contract between DMAS and the MCO. This timeframe may be extended by up to 14 days under the requirements of 42 CFR 438.408. The internal appeal decision shall be in writing and shall include the following:

1. The decision reached, the results, and the date of the decision reached by the MCO;

2. The reasons for the decision;

3. The policies or procedures that provide the basis for the decision;

4. For internal appeals not resolved wholly in favor of the member:

a. A clear explanation of further appeal rights and a timeframe for filing an internal appeal; and

b. The right to continue to receive benefits in accordance with 42 CFR 438.420 pending a hearing and how to request continuation of benefits.

The member may be held liable for the cost of those benefits if the hearing decision upholds the contractor's adverse benefit determination.

I. An expedited appeal decision shall be issued as expeditiously as the member's condition requires and within 72 hours from receipt of the internal appeal request in cases of medical emergencies in which delay could result in death or serious injury to a member. Extensions to these timeframes shall be allowed in accordance with 42 CFR 438.408 and as defined by the Medallion contract between DMAS and the MCO. Written confirmation of the decision shall promptly follow the verbal notice of the expedited decision.

J. If the MCO fails to adhere to the internal appeals notice and timing requirements of this section, the member is deemed to have exhausted the MCO's internal appeals process and may file an internal appeal with DMAS.

K. Any adverse benefit determination upheld in whole or in part by the internal appeal decision issued by the MCO may be appealed by the member to DMAS in accordance with the DMAS appeals regulations at 12VAC30-110-10 through 12VAC30-110-370. DMAS shall conduct an evidentiary hearing in accordance with the Client Appeals regulations at 12VAC30-110-10 through 12VAC30-110-370 and shall not base any appealed decision on the record established by any internal appeal decision of the MCO. The MCO shall comply with the DMAS appeal decision. The DMAS decision in these matters shall be final and shall not be subject to appeal by the MCO.

L. The MCO shall provide information necessary for any DMAS appeal within timeframes established by DMAS.

Statutory Authority

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

Historical Notes

Derived from Volume 13, Issue 05, eff. January 1, 1997; amended, Virginia Register Volume 14, Issue 18, eff. July 1, 1998; Volume 19, Issue 03, eff. December 1, 2002; Volume 19, Issue 23, eff. August 27, 2003; Volume 21, Issue 11, eff. March 10, 2005; Volume 32, Issue 22, eff. July 27, 2016; Volume 35, Issue 14, eff. April 18, 2019

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