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

12VAC30-120-640. State fair hearing process.

A. Notwithstanding the provisions of 12VAC30-110-10 through 12VAC30-110-370, this section through 12VAC30-120-690 govern state fair hearings for individuals enrolled in CCC Plus.

B. The Appeals Division maintains an appeals and fair hearings system for members (referred to as "appellants" once the appeal process has begun) to challenge appeal decisions rendered by the MCO in response to member appeals of adverse benefit determinations related to Medicaid services. Exhaustion of the MCO's appeals process is a prerequisite to requesting a state fair hearing with the department. Appellants who meet the criteria for a state fair hearing shall be entitled to a state fair hearing before a department hearing officer.

C. The MCO shall conduct an internal appeal , pursuant to 42 CFR Part 431 Subpart E and 42 CFR Part 438 Subpart F, and issue a written decision that includes its findings and information regarding the appellant's right to file an appeal with DMAS for a state fair hearing for Medicaid appeals.

D. Members must be notified in writing of the MCO's internal appeals process in accordance with 42 CFR 438.400 et seq.:

1. With the handbook; and

2. Upon receipt of a notice of adverse benefit determination from the MCO.

E. Members must be notified in writing of their right to an external appeal to DMAS upon receipt of the MCO's final internal appeal decision.

F. An appellant shall have the right to representation by an attorney or an authorized representative at the internal appeal and external appeal before DMAS. An authorized representative may be designated to represent the appellant, pursuant to 12VAC30-110-60, 12VAC30-110-1380, and 12VAC30-110-1390, at the internal appeal and external appeal before DMAS.

G. Any communication from a member or the 's member's authorized representative that expresses the 's member's desire to present his case to a reviewing authority shall constitute an appeal request.

1. This communication should explain the basis for the appeal of the MCO's internal appeal decision.

2. The appellant or the appellant's authorized representative may examine witnesses, documents, or both; provide testimony; submit evidence; and advance relevant arguments during the state fair hearing.

H. After the MCO's internal appeal process has been exhausted, an appellant may request a state fair hearing by filing an appeal with the Appeals Division via regular mail, fax transmission, telephone, email, in person, or through other commonly available electronic means.

I. Expedited appeals referenced in subsection K of this section may be filed by telephone or any of the methods set forth in subsection H of this section.

J. The appellant member has the right to have his benefits continued during the MCO's appeal or the state fair hearing.

1. All of the following requirements must be met in order for benefits to be continued during the MCO and state fair hearing appeals:

a. The appeal involves the termination, suspension, or reduction of a previously authorized course of treatment;

b. The services were ordered by an authorized provider;

c. The original period covered by the initial authorization has not expired; and

d. The member requests that the benefits be continued.

2. For continuation of benefits for an internal appeal with the MCO, the member or authorized representative must file the appeal before the effective date of the adverse benefit determination or within 10 calendar days of the mail date of the MCO's notice of the adverse benefit determination.

3. For continuation of benefits for a state fair hearing, the member or authorized representative must file the appeal within 10 calendar days of the mail date of the MCO's final appeal decision.

4. The MCO shall also continue benefits for members who initiate a state fair hearing directly because of deemed exhaustion of appeals processes due to failure of the MCO to adhere to the notice and timing requirements in 42 CFR 438.408.

5. If the final resolution of the appeal or state fair hearing is adverse to the member, that is, upholds the MCO's adverse benefit determination, the MCO may recover the costs of services furnished to the member while the appeal and the state fair hearing was pending, to the extent they were furnished solely because of the pending appeal.

K. The MCO and the department shall maintain an expedited process for appeals when an appellant's treating provider indicates in making the request on the 's member's behalf or supporting the 's member's request that taking the time for a standard resolution could seriously jeopardize the 's member's life, physical or mental health, or ability to attain, maintain, or regain maximum function.

1. Resolution of an expedited appeal shall be no longer than 72 hours after the MCO receives the appeal.

2. Members must exhaust the MCO's internal appeals processes prior to filing an expedited appeal request with the department with the exception of those with members who gain direct access to state fair hearings because of deemed exhaustion of appeals processes with the MCO pursuant to 42 CFR 438.402(c)(1)(i)(A).

3. The MCO and the department may extend the timeframes for resolution of an expedited appeal by up to 14 calendar days if the member or the 's member's authorized representative requests the extension, or if the MCO or the department shows that there is a need for additional information and how the delay is in the 's member's best interest.

4. Requirements following extension. If the MCO extends the timeframes not at the request of the member, it shall complete the following:

a. Promptly notify the member of the reason for an extension and provide the date the extension expires; and

b. Resolve the appeal as expeditiously as the 's member's health condition requires and no later than the date the extension expires.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 37, Issue 14, eff. March 31, 2021.

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