Part I. Client Appeals
Subpart I
General
Article 1
Definitions
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 denial of, termination of, suspension of, or reduction in covered benefits or services; a denial of or termination, suspension, or reduction in Medicaid eligibility; or 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 facility or nursing facility to transfer, discharge, or fail to readmit a resident and (ii) an adverse determination made by a state with regard to the preadmission screening and resident review requirements of § 1919(e)(7) of the Social Security Act. It also means the failure to take an application for benefits or to act with reasonable promptness on an application for benefits, on a reported change in circumstances, or on a request for a particular medical service.
"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 or contractor that, on the department's behalf, makes determinations regarding benefits or applications for benefits provided by the department; 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 the applicant's benefits or the applicant's eligibility for benefits and (ii) a nursing facility resident who seeks to challenge a transfer, discharge, or failure to readmit. Appellant also means an individual who seeks to challenge an adverse determination regarding services provided by a nursing facility.
"Burden of proof" means the duty placed upon a party to prove or disprove a disputed fact.
"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.
"Day" means calendar day unless otherwise specified or required by law.
"De novo" means that, where a hearing is required, the department's hearing officer will consider all relevant evidence submitted during the appeal in order to make a determination on the issues on appeal, even if the evidence was not previously received by the agency.
"Department" means the Department of Medical Assistance Services.
"Division" means the department's Appeals Division.
"Fail to readmit" means when a nursing facility refuses to readmit a resident who meets the criteria for a bed hold under 42 CFR 438.15.
"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 de novo evidentiary hearing described in this chapter, conducted by a hearing officer employed by the department.
"Preponderance of the evidence" means that the party with the burden of proof has demonstrated to the hearing officer that their position on the issue in the appeal is more likely valid than not.
"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.
"State fair hearing" means the entire appeal process for applicants and beneficiaries as set forth in 42 CFR Subpart E.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.1, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995; Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017; Volume 40, Issue 22, eff. August 1, 2024.
Article 2
Appeal System
12VAC30-110-20. Appeals Division.
Article 2
Appeal System
A. The division maintains an appeals system 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.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.2, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995; Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.
12VAC30-110-30. Time limitation for appeals.
Hearing officer appeals shall be scheduled and conducted to comply with the time limitations for standard and expedited appeals imposed by federal regulations, unless:
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.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 1.3, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995; Volume 34, Issue 6, eff. December 13, 2017.
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 for:
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.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from Virginia Register Volume 34, Issue 6, eff. December 13, 2017.
12VAC30-110-40. Judicial review.
An appellant who believes a final decision as defined herein is incorrect may seek judicial review pursuant to The Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and Part 2A, Rules of the Virginia Supreme Court.
Statutory Authority
§§ 32.1-324 and 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 1.4, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995; Volume 25, Issue 14, eff. April 15, 2009.
Article 3
Representation
12VAC30-110-50. Right to representation.
Article 3
Representation
An appellant shall have the full right to representation by an attorney or agent at all stages of appeal.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 1.5, eff. October 1, 1993.
12VAC30-110-60. Designation of representative.
A. Agents. An agent must be designated in a written statement which is signed by the appellant. If the appellant is physically or mentally unable to sign a written statement, the division may allow a family member or other person acting on appellant's behalf to represent the appellant.
B. Attorneys. If the agent is an attorney or a paralegal working under the supervision of an attorney, a signed statement by such attorney or paralegal that he is authorized to represent the appellant prepared on the attorney's letterhead, shall be accepted as a designation of representation.
C. Substitution. A member of the same law firm as a designated representative shall have the same rights as the designated representative.
D. Revocation. An appellant may revoke representation by another person at any time. The revocation is effective when the department receives written notice from the appellant.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 1.6, eff. October 1, 1993.
Article 4
Notice and Appeal Rights
12VAC30-110-70. Notification of adverse agency action.
Article 4
Notice and Appeal Rights
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. A clear statement of the specific reasons 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
7. The right to representation.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.7, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.
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.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.8, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.
12VAC30-110-90. Right to appeal.
An individual has the right to file an appeal when:
1. His application for benefits administered by the department is denied. However, if an application for State and Local Hospitalization coverage is denied because of a lack of funds which is confirmed by the hearing officer, there is no right to appeal;
2. The agency takes action or proposes to take action that will adversely affect, reduce, or terminate his receipt of benefits;
3. His request for a particular medical service is denied, suspended, reduced, or terminated, in whole or in part;
4. The agency fails to take an application and/or fails to act with reasonable promptness on his application for benefits or request for a particular medical service;
5. The agency takes action or proposes to take action regarding the recovery of applicable medical assistance payments from a decedent's estate;
6. The agency takes action or proposes to take action regarding the recovery of expenditures for services received by ineligible individuals;
7. The agency takes action or proposes to take action regarding the recovery of expenditures paid on behalf of individuals whose coverage was continued during the appeals process; or
8. Federal regulations require that a fair hearing be granted.
Statutory Authority
§§ 32.1-324 and 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 1.9, eff. October 1, 1993; amended, Virginia Register Volume 22, Issue 26, eff. November 20, 2006.
12VAC30-110-100. Maintaining services.
A. If the agency 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.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.10, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015.
Article 5
Miscellaneous Provisions
12VAC30-110-110. Appeals Division records.
Article 5
Miscellaneous Provisions
A. Removal of records. No person shall take from the division's custody any original record, paper, document, or exhibit that has been certified to the division except as the Director of 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 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.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015.
12VAC30-110-120. Computation of time limits.
A. Acceptance of postmark date. Documents postmarked on or before a time limit's expiration shall be accepted as timely.
B. Computation of time limit. In computing any time period under these regulations, the day of the act or event from which the designated period of time begins to run shall be excluded and the last day included. If a time limit would expire on a Saturday, Sunday, or state or federal holiday, it shall be extended until the next regular business day.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 1.12, eff. October 1, 1993.
Article 1
Commencement of Appeals
12VAC30-110-130. Request for appeal.
Subpart II
Hearing Officer Review
Article 1
Commencement of Appeals
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 communication in the formats specified in subsection A of this section from an appellant or his representative 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.
Statutory Authority
§ 32.1-325 of the Code of Virginia 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 2.1, eff. October 1, 1993; amended, Virginia Register Volume 34, Issue 6, eff. December 13, 2017.
12VAC30-110-140. Place of filing a Request for Appeal.
A Request for Appeal shall be sent to the Appeals Division.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015.
12VAC30-110-150. Filing date.
The date of filing shall be the date the request is postmarked, if mailed, or the date the request is received by the department, if delivered other than by mail.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.3, eff. October 1, 1993.
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 action or adverse determination described in 12VAC30-110-70. It is presumed that appellants will receive the notice 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.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015.
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 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 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.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 2.5, eff. October 1, 1993; amended, Virginia Register Volume 34, Issue 6, eff. December 13, 2017.
12VAC30-110-180. Provision of information.
Upon receipt of a Request for Appeal, the division shall notify the appellant and his representative of general appeals procedures and shall provide further detailed information upon request.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.6, eff. October 1, 1993.
12VAC30-110-185. Appeal summary.
A. The agency proposing the action about which the individual requested the state fair hearing shall complete an appeal summary, which shall include:
1. The appellant's name and case name, if different;
2. The appellant's case number, Medicaid identification number, or other identifying information;
3. The agency or contractor responsible for the appellant's case;
4. A summary of the facts surrounding and the grounds supporting the action, the failure to take an application for benefits or to act with reasonable promptness on an application for benefits, a reported change in circumstances, or a request for a particular medical service. The summary of facts must include:
a. A list of the documents reviewed or relied upon, including those reviewed as part of the appeal.
b. A narrative explanation describing the agency's or contractor's position on the action when considering all documentation submitted until the appeal summary is filed. When the action under appeal is for a reduction of termination of existing coverage, the narrative should include an explanation as to what has changed or how the previous approval was made in error.
5. Citations to the statutes, regulations, and specific provisions of the Virginia Medical Assistance Eligibility manual or other policy that support the agency's action; and
6. The adverse benefit determination or the decision notice and any other documents relating to the appeal upon which the agency relied in making its decision.
B. The summary shall be filed with the department's Appeals Division with a complete copy sent to the appellant and the appellant's authorized representative, if applicable, at least five business days before the hearing date.
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from Virginia Register Volume 40, Issue 22, eff. August 1, 2024.
Article 2
Prehearing Review
12VAC30-110-190. Review.
Article 2
Prehearing Review
A hearing officer shall initially review an assigned case for compliance with prehearing requirements and may communicate with the appellant or his representative and the agency to confirm the agency action and schedule the hearing.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.7, eff. October 1, 1993.
12VAC30-110-200. Medical assessment.
A. A hearing officer may order an independent medical assessment when:
1. The hearing involves medical issues such as a diagnosis, an examining physician's report, or a medical review team's decision; and
2. The hearing officer determines it necessary to have an assessment by someone other than the person or team who made the original decision, for example, to obtain more detailed medical findings about the impairments, to obtain technical or specialized medical information, or to resolve conflicts or differences in medical findings or assessments in the existing evidence.
B. A medical assessment ordered pursuant to this regulation shall be at the department's expense and shall become part of the record.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.8, eff. October 1, 1993.
12VAC30-110-210. Prehearing action.
A. Invalidation. A Request for Appeal may be invalidated if it was not filed within the time limit imposed by 12VAC30-110-160 or extended pursuant to 12VAC30-110-170.
1. If the hearing officer determines that the appellant has failed to file a timely appeal, the hearing officer shall notify the appellant and the appellant's representative of the opportunity to show good cause for the late appeal.
2. If a factual dispute exists about the timeliness of the Request for Appeal, the hearing officer shall receive evidence or testimony on those matters before taking final action.
3. If the individual filing the appeal is not the appellant or an authorized representative of the appellant under the provisions of 12VAC30-110-60 A, the appeal shall be determined invalid.
4. If a Request for Appeal is invalidated, the hearing officer shall issue a decision pursuant to 12VAC30-110-370.
B. Administrative dismissal. Request for Appeal may be administratively dismissed without a hearing if the appellant has no right to appeal under 12VAC30-110-90.
1. If the hearing officer determines that the appellant does not have the right to an appeal, the hearing officer shall issue a final decision dismissing the appeal and notify the appellant and appellant's representative of the opportunity to seek judicial review.
2. If a Request for Appeal is administratively dismissed, the hearing officer shall issue a decision pursuant to 12VAC30-110-370.
C. Judgment on the record. If the hearing officer determines from the record that the agency's determination was clearly in error and that the case should be resolved in the appellant's favor, he shall issue a decision pursuant to 12VAC30-110-370.
D. Remand to agency. If the hearing officer determines from the record that the case might be resolved in the appellant's favor if the agency obtains and develops additional information, documentation, or verification, he may remand the case to the agency for action consistent with the hearing officer's written instructions. The remand order shall be sent to the appellant and any representative.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.9, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.
Article 3
Hearing
12VAC30-110-220. Evidentiary hearings.
A. General. The hearing officer shall review all agency determinations that are properly appealed; conduct informal, fact-gathering hearings; evaluate evidence presented; and issue a written final decision that is based on the evidence, policy, laws, and regulations relevant to the appeal.
B. De novo hearing. All hearings shall be considered "de novo," meaning that the department's hearing officer will consider all relevant evidence submitted during the appeal in order to make a determination on the issues on appeal, even if the evidence was not previously received by the agency. The hearing officer shall consider testimony and evidence that explains, supports, or is probative to the issues on appeal. In the de novo hearing, no deference is given to the agency or contractor who took the action.
C. Burden of proof. The burden of proof shall be assigned to the party that is attempting to make a change. If an individual is seeking initial Medicaid eligibility, the initial approval of Medicaid covered services, or eligibility for a higher level of coverage than has already been approved, the individual has the burden of proof. Conversely, when an already-eligible individual is facing a proposed termination or reduction in Medicaid eligibility or medical services, the burden of proof shall be assigned to the entity that has proposed the change to an individual's coverage. To prevail in the appeal, the party with the assigned burden of proof shall establish its position by a preponderance of the evidence.
D. Submission of evidence. The appellant's appeal request should include all documents the appellant would like considered during the appeal. The appellant can also submit additional documents leading up to and during the appeal hearing. The hearing officer has the discretion to reschedule or delay a hearing in order to allow the hearing officer and agency time to review documents submitted close to or at the scheduled hearing. Post-hearing supplementation of the record is addressed in 12VAC30-110-360. If the appeal request does not identify the action being appealed with reasonable specificity, include documentation to validate authorization for representation, if elected, or the department requests good cause for late filing of the appeal, then delay will be added to the appeal decision due date per 42 CFR 431.244.
E. Previously approved coverage. In an appeal involving a proposed termination or reduction of previously approved coverage, the existence of the prior approval shall create a presumption that the approval was proper when it was previously made if it was consecutive to the current request. The strength of this presumption is directly related to the number and duration of previous approvals. For the entity that has proposed the termination or reduction to satisfy its burden of proof, it must demonstrate that the individual's circumstances have changed or that the previous approval was made in error.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.10, eff. October 1, 1993; amended, Virginia Register Volume 40, Issue 22, eff. August 1, 2024.
12VAC30-110-230. Scheduling and rescheduling.
A. To the extent possible, hearings will be scheduled at the appellant's convenience, with consideration of the travel distance required.
B. A hearing shall be rescheduled at the claimant's request no more than twice unless compelling reasons exist.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.11, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.
12VAC30-110-240. (Repealed.)
Historical Notes
Derived from VR460-04-8.7 § 2.11.1, eff. October 1, 1993; repealed, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.
12VAC30-110-250. Notification.
When a hearing is scheduled, the appellant and his representative shall be notified in writing of its time and place.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.12, eff. October 1, 1993.
12VAC30-110-260. Postponement.
A hearing may be postponed for good cause shown. No postponement will be granted beyond 30 days after the date of the Request for Appeal was filed unless the appellant or his representative waives in writing the 90-day deadline for the final decision.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.13, eff. October 1, 1993.
12VAC30-110-270. Location.
The hearing location shall be determined by the division. If for medical reasons the appellant is unable to travel, the hearing may be conducted at his residence.
The agency may respond to a series of individual requests for hearings by conducting a single group hearing:
1. Only in cases in which the sole issue involved is one of federal or state law or policy; and
2. Each person must be permitted to present his own case or be represented by his authorized representative.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.14, eff. October 1, 1993.
12VAC30-110-280. Client access to records.
Upon the request of the appellant or his representative, at a reasonable time before the date of the hearing, as well as during the hearing, the appellant and his representative may examine the content of appellant's case file and all documents and records the agency will rely on at the hearing.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.15, eff. October 1, 1993.
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.
Statutory Authority
§ 32.1-325 f the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from Virginia Register Volume 31, Issue 16, eff. May 6, 2015.
12VAC30-110-290. Subpoenas.
Appellants who require the attendance of witnesses or the production of records, memoranda, papers, and other documents at the hearing may request issuance of a subpoena in writing. The request must be received by the division at least five business days before the hearing is scheduled. Such request must include the witness' name, home and work address, county or city of work and residence, and identify the sheriff's office which will serve the subpoena.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.16, eff. October 1, 1993.
12VAC30-110-300. Role of the hearing officer.
The hearing officer shall conduct the hearing, decide on questions of evidence, procedure and law, question witnesses, and assure that the hearing remains relevant to the issue or issues being appealed. The hearing officer shall control the conduct of the hearing and decide who may participate in or observe the hearing.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.17, eff. October 1, 1993; amended, Virginia Register Volume 10, Issue 23, eff. October 1, 1994.
12VAC30-110-310. Informality of hearings.
Hearings shall be conducted in an informal, nonadversarial manner. The appellant or his representative has the right to bring witnesses, establish all pertinent facts and circumstances; present an argument without undue interference, and question or refute the testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.18, eff. October 1, 1993.
12VAC30-110-320. Evidence.
The rules of evidence shall not strictly apply. All relevant, nonrepetitive evidence may be admitted, but the probative weight of the evidence will be evaluated by the hearing officer.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.19, eff. October 1, 1993.
12VAC30-110-330. Record of hearing.
All hearings shall be recorded either by court reporter, tape recorders, or whatever other means the agency deems appropriate. All exhibits accepted or rejected shall become part of the hearing record.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.20, eff. October 1, 1993.
12VAC30-110-340. Oath or affirmation.
All witnesses shall testify under oath which shall be administered by the court reporter or the hearing officer, as delegated by the department's director.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.21, eff. October 1, 1993.
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 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).
Statutory Authority
§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.
Historical Notes
Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.
12VAC30-110-360. Post-hearing supplementation of the record.
A. Medical assessment. Following a hearing, a hearing officer may order an independent medical assessment as described in 12VAC30-110-200.
B. Additional evidence. The hearing officer may leave the hearing record opened for a specified period of time in order to receive additional evidence or argument from the appellant. If the record indicates that evidence exists which was not presented by either party, with the appellant's permission, the hearing officer may attempt to secure such evidence.
C. Appellant's right to reconvene hearing or comment. If the hearing officer receives additional evidence from a person other than the appellant or his representative, the hearing officer shall send a copy of such evidence to the appellant and his representative and give the appellant the opportunity to comment on such evidence in writing or to reconvene the hearing to respond to such evidence.
D. Any additional evidence received will become a part of the hearing record, but the hearing officer must determine whether or not it will be used in making the decision.
Statutory Authority
§ 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.23, eff. October 1, 1993.
12VAC30-110-370. Final decision and transmission of the hearing record.
A. After conducting the hearing, reviewing the record, and deciding questions of law, the hearing officer shall issue a written final decision based upon the evidence and testimony presented. The hearing officer's final decision shall be considered as the agency's final administrative action pursuant to 42 CFR 431.244(f). The final decision shall include:
1. A description of the procedural development of the case;
2. Findings of fact that identify supporting evidence;
3. Conclusions of law that identify supporting regulations and law;
4. Conclusions and reasoning;
5. The specific action to be taken by the agency to implement the decision;
6. The deadline date by which further action must be taken; and
7. A cover letter stating that the hearing officer's decision is final, and stating that the final decision may be appealed directly to circuit court as provided in 12VAC30-110-40.
B. The hearing record shall be forwarded to the appellant and the appellant's authorized representative with the final decision.
Statutory Authority
§§ 32.1-324 and 32.1-325 of the Code of Virginia.
Historical Notes
Derived from VR460-04-8.7 § 2.24, eff. October 1, 1993; amended, Virginia Register Volume 10, Issue 23, eff. October 1, 1994; Volume 11, Issue 17, eff. June 15, 1995; Volume 22, Issue 26, eff. November 20, 2006; Volume 25, Issue 14, eff. April 15, 2009; Volume 40, Issue 22, eff. August 1, 2024.
12VAC30-110-380. (Repealed.)
Historical Notes
Derived from VR460-04-8.7 § 2.25, eff. October 1, 1993; repealed, Virginia Register Volume 25, Issue 14, eff. April 15, 2009.
12VAC30-110-390. (Repealed.)
Historical Notes
Derived from VR460-04-8.7 §§ 3.1 through 3.22 eff. October 1, 1993; repealed, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.