Article 2. Prehearing Review
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.
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.