Administrative Code

Virginia Administrative Code
10/24/2021

Chapter 20. Administration of Medical Assistance Services

Part I
Miscellaneous Provisions

12VAC30-20-10. Attorney General's certification.

I certify that The Department of Medical Assistance Services is the single state agency responsible for: administering the plan.

The legal authority under which the agency administers the plan on a Statewide basis is Title 32.1, Chapter 10 Section 32.1-325, Code of Virginia (1950) as amended.

Date: Feb 14, 1985

Signature: /s/Gerald L. Baliles, Attorney General

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-1.1100, eff. March 1, 1985.

12VAC30-20-20. (Repealed.)

Historical Notes

Derived from VR460-02-1.2100 through VR460-02-1.2400, eff. March 1, 1985; repealed, Virginia Register Volume 12, Issue 2, eff. November 15, 1995.

12VAC30-20-60. Definition of Medicaid state plan health maintenance organizations (HMOs).

A. Definitions. A Virginia Medicaid qualifying health maintenance organization (HMO) is defined as an entity which has a license to operate as a health maintenance organization issued by the Bureau of Insurance of the State Corporation Commission.

B. Incorporation by reference. The Bureau of Insurance of the State Corporation Commission, through Insurance Regulation No. 28, Rules Governing Health Maintenance Organizations, effective September 1, 1987, provides licensing only to health maintenance organizations meeting the requirements of 43 CFR 434.20(c). The Department of Medical Assistance Services hereby incorporates by reference Insurance Regulation No. 28.

C. Organization and description. Virginia Medicaid qualifying health maintenance organizations shall be primarily organized for the purpose of providing health care services. As provided for in Regulation 28, a health maintenance organization is an organization which undertakes to provide or arrange for one or more health care plans. A health care plan is any arrangement in which any health maintenance organization undertakes to provide, arrange for, pay for, or reimburse any part of the cost of any health care services.

D. Accessibility of services. Virginia Medicaid qualifying health maintenance organizations shall make the services they provide as accessible to Medicaid enrollees as those services are available to non-enrolled Medicaid recipients within the area served by the Virginia Medicaid qualifying health maintenance organization. As provided for in Regulation 28, all Virginia Medicaid qualifying health maintenance organizations must establish and maintain arrangements satisfactory to the Medicaid Agency to assure both availability and accessibility of personnel and facilities providing health care services including:

1. Reasonable hours of operation and after-hours emergency health care,

2. Reasonable proximity to enrollees within the service area, so as not to result in unreasonable barriers to accessibility,

3. Sufficient personnel, including health professionals, administrators, and support staff, to reasonably assure that all services contracted for will be accessible to enrollees on an appropriate basis without delays detrimental to the health of the enrollee, and

4. Adequate arrangements to provide inpatient hospital services for basic health care.

E. Financial requirements. Regulation 28 provides controls limiting the risk of insolvency of Virginia Medicaid qualifying health maintenance organizations, and assuring that Medicaid enrollees will not be liable for any Virginia Medicaid qualifying health maintenance organization's debts should it become insolvent. Specifically, Regulation 28 sets forth the requirements for a Virginia Medicaid qualifying health maintenance organization's minimum net worth, deposits with the State Treasurer, mandated liability insurance, enrollee hold harmless provisions in subcontracts, and accounting and reporting responsibilities.

F. The Medicaid Agency shall, through the terms and conditions of risk contracts with Virginia Medicaid qualifying health maintenance organizations, make provisions for meeting the additional requirements provided for in 42 CFR 434.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-2.1100, eff. July 1, 1995.

12VAC30-20-70. (Repealed.)

Historical Notes

Derived from VR460-02-2.8100, eff. December 18, 1991; repealed, Virginia Register Volume 11, Issue 24, eff. September 21, 1995.

12VAC30-20-80. Coordination of Title XIX with Part A and Part B of Title XVIII.

The following method is used to provide benefits under Part A and Part B of Title XVIII to the groups of Medicare-eligible individuals indicated:

A. Part B buy-in agreements with the Secretary of HHS. This agreement covers:

1. All individuals eligible under the state's approved Title XIX plan except qualified disabled working individuals.

2. Qualified Medicare beneficiaries provided by § 301 of P.L. 100-360 as amended by § 8434 of P.L. 100-647.

3. Specified low-income Medicare beneficiary (SLMB) provided by § 1905(p) of the Act.

4. Qualifying Individuals-1: The Medicaid agency pays Medicare Part B premiums under the State buy-in process for individuals described in § 1902(a)(10)(E)(iv)(I) and subject to § 1933 of the Act.

B. Part A group premium payment arrangement entered into with the Social Security Administration. This arrangement covers the following groups: Qualified Disabled & Working Individuals provided by § 6408 of OBRA 1989 and Qualified Medicare beneficiaries provided by § 301 of P.L. 100-360 as amended by § 8434 of P.L. 100-647.

C. Payment of Part A and Part B deductible and coinsurance cost. Such payments are made in behalf of the following groups:

1. All individuals eligible for Title XVIII covered services.

2. Qualified Medicare beneficiaries provided by § 301 of P.L. 100-360 as amended by § 8434 of P.L. 100-647.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-3.2100, eff. January 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 19, Issue 18, eff. July 1, 2003.

12VAC30-20-90. Confidentiality and disclosure of information concerning Medicaid applicants and recipients.

A. Definitions. The following words and terms when used in these regulations shall have the following meanings, unless the context clearly indicates otherwise:

"Agency" or "the Medicaid agency" means the Department of Medical Assistance Services or its designee.

"Client" means an applicant for, or recipient of, Medicaid benefits.

"Client information" or "client record" means any information, including information stored in computer data banks or computer files relating to a recipient or applicant, which was received in connection with the performance of any function of the agency and which either identifies a client or describes a client such that the client could be specifically identified.

"Provider" means any individual or organization that delivers a medical service to a recipient of, or applicant for, Medicaid benefits.

"The Plan" means the State Plan for Medical Assistance.

B. Purpose. Section 1902(a)(7) of the Social Security Act and 42 CFR 431.300 et seq. require a State Plan for Medical Assistance to provide safeguards to restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of the Plan. The rules herein are established to protect the rights of clients to confidentiality of their Medicaid information. Section 32.1-325.3 of the Code of Virginia requires the Board of Medical Assistance Services to promulgate regulations consistent with the foregoing.

C. Release of client information. Except as otherwise provided in these rules, no person shall obtain, disclose or use, or authorize, permit or acquiesce the use of any client information that is directly or indirectly derived from the records, files, or communications of the agency, except for purposes directly connected with the administration of the Plan or as otherwise provided by federal and state law. The agency can conduct all of the above administrative activities itself or it can contract some or all of them to other state agencies or private companies. These other entities must maintain client information confidential in accordance with the terms of these regulations. Purposes directly related to the administration of the Plan include; but are not limited to:

1. Establishing eligibility;

2. Determining the amount of medical assistance;

3. Providing services for recipients; and

4. Conducting or assisting in an investigation, prosecution or a civil or criminal proceeding related to the administration of the Plan.

D. Safeguarding client information. All information associated with an applicant or recipient that could disclose the individual's identity is confidential and shall be safeguarded. Such information shall include, but is not limited to:

1. Name, address and all types of identification numbers assigned to the client;

2. Medical services provided to the client;

3. Social and economic conditions or circumstances of the client;

4. Agency evaluation of the client's personal information;

5. Medical data about the client, including diagnoses and past histories of disease or disabilities;

6. Information received for verifying income, eligibility, and amount of medical assistance payments; and

7. Information received in connection with identification of legally liable third party resources, and information received in connection with processing and rendering decisions of recipient appeals.

E. Ownership of records.

1. All client information contained in the agency records is the property of the agency, and employees of the agency shall protect and preserve such information from dissemination except as provided herein.

2. Original client records are not to be removed from the premises by individuals other than authorized staff of the agency, except by a court order. The agency may destroy records pursuant to records retention schedules consistent with state and federal regulations.

F. Disclosure of client information.

1. Conditions for releasing information. Access to information concerning applicants or recipients must be restricted to persons or agency representatives who are subject to the standards of confidentiality that are consistent with that of the agency.

a. Consent. As part of the application process for Medicaid, the client shall be informed of the need to consent to the release of information necessary for verifying eligibility. Whenever a person, agency or organization that is not performing one or more of the functions delineated in subsection C of this section requests client information, the Medicaid agency must obtain written permission to disseminate the information from the client or the person legally responsible for the client whenever possible. A release for information obtained from the client by the requesting agency also satisfies this requirement.

b. Client information may be released without the client's written permission under the following conditions:

(1) An emergency exists and prior attempts to contact the client or legally responsible persons for permission have been unsuccessful;

(2) A court of competent jurisdiction has ordered the production of information and the agency does not have sufficient time to notify the client or legally responsible person before responding to the order;

(3) The release of such client information is necessary to prevent loss of, or risk to, life or health of the client;

(4) In the case of third party liability, as explained in subdivision G 2 of this section; or

(5) Release is not otherwise prohibited by law or regulation.

c. Notification. If one of the conditions above is met and consent is not obtained before the release of the information, the agency must provide written notification to the client or legally responsible person within five work days after disclosure.

d. Consent process. The consent for release of information shall contain the following:

(1) The name of the agency or entity supplying the information and the name of the requesting party;

(2) A description of the information to be released;

(3) A statement that the consent is limited to the purpose designated;

(4) The length of time the consent is valid; and

(5) The consent must be signed and dated by the client. The client may add other information which may include, but is not limited to, a statement specifying the date, event or condition upon which the consent expires.

G. Information exchanges.

1. Governmental agencies.

a. Confidential information can be released to other governmental agencies without the consent of the client for purposes of complying with state or federal statutes or regulations pursuant to written data exchange agreements. Such agreements will (i) specify the information to be exchanged; (ii) the titles of all agency officials with the authority to request income and eligibility information; (iii) the methods, including the formats to be used, and the timing for requesting and providing the information; (iv) the safeguards limiting the use and disclosure of the information as required by federal or state law or regulations; (v) the method, if any, the agency will use to reimburse reasonable costs of furnishing the information; and (vi) in the case of an agreement between a SWICA or a UC agency and the Medicaid agency, that the Medicaid agency will obtain information on applicants at least twice monthly. Such information exchanged by governmental agencies is made available only to the extent necessary to assist in the valid administrative needs of the governmental agency receiving the information and adequate safeguards shall be maintained to protect the information from further disclosure. Information received under § 6103(1) of the Internal Revenue Code of 1954 is exchanged only with agencies or delegated entities authorized to receive such information.

b. Medical assistance information contained in the records of the local departments of social services may be disclosed for purposes directly connected with the Medicaid program to providers of services enrolled in the Medical Assistance Program for the purpose of verifying a client's status as a Medicaid recipient.

2. Information exchanged in third party liability cases. Client information may be disclosed without consent in the recovery of monies for which third parties are liable for payment of claims. All such third parties shall be notified of the rules for safeguarding client information. The notification shall incorporate a written statement which advises third parties of the Medicaid program's client confidentiality regulations, specifies that clients' names, addresses and medical services data are confidential, must only be used in the administration of the Medicaid program and must not be released to any other person or entity in a manner inconsistent with the governing regulations. The notice shall further include the following statement. "Any willful violation of the governing regulations constitutes a Class 1 misdemeanor and may be punishable accordingly."

H. Client's right of access to information.

1. Client's right to access. Any client has the right to obtain personal information held by the agency or its representative. Upon written or verbal request, the client shall be permitted to review or obtain a copy of the information in his record with the following exceptions:

a. Information that the agency is required to keep confidential from the client pursuant to subdivision 1 of § 2.2-3705.5 of the Code of Virginia, or any other applicable law; or;

b. Information that would breach another individual's right to confidentiality.

2. Process for disclosure. Consistent with the Virginia Freedom of Information Act, § 2.2-3704, Code of Virginia, the agency shall provide access within five work days after the receipt of the request. The agency shall make disclosures to applicants and recipients during normal business hours. Copies of the requested documents shall be provided to the client or a representative at reasonable standard charges for document search and duplication.

3. Types of information available for client access. The client shall be permitted to be accompanied by a person or persons of the client's choice and may grant permission verbally or in writing to the agency to discuss the client's file in such person's presence. Upon request and proper identification of any client or agent of the client, the agency shall grant to the client or agent the right to review the following:

a. All personal information about the client except as provided in subdivision 1 of § 2.2-3705.5 of the Code of Virginia; and

b. The identity of all individuals and organizations not having regular access authority that request access to the client's personal information.

4. Contested information. Pursuant to § 2.2-3806 of the Government Data Collection and Dissemination Practices Act, a client may contest the accuracy, completeness or relevancy of the information in his record. Correction of the contested information, but not the deletion of the original information if it is required to support receipt of state or federal financial participation, shall be inserted in the record when the agency concurs that such correction is justified. When the agency does not concur, the client shall be allowed to enter a statement in the record refuting such information. Corrections and statements shall be made a permanent part of the record and shall be disclosed to any person or entity that receives the disputed information.

I. Distribution of information to applicants and recipients. All materials distributed to applicants, recipients, or medical providers must directly relate to the administration of the Medicaid program and have no political implications. The agency must not distribute materials such as holiday greetings, general public announcements, voting information, or alien registration notices. The agency may distribute materials directly related to the health and welfare of applicants and recipients, such as announcements of free medical examinations, availability of surplus food and consumer protection information.

J. Publicizing safeguarding requirements. The agency shall inform clients in writing as follows:

Personal information regarding applicants for or recipients of Medicaid must be maintained confidential pursuant to state and federal law. Consistent with §§ 32.1-325.4 and 18.2-11 of the Code of Virginia, any violation of state regulations governing applicant or recipient confidentiality is punishable by up to 12 months in jail and a $2,500 fine.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-4.3100, eff. February 26, 1992; amended, Virginia Register Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-20-100. Standards governing general and special hospitals and convalescent and nursing homes.

The Code of Virginia, Title 32, authorizes the State Board of Health to adopt and promulgate reasonable rules and regulations as to standards of health to be maintained and such other matters as will promote the safety and insure proper attention and service to and care of patients and inmates of private or public hospitals and institutions.

Rules and Regulations Governing General and Special Hospitals and Convalescent and Nursing Homes in Virginia are published by the Virginia Department of Health under the above legal authority. Only facilities which meet the standards and requirements of these Rules and Regulations are licensed for operation within the Commonwealth of Virginia. Compliance is evaluated from scheduled and non-scheduled personal visits to each facility by a highly qualified specially designated staff element (Bureau of Medical and Nursing Facilities) Division of Licensure Certification of the Department of Health. Rules and Regulations are available for review upon request.

Intermediate care facilities in mental institutions are licensed by the State Department of Mental Health and Mental Retardation as a condition for certification as an ICF facility by the Department of Health's Bureau of Medical and Nursing Facilities.

Mental Hospitals and Institutions for Mentally Retarded, which render hospital or skilled nursing home services, are licensed by the State Department of Mental Health and Mental Retardation and are certified for the Title XVIII Program by the Department of Health's Bureau of Medical and Nursing Facilities.

Descriptions of standards utilized for licensing and certifying these institutions, published in official, bound form are available for review upon request.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.1110, eff. December 20, 1973.

12VAC30-20-110. Nursing facility resident drug utilization review.

1. Definitions. The following words and terms, when used in this regulation, shall have the following meanings unless the context clearly indicates otherwise:

"DMAS" means the Department of Medical Assistance Services consistent with the Code of Virginia, Chapter 10, Title 32.1, §§ 32.1-323 et seq.

"Drug utilization review" means a formal continuing program for assessing medical and/or drug use data against explicit standards and, as necessary, introducing remedial strategies.

"Drug Utilization Review Committee (DUR Committee)" means a committee composed of knowledgeable health care professionals who make recommendations for developing and modifying drug therapy review standards or criteria, participate in retrospective reviews, recommend remedial strategies, and evaluate the success of the interventions.

"Exceptional drug utilization pattern" means 1) a pattern of drug utilization within a nursing facility that differs substantially from predetermined standards established pursuant to § 3(B); 2) individual resident's drug use patterns that differ from the established standards; or 3) individual resident's drug use patterns that exhibit a high risk for drug therapy induced illness.

"Retrospective drug review" means the drug utilization review process that is conducted using historic or archived medical and/or drug use data.

"Targeted facility" means a nursing facility where residents' patterns of drug utilization demonstrate an exceptional drug utilization pattern as defined herein.

2. Scope

A. Medicaid shall conduct a drug utilization review program for covered drugs prescribed for nursing facility residents. The program shall help to ensure that prescriptions are appropriate, medically necessary, and are not likely to cause adverse actions. The primary objectives are 1) improvement in the quality of care; 2) conserving program funds and individual expenditures; and 3) maintaining program integrity (i.e., controlling problems of fraud and benefit abuse).

B. Retrospective drug utilization review will be conducted on an ongoing basis in targeted nursing facilities demonstrating exceptional drug utilization patterns.

C. With the aim of improving prescribing practices, the program shall provide for ongoing educational outreach programs to educate practitioners on common drug therapy problems.

3. Utilization Review Process

A. The program shall provide, through its drug claims processing and information retrieval systems, for the ongoing periodic examination of claims data and other records for targeted facilities to identify patterns of inappropriate or medically unnecessary care for individuals receiving benefits under Title XIX of the Social Security Act.

B. The program shall, on an ongoing basis, assess data on drug use against predetermined standards (as described in this section) including, but not limited to, monitoring for therapeutic appropriateness, overutilization and underutilization, appropriate use of generic products, therapeutic duplication, drug-disease contraindications, drug/drug interactions, incorrect drug dosage or duration of treatment, clinical abuse/misuse, fraud, and, as necessary, introduce to physicians and pharmacists remedial strategies in order to improve the quality of care.

C. The Department of Medical Assistance Services may assess data on drug use against such standards as the American Hospital Formulary Service Drug Information (1995, as amended), United States Pharmacopeia-Drug Information (1995, as amended), American Medical Association Drug Evaluations (1993, as amended), and peer-reviewed medical literature.

4. Drug Use Review Committee

A. DMAS shall provide for the establishment of a drug use review committee (hereinafter referred to as the "DUR Committee"). The Director of DMAS shall determine the number of members and appoint the members of the DUR committee.

B. The membership of the DUR Committee shall include health care professionals who have recognized knowledge and expertise in one or more of the following areas:

1. The clinically appropriate prescribing of covered drugs;

2. The clinically appropriate dispensing and monitoring of covered drugs;

3. Drug use review, evaluation, and intervention; and

4. Medical quality assurance;

5. Clinical practice and drug therapy in the long term care setting.

C. The membership of the DUR Committee shall include physicians, pharmacists, and other health care professionals, including those with recognized expertise and knowledge in long term care.

D. Activities of the DUR Committee shall include, but not be limited to, the following:

1. Retrospective drug utilization review as defined in § 2 (B) of this regulation;

2. Application of standards as defined in § 3 (C) of this regulation; and

3. Ongoing interventions for physicians and pharmacists, targeted toward therapy problems of individuals identified in the course of retrospective drug use reviews.

E. The DUR Committee shall re-evaluate interventions after an appropriate period of time to determine if the intervention improved the quality of drug therapy, to evaluate the success of the interventions and recommend modifications as necessary.

5. Medical Quality Assurance

A. Documentation of drug regimens in nursing facilities shall, at a minimum:

1. Be included in a plan of care that must be established and periodically reviewed by a physician;

2. Indicate all drugs administered to the resident in accordance with the plan with specific attention to frequency, quantity, and type and identify who administered the drug (include full name and title); and

3. Include the drug regimen review prescribed for nursing facilities in regulations implementing 42 CFR 483.6.

B. Documentation specified in paragraph A will serve as the basis for drug utilization reviews provided for in these regulations.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.1470, eff. October 1, 1991.

12VAC30-20-120. Cooperative arrangements with the state vocational rehabilitation agency and with Title V programs and grantees.

As the Single State Agency, the Department of Medical Assistance Services promulgated agreements with the following State agencies/activities concerning services rendered to Medical Assistance program eligible recipients.

1. Agreement with the Department of Social Services concerning responsibilities of that Department for (a) determination of eligibility, (b) provision of social services, (c) activity associated with fair hearings, (d) fraud, (e) quality control, (f) non-discrimination, (g) staffing, (h) staff development and recruiting, (i) maintenance of records, (j) review of local operations and (k) exchange of information (6-29-89, as amended).

2. Agreement with the Department of Vocational Rehabilitation concerning responsibilities of that Department for providing rehabilitation services necessary to render disabled individuals to attain a state of health which will permit them to engage in gainful employment and for providing liaison personnel to assist the State Agency in screening referrals for rehabilitation services (4-30-93, as amended).

3. Agreements with Department of Health programs for Maternal, Child Health, Family Planning and Crippled Children and for grantee project activities operated under these programs concerning provision of medical and social services to eligible recipients and reimbursements to be made for rendering covered services (3-12-93, as amended).

4. Agreements with Special Projects operating in this State under Federal grant funding procedures and which provide medical or dental services covered by the Medical Assistance Program concerning types and limits of services and reimbursement for services rendered.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.1610, eff. July 1, 1985.

Part II
Liens/Estate Recoveries

12VAC30-20-130. Lien recoveries.

The Commonwealth does not recover, through the imposition of liens, funds expended for recipients.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR 460-02-4.1710, eff. October 18, 1995.

12VAC30-20-140. (Repealed.)

Historical Notes

Derived from VR 460-02-4.1730 § 1 through 4; Virginia Register Volume 11, Issue 26, eff. October 18, 1995; amended, Virginia Register Volume 23, Issue 14, eff. September 1, 2007; repealed, Virginia Register Volume 25, Issue 21, eff. July 23, 2009.

12VAC30-20-141. Estate recoveries.

A. Definitions. The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Social Security Act (42 USC § 1396) as applicable.

"Applicable medical assistance payment" means the amount of any medical assistance payments made on behalf of an individual under Title XIX of the Social Security Act.

"Claim" means, for the purposes of this section, action taken by DMAS to recover from the estate of an individual, who was age 55 or older when that person received medical assistance, the total amount of assistance paid for services consistent with the coverage and reimbursement policies in the State Plan for Medical Assistance.

"Cost effective" means that both the dollar amount of the medical assistance payments (claim) and the value of the estate at least exceed the administrative costs of recovery.

"Dual eligibles" mean individuals who are entitled to Medicare hospital insurance under Part A or supplementary medical insurance under Part B, or both, and are eligible for some form of Medicaid benefit.

"Estate" means, with respect to a deceased individual, (i) all real and personal property and other assets held by the individual at the time of death and (ii) any other real and personal property and other assets in which the individual had any legal title or interest (to the extent of such interest) at the time of his death.

"Homestead of modest value" means a home that is worth 50% or less of the average or median price, as contained in the most recent U.S. Census data or any other such source of home value information as published in the agency's guidance documents, of homes in the county or city, as appropriate, where the homestead is located as of the date of the individual's death.

"Undue hardship" means that DMAS has determined that enforcement of a claim to recover Medicaid benefits would result in substantial hardship to the devisees, legatees, and heirs or dependents of the deceased individual against whose estate the Medicaid claim exists.

B. Under the authority and consistent with the requirements of the Social Security Act § 1917 (the Act), the Commonwealth shall recover applicable medical assistance payments when such payments have been correctly or incorrectly paid on behalf of certain individuals. The Department of Medical Assistance Services (DMAS) shall provide notice of the Commonwealth's Medicaid estate recovery program at the time of application for medical assistance.

C. Adjustment and recovery. Adjustment or recovery can only be made after the death of the individual's surviving spouse, if any, and only at a time when the individual has no surviving child under age 21, or a blind or disabled child as defined in § 1614 of the Act. The Commonwealth shall seek adjustment or recovery of all medical assistance payments correctly paid on behalf of an individual who is age 55 or older under the State Plan as follows:

1. The Commonwealth shall seek adjustment or recovery from the estate of an individual who was age 55 or older when that person received medical assistance. Except as noted in subdivision 2 of this subsection, the Commonwealth shall recover amounts up to the total amount spent on the individual's behalf for medical assistance for items or services provided for the individual under the State Plan.

2. Dual eligible protection from recovery.

a. The Commonwealth shall recover from the estates of the following dual eligible individuals who are 55 years of age or older, who receive full Medicaid benefits in addition to Medicare: (i) qualified Medicare beneficiaries with full Medicaid benefits (QMB Plus), (ii) specified low-income Medicare beneficiaries with full Medicaid benefits (SLMB Plus), and (iii) Medicare beneficiaries eligible for a limited package of Medicaid benefits QMB, SLMB, qualified individuals (QI) or qualified disabled and working individuals (QDWI)). The Commonwealth shall recover from these individuals' estates medical assistance payments made on behalf of these individuals with the exception of Medicare cost-sharing benefits or for benefits described in § 1902(a)(10)(E). This exception shall apply to Medicare cost-sharing benefits (i.e., Part A and B premiums, deductibles, coinsurance, and copayments) with dates of service on or after January 1, 2010. The date of service for deductibles, coinsurance, and copayments shall be the date the request for payment is received by DMAS. The date of service for premiums shall be the date the Medicaid agency paid the premium.

b. The protection from estate recovery against Medicare cost-sharing benefits (premiums, deductibles, coinsurance, and copayments) set forth in subdivision 2 a of this section that is made for the applicable categories of protected dual eligible individuals described in that subdivision shall apply to approved mandatory and optional services set out in the State Plan for which Medicare cost sharing applies.

3. The Commonwealth shall recover from individuals with long-term care insurance policies. However, the Commonwealth shall not seek adjustment or recovery from the individual's estate for all Medicaid costs for nursing facility and other long-term care services if assets or resources are disregarded to the extent of payments made under a qualified long-term care partnership insurance policy.

4. Estate recovery and managed care. When a Medicaid beneficiary is enrolled in a managed care organization and services are provided by the managed care organization that are included under the State Plan, the Commonwealth shall seek adjustment or recovery from the individual's estate for the capitation payments in the Commonwealth's claim against the estate. When the individual enrolls in the managed care organization, the Commonwealth shall provide a separate notice to the individual that explains that the capitation payments made to the managed care organization are included in whole in the claim against the estate. The Commonwealth shall recover from the individual's estate the total capitation rate for the period the individual was enrolled in the managed care organization.

5. The following American Indian/Alaska Native (AI/AN) income, resources, and property shall be exempt from Medicaid estate recovery pursuant to § 1917(b)(3) of the Act for hardship applicable to federally recognized tribes:

a. Certain AI/AN income and resources (such as interests in and income derived from tribal land and other resources currently held in trust status and judgment funds from the Indian Claims Commission and the U.S. Claims Court) that are exempt from Medicaid estate recovery by other laws and regulations;

b. Ownership interest in trust or nontrust property, including real property and improvements:

(1) Located on a reservation (any federally recognized Indian tribe's reservation or near a reservation) as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior; or

(2) For any federally recognized tribe not described in this subdivision, located within the most recent boundaries of a prior federal reservation.

(3) Protection of nontrust property described in this subdivision is limited to circumstances when it passes from an Indian (as defined in § 4 of the Indian Health Care Improvement Act, 25 USC §§ 1601-1683) to one or more relatives (by blood, adoption, or marriage), including Indians not enrolled as members of a tribe and non-Indians, such as spouses and step-children, that their culture would nevertheless protect as family members; to a tribe or tribal organization or to one or more Indians, or all of these;

c. Income left as a remainder in an estate derived from property protected in this subdivision, that was either collected by an Indian, or by a tribe or tribal organization and distributed to an Indian or Indians, as long as the individual can clearly trace such income as coming from the protected property.

d. Ownership interests left as a remainder in an estate in rents, leases, royalties, or usage rights related to natural resources (including, but not necessarily limited to, extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of federally protected rights, and income either collected by an Indian, or by a tribe or tribal organization and distributed to an Indian or Indians derived from these sources as long as the individual can clearly trace the interest as coming from protected sources.

e. Ownership interests in or usage rights to items not covered by this subdivision that have unique religious, spiritual, traditional, or cultural significance or rights, or all of these, that support subsistence or a traditional lifestyle according to applicable tribal law or custom.

6. The Commonwealth shall recover the following income, resources and property from the estates of American Indians and Alaska Natives:

a. Ownership interests in assets and property, both real and personal, that are not described in this subdivision.

b. Any income and assets left as a remainder in an estate that do not derive from protected property or sources in this subdivision.

7. Reparation payments to individuals. Government reparation payments to special populations shall be exempt from Medicaid estate recovery.

8. Annuities. The Commonwealth considers annuities to be legal devices by which ownership of assets, such as estates, is defined and therefore may seek recovery from individuals' estates that may include such annuities.

D. Undue hardship. Whenever estate recovery would work an undue hardship on the deceased individual's heirs, the Commonwealth shall waive adjustment or recovery. Recovery from deceased individuals' estates shall be waived when the heirs are themselves Medicaid eligible. Anyone who may be affected by Medicaid estate recovery may apply for an undue hardship waiver. DMAS shall determine the merit of such applications.

1. Special consideration shall be shown in cases in which the estate subject to recovery is: (i) the sole income-producing asset of survivors (where such income is limited), such as a family farm or other family business; (ii) a homestead of modest value; or (iii) one in which other compelling circumstances exist as may be set out in agency guidance documents.

2. An undue hardship exists when the Commonwealth determines that it would not be cost effective to recover the assistance paid.

3. In cases where recovery is not waived and heirs of the estate from which recovery is sought wish to satisfy the Commonwealth's claim without selling a nonliquid asset that is subject to recovery, alternative methods of recovery may be considered. DMAS may also establish a reasonable payment schedule.

4. The Commonwealth may limit the hardship waiver to the time period during which the undue hardship circumstances existed or continue to exist.

5. An undue hardship shall not exist if the beneficiary created the hardship by resorting to estate planning methods under which the beneficiary divested assets in order to avoid estate recovery.

E. DMAS shall establish collection procedures to include identification of the estate administrator or executor, determination of the medical assistance claim amount, notification procedures, and such other procedures as are appropriate to pursue the recovery of medical assistance expenditures. Such procedures will be set out in an agency guidance document.

F. Recovery or adjustment not cost effective. DMAS shall establish a cost effectiveness threshold below which estate recovery will not be pursued.

1. The Commonwealth may waive adjustment or recovery in cases in which it is determined that it would not be cost effective for the Commonwealth to recover from a deceased individual's estate. The estate administrator, executor, survivor, or heir does not need to assert undue hardship in such situations.

2. In determining whether recovery would be cost effective, the department may consider, but is not limited to consideration of, the following costs: staff time, litigation costs, expert witness fees, deposition expenses, travel expenses, office supplies, postage, advertising, and publishing costs. DMAS shall adjust the cost effective threshold as the agency's administrative costs change.

G. Appeals. The DMAS Appeals Division will administer appeals related to the recovery of funds pursuant to 12VAC30-110.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from Virginia Register Volume 25, Issue 21, eff. July 23, 2009; amended, Volume 29, Issue 7, eff. January 2, 2013.

Part III
Recipient Cost Sharing

12VAC30-20-150. Copayments and deductibles for categorically needy and QMBs for services other than under 42 CFR 447.53.

A. The following charges are imposed on the categorically needy and Qualified Medicare Beneficiaries for services other than those provided under 42 CFR 447.53.

Service*

Type Charge

Amount and Basis for Determination

Deduct

Coins

Copay

Inpatient Hospital

-0-

‑0‑

$75

State's average daily payment of $594 is used as basis.

Outpatient Hospital Clinic

‑0‑

‑0‑

$3.00

State's average payment of $136 is used as basis.

Clinic Visit

‑0‑

‑0‑

$1.00

State's average payment of $29 is used as basis.

Physician Office Visit

‑0‑

‑0‑

$1.00

State's average payment of $23 is used as basis.

Eye Examination

‑0‑

‑0‑

$1.00

State's payment of $30 is used as basis.

Prescriptions:

--Generic

‑0‑

‑0‑

$1.00

State's average per generic script of $25 is used as payment basis.

--Brand Name

‑0‑

‑0‑

$3.00

State's average per brand-name script of $97 is used as payment basis.

Home Health Visit

‑0‑

‑0‑

$3.00

State's average payment of $56 is used as basis.

Other Physician Services

‑0‑

‑0‑

$3.00

State's average payment of $56 is used as basis.

Rehab Therapy Services (PT, OT, Sp/Lang.)

‑0‑

‑0‑

$3.00

State's average payment $78 is used as basis.

*NOTE: The applicability of copays to emergency services is discussed further in this section.

B. The method used to collect cost sharing charges for categorically needy individuals requires that providers be responsible for collecting the cost sharing charges from individuals.

C. The basis for determining whether an individual is unable to pay the charge, and the means by which such an individual is identified to providers, is described in this subsection:

Providers will, based on information available to them, make a determination of the recipient's ability to pay the copayment. In the absence of knowledge or indications to the contrary, providers may accept the recipient's assertion that he or she is unable to pay the required copayment.

Recipients have been notified that inability to meet a copayment at a particular time does not relieve them of that responsibility.

D. The procedures for implementing and enforcing the exclusions from cost sharing contained in 42 CFR 447.53(b) are described in this subsection:

The application and exclusion of cost sharing is administered through the program's Medicaid Management Information System. Documentation of the certified computer system delineates, for each type of provider invoice used, protected eligible groups, protected services and applicable eligible groups and services.

Providers have been informed about: copay exclusions; applicable services and amounts; prohibition of service denial if recipient is unable to meet cost-sharing changes.

E. State policy does not provide for cumulative maximums on charges.

F. Emergency Services. No recipient copayment shall be collected for the following services:

1. Services provided in a hospital, clinic, office, or other facility that is equipped to furnish the required care, after the sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that the absence of immediate medical attention could reasonably be expected to result in:

a. Placing the patient's health in serious jeopardy;

b. Serious impairment to bodily functions; or

c. Serious dysfunction of any bodily organ or part; and

2. All services delivered in emergency rooms.

Statutory Authority

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

Historical Notes

Derived from VR460-02-4.1810, eff. July 1, 1993; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 34, Issue 25, eff. September 5, 2018.

12VAC30-20-160. Copayments and deductibles for medically needy and QMBs for services other than under 42 CFR 447.53.

A. The following charges are imposed on the medically needy and Qualified Medicare Beneficiaries for services other than those provided under 42 CFR 447.53.

Service*

Type Charge

Amount and Basis for Determination

Deduct

Coins

Copay

Inpatient Hospital

-0-

‑0‑

$75

State's average daily payment of $594 is used as basis.

Outpatient Hospital Clinic

‑0‑

‑0‑

$3.00

State's average payment of $136 is used as basis.

Clinic Visit

‑0‑

‑0‑

$1.00

State's average payment of $29 is used as basis.

Physician Office Visit

‑0‑

‑0‑

$1.00

State's average payment of $23 is used as basis.

Eye Examination

‑0‑

‑0‑

$1.00

State's payment of $30 is used as basis.

Prescriptions:

--Generic

‑0‑

‑0‑

$1.00

State's average per generic script of $25 is used as payment basis.

--Brand Name

‑0‑

‑0‑

$3.00

State's average per brand-name script of $97 is used as payment basis.

Home Health Visit

‑0‑

‑0‑

$3.00

State's average payment of $56 is used as basis.

Other Physician Services

‑0‑

‑0‑

$3.00

State's average payment of $56 is used as basis.

Rehab Therapy Services (PT, OT, Sp/Lang.)

‑0‑

‑0‑

$3.00

State's average payment $78 is used as basis.

*NOTE: The applicability of copays to emergency services is discussed further in this section.

B. The method used to collect cost sharing charges for medically needy individuals requires that providers be responsible for collecting the cost sharing charges from individuals.

C. The basis for determining whether an individual is unable to pay the charge, and the means by which such an individual is identified to providers, is described in this subsection:

Providers will, based on information available to them, make a determination of the recipient's ability to pay the copayment. In the absence of knowledge or indications to the contrary, providers may accept the recipient's assertion that he or she is unable to pay the required copayment.

Recipients have been notified that inability to meet a copayment at a particular time does not relieve them of that responsibility.

D. The procedures for implementing and enforcing the exclusions from cost sharing contained in 42 CFR 447.53(b) are described in this subsection:

The application and exclusion of cost sharing is administered through the program's Medicaid Management Information System. Documentation of the certified computer system delineates, for each type of provider invoice used, protected eligible groups, protected services and applicable eligible groups and services.

Providers have been informed about: copay exclusions; applicable services and amounts; and prohibition of service denial if recipient is unable to meet cost-sharing changes.

E. State policy does not provide for cumulative maximums.

F. Emergency Services. No recipient copayment shall be collected for the following services:

1. Services provided in a hospital, clinic, office, or other facility that is equipped to furnish the required care, after the sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that the absence of immediate medical attention could reasonably be expected to result in:

a. Placing the patient's health in serious jeopardy;

b. Serious impairment to bodily functions; or

c. Serious dysfunction of any bodily organ or part; and

2. All services delivered in emergency rooms.

Statutory Authority

§32.1-324 and 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-02-4.1830, eff. July 1, 1993; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 34, Issue 25, eff. September 5, 2018.

12VAC30-20-170. Basis of payment for reserving beds during a recipient's absence from an inpatient facility.

1. Payment is made for reserving beds in long-term care facilities for recipients during their temporary absence for the following purpose: For leaves of absence up to 18 days per year for any reason other than inpatient hospital admissions.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.1930, eff. March 1, 1992.

12VAC30-20-180. Definition of a claim by service.

A. Claims.

SERVICE

CLAIM

A) Inpatient Hospital

A Bill for Service

B) Outpatient Hospital

A Bill for Service

C) Rural Health Clinic

A Line Item for Service

D) Laboratory and X-Ray

A Line Item of Service

E) Skilled Nursing

A Bill for Service

F) EPSDT

A Bill for Service

G) Family Planning

A Bill for Service or Line Item depending on provider type

H) Physician

A Line Item of Service

I) Other Medical

A Bill for Service or Line Item depending on provider type

J) Home Health

A Bill for Service

K) Clinic

A Line Item for Service

L) Dental

A Line Item of Service

M) Pharmacy

A Line Item of Service

N) Intermediate Care

A Bill for Service

O) Transportation

A Line Item of Service

P) Physical Therapy

A Bill for Service or Line Item depending on provider type

Q) Nurse Midwife

A Line Item of Service

R) Eyeglasses

A Line Item of Service

B. All providers that enroll with Medicaid on or after October 1, 2011, shall submit electronically all claims for covered services they render in the fee-for-service program under the State Plans for Title XIX and XXI of the Social Security Act, and any waivers thereof, and enroll to receive electronic funds transfer (EFT) for payment of those services. All other providers shall comply with this electronic submission requirement by July 1, 2012.

1. Any provider who cannot comply with this electronic claims submission or EFT requirement may request an exception from DMAS for good cause shown.

2. Good cause may include, but is not limited to, (i) the unavailability of the infrastructure necessary to support electronic claims submission in the provider's geographic region; (ii) the absence of a mechanism for electronic submission for the particular claim type, such as in the case of a temporary detention order; (iii) the provider's inability to transact business through a banking institution capable of EFT; or (iv) financial hardship.

Statutory Authority

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

Historical Notes

Derived from VR460-02-4.1950, eff. July 1, 1987; amended, Virginia Register Volume 31, Issue 3, eff. November 6, 2014.

Part IV
Third Party Liability

12VAC30-20-190. Requirements for third party liability; identifying liable resources.

1. Definitions

"IEVS" - the Income and Eligibility Verification System.

"Third Party" - any individual, entity or program that is or may be liable to pay all or part of the expenditures for medical assistance furnished under a State Plan.

"Title IV-A agency" - the organizational unit in the State, the Department of Social Service, that has the responsibility for determining eligibility for all groups covered by Medicaid.

"Title IV-D agency" - the organizational unit in the State, the Department of Social Services, that has the responsibility for administering or supervising the administration of a State plan for child support enforcement under Title IV-D of the Act.

"Title XIX agency" - the organizational unit in the State responsible for administering the implementation of programs created by the nineteenth amending title to the Social Security Act.

"TPQY" - Third Party Information Query system administered by the Social Security Administration.

"VEC" - the Virginia Employment Commission (the state SWICA agency) which is the state organizational unit responsible for providing a work ready labor force, temporary income protection to workers involuntarily unemployed, and labor market and economic information.

2. Determining liability of third parties.

2.1. The agency takes all reasonable measures to determine the legal liability of third parties to pay for care and services furnished under the Plan. The Commonwealth is a "209b" state and all eligibility is determined by the Department of Social Services (DSS). At a minimum, such measures include the requirements specified below.

2.2. Health insurance information.

A. Health insurance information is obtained by the Title IV-A agency (DSS) during the initial application and redetermination processes for Medicaid eligibility.

B. The information is coded on the recipient's eligibility card and in the computer system.

C. Health insurance information may include, but is not limited to, the policy holder's name, the relationship to the applicant or recipient, the policy holder's social security number (SSN) and policy number, and the name and address of the insurance company.

D. The Title XIX agency has an agreement with the IV-A agency to collect and to transmit from the applicant or recipient during the initial application and each redetermination process such health insurance information as is useful in identifying legally liable third party resources so that the Medicaid agency may process claims under the third party liability payment procedures specified in 42 CFR 433.139 b-f. Health insurance information may include, but is not limited to, those elements described in item C above.

E. The Title IV-A agency incorporates into the eligibility case file the names and SSNs of absent or custodial parents of Medicaid recipients to the extent such information is available.

F. Payment of health insurance premiums when identified as cost effective.

2.3. Exchange of data.

The Title XIX agency obtains and uses information for the purpose of determining the legal liability of third parties so that the agency may process under the third party liability payment procedures specified in § 433.139 b-f, and the agency utilizes information from these sources:

1. The Title XIX agency does not have an agreement with SWICA or SSA wage and earning files data since the eligibility information is obtained from the IV-A agency. The IV-A agency is responsible for obtaining all necessary eligibility information for applicants and uses IEVS, TPQY and VEC files.

2. The IV-A agency utilizes all wage and earnings information appropriate to the determination of eligibility. The DSS obtains its information through IEVS (the alternate information source allowed by 42 CFR 433.138 (d)(2)) which obtains information from Department of Motor Vehicles (DMV), Internal Revenue Service (IRS) and VEC. The Title IV-A agency updates the Title XIX agency's eligibility file which is then used for claims processing.

3. The Industrial Commission of Virginia (Workers' Compensation agency) has denied the Title XIX agency's request to provide data matches. Documentation of such denial has been provided to the HCFA Regional Office. The Title XIX agency will continue its efforts to obtain data matches with this agency.

4. Agreements to obtain data matches from the DMV (State motor vehicle accident report files) are presently in progress.

2.4. Diagnosis and trauma code edits.

1. The Title XIX agency takes action to identify those paid claims for Medicaid recipients that contain diagnosis codes 800-999 (ICDCM) International Classification of Disease, Ninth Revision Clinical Modification Volume I (as updated annually), inclusive, for the purpose of determining the legal liability of third parties so that the agency may process claims under the third party liability payment procedures specified in 42 CFR 433.139 b-f.

2. These system edits are used daily.

2.5. Follow-up procedures for identifying legally liable third party resources.

1. The Title XIX agency follows up on information within 30 days in order to identify legally liable third party resources for casualty cases.

a. Information is obtained from providers, Title XIX program representatives, third party monthly alert letters, insurance companies, attorneys, probation officers, social service agencies, recipients, newspaper articles, and clerks of court.

b. Information is retained in third party case files.

c. Within 30 days, the Title XIX agency determines the amount of monies paid for health services rendered to injured recipients. The responsible third party is identified and within 30 days is notified that the Commonwealth has a lien for monies expended by the agency for the injured recipient.

d. The agency issues several lien status letters which have 90 day reply due dates depending on the age of the accident date, the lien amount and the agency's historical experience with the third party or the third party's attorney.

e. After no response is received to several lien status letters, the case is referred to the Office of the Attorney General for investigation and/or collection.

2. The agency uses the following procedures for trauma code edits.

a. The system produces monthly third party alert letters from the edits' applications. In third party alert letters, the affected recipients are requested to advise the Title XIX agency about the necessity for their treatment and if attorneys, insurance companies or other third parties are involved in their case. This information is utilized within 30 days of receipt to open cases for recovery of funds where applicable. This information is not entered into the eligibility case file where the agency enters only the individual's health insurance coverage, but is retained in the third party case files.

b. New information as obtained is added to third party case files on a daily basis.

3. The Title XIX agency follows up on health insurance information within 60 days in order to identify legally liable third party resources and incorporates this information into the eligibility case file so that the agency may process claims under the third party liability payment procedures specified under § 433.139 b-f.

The health insurance information which might not be obtained during the eligibility process can appear during invoice processing and this information is researched and investigated and added to the recipient eligibility file.

4. Once an agreement with the state motor vehicle agency has been obtained, the Title XIX agency will incorporate the procedures identifying the methods used by the agency to identify legally liable third party resources.

2.6. Information and data exchanges.

The Title XIX agency complies with 42 CFR 433.138 (h)(1) and (2) and at the present time has a written agreement with the Title IV-D agency. No reimbursement has been requested by the IV-D agency for reasonable costs incurred in furnishing information to the Title XIX agency.

2.7. Reports.

The Title XIX agency will produce such reports as the Secretary prescribes for the purpose of determining compliance under § 433.138 of the CFR and evaluating the effectiveness of the third party liability identification system.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.2210, eff. November 5, 1990.

12VAC30-20-200. Requirements for third party liability; payment of claims.

1. Probable liability is established at the time claim is filed.

a. When the Title XIX agency has established the probable existence of third party liability at the time the claim is filed, the agency rejects the claim and returns it to the provider for a determination of the amount of liability. The establishment of third party liability takes place when the agency receives confirmation from the provider or a third party resource indicating the extent of third party liability. When the amount of liability is determined, the agency pays the claim to the extent that maximum payment allowed under the agency's payment schedule exceeds the amount of the third party payment.

b. Exhausting all available third party resources is the responsibility of the providers. The Medicaid Management Information System (MMIS) does not allow payments to be made by Virginia Medicaid unless the invoice indicates that the third party has either paid or denied the claim.

c. There are certain circumstances in which cost avoidance may not be utilized:

1. Medical support enforcement. In the case of any service covered under Medicaid provided to an individual on whose behalf child support enforcement is being carried out by the IV-D agency, Medicaid makes payment for such service in accordance with the usual payments schedule. These payments are made without regard to any third party liability, if such third party liability is derived, through insurance or otherwise, from the parent whose obligation to pay support is being enforced by the IV-D agency. Medicaid shall make these payments providing that they have not been made by such third party within 30 days after such service is furnished.

Providers shall not be required to bill the third party in this situation. When the provider does bill Medicaid, he must certify either:

(a) That he has not billed the third party documented on the claim due to medical support enforcement, or

(b) That he has billed the third party documented on the claim but that he has not received payment or denial for the service from the third party within 30 days after the service was furnished. In this case, 30 days must elapse from the date of service to the date of provider certification.

2. Prenatal Care. When the claim is for prenatal, labor and delivery, or postpartum care that is covered under the State Plan, the Commonwealth makes payment for such services in accordance with the usual payment schedule without regard to the liability of a third party for payment for such services.

3. Preventive Pediatric Care. When the claim is for preventive pediatric care, including Early and Periodic Screening, Diagnosis and Treatment (EPSDT) services that are covered under the State Plan, the Commonwealth makes payment for such services in accordance with the usual payment schedule without regard to the liability of a third party for payment for such services.

4. In order to accomplish this pay and chase activity, in accordance with 42 CFR 433.139, (once the claims have been processed for payment), a report is generated advising the third party unit so that recovery of funds can be made.

2. Probable liability is not established or benefits are not available at the time claim is filed.

If the probable existence of third party liability cannot be established or third party benefits are not available to pay the recipient's medical expenses at the time the claim is filed, the agency pays the full amount allowed under the agency's payment schedule.

3. Recovery of reimbursement.

a. When the Title XIX agency learns of the existence of a liable third party after a claim is paid, or benefits become available from a third party after a claim is paid, the Title XIX agency seeks recovery of reimbursement within 60 days after the end of the month it learns of the existence of the liable third party or benefits become available.

b. Reimbursement is sought by the Title XIX agency unless the agency determines that recovery will not be cost effective. The agency uses the threshold amount of $50 as a guideline in its attempts to recover from liable third parties in casualty cases. This $50 guideline is used in consideration with other factors (i.e., expense and difficulty of recovery) in deciding whether to pursue recoveries in the range of smaller dollar expenditures (less than $50). The threshold amount in the determination for the recovery of funds by the health insurance unit is $40. However, the threshold amount may be waived when the agency deems it to be economically and administratively feasible to collect less than the stated amounts. The threshold amounts are based on effectiveness with normal effort for the recovery of funds. Should it be determined that a recovery effort would be cost effective, then attempts are made for recovery of amounts below the threshold levels.

4. Code of Virginia § 8.01-66.9. Lien in favor of Commonwealth and state institutions or Department of Rehabilitative Services on claim for personal injuries.

The State Agency meets the requirements of this section of the Code of Virginia with respect to liens on claims for personal injury.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.2220, eff. July 4, 1990.

12VAC30-20-205. Health Insurance Premium Payment (HIPP) for Kids.

A. Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

"Case" means all family members who are eligible for coverage under the group health plan and who are eligible for Medicaid.

"Code" means the Code of Virginia.

"DMAS" means the Department of Medical Assistance Services consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"DSS" means the Department of Social Services consistent with Chapter 1 (§ 63.2-100 et seq.) of Title 63.2 of the Code of Virginia.

"Family member" means individuals who are related by blood, marriage, or adoption.

"High deductible health plan" means a plan as defined in § 223(c)(2) of the Internal Revenue Code of 1986, without regard to whether the plan is purchased in conjunction with a health savings account (as defined under § 223(d) of the Internal Revenue Code of 1986).

"HIPP" means the Health Insurance Premium Payment Program administered by DMAS consistent with § 1906 of the Act.

"HIPP for Kids" means the Health Insurance Premium Payment Program administered by DMAS consistent with § 1906A of the Act.

"Member" means a person who is eligible for Medicaid as determined by DMAS, a DMAS designated agent, or the Department of Social Services.

"Parent" means the biological or adoptive parent or parents, or the biological or adoptive parent and the stepparent, living in the home with the Medicaid-eligible child. The health insurance policyholder shall be a parent as defined herein.

"Premium" means the fixed cost of participation in the group health plan, which cost may be shared by the employer and employee or paid in full by either party.

"Premium assistance subsidy" means the amount that DMAS will pay of the employee's cost of participating in the qualified employer-sponsored coverage to cover the Medicaid eligible member or members under age 19.

"Qualified employer-sponsored coverage" means a group health plan or health insurance coverage offered through an employer:

1. That qualifies as creditable coverage as a group health plan under § 2701(c)(1) of the Public Health Service Act;

2. For which the employer contribution toward any premium for such coverage is at least 40%; and

3. That is offered to all individuals in a manner that would be considered a nondiscriminatory eligibility classification for purposes of paragraph (3)(A)(ii) of § 105(h) of the Internal Revenue Code of 1986 (but determined without regard to clause (i) of subparagraph (B) of such paragraph).

"State Plan" means the State Plan for Medical Assistance for the Commonwealth of Virginia.

B. Program purpose. The purpose of the HIPP for Kids program shall be to:

1. Enroll members who are eligible for coverage under a qualified employer-sponsored coverage plan.

2. Provide premium assistance subsidy for payment of the employee share of the premiums and other cost-sharing obligations for the Medicaid eligible child under age 19. In addition, to provide cost sharing for the child's noneligible parent for items and services covered under the qualified employer-sponsored coverage that are also covered services under the State Plan. There is no cost sharing for parents for services not covered by the qualified employer-sponsored coverage.

3. Treat coverage under such employer group health plan as a third party liability consistent with § 1902(a)(25) of the Social Security Act.

C. Member eligibility. DMAS shall obtain specific information on qualified employer-sponsored coverage available to the members in the case including, but not limited to, the effective date of coverage, the services covered by the plan, the deductibles and copayments required by the plan, and the amount of the premium paid by the employer and employee. Coverage that is not comprehensive shall be denied premium assistance. All Medicaid eligible family members under the age of 19 who are eligible for coverage under the qualified employer-sponsored coverage shall be eligible for consideration for HIPP for Kids except the following:

1. The member is Medicaid eligible due to "spenddown"; or

2. The member is currently enrolled in the qualified employer-sponsored coverage and is only retroactively eligible for Medicaid.

D. Application required. A completed HIPP for Kids application must be submitted to DMAS to be evaluated for program eligibility. The HIPP for Kids application consists of the forms prescribed by DMAS and any necessary information as required by the program to evaluate eligibility and determine if the plan meets the criteria for qualified employer-sponsored coverage.

E. Exceptions. The term "qualified employer-sponsored coverage" does not include coverage consisting of:

1. Benefits provided under a health flexible spending arrangement (as defined in § 106(c)(2) of the Internal Revenue Code of 1986) or

2. A high deductible health plan (as defined in § 223(c)(2) of the Internal Revenue Code of 1986), without regard to whether the plan is purchased in conjunction with a health savings account (as defined under § 223(d) of the Internal Revenue Code of 1986).

3. For self-employed individuals, qualified employer-sponsored coverage obtained through self-employment activities shall not meet the program requirements unless the self-employment activities are the family's primary source of income and the insurance meets the requirements of the definition of qualified employer-sponsored coverage in subsection A of this section. Family for this purpose includes family by blood, marriage, or adoption.

F. Payments. When DMAS determines that a qualified employer-sponsored coverage plan is eligible and other eligibility requirements have been met, DMAS shall provide for the payment of premium assistance subsidy and other cost-sharing obligations for items and services otherwise covered under the State Plan, except for the nominal cost-sharing amounts permitted under § 1916 of the Social Security Act.

1. Effective date of premium assistance subsidy. Payment of premium assistance subsidies and other cost-sharing obligations shall become effective on the first day of the month in which DMAS receives a complete HIPP application or the first day of the month in which qualified employer-sponsored coverage becomes effective, whichever is later. Payments shall be made to either the employer, the insurance company, or the individual who is carrying the group health plan coverage.

2. Payments for deductibles, coinsurances, and other cost-sharing obligations.

a. Medicaid eligible children under age 19 pursuant to § 1906A of the Act. The Medicaid agency pays all premiums, deductibles, coinsurance, and other cost-sharing obligations for items and services covered under the State Plan, as specified in the qualified employer-sponsored coverage, without regard to limitations specified in § 1916 or § 1916A of the Act, for eligible individuals under age 19 who have access to and elect to enroll in such coverage. The eligible individual is entitled to services covered by the State Plan that are not included in the qualified employer-sponsored coverage.

b. Ineligible family members. When coverage for Medicaid-eligible family members under age 19 is not possible unless an ineligible parent enrolls, the Medicaid agency pays premiums only for enrollment of the ineligible parent and, at the parent's option, other family members who are eligible for coverage under the qualified employer-sponsored coverage. In addition, the agency provides cost sharing for the child's ineligible parent for items and services covered under the qualified employer-sponsored coverage that are also covered services under the State Plan. There is no cost-sharing for ineligible parents for items and services not covered by the qualified employer-sponsored coverage.

3. Documentation required for premium assistance subsidy reimbursement. A person to whom DMAS is paying a qualified employer-sponsored coverage premium assistance subsidy shall, as a condition of receiving such payment, provide documentation as prescribed by DMAS of the payment of the employer group health plan premium, as well as payment of coinsurances, copayments, and deductibles for services received.

G. Program participation requirements. Participants must comply with program requirements as prescribed by DMAS for continued enrollment in HIPP for Kids. Failure to comply with the following may result in termination from the program:

1. Submission of documentation of premium expense within specified time frame in accordance with DMAS established policy.

2. Report changes in the qualified employer-sponsored coverage within 10 days of the family's receipt of notice of the change.

3. Completion of annual redetermination.

4. Completion of consent forms. Participants may be required to complete a consent form to release information necessary for HIPP for Kids participation and program requirements as required by DMAS.

H. HIPP for Kids redetermination. DMAS shall redetermine the eligibility of the qualified employer-sponsored coverage periodically, at least every 12 months. DMAS shall also redetermine eligibility when changes occur with the group health plan information that was used in determining HIPP for Kids eligibility.

I. Program termination. Participation in the HIPP for Kids program may be terminated for failure to comply or meet program requirements. Termination will be effective the last day of the month in which advance notice has been given (consistent with federal regulations).

1. Participation may be terminated for failure to meet program requirements including, but not limited to, the following:

a. Failure to submit documentation of payment of premiums;

b. Failure to provide information required for reevaluation of the qualified employer-sponsored coverage (noncompliance);

c. Loss of Medicaid eligibility for all household members;

d. Medicaid household member no longer covered by the qualified employer-sponsored coverage;

e. Medicaid-eligible child turns age 19; or

f. Employer-sponsored health plan no longer meets qualified employer-sponsored coverage requirements.

2. Termination date of premiums. Payment of premium assistance subsidy shall end on whichever of the following occurs the earliest:

a. On the last day of the month in which eligibility for Medicaid ends;

b. The last day of the month in which the member loses eligibility for coverage in the group health plan;

c. The last day of the month in which the child turns age 19;

d The last day of the month in which adequate notice has been given (consistent with federal requirements) that DMAS has determined that the group health plan no longer meets program eligibility criteria; or

d. The last day of the month in which adequate notice has been given (consistent with federal requirements) that HIPP for Kids participation requirements have not been met.

J. Third-party liability. When members are enrolled in qualified employer-sponsored coverage health plans, these plans shall become the first sources of health care benefits, up to the limits of such plans, prior to the availability of payment under Title XIX.

K. Appeal rights. Members shall be given the opportunity to appeal adverse agency decisions consistent with agency regulations for client appeals (12VAC30-110).

L. Provider requirements. Providers shall be required to accept the greater of the group health plan's reimbursement rate or the Medicaid rate as payment in full and shall be prohibited from charging the member or the Medicaid program amounts that would result in aggregate payments greater than the Medicaid rate as required by 42 CFR 447.20.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 2, eff. November 8, 2012.

12VAC30-20-210. State method on cost effectiveness of employer-based group health plans.

A. Definitions. The following words and terms when used in these regulations shall have the following meanings unless the context clearly indicates otherwise:

"Average monthly Medicaid cost" means average monthly medical expenditures based upon age, gender, Medicaid enrollment covered group, and geographic region of the state.

"Average monthly wraparound cost" means the average monthly aggregate costs for services not covered by private health insurance but covered under the State Plan for Medical Assistance, also includes copayments, coinsurance, and deductibles.

"Case" means all family members who are eligible for coverage under the group health plan and who are eligible for Medicaid.

"Code" means the Code of Virginia.

"Cost effective" and "cost effectiveness" mean the reduction in Title XIX expenditures, which are likely to be greater than the additional expenditures for premiums and cost-sharing items required under § 1906 of the Social Security Act (the Act), with respect to such enrollment.

"DMAS" means the Department of Medical Assistance Services consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"DSS" means the Department of Social Services consistent with Chapter 1 (§ 63.2-100 et seq.) of Title 63.2 of the Code of Virginia.

"Family member" means individuals who are related by blood, marriage, adoption, or legal custody.

"Family health plan" and "family care coverage" means a group health plan that covers three or more individuals. Family health plans that cover three or more non-Medicaid eligible individuals are not eligible for the HIPP premium assistance subsidy.

"Group health plan" means a plan which meets § 5000(b)(1) of the Internal Revenue Code of 1986, and includes continuation coverage pursuant to Title XXII of the Public Health Service Act, § 4980B of the Internal Revenue Code of 1986, or Title VI of the Employee Retirement Income Security Act of 1974. Section 5000(b)(1) of the Internal Revenue Code provides that a group health plan is a plan, including a self-insured plan, of, or contributed to by, an employer (including a self-insured person) or employee association to provide health care (directly or otherwise) to the employees, former employees, or the families of such employees or former employees, or the employer.

"High deductible health plan" means a plan as defined in § 223(c)(2) of Internal Revenue Code of 1986, without regard to whether the plan is purchased in conjunction with a health savings account (as defined under § 223(d) of such Code).

"HIPP" means the Health Insurance Premium Payment Program administered by DMAS consistent with § 1906 of the Act.

"Premium" means the fixed cost of participation in the group health plan; such cost may be shared by the employer and employee or paid in full by either party.

"Premium assistance subsidy" means the portion that DMAS will pay of the employee's cost of participating in an employer's health plan to cover the Medicaid eligible members under the employer-sponsored plan if DMAS determines it is cost effective to do so.

"Recipient" means a person who is eligible for Medicaid as determined by the Department of Social Services.

B. Program purpose. The purpose of the HIPP Program shall be to:

1. Enroll recipients who have an available group health plan that is likely to be cost effective;

2. Provide premium assistance subsidy for payment of the employee share of the premiums and other cost-sharing obligations for items and services otherwise covered under the State Plan for Medical Assistance (the Plan); and

3. Treat coverage under such employer group health plan as a third party liability consistent with § 1906 of the Social Security Act.

C. Application required. A completed HIPP application must be submitted to DMAS to be evaluated for HIPP program eligibility; if HIPP program eligibility is established, DMAS shall then evaluate the group health plan for cost effectiveness. The HIPP application consists of the forms prescribed by DMAS and any necessary information as required by the program to evaluate eligibility and perform a cost-effectiveness evaluation.

D. Recipient eligibility. DMAS shall obtain specific information on all group health plans available to the recipients in the case including, but not limited to, the effective date of coverage, the services covered by the plan, the deductibles and copayments required by the plan, the exclusions to the plan, and the amount of the premium. Coverage that is not comprehensive shall be denied premium assistance. Cases that result in a determination that the applicant is not eligible for the HIPP program shall be denied premium assistance and shall not undergo further review as described in subsection E of this section. All family members who are eligible for coverage under the group health plan and who are eligible for Medicaid shall be eligible for consideration for HIPP, except those who meet any one or more of the factors identified in subdivisions 1 through 7 of this subsection.

1. The recipient is Medicaid eligible due to "spend-down".

2. The recipient is currently enrolled in the employer sponsored health plan and is only retroactively eligible for Medicaid.

3. The recipient is in a nursing home or has a deduction from patient pay responsibility to cover the insurance premium.

4. The recipient is eligible for Medicare.

5. The recipient's family has, or would have, family healthcare coverage for three or more members who are not Medicaid eligible. Exceptions to the family health care coverage exclusion are as follows:

a. The family meets Family Access to Medical Insurance Security (FAMIS) eligibility criteria but due to existing group health insurance cannot enroll in FAMIS for the non-Medicaid family members enrolled in the health care plan; or

b. Medicaid eligibility is based upon family income (Medicaid family unit) and the family members enrolled in the health care plan are not Medicaid eligible due to Medicaid age restrictions (aged 19 or older).

6. Medicare eligibility. Medicaid recipients eligible for, or enrolled in, Medicare Part A and/or Part B who are also covered by an employer group health plan are not eligible for HIPP.

7. High Deductible Health Plans (HDHPs) are defined in § 223(c)(2) of the Internal Revenue Code of 1986. HDHPs are not cost effective for the HIPP program and shall be denied premium assistance and shall not undergo further review as described in subsection E of this section. The annual deductible amount for a HDHP is defined by the Department of Treasury and is updated annually.

E. Cost-effectiveness evaluation. If the Medicaid eligible(s) is enrolled in the health plan and is not excluded from HIPP program participation under the criteria described in subsection D of this section, DMAS shall conduct the premium cost-effectiveness evaluation based upon the following methodology:

1. Recipient information. DMAS shall obtain demographic information on each recipient in each case including, but not limited to, Medicaid enrollment covered group, age, gender, and geographic region of residence in the state.

2. DMAS shall compute the average monthly Medicaid cost for each Medicaid enrollee on the group health insurance plan and compare the total cost to the employee's responsibility for the health insurance cost.

3. Wraparound cost. DMAS shall total the average monthly wraparound cost for each Medicaid enrollee on the HIPP case and subtract the amount from the average monthly Medicaid cost for the cost-effectiveness evaluation.

4. Administrative cost. DMAS shall total the administrative costs of the HIPP program and estimate an average administrative cost. DMAS shall subtract the administrative cost from the average monthly Medicaid cost for the cost-effectiveness evaluation.

5. Determination of premium cost effectiveness. DMAS shall determine that a group health plan is likely to be cost effective if subdivision a is less than subdivision b below:

a. The employee's responsibility for the group health plan premium.

b. The total of the average monthly Medicaid costs less the wraparound costs for each Medicaid enrollee covered by the group health plan and the administrative cost.

6. For individuals who otherwise meet all HIPP eligibility criteria in subdivision 5 of this subsection, such individuals may elect to have DMAS reimburse them up to the amount determined in subdivision 5 b of this subsection, if subdivision 5 a of this subsection is not less than subdivision 5 b of this subsection.

F. Payments. When DMAS determines that a group health plan is likely to be cost effective based on the DMAS established methodology, DMAS shall provide for the payment of premium assistance subsidy and other cost-sharing obligations for items and services otherwise covered under the Plan, except for the nominal cost sharing amounts permitted under § 1916.

1. Effective date of premium assistance subsidy. Payment of premium assistance subsidy shall become effective on the first day of the month following the month in which DMAS receives a complete HIPP application or the first day of the month in which the group health plan coverage becomes effective, whichever is later. Payments shall be made to either the employer, the insurance company or to the individual who is carrying the group health plan coverage.

2. No payments for deductibles, coinsurances, and other cost-sharing obligations for non-Medicaid eligible family members shall be made by DMAS.

3. Documentation required for premium assistance subsidy reimbursement. A person to whom DMAS is paying an employer group health plan premium assistance subsidy shall, as a condition of receiving such payment, provide documentation as prescribed by DMAS of the payment of the employer group health plan premium for the group health plan that DMAS determined to be cost effective.

G. Program participation requirements. Participants must comply with the following program requirements as prescribed by DMAS for continued enrollment in HIPP. Failure to comply shall result in termination from the program.

1. Submission of documentation of premium expense within specified time frame in accordance with DMAS established policy.

2. Changes that impact the cost-effectiveness evaluation must be reported within 10 days.

3. Completion of annual redetermination.

4. Completion of consent forms. Participants may be required to complete a consent form to release information necessary for HIPP participation and program requirements as required by DMAS.

5. Participants terminated for noncompliance under subdivision 1 or 2 of this subsection shall be barred from reapplying to the HIPP program for three months from the date of cancellation.

H. HIPP redetermination. DMAS shall redetermine the cost effectiveness of the group health plan periodically, and at least every 12 months. DMAS shall also redetermine cost effectiveness when changes occur with the recipient's average Medicaid cost and/or with the group health plan information that was used in determining the cost effectiveness. When only part of the household loses Medicaid eligibility, DMAS shall redetermine the cost effectiveness to ascertain whether payment of the premium assistance subsidy of the group health plan continues to be cost effective.

I. Program termination. Participation in the HIPP program shall be terminated for failure to comply with or meet program requirements. Termination will be effective the last day of the month in which advance notice has been given (consistent with 42 CFR 431.211)].

1. In addition to the reasons listed in subsection G of this section, participation shall be terminated for:

a. Loss of Medicaid eligibility for all household members;

b. Medicaid household member no longer covered by employer health plan; or

c. Employer group health plan is determined to be not cost effective.

2. Termination date of premiums. Payment of premium assistance subsidy shall end on whichever of the following occurs the earliest:

a. On the last day of the month in which eligibility for Medicaid ends;

b. The last day of the month in which the recipient loses eligibility for coverage in the group health plan;

c. The last day of the month in which adequate notice has been given (consistent with federal requirements) that DMAS has determined that the group health plan is no longer cost effective; or

d. The last day of the month in which adequate notice has been given (consistent with federal requirements) that HIPP participation requirements have not been met.

J. Third party liability. When recipients are enrolled in group health plans, these plans shall become the first sources of health care benefits, up to the limits of such plans, prior to the availability of Title XIX benefits.

K. Appeal rights. Recipients shall be given the opportunity to appeal adverse agency decisions consistent with agency regulations for client appeals (12VAC30-110).

L. Provider requirements. Providers shall be required to accept the greater of the group health plan's reimbursement rate or the Medicaid rate as payment in full and shall be prohibited from charging the recipient or Medicaid amounts that would result in aggregate payments greater than the Medicaid rate as required by 42 CFR 447.20.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-4.2230, eff. April 1, 1993; amended, Virginia Register Volume 25, Issue 20, eff. July 23, 2009; Volume 29, Issue 2, eff. October 25, 2012.

Part V
Sanctions, Advance Directives

12VAC30-20-215. Sanctions for psychiatric hospitals.

(a) The state assures that the requirements of § 1902(y)(1), § 1902(y)(2)(A), and § 1902(y)(3) of the Act are met concerning sanctions for psychiatric hospitals that do not meet the requirements of participation when the hospital's deficiencies immediately jeopardize the health and safety of its patients or do not immediately jeopardize the health and safety of its patients.

(b) The state terminates the hospital's participation under the State plan when the state determines that the hospital does not meet the requirements for a psychiatric hospital and further finds that the hospital's deficiencies immediately jeopardize the health and safety of its patients.

(c) When the state determines that the hospital does not meet the requirements for a psychiatric hospital and further finds that the hospital's deficiencies do not immediately jeopardize the health and safety of its patients, the state may:

1. Terminate the hospital's participation under the State plan; or

2. Provide that no payment will be made under the State plan with respect to any individual admitted to such hospital after the effective date of the finding; or

3. Terminate the hospital's participation under the State plan and provide that no payment will be made under the State plan with respect to any individual admitted to such hospital after the effective date of the finding.

(d) When the psychiatric hospital described in (c) above has not complied with the requirements for a psychiatric hospital within 3 months after the date the hospital is found to be out of compliance with such requirements, the state shall provide that no payment will be made under the State plan with respect to any individual admitted to such hospital after the end of such 3-month period.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-4.3000:1, eff. November 15, 1995.

12VAC30-20-220. Income and eligibility verification system procedures; requests to other state agencies.

The Department of Medical Assistance Services will meet all of the applicable requirements of 42 CFR 431 Subparts A and F and 42 CFR 435 with respect to the Income and Eligibility Verification System.

In addition to the federal regulatory requirements, the additional information match against Virginia Department of Motor Vehicles will be made for new applicants and ongoing recipients of medical assistance.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.3210, eff. December 1, 1986.

12VAC30-20-230. Method for issuance of medicaid eligibility cards to homeless individuals.

Permanent addresses are not required. Recipients are allowed to choose the method of receiving their Medicaid cards:

a) Mailing to General Delivery at a post office of their choice;

b) Picking up their card at the local department of social services;

c) An alternate mailing address with assurance of receipt of mail.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.3310, eff. July 1, 1987.

12VAC30-20-240. Requirements for advance directives under state plans for medical assistance.

The following is a written description of the law of the State (whether statutory or as recognized by the courts of the State) concerning advance directives. If applicable States should include definitions of living will, durable power of attorney for health care, durable power of attorney, witness requirements, special State limitations on living will declarations, proxy designation, process information and State forms, and identify whether State law allows for a health care provider or agent of the provider to object to the implementation of advance directives on the basis of conscience.

1.0. All specified providers, receiving funds under this Plan, shall maintain written policies, procedures, and materials concerning advance directives to ensure compliance with the law. All providers must:

A. give written information to all adults (as defined by the Code of Virginia § 54.1-2981 et seq., receiving medical care concerning their rights under state law to:

1. Make decisions concerning their medical care,

2. Accept or refuse medical or surgical treatment, and

3. Formulate advance directives, e.g., living wills or durable powers of attorney for health care.

B. Provide written information to all adults on their policies concerning implementation of these rights;

C. Document in the individual's medical record whether he has executed an advance directive;

D. Not condition providing care or otherwise discriminate against an individual based on whether he has executed an advance directive;

E. Ensure compliance with the requirements of state law concerning advance directives; and

F. Provide for educating staff and the community on advance directives.

2.0. Providers shall give to each adult patient information concerning advance directives according to the following:

A. Hospitals shall provide such information at the time of the individual's admission as an inpatient.

B. Nursing facilities shall provide such information at the time of the individual's admission as a resident.

C. Providers of home health care or personal care services shall provide such information in advance of the individual's coming under the care of the provider.

D. Hospice programs shall provide such information at the time of the initial receipt of hospice care by the individual.

E. A health maintenance or health insuring organization shall provide such information at the time the individual enrolls or reenrolls with the organization. If such organization maintains more than one record for its enrollees, it must document all medical records.

3.0. Advance directives for incapacitated individuals. To the extent that a facility or provider issues materials about policies and procedures to the families or surrogates or other concerned persons of the incapacitated patient in accordance with state law, the facility or provider shall also provide information concerning advance directives. Such provision of information to families or surrogates shall not relieve the facility or provider of the requirement to provide this information to the patient once he is no longer incapacitated.

4.0. Previously executed advance directives. When the patient or a relative, surrogate or other concerned or related individual presents the facility or provider with a copy of the individual's advance directive, the facility or provider must comply with the advance directive including recognition of the power of attorney, to the extent allowed under state law. Absent contrary state law, if no one comes forward with a previously executed advance directive and the patient is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility or provider must note in the individual's medical record that the individual was not able to receive such information and was unable to communicate whether an advance directive existed.

5.0. Conscientious objection by providers. Nothing in this section shall be construed to prohibit the application of a state law which allows for an objection on the basis of conscience for any health care provider or any agent of such provider which as a matter of conscience cannot implement an advance directive.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.3410, eff. June 16, 1993.

12VAC30-20-249. (Repealed.)

Historical Notes

Derived from VR460-02-5.3510 and VR460-02-4.3510, eff. July 4, 1990; repealed, Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

Part VI
Nursing Facility Enforcement

12VAC30-20-251. Termination of provider agreement.

A. Mandatory termination. As set forth by 42 CFR 488.408 (1995), the Commonwealth shall (i) impose temporary management on the nursing facility; (ii) terminate the nursing facility's provider agreement; or (iii) impose both of these remedies when there are one or more deficiencies that constitute immediate jeopardy to resident health or safety. In addition, the Commonwealth shall terminate the nursing facility's provider agreement when the nursing facility fails to relinquish control to the temporary manager, or in situations when a facility's deficiencies do not pose immediate jeopardy, if the nursing facility does not meet the eligibility criteria for continuation of payment set forth in 42 CFR 488.412(a) (1995).

B. The Commonwealth shall have the authority to terminate a nursing facility's provider agreement if such nursing facility:

1. Is not in substantial compliance with the requirements of participation, regardless of whether or not immediate jeopardy is present; or

2. Fails to submit an acceptable plan of correction within the timeframe specified by the Commonwealth. For purposes of this section, substantial compliance shall be defined as meaning a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

C. Situations without immediate jeopardy. If a nursing facility's deficiencies do not pose immediate jeopardy to residents' health or safety, and the facility is not in substantial compliance, the Commonwealth shall have the authority to terminate the nursing facility's provider agreement or allow the nursing facility to continue to participate for no longer than six months from the last day of the survey agency's survey if:

1. The survey agency finds that it is more appropriate to impose alternative remedies than to terminate the nursing facility's provider agreement;

2. The Commonwealth has submitted a plan and timetable for corrective action approved by HCFA; and

3. The facility in the case of a Medicare skilled nursing facility or Commonwealth in the case of a Medicaid nursing facility agrees to repay to the federal government payments received after the last day of the survey that first identified the deficiencies if corrective action is not taken in accordance with the approved plan of correction.

D. Effect of termination. Termination of the provider agreement shall end payment to the nursing facility.

E. Patient transfer. The Commonwealth shall provide for the safe and orderly transfer of residents when the facility's provider agreement is terminated.

F. Continuation of payments to a facility with deficiencies. As set forth by 42 CFR 488.450:

1. The Commonwealth shall have the authority to terminate the nursing facility's provider agreement before the end of the correction period if the following criteria are not met: (i) the survey agency finds that it is more appropriate to impose alternative remedies than to terminate the nursing facility's provider agreement; (ii) the Commonwealth has submitted a plan and timetable for corrective action which has been approved by HCFA; and (iii) the Commonwealth has agreed to repay the federal government payments received under this provision if corrective action is not taken in accordance with the approved plan and timetable for corrective action.

2. Cessation of payments. If termination is not sought, either by itself or with another remedy or remedies, or any of the criteria of subdivision 1 of this subsection are not met or agreed to by either the facility or the Commonwealth, the facility or the Commonwealth shall receive no federal Medicaid payments, as applicable, from the last day of the survey.

3. Period of continued payments. If the criteria of subdivision 1 of this subsection are met, HCFA may continue payments to the Commonwealth for a Medicaid facility with noncompliance that does not constitute immediate jeopardy for up to six months from the last day of the survey. If the facility does not achieve substantial compliance by the end of this six-month period, the Commonwealth shall have the authority to terminate its provider agreement.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

12VAC30-20-252. Temporary management.

A. Temporary management in cases of immediate jeopardy. In accordance with 42 CFR 488.408 (1995) and 42 CFR 488.410 (1995), the Commonwealth shall (i) impose temporary management on the nursing facility; (ii) terminate the nursing facility's provider agreement; or (iii) impose both of these remedies when there are one or more deficiencies that constitute immediate jeopardy to resident health or safety. For purposes of this section, temporary management shall mean the temporary appointment by HCFA or the Commonwealth of a substitute facility manager or administrator with authority to hire, terminate, or reassign staff, obligate nursing facility funds, alter nursing facility procedures, and manage the nursing facility to correct deficiencies identified in the nursing facility's operation. The individual appointed as a temporary manager shall meet the qualifications of 42 CFR 488.415(b) (1995) and be compensated in accordance with the requirements of 42 CFR 488.415(c) (1995). The Commonwealth shall notify the facility that a temporary manager is being appointed. In situations of immediate jeopardy, the Commonwealth shall also have the authority to impose other remedies, as appropriate, in addition to termination of the provider agreement and temporary management. In a nursing facility or dually participating facility, if the Commonwealth finds that such nursing facility's or facility's noncompliance poses immediate jeopardy to resident health or safety, the Commonwealth shall notify HCFA of such finding.

B. Temporary management in situations of no immediate jeopardy. When there are widespread deficiencies that constitute actual harm that is not immediate jeopardy, the Commonwealth shall have the authority to impose temporary management in addition to the remedies of denial of payment for new admissions or civil money penalties of $50 to $3,000 per day.

C. Failure to relinquish authority to temporary management.

1. Termination of provider agreement. If a nursing facility fails to relinquish authority to the temporary manager, the Commonwealth shall terminate the nursing facility's provider agreement within 23 calendar days of the last day of the survey if the immediate jeopardy is not removed. If the facility fails to relinquish control to the temporary manager, state monitoring may be imposed pending termination of the provider agreement. If the facility relinquishes control to the temporary manager, the Commonwealth must notify the facility that, unless it removes the immediate jeopardy, its provider agreement shall be terminated within 23 calendar days of the last day of the survey. A nursing facility's failure to pay the salary of the temporary manager shall be considered a failure to relinquish authority to temporary management.

2. Duration of temporary management. Temporary management shall end when any of the conditions specified in 42 CFR 488.454(c) (1995) are met. For purposes of this section, substantial compliance shall mean a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996; amended, Virginia Register Volume 13, Issue 1, eff. October 30, 1996.

12VAC30-20-253. Denial of payment for new admissions.

A. Denial of payment for new admissions. The Commonwealth shall (i) deny payment for new admissions; (ii) impose civil money penalties of $50 to $3,000 per day; or (iii) impose both of these remedies when there are widespread deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy, or one or more deficiencies that constitute actual harm that is not immediate jeopardy. As set forth by 42 CFR 488.417 (1995), the Commonwealth shall deny payment for new admissions when a nursing facility is not in substantial compliance three months after the last day of the survey identifying the noncompliance, or the survey agency has cited a nursing facility with substandard quality of care on the last three consecutive standard surveys. As set forth by 42 CFR 488.417, the Commonwealth shall have the authority to deny payment for all new admissions when a facility is not in substantial compliance. For the purposes of this section, a new admission shall be defined as a resident who is admitted to the facility on or after the effective date of a denial of payment remedy and, if previously admitted, has been discharged before that effective date. Residents admitted before the effective date of the denial of payment, and taking temporary leave, are not considered new admissions, nor subject to the denial of payment. Also for the purposes of this section, substantial compliance shall mean a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

B. Denial of payment for substandard quality of care on last three surveys. As set forth by 42 CFR 488.414 and 42 CFR 488.417 (1995), if a facility is found to have provided substandard quality of care on the last three consecutive standard surveys, regardless of other remedies provided, the Commonwealth shall deny payment for all new admissions and shall impose state monitoring until such facility demonstrates to the satisfaction of the Commonwealth that it is in substantial compliance with all requirements and will remain in substantial compliance with all requirements.

C. The Commonwealth shall have the authority to deny payment for new admissions for any deficiency except when the facility is in substantial compliance.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

12VAC30-20-254. Civil money penalty.

A. Immediate jeopardy. In situations of immediate jeopardy, the Commonwealth shall have the authority to impose (in accordance with 42 CFR 488.430 through 42 CFR 488.444) a civil money penalty in the range of $3,050 to $10,000 in addition to the remedies of imposing temporary management or terminating the nursing facility's provider agreement. In imposing civil money penalties, the Commonwealth shall comply with all provisions of 42 CFR 488.430 through 488.444 (1995).

B. No immediate jeopardy. In accordance with 42 CFR 488.430 through 42 CFR 488.444, the Commonwealth shall (i) deny payment for new admissions; (ii) impose civil money penalties of $50 to $3,000 per day; or (iii) impose both of these remedies when there are widespread deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy, or one or more deficiencies that constitute actual harm that is not immediate jeopardy.

C. Notice. Either HCFA or the Commonwealth, as appropriate, shall send a prior written notice of the penalty to the facility as set forth by 42 CFR 488.434 (1995).

D. The Commonwealth shall have the authority to impose civil money penalties of $50 to $3,000 per day to any deficiency except when the nursing facility is in substantial compliance. If the Commonwealth imposes a civil money penalty for a deficiency that constitutes immediate jeopardy, the penalty must be in the range of $3,050 to $10,000 per day. For the purposes of this section, substantial compliance shall mean a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

12VAC30-20-255. State monitoring.

A. In accordance with 42 CFR 488.422 (1995), the Commonwealth shall directly monitor the delivery of services for nursing facilities to have isolated deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy, or found to have a pattern of deficiencies that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy. As set forth by 42 CFR 488.408(c)(3) (1995), the Commonwealth shall have the authority to impose state monitoring at any time to any deficiency except when the facility is in substantial compliance. As set forth by 42 CFR 488.414 (1995), if a facility is found to have provided substandard quality of care on the last three consecutive standard surveys, regardless of other remedies provided, the Commonwealth shall deny payment for all new admissions and shall impose state monitoring as specified in 42 CFR 488.422 until such facility demonstrates to the satisfaction of the Commonwealth that it is in substantial compliance with all requirements and will remain in substantial compliance with all requirements. For purposes of this section, a new admission shall be defined as a resident who is admitted to the facility on or after the effective date of a denial of payment remedy and, if previously admitted, has been discharged before that effective date. Residents admitted before the effective date of the denial of payment, and taking temporary leave, are not considered new admissions, nor subject to the denial of payment. For the purposes of this section, substantial compliance shall mean a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

B. For state monitoring, no prior notice shall be required of the Commonwealth to the nursing facility.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

12VAC30-20-256. Transfer of residents; transfer of residents with closure of facility.

A. The Commonwealth shall arrange for the safe and orderly transfer of Medicare and Medicaid nursing facility residents when the provider agreement with the nursing facility is terminated.

B. In an emergency, the Commonwealth shall have the authority to transfer Medicare and Medicaid residents to another facility, or close the facility and transfer the Medicare and Medicaid residents to another facility.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

12VAC30-20-257. Required plan of correction.

A. In accordance with 42 CFR 488.408(f) (1995), a nursing facility found to have a deficiency with regard to a program requirement shall submit a plan of correction for approval by the Commonwealth without regard to the remedies which are imposed or the seriousness of the identified deficiencies. A nursing facility shall not be required to submit a plan of correction when it has been found to have deficiencies that are isolated that the Commonwealth determines have only a potential for minimal harm but no actual harm has occurred.

B. For the purposes of this section, a plan of correction shall mean a plan developed by the nursing facility or the appointed temporary manager and approved by HCFA or the state survey agency that describes the actions the nursing facility will take to correct deficiencies and specifies the date by which those deficiencies will be corrected.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

12VAC30-20-258. Appeals.

A. Nursing facility appeal rights. As set forth by 42 CFR 488.408(g) (1995), a nursing facility for which deficiencies have been identified may appeal a certification of noncompliance leading to an enforcement remedy.

B. Appeal limits. As set forth by 42 CFR 488.408(g) (1995), nursing facilities may not appeal the Commonwealth's choice of the remedy to be applied, including the factors considered by the Commonwealth or HCFA in selecting the remedy specified in 42 CFR 488.404.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

12VAC30-20-259. Repeated substandard quality of care.

Any remedies or sanctions which may be imposed by the Commonwealth pursuant to 42 CFR 488.414(a) shall be imposed in accordance with the requirements set forth by 42 CFR 488.414(b) through 488.414(e) and 488.454(b).

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 2, 1996.

Part VII
Specialized Services; Categorical Determinations

12VAC30-20-260. Definition of specialized services.

The Department of Medical Assistance Services (DMAS) shall define specialized services for the purposes of preadmission screening and annual resident review as follows. The Department of Mental Health, Mental Retardation and Substance Abuse Services shall ensure the provision of services when they are provided by a non-Medicaid-enrolled provider or when the services are not covered by Medicaid.

a. Partial hospitalization

b. Transportation to Medicaid-covered services or specialized services necessary to treat conditions of mental illness or mental retardation

c. Day health and rehabilitation

d. Psychosocial rehabilitation

e. Crisis intervention

f. Customized durable medical equipment, for residents without a patient pay, that would allow the resident to participate in specialized services

g. Behavior management interventions requiring ongoing consultation and monitoring by a licensed psychiatrist or psychologist

h. One-to-one supervision necessary for behavior management

i. Vision and hearing needs related to mental illness or mental retardation for persons over age 21

j. Dental needs resulting from mental illness or mental retardation sequela for persons over age 21

k. Habilitation

l. Supported employment for persons with mental illness or mental retardation

m. Case management services

n. Individual psychotherapy

o. Day treatment

p. Individual and group counseling

q. Inpatient psychiatric care

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-3900, eff. June 1, 1993.

12VAC30-20-270. Categorical determinations.

1. A Level II evaluation shall be required for any applicant to a Medicaid-certified nursing facility who is determined, as a result of the Level I identification screening, to have a condition of mental illness or mental retardation as defined in 42 CFR 483.102.

2. If, however, the individual also meets one of the following categorical determinations, a Level II evaluation is not required to be completed for that individual. These determinations may only be applied following the Level I review and only if existing data on the individual appear to be current and accurate and are sufficient to allow the evaluator readily to determine that the individual fits into the established category.

3. The categorical determinations are:

a. a terminal illness in which a physician has documented that life expectancy is less than six months; and

b. a severe physical illness such as coma, functioning at brain stem level, or other conditions which result in a level of impairment so severe that the individual could not be expected to benefit from active treatment. When this category is used, documentation must be available which fully describes the severity of the condition.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-4.3910, eff. June 1, 1993.

Part VIII
Nursing Facilities Survey/Certification

12VAC30-20-272. Survey and certification education program.

The state has in effect the following survey and certification periodic education program for the staff and residents (and their representatives) of nursing facilities in order to present current regulations, procedures, and policies.

The state survey agency periodically conducts provider training programs and orientation of OBRA regulations and the survey process through programs or mailings. The state survey agency participates in the Medicaid agency's training of facilities regarding the Resident Assessment Instrument.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-4.40100, eff. November 15, 1995.

12VAC30-20-274. Process for the investigation of allegations of resident neglect and abuse and misappropriation of resident property.

The state has in effect the following process for the receipt and timely review and investigation of allegations of neglect and abuse and misappropriation of resident property by a nurse aide or a resident in a nursing facility or by another individual used by the facility in providing services to such a resident.

When the above described incidences involve a nurse aide, they are reported to the Board of Health Professions, Board of Nursing. In addition, such allegations are frequently received by the facility administration which reports the allegations to the state survey agency. The state survey agency conducts the follow-up investigations.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-4.40200, eff. November 15, 1995.

12VAC30-20-275. Procedures for scheduling and conduct of standards surveys.

The state has in effect the following procedures for the scheduling and conduct of standard surveys to assure that it has taken all reasonable steps to avoid giving notice.

Onsite survey schedules are only accessible to staff of the Department of Health, Division of Licensure and Certification, which conducts the surveys. After the onsite review is initiated by the Division inspection staff, the Virginia Department of Health notifies the state agency for the aging ombudsman, the state fire marshal, and other agencies as needed.

Statutory Authority

§ 32.1.325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-4.40300, eff. November 15, 1995.

12VAC30-20-277. Programs to measure and reduce inconsistency.

The state has in effect the following programs to measure and reduce inconsistency in the application of survey results among surveyors.

The state survey agency conducts routine training programs, routine informational memorandums and procedural clarifications, routine team meetings, and ongoing supervisory review and monitoring of staff training needs.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-4.40400, eff. November 15, 1995.

12VAC30-20-278. Process for investigations of complaints and monitoring.

A. The state has in effect the following process for investigating complaints of violations of requirements by nursing facilities and monitors onsite on a regular, as needed basis, a nursing facility's compliance with the requirements of § 1919(b), (c), and (d) for the following reasons:

(i) The facility has been found not to be in compliance with such requirements and is in the process of correcting deficiencies to achieve such compliance;

(ii) The facility was previously found not to be in compliance with such requirements and has corrected deficiencies to achieve such compliance, and verification of continued compliance is indicated; or

(iii) The state has reason to question the compliance of the facility with such requirements.

B. All complaints are investigated by the Virginia Department of Health, Office of Health Facilities Regulation, per nature of the complaint.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-4.40500, eff. November 15, 1995.

Part IX
Administration, Civil Rights

12VAC30-20-280. Methods of administration; civil rights.

A statement of compliance (Form CB-FS 5022) and the State Agency's method of implementing administration in the Medical Assistance Program, which was submitted to the Department of Health, Education, and Welfare on November 30, 1967, are certified to be applicable to this State Plan.

The Methods of Administration for Title VI as initially furnished by the State Agency in 1965 in conformity with the requirements of Title VI of the Civil Rights Act of 1964, along with the agreements subsequently negotiated with the Office of Civil Rights in 1969 provide the working basis for the State Agency's administration of its compliance responsibilities under Title VI. This Plan provides for on site reviews of all vendor facilities, including facilities used under Title XIX, to be conducted annually to assure compliance with Title VI. This all programs operated by the Virginia Health Department (and by other State Agencies) are being and will be conducted in such a manner that no person will be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination on the ground of race, color, or national origin.

For all employees under the Medical Assistance Program, assurance is made that equal opportunity practices will exist in conformance with the requirements of Federal law, Title VII, Civil Rights Act of 1964. An Equal Employment Opportunity Plan was directed by State Executive order number twenty-nine to be applicable policy effective January 1, 1973, governing State personnel administration. Copies of this Plan were submitted to the Department of Health, Education, and Welfare, of the U.S. government. By directive of the Commissioner of Health, affirmative action on this Plan was directed on all levels of management of the Department of Health of Virginia and thereby on all employees of the State's Medical Assistance Program.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-7.2100, eff. July 1, 1987.

Part X
[Reserved]
Part XI
[Reserved]

12VAC30-20-290. [Reserved].

Part XI
[Reserved]

Part XII
Provider Appeals

12VAC30-20-500. Definitions.

The following words and terms when used in this part shall have the following meanings:

"Administrative dismissal" means a dismissal that requires only the issuance of a decision with appeal rights but does not require the submission of a case summary or any further proceeding.

"Day" means a calendar day unless otherwise stated.

"DMAS" means the Virginia Department of Medical Assistance Services or its agents or contractors.

"Hearing officer" means an individual selected by the Executive Secretary of the Supreme Court of Virginia to conduct the formal appeal in an impartial manner pursuant to §§ 2.2-4020 and 32.1-325.1 of the Code of Virginia and this part.

"Informal appeals agent" means a DMAS employee who conducts the informal appeal in an impartial manner pursuant to §§ 2.2-4019 and 32.1-325.1 of the Code of Virginia and this part.

"Last known address" means the provider's physical or electronic correspondence address on record in the DMAS Medicaid Management Information System as of the date DMAS transmits an item to the provider or the address of the provider's counsel of record. Nothing herein shall prevent DMAS and the provider from agreeing in writing during the course of an audit or an appeal to use an alternative location for the transmittal of an item or items related to the audit or the appeal.

"Provider" means an individual or entity that has a contract with DMAS to provide covered services and that is not operated by the Commonwealth of Virginia.

"Transmit" means to send by means of the United States mail, courier or other hand delivery, facsimile, electronic mail, or electronic submission.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 17, Issue 19, eff. July 4, 2001; amended, Virginia Register Volume 25, Issue 14, eff. April 15, 2009; Volume 32, Issue 23, eff. August 10, 2016.

12VAC30-20-510. [Reserved].

Historical Notes

Derived from Volume 17, Issue 19, eff. July 4, 2001.

12VAC30-20-520. Provider appeals: general provisions.

A. This part governs all DMAS informal and formal provider appeals and supersedes any other provider appeals regulations.

B. A provider may appeal any DMAS action that is subject to appeal under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), including DMAS' interpretation and application of payment methodologies. A provider may not appeal the actual payment methodologies.

C. DMAS shall transmit all items to the last known address of the provider. It is presumed that DMAS transmits items on the date noted on the item. It is presumed that providers receive items transmitted by United States mail to their last known address within three days after DMAS transmits the item by United States mail. It is presumed that providers receive items transmitted by facsimile, electronic mail, or other electronic submission on the date transmitted. It is presumed that providers receive items transmitted by courier or other hand delivery the date of delivery to the provider's last known address. These presumptions in this section shall apply unless the provider, through evidence beyond a mere denial of receipt, introduces evidence sufficient to rebut the presumption. If a provider requests a copy of an item, the transmittal date for the item remains the date originally noted on the item, and not the date that the copy of the requested item is transmitted. A provider's failure to accept delivery of an item transmitted by DMAS, or a provider's failure to open an item upon receipt, shall not result in an extension of any of the timelines established by this part.

D. Whenever DMAS or a provider is required to file a document, the document shall be considered filed when it is date stamped by the DMAS Appeals Division in Richmond, Virginia.

E. Whenever the last day specified for the filing of any document or the performance of any other act falls on a day on which DMAS is officially closed for the full or partial day, the time period shall be extended to the next day on which DMAS is officially open.

F. Conferences and hearings shall be conducted at DMAS' main office in Richmond, Virginia, or at such other place as agreed upon in writing by DMAS, the provider, and the informal appeals agent for informal appeals. For formal appeals, this agreement shall be between DMAS, the provider, and the hearing officer.

G. Whenever DMAS or a provider is required to attend a conference or hearing, failure by one of the parties to attend the conference or hearing shall result in dismissal of the appeal in favor of the other party.

H. DMAS shall reimburse a provider for reasonable and necessary attorneys' fees and costs associated with an informal or formal appeal if the provider substantially prevails on the merits of the appeal and DMAS' position is not substantially justified, unless special circumstances would make an award unjust. In order to substantially prevail on the merits of the appeal, the provider must be successful on more than 50% of the dollar amount involved in the issues identified in the provider's notice of appeal.

I. Any document that is filed with the DMAS Appeals Division after 5 p.m. Eastern Time shall be date stamped on the next day DMAS is officially open. Any document that is filed with the DMAS Appeals Division after 5 p.m. Eastern Time on the due date shall be untimely.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 17, Issue 19, eff. July 4, 2001; amended, Virginia Register Volume 25, Issue 14, eff. April 15, 2009; Volume 32, Issue 23, eff. August 10, 2016.

12VAC30-20-530. [Reserved].

Historical Notes

Derived from Volume 17, Issue 19, eff. July 4, 2001.

12VAC30-20-540. Informal appeals.

A. Notice of informal appeal.

1. Providers appealing the termination or denial of their Medicaid agreement pursuant to § 32.1-325 E of the Code of Virginia shall file a written notice of informal appeal with the DMAS Appeals Division within 15 days of the provider's receipt of the notice of termination or denial.

2. Providers appealing adjustments to a cost report shall file a written notice of informal appeal with the DMAS Appeals Division within 90 days of the provider's receipt of the notice of program reimbursement. The written notice of informal appeal shall identify the issues, adjustments, or items that the provider is appealing.

3. Providers appealing all other DMAS decisions shall file a written notice of informal appeal with the DMAS Appeals Division within 30 days of the provider's receipt of the decision. The written notice of informal appeal shall identify each adjustment, patient, service date, or other disputed matter that the provider is appealing.

B. Administrative dismissals.

1. Failure to timely file a written notice of informal appeal with the information required by subdivision A 2 or A 3 of this section shall result in an administrative dismissal.

2. A representative, billing company, or other third-party entity filing a written notice of appeal on behalf of a provider shall submit to DMAS, at the time of filing or upon request, a written authorization to act on the provider's behalf, signed by the provider. The authorization shall reference the specific adverse action being appealed including, if applicable, each patient's name and date of service. Failure to submit a written authorization as specified in this subdivision shall result in an administrative dismissal. This requirement shall not apply to an appeal filed by a Virginia licensed attorney.

3. If a provider has not exhausted any applicable DMAS or contractor reconsideration or review process or contractor's internal appeals process that the provider is required to exhaust before filing a DMAS informal appeal, the provider's written notice of informal appeal shall be administratively dismissed.

4. If DMAS has not issued a decision with appeal rights, the provider's attempt to file a written notice of informal appeal, prior to the issuance of a decision by DMAS that has appeal rights, shall be administratively dismissed.

C. Written case summary.

1. DMAS shall file a written case summary with the DMAS Appeals Division within 30 days of the filing of the provider's notice of informal appeal and shall transmit a complete copy of the case summary to the provider on the same day.

2. For each adjustment, patient, and service date or other disputed matter identified by the provider in its notice of informal appeal, the case summary shall explain the factual basis upon which DMAS relied in taking its action or making its decision and identify any authority or documentation upon which DMAS relied in taking its action or making its decision.

3. Failure to file a written case summary with the DMAS Appeals Division within 30 days of the filing of the written notice of informal appeal shall result in dismissal in favor of the provider.

4. The provider shall have 12 days following the due date of the case summary to file with the DMAS Appeals Division and transmit to the author of the case summary a written notice of all alleged deficiencies in the case summary that the provider knows, or reasonably should know, exist. Failure of the provider to timely file a written notice of deficiency with the DMAS Appeals Division shall be deemed a waiver of all deficiencies, alleged or otherwise, with the case summary.

5. Upon timely receipt of the provider's notice of deficiency, DMAS shall have 12 days to address the alleged deficiency. If DMAS does not address the alleged deficiency or does not address the alleged deficiency to the provider's satisfaction, the alleged deficiency shall become an issue to be addressed by the informal appeals agent as part of the informal appeal decision.

6. The informal appeals agent shall make a determination as to each deficiency that is alleged by the provider as set forth in this subsection. In making that determination, the informal appeals agent shall determine whether the alleged deficiency is such that it could not reasonably be determined from the case summary the factual basis and authority for the DMAS action, relating to the alleged deficiency, so as to require a dismissal in favor of the provider on the issue to which the alleged deficiency pertains.

D. Conference.

1. The informal appeals agent shall conduct the conference within 90 days from the filing of the notice of informal appeal. If DMAS, the provider, and the informal appeals agent agree, the conference may be conducted by way of written submissions. If the conference is conducted by way of written submissions, the informal appeals agent shall specify the time within which the provider may file written submissions, not to exceed 90 days from the filing of the notice of informal appeal. Only written submissions filed within the time specified by the informal appeals agent shall be considered.

2. The conference may be recorded at the discretion of the informal appeals agent and solely for the convenience of the informal appeals agent. Because the conference is not an adversarial or evidentiary proceeding, no other recordings or transcriptions shall be permitted. Any recordings made for the convenience of the informal appeals agent shall not be released to DMAS or to the provider.

3. Upon completion of the conference, the informal appeals agent shall specify the time within which the provider may file additional documentation or information, if any, not to exceed 30 days. Only documentation or information filed within the time specified by the informal appeals agent shall be considered.

E. Informal appeals decision. The informal appeal decision shall be issued within 180 days of receipt of the notice of informal appeal unless the provider and DMAS have mutually agreed in writing to stay the timeframe for issuing the informal decision pursuant to 12VAC30-20-550.

F. Remand. Whenever an informal appeal is required pursuant to a remand by court order, final agency decision, agreement of the parties, or otherwise, all time periods set forth in this section shall begin to run effective with the date that the document containing the remand is date-stamped by the DMAS Appeals Division in Richmond, Virginia.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 17, Issue 19, eff. July 4, 2001; amended, Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Volume 32, Issue 23, eff. August 10, 2016; Volume 37, Issue 24, eff. September 2, 2021.

12VAC30-20-550. Settlement agreements.

A. Providers who have filed an administrative appeal under 12VAC30-20-540 or 12VAC30-20-560 may submit a proposal to DMAS to settle the appeal.

B. A proposal for a settlement shall be submitted in writing by the provider or the provider's counsel to the DMAS Appeals Division Director. The proposal shall include the justification for the settlement and the terms proposed to settle the case. The Appeals Division Director shall refer the proposal to a DMAS appeal representative authorized by the Office of the Attorney General under § 2.2-509 of the Code of Virginia to represent DMAS in administrative proceedings.

C. Stay of decision deadlines.

1. Receipt of a settlement proposal from a provider in accordance with subsection B of this section shall not require the DMAS appeal representative to engage in settlement negotiations or agree to stay the deadline for the informal appeal decision or for the formal appeal recommended decision of the hearing officer (collectively, the decision deadline). The DMAS appeal representative and the provider may jointly agree in writing to stay the decision deadline for a period of up to 60 days to facilitate settlement discussions. The date of the written agreement of the parties to stay the decision deadline shall be the start date for calculating the length of the stay. Written notice of the agreement to stay the decision deadline and the length of stay shall be provided to the Appeals Division Director on the start date. During the stay, the time period to issue the informal appeal decision or the formal appeal recommended decision shall not run; however, all other interim deadlines remain applicable.

2. If the parties mutually agree in writing to a proposed resolution within the agreed upon stay period described in subdivision C 1 of this section, then the stay shall be extended for such additional time as may be necessary for review and approval of the settlement in accordance with § 2.2-514 of the Code of Virginia.

3. A stay may be removed by a party to the appeal for any reason, including the following:

a. The parties do not agree to a full settlement within the agreed upon stay period described in subdivision C 1 of this section;

b. One party advises the other and the Appeals Division Director in writing that it no longer agrees for the stay to continue; or

c. The parties reach a proposed settlement, but the proposed settlement is not approved in accordance with § 2.2-514 of the Code of Virginia.

If the stay is removed, the stay shall be communicated in writing between the parties and written notice provided to the Appeals Division Director. The time period to issue the informal appeal decision or the formal appeal recommended decision shall resume on the day the notice is provided to the Appeals Division Director.

12VAC30-20-560. Formal appeals.

A. A provider appealing a DMAS informal appeal decision shall file a written notice of formal appeal with the DMAS Appeals Division within 30 days of the provider's receipt of the informal appeal decision. The notice of formal appeal shall identify each adjustment, patient, service date, or other disputed matter that the provider is appealing. Failure to file a written notice of formal appeal in the detail specified within 30 days of receipt of the informal appeal decision shall result in dismissal of the appeal. Pursuant to § 2.2-4019 A of the Code of Virginia, DMAS shall ascertain the fact basis for decisions through informal proceedings unless the parties consent in writing to waive such a conference or proceeding to go directly to a formal hearing, and therefore only issues that were addressed pursuant to § 2.2-4019 of the Code of Virginia shall be addressed in the formal appeal, unless DMAS and the provider consent to waive the informal fact-finding process under § 2.2-4019 A of the Code of Virginia.

B. Documentary evidence, objections to documentary evidence, opening briefs, and reply briefs.

1. Documentary evidence, objections to documentary evidence, opening briefs, and reply briefs shall be filed with the DMAS Appeals Division on the date specified in this subsection. The hearing officer shall only consider those documents or pleadings that are filed within the required timeline. Simultaneous with filing, the filing party shall transmit a copy to the other party and to the hearing officer.

a. All documentary evidence upon which DMAS or the provider relies shall be filed within 21 days of the filing of the notice of formal appeal.

b. Any objections to the admissibility of documentary evidence shall be filed within seven days of the filing of the documentary evidence. The hearing officer shall rule on any such objections within seven days of the filing of the objections.

c. The opening brief shall be filed by DMAS and the provider within 30 days of the completion of the hearing.

d. Any reply brief from DMAS or the provider shall be filed within 10 days of the filing of the opening brief to which the reply brief responds.

2. If there has been an extension to the time for conducting the hearing pursuant to subsection C of this section, the hearing officer is authorized to alter the due dates for filing opening and reply briefs to permit the hearing officer to be in compliance with the due date for the submission of the recommended decision as required by § 32.1-325.1 B of the Code of Virginia and subsection E of this section.

C. The hearing officer shall conduct the hearing within 45 days from the filing of the notice of formal appeal, unless the hearing officer, DMAS, and the provider all mutually agree to extend the time for conducting the hearing. Notwithstanding the foregoing, the due date for the hearing officer to submit the recommended decision to the DMAS director, as required by § 32.1-325.1 B of the Code of Virginia and subsection E of this section, shall not be extended or otherwise changed.

D. Hearings shall be transcribed by a court reporter retained by DMAS.

E. The hearing officer shall submit a recommended decision to the DMAS director with a copy to the provider within 120 days of the filing of the formal appeal notice, unless the provider and DMAS have mutually agreed in writing to stay the timeframe for issuing the recommended decision pursuant to 12VAC30-20-550. If the hearing officer does not submit a recommended decision within 120 days of the filing of the notice of formal appeal or the period specified under 12VAC30-20-550, then DMAS shall give written notice to the hearing officer and the Executive Secretary of the Supreme Court that a recommended decision is due.

F. Upon receipt of the hearing officer's recommended decision, the DMAS director shall notify DMAS and the provider in writing that any written exceptions to the hearing officer's recommended decision shall be filed with the DMAS Appeals Division within 14 days of receipt of the DMAS director's letter. Only exceptions filed within 14 days of receipt of the DMAS director's letter shall be considered.

G. The DMAS director shall issue the final agency decision within 60 days of receipt of the hearing officer's recommended decision in accordance with § 32.1-325.1 B of the Code of Virginia.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 17, Issue 19, eff. July 4, 2001; amended, Virginia Register Volume 32, Issue 23, eff. August 10, 2016; Volume 37, Issue 24, eff. September 2, 2021.

12VAC30-20-570. Reconsideration of final agency decision.

A. Reconsiderations of a DMAS final appeal decision issued on a formal appeal conducted pursuant to § 2.2-4020 of the Code of Virginia shall be conducted in accordance with § 2.2-4023.1 of the Code of Virginia.

B. The DMAS director's review shall be made upon the case record of the formal appeal. Testimony or documentary submissions that were not part of the formal appeal case record prior to issuance of the final agency decision shall not be considered.

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.

FORMS (12VAC30-20).

Health Insurance Premium Payment HIPP for Kids (HFK) Program - Cost Sharing of Co-Pays, Deductibles and Co-insurance (undated)

Health Insurance Premium Payment Programs Application/Renewal, DMAS 500, and Employer Insurance Verification Form, DMAS-502 (rev. 2/2012)

Health Insurance Premium Payment (HIPP) and HIPP for Kids Program - Consent for Authorization for Release of Information - Family Member Eligibility Release (undated)

Health Insurance Premium Payment Program - Change Form (undated).

Health Insurance Premium Payment Program (HIPP) for Kids - Change Form (eff. 9/2010)

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