In general, these changes appear aimed at reducing the rights of providers in the administrative appeals process which conflicts with the spirit and the letter of the Administrative Process Act.  DMAS should have met with stakeholders, such as representatives of the Virginia Bar Association(VBA), to discuss these proposed changes before publishing them. The failure of DMAS to do this is suspect given that similar discussions occurred prior to the last changes in these regulations.  If DMAS is truly acting in good faith with regard to these changes I would highly recommend that DMAS withdraw these regulatory changes until a meeting between DMAS and representatives of the VBA Health Law Section takes place, which could be easily accomplished.

Below are some key points concerning the proposed changes, but this list is not exhaustive of all concerns that exist with the changes.

12-VAC 30-20-500

*Definition of "last known address" is problematic. First, the term "electronic address" is not defined. Second, sending correspondence to a provider's counsel should only occur for matters where provider's counsel has indicated they are representing a provider in an appeal. Also, what address is   used in this case, "physical or electronic?"

*Definition of "transmit" what does electronic submission mean?

12 VAC 30-20-520

C. Timeframes should be based on business days, not just days. No one can be presumed to receive mail on Saturday or Sunday, even electronic mail. Also, emails should be deemed received the next business day when sent after 5 pm on a business day. Also, the presumption of receipt of emails requires discussion as emails often go astray or are caught in spam filters (especially if large attachments are included). The presumption as to receipt of emails is virtually impossible to rebut and is unfair to the provider.

D. Providers have had issues with timely stamping of receipt by the appeals division. Sometimes there is no one from the division readily available to stamp a receipt and sometimes items are not timely stamped for a variety of reasons within DMAS. It is recommended that the rule provide that if a package is delivered to DMAS it is deemed received. Otherwise DMAS' internal issues could cause a package to be deemed late even though it arrived at DMAS or its P.O. Box in a timely manner. This concept would clearly be fairer to the provider.

I. See comment above.

12 VAC 30-20-540

A(3) DMAS requirement of providers to identify each adjustment, patient services date is unfair to providers who are often small businesses that may not be represented by counsel at the informal appeal level. This language appears designed to dismiss appeals of unsophisticated providers. If this language is to remain in the regulations providers should be notified and given an opportunity to "cure" any deficiency in the appeal within a reasonable time before any dismissal takes place. Furthermore, all requirements in this section should be included in the DMAS decision sent to the provider that serves as the basis for the informal appeal.

B(3)

DMAS should be required to set forth in writing the basis for the administrative dismissal under this section.  Also, I believe the provider is permitted under federal law to go directly to DMAS under certain circumstances and this not addressed. Also, if an appeal is administratively dismissed under this section it should be clear that it can be re-filed once the provider completes the MCO's internal appeal process.

C(2) The wording replaces the existing wording which requires that the case summary "contain" the factual basis for each adjustment. The word "contain" should remain as it is fairer to the provider and closer to the requirements in the APA. By requiring that the case summary contain the factual basis DMAS is required to give the provider copies of what DMAS examined to make its decision. This is what the APA requires and other State agencies, such as the Department of Health professions recognize this by giving the affected party the documentation relied upon by the agency to make its decision.  DMAS now uses the word "explain" and this is not appropriate or fair.

C(3-5) improperly relieves DMAS of the obligation to file a sufficient case summary the first time. It improperly puts the onus on the provider at the informal appeal level when they are often unrepresented by counsel to note and inform DMAS of  all deficiencies  with the case summary within 12 days following the date of the case summary(not the date of receipt by the provider). This language is clearly designed to insulate DMAS from its obligation to provide the factual and legal basis of its decisions in a case summary to the provider. It is the equivalent of the criminal being obligated to discern the charges against him, rather than putting the burden on the prosecution to define what they are. This section should be re-written to remove the clear bias in favor of DMAS in the section.

C(6) The role of the informal appeals agent should be to determine if the case summary is missing the factual and legal basis for the adjustments, not trying to determine what it is reasonable for an unrepresented provider to have discerned about the case summary. It is an inappropriate obligation to place on the informal appeals agent(who is a DMAS employee).

12 VAC 30-20-560

A.  As written, this section is inconsistent with the APA and fails to make clear that the formal appeal is a de novo proceeding which the Virginia Court of Appeals has said the statutes make clear.

B. In cases where documentary evidence is objected to, either party should be entitled to have a hearing on the objection upon request, and the party opposing the objection should be entitled to submit their position in writing to the hearing officer.