Dear Ms. McClellan,

The disAbility Law Center of Virginia (dLCV) appreciates this opportunity to comment on the proposed Client Appeals Update promulgated pursuant to Item 317.GG(2) in the 2021 Appropriations Act. As Virginia’s protection and advocacy agency, dLCV regularly represents Medicaid members in fair hearings before the Department of Medical Assistance Services (DMAS). Based on our experience in these hearings, we welcome the increased clarity afforded by these emergency regulations regarding the de novo nature of DMAS fair hearings, the submission of evidence prior to and during fair hearings, and particularly the party that bears the burden of proof during an appeal in a fair hearing.

We also welcome the inclusion of the proposed language in section 12VAC30-110-185, which enumerates the required components of an appeal summary. It has been our experience that managed Care Organizations (MCOs) frequently fail to include relevant documents in their appeals summary, which prevents Medicaid members appealing an adverse decision rendered by an MCO from being able to fully prepare for their fair hearing.

In a recent fair hearing, for example, an assessment that the MCO claimed supported a reduction of a Medicaid member’s services was not included in the appeal summary. The MCO’s reliance on this assessment was only known to the member because it was referenced in passing in the notice of adverse benefits determination. At the hearing, the MCO’s medical director was unable to recall whether she had reviewed or relied upon any records other than the referenced assessment that were not contained in the appeal summary. The medical director further testified that the MCO had no process, procedure, or standard practice for identifying and documenting the records that the MCO’s medical directors review or rely upon in rendering their decision. This prevents Medicaid members and DMAS hearing officers from verifying whether the MCO has included all relevant records in the appeal summary. The proposed language in 12VAC30-110-185 does not address this problem.

Additionally, DMAS has previously made clear that in cases involving a reduction or revocation of previously approved services, it is incumbent on the agency or contractor to demonstrate either that the Member’s condition has improved, or that the previous authorization decision was somehow made in error:

The existence of a previously approved service authorization indicates the requested services previously were deemed medically necessary. For a reduction or termination of those same services, due process to the Member requires an explanation as to what has changed, or how the previous service authorization approval was made in error. (DMAS, Information Regarding DMAS Client Appeals (Fair Hearings), May 10, 2021, p. 5).

In these cases, the contents of previously approved service authorization requests, and the documents that the agency or contractor reviewed in deciding those requests are highly relevant to determining whether the Member’s needs have changed since those approved authorizations, or whether those previous authorizations were decided in error. These records, however, are not typically included in the appeal summary.

Finally, we have noticed inconsistency between hearing officers in their application of DMAS’s previous guidance on fair hearings with respect to reductions and revocations of previously approved services. Incorporating the intent of that guidance in regulation will promote consistency and better protect the rights of Medicaid members. 

We propose the following changes to address these concerns:

Recommended changes to 12VAC30-110-185: 

A. The agency proposing the action about which the individual requested the state hearing shall complete an appeal summary, which shall include:

5. Citations to the statutes, regulations, and specific provisions of the department's Medicaid manual or other policy that support the agency's action; and

6. The adverse benefit determination or the decision notice; and any other documents relating to the appeal upon which the agency relied in making its decision.

7. Any other documents reviewed or relied upon by the agency or contractor in making the decision that is the subject of the appeal. The agency or contractor shall have a process for identifying the documents that are reviewed or relied upon in making its decision; and the appeal summary shall include a list of these documents.

8. In cases involving reductions or revocations of previously approved services, the appeal summary shall also include the previous approval notice and any documents reviewed or relied upon in making the previous decision.

Recommended changes to 12VAC30-110-220:

E. Previously approved services. In an appeal involving a proposed termination or reduction of a previously approved Medicaid service, the existence of a previously approved service authorization shall create a presumption that the service was medically necessary when it was approved. The strength of this presumption is directly related to the number and duration of previous approvals. For the entity that has proposed the termination or reduction to satisfy its burden of proof, it must demonstrate that the Member’s condition has improved, or that the previous authorization was made in error. 

Thank you for this opportunity to comment on this proposed emergency regulatory action. If you have any questions about these comments or otherwise wish to discuss this matter further, please contact Robert Gray, dLCV Director for Compliance and Quality Assurance, at robert.gray@dlcv.org or 804-662-7188.

Sincerely,

Colleen Miller

Executive Director