These policies (including the de-novo process, 90 day reinstate rule, etc) are all written with little to NO regard for the impact on local agencies. When (IF) this PHE ever ends, the local agencies are going to get SLAMMED with appeals.... SLAMMED! 

DMAS, CPU, and other entities have continued to incorrectly approve people. At which point the local agency CANT CLOSE the case. The local workers are going to have to close hundreds of incorrectly enrolled cases and will get ALL APPEALS. The process gets easier and easier for the client to "slide by" but the workers are left with NO support from the state. "Overtime" is not a solution to overworked and burnt out staff. All of these "assistance at the state level" ideas crash and burn and offer no real support but only cause more issues because they aren't trained fully - just thrown into things and hope for the best. Over and Over we see it. Meanwhile - the Medicaid and SNAP caseloads have more than tripled in some areas with no efforts to provide local agencies additional funding for extra positions. 

The appeals process at current is validating what seems like EVERYTHING!!! They have no regard for the amount of work an appeals summary takes for a local worker to complete. They have this new AIMs portal to again - make it easier for them but with no regard for the locals. (All the information is already in VaCMS and DMIS but because they are so short sighted and don't care about the locals - its too much effort for them to find documents in a system that is so terrible (we know - we have to everyday and especially have to when we download, save, and reupload for the appeals office.) The work on for end is unbelievable and they keep selling "efficiency." VaCMS and DMIS are always down. You can't label documents in a way that is later searchable in DMIS. VaCMS is constantly causing and creating errors for local workers. But - "hey y'all... here's ANOTHER system to use called AIMS. It will make life easier?"  But - you can't log in with one password, you have to get the password that then sends a code to your email. You have to go to VaCMS and DMIS (where everything is ALREADY SAVED!!!! to find, download, save, rename EVERY DOCUMENT that supports the appeal, then RE-UPLOAD it to the AIMS system PLUS rewrite the entire case into an appeals summary because it's also too much work to just read the narrative." There's also a SEPERATE process for QC (by the way.) 

In nursing homes, you have people approved for full benefits - STATE TAX PAYER DOLLARS paying for nursing home care while the clients have a $0 co pay due to a system error that can't be corrected due to PHE or clients that have SOLD A HOME and are literally sitting on $350,000+ in resources but still getting STATE TAX DOLLARS to pay for their care while they live off the money getting all kinds of extras that other patients aren't getting.  There are clients on caseloads across the state right now that should be paying a copay/Patient pay of over $1000+ per month but aren't because the VaCMS system is crap and PHE doesn't allow us to fix errors. 

However, the state policy writers are SO out of touch with what is happening at a local level and so focused on getting socialism in place so that healthcare is free for all - they don't care that the turnover in benefits has gone up so much in past years. (Just look at the State profiles for this! it's true!) 

END PHE and QUIT giving people SO MANY LOOPHOLES! you are going to bankrupt the state and federal funds, as well as run off ALL qualified staff that care deeply about what they do.  We can't even access MMIS any longer to make changes and be trusted as competent people who have been working in the field and know the manual better than most at the state. We can't be trusted? VaCMS is a MAJOR MAJOR issue! Hornby Zeller?? You tell me the last time a long term care review took only 1 hour. But when PHE ends (if PHE ends) you want us to do x number of reviews per month? ok!?! Sure! We will do as many as possible and try as hard as we can (like always) - promise that. we will be superhuman as always - promise that. But your quota - who knows.  We know at a local level that on the other end of all of this is a client that needs help, a client that needs food, care, but the state has left us with lacking customer services because we don't even have time to eat lunch let-alone explain what the 30+ page notice of action says to the client on the phone, who by the way is old and half blind and can't ready font size 8.  

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

Dear Regulatory Supervisor McClellan:

The Legal Aid Justice Center (LAJC)[1] appreciates the opportunity to comment on alterations to the 12 VAC 30-110 Client Appeals Update emergency regulations.

LAJC partners with communities and clients to fight for racial, social, and economic justice. Together, we work to dismantle the systems that create and perpetuate poverty. LAJC seeks justice through four programs: the Civil Rights and Racial Justice Program, the Economic Justice Program, the Youth Justice Program, and the Immigrant Justice Program. Our Economic Justice Program houses our Health Justice Projects, including two medical-legal partnerships with two of the largest academic health systems in Virginia.  In our ongoing effort to promote quality, stable access to health care for all, we submit the following comments on the proposed updates to the emergency regulations governing client appeals.

We applaud many of the amendments, and we elaborate on their necessity below.

1. These Revisions are Necessary to Bring Virginia Appeal Processes into Conformity with Federal Requirements and to Protect Medicaid Claimants from Erroneous Deprivations of their Critical Health Benefits

Nearly two million Virginians depend on Medicaid to receive essential health benefits. More than 800,000 of these members are children.[2] Virginia Medicaid also delivers critical health supports to low-income and low-resourced elderly and disabled Virginians, many of whom receive health care services in their communities so that they may safely live out their lives alongside their loved ones in the least restrictive environment possible. Others still rely on Medicaid to access life-saving care in institutional settings like nursing homes and long-term care facilities.

Because Medicaid services and supports are so critical to the wellbeing of beneficiaries, Federal law provides important, robust appeal rights to Medicaid claimants when they are threatened with the loss, reduction, or denial of their Medicaid benefits. Virginia Medicaid laws reiterate many of these Federal appeal protections. These proposed emergency regulations necessarily clarify Virginia Medicaid appeal procedures, ensuring that Virginians on Medicaid can effectuate their appeal rights and that the Commonwealth’s laws, policies, and practices conform to the Federal requirements. 

As Legal Aid attorneys representing Medicaid claimants faced with the devastating prospect of losing their essential Medicaid benefits, we have seen first-hand the harm that can arise in the absence of these regulatory amendments. We have seen our elderly client with advanced dementia, who depends on her personal care attendant to bathe her, feed her, help her move from her bed to her wheelchair, receive a notice from her Managed Care Organization (MCO) stating she would lose half of the hours her attendant was authorized to work because, allegedly, such hours were not “medically necessary” without any further explanation. We have seen our client with quadriplegia, who required total assistance to complete all activities of daily living, receive a notice from his MCO slashing his home health care services despite no improvement or change in his medical needs. And when we have appealed cases like these, we have seen Hearing Officers consider only the evidence the MCOs had at the time they issued such arbitrary service reductions, leaving our clients unable to present pertinent evidence to show their ongoing need for their services. Furthermore, we have received administrative decisions that simply deferred to MCOs and the vague, boilerplate justifications included in their denial notices. The absence of these regulations left our clients facing the erroneous deprivation of their Medicaid benefits on which their safety, wellbeing, and avoidance of institutionalization depended.

Thus, these emergency regulations rightfully bring Virginia Medicaid laws and practices into conformity with Federal Medicaid laws by clarifying various appeal protections and Due Process rights already enshrined therein. We therefore applaud the Department of Medical Assistance Services (DMAS) for proposing these emergency regulatory amendments, and we offer our support and specific feedback below.

2. 12VAC30-110-185: Appeal Summary

First, we strongly support how these amendments specify precisely what needs to be included in the appeal summary notices. In particular, requiring “[a] summary of the facts surrounding and the grounds supporting the adverse action” is essential for appellants to understand the rationale behind adverse decisions and to prepare necessary evidence for their appeals.

We further suggest that when the agency/MCO/contractor seeks to reduce, terminate, or deny services a claimant had been granted previously, it must include a specific explanation of how the member’s needs have changed or improved such that the previously authorized services are no longer medically necessary. Additionally, if the agency/MCO/contractor denies or reduces the requested services and justifies the adverse action by stating the prior service authorizations were incorrect, then it must specifically explain why such past authorizations were incorrect and why the authorizations were not corrected until the instant proposed action. The agency/MCO/contractor also must include any and all documentation related to the prior, purportedly incorrect service authorization on which it relied in making its decision. Failing to include such information in the appeal summary would violate a claimant’s rights to Due Process because the claimant would be left to litigate a decision made long ago, based on information the claimant may no longer have access to or have an opportunity to examine, challenge, or support.

Lastly, we propose the regulations require the agency and its contractors to have a clear procedure for ensuring that any and all documentation used to make the adverse decision be included in the appeal summary, so that Medicaid claimants can verify their appeal summaries are complete, and that the agency/MCO/contractor did not rely on any secret criteria or evidence that claimants cannot challenge. 

3. 12VAC30-110-220 Evidentiary Hearings

We enthusiastically support DMAS’ clarification that “[a]ll hearings shall be considered de novo.” 12VAC30-110-220(B). First, this clarification ensures Virginia’s State Fair Hearing procedures conform to the Federal Medicaid Act’s requirements. Second, de novo hearings allow Hearing Officers to consider all relevant evidence and make fully informed decisions, thereby significantly reducing the risk of erroneously depriving a Medicaid beneficiary of their benefits.

As the 2020 Medicaid Memo addressing State Fair Hearing procedures makes unequivocal, Hearing Officers shall not defer to MCOs when issuing their final decisions. Because de novo hearings require the Hearing Officer to consider “all relevant evidence submitted during the appeal. . .even if the evidence was not previous received by the agency,” the emergency regulation should reiterate this existing Medicaid policy that prohibits Hearing Officers from deferring to MCOs, as such deference would contravene the purpose of a de novo hearing.

Additionally, we applaud the proposed change to the burden of proof requirement. We agree that the burden of proof should fall on the party who is attempting to change the status quo.

Assigning the burden of proof to the party who is attempting to change the status quo will provide fundamental fairness in State Fair Hearings. It makes particularly just and good sense to assign the MCO the burden of proof when it attempts to reduce or terminate services for a Medicaid claimant because Medicaid beneficiaries with chronic conditions who receive these services need to be able to rely on the provision of these services on a consistent basis. Moreover, just as in civil actions where the Plaintiff generally bears the burden of proof, here too, the moving party should bear the burden of proof.  

Lastly, we suggest DMAS add an additional subsection clarifying that when a moving party seeks to terminate or reduce a claimant’s previously approved Medicaid service, a Hearing Officer must consider the existence of the claimant’s previously approved service authorizations. Such previously approved service authorizations were considered medically necessary when approved, and thus, should carry a presumption that – absent a change in the claimant’s needs or circumstances – they remain medically necessary to treat the member’s conditions. The strength of this presumption should be directly related to the number and duration of previous approvals. For the entity that has proposed the adverse action to satisfy its burden of proof, it must demonstrate by a preponderance of the evidence that the claimant’s condition has changed since the previous approval such that a reduction or denial of the service is required by law or policy,  or it must demonstrate that the previous authorization was made in error by providing sufficient evidence thereof and an explanation as to why the error was not previously detected/corrected.

4. 12VAC30-120-670 State Fair Hearing Process and Final Decision

Once again, we fully support the amendments proposed in this subsection. We suggest reiterating in this subsection that de novo hearings require not only that the Hearing Officer’s final decision be “based upon the evidence and testimony presented” at the hearing, but also that Hearing Officers shall not defer to MCOs. Finally, we suggest the regulations clarify that a claimant’s previously approved service authorizations shall carry strong evidentiary weight showing that the claimant continues to meet medical necessity criteria for the services.

Once again, we thank you for the opportunity to comment on these important proposed regulatory amendments. If you have any questions, please reach out to Michaela Lieberman or Amy Walters at the Legal Aid Justice Center.

Sincerely,

Michaela Lieberman

Senior Attorney

Health Justice Program

Legal Aid Justice Center

1000 Preston Avenue, Ste. A

Charlottesville, VA 22903

(434) 529-1839

michaela@justice4all.org

Amy Walters

Senior Attorney, Director of Clinics 

Health Justice Program, Youth Justice Program

Legal Aid Justice Center

1000 Preston Avenue, Ste. A

Charlottesville, VA 22903

(434) 529-1833

amyw@justice4all.org

Laura Faas

Third-year UVA Law Student

Health & Disability Law Clinic

working under the supervision of

Michaela Lieberman and Amy Walters

Dear Regulatory Supervisor McClellan:

These comments are submitted by the Virginia Poverty Law Center (VPLC) on behalf of low-income  Virginians. VPLC advocates for low-income adults, individuals with disabilities, and the welfare of children and families many of whom rely on Medicaid for their healthcare needs. We also provide support to legal aid agencies throughout Virginia who represent  people who have been improperly denied a benefit or lost a service for which they are eligible. We appreciate the opportunity to comment on these regulatory changes and are pleased to see previous changes made in the policy manual and through provider memos incorporated into regulation. This is an important step in bringing Virginia in line with federal due process hearing requirements and we applaud the agency for their work ensuring Medicaid applicants and enrollees are able to exercise their rights through the Fair Hearing process.

Most of our comments on the regulations relate to the basic due process requirements:

In the seminal due process case Goldberg, when considering the state’s burden to provide hearings where there is a loss to an entitled benefit, the US Supreme Court found, “there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. Suffice to say that to cut off a welfare recipient in the fact of ‘brutal need’ without a prior hearing is unconscionable[…]” Goldberg v. Kelly, 397 U.S. 254, 261 (1970). Much of the requirements listed in Goldberg are still the requirements today, such as: an opportunity to be heard in a meaningful manner, timely and adequate notice, effective opportunity to defend by confronting adverse witnesses and presenting witnesses at an oral hearing, the opportunity to obtain counsel, hearing decisions explaining the reasoning for the decision and based on the legal rules and evidence from the hearing, and an impartial decisionmaker.

The due process requirement of adequate notice was later clarified to require that “interested parties be given a reasonable opportunity to know the claims of adverse parties and an opportunity to meet them.” North Alabama Express, Inc. v. United States, 585 F.2d 783, 786 (5th Cir.1978). Adequate notice should "specify the nature of the facts and evidence on which the agency proposes to take action." Hess & Clark, Division of Rhodia, Inc. v. Food and Drug Administration, 161 U.S. App. D.C. 395, 495 (D.C.Cir.1974). Wolff v. McDonnell, 418 U.S. 539, 564 (1974) ("Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact"). Due process imposes this burden of adequate notice on the government, not the individual.  Driver v. Housing Authority, 713 N.W.2d 670, 676, 678 (Wis. Ct. App. 2006). Issue switching occurs where the decision-maker decides against the appellant on an alternative ground that was not provided in the notice and therefore the appellant was unable to defend against the new issue. See Camacho v. Bolling, 562 F. Supp.1012, 1019 (N.D. Ill. 1983).

Additionally, changes to regulations related to MCOs beyond those currently proposed are needed to comply with federal de novo hearing requirements. Virginia operates a complex Medicaid program that is heavily reliant on managed care organizations (MCOs), with 90% of beneficiaries enrolled in an MCO. While some of the suggested changes are outside the sections under review in this rulemaking, it is critical to address them as they relate to MCO requirements for the hearing process and recipient rights and responsibilities. Some of the missing regulations outline the appellant’s right to receive information regarding an adverse benefit decision as required by federal regulation and therefore fall under the purview of this rulemaking as it relates to the timeframes for submission of documents. Since the underlying issue leading to these changes were caused by improper deference to MCO decisions and improper cuts of benefits by MCOs, we believe more attention must be paid to the MCO requirements. State regulation has yet to be updated to reflect federal MCO regulation. 

Definitions: We want to note that the definition for adverse decision includes the reasons listed in 42 CFR 431.244 but does not include all of the appeal reasons listed in 42 CFR 438.400(b) and also does not include appealable reasons, such as inaction, found in 12VAC30-110-10. We would ask that this definition be revised.

Notification of adverse agency action:

• 12VAC30-110-70: There are no changes to this section in the proposed regulations, but, as stated above, Virginia has not updated state regulation to align with federal MCO requirements. Many of these are outlined in DMAS’s 3/9/2021Memo “Information Regarding Contract Requirements for Medicaid Managed Care Organization”, but should also be incorporated into state code. 42 CFR 438.404 (Also in 42 CFR 438.406 (b)(4)) states that the following must be included in timely and adequate notice of adverse benefit determinations: “The reasons for the adverse benefit determination, including the right of the enrollee to be provided upon request and free of charge, reasonable access to and copies of all documents, records, and other information relevant to the enrollee's adverse benefit determination. Such information includes medical necessity criteria, and any processes, strategies, or evidentiary standards used in setting coverage limits.”

If this section is unable to be amended under this emergency regulation, we would suggest that this requirement be included in the Appeal summary (12VAC30-110-185.A.3).

Appeal Summary:

• 12VAC30-110-185.A.3: The appeal summary should state the name of the individual/s who reviewed the evidence and made the decision. The ability to call adverse witnesses is a fundamental aspect of due process. 12VAC30-120-670.G states that appellant’s have “the opportunity to confront and cross-examine agency representatives.” If the appellant does not know who made the decision, they do not know who to cross-examine. Additionally, the MCO contract requires individuals’ titles and qualifications to be provided. Without their name, you cannot confirm that the titles and qualifications are current, sufficient under federal law, or if there are any complaints or other issues which disqualify them from being a decision-maker.
• 12VAC30-110-185.A.4: we would suggest adding the following language to A.4.: “[…] the adverse action that has sufficient information such that the appellant will have a clear understanding of what was relied on in making the decision.” 
• 12VAC30-110-185.A.6: we would suggest clarifying the level of detail required in documenting records that were relied upon and providing them to the appellant so that the individual has actual notice of what the decision-maker relied on so as to be able to adequately prepare and cross-examine adverse witnesses. Additionally, when an adverse decision is overturning prior decisions (such as service authorizations), the appeal summary should include the previous approval notices and any documents reviewed or relied on in making the previous decisions.
• 12VAC30-110-185.B: federal law requires information to be provided “sufficiently in advance” 42 CFR 438.406(b)(5). Appeals can involve a very large amount of information to review, sending information five days prior to hearing is insufficient under due process.
• First, information that is sent five days prior to a hearing may very well not be received until after the hearing has occurred due to the time it takes to mail information. The language should be changed to say how many days prior to hearing the information must be received by.
• Second, the definition section has changed the definition of days to calendar not business days. So even if the language is changed to received, someone receiving the notice on a Friday on a holiday weekend would only have two business days to review evidence prior to hearing. This is insufficient to allow basic due process rights of preparing a defense and access to counsel.
• Third, subpoena requests are required to be issued 10 days before the fair hearing, if an individual does not have notice of who to subpoena until less than five days prior to the hearing, they will be unable to bring witnesses/adverse witnesses to the hearing as required by due process.

Virginia civil procedure provides that all evidence must be provided 30 days prior to hearing which would allow adequate review. Alternatively, since the MCO is given 21 days to gather their evidence (See M1680.100.C) and provide it to appellant, the appellant should be given the same 21 days after receipt of evidence to review the record, gather their evidence, and issue subpoenas. Other states have also used 21 days.

Evidentiary Hearings

• 12VAC30-110-220.B. We suggest including the following language to clarify that the submission of additional evidence is an appellant’s right. “[…]consider all relevant evidence presented by the appellant or appellant’s representative during the appeal […].”

We are very supportive of Section B as a whole but suggest clarifying agency or MCO deference:

“The hearing officer shall consider[...] and shall not give deference to the agency or managed care organization.”

• 12VAC30-110-220.C. Section C improperly creates an arbitrary and non-impartial hearing officer where it states that proof must be to the “satisfaction” of an individual hearing officer. Federal requirements are that "[…] the decision maker must be impartial…" Goldberg v. Kelly at 270-271. We suggest the following edit to remove this due process violation: “To prevail in the appeal, the party with the assigned burden of proof shall establish its position to the satisfaction of the hearing officer by a preponderance of the evidence.” What satisfies a hearing officer is irrelevant, what needs to be established is which side the evidence and legal rules support.
• 12VAC30-110-220.D: Section D too broadly allows delays to fair hearing timelines that would have the effect of removing any timeliness requirement from the agency, improperly create a requirement to submit evidence with an appeal, and is in violation of federally allowed delays. Federal law allows delays in an emergency situation or where “[t]he agency cannot reach a decision because the appellant requests a delay or fails to take a required action;” 42 CFR 431.244(A). This rule cannot be applied as the agency is attempting to apply it where they state the following: “Failure to submit information with the appeal so that it can be moved forward will add delay to the appeal decision due date per 42 CFR 431.244” for four main reasons:
• First, submitting evidence with an appeal is not a required action under federal law and Virginia cannot arbitrarily make it a required action. Federal law prohibits the agency from “interfere[ing] with the applicant’s or beneficiary’s freedom to make a request for a hearing.” 42 CFR § 431.221. Creating a new required piece of an appeal request without federal authority is interfering with an individual’s right to file an appeal and have a timely decision. There may be a circumstance where information submitted late does create a delay but that must be a case-by-case decision and cannot be applied to all cases where evidence was not submitted with the appeal paperwork, that defeats the purpose of a De Novo hearing and timely decision.  
• Second, given that an individual will not receive an appeal summary until less than five days prior to a hearing, and therefore will not know the reasoning of the agency nor evidence it needs to respond to until that time period, it is hard to imagine that there is any circumstance where an appellant will know what information they need to provide with their initial appeal and therefore the agency is giving itself the ability to delay every single hearing at no fault of the appellant.
• Third, under due process it is the state’s obligation to provide adequate notice, and if the decision lacks adequate information in order to know what evidence to submit with an appeal, then any delay in submission of evidence is in fact that state’s fault. Making a blanket delay for submission of evidence with an appeal improperly shifts the due process burden from the state to provide adequate notice so someone can marshal a defense to the recipient.
• Fourth, it punishes recipients for delays that might be outside of their control (such as a records requests that they must wait on). The state has required deadlines to file an appeals. However, a third-party record request could take longer than either timeline. In that case, a recipient will be punished for an inability to obtain a record request, an action outside of their control.

To comply with federal law, I would suggest the following language change:

“D. Submission of evidence. If possible, the [...] Failure to submit information with the appeal so that it can be moved forward will add delay to the appeal decision due date per 42 CFR 431.244.”

Where the decision is unable to be reached, in an unusual circumstance beyond the agency’s control, the agency still has the right pursuant to 42 CFR§ 431.244(4)(i)(B) to extend the timeline for the decision. However, failure to submit evidence with an appeal request will never meet this rule as that is not a required action. It is only where evidence is submitted so late that it causes an actual delay that a delay can be allowed—unusual circumstances.

• 12VAC30-110-220.E DMAS’s May 10, 2021 Memo: Information Regarding DMAS Client Appeals (State Fair Hearing) states that “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.” We agree with this assessment and suggest that a new section be added to 12VAC30-110-220. to clarify this requirement. Further, the presumption of medical necessity should be strengthened when the services has been approved multiple times.

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 by a preponderance of the evidence that the Member’s condition has changed since the previous approval such that a reduction or revocation of the service is required by law, regulation, or policy, or it must demonstrate that the previous authorization was made in error with evidence sufficient to rebut the presumption that the service was previously medically necessary. 

Final Decision and Transmission of the Hearing Record

• 12VAC30-110-370.A. The language about hearing officer’s not giving deference to the MCO should also be in this section.
• 12VAC30-110-370.A.4 Conclusions and reasoning that explains how the hearing officer valued certain evidence and that addresses all arguments made at hearing.

Hearing officers have failed to address legal arguments made in hearings in their reasoning and failed to explain why evidence was not probative in violation of due process.

State fair hearing process and final decisions

• 12VAC30-120-670.B.2.  “Unless compelling reasons exist which shall be determined by the department hearing officer.” This language is incredibly vague and could lead to arbitrary decision-making. We would suggest defining what compelling reasons mean or using “good cause” or some other term that has an ascertainable standard.

• 12VAC30-120-670.E. We would suggest language referencing the administrative code section that details how a hearing officer must respond to requests for subpoenas as this section only lists the right to ask for them but not what the hearing officer’s obligations are after the request is made. I believe the relevant section is §2.2-4022.  
• 12VAC30-120-670.F.  This language was already in the code but we would suggest these minor edits to more clearly align it with due process requirements.

• “assure that the state fair hearing remains relevant to the issue being appealed, where the agency or MCO switches the reasons for the decision from the reason stated in the notice, the agency or MCO decision must be overturned.” Issues switching by the decision-maker is a violation of due process. Where this occurs, the agency should lose on the original notice of action and be required to issue a new notice on the new grounds they are alleging.
• “The hearing officer shall [...] decide who may participate in or observe the state fair hearing.” This language is overly broad and allows a hearing officer to improperly deny an appellant the opportunity to bring witnesses without limiting the circumstances in which this denial of participation is allowed. The right to bring witnesses is a federally protected due process right as well as being listed in Section G.

• 12VAC30-120-670.G.  

• Section G uses a confusing word when referring to state fair hearing when it states that it “shall be conducted in an informal, nonadversarial manner.” The word nonadversarial may have mistakenly been used instead of the word impartial, which is the federal requirement. § 431.240(a)(3). A hearing is by necessity adversarial as “due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly. Nonadversarial should be replaced with impartial as a clean up in line with federal requirements.

• H. The word “nonrepetitive” should be stricken as it is an unclear standard that can lead to arbitrary decisions. Repetitive evidence may be probative and go towards showing that something is an ongoing repeating problem or towards the severity of a need.
• I.4. “Any additional evidence received will become a part of the state fair hearing record, but the hearing officer must determine whether evidence received from an entity other than the appellant or appellant’s representative or not it will be used in making the decision.”

We appreciate all of the work that has gone into implementing the de novo hearing system and the opportunity to comment on these changes.

Sincerely,

Emily Hardy                                 Sara Cariano

Elder Law Attorney                    Senior Health Policy Analyst