|Client Appeals Update
|Ended on 10/26/2022
Dear Regulatory Supervisor McClellan:
The Legal Aid Justice Center (LAJC) 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.
Nearly two million Virginians depend on Medicaid to receive essential health benefits. More than 800,000 of these members are children. 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.
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.
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.
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.
Health Justice Program
Legal Aid Justice Center
1000 Preston Avenue, Ste. A
Charlottesville, VA 22903
Senior Attorney, Director of Clinics
Health Justice Program, Youth Justice Program
Legal Aid Justice Center
1000 Preston Avenue, Ste. A
Charlottesville, VA 22903
Third-year UVA Law Student
Health & Disability Law Clinic
working under the supervision of
Michaela Lieberman and Amy Walters
 Medicaid at a Glance, https://www.dmas.virginia.gov/about-us/medicaid-at-a-glance/ (last visited October 25, 2022).