The following words and terms when used in this part shall have the following meanings unless the context clearly indicates otherwise. All other words and terms used in this part shall comply with the definitions in the contract and those identified 42 CFR 438.2:

"Adverse benefit determination" means, consistent with 42 CFR 438.400, (i) the denial or limited authorization of a requested service; (ii) the failure to take action or timely take action on a request for service; (iii) the reduction, suspension, or termination of a previously authorized service; (iv) the denial in whole or in part of a payment for a covered service; (v) the failure to provide services within the timeframes required by the state, or for a resident of a rural exception area with only one MCO, the denial of a member's request to exercise his right under 42 CFR 438.52(b)(2)(ii) to obtain services outside of the network; (vi) the denial of a member's request to dispute a financial liability; or (vii) the failure of an MCO to act within the timeframes provided in 42 CFR 438.408(b).

"Appeal" when applicable to a member means a request to DMAS to review an MCO's internal appeal decision to uphold the contractor's adverse benefit determination. For members, an appeal may only be requested after exhaustion of the MCO's one step internal appeal process. Member appeals to DMAS will be conducted in accordance with regulations at 42 CFR 431 Subpart E and 12VAC30-110-10 through 12VAC30-110-370.

"Appeal" when applicable to an appeal by a provider means a request to DMAS to review an MCO's reconsideration decision. For providers, an appeal may only be requested after exhaustion of the MCO's reconsideration process. Provider appeals to DMAS will be conducted in accordance with the requirements set forth in § 2.2-4000 et seq. of the Code of Virginia and 12VAC30-20-500 et seq.

"Covered services" means Medicaid services as defined in the State Plan for Medical Assistance.

"Day" means calendar day unless otherwise stated.

"Disenrollment" means the process of changing enrollment from one managed care organization (MCO) plan to another MCO, if applicable.

"DMAS" means the Department of Medical Assistance Services.

"Eligible person" means any person eligible for Virginia Medicaid in accordance with the State Plan for Medical Assistance under Title XIX of the Social Security Act.

"Emergency services" means those health care services that are rendered by participating or nonparticipating providers after the sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in (i) placing the client's health in serious jeopardy; (ii) with respect to a pregnant woman, placing the health of the woman or her unborn child in serious jeopardy; (iii) serious impairment to bodily functions; or (iv) serious dysfunction of any bodily organ or part.

"Exclude" means the removal of a member from the Medallion mandatory managed care program on a temporary or permanent basis.

"External quality review organization" or "EQRO" means an organization that meets the competence and independence requirements set forth in 42 CFR 438.354 and performs external quality reviews, other external quality review related activities as set forth in 42 CFR 438.358, or both.

"Grievance" means, in accordance with 42 CFR 438.400, an expression of dissatisfaction about any matter other than an "adverse benefit determination." Possible subjects for grievances include the quality of care or services provided; aspects of interpersonal relationships, such as rudeness of a provider or employee; or failure to respect the member's rights.

"Health care professional" means a provider as defined in 42 CFR 438.2.

"Individual" means a person who is eligible for Medicaid who is not yet undergoing enrollment for mandatory managed care and who is not enrolled in a mandatory managed care organization.

"Internal appeal" means a request to the MCO by a member or by a member's authorized representative or provider acting on behalf of the member and with the member's written consent for review of a contractor's adverse benefit determination, as defined in 42 CFR 438.400. The internal appeal is the only level of appeal with the MCO and must be exhausted by a member or deemed exhausted according to 42 CFR 438.408(c)(3) before the member may initiate a state fair hearing with DMAS.

"Managed care organization" or "MCO" means an organization that offers managed care health insurance plans (MCHIP), as defined by § 38.2-5800 of the Code of Virginia. Any health maintenance organization as defined in § 38.2-4300 of the Code of Virginia or health carrier that offers preferred provider contracts or policies as defined in § 38.2-3407 of the Code of Virginia or preferred provider subscription contracts as defined in § 38.2-4209 of the Code of Virginia shall be deemed to be offering one or more MCHIPs. For the purposes of this definition, the prohibition of balance billing by a provider shall not be deemed a benefit payment differential incentive for covered persons to use providers who are directly or indirectly managed by, owned by, under contract with, or employed by the health carrier. A single managed care health insurance plan may encompass multiple products and multiple types of benefit payment differentials; however, a single managed care health insurance plan shall encompass only one provider network or set of provider networks.

Additionally, and in accordance with 42 CFR 438.2, "managed care organization" or "MCO" means an entity that has qualified to provide the services covered in the Medallion program to qualifying Medallion members as accessible in terms of timeliness, amount, duration, and scope as those services are to other Medicaid members within the area served, and that meets the solvency standards of 42 CFR 438.116.

"Mandatory managed care program" means the same as set forth in 42 CFR 438.54(b) and (d).

"Member" means a person eligible for Medicaid or Family Access to Medical Insurance Security who has been assigned to a Medicaid MCO.

"Network provider" means doctors, hospitals, or other health care providers who participate or contract with an MCO contractor and as a result agree to accept a mutually agreed upon sum or fee schedule as payment in full for covered services that are rendered to eligible participants.

"Newborn enrollment period" means the period from the child's date of birth plus the next two calendar months.

"PCP of record" means a primary care physician of record with whom the recipient has an established history, and such history is documented in the individual's records.

"Reconsideration" means a provider's request to the MCO for review of an adverse benefit determination. The MCO's reconsideration decision is a prerequisite to a provider's filing of an appeal, as provided for in 12VAC30-20-500 through 12VAC30-20-560, to DMAS Appeals Division.

"Rural exception" means a rural area designated in the § 1915(b) managed care waiver, pursuant to § 1932(a)(3)(B) of the Social Security Act and 42 CFR 438.52(b) and recognized by the Centers for Medicare and Medicaid Services, wherein qualifying mandatory managed care members are mandated to enroll in the one available contracted MCO.

A. DMAS shall determine enrollment in Medallion mandatory managed care.

1. Medicaid eligible persons not meeting the exclusion criteria set out in subsection B of this section shall participate in the Medallion mandatory managed care program. Enrollment in Medallion mandatory managed care shall not be a guarantee of continuing eligibility for services and benefits under the Virginia Medical Assistance Services Program.

2. DMAS reserves the right to exclude from participation in the Medallion mandatory managed care program any member who has been consistently noncompliant with the policies and procedures of managed care or who is threatening to providers, MCOs, or DMAS. There must be sufficient documentation from various providers, the MCO, and DMAS of these noncompliance issues and any attempts at resolution. Members excluded from Medallion mandatory managed care through this provision may appeal the decision to DMAS.

B. The following individuals shall be excluded (as defined in 12VAC30-120-360 and the § 1915(b) managed care waiver) from participating in Medallion mandatory managed care. Individuals excluded from Medallion mandatory managed care shall include the following:

1. Individuals who are inpatients in state mental hospitals;

2. Individuals who are approved by DMAS as inpatients in long-stay hospitals, nursing facilities, or intermediate care facilities for individuals with intellectual disabilities;

3. Individuals who are placed on spend-down, which is the process of reducing countable income by deducting incurred medical expenses for medically needy individuals, as determined in the State Plan for Medical Assistance;

4. Individuals who are participating in the family planning waiver;

5. Prior to April 1, 2019, individuals younger than 21 years of age who are approved for DMAS residential facility Level C programs as defined in 12VAC30-130-860;

6. Individuals, other than students, who permanently live outside their area of residence, which is the member's address in the Medicaid eligibility file, for greater than 60 consecutive days except those individuals placed there for medically necessary services funded by the MCO;

7. Individuals who receive hospice services in accordance with DMAS criteria;

8. Individuals with insurance purchased through the Health Insurance Premium Payment Program (HIPP);

9. Individuals requesting exclusion who are inpatients in hospitals, other than those listed in subdivisions 1 and 2 of this subsection, at the scheduled time of MCO enrollment or who are scheduled for inpatient hospital stay or surgery within 30 calendar days of the MCO enrollment effective date. The exclusion shall remain effective until the first day of the month following discharge. This exclusion reason shall not apply to members admitted to the hospital while already enrolled in a department-contracted MCO;

10. Individuals who request exclusion during assignment to an MCO or within a time set by DMAS from the effective date of their MCO enrollment, who have been diagnosed with a terminal condition and who have a life expectancy of six months or less. The individual's physician must certify the life expectancy;

11. Individuals who have an eligibility period that is less than three months;

12. Individuals who have an eligibility period that is only retroactive; and

13. Children enrolled in the Virginia Birth-Related Neurological Injury Compensation Program established pursuant to Chapter 50 (§ 38.2-5000 et seq.) of Title 38.2 of the Code of Virginia.

C. Members enrolled with an MCO who subsequently meet one or more of the criteria of subsection B of this section during MCO enrollment shall be excluded from MCO participation as determined by DMAS. .

D. Individuals who are enrolled in localities that qualify for the rural exception may meet exclusion criteria if their PCP of record, as defined in 12VAC30-120-360, cannot or will not participate with the one MCO in the locality. Individual requests to be excluded from MCO participation in localities meeting the qualification for the rural exception must be made to DMAS for consideration on a case-by-case basis. Members enrolled in MCO rural exception areas shall not have open enrollment periods and shall not be afforded the 90-day window after initial enrollment during which they may make a health plan or program change.

Individuals excluded from Medallion mandatory managed care enrollment shall receive Medicaid services under the current fee-for-service system. When individuals no longer meet the criteria for exclusion, they shall be required to enroll in the appropriate managed care program.

E. Medallion mandatory managed care plans shall be offered to individuals, and individuals shall be enrolled in those plans. DMAS has sole responsibility for determining enrollment in the contractor's plan. DMAS utilizes an independent enrollment broker under contract to DMAS to assist members with making plan choices after initial preassignment and during open enrollment. An enrollment broker is an independent contractor that enrolls individuals in the contractor's plan and is responsible for the operation and documentation of a toll-free individual service helpline.

F. Members shall be enrolled as follows:

1. All eligible individuals, except those meeting one of the exclusions in subsection B of this section, shall be enrolled in Medallion mandatory managed care.

2. Individuals shall receive a Medicaid card from DMAS and shall be provided authorized medical care in accordance with DMAS procedures after Medicaid eligibility has been determined to exist.

3. Once individuals are enrolled in Medicaid, they will receive a letter indicating that they may select one of the contracted MCOs. These letters shall indicate an assigned MCO, determined as provided in subsection G of this section, in which the member will be enrolled if he does not make a selection within a period specified by DMAS of not less than 30 days. Members who are enrolled in one mandatory MCO program who immediately become eligible for another mandatory MCO program are able to maintain consistent enrollment with the member's currently assigned MCO if available. These members will receive a notification letter including information regarding their ability to change health plans under the new program.

4. Any newborn whose mother is enrolled with an MCO at the time of birth shall be considered a member of that same MCO for the newborn enrollment period.

a. This requirement does not preclude the member, once the member is assigned a Medicaid identification number, from disenrolling from one MCO to enrolling with another in accordance with subdivision H 1 of this section.

b. The newborn's continued enrollment with the MCO is not contingent upon the mother's enrollment. Additionally, if the MCO's contract is terminated in whole or in part, the MCO shall continue newborn coverage if the child is born while the contract is active until the newborn receives a Medicaid number or for the newborn enrollment period, whichever timeframe is earlier. Newborns who remain eligible for participation in Medallion mandatory managed care will be reenrolled in an MCO through the assignment process upon receiving a Medicaid identification number.

c. Any newborn whose mother is enrolled in an MCO at the time of birth shall receive a Medicaid identification number prior to the end of the newborn enrollment period in order to maintain the newborn's enrollment in an MCO.

5. Individuals who lose then regain eligibility for Medallion mandatory managed care within 60 days will be reenrolled into their previous MCO without going through assignment and selection.

G. Individuals who do not select an MCO as described in subdivision F 3 of this section shall be assigned to an MCO as follows:

1. Individuals are assigned through a system algorithm based upon the member's history with a contracted MCO.

2. Individuals not assigned pursuant to subdivision 1 of this subsection shall be assigned to the MCO of another family member if applicable.

3. Individuals who live in rural exception areas as defined in 12VAC30-120-360 shall enroll with the one available MCO. These individuals shall receive an assignment notification for enrollment into the MCO. Individuals in rural exception areas who are assigned to the one MCO may request exclusion from MCO participation if their PCP of record, as defined in 12VAC30-120-360, cannot or will not participate with the one MCO in the locality. Individual requests to be excluded from MCO participation in rural exception localities must be made to DMAS for consideration on a case-by-case basis. 

4. All other individuals shall be assigned to an MCO on a basis of approximately equal number by MCO in each locality.

5. All eligible members are automatically assigned to a contracted MCO in their localities. Members are allowed 90 days after the effective date of initial enrollment to change to another MCO that participates in the geographic area where the member lives. Members residing in localities qualifying for a rural exception shall not be afforded the 90-day window after initial enrollment during which they may make a health plan or program change.

6. DMAS shall have the discretion to use an alternate strategy for enrollment or transition of enrollment from the method described in this section for expansions, retractions, or changes to member populations, geographical areas, procurements, or any or all of these; such alternate strategy shall comply with federal waiver requirements. "Retractions" means the departure of an enrolled managed care organization from any one or more localities as provided in this section.

H. Following the member's initial enrollment into an MCO, the member shall be restricted to the MCO until the next open enrollment period, unless appropriately disenrolled or excluded by the department, as defined in 12VAC30-120-360.

1. During the first 90 days of enrollment in an initial MCO, a member may disenroll from that MCO to enroll into another MCO for any reason. Such disenrollment shall be effective no later than the first day of the second month after the month in which the member requests disenrollment.

2. During the remainder of the enrollment period, the member may only disenroll from one MCO into another MCO upon determination by DMAS that good cause exists as determined under subsection J of this section.

I. The department shall conduct an annual open enrollment for all Medallion mandatory managed care members with the exception of those members who live in a designated rural exception area. The open enrollment period shall be the 60 days before the end of the enrollment period. Prior to the open enrollment period, DMAS will inform the member of the opportunity to remain with the current MCO or change to another MCO, without cause, for the following year. Enrollment selections will be effective on the first day of the next month following the open enrollment period. Members who do not make a choice during the open enrollment period will remain with their current MCO selection.

J. Disenrollment for cause may be requested at any time and the disenrollment reasons shall be in accordance with 42 CFR 438.56 (d)(2)(v).

1. The request may be made orally or in writing to DMAS and shall cite the reason or reasons why the member wishes to disenroll. Cause for disenrollment shall be in accordance with 42 CFR 438.56(d)(2), which includes the following reasons:

a. A member's desire to seek services from a federally qualified health center that is not under contract with the member's current MCO, and the member requests a change to another MCO that subcontracts with the desired federally qualified health center;

b. Performance or nonperformance of service to the member by an MCO or one or more of its network providers that is deemed by the DMAS external quality review organizations to be below the generally accepted community practice of health care. This may include poor quality care;

c. Lack of access to a primary care physician or necessary specialty services covered under the State Plan or lack of access to network providers experienced in dealing with the member's health care needs;

d. A member has a combination of complex medical factors that, in the sole discretion of DMAS, would be better served under another contracted MCO;

e. The member moves out of the MCO's service area;

f. The MCO does not, because of moral or religious objections, cover the service the member seeks; or

g. The member needs related services to be performed at the same time; not all related services are available within the network, and the member's primary care provider or another provider determines that receiving the services separately would subject the member to unnecessary risk.

2. DMAS shall determine whether cause exists for disenrollment. Written responses shall be provided within a timeframe set by department policy; however, the effective date of an approved disenrollment shall be no later than the first day of the second month following the month in which the member files the request in compliance with 42 CFR 438.56.

3. Cause for disenrollment shall be deemed to exist and the disenrollment shall be granted if DMAS fails to take final action on a valid request prior to the first day of the second month after the request.

4. The DMAS determination concerning cause for disenrollment may be appealed by the member in accordance with the DMAS client appeals process at 12VAC30-110-10 through 12VAC30-110-370.

5. The current MCO shall provide within two working days of a request from DMAS information necessary to determine cause.

6. Members enrolled with an MCO who subsequently meet one or more of the exclusions in subsection B of this section during MCO enrollment shall be excluded from Medallion as determined appropriate by DMAS.

K. In accordance with 42 CFR 438.3(q)(5) and 42 CFR 438.56(c)(2), a member has the right to disenroll from the contractor's plan without cause at the following times:

1. During the 90 days following the date of the member's initial enrollment into the MCO or during the 90 days following the date DMAS sends the member notice of that enrollment, whichever is later.

2. At least once every 12 months thereafter.

3. Upon automatic reenrollment under subsection G of this section if the temporary loss of Medicaid eligibility has caused the beneficiary to miss the annual disenrollment opportunity.

4. When DMAS imposes the intermediate sanction specified in 42 CFR 438.702(a)(4).

A. The MCO shall provide, at a minimum, all medically necessary covered services provided under the State Plan for Medical Assistance and further defined by written federal and state regulations, the Medallion contract, policies, and instructions, except as otherwise modified or excluded in this part.

1. Nonemergency services provided by hospital emergency departments shall be covered by MCOs in accordance with rates negotiated between the MCOs and the hospital emergency departments.

2. Services that shall be provided outside the MCO network shall include those services identified and defined by the contract between DMAS and the MCO. Services reimbursed by DMAS include dental and orthodontic services for children younger than 21 years of age, dental services for others as described in 12VAC30-50-190, and school health services.

3. The MCOs shall pay for emergency services and family planning services and supplies whether such services are provided inside or outside the MCO network.

B. Early and periodic screening, diagnostic, and treatment (EPSDT) services shall be covered by the MCO and defined by the contract between DMAS and the MCO. The MCO shall have the authority to determine the provider of service for EPSDT screenings.

C. The MCOs shall report data to DMAS under the contract requirements, which may include data reports, report cards for members, and ad hoc quality studies performed by the MCO or third parties.

D. Documentation requirements.

1. The MCO shall comply with the records retention requirements as outlined in the contract. The MCO shall furnish such required information to DMAS, the Attorney General of Virginia or his authorized representatives, or the State Medicaid Fraud Control Unit on request and in the form requested.

2. Each MCO shall comply with the member rights and protections stipulated in the contract and as identified in 42 CFR 438 Subpart C.

E. The MCO shall comply with the contract and 42 CFR 438 Subparts E and H to ensure that the health care provided to its members meets all applicable federal and state mandates, community standards for quality, and standards developed pursuant to the DMAS managed care quality program.

F. The MCOs shall promptly provide or arrange for the provision of all required services as specified in the contract between the Commonwealth and the MCO. Medical evaluations shall be available within 48 hours for urgent care and within 30 days for routine care. On-call clinicians shall be available 24 hours per day, seven days per week.

G. The MCOs shall meet the standards specified in 42 CFR 438, Subpart D by DMAS for sufficiency of provider networks as specified in the contract between the Commonwealth and the MCO.

H. Each MCO and its subcontractors shall have in place and follow written policies and procedures for processing requests for initial and continuing authorizations of service. Each MCO and its subcontractors shall ensure that any decision to deny a service authorization request or to authorize a service in an amount, duration, or scope that is less than requested be made by a health care professional who has appropriate clinical expertise in treating the member's condition or disease. Each MCO and its subcontractors shall have in effect mechanisms to ensure consistent application of review criteria for authorization decisions and shall consult with the requesting provider when appropriate.

I. In accordance with 42 CFR 447.50 through 42 CFR 447.90, MCOs shall not impose any cost sharing obligations on members except as set forth in 12VAC30-20-150 and 12VAC30-20-160.

J. An MCO may not prohibit or otherwise restrict a health care professional acting within the lawful scope of practice from advising or advocating on behalf of a member who is his patient in accordance with 42 CFR 438.102.

K. An MCO that would otherwise be required to reimburse for or provide coverage of a counseling or referral service is not required to do so if the MCO objects to the service on moral or religious grounds and furnishes information about the service it does not cover in accordance with 42 CFR 438.102.

The payment rate to MCOs that participate in the Medallion mandatory managed care program shall be set by negotiated contracts and in accordance with 42 CFR 438.4 through 42 CFR 438.8 and other pertinent federal regulations.

The MCOs shall pay for preauthorized, emergency, and post-stabilization services to members in compliance with the contract and 42 CFR 438.114. Preauthorized, emergency, and post-stabilization services provided to a managed care member by a provider or facility not participating in the MCO's network will be reimbursed according to the current Medicaid fee schedule. This reimbursement shall be considered payment in full to the provider or facility of emergency services.

A. DMAS shall rigorously monitor the quality of care provided by the MCOs. DMAS and the MCOs shall comply with (i) the contract; (ii) 42 CFR 438 Subpart E, entitled Quality Measurement and Improvement: External Quality Review; and (iii) the MCO standards identified in 42 CFR 438 Subpart D, entitled MCO, PIHP, and PAHP Standards. DMAS shall monitor the MCOs to determine their compliance with the contract, 42 CFR Subpart A, and all other relevant sections of 42 CFR Part 438 (Managed Care) as follows:

1. If the MCO fails substantially to provide the medically necessary items and services required under law or under the contract to be provided to an enrolled recipient and the failure has adversely affected or has substantial likelihood of adversely affecting the individual.

2. If the MCO engages in any practice that discriminates against individuals on the basis of their health status or requirements for health care services, including expulsion or refusal to reenroll an individual, or any practice that could reasonably be expected to have the effect of denying or discouraging enrollment (except as permitted by § 1903(m) of the Social Security Act (42 USC §  1396(m)) by eligible individuals whose medical conditions or histories indicate a need for substantial future medical services.

3. If the MCO misrepresents or falsifies information that it furnishes, under § 1903(m) of the Social Security Act (42 USC § 1396b(m)) to CMS, DMAS, an individual, or any other entity.

4. If the MCO fails to comply with the requirements of 42 CFR 417.479(d) through 42 CFR 417.479(g) relating to physician incentive plans or fails to submit to DMAS its physician incentive plans as required or requested in 42 CFR 434.70.

5. If the MCO imposes on members premiums or charges that are in excess of the premiums or charges permitted under the Medicaid program.

B. DMAS shall ensure that data on performance and patient results are collected.

C. DMAS shall ensure that quality outcomes information is provided to MCOs. DMAS shall ensure that changes that are determined to be needed as a result of quality control or utilization review are made.

A. If DMAS determines that an MCO is not in compliance with applicable state or federal laws or regulations (including the requirements of or pursuant to § 1932(e)(1) of the Social Security Act (the Act), 12VAC30-120-380, or 42 CFR 438 Subpart I) or the MCO contract, DMAS may impose sanctions on the MCO pursuant to § 1932(e) of the Act and this section. The sanctions may include:

1. Limiting enrollments in the MCO by freezing voluntary member enrollments;

2. Freezing DMAS assignment of members to the MCO;

3. Limiting MCO enrollment to specific areas;

4. Denying, withholding, or retracting payments to the MCO;

5. Terminating the MCO's contract as provided in § 1932(e)(4) of the Act;

6. Civil monetary penalties as specified in 42 CFR 438.704; and

7. Appointment of temporary management for an MCO as provided in 42 CFR 438.706.

B. In the case of an MCO that has repeatedly failed to meet the requirements of §§ 1903(m) and 1932(e) of the Social Security Act, DMAS shall, regardless of what other sanctions are imposed, impose the following sanctions:

1. Appoint a temporary manager to:

a. Oversee the operation of the Medicaid managed care organization upon a finding by DMAS that there is continued egregious behavior by the organization or there is a substantial risk to the health of members; or

b. Ensure the health of the organization's members if there is a need for temporary management while (i) there is an orderly termination or reorganization of the organization or (ii) improvements are made to remedy the violations found under subsection A of this section. Temporary management under this subdivision may not be terminated until DMAS has determined that the MCO has the capability to ensure that the violations shall not recur.

2. Permit members who are enrolled with the MCO to disenroll without cause. If this sanction is imposed, DMAS shall be responsible for notifying such members of the right to disenroll.

C. Prior to terminating a contract as permitted under § 1932(e)(4) of the Act, DMAS shall provide the MCO with a hearing. DMAS shall not provide an MCO with a predetermination hearing before the appointment of a temporary manager under subdivision B 1 of this section.

D. Prior to imposing any sanction other than termination of the MCO's contract, DMAS shall provide the MCO with notice, develop procedures with which the MCO must comply to eliminate specific sanctions, and provide such other due process protections as the Commonwealth may provide.

A. The MCOs shall comply with (i) the Grievance and Appeal System as identified in 42 CFR 438 Subpart F, (ii) the Enrollee Rights and Protections requirements in 42 CFR 438 Subpart C, (iii) the Medallion contract between DMAS and the MCO, and (iv) any other applicable state or federal statutory or regulatory requirements.

B. MCOs shall at (i) the initiation of new member enrollment, (ii) the initiation of new provider or subcontractor contracts, or (iii) the request of the member, provide to every member the information described in 42 CFR 438.10(g) concerning grievance and appeal rights and procedures.

C. Disputes between the MCO and the member concerning any aspect of service delivery, including medical necessity and specialist referral, shall be resolved through a verbal or written grievance or appeals process operated by the MCO or through the DMAS appeals process. A provider or other representative who has the member's written consent may act on behalf of a member in the MCO grievance or appeals or the DMAS appeals process.

1. The member, provider, or representative acting on behalf of the member with the member's written consent may file an oral or written grievance or internal appeal with the MCO. The MCO must accept grievances filed at any time. Internal appeal requests must be submitted within 60 days from the date of the notice of adverse benefit determination. Oral requests for internal appeals must be followed up in writing by the member, provider, or the representative acting on behalf of the member with the member's consent, unless the request is for an expedited internal appeal.

2. The member must exhaust the MCO's internal appeals process before appealing to the DMAS Appeals Division. The member may also file a written request for a standard or expedited internal appeal of the MCO's adverse benefit determination with the DMAS Appeals Division within 120 days of the member's receipt of the MCO's internal appeal decision, in accordance with 42 CFR 431 Subpart E; 42 CFR Part 438 Subpart F; and 12VAC30-110-10 through 12VAC30-110-370.

3. As specified in 12VAC30-110-100, pending the resolution of a grievance, internal appeal, or appeal filed by a member or his representative (including a provider acting on behalf of the member) prior to the effective date of the adverse benefit determination, coverage shall not be terminated or reduced for the member for any reason that is the subject of the grievance or appeal.

4. The MCO shall ensure that neither the individuals nor agents, nor a subordinate of any such individual, who makes decisions on grievances and internal appeals were involved in any previous level of review or decision making. Additionally, where the reason for the grievance or internal appeal involves clinical issues or relates to a denial of a request for an expedited appeal, or where the appeal is based on a lack of medical necessity, the MCO shall ensure that the decision makers are health care professionals with the appropriate clinical expertise in treating the member's condition or disease.

5. The MCO shall provide the member and any representative a reasonable opportunity in person and in writing to present evidence and testimony and to make legal and factual arguments in accordance with 42 CFR 438.406(b)(4). The MCO shall inform the member of the limited time available for this sufficiently in advance of the resolution timeframe for appeals in accordance with 42 CFR 438.406(b)(4).

6. The MCO shall provide the member and any representative the member's case file, including medical records, and any new or additional evidence considered, relied upon, or generated by the MCO in connection with the appeal of the adverse benefit determination. This information must be provided free of charge and sufficiently in advance of the resolution timeframe for appeals in accordance with 42 CFR 438.406(b)(5).

D. The MCO shall develop written materials describing the grievance or appeals system and its procedures and operation.

E. The MCO shall maintain a recordkeeping, reporting, and tracking system for complaints, grievances, and appeals that complies with the Medallion contract between DMAS and the MCO. The system shall include a copy of the original complaint, grievance, or internal appeal; the decision; the nature of the decision; and data on the number of internal appeals filed, the average time to resolve internal appeals, and the total number of internal appeals open as of the reporting date. This system shall distinguish Medicaid from commercial members if the MCO does not have a separate system for Medicaid members.

F. At the time of enrollment and at the time of any adverse benefit determination, the MCO shall notify the member in writing that:

1. An adverse benefit determination may be resolved through a system of grievances and appeals, first within the MCO and then through the DMAS client appeals process;

2. Members have the right to request an expedited internal appeal;

3. Members shall exhaust their internal appeals with the MCO before being given the right to appeal to DMAS; and

4. The MCO shall promptly provide grievance or appeal forms, reasonable assistance, and written procedures to members who wish to register written grievances or appeals, including auxiliary aids and services upon request such as providing interpreter services and toll-free numbers that have adequate TTY/TTD and interpreter capability.

G. The MCO shall issue grievance or internal appeal decisions as defined by 42 CFR 438.408 and the contract between DMAS and the MCO. Oral grievance decisions are not required to be in writing.

H. The MCO shall issue standard internal appeal decisions within 30 days from the date of initial receipt of the internal appeal in accordance with 42 CFR 438.408 and as defined by the Medallion contract between DMAS and the MCO. This timeframe may be extended by up to 14 days under the requirements of 42 CFR 438.408. The internal appeal decision shall be in writing and shall include the following:

1. The decision reached, the results, and the date of the decision reached by the MCO;

2. The reasons for the decision;

3. The policies or procedures that provide the basis for the decision;

4. For internal appeals not resolved wholly in favor of the member:

a. A clear explanation of further appeal rights and a timeframe for filing an internal appeal; and

b. The right to continue to receive benefits in accordance with 42 CFR 438.420 pending a hearing and how to request continuation of benefits.

The member may be held liable for the cost of those benefits if the hearing decision upholds the contractor's adverse benefit determination.

I. An expedited appeal decision shall be issued as expeditiously as the member's condition requires and within 72 hours from receipt of the internal appeal request in cases of medical emergencies in which delay could result in death or serious injury to a member. Extensions to these timeframes shall be allowed in accordance with 42 CFR 438.408 and as defined by the Medallion contract between DMAS and the MCO. Written confirmation of the decision shall promptly follow the verbal notice of the expedited decision.

J. If the MCO fails to adhere to the internal appeals notice and timing requirements of this section, the member is deemed to have exhausted the MCO's internal appeals process and may file an internal appeal with DMAS.

K. Any adverse benefit determination upheld in whole or in part by the internal appeal decision issued by the MCO may be appealed by the member to DMAS in accordance with the DMAS appeals regulations at 12VAC30-110-10 through 12VAC30-110-370. DMAS shall conduct an evidentiary hearing in accordance with the Client Appeals regulations at 12VAC30-110-10 through 12VAC30-110-370 and shall not base any appealed decision on the record established by any internal appeal decision of the MCO. The MCO shall comply with the DMAS appeal decision. The DMAS decision in these matters shall be final and shall not be subject to appeal by the MCO.

L. The MCO shall provide information necessary for any DMAS appeal within timeframes established by DMAS.

A. The MCOs shall comply with the requirements of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), the provider appeals regulations at 12VAC30-20-500 through 12VAC30-20-560, the Medallion contract between DMAS and the MCO, and any other applicable state or federal statutory or regulatory requirements.

B. The MCOs shall have a grievance system established to respond to grievances made by network providers. Network provider grievances are not appealable to the DMAS Appeals Division.

C. MCOs shall, at the initiation of new network provider contracts, provide to every network provider the information described in this section concerning grievance, reconsideration, and appeal rights and procedures.

D. Disputes between the MCO and the network provider concerning any aspect of reimbursement shall be resolved through a verbal or written grievance or reconsideration process operated by the MCO or through the DMAS appeals process. A network provider or representative that is authorized by the network provider may act on behalf of a network provider in the MCO grievance or reconsideration or the DMAS appeals process.

E. Disputes arising solely from the MCO's denial or termination of a provider's enrollment in the MCO's network are not appealable to the DMAS Appeals Division.

F. If a network provider has rendered services to a member and has been denied authorization or reimbursement for the services or has received reduced authorization or reimbursement, that provider may request a reconsideration of the denied or reduced authorization or reimbursement. Before appealing to DMAS, network providers must first exhaust all MCO reconsideration processes. The MCO's final denial letter must include a statement that the provider has exhausted its reconsideration rights with the MCO and that the next level of appeal is with DMAS. The final denial letter must include the appeal rights to DMAS in accordance with the provider appeals regulations at 12VAC30-20-500 through 12VAC30-20-560.

G. All network provider appeals to DMAS must be submitted to the DMAS Appeals Division in writing and within 30 days of the MCO's last date of denial.

H. The MCO shall provide information necessary for any DMAS appeal within timeframes established by DMAS.

I. The MCO shall comply with the DMAS appeal decision. A DMAS appeal decision is not appealable by the MCO.

J. The MCO shall maintain a recordkeeping, reporting, and tracking system for complaints, grievances, and reconsiderations that complies with the Medallion contract between DMAS and the MCO. The system shall include a copy of the original complaint, grievance, or reconsideration; the decision; the nature of the decision; and data on the number of reconsiderations filed, the average time to resolve reconsiderations, and the total number of reconsiderations open as of the reporting date.

Historical Notes

Reserved, Virginia Register Volume 13, Issue 5, eff. January 1, 1997.

The following words and terms when used in this part shall have the following meanings unless the context clearly indicates otherwise:

"Adverse action" means the denial, suspension, or reduction in services or the denial or retraction, in whole or in part, of payment for a service that has already been rendered.

"Adverse benefit determination" means, consistent with 42 CFR 438.400, any of the following: (i) the denial or limited authorization of a requested service, including determinations based on the type or level of service, requirements for medical necessity, appropriateness, setting, or effectiveness of a covered benefit; (ii) the reduction, suspension, or termination of a previously authorized service; (iii) the denial, in whole or in part, of payment for a service; (iv) the failure to provide services in a timely manner, as defined by the state; (v) the failure of an MCO, PIHP, or PAHP to act within the timeframes provided in 42 CFR 438.408(b)(1) and 42 CFR 438.408(b)(2) regarding the standard resolution of grievances and appeals; (vi) for a resident of a rural area with only one MCO, the denial of an enrollee's request to exercise the enrollee's right under 42 CFR 438.52(b)(2)(ii) to obtain services outside the network; or (vii) the denial of an enrollee's request to dispute a financial liability, including cost sharing, copayments, premiums, deductibles, coinsurance, and other enrollee financial liabilities.

"Appellant" means an applicant for or recipient of Medicaid benefits who seeks to challenge an adverse benefit determination taken by the participating plan, subcontractor, service provider, or DMAS regarding eligibility for services and payment determinations.

"Authorized representative" means the same as set forth in 12VAC30-110-1380 and 12VAC30-110-1390.

"Centers for Medicare and Medicaid Services" or "CMS" means the federal agency of the U.S. Department of Health and Human Services that is responsible for the administration of Titles XVIII, XIX, and XXI of the Social Security Act.

"Commonwealth Coordinated Care Plus program" or "CCC Plus" means the department's mandatory integrated care initiative for certain qualifying individuals, including dual eligible individuals and individuals receiving long-term services and supports (LTSS). The CCC Plus program includes individuals who receive services through nursing facility (NF) care or from the four home and community-based services (HCBS) § 1915(c) waivers .

"Continuity of care period" means a set period of time during which the MCO shall ensure a seamless transition from Medicaid FFS, or from another MCO, for all members upon enrollment into a plan.

"Contractor" means a managed care health plan selected by DMAS and contracted to participate in the CCC Plus program.

"Covered services" means the set of required services offered by the participating plan.

"Department of Medical Assistance Services," "department," or "DMAS" means the Virginia Department of Medical Assistance Services, the single state agency for the Medicaid program in Virginia that is responsible for implementation and oversight of CCC Plus.

"Disenrollment" means the process of changing enrollment from one participating plan to another participating plan or the process of being excluded from CCC Plus by the department as described in 12VAC30-120-610.

"Division" or "Appeals Division" means the Appeals Division of the Department of Medical Assistance Services.

"Dual eligible" means a Medicare member who receives Medicare Parts A, B, and D benefits and also receives full Medicaid benefits.

"Effective date" means the date on which a participating plan's coverage begins for a member.

"Enrollment" means assignment of an individual to a health plan by the department in accordance with the terms of the contract with the participating plan. This does not include attaining eligibility for the Medicaid program.

"Enrollment broker" means an independent contractor that enrolls individuals in the contractor's plan and is responsible for the operation and documentation of a toll-free individual service helpline. The responsibilities of the enrollment broker include individual education and MCO enrollment and assistance with and tracking of individuals' complaints and their resolutions and may include individual marketing and outreach.

"Enrollment period" means the time that a member is actually enrolled in a participating plan.

"External appeal" means an appeal, subsequent to the participating plan internal appeal or reconsideration decision, to the state fair hearing process (for a member appeal) or informal appeals process (for a provider appeal).

"Fee-for-service" or "FFS" means the traditional health care payment system in which physicians and other providers receive a payment for each service they provide.

"Final decision" means a written determination by a department hearing officer from an appeal of an internal appeal decision that is binding on the department, unless modified during or after the judicial process.

"Handbook" means a document prepared by the MCO and provided to the member that is consistent with the requirements of 42 CFR 438.10 and the CCC Plus contract and includes information about all the services covered by that plan.

"Hearing officer" means an impartial decision maker who conducts evidentiary state fair hearings for member appeals on behalf of the department.

"Internal appeal" means an oral or a written request to the MCO by a member, a member's authorized representative, or a provider acting on behalf of the member and with the member's written consent for review of a contractor's adverse benefit determination. The internal appeal is the only level of appeal with the MCO and must be exhausted by a member or deemed exhausted according to 42 CFR 438.408(c)(3) before the member may initiate a state fair hearing.

"Long-term services and supports" or "LTSS" means a variety of services and supports that (i) help elderly s members and s members with disabilities who need assistance to perform activities of daily living and instrumental activities of daily living to improve the quality of their lives and (ii) are provided over an extended period, predominantly in homes and communities, but also in facility-based settings such as nursing facilities.

"MCO" means a health plan selected to participate in Virginia's CCC Plus program. "MCO" means the same as "participating plan."

"Medicaid" means the program of medical assistance benefits under Title XIX of the Social Security Act.

"Medically complex" means those who have a complex medical or behavioral health condition and a functional impairment or an intellectual or developmental disability.

"Medically necessary" or "medical necessity" means an item or service provided for the diagnosis or treatment of an enrollee's condition consistent with standards of medical practice and in accordance with Virginia Medicaid policy (12VAC30-130-600 et seq.) or EPSDT criteria, for those younger than 21 years of age, in accordance with 42 CFR 441 Subpart B (§§ 50 through 62), 42 CFR 438.210, and 42 CFR 440.230.

"Medicare" means Title XVIII of the Social Security Act, the federal health insurance program for people age 65 years or older, people younger than 65 years of age who have certain disabilities, and people with end stage renal disease or amyotrophic lateral sclerosis.

"Member" means an individual who has enrolled in a participating plan to receive services under CCC plus.

"Member appeal" means a member's request for review of an adverse benefit determination.

"Network provider" means a doctor, hospital, or other health care provider that participates or contracts with a participating plan and, as a result, agrees to accept a mutually-agreed upon payment amount or fee schedule as payment in full for covered services that are rendered to eligible s members.

"Nursing facility" means any skilled nursing facility, skilled care facility, intermediate care facility, nursing care facility, or nursing facility, whether freestanding or a portion of a freestanding medical care facility, that is certified for participation as a Medicare or Medicaid provider, or both, pursuant to Title XVIII and Title XIX of the Social Security Act, as amended, and § 32.1-137 of the Code of Virginia.

"Open enrollment" means the timeframe in which members are permitted to change from one MCO to another without cause.

"Participating plan" means the same as "MCO."

"Previously authorized" means, in relation to continuation of benefits, as described in 42 CFR 438.420, a prior approved course of treatment.

"Primary care provider" means a practitioner who provides preventive and primary medical care and certifies service authorizations and referrals for medically necessary specialty services. Primary care providers may include pediatricians, family and general practitioners, internists, obstetricians or gynecologists, geriatricians, specialists who perform primary care functions (such as surgeons), and clinics, including local health departments, federally qualified health centers, and rural health clinics.

"Program of All-Inclusive Care for the Elderly" or "PACE" means the program in which the PACE provider provides the entire spectrum of health services (preventive, primary, and acute) and long-term services and supports to its s members without limit as to duration or cost of services pursuant to 12VAC30-50-320 et seq.

"Provider appeal" means an appeal to the department filed by a Medicaid-enrolled or network service provider that has already provided a service to a member and has received an adverse reconsideration decision regarding service authorization, payment, or audit result.

"Reconsideration" means a provider's request to the MCO for review of an adverse action related to service authorization or payment. The MCO's reconsideration decision is a prerequisite to a provider's filing of an appeal to the Appeals Division.

"Remand" means the return of a case by the department's hearing officer to the MCO for further review, evaluation, and action.

"Reverse" means to overturn the MCO's internal appeal decision and to direct that the MCO fully approve the amount, duration, and scope of requested services.

"Social Security Act" means the federal act, codified through Chapter 7 of Title 42 of the United States Code, that established social insurance programs including Medicare and Medicaid.

"State fair hearing" means the DMAS evidentiary hearing as administered by the Appeals Division. A state fair hearing is conducted by a department hearing officer to allow a member the opportunity to present the member's concerns with or objections to the participating plan's internal appeal decision.

"Subcontractor" means an entity that has contracted with the contractor to perform part of the responsibilities within the CCC Plus program. All subcontractors shall be approved by DMAS.

"Sustain" means to uphold the MCO's appeal decision.

"Withdraw" means a written request from the member or the 's member's authorized representative for the department to terminate the member appeal.

A. The following individuals shall be enrolled in CCC Plus per the CCC Plus § 1915(b) waiver:

1. Dual eligible individuals with Medicare A or B coverage and full Medicaid coverage.

2. Non-dual eligible individuals who receive long-term services and supports through an institution, the CCC Plus waiver , Building Independence waiver, Community Living waiver, and Family and Individual Supports waiver.

Those enrolled in the Building Independence, Community Living, and Family and Individual Supports waivers will continue to receive their LTSS including LTSS related transportation services through Medicaid fee-for-service.

3. All individuals classified as aged, blind, or disabled (ABD) without Medicare and not receiving LTSS.

4. Individuals who qualify for and enroll under Medicaid expansion who have been identified as medically complex.

B. The following individuals shall be excluded from enrollment in CCC Plus:

1. Individuals enrolled in another DMAS managed care program (e.g., Medallion, FAMIS, and FAMIS MOMS).

2. Individuals enrolled in a PACE program.

3. Newborns whose mothers are CCC Plus members on their date of birth.

4. Individuals who are in limited coverage groups, such as:

a. Dual eligible individuals without full Medicaid benefits, such as:

(1) Qualified Medicare beneficiaries;

(2) Special low-income Medicare beneficiaries;

(3) Qualified disabled working individuals; or

(4) Qualifying individuals for whom Medicaid pays the Part B premium.

b. Individuals enrolled in Plan First who do not meet eligibility criteria for Medicaid expansion.

5. Individuals enrolled in a Medicaid-approved hospice program at the time of enrollment. However, if an individual enters a hospice program while enrolled in CCC Plus, the member will remain enrolled in CCC Plus.

6. Individuals who live on Tangier Island.

7. Individuals younger than 21 years of age who are approved for DMAS psychiatric residential treatment center (RTC) Level C programs as defined in 12VAC30-130-860. Any individual admitted to an RTC Level C program for behavioral health services will be temporarily excluded from CCC Plus until after they are discharged. RTC Level C services may be transitioned to the CCC Plus program in the future.

8. Individuals with end stage renal disease (ESRD) and in fee-for-service at the time of enrollment will be automatically enrolled into CCC Plus but may request to be disenrolled and remain in fee-for-service. The department will exclude these individuals if requested by the member within the first 90 days of CCC Plus enrollment. However, a member who does not request an extension within the first 90 days of CCC Plus enrollment or who develops ESRD while enrolled in CCC Plus will remain in CCC Plus.

9. Individuals who are institutionalized in certain state and private intermediate care facility for individuals with intellectual disabilities (ICF/IID) and mental health facilities as specified in the CCC Plus contract. "Intermediate care facility for individuals with intellectual disabilities" or "ICF/IID" means a facility licensed by the Department of Behavioral Health and Developmental Services in which care is provided to intellectually disabled individuals who are not in need of skilled nursing care, but who need more intensive training and supervision than would be available in a rooming home, boarding home, or group home. Such facilities must comply with Title XIX standards, provide health or rehabilitative services, and provide active treatment to members toward the achievement of a more independent level of functioning.

10. Individuals who are patients at nursing facilities operated by the Veterans Administration.

11. Individuals participating in the CMS Independence at Home (IAH) demonstration. However, IAH individuals may enroll in CCC Plus if they choose to disenroll from IAH.

12. Certain individuals in out-of-state placements as specified in the CCC Plus contract.

13. Individuals placed on spenddown. However, spenddown individuals are included if they are residing in a nursing home.

14. Incarcerated individuals. Individuals on house arrest are not considered incarcerated.

15. All children enrolled in the Virginia Birth-Related Neurological Injury Compensation Program, established pursuant to Chapter 50 of Title 38.2 (§ 38.2-5000 et seq.) of the Code of Virginia, who shall maintain enrollment in Medicaid fee-for-service.

16. Individuals who have any insurance purchased through the Health Insurance Premium Payment (HIPP) program, as defined in 12VAC30-20-205 and 12VAC30-20-210.

17. Individuals who are included in the Medicaid expansion population, but are not identified as medically complex. These individuals are covered through the Medallion program.

C. Enrollment in CCC Plus will be mandatory for eligible individuals. The department shall have sole authority and responsibility for the enrollment of individuals into the CCC Plus program and for excluding members from CCC Plus.

D. There shall be no retroactive enrollment for CCC Plus.

E. The MCO shall notify the member of enrollment in the MCO's plan through a letter submitted simultaneously with the handbook. Upon disenrollment from the plan, the MCO shall notify the member through a disenrollment notice that coverage in the MCO's plan will no longer be effective.

F. The department reserves the right to revise the CCC Plus intelligent default assignment methodology (as described in subsection I of this section) as needed based upon DMAS sole discretion.

G. Eligible individuals as defined in subsection A of this section shall be enrolled in a CCC Plus contracted health plan through a CCC Plus intelligent assignment methodology as defined by DMAS in the CCC Plus contract.

1. The member will be, at a minimum, notified of the 's member's assigned MCO, right to select another CCC Plus MCO operating in the 's member's locality, CCC Plus service begin date, and instructions for the individual or the individual's designee to contact DMAS or its enrollment broker to either:

a. Accept the assigned MCO; or

b. Select a different CCC Plus MCO that is operating in the individual's locality.

2. If an individual does not contact DMAS or its enrollment broker to accept the assigned MCO or select a different CCC Plus MCO operating in the individual's locality, the individual shall be enrolled into the assigned MCO.

3. For the initial 90 calendar days following the effective date of CCC Plus enrollment, the member will be permitted to disenroll from one MCO and enroll in another without cause. This 90-day timeframe applies only to the 's member's initial start date of enrollment in CCC Plus; it does not reset or apply to any subsequent enrollment periods. After the initial 90-day period following the initial enrollment date, the member may not disenroll without cause until the next annual open enrollment period.

4. Open enrollment is a period of time when individuals are able to change from one MCO to another without cause.

a. Open enrollment will occur at least once every 12 months per 42 CFR 438.56(c)(2) and 42 CFR 438.56(f)(1). The open enrollment will occur during October through December with any changes to take effect the following January 1. For individuals not participating in Medicaid expansion, open enrollment will occur from October 1 to December 18 for a January 1 effective date. Individuals participating through Medicaid expansion will have an open enrollment period from November 1 to December 18 for a January 1 effective date.

b. Within 60 days prior to the open enrollment effective date, the department will inform members of the opportunity to remain with the current plan or change to another plan without cause. Those individuals who do not choose a new MCO during the open enrollment period shall remain in their current MCO until their next open enrollment effective date.

H. DMAS shall utilize an intelligent default assignment process to assign eligible individuals, other than the ABD populations described in subdivision A 5 of this section, to a CCC Plus MCO contracted to operate in their locality. If none of the criteria used in the intelligent default assignment process applies to an individual, the individual will be randomly assigned to a CCC Plus MCO operating in the individual's locality. The intelligent default assignment process will, at a minimum, take into account:

1. The individual's previous Medicare and Medicaid MCO enrollment within the past two months if known at the time of assignment, the expansion member's child's Medicaid MCO enrollment; and

2. Which MCO the individual's current providers are contracted with. This may include the nursing facility an individual is residing in at the time of assignment, adult day health care for CCC Plus Waiver enrolled members, and an individual's private duty nursing provider.

I. Consistent with 42 CFR 438.56(d), DMAS must permit a member to disenroll at any time for cause.

1. A member may disenroll from the 's member's current plan for the following reasons:

a. The member moves out of the MCO's service area;

b. The MCO does not, because of moral or religious objections, cover the service the member seeks;

c. The member needs related services (e.g., a cesarean section and a tubal ligation) to be performed at the same time; not all related services are available within the provider network; and the 's member's primary care provider or another provider determines that receiving the services separately would subject the individual to unnecessary risk;

d. The member would have to change residential, institutional, or employment supports provider based on that provider's change in status from an in-network to an out-of-network provider with the MCO and, as a result, the member would experience a disruption in residence or employment; and

e. Other reasons as determined by DMAS, including poor quality of care, lack of access to services covered under this MCO, or lack of access to providers experienced in dealing with the 's member's care needs.

2. The 's member's request to change from one plan to another outside of open enrollment, or for cause request, may be submitted orally or in writing to the department as provided for in 42 CFR 438.56(d)(1) and cite the reasons why the member wishes to disenroll from one plan and enroll in another. The department will review the request in accordance with cause for disenrollment criteria defined in 42 CFR 438.56(d)(2). The department will respond to "for cause" requests, in writing, within 15 business days of the department's receipt of the request. In accordance with 42 CFR 438.56(e)(2), if the department fails to make a determination by the first day of the second month following the month in which the member files the request, the disenrollment request shall be considered approved and effective on the date of approval. Members who are dissatisfied with the department's determination of the 's member's request to disenroll from one plan and enroll in another for cause shall have the right to appeal through the state fair hearing process in 12VAC30-110.

J. CCC Plus eligible individuals who have been previously enrolled with a CCC Plus MCO and who regain eligibility for the CCC Plus program within 60 calendar days of the effective date of exclusion or disenrollment will be reassigned to the same MCO whenever possible and without going through the selection or assignment process.

A. All individuals and entities who provide services of any type to CCC Plus members, including health care providers; pharmacies; ordering, referring, and prescribing providers; and providers who do not participate in Medicaid fee-for-service shall abide by all CCC Plus contract requirements regarding Provider Enrollment, pursuant to the 21st Century Cures Act (P.L. 114-255).

B. Each provider shall be screened and enrolled with DMAS through the DMAS provider enrollment system by December 1, 2019. The MCO shall ensure that all providers are registered in the DMAS provider enrollment system prior to contracting with the provider.

A. The MCO and any of its subcontractors shall abide by all CCC Plus contract requirements, including:

1. The MCO shall provide medically necessary covered services in accordance with the CCC Plus contract.

a. Each MCO and its subcontractors shall have in place and follow written policies and procedures for processing requests for initial and continuing authorizations of service. Each MCO and its subcontractors shall ensure that any decision to deny a service authorization request or to authorize a service in an amount, duration, or scope that is less than requested be made by a health care professional who has appropriate clinical expertise in treating the member's condition or disease. Each MCO and its subcontractors shall have in effect mechanisms to ensure consistent application of review criteria for authorization decisions and shall consult with the requesting provider when appropriate.

b. In accordance with § 1932(f) of the Social Security Act (42 USC § 1396a-2), the contractor shall pay all in-network and out-of-network providers (including Native American health care providers) on a timely basis, consistent with the claims payment procedure described in 42 CFR 447.45 and 42 CFR 447.46 and § 1902(a)(37) of the Social Security Act, upon receipt of all clean claims, for covered services rendered to covered members who are enrolled with the contractor at the time the service was delivered. The MCO may deny claims in whole or in part for not meeting payment criteria established by the MCO.

c. Utilization review and audit. MCOs may perform utilization reviews and audits on their network providers. As a result of such a review or audit, an overpayment may be determined.

2. The MCO shall report data to DMAS per CCC Plus contract requirements, which includes data, claims reports, and quality studies performed by the MCO.

3. The MCO shall maintain records, including written policies and procedures, as required by the CCC Plus contract.

4. The MCO shall furnish such required information to DMAS, the Attorney General of Virginia or the Attorney General's authorized representative, or the State Medicaid Fraud Control Unit upon request and in the form requested.

5. The MCO shall meet standards specified in the CCC Plus contract for sufficiency of provider networks. In accordance with § 1915(b)(4) of the Social Security Act, 42 CFR 431.51, and 42 CFR 438.12b(1), the MCO does not have to contract with any willing provider.

6. The MCO shall conduct monthly checks to screen providers for exclusion.

7. The MCO shall require its providers and subcontractors to fully comply with federal requirements for disclosure of ownership and control, business transactions, and information for persons convicted of crimes against federal related health care programs, including Medicare, Medicaid, and CHIP programs, as described in 42 CFR 455 Subpart B.

8. In accordance with 42 CFR 447.50 through 42 CFR 447.60, the MCO shall not impose any cost sharing obligations on members except as set forth in 12VAC30-20-150 and 12VAC30-20-160 .

B. Sanctions shall be the same as those set forth in the CCC Plus contract.

C. As provided in 42 CFR 438.210(a)(5)(i), the MCO's medical necessity criteria shall not be more restrictive than the department's criteria.

D. The MCO's coverage rules for contract covered services shall also ensure compliance with federal EPSDT coverage requirements for members younger than 21 years of age.

E. The MCO shall provide services at least in equal amount, duration, and scope as available under the Medicaid fee-for-service program and as described in Attachment 5 of the CCC Plus contract.

F. The MCO shall not apply any financial requirement or treatment limitation to behavioral health benefits, including mental health or addiction, recovery and treatment benefits, in any classification (inpatient, out-patient, emergency, and pharmacy) that is more restrictive than the predominant financial requirement or treatment limitation of that type applied to substantially all medical/surgical benefits in the same classification furnished to members.

G. The MCO shall provide behavioral health benefits to the member in every classification in which medical/surgical benefits are provided.

H. The MCO shall not place any limitation on behavioral health benefits that is more restrictive than limits in place under fee-for-service Medicaid.

I. The MCO may cover, in addition to services covered under the state plan, any service necessary for compliance with the requirements for parity in mental health and substance abuse benefits in 42 CFR 438 Subpart K.

J. If a member of the MCO is provided behavioral health benefits in any classification of benefits (inpatient, outpatient, emergency care, or prescription drugs), the behavioral health benefits must be provided to the member in every classification in which medical/surgical benefits are provided.

K. The MCO shall not impose an aggregate lifetime dollar limit on any behavioral health benefit regardless of classification.

L. The MCO may not impose non-quantitative treatment limits (NQTL) for behavioral health benefits in any classification (inpatient, out-patient, emergency care, or prescription drugs) unless, under the policies and procedures of the MCO as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to behavioral health benefits in the classification are comparable to and are applied no more stringently than the processes, strategies, evidentiary standards, or other factors used in applying the limitation for medical/surgical benefits in the classification.

M. The MCO shall provide documentation necessary to establish and demonstrate compliance with mental health parity requirements in 42 CFR 438 Subpart K, regarding the provision of behavioral health benefits.

The MCO shall ensure continuity of care for each member upon enrollment into the member's plan. During the time period set forth in this section, the MCO shall maintain the member's current providers at the Medicaid FFS rate and honor service authorizations (SAs) issued prior to enrollment for the specified time period. The continuity of care period is as follows:

1. Within the first 30 calendar days of a member's enrollment, the MCO shall allow a member to maintain the member's current providers, including out-of-network providers. The MCO shall extend this timeframe as necessary to ensure continuity of care pending the provider contracting with the MCO or the member's safe and effective transition to a contracted provider. DMAS has sole discretion to extend the continuity of care period timeframe.

2. The MCO shall reimburse nursing facilities and specialized care services (described in 12VAC30-60-40, 12VAC30-60-320, and 12VAC30-60-340) no less than the Medicaid established per diem rate for Medicaid covered days, using the DMAS methodologies, unless the MCO and the provider mutually agree to an alternative payment methodology or value-based payment arrangement; however, the rate paid shall not be less than the current Medicaid fee-for-service rate.

A. The MCO shall, at a minimum, provide all medically necessary Medicaid covered services required under the state plan (12VAC30-50-10 through 12VAC30-50-310, 12VAC30-50-410 through 12VAC30-50-430, and 12VAC30-50-470 through 12VAC30-50-580) and Elderly and Disabled with Consumer Direction waiver regulations (12VAC30-120-924 and 12VAC30-120-927) and the Technology Assisted waiver regulations (12VAC30-120-1720) and, effective January 1, 2018, community mental health services (12VAC30-50-130 and 12VAC30-50-226).

B. The following services are not covered by the MCO and shall be provided through fee-for-service outside the CCC Plus MCO contract:

1. Dental services (12VAC30-50-190);

2. School health services (12VAC30-50-130);

3. Preadmission screening (12VAC30-60-303);

4. Individual and Developmental Disability Support waiver services (12VAC30-120-700 et seq.);

5. Intellectual Disability Waiver (12VAC30-120-1000 et seq.); or

6. Day Support Waiver (12VAC30-120-1500 et seq.).

C. The Program of All-Inclusive Care for the Elderly, or PACE, is not available to CCC Plus members.

A. The payment rate to MCOs shall be set by negotiated contracts and in accordance with 42 CFR 438.6 Subpart A through 42 CFR 438.8 and other pertinent federal regulations.

B. In accordance with § 1932(b)(2)(D) of the Social Security Act and State Medicaid Director Letter 06-010, the contractor shall pay noncontracted providers for emergency services no more than the amount that would have been paid if the service had been provided under the state's FFS Medicaid program. The contractor shall reimburse out-of-network providers and providers of emergent or urgent care, as defined by 42 CFR 424.101 and 42 CFR 405.400 respectively, at the Medicaid FFS payment level for that service.

A. Notwithstanding the provisions of 12VAC30-110-10 through 12VAC30-110-370, this section through 12VAC30-120-690 govern state fair hearings for individuals enrolled in CCC Plus.

B. The Appeals Division maintains an appeals and fair hearings system for members (referred to as "appellants" once the appeal process has begun) to challenge appeal decisions rendered by the MCO in response to member appeals of adverse benefit determinations related to Medicaid services. Exhaustion of the MCO's appeals process is a prerequisite to requesting a state fair hearing with the department. Appellants who meet the criteria for a state fair hearing shall be entitled to a state fair hearing before a department hearing officer.

C. The MCO shall conduct an internal appeal , pursuant to 42 CFR Part 431 Subpart E and 42 CFR Part 438 Subpart F, and issue a written decision that includes its findings and information regarding the appellant's right to file an appeal with DMAS for a state fair hearing for Medicaid appeals.

D. Members must be notified in writing of the MCO's internal appeals process in accordance with 42 CFR 438.400 et seq.:

1. With the handbook; and

2. Upon receipt of a notice of adverse benefit determination from the MCO.

E. Members must be notified in writing of their right to an external appeal to DMAS upon receipt of the MCO's final internal appeal decision.

F. An appellant shall have the right to representation by an attorney or an authorized representative at the internal appeal and external appeal before DMAS. An authorized representative may be designated to represent the appellant, pursuant to 12VAC30-110-60, 12VAC30-110-1380, and 12VAC30-110-1390, at the internal appeal and external appeal before DMAS.

G. Any communication from a member or the 's member's authorized representative that expresses the 's member's desire to present his case to a reviewing authority shall constitute an appeal request.

1. This communication should explain the basis for the appeal of the MCO's internal appeal decision.

2. The appellant or the appellant's authorized representative may examine witnesses, documents, or both; provide testimony; submit evidence; and advance relevant arguments during the state fair hearing.

H. After the MCO's internal appeal process has been exhausted, an appellant may request a state fair hearing by filing an appeal with the Appeals Division via regular mail, fax transmission, telephone, email, in person, or through other commonly available electronic means.

I. Expedited appeals referenced in subsection K of this section may be filed by telephone or any of the methods set forth in subsection H of this section.

J. The appellant member has the right to have his benefits continued during the MCO's appeal or the state fair hearing.

1. All of the following requirements must be met in order for benefits to be continued during the MCO and state fair hearing appeals:

a. The appeal involves the termination, suspension, or reduction of a previously authorized course of treatment;

b. The services were ordered by an authorized provider;

c. The original period covered by the initial authorization has not expired; and

d. The member requests that the benefits be continued.

2. For continuation of benefits for an internal appeal with the MCO, the member or authorized representative must file the appeal before the effective date of the adverse benefit determination or within 10 calendar days of the mail date of the MCO's notice of the adverse benefit determination.

3. For continuation of benefits for a state fair hearing, the member or authorized representative must file the appeal within 10 calendar days of the mail date of the MCO's final appeal decision.

4. The MCO shall also continue benefits for members who initiate a state fair hearing directly because of deemed exhaustion of appeals processes due to failure of the MCO to adhere to the notice and timing requirements in 42 CFR 438.408.

5. If the final resolution of the appeal or state fair hearing is adverse to the member, that is, upholds the MCO's adverse benefit determination, the MCO may recover the costs of services furnished to the member while the appeal and the state fair hearing was pending, to the extent they were furnished solely because of the pending appeal.

K. The MCO and the department shall maintain an expedited process for appeals when an appellant's treating provider indicates in making the request on the 's member's behalf or supporting the 's member's request that taking the time for a standard resolution could seriously jeopardize the 's member's life, physical or mental health, or ability to attain, maintain, or regain maximum function.

1. Resolution of an expedited appeal shall be no longer than 72 hours after the MCO receives the appeal.

2. Members must exhaust the MCO's internal appeals processes prior to filing an expedited appeal request with the department with the exception of those with members who gain direct access to state fair hearings because of deemed exhaustion of appeals processes with the MCO pursuant to 42 CFR 438.402(c)(1)(i)(A).

3. The MCO and the department may extend the timeframes for resolution of an expedited appeal by up to 14 calendar days if the member or the 's member's authorized representative requests the extension, or if the MCO or the department shows that there is a need for additional information and how the delay is in the 's member's best interest.

4. Requirements following extension. If the MCO extends the timeframes not at the request of the member, it shall complete the following:

a. Promptly notify the member of the reason for an extension and provide the date the extension expires; and

b. Resolve the appeal as expeditiously as the 's member's health condition requires and no later than the date the extension expires.

A. Appeals to the Medicaid state fair hearing process must be filed with the Appeals Division within 120 days of the date of the MCO's final internal appeal decision.

B. It is presumed that appellants will receive the MCO's final internal appeal decision five days after the MCO mails it unless the appellant shows that the appellant did not receive the notice within the five-day period.

C. A request for a state fair hearing on the grounds that the MCO has not acted with reasonable promptness in response to an internal appeal request may be filed at any time until the MCO has acted.

D. The date of filing shall be the date the internal appeal request is received by the MCO, the date the state fair hearing request is received by the Appeals Division, or the postmark date if the state fair hearing request is sent by regular mail.

E. In computing any time period under this chapter, the day of the act or event from which the designated period of time begins to run shall be excluded and the last day included. If a time limit would expire on a Saturday, Sunday, or state or federal holiday, it shall be extended until the next regular business day.

F. DMAS shall take final administrative action within 90 days from the date the member filed an MCO appeal, not including the number of days the member took to subsequently file for a state fair hearing.

G. Exceptions to standard appeal resolution timeframes. Decisions may be issued beyond the standard appeal resolution timeframes when the appellant or the appellant's authorized representative requests or causes a delay. Decisions may also be issued beyond the standard appeal resolution timeframe when any of the following circumstances exist:

1. The appellant or authorized representative requests to reschedule or continue the state fair hearing;

2. The appellant or authorized representative provides good cause for failing to keep a scheduled state fair hearing appointment, and the Appeals Division reschedules the state fair hearing;

3. Inclement weather, unanticipated system outage, or the department's closure prevents the hearing officer's ability to work;

4. Following a state fair hearing, the hearing officer orders an independent medical assessment as described in 12VAC30-120-670 H 1;

5. The hearing officer leaves the state fair hearing record open after the state fair hearing in order to receive additional evidence or argument from the appellant;

6. The hearing officer receives additional evidence from a person other than the appellant or the appellant's authorized representative, and the appellant requests to comment on such evidence in writing or to have the state fair hearing reconvened to respond to such evidence; or

7. The Appeals Division determines that there is a need for additional information and documents how the delay is in the appellant's best interest.

H. For delays requested or caused by an appellant or the appellant's authorized representative, the delay date for the decision will be calculated as follows:

1. If an appellant or authorized representative requests or causes a delay within 30 days of the request for a state fair hearing, the 90-day time limit will be extended by the number of days from the date when the first state fair hearing was scheduled until the date to which the state fair hearing is rescheduled.

2. If an appellant or authorized representative requests or causes a delay within 31 to 60 days of the request for a state fair hearing, the 90-day time limit will be extended by 1.5 times the number of days from the date when the first state fair hearing was scheduled until the date to which the state fair hearing is rescheduled.

3. If an appellant or authorized representative requests or causes a delay within 61 to 90 days of the request for a state fair hearing, the 90-day time limit will be extended by two times the number of days from the date when the first state fair hearing was scheduled until the date to which the state fair hearing is rescheduled.

I. Post state fair hearing delays requested or caused by an appellant or authorized representative (e.g., requests for the record to be left open) will result in a day-for-day delay for the decision date. The department shall provide the appellant and authorized representative with written notice of the reason for the decision delay and the delayed decision date, if applicable.

A. If the Appeals Division determines that any of the conditions as described in this subsection exist, a state fair hearing will not be held and the appeal process shall be terminated.

1. A request for appeal may be invalidated if:

a. It was not filed within the time limit imposed by 12VAC30-120-650; or

b. The individual who filed the appeal ("filer") is not the appellant or parent of a minor appellant, and the Appeals Division sends a letter to the filer requesting proof of the filer's authority to appeal on behalf of the appellant; and

(1) The filer did not reply within 10 calendar days to the request for authorization to represent the appellant ; or

(2) The filer replied within 10 calendar days of the request, and the Appeals Division determined that the authorization submitted was insufficient to allow the filer to represent the appellant under the provisions of 12VAC30-120-640.

2. A request for appeal may be administratively dismissed if:

a. The MCO's internal appeals process was not exhausted prior to the member's request for a state fair hearing;

b. The issue of the appeal is not related to the MCO's final internal appeal decision;

c. The adverse benefit determination being appealed was not taken by the MCO; or

d. The sole issue is a federal or state law requiring an automatic change adversely affecting some or all beneficiaries.

3. An appeal case may be closed if:

a. The Appeals Division schedules a state fair hearing and sends a written schedule letter notifying the appellant or the appellant's authorized representative of the date, time, and location of the state fair hearing; the appellant or the appellant's authorized representative fails to appear at the scheduled state fair hearing; and the Appeals Division sends a letter to the appellant for an explanation as to why he failed to appear; and

(1) The appellant did not reply within 10 calendar days to the request for an explanation that met good cause criteria ; or

(2) The appellant replied within 10 calendar days of the request, and the Appeals Division determined that the reply did not meet good cause criteria.

b. The Appeals Division sends a written schedule letter requesting that the appellant or the appellant's authorized representative provide a telephone number at which he can be reached for a telephonic state fair hearing, and the appellant or the appellant's authorized representative failed to respond within 10 calendar days to the request for a telephone number at which he could be reached for a telephonic state fair hearing.

c. The appellant or the appellant's authorized representative withdraws the appeal request. If the appeal request is withdrawn orally, the Appeals Division shall (i) record the individual's statement and telephonic signature and (ii) send the affected individual written confirmation via regular mail or electronic notification, in accordance with the individual's election.

d. The MCO approves the full amount, duration, and scope of services requested.

e. The evidence in the record shows that the MCO's decision was clearly in error and that the case should be fully resolved in the appellant's favor.

B. Remand to the MCO. If the hearing officer determines from the record, without conducting a state fair hearing, that the case might be resolved in the appellant's favor if the MCO obtains and develops additional information, documentation, or verification, the hearing officer may remand the case to the MCO for action consistent with the hearing officer's written instructions pursuant to 12VAC30-110-210 D.

C. A letter shall be sent to the appellant or the appellant's authorized representative that explains the determination made on the appeal.

A. All state fair hearings must be scheduled at a reasonable time, date, and place, and the appellant and the appellant's authorized representative shall be notified in writing prior to the hearing.

1. The state fair hearing location will be determined by the Appeals Division.

2. A state fair hearing shall be rescheduled at the appellant's request no more than twice unless compelling reasons exist.

3. Rescheduling the state fair hearing at the appellant's request will result in automatic waiver of the 90-day deadline for resolution of the appeal. The delay date for the decision will be calculated as set forth in 12VAC30-120-650 H and I.

B. The state fair hearing shall be conducted by a department hearing officer. The hearing officer shall review the complete record for all MCO decisions that are properly appealed; conduct informal, fact-gathering state fair hearings; evaluate evidence presented; research the issues; and render a written final decision.

C. Subject to the requirements of all applicable federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information, the appeal record shall be made accessible to the appellant and authorized representative at a convenient place and time before the date of the state fair hearing, as well as during the state fair hearing. The appellant and the appellant's authorized representative may examine the content of the appellant's case file and all documents and records the department will rely on at the state fair hearing except those records excluded by law.

D. Appellants who require the attendance of witnesses or the production of records, memoranda, papers, and other documents at the state fair hearing may request in writing the issuance of a subpoena. The request must be received by the department at least 10 working days before the scheduled state fair hearing. Such request shall (i) include the witness's or respondent's name, home and work addresses, and county or city of work and residence; and (ii) identify the sheriff's office that will serve the subpoena.

E. The hearing officer shall conduct the state fair hearing; decide on questions of evidence, procedure, and law; question witnesses; and assure that the state fair hearing remains relevant to the issue being appealed. The hearing officer shall control the conduct of the state fair hearing and decide who may participate in or observe the state fair hearing.

F. State fair hearings shall be conducted in an informal, nonadversarial manner. The appellant or the appellant's authorized representative shall have the right to bring witnesses, establish all pertinent facts and circumstances, present an argument without undue interference, and question or refute the testimony or evidence, including the opportunity to confront and cross-examine agency representatives.

G. The rules of evidence shall not strictly apply. All relevant, nonrepetitive evidence may be admitted, but the probative weight of the evidence will be evaluated by the hearing officer.

H. The hearing officer may leave the state fair hearing record open for a specified period of time after the state fair hearing in order to receive additional evidence or argument from the appellant or the appellant's authorized representative.

1. At the appellant's option, the hearing officer may order an independent medical assessment when the appeal involves medical issues, such as a diagnosis, an examining physician's report, or a medical review team's decision, and the hearing officer determines that it is necessary to have an assessment by someone other than the person or team who made the original decision (e.g., to obtain more detailed medical findings about the impairments, to obtain technical or specialized medical information, or to resolve conflicts or differences in medical findings or assessments in the existing evidence). A medical assessment ordered pursuant to this chapter shall be at the department's expense, shall not extend any of the timeframes specified in this chapter, shall not disrupt the continuation of benefits, and shall become part of the record.

2. The hearing officer may receive evidence that was not presented by either party if the record indicates that such evidence exists, and the appellant or the appellant's authorized representative requests to submit it or requests that the hearing officer secure it.

3. If the hearing officer receives additional evidence from an entity other than the appellant or the appellant's authorized representative, the hearing officer shall send a copy of such evidence to the appellant and the appellant's authorized representative and give the appellant or the appellant's authorized representative the opportunity to comment on such evidence in writing or to have the state fair hearing reconvened to respond to such evidence.

4. Any additional evidence received will become a part of the state fair hearing record, but the hearing officer must determine whether or not it will be used in making the decision.

I. After conducting the state fair hearing, reviewing the record, and deciding questions of law, the hearing officer shall issue a written final decision that sustains or reverses, in whole or in part, the MCO's adverse benefit determination or remands the case to the MCO for further evaluation consistent with the hearing officer's written instructions. Some decisions may be a combination of these dispositions. The hearing officer's final decision shall be considered as the department's final administrative action pursuant to 42 CFR 431.244(f). The final decision shall include:

1. Identification of the issue;

2. Relevant facts, to include a description of the procedural development of the case;

3. Conclusions of law, regulations, and policy that relate to the issue;

4. Discussions, analysis of the accuracy of the MCO's appeal decision, conclusions, and hearing officer's decision;

5. Further action, if any, to be taken by the MCOs to implement the hearing officer's decision;

6. The deadline date by which further action must be taken; and

7. A cover letter informing the appellant and the appellant's authorized representative of the hearing officer's decision. The letter must indicate that the hearing officer's decision is final, and that the final decision may be appealed directly to circuit court.

J. A copy of the state fair hearing record shall be forwarded to the appellant and the appellant's authorized representative with the final decision.

K. An appellant who disagrees with the hearing officer's final decision described in this section may seek judicial review pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and Rules of the Supreme Court of Virginia, Part Two A. Written instructions for requesting judicial review must be provided to the appellant or the appellant's authorized representative with the hearing officer's decision, and upon request by the appellant or authorized representative.

A. No person shall take from the department's custody any original record, paper, document, or exhibit that has been certified to the Appeals Division except as the Appeals Division Director or the director's designee authorizes, or as may be necessary to furnish or transmit copies for other official purposes.

B. Information in the appellant's record can be released only to the appellant, the appellant's authorized representative, the MCO, other entities for official purposes, and other persons named in a release of information authorization signed by an appellant or the appellant's authorized representative.

C. The fees to be charged and collected for any copy of Appeals Division records will be in accordance with Virginia's Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) or other controlling law.

D. When copies are requested from records in the Appeals Division's custody, the required fee shall be waived if the copies are requested in connection with a member's own appeal.

A. The Appeals Division maintains an appeal process for network and Medicaid-enrolled providers of Medicaid services that have rendered services to members and are requesting to challenge an MCO's reconsideration decision regarding an adverse action affecting service authorization or payment. The MCO's internal reconsideration process is a prerequisite to filing for an external appeal to the department's provider appeal process. The appeal process is available to network and Medicaid-enrolled providers that (i) have rendered services and have been denied payment in whole or part for Medicaid covered services; (ii) have rendered services and have been denied authorization for the services; and (iii) have received a notice of program reimbursement or overpayment demand from the department or its contractors. Providers that have had their enrollment in the MCO's network denied or terminated by the MCO do not have the right to an external appeal with the Appeals Division.

B. Department provider appeals shall be conducted in accordance with the department's provider appeal regulations (12VAC30-20-500 et seq.), § 32.1-325 et seq. of the Code of Virginia, and the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. The department's external appeal decision shall be binding upon the MCO and not subject to further appeal by the MCO.

D. If the provider is successful in its appeal of a reimbursement issue, then the MCO shall reimburse the provider for the appealed issue.

The following words and terms when used in this part shall have the following meanings unless the context clearly indicates otherwise:

"Adverse action" means any action a provider may 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.

"Adverse benefit determination" means, pursuant to 42 CFR § 438.400, any of the following: (i) the denial or limited authorization of a requested service, including determinations based on the type or level of service, requirements for medical necessity, appropriateness, setting, or effectiveness of a covered benefit; (ii) the reduction, suspension, or termination of a previously authorized service; (iii) the denial, in whole or in part, of payment for a service; a denial, in whole or in part, of a payment for a service solely because the claim does not meet the definition of a "clean claim" at 42 CFR § 447.45(b) is not an adverse benefit determination; (iv) the failure to provide services in a timely manner, as defined by the State; (v) the failure of the MCO, Prepaid Inpatient Health Plan (PIHP), or Prepaid Ambulatory Health Plan (PAHP) to act within the timeframes provided in 42 CFR § 438.408(b)(1) and (2) regarding the standard resolution of grievances and appeals; (vi) for a resident of a rural area with only one MCO, the denial of a member’s request to exercise his or her right, under 42 CFR § 438.52(b)(2)(ii), to obtain services outside the network; (vii) the denial of a member’s request to dispute a financial liability, including cost sharing, copayments, premiums, deductibles, coinsurance, and other member financial liabilities.

"Appellant" means an applicant for or recipient of Medicaid benefits who seeks to challenge an adverse benefit determination taken by the MCO, subcontractor, service provider, or DMAS regarding eligibility for services and payment determinations.

"Authorized representative" means the same as set forth in 12VAC30-110-1380 and 12VAC30-110-1390.

"Commonwealth Coordinated Care Plus waiver" or "CCC Plus waiver" means the department’s home and community-based waiver that covers a range of community support services offered to older adults, individuals who have a disability, and individuals who are chronically ill or severely impaired, having experienced loss of a vital body function, and who require substantial and ongoing skilled nursing care.

"Continuity of care" means activities to ensure a member’s safe and effective transitions that do not result in a disruption of care between Medicaid fee-for-service, MCOs, and/or contracted providers.

"Covered services" means Medicaid services as defined in the State Plan for Medical Assistance.

“Day” means calendar day unless otherwise stated.

"Department of Medical Assistance Services," "department," or "DMAS" means the single state agency in the Commonwealth of Virginia that administers the Medicaid program under Title XIX of the Social Security Act and the Children’s Health Insurance Program under Title XXI of the Social Security Act.

"Disenrollment" means the process of changing enrollment from one MCO to another. This term does not refer to termination of eligibility in a Medicaid program.

"Division" or "Appeals Division" means the Appeals Division of the Department of Medical Assistance Services.

"Effective date" means the date on which an MCO's coverage begins for a member.

“Emergency services” means covered inpatient and outpatient services by a provider that is qualified to furnish services needed to evaluate or stabilize an emergency medical condition as defined in 42 CFR § 438.114.

"Enrollment" means assignment of an individual to an MCO by the department in accordance with the terms of the Cardinal Care Managed Care contract. This does not include attaining eligibility for the Medicaid program.

“Enrollment broker” means an independent entity who performs choice counseling and enrollment activities, in accordance with 42 CFR § 438.71 and 42 CFR § 438.810.

"Enrollment period" means the period of time that a member is actually enrolled in an MCO.

"External appeal" means an appeal, subsequent to the MCO internal appeal or reconsideration decision, to the state fair hearing process (for a member appeal) or informal appeals process (for a provider appeal).

"Fee-for-service" or "FFS" means the department’s delivery system for services and individuals served outside of the Cardinal Care Managed Care contract.

"Final decision" means a written determination by a department hearing officer from an appeal of an internal appeal decision that is binding on the department, unless modified during or after the judicial process.

"Foster care population" means members younger than 21 years of age who are in foster care, members younger than 26 years of age who were formerly in foster care until their discharge from foster care at 18 years of age or older, and members younger than 21 years of age who receive adoption assistance in accordance with the terms of the Cardinal Care Managed Care contract.

“Foster Care Specialty Plan” means the single MCO that provides statewide coverage to all members in foster care, former foster care youth, and children in adoption assistance who are enrolled in the Foster Care Specialty Plan and elect to remain in that plan.

“Grievance” means, in accordance with 42 CFR § 438.400, an expression of dissatisfaction about any matter other than an adverse benefit determination. Grievances may include, but are not limited to, the quality of care or services provided, and aspects of interpersonal relationships such as rudeness of a provider or employee, or failure to respect the enrollee’s rights regardless of whether remedial action is requested. Grievance includes an enrollee’s right to dispute an extension of time proposed by the MCO, PIHP or PAHP to make an authorization decision.

"Handbook" means a document prepared by the MCO and provided to the member that is consistent with the requirements of 42 CFR § 438.10 and the Cardinal Care Managed Care contract and includes information about all the services covered by that plan.

"Hearing officer" means an impartial decision maker who conducts evidentiary state fair hearings for member appeals on behalf of the department.

"Internal appeal" means a request to the MCO by a member, a member’s authorized representative, or a provider acting on behalf of the member and with the member’s written consent, for review of a MCO’s adverse benefit determination. The internal appeal is the only level of appeal with the MCO and must be exhausted by a member or deemed exhausted according to 42 CFR § 438.408(c)(3) before the member may initiate a state fair hearing.

“Long-term services and supports” or “LTSS” means, as defined in 42 CFR § 438.2, services and supports provided to beneficiaries of all ages who have functional limitations and/or chronic illnesses that have the primary purpose of supporting the ability of the beneficiary to live or work in the setting of their choice, which may include the individual's home, a worksite, a provider-owned or controlled residential setting, a nursing facility, or other institutional setting.

“Managed Care Organization" or "MCO" means an organization that offers managed care health insurance plans (MCHIP), as defined by Virginia Code § 38.2-5800.

"Medicaid" means the program of medical assistance benefits under Title XIX of the Social Security Act.

"Medically necessary" or "medical necessity" means an item or service provided for the diagnosis or treatment of a member’s condition consistent with standards of medical practice and in accordance with Virginia Medicaid policy (12 VAC 30-130-600 et seq.) or EPSDT criteria, for those younger than 21 years of age, in accordance with 42 CFR § 441 Subpart B (§§ 50 through 62), 42 CFR § 438.210, and 42 CFR § 440.230.

"Medicare" means Title XVIII of the Social Security Act, the federal health insurance program for people ages 65 years or older, people younger than 65 years of age who have certain disabilities, and people with end stage renal disease or amyotrophic lateral sclerosis.

"Member" means an individual who is enrolled with a Virginia Medicaid MCO to receive services under Cardinal Care Managed Care.

"Member appeal" means a member's request to the Department for review of an adverse benefit determination.

"Network provider" means a doctor, hospital, or other health care provider that participates or contracts with an MCO and enrolls with the department in accordance with 12 VAC 30-120-1120, and, as a result, agrees to accept a mutually agreed upon payment amount or fee schedule as payment in full for covered services that are rendered to eligible members.

"Nursing facility" means any skilled nursing facility, skilled care facility, intermediate care facility, nursing care facility, or nursing facility, whether freestanding or a portion of a freestanding medical care facility, that is certified for participation as a Medicare or Medicaid provider, or both, pursuant to Title XVIII and Title XIX of the Social Security Act, as amended, and the Code of Virginia § 32.1-137.

"Open enrollment" means the timeframe in which members are permitted to change from one MCO to another without cause, in accordance with 42 CFR 438.56.

"Previously authorized" means, in relation to continuation of benefits, a prior approved course of treatment, as described in 42 CFR § 438.420.

"Primary care provider" means a practitioner who provides preventive and primary medical care and certifies service authorizations and referrals for all medically necessary specialty services. Primary care providers may include pediatricians, family and general practitioners, internists, obstetrician/gynecologists, and specialists who perform primary care functions such as surgeons, clinics including, but not limited to health departments, Federally Qualified Health Centers (FQHCs), Rural Health Clinics (RHCs), etc.

"Program of All-Inclusive Care for the Elderly" or "PACE" means the program in which the PACE provider provides the entire spectrum of health services (preventive, primary, and acute) and long-term services and supports to its members without limit as to duration or dollars.

"Provider appeal" means an appeal to the department filed by a Medicaid-enrolled or network service provider that has already provided a service to a member and has received an adverse reconsideration decision regarding service authorization, payment, or audit result.

"Reconsideration" means, as provided for in 12 VAC 30-20-500 through 12 VAC 30-20-560, a provider’s request to the MCO for review of an adverse action as defined in this section. The MCO’s reconsideration decision is a pre-requisite to a provider’s filing of an appeal to the department’s Appeals Division.

"Remand" means the return of a case by the department's hearing officer to the MCO for further review, evaluation, and action.

"Social Security Act" means the federal act, codified through Chapter 7 of Title 42 of the United States Code that established social insurance programs including Medicare and Medicaid.

"State fair hearing" means the department’s evidentiary hearing process for member appeals. Any adverse internal appeal decision rendered by the MCO may be appealed by the member or the member’s authorized representative to the department’s Appeals Division. The department conducts evidentiary hearings in accordance with regulations at 42 CFR § 431 Subpart E and 12 VAC 30-110-10 through 12 VAC 30-110-370.

"Subcontractor" means an individual or entity that has a contract with the MCO to perform part of the responsibilities under the Cardinal Care Managed Care contract that relates directly or indirectly to the performance of the MCO's obligations under its contract with the State in accordance with 42 CFR 438.2.

"Withdraw" means a written request from the member or the member's authorized representative for the department to terminate the member appeal.

A. The foster care population as defined in 12VAC30-120-1100 will be automatically enrolled into the Foster Care Specialty Plan in the Cardinal Care Managed Care program. Foster care individuals may opt out of the program to the fee-for-service delivery system. Former foster care individuals and individuals receiving adoption assistance may not opt out of the program. Enrollment in the Cardinal Care Managed program will be mandatory for former foster care individuals, individuals receiving adoption assistance, and all other eligible individuals. Individuals who are mandatorily enrolled in the Cardinal Care Managed Care program may not opt out of the program into fee-for-service. The department shall have sole authority and responsibility for the enrollment of individuals into the program and for excluding members from the program.

B. The following individuals shall be enrolled in the program per the § 1915(b) waiver:

1. Children under age 19 enrolled in either the Medicaid or Children’s Health Insurance Program (CHIP).

2. Medicaid adults ages 19-64.

3. Medicaid expansion adults ages 19-64.

4. Medicaid aged, blind and disabled (ABD) children and adults and Medicaid Works individuals, including individuals with Medicare.

5. Medicaid individuals receiving long-term services and supports (LTSS) in a nursing facility, long-stay hospital, hospice, or through a home and community-based services waiver.

6. Pregnant and postpartum individuals enrolled in Medicaid or CHIP programs, including pregnant individuals who do not meet immigration status rules for other coverage.

C. The following individuals shall be excluded from enrollment in the program:

1. Individuals enrolled in a PACE program.

2. Individuals who have any insurance purchased through Medicaid or CHIP health insurance premium assistance programs.

3. Individuals with temporary eligibility coverage (less than three months).

4. Individuals with retroactive eligibility coverage, other than newborns of managed care enrolled individuals.

5. Individuals who are eligible in a presumptive eligibility group.

6. Individuals who have eligibility in a limited coverage group, such as:

a. Individuals enrolled in Plan First;

b. Individuals enrolled in Medicare who do not have full Medicaid benefits, such as:

(1) Qualified Medicare beneficiaries;

(2) Special low-income Medicare beneficiaries;

(3) Qualified disabled working individuals; or

(4) Qualifying individuals for whom Medicaid pays the Part B premium.

7. Individuals placed on spenddown. However, spenddown individuals are included if they are medically needy LTSS participants who meet their spend-down each month and maintain on-going eligibility.

8. Individuals enrolled in a Medicaid-approved hospice program at the time of enrollment. However, if an individual enters a hospice program while enrolled in the Cardinal Care Managed Care program, the member will remain enrolled in the program.

9. Individuals who reside in areas of the Commonwealth where at least two contracted MCOs do not participate, such as Tangier Island.

10. Individuals younger than 21 years of age who are admitted to a DMAS contracted Psychiatric Residential Treatment Facility.

11. Individuals who are institutionalized in state or private intermediate care facilities for Individuals with intellectual disabilities (ICF/IID) and state intermediate care facilities for individuals with mental Illness (ICF/MH facilities) (a state acute care facility is not excluded).

12. Individuals receiving care in a Christian Science Sanatoria Facility.

13. Individuals 21 to 64 years of age who are hospitalized in state or private institutions for mental diseases (IMDs), other than individuals admitted to an IMD as part of an MCO approved admission, in lieu of an acute care hospital (psychiatric unit), consistent with 42 CFR § 438.6(e) and the Cardinal Care Managed Care contract.

14. Individuals who reside at Piedmont, Hiram Davis, and Hancock state facilities.

15. Individuals who reside in nursing facilities operated by the U.S. Department of Veterans Affairs, the Virginia Home Nursing Facility, local government-owned nursing homes, and individuals authorized by the department to receive care/treatment in facilities located outside of Virginia as specified in the Cardinal Care Managed Care contract.

16. Individuals who are incarcerated (individuals on house arrest are not considered incarcerated).

17. Individuals enrolled in the Virginia Birth-Related Neurological Injury Compensation Program, established pursuant to Chapter 50 of Title 38.2 (§ 38.2-5000 et seq.) of the Code of Virginia, who shall maintain enrollment in Medicaid fee-for-service.

D. The foster care population as defined in 12VAC30-120-1100 shall be enrolled in the Foster Care Specialty Plan. All other eligible individuals as defined in subsection B of this section shall be enrolled in an MCO through a default assignment methodology (as described in subsection E of this section) as needed based on DMAS sole discretion.

1. The member will be, at a minimum, notified of their assigned MCO, their right to select another MCO operating in the member's locality (other than members who are in foster care), the program service begin date, and instructions for the individual or the individual's designee to contact DMAS or its enrollment broker to:

a. Members who are in foster care. Opt out of the Foster Care Specialty Plan and return to fee-for-service. Members in foster care who have opted out of the Foster Care Specialty Plan into fee-for-service are permitted to enroll into the Foster Care Specialty Plan at any time.

b. Members who were formally in foster care or who receive adoption assistance. Opt out of the Foster Care Specialty Plan and select a different MCO that is operating in the individual's locality. Members formally in foster care and those who receive adoption assistance that have opted out of the Foster Care Specialty Plan and selected a different MCO are permitted to enroll into the Foster Care Specialty Plan at any time.

c. All other members. Select a different MCO that is operating in the individual's locality.

2. If an individual does not contact DMAS or its enrollment broker to select a different MCO operating in the individual's locality, the individual shall be enrolled into the assigned MCO.

3. Foster care members who have opted into fee-for-service maintain the right to enroll in the Foster Care Specialty Plan at any time, notwithstanding the initial 90-day enrollment period. Members formally in foster care and those who receive adoption assistance may change their MCO at any time and are not restricted to their MCO selection following the initial 90-day enrollment period. They are also permitted to enroll into the Foster Care Specialty Plan at any time. For all other members, during the initial 90 calendar days following the effective date of enrollment, the member will be permitted to disenroll from one MCO and enroll in another without cause. This 90-day timeframe applies only to the member's initial start date of enrollment in the Cardinal Care Managed Care program; it does not reset or apply to any subsequent enrollment periods. After the initial 90-day period following the initial enrollment date, the member (other than the foster care population as defined in 12VAC30-120-1100) may not disenroll without cause until the next annual open enrollment period unless disenrolled under one of the conditions described and pursuant to 42 CFR § 438.56(c)(2).

4. Open enrollment shall not apply to the foster care population as defined in 12VAC-30-120-1100 who are permitted to change their health plan as described in Section 3 above. For all other members, open enrollment is a period of time when individuals are able to change from one MCO to another without cause.

a. Open enrollment will occur at least once every 12 months per 42 CFR § 438.56(c)(2) and 42 CFR § 438.56(f)(1).

b. Within 60 days prior to the open enrollment effective date, the department will inform members of the opportunity to remain with the current plan or change to another plan without cause. Those individuals who do not choose a new MCO during the open enrollment period shall remain in their current MCO until their next open enrollment effective date.

E. DMAS shall utilize a default assignment process in accordance with 42 CFR 438.54(d)(5) to assign eligible individuals to an MCO. If none of the criteria used in the default assignment process applies to an individual, the individual will be randomly assigned to an MCO. The default assignment process will, at a minimum, take into account:

1. Foster care, former foster care or adoption assistance status;

2. The individual's previous Medicare and Medicaid MCO enrollment within the past two months if known at the time of assignment;

3. Which MCO other individuals in the member’s eligibility case are enrolled with; and

4. Which MCO the individual's current providers are contracted with. This may include the nursing facility an individual is residing in at the time of assignment, adult day health care for CCC Plus waiver enrolled members, and an individual's private duty nursing provider.

F. Consistent with 42 CFR § 438.56(d), DMAS must permit a member to disenroll at any time for cause.

1. The following are cause for disenrollment:

a. The MCO does not, because of moral or religious objections, cover the service the member seeks;

b. The member needs related services (e.g., a cesarean section and a tubal ligation) to be performed at the same time, not all related services are available within the provider network, and the member’s primary care provider or another provider determines that receiving the services separately would subject the member to unnecessary risk;

c. The member who receives LTSS would have to change residential, institutional, or employment supports provider based on that provider’s change in status from an in-network to an out-of-network provider with the MCO and, as a result, the member would experience a disruption in residence or employment;

d. Pregnant individuals who are in their third trimester of the pregnancy, may request good cause exemption to temporarily return to fee-for-service if their OB provider is enrolled in Medicaid fee-for-service but does not participate under an MCO. In order to be considered for good cause exemption, pregnant individuals must follow the procedures specified in the Cardinal Care Managed Care contract; and

e. Other reasons as determined by the Department, including but not limited to, poor quality of care, lack of access to services covered under the Cardinal Care Managed Care contract, or lack of access to providers experienced in dealing with the member’s care needs.

2. The member’s request for disenrollment may be submitted orally or in writing to the department in accordance with 42 CFR § 438.56(d)(1). The department will review the request in accordance with cause for disenrollment criteria defined in 42 CFR § 438.56(d)(2). The department will respond to "cause" requests, in writing, within 15 business days of the department’s receipt of the request. In accordance with 42 CFR §§ 438.56(e)(1)-(2), if the department fails to make a determination by the first day of the second month following the month in which the member files the request, the disenrollment request shall be considered approved and effective no later than the first day of the second month following the month in which the member requests the plan change. Members who are dissatisfied with the department’s determination shall have the right to appeal through the state fair hearing process in 42 CFR § 431 Subpart E and 12 VAC 30-110-10 through 12 VAC 30-110-370.

G. Eligible individuals who have been previously enrolled with an MCO and who regain eligibility for the program within 60 calendar days of the effective date of exclusion or disenrollment will be reassigned to the same MCO whenever possible and without going through the selection or assignment process.

H. Enrollment in the program shall not be a guarantee of continuing eligibility for services and benefits under the Virginia Medicaid or CHIP programs.

The MCOs must ensure their Cardinal Care network providers are screened, enrolled, periodically revalidated, and maintain their enrollment with DMAS to participate in the MCO's network in accordance with 42 CFR §438.602(b), 42 CFR §438.608(b), 42 CFR §455.100-106, 42 CFR §455.400-470, and Section 5005(b)(2) of the 21st Century Cures Act.

A. The MCO and all of its subcontractors shall abide by all Cardinal Care Managed Care requirements, including:

1. The MCO shall provide medically necessary covered services in accordance with the Cardinal Care Managed Care contract.

a. Each MCO and its subcontractors shall have in place and follow written policies and procedures for processing requests for initial and continuing authorizations of service in accordance with 42 CFR §438.210(b)(1). Each MCO and its subcontractors shall ensure that any decision to deny a service authorization request or to authorize a service in an amount, duration, or scope that is less than requested be made by a health care professional who has appropriate clinical expertise in treating the member's condition or disease. Each MCO and its subcontractors shall have in effect mechanisms to ensure consistent application of review criteria for authorization decisions and shall consult with the requesting provider when appropriate.

b. In accordance with § 1932(f) of the Social Security Act (42 USC § 1396a-2), the MCO shall pay all in-network and out-of-network providers (including Native American health care providers) on a timely basis, consistent with the claims payment procedure described in 42 CFR § 447.45 and 42 CFR § 447.46 and § 1902(a)(37) of the Social Security Act, upon receipt of all clean claims, for covered services rendered to covered members who are enrolled with the MCO at the time the service was delivered. The MCO may deny claims in whole or in part for not meeting payment criteria established by the MCO.

c. Utilization review and audit. MCOs may perform utilization reviews and audits on their network providers. As a result of such a review or audit, an overpayment may be determined.

2. The MCO shall report data to the department per Cardinal Care Managed Care contract requirements, which includes data, claims reports, and quality studies performed by the MCO.

3. The MCO shall maintain records, including written policies and procedures, as required by the Cardinal Care Managed Care contract.

4. The MCO shall furnish such required information as described in subsection (A)(3) of this section to the department, the Attorney General of Virginia or the Attorney General's authorized representative, and the State Medicaid Fraud Control Unit upon request and in the form requested.

5. The MCO shall meet standards specified in the Cardinal Care Managed Care contract for sufficiency of provider networks. In accordance with § 1915(b)(4) of the Social Security Act, 42 CFR § 431.51, and 42 CFR § 438.12b(1), the MCO does not have to contract with any willing provider.

6. The MCO shall conduct monthly checks to screen providers for exclusion.

7. The MCO shall require its providers and subcontractors to fully comply with federal requirements for disclosure of ownership and control, business transactions, and information for persons convicted of crimes against federal related health care programs, including Medicare, Medicaid, and CHIP programs, as described in 42 CFR § 455 Subpart B.

8. The MCO shall not impose any cost sharing obligations on members other than the member's patient pay obligation towards the cost of long term services and supports.

B. Sanctions shall be the same as those set forth in the Cardinal Care Managed Care contract and 42 CFR Part 438, Subpart I.

C. As provided in 42 CFR § 438.210(a)(5)(i), the MCO's medical necessity criteria shall not be more restrictive than the department's criteria and shall be subject to approval by the department.

D. The MCO's coverage rules for contract covered services shall also ensure compliance with federal EPSDT coverage requirements in 42 CFR § 441 Subpart B for members younger than 21 years of age.

E. The MCO shall provide services at least in equal amount, duration, and scope as available under the Medicaid fee-for-service program.

F. The MCO shall not apply any financial requirement or treatment limitation to behavioral health benefits, including mental health or addiction, recovery and treatment benefits, in any classification (inpatient, out-patient, emergency, and pharmacy) that is more restrictive than the predominant financial requirement or treatment limitation of that type applied to substantially all medical/surgical benefits in the same classification furnished to members.

G. The MCO shall provide behavioral health benefits to the member in every classification in which medical/surgical benefits are provided.

H. The MCO shall not place any limitation on behavioral health benefits that is more restrictive than limits in place under fee-for-service Medicaid.

I. The MCO may cover, in addition to services covered under the state plan, any service necessary for compliance with the requirements for parity in mental health and substance abuse benefits in 42 CFR § 438 Subpart K.

J. If a member of the MCO is provided behavioral health benefits in any classification of benefits (inpatient, outpatient, emergency care, or prescription drugs), the behavioral health benefits must be provided to the member in every classification in which medical/surgical benefits are provided.

K. The MCO shall not impose an aggregate lifetime dollar limit on any behavioral health benefit regardless of classification.

L. The MCO may not impose non-quantitative treatment limits (NQTL) for behavioral health benefits in any classification (inpatient, out-patient, emergency care, or prescription drugs) unless, under the policies and procedures of the MCO as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to behavioral health benefits in the classification are comparable to and are applied no more stringently than the processes, strategies, evidentiary standards, or other factors used in applying the limitation for medical/surgical benefits in the classification.

M. The MCO shall provide documentation necessary to establish and demonstrate compliance with mental health parity requirements in 42 CFR § 438 Subpart K, regarding the provision of behavioral health benefits.

The MCO shall ensure continuity of care for each member upon enrollment into the member's plan. During the time period set forth in this section, the MCO shall maintain the member's current providers at the Medicaid fee-for-service rate and honor service authorizations issued prior to enrollment for the specified time period. The continuity of care period is as follows:

A. Within the first 30 calendar days of a member's enrollment, the MCO shall allow a member to maintain the member's current providers, including out-of-network providers. This time period shall be extended to 60 calendar days for members receiving high intensity care management, and for pregnant individuals, the continuity of care period shall be for the first 60 calendar days postpartum.

B. As necessary, the MCO shall extend this timeframe to ensure continuity of care pending the provider contracting with the MCO or the member's safe and effective transition to a network provider.

C. The MCO shall allow members to continue seeing their out-of-network providers with reimbursement provided at the department’s Medicaid fee-for-service rate for the duration of the continuity of care period.

D. The MCO shall honor member service authorizations issued by the department or its contractors for the duration of the service authorization or the duration of the continuity of care period, whichever comes first.

E. The department has the sole discretion to extend the continuity of care period timeframe.

A. The MCO shall, at a minimum, provide all medically necessary Medicaid covered services as required under the state plan (12VAC30-50-10 through 12VAC30-50-310, 12VAC30-50-410 through 12VAC30-50-430, and 12VAC30-50-470 through 12VAC30-50-580) and the home and community-based service waiver regulations (12VAC30-120-924, 12VAC30-120-927, and 12VAC30-120-1720) and community mental health services regulations (12VAC30-50-130 and 12VAC30-50-226), and addiction and recovery treatment services (12VAC30-130-5000 through 12VAC30-130-5210).

B. MCOs shall provide emergency and post-stabilization care services in accordance with the federal standards at U.S.C. § 1396u-2(b)(2) and 42 CFR § 438.114.

C. MCOs shall provide mental health and substance use disorder benefits and be in compliance with mental health parity rules per 42 CFR § 438.910.

D. The following services are not covered by the MCO and shall be provided outside the Cardinal Care Managed Care contract:

1. Dental services (12VAC30-50-190);

2. School health services (12VAC30-50-130);

3. Long Term Services and Supports screening for LTSS services and nursing facility placement (12VAC30-60-303); and

4. Developmental Disability Waiver program services, as specified in 12VAC30-122-240 et seq., 12VAC30-122-250 et seq., and 12VAC30-122-260 et seq., and transportation services to Developmental Disability Waiver program services.

A. The payment rate to MCOs shall be set by negotiated contracts and in accordance with 42 CFR § 438.6 through 42 CFR § 438.8 and other pertinent federal regulations.

B. In accordance with § 1932(b)(2)(D) of the Social Security Act and State Medicaid Director Letter 06-010, MCOs shall pay noncontracted providers for emergency services no more than the amount that would have been paid if the service had been provided under the state's fee-for-service Medicaid program. MCOs shall reimburse out-of-network providers and providers of emergent or urgent care, as defined by 42 CFR § 424.101 and 42 CFR § 405.400 respectively, at the Medicaid fee-for-service payment level for that service.

C. The payment rate for select providers identified in the Cardinal Care Managed Care contract shall be no less than the Medicaid fee-for-service rates.

A. MCOs shall comply with the Cardinal Care Managed Care contract, 42 CFR 438 Subpart E, and the MCO standards identified in 42 CFR 438 Subpart D.

B. MCOs’ utilization review programs must demonstrate that members have equitable access to all covered services in an amount, duration, and scope that is no less than the amount, duration, and scope for the same services as provided under the fee-for-service program in accordance with 42 CFR 438.210(a)(2).

C. In accordance with 42 CFR § 438.210, MCOs’ utilization review programs must ensure consistent application of review criteria for authorization decisions and must consult with the requesting provider when appropriate.

A. The Appeals Division maintains an appeals and fair hearings system for members (referred to as "appellants" once the appeal process has begun) to challenge internal appeal decisions rendered by the MCO in response to member appeals of adverse benefit determinations related to Medicaid covered services. Exhaustion of the MCO's internal appeals process is a prerequisite to requesting a state fair hearing with the department. Appellants who meet the criteria for a state fair hearing shall be entitled to a de novo state fair hearing before a department hearing officer.

B. The MCO shall conduct an internal appeal pursuant to 42 CFR Part 431 Subpart E and 42 CFR Part 438 Subpart F and issue a written decision that includes its findings and information regarding the appellant's right to file an appeal with the department for a state fair hearing for Medicaid appeals.

C. Members must be notified in writing of the MCO's internal appeals process in accordance with 42 CFR 438.400 et seq.:

1. In the member handbook; and

2. Upon receipt of a notice of adverse benefit determination from the MCO.

D. Members must be notified in writing of their right to an external appeal to the department upon receipt of the MCO's final internal appeal decision. The MCO’s final internal appeal decision must include the following:

1. The results of the internal appeal and the date it was completed;

2. For internal appeals not resolved wholly in favor of the member –

a. The right to request a State fair hearing and how to do so;

b. The right to request and receive benefits while the hearing is pending and how to make the request; and

c. That the member may be held liable for the cost of those benefits if the hearing decision upholds the MCOs adverse benefit determination.

E. An appellant shall have the right to be represented by an attorney or an authorized representative at the internal appeal and external appeal before the department. An authorized representative may be designated to represent the appellant, pursuant to 12VAC30-110-60, 12VAC30-110-1380, and 12VAC30-110-1390, at the internal appeal and external appeal before the department.

F. Any communication from a member or the member's authorized representative that expresses the member's desire to present their case to a reviewing authority shall constitute an appeal request.

1. This communication should explain the basis for the appeal of the MCO's internal appeal decision.

2. The appellant or the appellant's authorized representative may examine witnesses, documents, or both; provide testimony; submit evidence; and advance relevant arguments during the state fair hearing.

G. After the MCO's internal appeal process has been exhausted, an appellant may request a state fair hearing by filing an appeal with the Appeals Division via regular mail, fax transmission, telephone, electronic mail, the DMAS appeal portal, in person, or through other commonly available electronic means.

H. Expedited appeals referenced in subsection K of this section may be filed by telephone or any of the methods set forth in subsection H of this section.

I. The appellant member has the right to have his benefits continued during the internal appeal or the state fair hearing.

1. All of the following requirements must be met in order for benefits to be continued during the MCO and state fair hearing appeals:

a. The appeal involves the termination, suspension, or reduction of a previously authorized course of treatment;

b. The services were ordered by an authorized provider;

c. The original period covered by the initial authorization has not expired; and

d. The member requests that the benefits be continued.

2. For continuation of benefits for an internal appeal with the MCO, the member or authorized representative must file the appeal before the effective date of the adverse benefit determination or within 10 calendar days of the mail date of the MCO's notice of the adverse benefit determination.

3. For continuation of benefits for a state fair hearing, the member or authorized representative must file the appeal within 10 calendar days of the mail date of the MCO's final appeal decision.

4. The MCO shall also continue benefits for members who initiate a state fair hearing directly because of deemed exhaustion of appeals processes due to failure of the MCO to adhere to the notice and timing requirements in 42 CFR 438.408.

5. If the final resolution of the appeal or state fair hearing is adverse to the member, that is upholds the MCO's adverse benefit determination, the MCO may recover the costs of services furnished to the member while the appeal and the state fair hearing were pending, to the extent they were furnished solely because of the pending appeal.

J. The MCO and the department shall maintain an expedited process for appeals when the MCO determines (for the request from a member) or an appellant's treating provider indicates (in making the request on the enrollee's behalf or supporting the enrollee's request) that taking the time for a standard resolution could seriously jeopardize the member's life, physical or mental health, or ability to attain, maintain, or regain maximum function.

1. Resolution of an expedited appeal shall be no longer than 72 hours after the MCO receives the appeal.

2. Members must exhaust the MCO's internal appeals process prior to filing an expedited appeal request with the department, except for those members who gain direct access to state fair hearings because of deemed exhaustion of appeals processes with the MCO pursuant to 42 CFR 438.402(c)(1)(i)(A).

3. The MCO and the department may extend the timeframes for resolution of an expedited appeal by up to 14 calendar days if the member or the member's authorized representative requests the extension or if the MCO or the department shows that there is a need for additional information and how the delay is in the member's best interest.

4. Requirements following extension. If the MCO extends the timeframes not at the request of the member, it shall complete the following:

a. Make reasonable efforts to give the member prompt oral notice of the delay;

b. Within two calendar days give the member written notice of the reason for the decision to extend the timeframe and inform the member of the right to file a grievance if he or she disagrees with that decision; and

c. Resolve the appeal as expeditiously as the member's health condition requires and no later than the date the extension expires.

A. Appeals to the Medicaid state fair hearing process must be filed with the Appeals Division within 120 days of the date of the MCO's final internal appeal decision.

B. It is presumed that appellants receive the MCO's final internal appeal decision five calendar days after the MCO mails the internal appeal decision.

C. A request for a state fair hearing on the grounds that the MCO has not acted with reasonable promptness in response to an internal appeal request may be filed at any time until the MCO has acted.

D. The date of filing shall be the date the internal appeal request is received by the MCO, the date the state fair hearing request is received by the Appeals Division, or the postmark date if the state fair hearing request is sent by regular mail.

E. In computing any time period under this chapter, the day of the act or event from which the designated time period begins to run shall be excluded and the last day included. If a time limit would expire on a Saturday, Sunday, or state or federal holiday, it shall be extended until the next regular business day.

F. The department shall take final administrative action within 90 days from the date the member filed an MCO appeal, not including the number of days the member took to file a state fair hearing after the MCO’s internal appeal decision was issued.

G. Exceptions to standard appeal resolution timeframes. Decisions may be issued beyond the standard appeal resolution timeframes when the appellant or the appellant's authorized representative requests or causes a delay. Decisions may also be issued beyond the standard appeal resolution timeframe when any of the following circumstances exist:

1. The appellant or authorized representative requests to reschedule or continue the state fair hearing;

2. The appellant or authorized representative provides good cause for failing to keep a scheduled state fair hearing appointment, and the Appeals Division reschedules the state fair hearing;

3. Inclement weather, unanticipated system outage, or the department's closure prevents the hearing officer's ability to work;

4. Following a state fair hearing, the hearing officer orders an independent medical assessment as described in 12VAC30-120-1210;

5. The hearing officer leaves the state fair hearing record open after the state fair hearing in order to receive additional evidence or argument from the appellant;

6. The hearing officer receives additional evidence from a person other than the appellant or the appellant's authorized representative, and the appellant requests to comment on such evidence in writing or to have the state fair hearing reconvened to respond to such evidence; or

7. The Appeals Division determines that there is a need for additional information and documents how the delay is in the appellant's best interest.

H. For delays requested or caused by an appellant or the appellant's authorized representative, the delay date for the decision will be calculated as follows:

1. If an appellant or authorized representative requests or causes a delay within 30 days of the request for a state fair hearing, the 90-day time limit will be extended by the number of days from the date when the first state fair hearing was scheduled until the date to which the state fair hearing is rescheduled.

2. If an appellant or authorized representative requests or causes a delay within 31 to 60 days of the request for a state fair hearing, the 90-day time limit will be extended by 1.5 times the number of days from the date when the first state fair hearing was scheduled until the date to which the state fair hearing is rescheduled.

3. If an appellant or authorized representative requests or causes a delay within 61 to 90 days of the request for a state fair hearing, the 90-day time limit will be extended by two times the number of days from the date when the first state fair hearing was scheduled until the date to which the state fair hearing is rescheduled.

I. Post state fair hearing delays requested or caused by an appellant or authorized representative (e.g., requests for the record to be left open) will result in a day-for-day delay for the decision date. The department shall provide the appellant and authorized representative with written notice of the reason for the decision delay and the delayed decision date, if applicable.

A. If the Appeals Division determines that any of the conditions as described in this subsection exist, a state fair hearing will not be held and the appeal process shall be terminated.

1. A request for appeal may be invalidated if:

a. It was not filed within the time limit imposed by 12VAC30-120-1190; or

b. The individual who filed the appeal ("filer") is not the appellant or parent of a minor appellant, and the Appeals Division sends a letter to the filer requesting proof of the filer's authority to appeal on behalf of the appellant; and

(1) The filer did not reply within 10 calendar days to the request for authorization to represent the appellant; or

(2) The filer replied within 10 calendar days of the request, and the Appeals Division determined that the authorization submitted was insufficient to allow the filer to represent the appellant.

2. A request for appeal may be administratively dismissed if:

a. The MCO's internal appeals process was not exhausted prior to the member's request for a state fair hearing;

b. The issue of the appeal is not related to the MCO's final internal appeal decision;

c. The adverse benefit determination being appealed was not taken by the MCO; or

d. The sole issue is a federal or state law requiring an automatic change adversely affecting some or all beneficiaries.

3. An appeal case may be closed if:

a. The Appeals Division schedules a state fair hearing and sends a written schedule letter notifying the appellant or the appellant's authorized representative of the date, time, and location of the state fair hearing; the appellant or the appellant's authorized representative fails to appear at the scheduled state fair hearing; and the Appeals Division sends a letter to the appellant for an explanation as to why he failed to appear; and

(1) The appellant did not reply within 10 calendar days to the request for an explanation that met good cause criteria; or

(2) The appellant replied within 10 calendar days of the request, and the Appeals Division determined that the reply did not meet good cause criteria.

b. The appellant or the appellant's authorized representative withdraws the appeal request. If the appeal request is withdrawn orally, the Appeals Division shall (i) record the individual's statement and telephonic signature and (ii) send the affected individual written confirmation via regular mail or electronic notification, in accordance with the individual's election.

c. The MCO approves the full amount, duration, and scope of services requested.

d. The evidence in the record shows that the MCO's decision was clearly in error and that the case should be fully resolved in the appellant's favor.

B. Remand to the MCO. If the hearing officer determines from the record, without conducting a state fair hearing, that the case might be resolved in the appellant's favor if the MCO obtains and develops additional information, documentation, or verification, the hearing officer may remand the case to the MCO for action consistent with the hearing officer's written instructions pursuant to 12VAC30-110-210 D.

C. A letter shall be sent to the appellant or the appellant's authorized representative that explains the determination made on the appeal.

A. All state fair hearings must be scheduled at a reasonable time, date, and place, and the appellant and the appellant's authorized representative shall be notified in writing prior to the hearing.

1. The state fair hearing location will be determined by the Appeals Division.

2. A state fair hearing shall be rescheduled at the appellant's request no more than twice unless compelling reasons exist.

3. Rescheduling the state fair hearing at the appellant's request will result in automatic waiver of the 90-day deadline for resolution of the appeal. The delay date for the decision will be calculated as set forth in 12VAC30-120-1190.

B. The state fair hearing shall be conducted by a department hearing officer. The hearing officer shall review the complete record for all MCO decisions that are properly appealed; conduct informal, fact-gathering de novo state fair hearings; evaluate evidence presented; research the issues; and render a written final decision.

C. Subject to the requirements of all applicable federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information, the appeal record shall be made accessible to the appellant and authorized representative at a convenient place and time before the date of the state fair hearing, as well as during the state fair hearing. The appellant and the appellant's authorized representative may examine the content of the appellant's case file and all documents and records the department will rely on at the state fair hearing except those records excluded by law.

D. Appellants who require the attendance of witnesses or the production of records, memoranda, papers, and other documents at the state fair hearing may request in writing the issuance of a subpoena. The request must be received by the department at least 10 working days before the scheduled state fair hearing. Such request shall (i) include the witness's or respondent's name, home and work addresses, and county or city of work and residence; and (ii) identify the sheriff's office that will serve the subpoena.

E. The hearing officer shall conduct the state fair hearing; decide on questions of evidence, procedure, and law; question witnesses; and assure that the state fair hearing remains relevant to the issue being appealed. The hearing officer shall control the conduct of the state fair hearing and decide who may participate in or observe the state fair hearing.

F. State fair hearings shall be conducted in an informal, nonadversarial manner. The appellant or the appellant's authorized representative shall have the right to bring witnesses, establish all pertinent facts and circumstances, present an argument without undue interference, and question or refute the testimony or evidence, including the opportunity to confront and cross-examine agency representatives.

G. The rules of evidence shall not strictly apply. All relevant, nonrepetitive evidence may be admitted, but the probative weight of the evidence will be evaluated by the hearing officer.

H. The hearing officer may leave the state fair hearing record open for a specified time period after the state fair hearing in order to receive additional evidence or argument from the appellant or the appellant's authorized representative.

1. At the appellant's option, the hearing officer may order an independent medical assessment when the appeal involves medical issues, such as a diagnosis, an examining physician's report, or a medical review team's decision, and the hearing officer determines that it is necessary to have an assessment by someone other than the person or team who made the original decision (e.g., to obtain more detailed medical findings about the impairments, to obtain technical or specialized medical information, or to resolve conflicts or differences in medical findings or assessments in the existing evidence). A medical assessment ordered pursuant to this chapter shall be at the department's expense, shall not extend any of the timeframes specified in this chapter, shall not disrupt the continuation of benefits, and shall become part of the record.

2. The hearing officer may receive evidence that was not presented by either party if the record indicates that such evidence exists, and the appellant or the appellant's authorized representative requests to submit it or requests that the hearing officer secure it.

3. If the hearing officer receives additional evidence from an entity other than the appellant or the appellant's authorized representative, the hearing officer shall send a copy of such evidence to the appellant and the appellant's authorized representative and give the appellant or the appellant's authorized representative the opportunity to comment on such evidence in writing or to have the state fair hearing reconvened to respond to such evidence.

4. Any additional evidence received will become a part of the state fair hearing record, but the hearing officer must determine whether or not it will be used in making the decision.

I. After conducting the state fair hearing, reviewing the record, and deciding questions of law, the hearing officer shall issue a written final decision addressing the MCO's adverse benefit determination or remand the case to the MCO for further evaluation consistent with the hearing officer's written instructions. The hearing officer's final decision shall be considered the department's final administrative action pursuant to 42 CFR 431.244(f). The final decision shall include:

1. Identification of the issue;

2. Relevant facts, to include a description of the procedural development of the case;

3. Conclusions of law, regulations, and policy that relate to the issue;

4. Discussions, analysis of the evidence received during the de novo hearing, conclusions, and hearing officer's decision;

5. Further action, if any, to be taken by the MCOs to implement the hearing officer's decision;

6. The deadline date by which further action must be taken; and

7. A cover letter informing the appellant and the appellant's authorized representative of the hearing officer's decision. The letter must indicate that the hearing officer's decision is final, and that the final decision may be appealed directly to circuit court.

J. A copy of the state fair hearing record shall be forwarded to the appellant and the appellant's authorized representative with the final decision.

K. An appellant who disagrees with the hearing officer's final decision described in this section may seek judicial review pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and Rules of the Supreme Court of Virginia, Part Two A. Written instructions for requesting judicial review must be provided to the appellant and the appellant's authorized representative with the hearing officer's decision, and upon request by the appellant or authorized representative.

A. The Appeals Division maintains an appeal process for network providers that have rendered Medicaid covered services to members and are requesting to challenge an MCO's reconsideration decision regarding an adverse action affecting service authorization or payment for Medicaid covered services. The MCO's internal reconsideration process is a prerequisite to filing for an external appeal to the department's provider appeal process. The appeal process is available to network and Medicaid-enrolled providers that (i) have rendered services and have been denied payment in whole or part for Medicaid covered services; (ii) have rendered services and have been denied authorization for the Medicaid covered services; and (iii) have received a notice of program reimbursement or overpayment demand from the department or its contractors for Medicaid covered services. Providers that have had their enrollment in the MCO's network denied or terminated by the MCO do not have the right to an external appeal with the Appeals Division.

B. Department provider appeals shall be conducted in accordance with the department's provider appeal regulations (12VAC30-20-500 et seq.), § 32.1-325 et seq. of the Code of Virginia, and the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. The department's external appeal decision shall be binding upon the MCO and not subject to further appeal by the MCO.

D. If the provider is successful in its appeal of a reimbursement issue, then the MCO shall reimburse the provider for the appealed issue.

E. The MCO is bound by the terms of a settlement agreement that is entered into by DMAS and the provider to resolve the adverse action that is appealed for a state fair hearing.

A. No person shall take from the department's custody any original record, paper, document, or exhibit that has been certified to the Appeals Division except as the Appeals Division Director or the director's designee authorizes or as may be necessary to furnish or transmit copies for other official purposes.

B. Information in the appellant's record can be released only to the appellant, the appellant's authorized representative, or the MCO, as provided for in 42 CFR § 431.300 et seq., and 12 VAC 30-20-90, and other persons named in a release of information authorization signed by an appellant or the appellant's authorized representative.

C. The fees to be charged and collected for any copy of Appeals Division records will be in accordance with Virginia's Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) or other controlling law.

D. When copies are requested from records in the Appeals Division's custody, the required fee shall be waived if the copies are requested in connection with a member's own appeal.