32.1-325 - Board to submit plan for medical assistance services to Secretary of Health and Human Services pursuant to federal law; administration of plan; contracts with health care providers.
§ 32.1-325. Board to submit plan for medical assistance services to Secretaryof Health and Human Services pursuant to federal law; administration of plan;contracts with health care providers.
A. The Board, subject to the approval of the Governor, is authorized toprepare, amend from time to time and submit to the Secretary of the UnitedStates Department of Health and Human Services a state plan for medicalassistance services pursuant to Title XIX of the United States SocialSecurity Act and any amendments thereto. The Board shall include in such plan:
1. A provision for payment of medical assistance on behalf of individuals, upto the age of 21, placed in foster homes or private institutions by private,nonprofit agencies licensed as child-placing agencies by the Department ofSocial Services or placed through state and local subsidized adoptions to theextent permitted under federal statute;
2. A provision for determining eligibility for benefits for medically needyindividuals which disregards from countable resources an amount not in excessof $3,500 for the individual and an amount not in excess of $3,500 for hisspouse when such resources have been set aside to meet the burial expenses ofthe individual or his spouse. The amount disregarded shall be reduced by (i)the face value of life insurance on the life of an individual owned by theindividual or his spouse if the cash surrender value of such policies hasbeen excluded from countable resources and (ii) the amount of any otherrevocable or irrevocable trust, contract, or other arrangement specificallydesignated for the purpose of meeting the individual's or his spouse's burialexpenses;
3. A requirement that, in determining eligibility, a home shall bedisregarded. For those medically needy persons whose eligibility for medicalassistance is required by federal law to be dependent on the budgetmethodology for Aid to Families with Dependent Children, a home means thehouse and lot used as the principal residence and all contiguous property.For all other persons, a home shall mean the house and lot used as theprincipal residence, as well as all contiguous property, as long as the valueof the land, exclusive of the lot occupied by the house, does not exceed$5,000. In any case in which the definition of home as provided here is morerestrictive than that provided in the state plan for medical assistanceservices in Virginia as it was in effect on January 1, 1972, then a homemeans the house and lot used as the principal residence and all contiguousproperty essential to the operation of the home regardless of value;
4. A provision for payment of medical assistance on behalf of individuals upto the age of 21, who are Medicaid eligible, for medically necessary stays inacute care facilities in excess of 21 days per admission;
5. A provision for deducting from an institutionalized recipient's income anamount for the maintenance of the individual's spouse at home;
6. A provision for payment of medical assistance on behalf of pregnant womenwhich provides for payment for inpatient postpartum treatment in accordancewith the medical criteria outlined in the most current version of or anofficial update to the "Guidelines for Perinatal Care" prepared by theAmerican Academy of Pediatrics and the American College of Obstetricians andGynecologists or the "Standards for Obstetric-Gynecologic Services"prepared by the American College of Obstetricians and Gynecologists. Paymentshall be made for any postpartum home visit or visits for the mothers and thechildren which are within the time periods recommended by the attendingphysicians in accordance with and as indicated by such Guidelines orStandards. For the purposes of this subdivision, such Guidelines or Standardsshall include any changes thereto within six months of the publication ofsuch Guidelines or Standards or any official amendment thereto;
7. A provision for the payment for family planning services on behalf ofwomen who were Medicaid-eligible for prenatal care and delivery as providedin this section at the time of delivery. Such family planning services shallbegin with delivery and continue for a period of 24 months, if the womancontinues to meet the financial eligibility requirements for a pregnant womanunder Medicaid. For the purposes of this section, family planning servicesshall not cover payment for abortion services and no funds shall be used toperform, assist, encourage or make direct referrals for abortions;
8. A provision for payment of medical assistance for high-dose chemotherapyand bone marrow transplants on behalf of individuals over the age of 21 whohave been diagnosed with lymphoma, breast cancer, myeloma, or leukemia andhave been determined by the treating health care provider to have aperformance status sufficient to proceed with such high-dose chemotherapy andbone marrow transplant. Appeals of these cases shall be handled in accordancewith the Department's expedited appeals process;
9. A provision identifying entities approved by the Board to receiveapplications and to determine eligibility for medical assistance;
10. A provision for breast reconstructive surgery following the medicallynecessary removal of a breast for any medical reason. Breast reductions shallbe covered, if prior authorization has been obtained, for all medicallynecessary indications. Such procedures shall be considered noncosmetic;
11. A provision for payment of medical assistance for annual pap smears;
12. A provision for payment of medical assistance services for prosthesesfollowing the medically necessary complete or partial removal of a breast forany medical reason;
13. A provision for payment of medical assistance which provides for paymentfor 48 hours of inpatient treatment for a patient following a radical ormodified radical mastectomy and 24 hours of inpatient care following a totalmastectomy or a partial mastectomy with lymph node dissection for treatmentof disease or trauma of the breast. Nothing in this subdivision shall beconstrued as requiring the provision of inpatient coverage where theattending physician in consultation with the patient determines that ashorter period of hospital stay is appropriate;
14. A requirement that certificates of medical necessity for durable medicalequipment and any supporting verifiable documentation shall be signed, dated,and returned by the physician, physician assistant, or nurse practitioner andin the durable medical equipment provider's possession within 60 days fromthe time the ordered durable medical equipment and supplies are firstfurnished by the durable medical equipment provider;
15. A provision for payment of medical assistance to (i) persons age 50 andover and (ii) persons age 40 and over who are at high risk for prostatecancer, according to the most recent published guidelines of the AmericanCancer Society, for one PSA test in a 12-month period and digital rectalexaminations, all in accordance with American Cancer Society guidelines. Forthe purpose of this subdivision, "PSA testing" means the analysis of ablood sample to determine the level of prostate specific antigen;
16. A provision for payment of medical assistance for low-dose screeningmammograms for determining the presence of occult breast cancer. Suchcoverage shall make available one screening mammogram to persons age 35through 39, one such mammogram biennially to persons age 40 through 49, andone such mammogram annually to persons age 50 and over. The term"mammogram" means an X-ray examination of the breast using equipmentdedicated specifically for mammography, including but not limited to theX-ray tube, filter, compression device, screens, film and cassettes, with anaverage radiation exposure of less than one rad mid-breast, two views of eachbreast;
17. A provision, when in compliance with federal law and regulation andapproved by the Centers for Medicare & Medicaid Services (CMS), for paymentof medical assistance services delivered to Medicaid-eligible students whensuch services qualify for reimbursement by the Virginia Medicaid program andmay be provided by school divisions;
18. A provision for payment of medical assistance services for liver, heartand lung transplantation procedures for individuals over the age of 21 yearswhen (i) there is no effective alternative medical or surgical therapyavailable with outcomes that are at least comparable; (ii) the transplantprocedure and application of the procedure in treatment of the specificcondition have been clearly demonstrated to be medically effective and notexperimental or investigational; (iii) prior authorization by the Departmentof Medical Assistance Services has been obtained; (iv) the patient selectioncriteria of the specific transplant center where the surgery is proposed tobe performed have been used by the transplant team or program to determinethe appropriateness of the patient for the procedure; (v) current medicaltherapy has failed and the patient has failed to respond to appropriatetherapeutic management; (vi) the patient is not in an irreversible terminalstate; and (vii) the transplant is likely to prolong the patient's life andrestore a range of physical and social functioning in the activities of dailyliving;
19. A provision for payment of medical assistance for colorectal cancerscreening, specifically screening with an annual fecal occult blood test,flexible sigmoidoscopy or colonoscopy, or in appropriate circumstancesradiologic imaging, in accordance with the most recently publishedrecommendations established by the American College of Gastroenterology, inconsultation with the American Cancer Society, for the ages, familyhistories, and frequencies referenced in such recommendations;
20. A provision for payment of medical assistance for custom ocularprostheses;
21. A provision for payment for medical assistance for infant hearingscreenings and all necessary audiological examinations provided pursuant to §32.1-64.1 using any technology approved by the United States Food and DrugAdministration, and as recommended by the national Joint Committee on InfantHearing in its most current position statement addressing early hearingdetection and intervention programs. Such provision shall include payment formedical assistance for follow-up audiological examinations as recommended bya physician, physician assistant, nurse practitioner, or audiologist andperformed by a licensed audiologist to confirm the existence or absence ofhearing loss;
22. A provision for payment of medical assistance, pursuant to the Breast andCervical Cancer Prevention and Treatment Act of 2000 (P.L. 106-354), forcertain women with breast or cervical cancer when such women (i) have beenscreened for breast or cervical cancer under the Centers for Disease Controland Prevention (CDC) Breast and Cervical Cancer Early Detection Programestablished under Title XV of the Public Health Service Act; (ii) needtreatment for breast or cervical cancer, including treatment for aprecancerous condition of the breast or cervix; (iii) are not otherwisecovered under creditable coverage, as defined in § 2701 (c) of the PublicHealth Service Act; (iv) are not otherwise eligible for medical assistanceservices under any mandatory categorically needy eligibility group; and (v)have not attained age 65. This provision shall include an expeditedeligibility determination for such women;
23. A provision for the coordinated administration, including outreach,enrollment, re-enrollment and services delivery, of medical assistanceservices provided to medically indigent children pursuant to this chapter,which shall be called Family Access to Medical Insurance Security (FAMIS)Plus and the FAMIS Plan program in § 32.1-351. A single application formshall be used to determine eligibility for both programs; and
24. A provision, when authorized by and in compliance with federal law, toestablish a public-private long-term care partnership program between theCommonwealth of Virginia and private insurance companies that shall beestablished through the filing of an amendment to the state plan for medicalassistance services by the Department of Medical Assistance Services. Thepurpose of the program shall be to reduce Medicaid costs for long-term careby delaying or eliminating dependence on Medicaid for such services throughencouraging the purchase of private long-term care insurance policies thathave been designated as qualified state long-term care insurance partnershipsand may be used as the first source of benefits for the participant'slong-term care. Components of the program, including the treatment of assetsfor Medicaid eligibility and estate recovery, shall be structured inaccordance with federal law and applicable federal guidelines.
B. In preparing the plan, the Board shall:
1. Work cooperatively with the State Board of Health to ensure that qualitypatient care is provided and that the health, safety, security, rights andwelfare of patients are ensured.
2. Initiate such cost containment or other measures as are set forth in theappropriation act.
3. Make, adopt, promulgate and enforce such regulations as may be necessaryto carry out the provisions of this chapter.
4. Examine, before acting on a regulation to be published in the VirginiaRegister of Regulations pursuant to § 2.2-4007.05, the potential fiscalimpact of such regulation on local boards of social services. For regulationswith potential fiscal impact, the Board shall share copies of the fiscalimpact analysis with local boards of social services prior to submission tothe Registrar. The fiscal impact analysis shall include the projectedcosts/savings to the local boards of social services to implement or complywith such regulation and, where applicable, sources of potential funds toimplement or comply with such regulation.
5. Incorporate sanctions and remedies for certified nursing facilitiesestablished by state law, in accordance with 42 C.F.R. § 488.400 et seq."Enforcement of Compliance for Long-Term Care Facilities With Deficiencies."
6. On and after July 1, 2002, require that a prescription benefit card,health insurance benefit card, or other technology that complies with therequirements set forth in § 38.2-3407.4:2 be issued to each recipient ofmedical assistance services, and shall upon any changes in the required dataelements set forth in subsection A of § 38.2-3407.4:2, either reissue thecard or provide recipients such corrective information as may be required toelectronically process a prescription claim.
C. In order to enable the Commonwealth to continue to receive federal grantsor reimbursement for medical assistance or related services, the Board,subject to the approval of the Governor, may adopt, regardless of any otherprovision of this chapter, such amendments to the state plan for medicalassistance services as may be necessary to conform such plan with amendmentsto the United States Social Security Act or other relevant federal law andtheir implementing regulations or constructions of these laws and regulationsby courts of competent jurisdiction or the United States Secretary of Healthand Human Services.
In the event conforming amendments to the state plan for medical assistanceservices are adopted, the Board shall not be required to comply with therequirements of Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2.However, the Board shall, pursuant to the requirements of § 2.2-4002, (i)notify the Registrar of Regulations that such amendment is necessary to meetthe requirements of federal law or regulations or because of the order of anystate or federal court, or (ii) certify to the Governor that the regulationsare necessitated by an emergency situation. Any such amendments that are inconflict with the Code of Virginia shall only remain in effect until July 1following adjournment of the next regular session of the General Assemblyunless enacted into law.
D. The Director of Medical Assistance Services is authorized to:
1. Administer such state plan and receive and expend federal funds thereforin accordance with applicable federal and state laws and regulations; andenter into all contracts necessary or incidental to the performance of theDepartment's duties and the execution of its powers as provided by law.
2. Enter into agreements and contracts with medical care facilities,physicians, dentists and other health care providers where necessary to carryout the provisions of such state plan. Any such agreement or contract shallterminate upon conviction of the provider of a felony. In the event suchconviction is reversed upon appeal, the provider may apply to the Director ofMedical Assistance Services for a new agreement or contract. Such providermay also apply to the Director for reconsideration of the agreement orcontract termination if the conviction is not appealed, or if it is notreversed upon appeal.
3. Refuse to enter into or renew an agreement or contract, or elect toterminate an existing agreement or contract, with any provider who has beenconvicted of or otherwise pled guilty to a felony, or pursuant to Subparts A,B, and C of 42 C.F.R. Part 1002, and upon notice of such action to theprovider as required by 42 C.F.R. § 1002.212.
4. Refuse to enter into or renew an agreement or contract, or elect toterminate an existing agreement or contract, with a provider who is or hasbeen a principal in a professional or other corporation when such corporationhas been convicted of or otherwise pled guilty to any violation of §32.1-314, 32.1-315, 32.1-316, or 32.1-317, or any other felony or has beenexcluded from participation in any federal program pursuant to 42 C.F.R. Part1002.
5. Terminate or suspend a provider agreement with a home care organizationpursuant to subsection E of § 32.1-162.13.
For the purposes of this subsection, "provider" may refer to an individualor an entity.
E. In any case in which a Medicaid agreement or contract is terminated ordenied to a provider pursuant to subsection D, the provider shall be entitledto appeal the decision pursuant to 42 C.F.R. § 1002.213 and to apost-determination or post-denial hearing in accordance with theAdministrative Process Act (§ 2.2-4000 et seq.). All such requests shall bein writing and be received within 15 days of the date of receipt of thenotice.
The Director may consider aggravating and mitigating factors including thenature and extent of any adverse impact the agreement or contract denial ortermination may have on the medical care provided to Virginia Medicaidrecipients. In cases in which an agreement or contract is terminated pursuantto subsection D, the Director may determine the period of exclusion and mayconsider aggravating and mitigating factors to lengthen or shorten the periodof exclusion, and may reinstate the provider pursuant to 42 C.F.R. § 1002.215.
F. When the services provided for by such plan are services which a marriageand family therapist, clinical psychologist, clinical social worker,professional counselor, or clinical nurse specialist is licensed to render inVirginia, the Director shall contract with any duly licensed marriage andfamily therapist, duly licensed clinical psychologist, licensed clinicalsocial worker, licensed professional counselor or licensed clinical nursespecialist who makes application to be a provider of such services, andthereafter shall pay for covered services as provided in the state plan. TheBoard shall promulgate regulations which reimburse licensed marriage andfamily therapists, licensed clinical psychologists, licensed clinical socialworkers, licensed professional counselors and licensed clinical nursespecialists at rates based upon reasonable criteria, including theprofessional credentials required for licensure.
G. The Board shall prepare and submit to the Secretary of the United StatesDepartment of Health and Human Services such amendments to the state plan formedical assistance services as may be permitted by federal law to establish aprogram of family assistance whereby children over the age of 18 years shallmake reasonable contributions, as determined by regulations of the Board,toward the cost of providing medical assistance under the plan to theirparents.
H. The Department of Medical Assistance Services shall:
1. Include in its provider networks and all of its health maintenanceorganization contracts a provision for the payment of medical assistance onbehalf of individuals up to the age of 21 who have special needs and who areMedicaid eligible, including individuals who have been victims of child abuseand neglect, for medically necessary assessment and treatment services, whensuch services are delivered by a provider which specializes solely in thediagnosis and treatment of child abuse and neglect, or a provider withcomparable expertise, as determined by the Director.
2. Amend the Medallion II waiver and its implementing regulations to developand implement an exception, with procedural requirements, to mandatoryenrollment for certain children between birth and age three certified by theDepartment of Behavioral Health and Developmental Services as eligible forservices pursuant to Part C of the Individuals with Disabilities EducationAct (20 U.S.C. § 1471 et seq.).
3. Utilize, to the extent practicable, electronic funds transfer technologyfor reimbursement to contractors and enrolled providers for the provision ofhealth care services under Medicaid and the Family Access to MedicalInsurance Security Plan established under § 32.1-351.
I. The Director is authorized to negotiate and enter into agreements forservices rendered to eligible recipients with special needs. The Board shallpromulgate regulations regarding these special needs patients, to includepersons with AIDS, ventilator-dependent patients, and other recipients withspecial needs as defined by the Board.
J. Except as provided in subdivision A 1 of § 2.2-4345, the provisions of theVirginia Public Procurement Act (§ 2.2-4300 et seq.) shall not apply to theactivities of the Director authorized by subsection I of this section.Agreements made pursuant to this subsection shall comply with federal law andregulation.
(1984, c. 781; 1985, cc. 519, 532, 535, 564; 1986, cc. 393, 455; 1987, cc.398, 446, 642; 1988, cc. 99, 215, 504, 790; 1989, c. 269; 1990, cc. 395, 793;1993, cc. 298, 971; 1996, cc. 155, 201, 511, 788, 796, 946; 1997, cc. 671,683, 730; 1998, cc. 56, 257, 459, 554, 558, 571, 631, 653, 709, 858, 875;1999, cc. 818, 878, 967, 1005, 1024; 2000, cc. 484, 855, 888; 2001, cc. 334,534, 663, 859; 2003, cc. 66, 71; 2004, cc. 125, 246, 855; 2006, cc. 396, 425;2007, cc. 536, 873, 916; 2009, cc. 813, 840; 2010, cc. 305, 785, 790.)