2006 Code of Virginia § 32.1-325.1 - Adverse initial determination of overpayment; appeals of agency determinations

32.1-325.1. Adverse initial determination of overpayment; appeals of agencydeterminations.

A. The Director shall make an initial determination as to whether anoverpayment has been made to a provider in accordance with the state plan formedical assistance, the provisions of 2.2-4019 and applicable federal law.The initial determination shall be issued within 180 days of the receipt ofthe appeal request. If the agency does not render a decision within 180 days,the decision is deemed to be in favor of the provider.

B. An appeal of the Director's initial determination concerning providerreimbursement shall be heard in accordance with 2.2-4020 of theAdministrative Process Act ( 2.2-4020 et seq.) and the state plan formedical assistance provided for in 32.1-325. The hearing officer appointedpursuant to 2.2-4024 shall conduct the appeal and submit a recommendeddecision to the Director within 120 days of the agency's receipt of theappeal request. The Director shall consider the parties' exceptions and issuethe final agency case decision within sixty days of receipt of the hearingofficer's recommended decision. If the Director does not render a finalagency case decision within sixty days of the receipt of the hearingofficer's recommended decision, the decision is deemed to be in favor of theprovider. The Director shall adopt the hearing officer's recommended decisionunless to do so would be an error of law or Department policy. Any finalagency case decision in which the Director rejects a hearing officer'srecommended decision shall state with particularity the basis for rejection.Prior to a final agency case decision issued in accordance with 2.2-4023,the Director may not undertake recovery of any overpayment amount paid to theprovider through offset or other means. Once a final determination ofoverpayment has been made, the Director shall undertake full recovery of suchoverpayment whether or not the provider disputes, in whole or in part, theinitial or the final determination of overpayment. Interest charges on theunpaid balance of any overpayment shall accrue pursuant to 32.1-313 fromthe date the Director's determination becomes final. Nothing in 32.1-313shall be construed to require interest payments on any portion of overpaymentother than the unpaid balance referenced herein.

C. The burden of proof in informal and formal administrative appeals is onthe provider. The agency shall reimburse a provider for reasonable andnecessary attorneys' fees and costs associated with an informal or formaladministrative appeal if the provider substantially prevails on the merits ofthe appeal and the agency's position is not substantially justified, unlessspecial circumstances would make an award unjust. In any case in which aprovider has recovered attorneys' fees and costs associated with an informalor formal administrative appeal, the provider shall not be entitled torecover those same attorneys' fees and costs in a subsequent judicialproceeding.

D. Court review of final agency determinations concerning providerreimbursement shall be made in accordance with the Administrative Process Act( 2.2-4000 et seq.). In any case in which a final determination ofoverpayment has been reversed in a subsequent judicial proceeding, theprovider shall be reimbursed that portion of the payment to which he isentitled plus any applicable interest, within thirty days of the subsequentjudicial order.

(1986, c. 441; 2000, c. 967.)