What’s happening: The Department of Medical Assistance Services (DMAS) filed its response to the VHCA-VCAL member petition to the Supreme Court of Virginia. In September, 181 member nursing homes requested a writ of mandamus from the court to require DMAS to increase Medicaid nursing facility direct care base rates as required by the state budget adopted in April.

• This is an expected step in the legal proceedings. VHCA-VCAL members party to the petition have until October 30 to submit a reply brief to the DMAS arguments.

DMAS makes three arguments to refute the request for a writ of mandamus requiring DMAS to follow the law and increase Medicaid reimbursement rates using the General Assembly’s mandated methodology.

1. DMAS argues that the petition is procedurally defective because VHCA-VCAL President and CEO Keith Hare verified the petition rather than each and every petitioner individually. The statute on applying for mandamus simply says that the petition must be verified but is silent on who may be the signatory.
2. DMAS argues that mandamus is an improper remedy because, in order for the DMAS Director to implement new rates, DMAS would have to obtain approval from CMS first.
3. DMAS argues that the governor struck everything he needed to for the item veto to be effective, because there was no separate appropriation for this nursing home direct care rate increase in the final bill (i.e., no separate $21 million line item for him to strike through).

Next steps: After the Supreme Court receives the reply brief, it has the option to schedule a hearing or decide the case on the written petition and responses.

• We will continue to keep you updated on the developments in this action as the petition is considered.