Health, Health Care Financing

Rule R410-14

Administrative Hearing Procedures

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 34147
Filed: 10/13/2010 03:08:49 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this new rule is to update and clarify administrative hearing procedures for the Division of Medicaid and Health Financing (DMHF).

Summary of the rule or change:

In contrast to the repealed rule, the reenacted rule adds definitions and updates hearing procedures to include requirements for managed care plan hearings, home and community-based waiver hearings, restriction hearings, and eligibility hearings. It also specifies the conditions under which DMHF may grant a hearing and specifies the "no issue of fact" criteria that DMHF utilizes. It further clarifies the factors upon which the presiding officer bases his final decision and includes a section that lists the requirements for amending an administrative order. In addition, the reenacted rule details the rules of discovery for formal adjudicative proceedings and includes a section that clarifies the policy for interpreter services. Unlike the reenacted rule, the repealed rule contains nurse aide training and competency evaluation requirements, hearing requirements for the Utah Medical Assistance Program that no longer exists, and specifies that DMHF may delay a hearing if an individual does not correctly submit the necessary paperwork for a formal proceeding. All other requirements of the repealed rule are placed in the reenacted rule.

State statutory or constitutional authorization for this rule:

• Section 26-1-5
• Section 26-18-3

Anticipated cost or savings to:

the state budget:

The Department does not anticipate any impact to the state budget because this rule only updates and clarifies administrative hearing procedures for DMHF.

local governments:

There is no impact to local governments because they do not fund or provide Medicaid services to Medicaid clients.

small businesses:

The Department does not anticipate any impact to small businesses because this rule only updates and clarifies administrative hearing procedures for DMHF.

persons other than small businesses, businesses, or local governmental entities:

The Department does not anticipate any impact to Medicaid clients and providers because this rule only updates and clarifies administrative hearing procedures for DMHF.

Compliance costs for affected persons:

There are no compliance costs to a single Medicaid client or provider because this rule only updates and clarifies administrative hearing procedures for DMHF.

Comments by the department head on the fiscal impact the rule may have on businesses:

Clarification and further explanation of the administrative process should assist businesses that work with DMHF to understand their due process rights and may eliminate unnecessary costs.

David N. Sundwall, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Health Care Financing
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Craig Devashrayee at the above address, by phone at 801-538-6641, by FAX at 801-538-6099, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/01/2010

This rule may become effective on:

12/08/2010

Authorized by:

David Sundwall, Executive Director

R410. Health, Health Care Financing.

[R410-14. Administrative Hearing Procedures.

R410-14-1. Introduction and Authority.

(1) Division policy is to resolve disputes at the lowest level. This rule is not meant to foreclose the Division's preference for informal resolutions through open discussion and negotiation between the Division and aggrieved persons.

(2) This rule is authorized by Section 1902(a)(3) SSA, 42 CFR 431, Subpart E, and Sections 26-1-24, 26-18-2.3, and 63G-4-102.

 

R410-14-2. Definitions.

(1) The definitions in R414-1 and Section 63G-4-103 apply to this rule.

(2) In addition, as used in this rule:

(a) "Action" means a denial, termination, suspension, or reduction of Medicaid or UMAP covered services regarding an applicant or a recipient; or a reduction or denial of reimbursement for services.

(b) "Aggrieved Person" means any applicant, recipient, or provider adversely affected by any action or inaction of DHCF.

(c) "Applicability" means a determination of whether a statute, rule, or order should be applied, and if so, how the law as stated should be applied to specific facts and circumstances.

(d) "Date of Action" means the date on which a denial of eligibility, or termination, suspension, or reduction of Medicaid or UMAP covered services becomes effective, regarding an applicant or recipient; or regarding a provider, the date on which:

(i) a reduction or denial of reimbursement or a sanction becomes effective;

(ii) notice is given of licensing deficiencies; or

(iii) notice is given that DHCF will not accept a Plan of Correction of survey deficiencies required by licensing.

(e) "Order" means an agency action of particular applicability, issued by the presiding officer, that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons, not a class of persons.

 

R410-14-3. Administrative Hearing Procedures.

(1) All Title XIX (Medicaid) or Utah Medical Assistance Program (UMAP) applicants, recipients, or providers aggrieved by any action or inaction of the Department of Health (DOH), Division of Health Care Financing (DHCF), may file a written request for agency action pursuant to 63G-4-201 and in accordance with this rule. All proceedings before DHCF, except as otherwise set forth, shall be conducted as a formal hearing. DHCF conducts hearings on many subjects including the following:

(a) PASARR Hearings. As provided by Section 4211 of the Omnibus Budget Reconciliation Act of 1987 (OBRA), which amended Title XIX of the Social Security Act by adding Section 1919 to the "Act," all residents and potential residents of a nursing facility (whether Medicaid eligible or otherwise) who disagree with the pre-admission screening and appropriateness of placement decision made by DHCF, shall be given an opportunity for a hearing upon written request. All PASARR hearings as set forth above shall be conducted as a formal hearing in accordance with R410-14-11.

(b) Nurse Aide Registry Hearings. As provided by Section 4211 of the Omnibus Budget Reconciliation Act of 1987 (OBRA), which amended Title XIX of the Social Security Act by adding Section 1919 to the "Act," all nurse aides employed by a certified nursing facility who have successfully completed and passed the nurse aide training and competency evaluation program, or both, shall be identified on a nurse aide registry. In addition, such nurse aides shall be subject to investigation upon allegations of resident abuse, neglect, or misappropriation of resident property. DHCF or its designated agents is responsible to investigate complaints. Before a substantiated claim can be entered into the registry, the nurse aide, upon written request, is entitled to a hearing to be conducted by DHCF or its designated agents. All nurse aide registry hearings as set forth above shall be conducted as formal hearings in accordance with R410-14-11.

(c) Skilled Nursing Facility (SNF), Intermediate Care Facility (ICF) or Intermediate Care Facility/Mentally Retarded (ICF/MR) Hearings. As provided by 42 CFR 431, Subpart D, DHCF must, for any SNF, ICF and ICF/MR, provide for appeals procedures that, as a minimum, satisfy the requirements of 42 CFR 431.153 through 431.155. Hearings shall be conducted as a formal hearing in accordance with R410-14-11.

(d) Informal Hearings. "Residents' Rights Hearings." As provided by Section 1919 of Title XIX of the Social Security Act, all residents of a nursing facility (whether Medicaid eligible or otherwise) have certain specific "residents' rights" and may be aggrieved by action or inaction of a nursing facility in the meeting of those rights. Responsibility for enforcing nursing home compliance with the residents' rights requirement rests with DHCF. All "resident rights" hearings shall be conducted as an informal hearing.

(2) A hearing is not required and will not be granted to an applicant, recipient, or provider if the sole issue is a federal or state law or policy requiring an automatic change in covered services adversely affecting some or all applicants, recipients, or providers (42 CFR 431.220).

(3) EXCEPT AS SPECIFIED HEREIN, R410-14 ONLY APPLIES TO TITLE XIX MEDICAID OR UMAP RECIPIENTS OR PROVIDERS. This rule does not apply to initial applications for medical assistance. A Medicaid or UMAP applicant who has been denied eligibility for medical assistance through the local Office of the Department of Workforce Services (DWS) must contact the Department of Workforce Services for a hearing.

(4) If eligibility for a non-medical assistance program in addition to Medicaid or UMAP is at issue, the Medicaid or UMAP eligibility determination hearing shall be conducted by the Department of Workforce Services (DWS) through the Office of Administrative Hearings. Requests for such hearings shall be sent to the address in R410-14-3(3). All hearings shall be conducted according to DWS hearing rules. DWS shall propose a recommended decision concerning the medical assistance issue only and shall submit it to the Executive Director of DOH or his designated representative for review and final agency order.

(5) DWS shall forward all requests for hearings to consider eligibility for medical assistance only to DHCF. A formal hearing in accordance with the hearing procedures herein shall be conducted by DHCF.

 

R410-14-4. Availability of Hearing.

If there is no disputed issue of fact, the presiding officer may make a determination without an evidentiary hearing.

 

R410-14-5. Notice.

(1) DHCF shall give advance written notice to each individual who is affected by an adverse action taken by DHCF, in accordance with R410-14-8.

(2) A notice under this section must contain:

(a) a statement of the action DHCF intends to take;

(b) the date the intended action takes effect;

(c) the reasons for the intended action;

(d) the specific regulations that support, or the change in federal or state law or policy, that requires the action;

(e) the aggrieved person's right to request a formal hearing before DHCF, when applicable, and the method by which such hearing may be obtained from DHCF;

(f) a statement that the aggrieved person may represent himself or use legal counsel, relative, friend or other spokesman at the formal hearing; and,

(g) if applicable, an explanation of the circumstances under which Medicaid or UMAP coverage or reimbursement will be continued if a formal hearing is timely requested.

(3) DHCF shall mail advance notice at least ten calendar days before the date of the intended action EXCEPT as noted below:

(a) DHCF may mail a notice not later than the date of action if:

(i) DHCF has factual information confirming the death of a recipient or provider;

(ii) DHCF receives a clear, written statement signed by a recipient or provider that:

(A) he no longer wishes services or reimbursement, or

(B) he gives information that requires termination or reduction of services or reimbursement and understands that this must be the result of supplying that information;

(iii) the recipient has been admitted to an institution where he is ineligible under the State Plan for further services;

(iv) the recipient's or provider's whereabouts are unknown and the Post Office returns DHCF mail directed to him indicating no forwarding address;

(v) DHCF establishes the fact that the recipient has been accepted for Medicaid/UMAP services by another local jurisdiction, State, Territory or Commonwealth;

(vi) a change in the level of medical care is prescribed by the recipient's physician; or

(vii) a termination, suspension, or reduction of Medicaid or UMAP covered services or reimbursement is necessitated by an imminent peril to the public health, safety, or welfare.

(b) DHCF may shorten the period of advance mailed notice to five days before the date of action if:

(i) DHCF has facts indicating that action should be taken because of probable fraud by the applicant or recipient or provider; and

(ii) the facts have been verified, by affidavit, if possible.

 

R410-14-6. Request for Formal Hearing.

(1) DHCF shall conduct formal hearings on all "medical assistance only" issues.

(2) An aggrieved person may request a formal hearing within the following deadlines, depending upon the type of request:

(a) An aggrieved Medicaid provider may request a formal hearing within 30 calendar days from the date written notice is issued or mailed, whichever is later.

(b) An aggrieved Medicaid or UMAP applicant or recipient may request a formal hearing regarding eligibility for "medical assistance only" within 90 calendar days from the date written notice is issued or mailed, whichever is later.

(c) An aggrieved UMAP or Medicaid applicant or recipient may request a formal hearing regarding scope of service within 30 calendar days from the date written notice is issued or mailed, whichever is later, by DHCF of an action or intended action.

(3) Failure to submit a timely request for a formal hearing constitutes a waiver of a person's due process rights. A request for a hearing shall be in writing, shall be dated, and shall explain the reasons for which the hearing is requested. An aggrieved person may use the hearing request form which is attached to all negative eligibility action notices, which is entitled "Requests for Hearing/Agency Action."

(4) The address for submitting a "Request for Hearing/Agency Action" for: (a) Medicaid or UMAP providers; and (b) Medicaid or UMAP eligibility hearings or scope of service hearings is as follows:

Division of Health Care Financing

Office of Hearings and Appeals

Box 142901

Salt Lake City, Utah 84114-2901

(5) DHCF shall schedule a hearing or begin negotiations in the matter in writing within 30 days of the date of issuance of the request for formal hearing or agency action.

(6) DOH or DHCF may deny or dismiss a request for a formal hearing if:

(a) The aggrieved person withdraws the request in writing;

(b) The aggrieved person fails to appear at or participate in a scheduled hearing or prehearing without good cause;

(c) The aggrieved person prolongs the hearing process without good cause;

(d) The aggrieved person's whereabouts is unknown as indicated by return of agency mail without forwarding address;

(e) The provider fails to allow DHCF access to its records pursuant to R410-14-18(2)(b);

(f) A party does not respond, when requested, to any correspondence made in connection with the matter by the presiding officer, such as failure to provide relevant medical records.

 

R410-14-7. Reinstatement/Continuation of Services.

(1) DHCF may reinstate services for recipients or suspend any adverse action for providers if the aggrieved person requests a formal hearing not more than ten calendar days after the date of action.

(2) DHCF must reinstate or continue services for recipients or suspend adverse actions for providers until a decision is rendered after a formal hearing if:

(a) adverse action is taken without giving the ten day advance mailed notice to a recipient or provider in all circumstances where such advance notice is required;

(b) in those circumstances where advance notice is not required, the aggrieved person requests a formal hearing within ten calendar days following the date the adverse action notice is mailed; or

(c) DHCF determines that the action resulted from other than the application of federal or state law or policy.

 

R410-14-8. Notice of Formal Hearing.

DHCF shall notify the aggrieved person or his attorney, in writing, of the date, time, and place of the hearing. Notice shall be mailed not less than ten calendar days before the scheduled date of the formal hearing.

 

R410-14-9. Form of Papers.

(1) All papers to be filed in a formal proceeding shall:

(a) Be typewritten or legibly hand-written;

(b) Bear a caption clearly showing the title of the hearing;

(c) Bear the docket number, if any;

(d) Be dated and signed by the party or his authorized representative;

(e) Contain the address and telephone number of the party or his representative, if any; and

(f) Consist of an original and two copies filed with DHCF.

(2) Hearings may be delayed until the requirements of this section are met.

 

R410-14-10. Service.

(1) The party filing papers and documents shall serve them upon all parties to the formal proceeding. Proof of service shall be filed with DHCF.

(2) Service shall be personally delivered or by mail, properly addressed with postage prepaid, one copy to each entitled party. If a party is represented, service upon the representative is sufficient service upon the party.

(3) Proof of service shall be by certificate, affidavit, or acknowledgment.

(4) Wherever notice by DHCF is required, notification shall be effective upon the date of first class mailing to the party's residence or business address.

(5) In addition to the methods set forth in this rule, a party may be served as permitted by the Utah Rules of Civil Procedure.

 

R410-14-11. Intervention.

As permitted by Section 63G-4-207, a person may intervene if:

(1) The person petitions for leave to intervene at least seven days before the scheduled hearing, unless otherwise permitted by the presiding officer.

(2) The petition must contain a clear and concise statement of the direct and substantial interest of the person seeking leave to intervene in the hearing.

(3) Persons seeking affirmative relief shall state the basis of such relief.

(4) Other parties to the hearing have an opportunity to support or oppose intervention in a manner permitted by the presiding officer.

(5) The presiding officer may grant leave to intervene subject to such reasonable conditions as he may prescribe. An intervenor may be dismissed from the hearing if it appears that he has no direct or substantial interest in the hearing.

 

R410-14-12. Conduct of Hearing.

(1) Hearings shall be conducted according to 63G-4-206, and as described in R414-14.

(2) Formal hearings shall be conducted by an impartial presiding officer who is appointed by DOH. The presiding officer shall be empowered with such authority as granted by Sections 63G-4-102 through 503, except as may be limited by R410-14. No presiding officer shall have been directly involved in the initial determination of the action in question.

(3) The presiding officer may elect to hold a pre-hearing meeting for any of the following reasons:

(a) to formulate or simplify the issues;

(b) to obtain admissions of fact and documents, that will avoid unnecessary proof;

(c) to arrange for the exchange of proposed exhibits or prepared expert testimony;

(d) to outline procedures to be followed at the formal hearing; or

(e) to agree to other matters that may expedite the orderly conduct of the hearing, or a settlement.

(f) Agreements reached during the conference shall be recorded, or the parties may enter into a written stipulation, or agree to a statement made on the record by the presiding officer.

(4) All formal hearings may be conducted only after adequate written notice of the hearing has been served on all parties setting forth the time, date and place of the hearing.

(5) Testimony shall be taken under oath or affirmation administered by the presiding officer.

(6) Each party has the right to:

(a) call and examine parties and witnesses;

(b) introduce exhibits;

(c) question opposing witnesses and parties on any matter relevant to the issue even though the matter was not covered in the direct examination;

(d) impeach any witness regardless of which party first called him to testify; and

(e) rebut the evidence against him.

(7) The rules of evidence as applied in civil actions in the courts of this state shall be generally followed in the hearings. Any relevant evidence may be admitted. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient by itself to support a finding unless admissible over objection in civil actions. The presiding officer shall give effect to the rules of privilege recognized by law. Irrelevant, immaterial, and unduly repetitious evidence shall be excluded.

(8) The presiding officer may question any party or witness and may admit any evidence he believes is relevant or material.

(9) The presiding officer shall control the taking of evidence in a manner best suited to ascertain the facts and safeguard the rights of the parties. The presiding officer may determine the order in which evidence will be received.

(10) The presiding officer shall maintain order, and may recess the hearing for the time necessary to regain order, if a person engages in disrespectful, disorderly, or contumacious conduct. The presiding officer may take measures to remove a person, including participants, from the hearing, if necessary, to maintain order. If a participant shows persistent disregard on matters of order and procedure, the presiding officer may enter a sanction on the person, including: restricting the person's participation, striking pleadings or evidence, or issuing an order of default.

(11) If a party desires to employ a court reporter to make a record of the hearing, the original transcript of the hearing shall be filed with the presiding officer at no cost to the agency.

(12) The moving party has the burden of proving by a preponderance of the evidence whatever facts it must establish to sustain its position.

 

R410-14-13. Ex Parte Communications.

(1) Except as otherwise provided below, ex parte communications are prohibited.

(2) The presiding officer shall decline to listen to or accept any communication offered in violation of this rule and shall explain to the offeror that any communication received off the record and in violation of this rule must be made a part of the record and furnished to all parties.

(3) This rule shall not apply to communications concerning status of the hearing and uncontested procedural matters.

 

R410-14-14. Continuances or Further Hearings.

(1) The presiding officer may continue a formal hearing to another time or place, or order a further hearing on his own motion or upon the showing of good cause, at the request of any party.

(2) If the presiding officer determines that additional evidence is necessary for the proper determination of the case, he may, at his discretion, continue the hearing to a later date and order the party to produce additional evidence, or close the hearing and hold the record open in order to permit the introduction of additional documentary evidence. Any evidence submitted shall be made available to both parties and each party shall have the opportunity for rebuttal.

(3) Written notice of the time and place of a continued or further hearing shall be given in accordance with R410-14-7, except when a continuance is ordered during a hearing and adequate oral notice is given.

 

R410-14-15. Record.

A complete record of all formal hearings is made by the presiding officer. The recording shall be transcribed if requested by a party to the hearing. The requesting party shall pay the costs of transcription and copying. DHCF shall maintain the complete record of the hearing in a secure area. The record is the sole property of DHCF. DHCF or its designated agent shall retain recordings of formal hearings for a period of one year. Written records and documents shall be retained for a period not to exceed three years.

 

R410-14-16. Proposed Decision and Final Agency Review.

(1) At the conclusion of the formal hearing, the presiding officer shall take the matter under advisement and shall submit to the Executive Director of DOH or his designated representative a recommended decision, based on the evidence and testimony introduced in the proceeding.

(2) The proposed decision shall be in writing and shall contain findings of fact and conclusions of law.

(3) The Executive Director of DOH or his designated representative may:

(a) adopt the proposed decision, or any portion of the decision;

(b) reject the proposed decision, or any portion of the decision, and make his own independent determination based upon the record; or

(c) remand the matter to the presiding officer to take additional evidence, and the presiding officer thereafter shall submit to the Executive Director of DOH or his designated representative a new recommended decision; or

(d) send the proposed decision to the parties for comments prior to taking any of the above actions.

(4) The decision of the Executive Director or his designated representative constitutes final administrative action, and is subject to judicial review in accordance with the procedures set forth in R410-14-17.

(5) The aggrieved person or his representative shall be notified of the final administrative action and the aggrieved person's right to judicial review of the action.

 

R410-14-17. Agency Review.

An aggrieved person may move for reconsideration of DHCF's final administrative action, in accordance with Sections 63G-4-301 and 302. A person may seek review of a DWS final agency order concerning eligibility for medical assistance by filing a written request for review with DHCF in accordance with Section 63G-4-301.

 

R410-14-18. Judicial Review.

Judicial review shall be obtained according to Sections 63G-4-102 and 63G-4-401 through 405 and Section 78-2a-3.

 

R410-14-19. Discovery.

(1) The Utah Rules of Civil Procedure are inapplicable to these proceedings and no formal discovery except as set forth in this rule is permitted.

(2) Unless otherwise limited by order of the presiding officer, the scope of discovery in formal adjudicative proceedings is as follows:

(a) DHCF shall be permitted to review all records pertinent to the hearing that are in the custody or control of the applicant or recipient and the applicant or recipient's health care providers. DHCF shall give at least three days written notice to the custodian of such document(s).

(b) A provider shall allow DHCF to inspect its records that are pertinent to the hearing. Inspection shall be made at the provider's business office during regular working hours and after at least three days written notice.

(3) Upon written request at least three days prior to the hearing, the aggrieved person or his representative shall be permitted to examine all DHCF's documents and records for the formal hearing. The aggrieved party may request the Medicaid Management Information System (MMIS) claim file upon 15 calendar days request.

(4) The presiding officer may order the taking of interrogatories and depositions, set appropriate time-frames, assess sanctions for non-compliance, and assess the expense to the requesting party if the presiding officer determines such to be proper.

(5) The presiding officer may permit the filing of Requests for Admission, set appropriate time-frames for responses, and assess sanctions for non-compliance.

(6) The presiding officer may order at DHCF expense a medical assessment in order to obtain information necessary for a fair decision. This information is subject to confidentiality requirements and shall be made a part of the formal hearing record.

 

R410-14-20. Witnesses and Subpoenas.

(1) A party shall arrange for the presence of his witnesses at the hearing.

(2) A subpoena to compel the attendance of a witness or the production of evidence may be issued by the presiding officer, upon written request by a party and a sufficient showing of need.

(3) A subpoena may also be issued by the presiding officer on his own motion.

(4) An application for subpoena for the production by a witness of books, papers, correspondence, memoranda, or other records shall be made by affidavit to the presiding officer. The application must include:

(a) the name and address of the person or entity upon whom the subpoena is to be served;

(b) a description of the documents, papers, books, accounts, letters, photographs, objects, or tangible things not privileged, that the applicant seeks;

(c) a showing that the material requested is relevant to the issue involved in the hearing; and

(d) a statement by the applicant that to the best of his knowledge, the witness possesses or controls the requested material.

(5) The applicant shall arrange to serve all subpoenas that the presiding officer issues to him. A copy of the affidavit presented to the presiding officer shall be served with the subpoena.

(6) Except for employees of DOH, witnesses subpoenaed for any hearing are entitled to appropriate fees and mileage. The witness shall file a written demand for the fees with the presiding officer not later than ten days after the date the witness appeared at the hearing.

(7) The presiding officer may issue an order of default against any party who fails to obey an order entered by the presiding officer.

 

R410-14-21. Declaratory Orders.

(1) Declaratory orders shall be issued according to R380-1, and as described in R410-14-20.

(2) Copies of approved forms to petition for declaratory orders are available from DHCF upon request.

(3) If DHCF has not issued a declaratory order within 60 days after receipt of the request, the petition is denied.

(4) DHCF shall retain the request for declaratory ruling in its records.

(5) DHCF shall not issue a declaratory order if an adjudicative proceeding involving the same parties and issue is pending before the Agency or the courts.]

R410-14. Administrative Hearing Procedures.

R410-14-1. Introduction and Authority.

(1) This rule outlines administrative hearing procedures for the Division of Medicaid and Health Financing.

(2) This rule is authorized by Section 26-1-24, Section 63G-4-102, 42 U.S.C. 1396(a)(3), and 42 CFR 431, Subpart E.

 

R410-14-2. Definitions.

(1) The definitions in Rule R414-1 and Section 63G-4-103 apply to this rule.

(2) The following definitions also apply:

(a) "Action" means a denial, termination, suspension, or reduction of medical assistance for a recipient, or a reduction or denial of reimbursement for services.

(b) "Aggrieved Person" means any recipient or provider who is adversely affected by any action or inaction of the Division of Medicaid and Health Financing (DMHF), the Department of Human Services (DHS), the Department of Workforce Services (DWS), or any managed health care plan.

(c) "Ex Parte" communications mean direct or indirect communication in connection with an issue of fact or law between the presiding officer and one party only.

(d) "Managed Care Organization" means a health maintenance organization or prepaid mental health plan that contracts with DMHF to provide medical or mental health services to medical assistance recipients.

(e) A "medical record" is a record that contains medical data of a client.

(f) "Order" means an agency action that the presiding officer issues to determine the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons, but not a class of persons.

 

R410-14-3. Administrative Hearing Procedures.

(1) An aggrieved person may file a written request for agency action pursuant to Section 63G-4-201, and in accordance with this rule. If a medical issue is in dispute, each request must include supporting medical documentation. DMHF will schedule a hearing only when it receives sufficient medical records and may dismiss a request for agency action if it does not receive supporting medical documentation in a timely manner.

(2) DMHF shall conduct the following as formal adjudicative proceedings in accordance with Section R410-14-12:

(a) Preadmission Screening Resident Review (PASRR) Hearings. Pursuant to 42 U.S.C. 1396r, any resident and potential resident of a nursing facility whether Medicaid eligible or not, who disagrees with the preadmission screening and appropriateness of a placement decision that DMHF or its designated agent makes, has the right to a hearing upon request.

(b) Nurse Aide Registry Hearings. Pursuant to 42 U.S.C. 1395i-3, each nurse aide is subject to investigation of allegations of resident abuse, neglect or misappropriation of resident property. DMHF or its designated agent shall investigate each complaint and the nurse aide is entitled to a hearing that DMHF or its designated agent conducts before a substantiated claim can be entered into the registry.

(c) Skilled Nursing Facility (SNF), Intermediate Care Facility (ICF) or Intermediate Care Facility for the Mentally Retarded (ICF/MR) Hearings. 42 CFR 431, Subpart D, requires DMHF to provide SNF, ICF and ICF/MR appeal procedures that satisfy the requirements of 42 CFR 431.153 and 431.154.

(d) Managed Care Plan Hearings. Pursuant to 42 U.S.C. 1396u-2, federal law requires Medicaid and Children's Health Insurance Program managed care organizations to have an internal appeals process for Medicaid enrollees or providers acting on the enrollee's behalf to challenge the denial of payment for medical assistance. The written managed care enrollment information must explain this procedure. DMHF requires exhaustion of the managed care appeals process before an enrollee or provider may request a hearing. An enrollee or provider who submits a hearing request on behalf of another enrollee must include a copy of the final written notice of the appeal decision. An enrollee or provider who acts on the enrollee's behalf must also request a hearing within 30 days from the date of the final written notice of the appeal decision.

(i) A managed care provider has no right to a hearing with DMHF, except if the provider is acting solely on behalf of the client. Nevertheless, if there is an issue that could affect the status of DMHF as the single state agency, DMHF may hold a hearing at its own discretion.

(e) Home and Community-Based Waiver Hearings. 42 CFR 431, Subpart E, requires DMHF to provide appeal procedures that satisfy the requirements 42 CFR 431.200 through 431.250.

(i) For home and community-based waivers in which the Division of Services for People with Disabilities (DSPD) is the designated operating agency and the appeal is based on whether the person meets the eligibility criteria for state matching funds through DHS in accordance with Title 62A, Chapter 5a, the eligibility determination of the operating agency is final. If DSPD determines that an individual does not meet the eligibility criteria for state matching funds through DHS in accordance with Title 62A, Chapter 5a, the operating agency shall inform the individual in writing and provide the individual an opportunity to appeal the decision through the DHS hearing process in accordance with Section R539-3-8. The DSPD decision is dispositive for purposes of this subsection. DMHF shall sustain the determination and there is no right to further agency review.

(3) DMHF shall conduct the following as informal adjudicative proceedings:

(a) Resident Right Hearings. Pursuant to 42 U.S.C. 1396n, the state may restrict access to providers that it designates for services for a reasonable amount of time. The state may also restrict Medicaid recipients that utilize services at a frequency or amount that are not medically necessary, in accordance with state utilization guidelines. DMHF shall give the recipient notice and opportunity for an informal hearing before imposing restrictions.

(4) Eligibility Hearings. If eligibility for medical assistance is at issue, DWS shall conduct the hearing.

 

R410-14-4. Availability of Hearing.

(1) The presiding officer may not grant a hearing if the issue is a state or federal law, a policy requiring an automatic change in eligibility for medical assistance, or covered services that adversely affect the aggrieved person.

(2) DMHF will only conduct a hearing in connection with the agency action if the aggrieved person requests a hearing and there is a disputed issue of fact. If there is no disputed issue of fact, the presiding officer shall deny a request for an evidentiary hearing and issue a recommended decision without a hearing.

(3) There is no issue of fact if:

(a) the agency presents facts that establish the agency's right to take the action or obtain the relief sought in the proceeding; and

(b) the aggrieved person submits facts that do not conflict with the facts that the agency relies upon in taking action or seeking relief.

(4) If the aggrieved person objects to the hearing denial, the person may raise that objection as grounds for relief in a request for reconsideration.

(5) DMHF may not grant a hearing to a managed care provider to dispute the terms of a contract or the payment of a claim.

 

R410-14-5. Notice.

(1) DMHF, DHS, DWS, and a managed health care plan shall provide written notice to each individual or provider affected by an adverse action in accordance with 42 CFR 431.211, 213 and 214. Adverse actions to a recipient affect:

(a) eligibility for assistance;

(b) scope of service; or

(c) payment of a claim.

(2) Adverse actions to a provider include:

(a) a reduction in payment, denial of reimbursement and claim of payment; and

(b) a sanction that becomes effective.

(3) A notice must contain:

(a) a statement of the action DMHF, DHS, DWS, or a managed health care plan intends to take;

(b) the date the intended action becomes effective;

(c) the reasons for the intended action; and

(d) the specific regulations that support the action, or the change in federal law, state law or DMHF policy, which requires the action;

(e) the right and procedure to request a formal hearing before DMHF or an informal hearing before DHS or DWS;

(f) the right to represent oneself, the right to legal counsel, or the right to use another representative at the formal hearing; and

(g) if applicable, an explanation of the circumstances under which reimbursement for medical services will continue pending the outcome of the proceeding, if DMHF receives a hearing request within ten calendar days from the date of the notice of agency action.

(4) DMHF shall mail the notice at least ten calendar days before the date of the intended action except:

(a) DMHF may mail a notice not later than the date of action in accordance with 42 CFR 431.213.

(5) DMHF may shorten the period of advance notice to five days before the date of action if:

(a) DMHF has facts that indicate it must take action due to probable fraud by the recipient or provider; and

(b) the facts have been verified by affidavit.

 

R410-14-6. Request for Formal Hearing.

(1) DMHF shall conduct formal hearings for all medical assistance issues except if a recipient or provider requests an informal hearing that meets the criteria set forth in Section 63G-4-202.

(2) A recipient may request a formal hearing within the following deadlines:

(a) A medical assistance provider or recipient may request a formal hearing within 30 calendar days from the date that DMHF sends written notice of its intended action.

(b) A medical assistance recipient may request an informal hearing with DWS regarding eligibility for medical assistance within 90 calendar days from the date that DMHF sends written notice of its intended action.

(c) A medical assistance recipient must request a formal hearing regarding scope of service within 30 calendar days from the date that DMHF issues written notice of its intended action.

(3) Failure to submit a timely request for a formal hearing constitutes a waiver of an individual's due process rights. The request must explain why the recipient is seeking agency relief, and the recipient must submit the request on the "Request for Hearing/Agency Action" form. The recipient must then mail the form to the address that the agency specifies in the notice of agency action.

(4) DMHF considers a hearing request that a recipient sends via mail to be filed on the date of the postmark. If the postmark date is illegible, erroneous, or omitted, DMHF considers the request to be filed on the date that DMHF receives it, unless the sender can demonstrate through competent evidence that he mailed it before the date of receipt.

(5) DMHF shall schedule a pre-hearing, or begin negotiations in writing within 30 calendar days from the date it receives the request for a formal hearing or agency action.

(6) DMHF may deny or dismiss a request for a hearing if the aggrieved person:

(a) withdraws the request in writing;

(b) verbally withdraws the hearing request at a prehearing conference;

(c) fails to appear or participate in a scheduled proceeding without good cause;

(d) prolongs the hearing process without good cause;

(e) cannot be located or agency mail is returned without a forwarding address; or

(f) does not respond to any correspondence from the presiding officer or fails to provide medical records that the agency requests.

(7) An aggrieved person must inform DMHF of his current address and telephone number.

 

R410-14-7. Reinstatement and Continuation of Services.

(1) DMHF may reinstate services for a recipient or suspend any adverse action for a provider if the aggrieved person requests a formal hearing not more than ten calendar days after the date of action.

(2) DMHF shall reinstate or continue services for a recipient or suspend adverse actions for a provider until it renders a decision after a formal hearing if:

(a) DMHF takes adverse action without giving ten-day notice to a recipient or a provider when advance notice is required;

(b) advance notice is not required and the aggrieved person requests a formal hearing within ten calendar days after the date that DMHF mails the adverse action notice; or

(c) DMHF determines that the action resulted from other than the application of federal law, state law or DMHF policy.

 

R410-14-8. Notice of Formal Hearing.

DMHF shall notify the aggrieved person or the person's representative in writing of the date, time and place of the formal hearing, and shall mail the notice at least ten calendar days before the date of the hearing unless all parties agree to an alternative time frame.

 

R410-14-9. Form of Papers.

(1) Any document that an individual or party files with DMHF in a formal proceeding must:

(a) be typed or legibly written;

(b) bear a caption that clearly shows the title of the hearing;

(c) bear the docket number, if any;

(d) be dated and signed by the party or the party's authorized representative;

(e) contain the address and telephone number of the party or the party's authorized representative; and

(f) consist of an original and two copies.

 

R410-14-10. Service.

(1) The individual or party that files a document with DMHF shall serve the document upon all other parties and file a proof of service with DMHF.

(2) Each party must receive one copy by personal delivery or mail to the proper address with postage prepaid. If an individual represents a party, service upon the individual is sufficient.

(3) The Utah Rules of Civil Procedure require a certificate, affidavit or acknowledgment to serve as a proof of service.

(4) If DMHF must provide notice of a formal hearing, the notice becomes effective on the date of first class mailing to the party's address of record.

(5) The Utah Rules of Civil Procedure permit other methods of service in addition to the methods set forth in this section.

 

R410-14-11. Intervention.

(1) Section 63G-4-207 permits a person to intervene in a formal adjudicative proceeding if:

(a) the person petitions to intervene at least seven calendar days before the scheduled hearing, or as the presiding officer permits;

(b) the petition contains a clear and concise statement of the direct and substantial interest of the person seeking to intervene;

(c) the person seeking affirmative relief states the basis for relief;

(d) the presiding officer has discretion to permit other parties an opportunity to support or oppose intervention; and

(e) the presiding officer has discretion to grant leave to intervene.

(2) The presiding officer may dismiss an intervenor if the intervenor has no direct or substantial interest in the hearing.

 

R410-14-12. Conduct of Hearing.

(1) DMHF shall conduct hearings in accordance with Section 63G-4-206.

(2) DMHF shall appoint an impartial presiding officer to conduct formal hearings. Previous involvement in the initial determination of the action precludes an officer from appointment.

(3) The presiding officer may elect to hold a prehearing meeting to:

(a) formulate or simplify the issues;

(b) obtain admissions of fact and documents that will avoid unnecessary proof;

(c) arrange for the exchange of proposed exhibits or prepared expert testimony;

(d) outline procedures for the formal hearing; or

(e) to agree to other matters that may expedite the orderly conduct of the hearing or settlement.

(4) DMHF shall record agreements that the parties reach during the prehearing or the parties may enter into a written stipulation.

(5) DMHF may conduct all formal hearings only after adequate written notice of the hearing has been served on all parties setting forth the date, time and place of the hearing.

(6) The presiding officer shall take testimony under oath or affirmation.

(7) Each party has the right to:

(a) present evidence, argue, respond, conduct cross-examination, and submit rebuttal evidence;

(b) introduce exhibits;

(c) impeach any witness regardless of which party first called the witness to testify; and

(d) rebut the evidence against the party.

(8) DMHF shall follow the rules of evidence as applied in Utah civil actions. Each party may admit any relevant evidence and use hearsay evidence to supplement or explain other evidence. Hearsay, however, is not sufficient by itself to support a finding unless admissible over objection in civil actions. The presiding officer shall give effect to the rules of privilege recognized by law and may exclude irrelevant, immaterial and unduly repetitious evidence.

(9) The presiding officer may question any party or witness.

(10) The presiding officer shall control the evidence to obtain full disclosure of the relevant facts and to safeguard the rights of the parties. The presiding officer may determine the order in which he receives the evidence.

(11) The presiding officer shall maintain order and may recess the hearing to regain order if a person engages in disrespectful, disorderly or disruptive conduct. The presiding officer may remove any person, including a participant from the hearing, to maintain order. If a person shows persistent disregard for order and procedure, the presiding officer may:

(a) restrict the person's participation in the hearing;

(b) strike pleadings or evidence; or

(c) issue an order of default.

(12) If a party desires to employ a court reporter to make a record of the hearing, it must file an original transcript of the hearing with the presiding officer at no cost to the agency.

(13) DMHF has the burden of proof in any proceeding that it initiates through a notice of agency action. A party that seeks action from DMHF, however, has the burden of proof in any proceeding that it initiates through a request for agency action.

(14) When a party possesses but fails to introduce certain evidence, the presiding officer may infer that the evidence does not support the party's position.

 

R410-14-13. Ex Parte Communications.

(1) Ex parte communications are prohibited.

(2) The presiding officer may not listen to or accept any ex parte communication. If a party attempts ex parte communication, the presiding officer shall inform the offeror that any communication that the presiding officer receives off the record, will become part of the record and furnished to all parties.

(3) Ex parte communications do not apply to communications on the status of the hearing and uncontested procedural matters.

 

R410-14-14. Continuances or Further Hearings.

(1) The presiding officer, on the officer's own motion or at the request of a party showing good cause, may:

(a) continue the hearing to another time or place; or

(b) order a further hearing.

(2) If the presiding officer determines that additional evidence is necessary for the proper determination of the case, the officer may:

(a) continue the hearing to a later date and order the party to produce additional evidence; or

(b) close the hearing and hold the record open to receive additional documentary evidence.

(3) The presiding officer shall provide to all parties any evidence that he receives and each party has the opportunity to rebut that evidence.

(4) The presiding officer shall provide written notice of the time and place of a continued or further hearing, except when the officer orders a continuance during a hearing and all parties receive oral notice.

 

R410-14-15. Record.

(1) The presiding officer shall make a complete record of all formal hearings. A hearing record is the sole property of DMHF and DMHF shall maintain the complete record in a secure area.

(2) If a party requests a copy of the recording of a formal hearing, that party may transcribe the recording.

(3) DMHF or its designated agent shall retain recordings of formal hearings for a period of one year.

(4) DMHF shall retain written records of formal hearings for a period of three years pending further litigation.

 

R410-14-16. Proposed Decision and Final Agency Review.

(1) At the conclusion of the formal hearing, the presiding officer shall take the matter under advisement and submit a recommended decision to the DMHF Director or the director's designee. The recommended decision is based on the testimony and evidence entered at the hearing, Medicaid policy and procedure, and legal precedent.

(2) The recommended decision must contain findings of fact and conclusions of law.

(3) The DMHF Director or the director's designee may:

(a) adopt the recommended decision or any portion of the decision;

(b) reject the recommended decision or any portion of the decision, and make an independent determination based upon the record; or

(c) remand the matter to the presiding officer to take additional evidence, and the presiding officer thereafter shall submit to the DMHF director or the director's designee a new recommended decision.

(4) The director or designee's decision constitutes final administrative action and is subject to judicial review.

(5) DMHF shall send a copy of the final administrative action to each party or representative and notify them of their right to judicial review.

(6) The parties shall comply with a final decision from the director reversing the agency's decision within ten calendar days.

(7) The Executive Director shall review all recommended decisions to determine approval of medical assistance for an organ transplant. The Executive Director's decision constitutes final administrative action and is subject to judicial review.

 

R410-14-17. Amending Administrative Orders.

(1) DMHF may amend an order if the presiding officer determines that the agency made a clerical mistake.

(2) DMHF shall notify the respondent and the petitioner of its intent to amend the order by serving a notice of agency action signed by the presiding officer.

(3) The DMHF Director shall review the amended order and he or his designee shall issue a final agency amended order.

(4) DMHF shall provide a copy of the final amended order to the respondent and the petitioner.

 

R410-14-18. Agency Review.

An aggrieved person may move for reconsideration of DMHF's final administrative action in accordance with Sections 63G-4-301 and 302. A person may seek review of a DWS final agency order concerning eligibility for medical assistance by filing a written request for review with DMHF in accordance with Section 63G-4-301.

 

R410-14-19. Judicial Review.

An aggrieved person may obtain judicial review in accordance with Section 63G-4-102 and 63G-4-401 through 405.

 

R410-14-20. Discovery.

(1) The Utah Rules of Civil Procedure do not apply to formal adjudicative proceedings and formal discovery is permitted only as set forth in this section. Each party shall diligently pursue discovery and full disclosure to prevent delay. A party that conducts discovery under this section shall maintain a mailing certificate.

(2) The scope of discovery in formal adjudicative proceedings, unless otherwise limited by order of the presiding officer, is as follows:

(a) DMHF may review all pertinent records in the custody of the recipient after three days of written notice.

(b) DMHF may review all pertinent records at the health care provider's place of business during regular working hours and after three days of written notice.

(c) The recipient shall submit medical records with the hearing request whenever possible. Necessary medical records include:

(i) the provision of each service and activity billed to the program;

(ii) the first and last name of the petitioner;

(iii) the reason for performing the service or activity that includes the petitioner's complaint or symptoms;

(iv) the recipient's medical history;

(v) examination findings;

(vi) diagnostic test results;

(vii) the goal or need that the plan of care identifies; and

(viii) the observer's assessment, clinical impression or diagnosis that includes the date of observation and identity of the observer.

(d) The medical records must demonstrate that the service is:

(i) medically necessary;

(ii) consistent with the diagnosis of the petitioner's condition; and

(iii) consistent with professionally recognized standards of care.

(3) DMHF shall allow the aggrieved person or the person's representative to examine all DMHF documents and records for the hearing upon written request to DMHF at least three days before the hearing.

(4) An individual may request access to protected health information in accordance with Rule 380-250, which implements the privacy rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

(5) The presiding officer may permit the filing of formal discovery or take depositions only upon a clear showing of necessity that takes into account the nature and scope of the dispute. If the presiding officer allows formal discovery, he shall set appropriate time frames for response and assess sanctions for non-compliance.

(6) The presiding officer may order a medical assessment at the expense of DMHF to obtain information. This information is subject to HIPAA confidentiality requirements and is part of the hearing record.

(7) Each party shall file a signed pretrial disclosure form at least ten calendar days before the scheduled hearing that identifies:

(a) fact witnesses;

(b) expert witnesses;

(c) exhibits and reports the parties intend to offer into evidence at the hearing;

(d) petitioner's specific benefit or relief claimed;

(e) respondent's specific defense;

(f) an estimate of the time necessary to present the party's case; and

(g) any other issues the parties intend to request the presiding officer to adjudicate.

(8) Each party shall supplement the pretrial disclosure form with information that becomes available after filing the original form. The pretrial disclosure form does not replace other discovery that is allowed under this section.

 

R410-14-21. Witnesses and Subpoenas.

(1) A party shall arrange for a witness to be present at a hearing.

(2) The presiding officer may issue a subpoena to compel the attendance of a witness or the production of evidence upon written request by a party that demonstrates a sufficient need.

(3) The presiding officer may issue a subpoena on his own motion.

(4) A party may file an affidavit that requests the presiding officer to subpoena a witness to produce books, papers, correspondence, memoranda, or other records. The affidavit must include:

(a) the name and address of the person or entity upon whom the subpoena is to be served;

(b) a description of the documents, papers, books, accounts, letters, photographs, objects, or other tangible items that the applicant seeks;

(c) material that is relevant to the issue of the hearing; and

(d) a statement by the applicant that to the best of his knowledge, the witness possesses or controls the requested material.

(5) A party shall arrange to serve any subpoena that the presiding officer issues on its behalf, and shall serve a copy of the affidavit that it presents to the presiding officer.

(6) Except for employees of DOH, DHS, DWS, or a managed care plan, a witness that the presiding officer subpoenas to attend a hearing is entitled to appropriate fees and mileage. The witness shall file a written demand for fees with the presiding officer within ten calendar days from the date that he appears at the hearing.

(7) The presiding officer may issue an order of default against any party that fails to obey an order entered by the presiding officer.

 

R410-14-22. Declaratory Orders.

(1) DMHF shall issue declaratory orders in accordance with Rule R380-1.

(2) Copies of approved forms to petition for declaratory orders are available from DMHF upon request.

(3) If DMHF does not issue a declaratory order within 60 days after receipt of the request, the petition is denied.

(4) DMHF shall retain the request for declaratory ruling in its records.

(5) DMHF may not issue a declaratory order if an adjudicative proceeding that involves the same parties and issue is pending before the agency or the courts.

 

R410-14-23. Interpreters.

(1) If a party notifies DMHF that it needs an interpreter, DMHF shall arrange for an interpreter at no cost to the party.

(2) The party may arrange for an interpreter to be present at the hearing only if the presiding officer can verify that the interpreter is at least 18 years of age, and fluent in English and the language of the person who testifies.

(3) The presiding officer shall instruct the interpreter to interpret word for word, and not to summarize, add, change, or delete any of the testimony or questions.

(4) The interpreter must swear under oath to truthfully and accurately translate all statements, questions and answers.

 

KEY: Medicaid

Date of Enactment or Last Substantive Amendment: [June 9, 2008]2010

Notice of Continuation: October 29, 2007

Authorizing, and Implemented or Interpreted Law: 26-1-24; 26-1-5; [26-18-2.3; ]63G-4-102