Health, Health Care Financing, Coverage and Reimbursement Policy

Rule R414-301

Medicaid General Provisions

Notice of Proposed Rule

(Amendment)

DAR File No.: 32927
Filed: 09/01/2009 05:05:14 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to modify fair hearings procedures for eligibility decisions.

Summary of the rule or change:

This change clarifies that the Department of Workforce Services (DWS) conducts fair hearings for eligibility decisions, with the exception that the Department of Health (DOH) conducts fair hearings for foster care eligibility or subsidized adoption Medicaid. It also defines the right of DOH to conduct superior agency reviews and defines the appeal rights of applicants and clients. This change also removes a provision that allowed applicants to receive benefits pending a fair hearing.

State statutory or constitutional authorization for this rule:

• Section 26-18-3
• Section 26-1-5
• 42 CFR 431.220 through 431.246

Anticipated cost or savings to:

the state budget:

This change does not impact the state budget because the fair hearing process was simply transferred to DWS after it assumed eligibility determination responsibilities. Funding for these types of hearings is ongoing.

local governments:

This change does not impact local governments because they do not determine Medicaid eligibility or conduct eligibility hearings.

small businesses:

This change does not impact small businesses because they do not determine Medicaid eligibility.

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

There is no impact to Medicaid clients and applicants because this amendment does not change their right to request a fair hearing for eligibility determinations. The change, therefore, has no impact on the services that providers render to Medicaid clients.

Compliance costs for affected persons:

There are no compliance costs because an individual still has a right to a fair hearing to determine eligibility and does not pay for this entitlement.

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

This rule clarifies the fair hearing process. This should allow aggrieved parties to protect their rights. No negative fiscal impact is expected.

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, Coverage and Reimbursement Policy
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:

10/15/2009

This rule may become effective on:

10/22/2009

Authorized by:

David Sundwall, Executive Director

R414. Health, Health Care Financing, Coverage and Reimbursement Policy.

R414-301. Medicaid General Provisions.

R414-301-5. Complaints and Agency Conferences.

(1) A client may request an agency conference with the eligibility staff or supervisor at the Medicaid eligibility agency at any time to resolve a problem regarding the client's case. Requests shall be granted at the [department's ] Medicaid eligibility agency's discretion. Clients may have an authorized representative or a friend attend the agency conference.

(2) Requesting an agency conference does not prevent a client from also requesting a fair hearing in the event the agency conference does not resolve the client's concerns.

(3) Having an agency conference does not extend the time period in which a client has to request a fair hearing. The client must request a fair hearing according to the provisions in Section R414-301-6, to assure the right to a hearing[within 90 days of the date on the notice with which the client disagrees to assure the right to have a fair hearing if the client is not satisfied with the outcome of the agency conference].

(4) There is no appeal to the decisions made during an agency conference; however, if the client is not satisfied with the results of the agency conference, and makes a timely request for a fair hearing as defined in Section R414-30[6]1-6, the client may proceed with the [formal ]fair hearing process.

(5) The [department]Medicaid eligibility agency provides proper notice [as defined in R414-308-5 ]if [there are]the agency makes any additional adverse changes in the client's eligibility [that are made ]as a result of the agency conference. The client then has a right to request a fair hearing based on the new adverse action[decision letter of an additional adverse action].

R414-301-6. Hearings.

[(1) The department adopts 42 CFR 431.220 through 431.246, 2001 ed., which is incorporated by reference. The department requires compliance with Title 63G, Chapter 4.

(2) If a client's hearing request concerns only medical assistance, the department shall conduct a formal hearing.

(3) If a client's hearing request concerns food stamps or financial assistance in addition to medical assistance, the Department of Workforce Services shall conduct an informal hearing.

(4) Hearings may be conducted by telephone if the client agrees to that procedure.

(5) Clients must request a hearing in writing. The written request must include a clear expression stating a desire to present their case.

(6) Clients must ask for the hearing within 90 days of the mailing date of the notice regarding a disagreement with any proposed action.

(7) The hearing officer may schedule one or more pre-hearing conferences to clarify the issues to be heard at the hearing and to arrange exchange of relevant documents.

(8) If the hearing was conducted by the department, the client may appeal the hearing decision to the Court of Appeals.

(9) If the hearing was conducted by the Department of Workforce Services, the client may appeal a hearing decision to the director of the Division of Adjudication within the Department of Workforce Services, or to the District Court.

(10) If an action requires advance notice, the recipient shall continue to receive assistance if the hearing is requested before the effective date of the action, or within ten days of the mailing date of the notice of action. If the agency action is upheld, the client is responsible for repayment of benefits paid by the department on behalf of the client pending a final hearing decision. The recipient may choose not to accept the benefits offered pending a hearing decision.

(11) If an agency action does not require advance notice, assistance shall be reinstated if a hearing is requested within ten days of the mailing date of the notice unless the sole issue is one of state or federal law or policy.

(12) An applicant who has requested a hearing shall receive medical assistance if the hearing decision has not been issued within 21 days of the request. To receive benefits pending the hearing decision, the applicant must request the hearing within 10 days of the mailing date of the notice with which the applicant disagrees. The benefits shall begin on the same date had the application been approved but no earlier than the first day of the application month. If the agency action is upheld, the client is responsible for repayment of benefits paid by the department on behalf of the client pending a final hearing decision. Retroactive benefits shall not be approved unless the applicant would be eligible even if the department prevailed at the hearing. The applicant may choose not to accept the benefits offered pending a hearing decision.

(13) Final administrative action shall be taken within 90 days from the request for a hearing unless the client asks for a postponement or additional time is needed to allow all parties time to present and respond to the issues. The period of postponement may be added to the 90 days.

(14) Hearings shall be conducted only at the request of a client; the client's spouse; a minor client's parent; or a guardian of the client, client's spouse, minor client or minor client's parent; or a representative chosen by the client, client's spouse, or minor client's parent.

(15) A hearing contesting resource assessment shall not be conducted until an institutionalized individual has applied for Medicaid.](1) The Department provides a fair hearing process for applicants and clients in accordance with the requirements of 42 CFR 431.220 through 431.246. The Department complies with Title 63G, Chapter 4.

(2) An applicant or client must request a hearing in writing or orally at the Medicaid eligibility agency. The request must be made within 90 calendar days of the date of the notice of agency action with which the applicant or client disagrees. The request need only include a statement that the applicant or client wants to present his or her case.

(3) Hearings are conducted only at the request of a client or spouse; a minor client's parent; or a guardian or representative of the client.

(4) A client who requests a fair hearing shall receive continued medical assistance benefits pending a hearing decision if the client requests a hearing before the effective date of the action or within ten calendar days of the mailing date of the notice.

(5) The client must repay the continued benefits that he receives pending the hearing decision if the hearing decision upholds the agency action.

(a) A client has the right to not accept the continued benefits that the Department offers pending a hearing decision.

(b) Benefits that the client must repay include premiums for Medicare or other health insurance, premiums and fees to managed care and contracted mental health services entities, fee-for-service benefits on behalf of the individual, and medical travel fees or reimbursement to or on behalf of the individual.

(6) The Medicaid eligibility agency must receive a request for a hearing by the close of business on a business day that is before or on the due date. If the due date is a non-business day, then the Medicaid eligibility agency must receive the request by the close of business on the first business day immediately following the due date.

(7) The Department of Workforce Services (DWS) conducts fair hearings for all medical assistance cases except those concerning eligibility for foster care or subsidized adoption Medicaid. The Department of Health (DOH) conducts hearings for foster care or subsidized adoption Medicaid cases.

(8) DWS conducts informal, evidentiary hearings in accordance with Sections R986-100-124 through R986-100-134, except for the provisions in Subsections R986-100-124(1) and R986-100-128(17). In addition, DWS complies with all the hearing requirements of Rule R986-100.

(9) DOH conducts informal hearings concerning eligibility for foster care or subsidized adoption Medicaid in accordance with Rule R414-1. Pursuant to Section 63G-4-402, within 30 days of the date DOH issues the hearing decision, the applicant or client may file a petition for judicial review with the district court.

(10) DWS shall not conduct a hearing contesting resource assessment until an institutionalized individual has applied for Medicaid.

(11) An applicant or client may designate a person or professional organization to assist in the hearing or act as his representative. An applicant or client may have a friend or family member attend the hearing for assistance.

(12) The applicant, client or representative can arrange to review case information before the scheduled hearing.

(13) At least one employee from the Medicaid eligibility agency must attend the hearing. Other employees of the Medicaid eligibility agency, other state agencies and legal representatives for the Medicaid eligibility agency may attend as needed.

(14) The DWS Office of Adjudications and Appeals shall mail a written hearing decision to the parties involved in the hearing. The decision shall include the decision, a summary of the facts and the policies or regulations supporting the decision.

(a) DWS shall include information about the right to request a superior agency review from DOH and how to make that request.

(b) The applicant or client may appeal the DWS decision to DOH pursuant to Section R410-14-17. The request for agency review must be made in writing within 30 days of the mailing date of the decision.

(15) DOH, as the single state Medicaid agency, is a party to all fair hearings concerning eligibility for medical assistance programs. DOH conducts appeals and has the right to conduct a superior agency review of medical assistance hearing decisions rendered by DWS.

(16) The DWS hearing decision becomes final 30 days after the decision is sent unless DOH conducts a superior agency review. DOH conducts a superior agency review when the applicant or client appeals the DWS decision or upon its own accord if it disagrees with the DWS decision. The DWS hearing decision may be made final in less than 30 days upon agreement of all parties.

(17) DOH notifies DWS whenever it conducts a superior agency review. The DWS hearing decision is suspended until DOH issues a final decision and order on agency review.

(18) The superior agency review is an informal proceeding and shall be conducted in accordance with Section 63G-4-301.

(19) A DOH decision and order on agency review becomes final upon issuance.

(20) The Medicaid eligibility agency takes case action within ten calendar days of the date the decision becomes final.

(21) Pursuant to Section 63G-4-402, within 30 days of the date the decision and order on agency review is issued, the applicant or client may file a petition for judicial review with the district court. Failure to appeal a DWS hearing decision to DOH negates this right to a judicial appeal.

(22) Clients are not entitled to continued benefits pending judicial review by the district court.

KEY: client rights, hearings, Medicaid

Date of Enactment or Last Substantive Amendment: [ July 2, 2005 ] 2009

Notice of Continuation: January 31, 2008

Authorizing, and Implemented or Interpreted Law: 26-18