Governor, Planning and Budget, Inspector General of Medicaid Services (Office of)

Section R367-1-15

Administrative Hearings

Notice of Proposed Rule

(Amendment)

DAR File No.: 35958
Filed: 03/20/2012 03:31:30 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

After internal review of Section R367-1-15, the Office of Inspector General (OIG) has determined that an alternative method for creating an appeals process is more efficient and beneficial to all parties.

Summary of the rule or change:

The Administrative hearing process will be removed from Section R367-1-15.

State statutory or constitutional authorization for this rule:

• Title 63J, Chapter 4a

Anticipated cost or savings to:

the state budget:

This amendment will not impact or affect the state budget. The appeals processes will still occur through an alternative avenue; not administrative rulemaking. As this is an amendment to a current proposed rule; the status quo of cost to that rule is not changed or affected by this modification.

local governments:

This amendment will not impact or affect local government. The appeals processes will still occur through an alternative avenue; not administrative rulemaking. As this is an amendment to a current proposed rule; the status quo of cost to that rule is not changed or affected by this modification.

small businesses:

This amendment will not impact or affect small businesses. The appeals processes will still occur through an alternative avenue; not administrative rulemaking. As this is an amendment to a current proposed rule; the status quo of cost to that rule is not changed or affected by this modification.

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

This amendment will not impact or affect persons other than small businesses, businesses, or local government entities. The appeals processes will still occur through an alternative avenue; not administrative rulemaking. As this is an amendment to a current proposed rule; the status quo of cost to that rule is not changed or affected by this modification.

Compliance costs for affected persons:

The amendment to Rule R367-1 does not create new compliance costs for any local government or business. There are no regulatory mandates created by this rule.

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

There will be no additional cost to any entity because of this amendment. This is an amendment to a current proposed rule (R367-1); the cost to the status quo of the proposed rule (R367-1) is not changed or affected by this modification.

Ron Bigelow, Director

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

Governor
Planning and Budget, Inspector General of Medicaid Services (Office of)
288 N 1460 W
Salt Lake City, UT 84116

Direct questions regarding this rule to:

• Michael Green at the above address, by phone at 801-538-6123, by FAX at 801-538-6382, 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:

05/15/2012

This rule may become effective on:

05/22/2012

Authorized by:

Michael Green, Policy and Training Coordinator

R367. Governor, Planning and Budget, Inspector General of Medicaid Services (Office of).

R367-1. Office of Inspector General of Medicaid Services.

[ R367-1-15. Administrative Hearings.

(1) Introduction and Authority:

(a) This rule sets forth the administrative hearing procedures for the Office.

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

(2) Definitions:

(a) "Action" means a reduction, denial or revocation of reimbursement for services for a provider or any other action by the Office that affects the legal rights of a person or group of persons, but not including rules made under the Utah Administrative Rulemaking Act, Title 63G, Chapter 3.

(b) "Administrative Law Judge" or ALJ means the person appointed to conduct an adjudicatory proceeding.

(c) "Ex Parte Communication" means direct or indirect communication in connection with an issue of fact or law between the ALJ and one party only.

(d) A "Medical Record" is a record that contains medical data of a client.

(e) "Order" means a ruling by an ALJ that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.

(f) "Petitioner" means any group or individual who is adversely affected by any action or inaction of the Office.

(3) Computation of time: Unless otherwise provided in a specific section of these rules, time shall be computed in accordance with the Utah Rules of Civil Procedure.

(4) Request for Hearing:

(a) Petitioner 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 should include supporting medical documentation. The Office 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.

(b) Hearings must be requested within 30 calendar days from the date that the Office sends written notice of its intended action.

(c) Failure to submit a timely request for a hearing constitutes a waiver of a Petitioner 's due process rights. The request must explain why the party is seeking agency relief, and the party must submit the request on the "Request for Hearing/Agency Action" form. The party must then mail or fax the form to the address or fax number contained on the notice of agency action.

(d) The Office 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, the Office considers the request to be filed on the date that the Office receives it, unless the sender can demonstrate through competent evidence that it was mailed before the date of receipt.

(5) Designation of Proceedings as Formal or Informal:

(a) A formal hearing will be set if the adverse action seeks reimbursement or other monetary sanctions in an amount of $100,000 or above. Formal hearings will be conducted as formal adjudicative proceedings in accordance with the Utah Administrative Procedure Act, Utah Code 63G-4-202, 204 through 209, 302, 401, 403, 405, 501 and 502.

(b) An informal hearing will be set if the adverse action seeks reimbursement or other monetary sanctions in an amount less than $100,000. Informal hearings will be conducted in accordance with the Utah Administrative Procedure Act, Utah Code 63G-4-202, 203, 209, 302, 401, 402, 405, 501, 502, 503, and 601.

(c) At any time before issuing a decision, the ALJ may convert an informal proceeding to a formal proceeding or a formal proceeding to an informal proceeding if conversion is in the public interest and does not unfairly prejudice the rights of any party.

(6) Service:

(a) The individual or party that files a document with the Office shall also serve the document upon all other named parties to the proceeding and file a proof of service with the Office that consists of a certificate, affidavit or acknowledgment of service.

(b) If the Office must provide notice of a formal hearing, the notice becomes effective on the date notification is sent.

(c) Section R367-1-14, Provider Communication, is incorporated under this sub-rule.

(7) Availability of Hearing:

(a) All requests for Hearings/Agency Action shall be set for an initial hearing in accordance with subsection 11.

(b) The Office will conduct an evidentiary 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 ALJ may deny a request for an evidentiary hearing and issue a recommended decision without a hearing. There is no disputed issue of fact if the aggrieved person submits facts that do not conflict with the facts that the agency relies upon in taking action or seeking relief.

(c) The Office may deny or dismiss a request for a hearing if the aggrieved person:

(i) withdraws the request in writing;

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

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

(iv) prolongs the hearing process without good cause;

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

(vi) does not respond to any correspondence from the ALJ or fails to provide medical records that the agency requests.

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

(8) Administrative Law Judge:

(a) The Inspector General shall appoint an impartial ALJ to conduct any hearing provided under these rules. Previous involvement in the initial determination of the action precludes an ALJ from appointment.

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

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

(ii) strike pleadings or evidence; or

(iii) issue an order of default.

(9) Modifying Requirements of Rules:

(a) Except as provided in this paragraph, the requirements of these rules may be modified by order of the ALJ for good cause.

(b) The requirements for timely filing a Request for Hearing under section (4) may not be modified.

(10) Ex Parte Communications:

(a) Ex parte communications are prohibited.

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

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

(11) The Informal Hearing:

(a) Unless otherwise provided in this section, informal hearings shall be conducted in accordance with Utah Code Section 63G-4-202 and 203.

(b) As set forth in subsection (7) all request for hearings/agency action shall be set for initial hearing within 30 days, only after at least 10-day notice of all parties.

(c) The Office shall notify the petitioner and Office representative of the date, time and place of the hearing at least ten days in advance of the hearing. Continuances of scheduled hearings are not favored, but may be granted by the president officer for good cause shown. Failure by a petitioner to appear at the hearing after notice has been given shall be grounds for default and shall waive both the right to contest the allegations and the right to the hearing.

(d) The party named in the notice of agency action and the Office shall be permitted to testify, present evidence, and comment on the issues. Formal rules of evidence shall not apply. The party that initiates the hearing process through a request for agency action has the burden of proof as the moving party. 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.

(e) Testimony may be taken under oath at the ALJ's discretion.

(f) All hearings are open to all parties.

(g) Discovery is prohibited; informal disclosures will be ruled on at the pre-hearing conference.

(h) Subpoenas and orders to secure the attendance of witnesses or the production of evidence shall be issued by the ALJ when requested by a petitioner or the Office, or may be issued by the ALJ on his/her own motion.

(i) A petitioner shall have access to relevant information contained in the Office's files and to material gathered in the investigation of petitioner to the extent permitted by law.

(j) The ALJ may cause an official record of the hearing to be made, at the Office's expense.

(k) Disposition of the ALJ's Order:

(i) Within a reasonable time after the close of the informal proceeding, the ALJ shall issue a signed order in writing that includes the following: the decision, the reasons for the decision, the Order, a notice of any right to administrative or judicial review of the order available to aggrieved parties and the time limits applicable to any reconsideration or review.

(ii) The order shall be based on the facts appearing in the Office's files and on the facts presented in evidence at the informal hearing.

(iii) A copy of the ALJ order shall be promptly mailed to each party.

(12) The Formal Hearing:

(a) The Office shall notify the parties of the date, time, and place of the hearing at least ten days in advance of the hearing. The ALJ's name, title, mailing address, and telephone number shall be provided to the parties. Failure to appear at the hearing after notice has been given shall be grounds for default and shall waive both the petitioner 's right to contest the allegations, and the petitioner 's right to the hearing.

(b) The ALJ shall regulate the course of the hearings to obtain full disclosure of relevant facts and to afford all the parties reasonable opportunity to present their positions, present evidence, argue, respond, conduct cross-examinations, and submit rebuttal evidence. The party that initiates the hearing process through a request for agency action has the burden of proof as the moving party. 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.

(c) Discovery

(i) 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;

(ii) the scope of discovery in formal adjudicative proceedings, unless otherwise limited by order of the ALJ, is as follows:

(a) The Office may request copies of pertinent records. In the event the provider fails to produce the records within a reasonable time the Office may review all pertinent records in the custody of the provider during regular working hours after three days of written notice.

(b) The Office shall allow the aggrieved person or the person's representative to examine all Office documents and records upon written request to the Office at least 21 days before the hearing.

(c) 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).

(d) The ALJ 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 ALJ allows formal discovery, he/she shall set appropriate time frames for response and assess sanctions for non-compliance.

(e) The ALJ may order a medical assessment at the expense of the Office to obtain information. This information is subject to HIPAA confidentiality requirements and is part of the hearing record.

(f) The ALJ may set appropriate deadlines and page limits for any motions.

(g) The ALJ may require the filing of stipulations of facts, or pre-trial briefs, or pretrial disclosures.

(h) The ALJ may permit the parties to make oral arguments or submit additional briefs or memoranda after the close of the evidence .

(i) The ALJ may require each party to submit a post-hearing brief, and proposed findings of fact and conclusions of law.

(j) ALJs order shall comply with 63G-4-208.

(13) Declaratory Orders.

(a) Any person may file a request for Office action, requesting that the Office issue a declaratory order determine the applicability of a statute, rule, or order within the primary jurisdiction of the Office in accordance with 63G-4-503.

(b) Petition Form.

The petition shall:

(i) be clearly designated as a request for a declaratory order;

(ii) identify the statute, rule, or order to be reviewed;

(iii) describe the situation or circumstances giving rise to the need for the declaratory order or in which applicability of the statute, rule, or order is to be reviewed;

(iv) describe the reason or need for the applicability review;

(v) identify the person or agency directly affected by the statute, rule, or order;

(vi) include an address and telephone where the petitioner can be reached during regular work days; and

(vii) be signed by the petitioner.

(c) The provisions of Sections 63G-4-202 through 63G-4-302 apply to declaratory proceedings.

(d) The Office will not issue a declaratory order that deals with a question or request that the ALJ determines is:

(i) Not within the jurisdiction and competence of the Office;

(ii) trivial, irrelevant, or immaterial;

(iii) not one that is ripe or appropriate for determination;

(iv) currently pending or will be determined in an on-going judicial proceeding;

(v) prohibited by state or federal law; or

(vi) challenge the validity of a federal statute or regulation.]

 

KEY: Inspector General, health, Medicaid fraud waste abuse

Date of Enactment or Last Substantive Amendment: 2012

Authorizing, Implemented, or Interpreted Law: 63J-4a-101; 63J-4a-201; 63J-4a-602