Health, Health Care Financing

Rule R410-14

Administrative Hearing Procedures

Notice of Proposed Rule

(Amendment)

DAR File No.: 37045
Filed: 11/14/2012 02:29:14 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to clarify certain terms within the rule text and to clarify hearing procedures for the Division of Medicaid and Health Financing (DMHF), the Department of Human Services (DHS), the Department of Workforce Services (DWS), and for managed care providers.

Summary of the rule or change:

This change clarifies certain terms within the rule text and clarifies hearing procedures for DMHF, DHS, DWS, and for managed care providers.

State statutory or constitutional authorization for this rule:

• Section 26-18-3
• Section 26-1-24

Anticipated cost or savings to:

the state budget:

The Department does not anticipate any impact to the state budget because this change only clarifies certain terms and procedures within the rule text.

local governments:

There is no impact to local governments because they neither fund Medicaid and the Children's Health Insurance Program (CHIP) nor participate in the administrative hearing process.

small businesses:

The Department does not anticipate any impact to small businesses because this change only clarifies certain terms and procedures within the rule text.

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

The Department does not anticipate any impact to providers and recipients of Medicaid and CHIP because this change only clarifies certain terms and procedures within the rule text.

Compliance costs for affected persons:

The Department does not anticipate any cost to a single provider or recipient of Medicaid and CHIP because this change only clarifies certain terms and procedures within the rule text.

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

Clarifying the fair hearing process protects the public and fosters prompt and appropriate resolution of disputes. No costs to providers expected.

David Patton, PhD, 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
CANNON HEALTH BLDG
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:

12/31/2012

This rule may become effective on:

01/07/2013

Authorized by:

David Patton, Executive Director

R410. Health, Health Care Financing.

R410-14. Administrative Hearing Procedures.

R410-14-3. Administrative Hearing Procedures.

(1) An [a]Aggrieved [p]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 should 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]grievance procedures that satisfy the requirements of 42 CFR 431.153 and 431.154.

(d) Managed Care Entity Hearings. Pursuant to 42 U.S.C. 1396u-2, federal law requires Medicaid and Children's Health Insurance Program (CHIP) managed care entities to have an internal grievance [and appeal process]procedure for Medicaid and CHIP enrollees or providers acting on the enrollee's behalf to challenge the denial of payment for medical assistance. The MCE shall provide to enrollees written information that explains the grievance [and appeals process]procedure. DMHF requires exhaustion of the MCE [appeals]grievance [process]procedure 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 MCE final written notice of the appeal decision.

(e) Home and Community-Based Waiver Hearings. 42 CFR 431, Subpart E, requires DMHF to provide [appeal]grievance procedures that satisfy the requirements of 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]grievance 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. DMHF, however, shall conduct any hearing to determine an applicant's or recipient's disability.

 

R410-14-4. Availability of Hearing.

(1) The hearing officer may not grant a hearing if the issue is a state or federal law requiring an automatic change in eligibility for medical assistance or covered services that adversely affect the [a]Aggrieved [p]Person.

(2) DMHF shall conduct a hearing in connection with the agency action if the [a]Aggrieved [p]Person requests a hearing and there is a disputed issue of fact. If there is no disputed issue of fact, the hearing officer may deny a request for an evidentiary hearing and issue a recommended decision without a hearing.

(3) There is no disputed issue of fact if the [a]Aggrieved [p]Person submits facts that do not conflict with the facts that the agency relies upon in taking action or seeking relief.

(4) If the [a]Aggrieved [p]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 , including but not limited to rates of reimbursement and alternative dispute resolution.[ This provision also applies to terms in a contract for rates of reimbursement.]

 

R410-14-5. Notice.

(1) DMHF, DHS, DWS, and an MCE shall provide written notice to each [individual or provider]applicant or recipient affected by an adverse action in accordance with 42 CFR [431.211, 213 and 214]431.200 et seq. Adverse actions to an applicant or recipient include actions that affect:

(a) eligibility for assistance;

(b) scope of service;

(c) denial or limited prior authorization of a requested service including the type or level of service; or

(d) 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]2) A notice must contain:

(a) a statement of the action DMHF, DHS, DWS, or an MCE 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]3) 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]4) 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 issues except those specifically excluded by this rule. The hearing officer may convert the proceeding to an informal hearing if a recipient or provider requests an informal hearing that meets the criteria set forth in Section 63G-4-202.

(2) Formal hearings must be requested within the following deadlines:

(a) A medical assistance provider or recipient must 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 must 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 with DMHF regarding eligibility for disability assistance within 90 calendar days from the date that DMHF sends written notice of its intended action.

(d) A medical assistance recipient must request a formal hearing regarding scope of service within 30 calendar days from the date that DMHF sends 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 or fax the form to the address or fax number contained on 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 [a]Aggrieved [p]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 hearing officer or fails to provide medical records that the agency requests.

(7) An [a]Aggrieved [p]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 [a]Aggrieved [p]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 [a] Aggrieved [p]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 [a]Aggrieved [p]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.

 

R410-14-18. Agency Review.

An [a]Aggrieved [p]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 [a]Aggrieved [p]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 hearing officer, is as follows:

(a) DMHF may request copies of pertinent records in the possession of the recipient and the recipient's health care providers. In the event the recipient or provider fails to produce the records within a reasonable time, DMHF may review all pertinent records in the custody of the recipient or provider during regular working hours after three days of written notice.

(b) The recipient must 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.

(c) 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 [a]Aggrieved [p]Person or the person's representative to examine all DMHF documents and records 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 hearing 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 hearing officer allows formal discovery, he shall set appropriate time frames for response and assess sanctions for non-compliance.

(6) The hearing 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 hearing 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.

 

KEY: Medicaid

Date of Enactment or Last Substantive Amendment: [April 27, 2012]2013

Notice of Continuation: September 27, 2012

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