1613 Client's Rights Related to a Fair Hearing

1613 Client's Rights Related to a Fair Hearing - The client or the client's representative shall have adequate opportunity to:

1. Submit a request for a fair hearing (including a request to expedite as described in 1614.6), which may be on the Request for Administrative Hearing form, regarding any agency action. However, a hearing need not be granted if the request concerns only the validity of federal or state law or regulation. In addition, a hearing need not be granted when either state or federal law requires automatic adjustments for classes of recipients unless the reason for an individual appeal is incorrect computation. See 1612 (1).

2. Examine the contents of his case file and all documents and records to be used by the agency at the hearing at a reasonable time before the date of the hearing as well as during the hearing. See 1220 and subsections regarding confidential case file information.

3. At his option, present his case himself, or with the aid of an authorized representative, and bring witnesses.

4. Establish all pertinent facts and circumstances and advance any pertinent arguments without undue interference.

5. Question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses.

6. Submit evidence to establish all pertinent facts and circumstances in the case.

1614 Responsibilities of the Agency - Every applicant/recipient shall be informed in writing at the time of application and at the time of any subsequent action affecting medical assistance of the right to a fair hearing, the method of obtaining such hearing, and that representation may be by an authorized representative such as legal counsel, relative, friend, or other spokesperson. The applicant/recipient shall be informed of the circumstances under which eligibility may be continued or reinstated during the appeal as well as an explanation that an appeal decision for one household member may result in a change in eligibility for other household members. Information printed on the application/redetermination form and notices of action will provide this information.

Agency hearing procedures shall be uniform, clearly written, and available to any interested party. At a minimum, the procedures shall include time limits for filing requests for appeals, advance notice requirements, hearing timeliness standards, and the rights and responsibilities of persons requesting a hearing. Information about the KDHE hearing procedures for providers for KanCare and fee for service is available at Provider Grievances, Reconsiderations, Appeals, External Review & Fair Hearings.

1614.1 Standard Procedures - The procedures set forth below shall be followed whenever a client makes an inquiry concerning a fair hearing, asks for fair hearing forms, or files a request for a fair hearing.

1. The worker or supervisor should find out why the client is questioning the agency action.

2. If the client is only disagreeing with a federal or state law or policy, the reason for such policy should be discussed with the client.

3. If a client appears to be questioning the application of a federal or state law or policy to his individual situation (incorrect eligibility determination or use of incorrect facts), an administrative review shall be conducted to determine if the agency action was correct. Upon reconsideration, the agency may amend or change its decision at any time before or during the hearing. The hearing shall not be delayed or canceled because of this preliminary review.

If a satisfactory adjustment is reached prior to the hearing, the agency shall submit a written report to the hearing officer but the appeal shall remain pending until the client submits a signed written statement withdrawing the request for a fair hearing.

4. If the client is questioning the decision regarding disability and the decision was made related to an SSI or SSA application for benefits, the client is to be referred to the SSA office to file an appeal. See 2636.

5. If the client is questioning the decision regarding disability and the decision was made by Disability Determination Services (DDS) based on an agency request via the DD-1104 and DD-1105 the appeal will be processed through DDS as specified in 1614.6(1).

6. \When a household member or representative makes an oral request for a fair hearing to the local office or to the Office of Administrative Hearings by telephone or in person, the agency shall document the request by using the Request for Administrative Hearing form. The date of the request shall be the date the oral communication was made to the agency and that date shall appear on the form. Lack of signature by the household member on the form used to document an oral request shall not invalidate the request.

1614.2 Agency Contact - Once a fair hearing request has been received, the agency shall attempt to contact the client, or the client’s representative, by telephone to explain the agency action and the effective date of the action taken.

1. Unable to Contact – The agency shall make at least two (2) attempts to contact the client by telephone to explain the agency action taken on the case. All unsuccessful attempts to contact the client shall be thoroughly documented in the case file. If the agency is unable to contact the client by phone to discuss the agency action, the agency shall complete an Agency Summary as described in 1614.4.

2. Contact Completed – If the agency is able to contact the client by telephone to explain the agency action taken and the client is satisfied with the agency explanation, the client should be asked if he/she is willing to withdraw the fair hearing request. Whether or not the client is willing to voluntarily withdraw the fair hearing request will determine the next action taken by the agency.

a. Client Agrees to Withdraw – If the client agrees to withdraw the fair hearing request, the agency shall complete a Motion to Dismiss based on the client’s decision to withdraw the fair hearing request. There is no need to complete an Agency Summary at this point. See 1614.3

b. Client Does Not Withdraw – If the client does not agree to withdraw the fair hearing request and states an intent to continue the appeal, the agency shall complete an Agency Summary as described in 1614.4. See also 1615 concerning dismissal of fair hearing.

1614.3 Withdrawal of Request - The client may withdraw the request for fair hearing at any stage of the appeal process, up to and including the day of the fair hearing. The request must be in writing and signed by the client or the client’s representative. A special form, Notice of Withdrawal of Appeal, is available for this purpose. The agency may offer this form to the client for completion, but any writing evidencing the intent to withdraw shall be accepted.

The request may be submitted to either the agency or directly to the Office of Administrative Hearings (OAH). The request may be delivered by mail, fax, or in person. The appeal process will continue until the written withdrawal request has been formally received by OAH.

1614.4 Completion of Agency Summary - Within 15 days after the appellant has filed a request for a fair hearing, the agency shall furnish the appellant and the Office of Administrative Hearings (OAH) with a summary. One copy of the summary shall be sent electronically to the OAH. Another copy shall be mailed to the appellant or representative. The summary shall include the following information:

1. Name and address of the appellant;

2. A summary statement concerning why the appellant is filing a request for a fair hearing;

3. A brief chronological summary of the agency action which led to the appeal and the agency's action after receiving the request for fair hearing;

4. A statement of the basis for the agency's decision;

5. A citation of the applicable policies relied upon by the agency;

6. A copy of the notice which notified the appellant of the decision in question;

7. Applicable correspondence; and

8. The name and title of the person or persons who will represent the agency at the hearing.

When the request for fair hearing involves a Disability Determination Services (DDS) disability determination, the process described in 1614.6(1)(c) shall be followed.

If through an agency contract as discussed in 1614.2, the appellant has withdrawn the appeal (see 1614.3), completion of the summary is not necessary. The Request for Administrative Hearing form should then be submitted, along with the Notice of Withdrawal of Appeal, to OAH within 7 days of the date of the request for a fair hearing.

1614.5 Informing the Client of Termination of Assistance - The agency shall promptly inform the client in writing if assistance is to be terminated pending the fair hearing decision. See 1612 concerning continuation of assistance.

1614.6 Procedures For Requests Related to a Disability Determination - A request for a fair hearing on a decision based on a disability determination made by the agency, or contractors, according to 2662 is initially reviewed by the entity responsible for the disability decision.

1. DDS Disability Determinations – When the agency receives a fair hearing request based on a DDS disability determination, eligibility staff shall take the following actions:

a. The hearing request shall be sent to the Office of Administrative Hearings with an indication that this is an appeal of a DDS disability determination.

b. A DDS reconsideration of the disability determination shall be initiated by completing the following:

i. The agency shall send the appellant a special Medical Assistance Reconsideration Disability Report and two new DD-1103, Authorization to Disclose Information to KDHE-DDS forms. The Disability Report is used to capture additional medical and social information, including medical services and hospitalizations, that could impact the disability determination. The appellant shall be instructed to complete the Disability Report form and sign the two DD-1103 release forms and return to the agency within 12-days.

ii. If timely returned to the agency, the forms, along with a new DD-1104, Disability Determination Request Medical Assistance Case form completed by the agency with the reconsideration box clearly marked shall be forwarded to DDS for review. The agency shall also include the original disability determination file compiled by DDS. If the appellant fails to timely return the requested forms, no further action on the reconsideration is required.

c. The agency shall complete an Appeal Summary and forward to the Office of Administrative Hearings as indicated above. The Appeal Summary shall be clearly identified as a DDS disability determination appeal. A copy of the DDS disability determination file shall be included. In most instances, the reconsideration process will not be completed by DDS at this point. Staff should report on the Appeal Summary that a disability reconsideration by DDS is in progress.

d. If the reconsideration is completed by DDS before the scheduled hearing date, the decision will determine the next step. If the decision is favorable, eligibility shall be redetermined and approved for coverage if otherwise eligible. The agency shall submit a motion to dismiss the appeal to the Office of Administrative Hearings since the issue is now moot. If the decision is unfavorable, the agency shall submit the reconsideration packet received from DDS as newly received evidence.

e. If the reconsideration is not completed by DDS before the scheduled hearing date, the agency shall request a continuation of the hearing clearly stating the reason for the request. If the request is denied, the agency shall proceed to hearing without the reconsideration decision or documentation. However, the reconsideration process shall continue:

i. The agency may request that the hearing record remain open after the scheduled hearing has occurred to submit the reconsideration decision and documentation once completed. If the request is granted, the agency shall submit the documentation once received. If the request is denied, the reconsideration process will continue, but the ultimate decision and documentation will not be included in the hearing decision.

ii. The agency shall still act upon the reconsideration decision, even when reported after the hearing decision is issued. If the DDS decision is unfavorable, no further action is required. The applicant continues to fail to meet disability criteria. If the decision is favorable, the applicant is now determined to be disabled. Eligibility shall be redetermined and approved for coverage if otherwise eligible.

2. Presumptive Medical Disability Team (PMDT) Determinations – A fair hearing request may involve MediKan or Medicaid. Any request for a fair hearing regarding the disability determination must be sent to the Office of Administrative Hearings. The PMDT shall immediately be notified of the request.

a. For cases where there is sufficient medical evidence, the PMDT will process a reconsideration of the disability determination. All cases approved for Tier 2 but denied Tier 1 will have sufficient evidence and be reconsidered. Any additional information available to the eligibility worker must be noted on the referral (e.g., medical services, social information hospitalizations, etc.). Copies of the fair hearing request and any related materials should be included with the referral. The PMDT may request additional information from the eligibility worker to develop the reconsideration.

b. If the reconsideration establishes that the appellant meets disability criteria, or that a higher level of disability does exist, the case will be referred back to the eligibility worker for redetermination based on the new disability determination. However, if the reconsideration upholds the original disability decision, the case will be prepared for a fair hearing. The PMDT will take the lead in preparing the appeal summary and representing the agency at the hearing, with the support of the eligibility worker.

1614.7 Expedited Fair Hearing – A request to expedite the fair hearing process may be granted for an appellant who demonstrates an urgent medical need. The request may be made either at the time the fair hearing is filed or any time thereafter up to the actual date of the scheduled hearing. If granted, the hearing will be scheduled as soon as possible. If the expedited request is denied, the hearing process will proceed on a normal schedule.

The following additional provisions apply:

1. Request – As indicated above, a request to expedite the fair hearing process may be made at the time of the request for fair hearing or at any time prior to the scheduled hearing. If the expedited request is received after the original fair hearing is filed, it is important to note that this is not a separate hearing request, but rather simply a request to expedite the process for the previously filed hearing request. Therefore, to avoid duplicating appeals, whenever an expedited request is received, staff should ascertain whether or not there is already an existing active appeal.

2. Documentation – An expedited request cannot be granted without documentation supporting a claim of urgent medical need. The documentation must be provided at the time of the expedited request. The supporting documentation should be based on medical records and/or the written opinion of a medical professional familiar with the appellant’s condition and circumstances. A simple statement of medical need is not sufficient proof of an urgent medical need, nor are self-serving statements provided by the appellant or by family and friends lacking medical credentials.

Note: Refusal or failure to supply supporting documentation with the expedited processing request will result in an automatic denial of the request.

3. Evaluation – The documentation provided shall be reviewed by KDHE-DHCF clinical staff to determine if the appellant has an urgent medical need which necessitates the need to expedite the fair hearing. An urgent medical need means that the appellant’s life, health or ability to attain, maintain, or regain maximum function is in jeopardy if the hearing process is not expedited.

As indicated above, the determination will be based on the documentation (i.e., medical records and/or medical professional statement) provided at the time of the expedited request. That determination is then forwarded to the Fair Hearings Manager.

Please note that this evaluation is not the same as a disability determination for eligibility purposes. The purpose of the review is to determine if an urgent medical need exists which warrants expediting the fair hearing process. The review is not intended to determine if the appellant meets the disability criteria for disability-related medical assistance programs.

4. Decision – Based on the evaluation completed by the clinical team reported to the Fair Hearings Manager, the expedited request shall be either denied or approved.

a. Denied – If the expedited request is denied, formal notification shall be sent to the appellant explaining the reason for the denial. The notification will also state that the regular fair hearing process shall proceed as normal with the hearing scheduled within the usual time frames. The appellant is not entitled to an appeal of this decision. However, the appellant may file a new expedited request anytime up to the date of the scheduled hearing.

b. Approved – If the expedited request is approved, the Fair Hearings Manager will contact the Office of Administrative Hearings to schedule the hearing as expeditiously as possible, but no later than 7 working days after the date the expedited request is received. The agency shall also complete the Appeal Summary and forward to the Office of Administrative Hearings as expeditiously as possible, but no later than 15 days from the date the fair hearing request is received (see 1614.4).

1614.8 Federally Facilitated Exchange (FFE) Fair Hearing – An applicant may appeal a decision made by the Federally Facilitated Exchange (FFE) concerning his/her application for coverage and/or eligibility for the subsidy through the Health Insurance Marketplace. That appeal request will be sent to the Marketplace Appeals Center for adjudication. During the appeal process the Marketplace Appeals Center may determine that the appellant is potentially eligible for Medicaid or CHIP coverage.

In that instance, the Marketplace Appeals Center will submit an electronic appeal package to the agency containing consumer account information. The package of information will include not only information provided directly by the applicant when he/she completed the Health Insurance Marketplace application, but also data obtained from the result of any verifications performed by the Federally Facilitated Exchange (FFE). Also included in the package is the appeal request submitted by the appellant. This information shall be used by the agency to review the individual’s eligibility for medical assistance.

Note: The agency should only receive an appeal package for individuals who have already applied for and been denied Medicaid and/or CHIP coverage by the agency.

Upon receipt of the appeal package, the agency shall conduct an administrative review of the case based on the information provided and redetermine eligibility for Medicaid and/or CHIP coverage. If the applicant is determined eligible based on the review, coverage shall be promptly approved with notification provided to the applicant. If the agency determines that the applicant is not eligible, the application shall remain denied. The applicant shall be notified of the decision with the right to appeal. Whatever decision is made, the agency shall also notify the FFE of the outcome of the redetermination.