Family and Children's Medicaid MA-3430 NOTICE AND HEARINGS PROCESS

V. HEARING PROCESS

A. Purpose

1. Local

The local hearing allows the county dss agency to explain the action in question and gives the applicant/recipient an opportunity to explain why he feels that action should not take place.

2. State

The State hearing safeguards the interest of the a/r and assures fair and equitable administration of assistance programs.

B. Applicant's/Recipient's Rights

1. The applicant/recipient has the right to appeal when:

a. The county dss denies an applicant the opportunity to make an application on the day he first appears at the agency and wishes to apply.

b. The individual alleges he was discouraged for any reason from applying for assistance. See MA-3200, Initial Contact, for the definition and examples of discouragement.

c. The individual alleges the county dss improperly withdrew his application. See MA-3215, Processing The Application, for the definition of improper withdrawals.

d. The individual alleges the county dss improperly denied his application. See MA-3215, Processing The Application, for the definition of improper denials.

e. Assistance is approved, denied, modified, or terminated.

Do not conduct a hearing when either State or federal law requires automatic adjustments for classes of recipients, unless the reason for the hearing is incorrect computation or there is a factual issue regarding whether the change applies.

f. The applicant/recipient disagrees with the amount of his deductible or patient monthly liability.

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(V. B.)

g. The county dss fails to act within the required time standards.

h. The county dss fails to act promptly on a request for a review of the case situation.

i. The applicant/recipient disagrees with the determination of:

(1) The community spouse income allowance, or

(2) The amount of monthly income available to the community spouse, or

(3) The computation of the community spouse resource allowance, or

(4) The resources determined available to the institutionalized spouse after deducting the community spouse resource allowance. The recipient disagrees with the establishment of an overpayment. See MA-3535, Recipient Fraud and Abuse Policy and Procedures.

2. The applicant/recipient may request the hearing verbally or in writing.

3. The applicant/recipient must request a hearing within 60 calendar days from the date the notice of action is mailed or given, unless he can show good cause for a later request. If good cause exists, the request must be no later than 90 days from the date of the notice of action.

a. For appeals based on allegation of discouragement, improper withdrawal, or improper denial, the time limit for requesting a hearing shall be 60 days (or 90 days with good cause) from the date the applicant became aware or should have known that incorrect or incomplete information given by the county dss caused him not to apply, caused him to withdraw his application, or that the denial was improper.

b. Good cause is defined as:

(1) Failure of the a/r to receive the notice of action, or

(2) Extended hospitalization of the a/r, spouse, child, or parent of the a/r, or

(3) Failure of a representative acting on the a/r’s behalf to meet required time frames, or

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(V.B.3.b.)

(4) Illness resulting in incapacity, incompetence, or unconsciousness of the a/r and there is no representative acting on his behalf, or

(5) Death of the a/r or his representative, or

(6) Failure of the county dss to provide sufficient or correct information regarding appeal rights.

c. The a/r must provide evidence of good cause, which includes but is not limited to:

(1) Physician's written statement, or

(2) Hospital bill, or

(3) Written statement of a/r, his representative, or other individual knowledgeable of situation.

4. In cases involving issues other than disability, the applicant/recipient has the right to request a State hearing only after a local hearing has been held and a decision has been rendered.

5. In cases involving a question of disability, an applicant/recipient has the right to request a State hearing even when the disability decision is an SSA/SSI adoption.

This includes appeals requested on ex parte reviews when SSA denied for no longer being disabled and the recipient is ineligible for any other Medicaid programs, yet the recipient claims he is still disabled.

Within 5 calendar days of the request for a hearing, the county director or his designee must forward the request to the Chief Hearing Officer to schedule a State hearing. A State hearing officer will make a determination if certain criteria apply to the recipient.

6. Right to Continued Benefits (Not Applicable to NC Health Choice)

A recipient whose benefits are changed or reduced may be entitled to continued benefits while awaiting a hearing decision. Continuation of benefits applies only to recipients. It does not apply to applicants who are denied assistance, because there are no benefits to continue.

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(V. B.6.)

a. Recipients Who Receive Timely Notice

(1) If a recipient appeals a reduction or termination of benefits on or before the effective date of the change (10 workdays after the notice is mailed or given to the recipient), he has the right to continued benefits until the end of the month in which the local hearing decision is rendered, except when the reduction or termination involves a disability determination or the recipient waives his right to continued benefits.

If the reduction or termination involves a disability determination, the recipient who meets all other eligibility factors has the right to continued benefits until the end of the month in which the:

(a) State hearing decision is rendered, or

(b) Social Security Administration Appeals Council’s final decision is rendered with no right to further review, whichever occurs later.

(2) The recipient is not entitled to continued benefits if the appeal is requested after the 10-workday period.

(3) When the recipient requests the hearing, advise him that:

(a) If the reduction or termination of benefits is affirmed by the local or state hearings officer, he may be required to repay the benefits he received while awaiting a decision, or

(b) If the appeal involves a disability determination and the Social Security Administration affirms the reduction or termination of benefits, he will not be required to repay the benefits. This applies even if a state appeal also affirms the county’s action to terminate,

And

(c) He has the right to choose not to continue to receive benefits.

(4) In some cases, a hearing decision upholding the county’s action will be rendered prior to the termination of benefits. In these situations, no additional action is necessary.

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(V. B. 6. a.(4))

(a) If benefits must continue for an additional period, administratively reopen the Medicaid case for one month at a time until the hearing decision is rendered if the appeal is related to a non-disability issue.

(b) Refer to MA-2525, Disability, for continuation of benefits procedures when the appeal involves a disability determination.

b. Recipients Who Receive Adequate Notice

Recipients who receive adequate notice and appeal do not have the right to continued benefits.

7. The a/r must request a State hearing within 15 calendar days of the mailing of the local hearing decision, unless he can show good cause for a later request as outlined in IV.B.3.

8. The a/r has the right to be represented at the hearing by the person of his choice, including an attorney obtained at his expense.

9. If at any point, the a/r does not exercise his right to a hearing or the right to continued benefits, he still has the right to reapply.

C. Request for a Hearing

1. Local

Immediately notify the appropriate county staff when an a/r requests a local hearing. Inform the a/r that the local hearing officer will be contacting him regarding his request and that the local hearing must be held not more than 5 calendar days after the request is received.

2. State

a. Submit the DSS-1473, Request for State Appeal, to the Chief Hearing Officer, Hearing and Appeals Section, Division of Social Services:

(1) On the day the a/r requests a State hearing that does not involve a question of disability/incapacity.

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(V.C.2.(a))

(2) Within 5 calendar days of the date the a/r requests a State hearing that involves a question of disability/incapacity.

b. Attach a copy of the local hearing decision, if applicable.

c. Attach to the DSS-1473 all medical records dated within the last 12 months when the denial or termination of assistance is due to disability. If older medical information is needed, the State hearing officer, following a review of the more recent information, will request it.

d. If there has been no response from a State hearing officer within 60 days of the date the DSS-1473, Request for State Appeal, was sent, the county must contact DSS Hearing and Appeals to follow up on the status of the request. DSS Hearing and Appeals can be reached at (919) 855-3260.

3. Request for Hearing when Applicant is Deceased

When the applicant dies during the application process, an Authorized Representative may request the hearing. In the absence of an Authorized Representative, a family member may request the hearing. If there is no family member identified in the file, a hospital where the decedent received services during the ongoing or retroactive period covered by the application may request the hearing.

D. Scheduling

1. The local or State hearing officer assigned to the hearing will give reasonable notice to the county and the a/r of the time and place of the hearing.

2. The a/r may request and is entitled to receive a postponement of the scheduled hearing if good cause exists.

a. Local

If the a/r has good cause, the local hearing may be delayed for up to 10 more calendar days. A local appeal hearing may never be held more than 15 calendar days after the request for a hearing is received.

b. State

The postponement of a State hearing may not exceed 30 calendar days from the date the hearing was originally scheduled.

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(V. D.2.)

c. The a/r has good cause to postpone the hearing when:

(1) There is a death in the a/r's family.

(2) The a/r or someone in his family is ill.

(3) The a/r is unable to obtain representation.

(4) The a/r's representative has a conflict with the scheduled date.

(5) The a/r is unable to obtain transportation.

(6) The hearings officer determines that the hearing should be delayed for some other reason.

E. Place

Hold the local and/or State hearing in the county dss office unless the a/r is bedfast or has great difficulty moving. In such cases, the hearing may be held where the a/r lives.

F. Seeing the Record

Prior to and during the hearing, the appellant or his personal representative may examine the contents of his case file together with portions of other public assistance or social services case files that pertain to the appeal. He may also examine all other documents and records to be used at the hearing. The appellant or his representative may obtain copies of these materials without charge.

G. Summary

1. The IMC must prepare an original and two copies of the hearing summary discussing the county dss action and the reasons for that action.

2. Cite the specific regulations substantiating the action.

3. Attach to the summary copies of pertinent documents.

4. Give the original to the hearing officer. Give one copy to the a/r and file a copy in the eligibility record.

H. Attendance

Attendance at the hearing is limited to the a/r, his representative, appropriate representatives of the county dss and/or State, and any witnesses that the a/r or the county dss wish to call upon for testimony.

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(V.)

I. Conducting the Hearing

1. Local

Refer to the "Local Appeal Hearing Officer's Handbook."

a. The county director or his designee presides at the local hearing and ensures that the oath or affirmation is administered to all participants.

(1) The designee can include another county employee, a board member, or an employee of a social services agency in another county.

(2) The local hearing officer must not have been directly involved in the initial decision that resulted in the appeal.

b. There is no requirement that the local hearing be recorded. However, a written summary of the hearing must be maintained in the case file.

2. State

a. A State hearing officer from the Division of Social Services presides at the hearing and administers the oath or affirmation to all participants.

b. The State hearing officer will also record the hearing. No transcript will be prepared unless a petition to Superior Court is filed.

3. The a/r and the county dss may be represented by attorneys or other individuals obtained at their expense.

4. The county dss and the a/r must each name someone to present their testimony and to call as witnesses. Any person testifying must be sworn in.

5. The county dss' representative must read the summary and explain the county's action, or call upon someone to do so. He may call witnesses, one at a time. The hearing officer may question witnesses during their testimony. When the county's testimony has ended, the a/r or his representative may question the county's witnesses or representative.

6. The a/r or his representative may then explain why he feels the county dss's action should not be implemented. He may call witnesses, one at time. The hearing officer may question witnesses during testimony. When the a/r's testimony has ended, the dss representative may question the a/r, witnesses, or representative.

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(V.I.)

7. Representatives for the county dss and the a/r may present closing statements summarizing their view of the situation in question.

J. Decision

1. Local

a. The local hearing officer must make a decision on the case, based on appropriate regulations and evidence presented at the hearing. Those factors must be cited in a written statement of decision.

b. The written statement of decision must be sent to the a/r by certified mail within 5 calendar days of the date of the local hearing. Retain a copy in the case file.

(1) Applications

The county dss must implement a local appeal decision within 5 workdays of the date the decision is rendered.

(2) Terminated/Modified Cases

The county dss must implement a local appeal decision within 14 calendar days of the date the decision is rendered.

2. State

a. The State hearing officer must render a decision not more than 90 calendar days from the date of the request for the hearing unless the hearing was delayed at the a/r’s request.

If the hearing is delayed at the a/r’s request, the hearing decision can only be delayed for the length of time allowed for the a/r’s delay.

If a State hearing has been held and the county has not received a decision after 60 days, the worker must contact DSS Hearing and Appeals to check the status of the decision.

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(V.J.2.)

b. The hearing officer will prepare a tentative decision on the DSS-1894, Notice Of Decision, which will be sent to the a/r by certified mail. A copy will also be mailed to the county dss. The tentative hearing decision becomes final 10 calendar days from the date of the DSS-1894, Notice of Decision.

(1) Applications

The county dss must implement a State appeal decision within 5 workdays of the date the DSS-1894, Notice of Decision, becomes final.

(2) Terminated/Modified Cases

The county dss must implement a State appeal decision within 14 calendar days of the date the DSS-1894, Notice of Decision, becomes final.

c. The county dss or the a/r may present oral and/or written arguments, for or against the Notice Of Decision, no later than 10 calendar days from the date of the notice. Both must contact the chief hearing officer to present arguments. No new evidence will be accepted at this level of the appeal process.

d. If no written argument or request for oral argument is made within 10 calendar days of the tentative decision, the tentative hearing decision becomes final.

e. If the party that requested oral argument fails to appear at the hearing for oral argument, the tentative decision becomes final.

3. Remanded Appeals

A remanded appeal decision is a written instruction to the county dss to reconsider the county’s determination of eligibility based upon new evidence that was presented at the hearing or upon policy that may not have been considered. It is not a reversal of the county’s action. Instead the hearing officer remands the case to the county dss for reconsideration.

Once the reconsideration is completed, the county’s determination of eligibility may or may not be the same as the original determination.

4. Refer to MA-3215, Processing the Application, for instructions on re-opening and processing applications and terminated cases due to local/state appeal reversals or remanded appeal decisions.

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(V.J.)

5. If eligibility is approved for any period for which the time limit for filing claims has expired, you must submit a request for an override of the time limit. Refer to MA-3530, Corrective Actions and Responsibility for Errors, for override instructions.

K. Recovery

1. Local

If a reduction or termination of assistance is affirmed, any benefits received during the time of the local appeal may be subject to recovery.

2. State

If a reduction or termination of assistance is affirmed, any benefits received during the time of the State appeal may be subject to recovery unless the issue involves a disability determination.

a. For State appeals involving a disability determination, any benefits received during the time of the state appeal may be subject to recovery unless the recipient has also filed a timely appeal of the Social Security/SSI denial or termination.

b. If the recipient does not file a timely appeal of the Social Security/SSI denial or termination, any benefits received during the time of the State appeal may be subject to recovery.

L. Further Appeal

1. Local

If the a/r is not satisfied with the local hearing decision, he may request a State hearing through the county dss. The State hearing request must be made within 15 calendar days of the mailing of the local hearing decision or within 90 days of the date of the original notice of action, if good cause as defined in IV.B.3., exists.

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(V.L.)

2. State

a. Applicant/Recipient

If the a/r is not satisfied with the final decision following the State hearing, he may file a petition for judicial review in Superior Court within 30 calendar days of the receipt of that decision. For appeals filed after 30 calendar days, a Superior Court judge may issue an order permitting a review if the judge believes good cause exists for the delay in filing.

b. County DSS and State

Neither the county dss nor the State may appeal a hearing decision to Superior Court.