CABINET FOR HEALTH AND FAMILY SERVICES

Kentucky Office of Health Benefit and Information Exchange

(As Amended at ARRS, July 14, 2015)

 

      900 KAR 10:100. Appeals of Eligibility Determinations for KHBE Participation and Insurance Affordability Programs.

 

      RELATES TO: KRS 194A.050(1), 42 U.S.C. 18031, 45 C.F.R. 155.500-155.555

      STATUTORY AUTHORITY: KRS 194A.050(1)

      NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Kentucky Office of[the Kentucky] Health Benefit and[Health] Information Exchange, has responsibility to administer the state-based American Health Benefit Exchange. KRS 194A.050(1) requires the secretary of the cabinet to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the Commonwealth; to operate the programs and fulfill the responsibilities vested in the cabinet; and to implement programs mandated by federal law or to qualify for the receipt of federal funds. This administrative regulation establishes the policies and procedures relating to appeals of eligibility determinations for KHBE participation and insurance affordability programs in accordance with 42 U.S.C. 18031 and 45 C.F.R. 155.500 to 155.555.

 

      Section 1. Definitions. (1) "Advanced payment of premium tax credits" or "APTC" means payment of the tax credits authorized by 26 U.S.C. 36B and its implementing regulations, which are provided on an advance basis to an eligible individual enrolled in a qualified health plan through an exchange in accordance with section 1412 of the Affordable Care Act, 42 U.S.C. 18082.

      (2) "Adverse witness" means a person who gives unfavorable evidence against the party that called him or her as its witness.

      (3) "Appeal record" means the official record of hearing as defined by KRS 13B.130(1) through (10).

      (4) "Appeal request" means a clear expression, either orally or in writing, by an applicant or[,] enrollee[, employer, or small business employer or employee] to have an eligibility determination or redetermination contained in a notice issued in accordance with 45 C.F.R. 155.310(g) or 45 C.F.R. 330(e)(1)(ii).

      (5) "Appellant" means the applicant or enrollee who is requesting an appeal.

      (6) "Applicant" means an individual who is seeking eligibility for himself or herself through an application submitted to the KHBE for at least one (1) of the following:

      (a) Enrollment in a qualified health plan (QHP) in the individual exchange or stand-alone dental plan (SADP) in the individual exchange through the KHBE; or

      (b) Medicaid or KCHIP, if applicable.

      (7)["Authorized representative" means:

      (a) For an enrollee or applicant who is authorized by Kentucky law to provide written consent, an individual or entity acting on behalf of, and with written consent from, the enrollee or applicant; or

      (b) A legal guardian.

      (8)] "Cost-sharing reduction" or "CSR" means a reduction in cost sharing for an eligible individual enrolled in a silver level plan in an exchange or for an individual who is an Indian enrolled in a qualified health plan in an exchange.

      (8)[(9)] "DAH" means the Division of Administrative Hearings of the Cabinet for Health and Family Services.

      (9)[(10)] "DCBS" means the Department for Community Based Services.

      (10) "Department of Health and Human Services" or "HHS" means the U.S. Department of Health and Human Services.

      (11) " Desk review" means an administrative review of:

      (a) Information submitted as part of the application process;

      (b) Any supporting documentation used to determine or redetermine an appellant’s eligibility; and

      (c) Any additional information submitted for consideration as part of the appeal request.[(11) "Department of Health and Human Services" or "HHS" means the U.S. Department of Health and Human Services.]

      (12) "Enrollee" means an eligible individual enrolled in a qualified health plan or stand-alone dental plan on the individual exchange.

      (13) "Exemption" means an exemption from the shared responsibility payment.

      (14) "Final order" is defined by KRS 13B.010(6).

      (15) "Hearing" is defined by KRS 13B.010(2).

      (16) "Hearing officer" means a hearing officer employed by DAH.

      (17) "Indian" is defined by 25 U.S.C. 450b(d).

      (18) "Judicial review" means a court's review of factual or legal findings of an administrative body.

      (19) "Kentucky Children’s Health Insurance Program" or "KCHIP" means the separate child health program established by the Commonwealth of Kentucky under 42 U.S.C. 1397aa to 1397mm in accordance with implementing regulations at 42 C.F.R. Part 457.

      (20) "Kentucky Health Benefit Exchange" or "KHBE" means the Kentucky state-based exchange[conditionally] approved by HHS pursuant to 45 C.F.R. 155.105 to offer a QHP or SADP[beginning January 1, 2014,] that includes[an]:

      (a) An individual exchange; and

      (b) A Small Business Health Options Program.

      (21) "Kentucky Office of Health Benefit and[Health] Information Exchange", "KOHBIE[KOHBHIE]", or "office" means the office created to administer the Kentucky Health Benefit Exchange.

      (22) "MAGI-based income" is defined by 42 C.F.R 435.603(e).

      (23)[(22)] "Personally identifiable information" means any data about an individual that could potentially identify that individual.

      (24)[(23)] "Qualified health plan" or "QHP" means a health plan that meets the standards described in 45 C.F.R. 156.200 to 156.295 and that has in effect a certification issued by the office.

      (25)[(24)] "Recommended order" is defined by KRS 13B.010(5).

      (26) "Stand-alone dental plan" or "SADP" means a dental plan as described by 45 C.F.R. 155.1065 that has been certified by the office to provide a limited scope of dental benefits as defined in 26 U.S.C. 9832(c)(2)(A), including a pediatric dental essential health benefit.

      (27)[(25)] "Tax filer" is defined by 45 C.F.R. 155.300.

      (28)[(26)] "Vacate" means to set aside a previous action.

 

      Section 2. Right to Appeal an Individual Eligibility Determination or Redetermination. (1) An applicant or an enrollee shall have the right to make an appeal request of:

      (a) An eligibility determination made in accordance with 45 C.F.R. 155.300 to 155.355 and 900 KAR 10:030, including:

      1. An initial determination of eligibility for enrollment in a QHP or SADP, including the amount of APTC and CSR, made in accordance with the standards specified in 45 C.F.R. 155.305(a) through (h); or

      2. A redetermination of eligibility, including the amount of APTC and CSR, made in accordance with 45 C.F.R. 155.330 and 155.335;

      (b) A failure by the KHBE to provide timely notice of an eligibility determination pursuant to 45 C.F.R. 155.310(g), 155.330(e)(1)(ii), 155.335(h)(1)(ii) or 155.610(i);

      (c) A denial of a request to vacate dismissal made by DAH in accordance with 45 C.F.R. 155.530(d)(2), made pursuant to Section 9(3) of this administrative regulation; or

      (d) An eligibility determination for an exemption made in accordance with 45 C.F.R. 155.605.

      (2) An appeal request that fails to meet the criteria in subsection (1) of this section shall not be considered an acceptable appeal request, and KOHBIE[KOHBHIE] shall send written notice by certified mail, return receipt requested, to the appellant to:

      (a) State the appeal request has not been accepted and explain the nature of the defect in the appeal request; and

      (b) Explain that the applicant or enrollee may cure the defect and resubmit the appeal request[by the due date] within ninety (90) days of the notice of action.

      (3) Upon exhaustion of the appeal process established in this administrative regulation, an appellant shall have the right to:

      (a) Appeal to HHS according to regulations adopted by the secretary of HHS; and

      (b) Seek a judicial review of an appeal decision pursuant to KRS 13B.140.

      (4)[(3)] The state Medicaid agency shall retain authority for an appeal of a Medicaid or a KCHIP MAGI-based income determination of eligibility.

      (5)[(4)] The DAH shall conduct an appeal of an individual eligibility determination, except for an eligibility determination for an exemption made in accordance with 45 C.F.R. 155.605.

      (6)[(5)] An appeal of an eligibility determination of an exemption shall be conducted by HHS.

 

      Section 3. Designation of a Representative. (1) To the extent allowable by law, an appellant may represent himself or herself or be represented during an appeal process by:

      (a) Legal counsel;

      (b) An authorized representative as set forth in 900 KAR 10:030;

      (c) A relative;

      (d) A friend; or

      (e) Another individual not listed in paragraph (a), (b), (c), or (d) of this subsection.

      (2) KOHBIE[KOHBHIE][KHBE] shall designate a representative to act on behalf of the office[KHBE] for the hearing.

 

      Section 4. Notice of Appeal Rights. (1) An applicant or an enrollee shall be notified of a right to appeal, timeframe to file an appeal, and how to file an appeal at the time:

      (a) The applicant submits an application; and

      (b) A notice of eligibility determination is sent by KHBE under 45 C.F.R. 155.310(g), 155.330(e)(1)(ii), or by HHS under 45 C.F.R. 155.610(i).

      (2) A notice described in subsection (1) of this section shall include:

      (a) An explanation of the applicant or enrollee’s appeal rights in accordance with this administrative regulation;

      (b) A description of the procedure and timeframe within which to request an appeal;

      (c) Information on the applicant or enrollee’s right to represent himself or herself or to be represented by legal counsel or other authorized person as identified in Section 3 of this administrative regulation;

      (d) An explanation of the circumstances under which the appellant’s eligibility may be maintained or reinstated pending an appeal decision in accordance with Section 8 of this administrative regulation; and

      (e) An explanation that an appeal decision for one (1) household member may result in a:

      1. Change in eligibility for another household member; or

      2. Redetermination of eligibility in accordance with 900 KAR 10:030.

 

      Section 5. Appeal Requests. (1) An applicant or an enrollee may submit an appeal request:

      (a) By phone by contacting the kynect contact center;

      (b) By mail to the KOHBIE[KOHBHIE][KHBE];

      (c) In person at a local DCBS office; or

      (d) Via the internet at kynect.ky.gov.

      (2) Upon request, the KOHBIE[KOHBHIE][KHBE] or the DAH shall assist an applicant or enrollee in filing an appeal.

      (3) An applicant or enrollee’s right to appeal shall not be limited or interfered with by an employee or agent of the KOHBIE[KOHBHIE][KHBE].

      (4) An applicant or enrollee shall have thirty (30) days from the date of notice of an eligibility determination or redetermination to submit an appeal request.

      (5) The date of notice shall be five (5) calendar days after the date on the notice unless an applicant or enrollee shows that the notice was not received within the five (5) day period.

 

      Section 6. Informal Resolution. (1) After receiving an appeal request, KOHBIE[KOHBHIE][the Office of the Kentucky Health Benefit Exchange] shall:

      (a) Conduct a desk review of an appeal prior to sending the appeal to the DAH; and

      (b) Complete the review within fifteen (15) calendar[ten (10)] days of receipt of the appeal request.

      (2)[The desk review shall consider information submitted during the application process and any supporting documentation used to determine or redetermine an appellant’s eligibility.

      (3)] An appellant shall:

      (a) Have the right to a hearing if the appellant is dissatisfied with the outcome of the informal resolution process; and

      (b) Not have to provide duplicative information or documentation previously provided during the application process.

      (3)[(4)] The outcome of an informal resolution shall be final and binding and the appeal shall not advance to a hearing if the appellant:

      (a) Is satisfied with the outcome of the informal resolution process: and

      (b) Withdraws his or her appeal request in accordance with Section 12 of this administrative regulation.

      (4) If an appellant is dissatisfied with the outcome of the informal resolution process, KOHBIE[KOHBHIE] shall send:

      (a) The appeal request to DAH no later than five (5) business days of the completion of the informal resolution process; and

      (b) A written notice by certified mail, return receipt requested, to the appellant that includes:

      1. Notification that the appeal request has been sent to DAH for a hearing;

      2. Information regarding the appellant’s eligibility pending appeal in accordance with Section 8 of this administrative regulation; and

      3. An explanation that any APTCs paid on behalf of a tax filer pending appeal are subject to reconciliation under 26 C.F.R. 1.36B-4.

 

      Section 7. Acknowledgement of Appeal Request and Eligibility Record by DAH. (1) A request for an appeal[shall be] sent by KOHBIE[KOHBHIE] to the DAH[no later than ten (10) days of receipt of the appeal request.

      (2) A request for an appeal] shall be reviewed by DAH to ensure that the appeal request is valid.

      (2)[(3)] Upon receipt of a valid appeal request, the DAH shall:

      (a) Send timely notice to the appellant of receipt of the valid appeal request by certified mail, return receipt requested, to include[:

      1. Information regarding the appellant’s eligibility pending appeal in accordance with Section 8 of this administrative regulation;

      2. An explanation that any APTCs paid on behalf of a tax filer pending appeal are subject to reconciliation under 26 C.F.R. 1.36B-4; and

      3.] the hearing requirements contained in Section 10 of this administrative regulation; and

      (b)[Send timely notice of the appeal request to the KHBE and, if applicable, instructions to provide eligibility pending appeal pursuant to Section 8 of this administrative regulation; and

      (c)] Confirm receipt of the records transferred by KOHBIE[KOHBHIE][KHBE] pursuant to Section 6(4)(a) of this administrative regulation[subsection (5) of this section].

      (3)[(4)] The DAH shall consider an appeal request valid if the request:

      (a) Was incorrectly delivered or mailed to a department or division of the Cabinet for Health and Family Services; and

      (b) Is otherwise valid.

      (4)[(5)] Upon receipt of an appeal request that is not valid, the DAH shall:

      (a) Send written notice to the appellant and KOHBIE[KOHBHIE] that the appeal request has not been accepted and of the nature of the defect in the appeal request; and

      (b) Accept an amended appeal request as valid that meets the requirements of this administrative regulation.

      [(6) Upon receipt of a notice under subsection (5)(b) of this section, the KHBE shall submit the appellant’s eligibility record to the DAH.]

 

      Section 8. Eligibility Pending Appeal. (1) An appellant who has submitted an acceptable request as described in Section 2 of this administrative regulation[a valid appeal] of a redetermination of eligibility in accordance with Section 5 of this administrative regulation shall be considered eligible while the appeal is pending.

      (2) If a tax filer or appellant accepts eligibility pending an appeal of an eligibility redetermination, the appellant’s eligibility for an APTC or CSR or enrollment in a QHP or SADP as applicable shall be continued in accordance with the level of eligibility immediately before the redetermination being appealed.

      (3) An appellant may waive receipt of APTCs pending the outcome of an appeal.

      (4) The continued receipt of APTCs during an appeal may impact the amount owed or due by an appellant during the reconciliation process set forth in 26 C.F.R. 1.36B-4, depending upon the appeal decision.

      (5) Eligibility pending appeal shall not be applicable to an appellant appealing an initial denial of eligibility for APTCs.

 

      Section 9. Dismissal of an Appeal. (1) An appeal shall be [administratively] dismissed by DAH[without the need for a final order] if the appellant:

      (a) Withdraws the appeal request in accordance with Section 12 of this administrative regulation;

      (b) Fails to appear at a scheduled hearing without good cause;

      (c) Fails to submit a valid appeal request as specified in Section 5 of this administrative regulation; or

      (d) Dies while the appeal is pending.

      (2) If an appeal is[administratively] dismissed in accordance with subsection (1) of this section, DAH shall provide timely written notice:

      (a) To the appellant[and KOKBHIE] that includes:

      1. The reason for the[administrative] dismissal;

      2. An explanation of the effect of the[administrative] dismissal on the appellant’s eligibility; and

      3. An explanation of how the appellant may show good cause why the[administrative] dismissal should be[administratively] vacated in accordance with subsection (3)(a) of this section; and

      (b) To KOHBIE[the appellant and KOHBHIE][KHBE agency] that includes:

      1. The eligibility determination to be implemented; and

      2. Discontinuing eligibility provided under Section 8 of this administrative regulation, if applicable.

      (3) DAH shall:

      (a) Vacate a[an administrative] dismissal under this section and proceed with the appeal if the appellant makes a written request within thirty (30) days of the date of the notice of the[administrative] dismissal showing good cause why the[administrative] dismissal should be vacated; and

      (b) Provide timely written notice of the recommendation to the secretary of the Cabinet for Health and Family Services to deny the request to vacate a[an administrative] dismissal to the appellant, if the request is denied.

 

      Section 10. Hearing Requirements. (1) DAH shall provide written notice to an appellant and KOHBIE[KOHBHIE] prior to a hearing with the acknowledgement of appeal request to include:

      (a) Date;

      (b) Time;

      (c) Location;

      (d) Format of the hearing; and

      (e) The requirements in KRS 13B.050.

      (2) An appellant shall have the opportunity to:

      (a) Review the appeal record, including all documents and records to be used at the hearing, prior to the date of the hearing and during the hearing;

      (b) Bring witnesses to testify;

      (c) Establish all relevant facts and circumstances;

      (d) Present an argument without undue interference; and

      (e) Question or refute any testimony or evidence, including the opportunity to confront and cross-examine an adverse witness.

      (3) The DAH shall:

      (a) Consider the information used to determine an appellant’s eligibility;

      (b) Consider additional relevant evidence presented during the course of the appeal, including at the hearing; and

      (c) Review the appeal without deference to a prior decision in the appeal case.

      (4) A hearing shall be conducted:

      (a) In accordance with the requirements of KRS 13B.080 and KRS 13B.090;

      (b) At a reasonable date, time, and location or format;

      (c) After notice of the hearing provided pursuant to subsection (1) of this section;

      (d) Consistent with subsection (3) of this section; and

      (e) By one (1) or more impartial hearing officers[officials] who have not been directly involved in the eligibility determination or any prior appeal decision in the same matter.

      (5) Unless a request is made by an appellant for an in person hearing, the hearing shall be conducted via telephone.

 

      Section 11. Expedited Appeals. (1) An appellant shall have the right to an expedited appeal if:

      (a) There is an immediate need for a health service; and

      (b) The standard appeal process described in Section 10 of this administrative regulation could seriously endanger the appellant’s life, health, or ability to attain, maintain, or regain maximum function.

      (2) An expedited appeal shall be requested in the same manner as a standard appeal as set forth in Section 5 of this administrative regulation.

      (3) If an expedited appeal is requested, an appellant shall submit evidence of the reason for the expedited appeal.

      (4) If an appeal request under this section is denied by the DAH, the DAH shall:

      (a) Conduct the appeal under the standard appeal process as set forth in Section 10 of this administrative regulation;

      (b) Inform the appellant through electronic or oral notification, if possible, of the denial within the timeframes established by the secretary of HHS; and

      (c) If notification is oral, follow up with the appellant by written notice.

      (5) A written notice pursuant to subsection (4)(c) of this section shall include:

      (a) The reason for the denial;

      (b) An explanation that the appeal request will be transferred to the standard process described in Section 10 of this administrative regulation; and

      (c) An explanation of the appellant’s rights under the standard process in Section 10 of this administrative regulation.

 

      Section 12. Withdrawal of an Appeal. If an appellant wants to withdraw an appeal, the appellant shall withdraw a request for an appeal:

      (1) In writing to KOHBIE[KOHBHIE];

      (2) By phone by contacting the kynect contact center;

      (3) Orally to KOHBIE[KOHBHIE] staff during an informal resolution process described in Section 6 of this administrative regulation; or

      (4)[(3)] Orally to the hearing officer during an appeal proceeding.

 

      Section 13. Hearing Decision. (1) After the hearing is concluded or a decision is made not to reverse a[an administrative] dismissal of an appeal, the hearing officer shall issue a recommended order in accordance with the requirements of KRS 13B.110.

      (2) A recommended order rendered by the DAH shall be based only on the:

      (a) Information and evidence specified in 45 C.F.R. 155.535(e);

      (b) Eligibility requirements in 900 KAR 10:030;[and]

      (c) Eligibility requirements under 45 C.F.R. 155.300 to 155.355; and

      (d) Record of the appeal and hearing.

      (3) A recommended order shall:

      (a) Be sent to the appellant and the appellant’s authorized representative, if applicable, and KOHBIE[KOHBHIE][KBHE];

      (b) State the decision;

      (c) Include a plain language description of the effect of the decision on an appellant’s eligibility;

      (d) Summarize the facts relevant to the appeal;

      (e) Identify the legal basis, including an administrative regulation that supports the decision; and

      (f) State the effective date of the decision.

      (4) If either the appellant or KOHBIE[KOHBHIE][KHBE] is dissatisfied with the recommended order, either party shall have fifteen (15) days from the date the recommended order is mailed to file exceptions to the recommendations with the secretary of the Cabinet for Health and Family Services.

      (5) The secretary of the Cabinet for Health and Family Services shall consider the appeal record, including the recommended order and any exceptions filed to a recommended order, in accordance with KRS 13B.120.

      (6) The secretary of the Cabinet for Health and Family Services shall:

      (a) Accept the recommended order of the hearing officer and adopt it as the agency’s final order;

      (b) Reject or modify, in whole or in part, the recommended order; or

      (c) Remand the matter, in whole or in part, to the hearing officer for further proceedings as appropriate.

      (7) The secretary of the Cabinet for Health and Family Services shall:

      (a) Issue written notice of the final order to the appellant which includes the appellant’s rights to a judicial review afforded under KRS 13B.140 within ninety (90) days of the date an appeal request under Section 5 of this administrative regulation is received;

      (b) In the case of an appeal request submitted under Section 11 of this administrative regulation that is determined to meet the criteria for an expedited appeal, issue the final order as expeditiously as:

      1. The appellant’s health condition requires; and

      2. Reasonably possible, consistent with the timeframe established by the secretary of HHS; and

      (c) Provide notice of the appeal decision and instructions to cease pended eligibility to:

      1. The appellant, if applicable; and

      2. KOHBIE[KOHBHIE][KHBE].

      (8) Upon receipt of a notice described in subsection (7) of this section, the KOHBIE[KOHBHIE][KHBE] shall:

      (a) Implement the appeal decision:

      1. Retroactive to the date the incorrect eligibility determination was made; or

      2. At a time determined under 45 C.F.R. 155.330(f); and

      (b) Redetermine the eligibility of a household member who has not appealed an eligibility determination but whose eligibility may be affected by the appeal decision, in accordance with the standards described in:

      1. 900 KAR 10:030; and

      2. 45 C.F.R. 155.305.

 

      Section 14. Right to Appeal to HHS. (1) If an appellant disagrees with an appeal decision made in accordance with Section 13 of this administrative regulation or notice of denial of a request to vacate a dismissal under Section 9(3)(b) of this administrative regulation, the appellant may request an appeal from HHS within thirty (30) days of the date of the appeal notice.

      (2) Upon receipt of a notice of an appeal under subsection (1) of this section, DAH shall transmit via secure electronic interface the appellant’s appeal record, including the appellant’s eligibility record received from KOHBIE[KOHBHIE][KHBE], to HHS.

      (3) An applicant or an enrollee denied a request for an exemption by HHS under 45 C.F.R. 155.625(b) may appeal the decision to HHS.

 

      Section 15. Release of Records. (1) An appellant shall have access to the information used by the KHBE to determine his or her eligibility.

      (2) An appellant shall have access to his or her appeal record:

      (a) Upon written request;

      (b) At a place and time convenient to the appellant; and

      (c) Subject to all applicable federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information.

      (3) The public shall have access to an appeal decision, subject to all applicable federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information.

 

CARRIE BANAHAN, Executive Director

AUDREY TAYSE HAYNES, Secretary

      APPROVED BY AGENCY: May 13, 2015

      FILED WITH LRC: May 14, 2015 at 4 p.m.

            CONTACT PERSON: Tricia Orme, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky 40621, phone (502) 564-7905, fax (502) 564-7573, email address tricia.orme@ky.gov.