907 KAR 1:563. Medicaid covered services hearings and appeals.

907 KAR 1:563. Medicaid covered services hearings and appeals.

RELATES TO: KRS Chapter 13B, 194.025, 205.231, 205.237, 42 C.F.R. 483.12, 431 Subpart E, 483 Subpart E, 42 U.S.C. 1396

STATUTORY AUTHORITY: KRS 194A.030(2), 194A.050(1), 205.520(3), EO 2004-726

NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective July 9, 2004, reorganized the Cabinet for Health Services and placed the Department for Medicaid Services and the Medicaid Program under the Cabinet for Health and Family Services. The Cabinet for Health and Family Services has responsibility to administer the Medicaid Program. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with a requirement that may be imposed or opportunity presented by federal law for the provision of medical assistance to Kentucky's indigent citizenry. This administrative regulation establishes provisions relating to the Medicaid covered services hearing and appeal process for applicants and recipients.

Section 1. Definitions. (1) "Applicant" means an individual who has applied for covered services.

(2) "Authorized representative" means an individual or guardian acting on behalf of a recipient.

(3) "Department" means the Department for Medicaid Services or its designee.

(4) "Medicaid covered services" means items or services a Medicaid recipient may receive through the Medicaid Program.

(5) "Member" means a Medicaid recipient who is enrolled in a partnership or a managed behavioral healthcare organization.

(6) "Peer review organization" means a federally designated organization that is performing the utilization review functions for the department.

(7) "Recipient" means an individual who receives Medicaid.

(8) "Secretary" means the Secretary of the Cabinet for Health and Family Services.

(9) "Time-limited benefits" means Medicaid coverage which is restricted to a specified period in time.

Section 2. Informing the Recipient of Medicaid Coverage Hearing Rights. (1) An applicant, recipient or guardian shall be informed of his right to a cabinet level administrative hearing in writing if an adverse action is taken affecting covered services.

(2) An applicant, recipient or guardian shall be informed of the method by which he may obtain a hearing and that he may be represented by:

(a) Legal counsel;

(b) A relative;

(d) Other spokesperson;

(e) Authorized representative; or

(f) Himself.

(3) The notice shall contain a statement of:

(a) The Medicaid adverse action;

(b) The reason for the action;

(d) An explanation of the circumstances under which payment for services shall be continued if a hearing is requested timely in accordance with Section 5 of this administrative regulation.

Section 3. Notification Process. (1) An adverse notice shall be mailed to an applicant or a recipient using the United States Postal Service.

(2) An adverse notice to an applicant, recipient or responsible party covered under Section 5(1) of this administrative regulation shall be sent using a return receipt requested format.

Section 4. Request for a Hearing. (1) An applicant, recipient or an authorized representative may request a hearing by filing a written request with the department.

(2) If an applicant, recipient or authorized representative requests a hearing, the request shall:

(a) Be in writing and clearly specify the reason for the request;

(b) Indicate the date of service or type of service for which payments may be denied; and

(c) Be postmarked within thirty (30) calendar days from the date of the department’s written notice of adverse action of:

1. Discontinuance of services;

2. Adverse determination made with regard to the PASRR requirements of 42 U.S.C. 1396r(e); or

3. Patient liability.

Section 5. Continuation of Medicaid Covered Services. (1) If the request for a cabinet level administrative hearing is postmarked or received within ten (10) days of the advance notice date of denial specified on the notice for denial of level of care, a Medicaid vendor payment for nursing facility, intermediate care facility for the mentally retarded and developmentally disabled, or home- and community-based waivers services shall continue until the date the final cabinet level hearing decision order is rendered in accordance with Section 9 of this administrative regulation.

(2) Subsection (1) of this section shall not apply to a Medicaid Program service not stated in subsection (1) of this section.

(3) Subsection (1) of this section shall not apply if the Medicaid Program service has been reduced or discontinued as a result of a change in law or administrative regulation.

(4) Time-limited benefits shall not be extended based on a request for a hearing.

(5) If the request for a cabinet level administrative hearing is postmarked or received from a recipient within ten (10) days of the advance notice of an adverse PASRR determination made in the context of a resident review, a Medicaid vendor payment for nursing facility services shall continue until the date the cabinet level administrative hearing decision is rendered.

Section 6. Notice of Scheduled Hearing. (1) The scheduled hearing notice shall contain:

(a) The date, time and place of the scheduled hearing; and

(b) A statement that the local Department for Social Insurance office provides information regarding the availability of free representation by legal aid or a welfare rights organization within the community.

(2) A cabinet level administrative hearing shall be conducted within thirty (30) days of the date of the request for a hearing and a decision shall be issued within thirty (30) days of the hearing date, except that a hearing decision regarding vendor payments to the following shall be issued within fifteen (15) days:

(a) Nursing facilities;

(b) Intermediate care facility for the mentally retarded and developmentally disabled; or

(3) An applicant or recipient shall receive notice consistent with KRS 13B.050 including the right to:

(a) Legal counsel or other representation;

(b) Review the case record relating to the issue; and

(4) If the hearing involves medical issues:

(a) A medical assessment by an independent physician participating in the Medicaid Program shall be obtained at the department's expense if the hearing officer considers it necessary based on case record review;

(b) If an independent physician assessment at the department’s expense is requested by the recipient or authorized representative and is denied by the hearing officer, notification of the reason for denial shall be set forth in writing.

Section 7. Conduct of a Hearing. (1) The cabinet level administrative hearing shall be conducted in accordance with the requirements of KRS 13B.080 and 13B.090.

(2) Impartiality. The cabinet level hearing officer shall be impartial and shall disqualify himself as required by KRS 13B.040.

(3) The cabinet level administrative hearing shall be conducted in-state where the recipient or authorized representative may attend without undue inconvenience.

(4) The hearing officer shall offer to transmit the hearing decision by electronic format.

(5) If necessary to receive full information on the issue, the administrative hearing officer may examine each party who appears and his witnesses.

(6) The administrative hearing officer may reopen the hearing and take additional evidence as is deemed necessary. Evidence shall be taken in accordance with the provisions of KRS 13B.080 and 13B.090.

Section 8. Withdrawal or Abandonment of Request. (1) The recipient or authorized representative:

(a) May withdraw the appeal for a hearing prior to the release of the hearing officer's decision; and

(b) Shall be granted the opportunity to discuss withdrawal with his legal counsel or representative prior to finalizing the action.

(2) Abandonment of request. A hearing request shall be considered abandoned if the recipient or authorized representative fails without prior notification to report for the hearing.

Section 9. The Cabinet Level Decision. (1) After the hearing is concluded, the hearing officer shall issue a recommended decision.

(2) Exceptions shall be filed with the cabinet within fifteen (15) days from the recommended decision.

(3) A final order shall be issued within ninety (90) days from the date of the request for a hearing.

(4) A copy of the recommended decision and a copy of the final order shall be mailed to the recipient and his representative.

(5) If requested during the hearing, a copy of the recommended decision and the final order shall be electronically transmitted on the dates the recommended decision is rendered and the date the final order is rendered to a site specified by the applicant or recipient.

Section 10. Appeal of Cabinet Level Hearing Decision. (1) The final order, with respect to the issue considered, shall be final regarding continuation of vendor payments.

(2) Further appeal at the circuit court level may be initiated within thirty (30) days from the date of mailing of the decision in accordance with KRS 13B.140 and 13B.150.

(3) Information regarding free legal aid and welfare rights organizations may be obtained in accordance with Section 6(1) of this administrative regulation.

Section 11. Medicaid Case Actions Following Circuit Court Level Appeal Decision. (1) For a reversal involving a reduction of Medicaid coverage, action shall be taken to restore services within ten (10) days of the receipt of the circuit court decision.

(2) If a recipient continues to remain in or continue to receive services from a nursing facility, intermediate care facility for the mentally retarded and developmentally disabled, or community-based waiver services, a vendor payment shall be authorized to reimburse the provider for services rendered during the circuit court appeal process.

Section 12. Special Procedures Relating to A Managed Care Participant. (1) A Medicaid recipient shall be informed in writing of the requirements for making a complaint, filing a grievance and requesting a hearing:

(a) By the partnership in which a member is enrolled in accordance with 907 KAR 1:705; and

(b) By the managed behavioral healthcare organization in which a member is enrolled in accordance with 907 KAR 1:710.

(2) If the decision of the partnership or the managed behavioral healthcare organization is adverse to the member, the member or his authorized representative:

(a) May request a hearing regarding the action or inaction on the part of the partnership, the managed behavioral healthcare organization or its subcontracted provider to the department in accordance with Section 3 of this administrative regulation; and

(b) Shall not be required to employ or exhaust the other complaint or grievance resolution processes contained within the partnership or managed behavioral healthcare organization plan.

(3) A cabinet level appeal shall be processed as established in Sections 3, 4, 6, 7, 8, and 9 of this administrative regulation.

Section 13. Limitation of Fees. (1) Pursuant to KRS 205.237, the maximum fee that an attorney may charge the applicant or recipient for the representation in all categories of Medicaid shall be:

(a) Seventy-five (75) dollars for preparation and appearance at a hearing before a hearing officer;

(b) $175 for preparation and presentation, including a pleading and appearance in court, of an appeal to the circuit court;

(2) Enforcement of payment of the fee shall be a matter entirely between the counsel or agent and the recipient. The fee shall not be deducted from a public assistance payment otherwise due and payable to the recipient.

Section 14. A hearing or an appeal relating to a decision to reclassify or transfer a person with mental retardation in a state institution shall be in accordance with the requirement of KRS 210.270.

Section 15. Burden of Proof. The party bearing the burden of proof shall be determined in accordance with KRS 13B.090(7). (25 Ky.R. 731; Am. 1058; eff. 10-21-98.)