RELATES TO: KRS Chapter 13B, 194A.025, 205.231, 205.237,
205.520, 205.8451, 210.270
42
C.F.R. 431.233,
431.244, Part
475,
475.101,
483.2,
483.12,
431 Subpart E, 483 Subpart E,
42 U.S.C.
1396n(c)
NECESSITY, FUNCTION, AND CONFORMITY: 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 to qualify for federal Medicaid
funds. This administrative regulation establishes policies and requirements
relating to an adverse action, an appeal, or a hearing regarding Medicaid
covered services that are not the responsibility of a managed care
organization.
Section 1. Definitions.
(1) "1915(c) home and community based waiver
service" means a service available or provided via a 1915(c) home and community
based waiver services program.
(2)
"1915(c) home and community based waiver services program" means a Kentucky
Medicaid program established pursuant to and in accordance with
42 U.S.C.
1396n(c).
(3) "Administrative hearing" is defined by
KRS
13B.010(2).
(4) "Appeal board" means the entity or
individual designated by the secretary of the Cabinet for Health and Family
Services to hear appeals of recommended orders or final orders following a
decision by a representative of the designated hearing agency or hearing
officer.
(5) "Applicant" means an
individual who has applied for Medicaid covered services.
(6) "Authorized representative" means:
(a) For a recipient 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 recipient or the
applicant; or
(b) A legal
guardian.
(7) "Cabinet"
means the Cabinet for Health and Family Services.
(8) "Department" means the Department for
Medicaid Services or its designee.
(9) "Designated hearing agency" means the
entity designated by the secretary of the Cabinet for Health and Family
Services to adjudicate administrative hearings.
(10) "Enrollee" means a recipient who is
enrolled with a managed care organization for the purpose of receiving Medicaid
or Kentucky Children's Health Insurance Program covered services.
(11) "Final order" is defined by
KRS
13B.010(6).
(12) "Hearing officer" is defined by
KRS
13B.010(7), and includes a
representative from a designated hearing agency.
(13) "ICF IID" means intermediate care
facility for an individual with an intellectual disability.
(14) "Managed care organization" or "MCO"
means an entity for which the Department for Medicaid Services has contracted
to serve as a managed care organization as defined in
42
C.F.R.
438.2.
(15) "Medicaid covered services" means items
or services a Medicaid recipient may receive through the Medicaid
Program.
(16) "Party" is defined by
KRS
13B.010(3).
(17) "PASRR" means preadmission screening and
resident review.
(18) "Patient
liability" means the financial obligation of a recipient towards the cost of
the recipient's nursing facility services or services provided pursuant to a
1915(c) waiver.
(19) "Provider" is
defined by
KRS
205.8451(7).
(20) "QIO" or "quality improvement
organization" means an entity that meets the requirements established in
42 C.F.R.
475.101.
(21) "Recipient" is defined by
KRS
205.8451(9).
(22) "Recommended order" is defined by
KRS
13B.010(5).
(23) "Time-limited benefits" means Medicaid
coverage which is restricted to a specified period in time.
Section 2. Informing the Recipient
of Medicaid Coverage Administrative Hearing Rights.
(1) An applicant, recipient, or authorized
representative shall be informed, in writing, of the applicant's or recipient's
right to an administrative hearing if an adverse action is taken affecting
covered services.
(2) An applicant,
recipient, or authorized representative shall be informed of the method by
which the applicant or recipient may obtain an administrative hearing and that
the applicant or recipient may be represented by:
(a) Legal counsel;
(b) A relative;
(c) A friend;
(d) A spokesperson not listed in paragraph
(a), (b), (c), (e), or (f) of this subsection;
(e) An authorized representative;
or
(f) Himself or
herself.
(3) An adverse
action notice shall contain a statement of:
(a) The Medicaid adverse action;
(b) The reason for the action;
(c) The specific federal or state law or
administrative regulation that supports the action; and
(d) An explanation of the circumstances under
which payment for services shall be continued if an administrative hearing is
requested in a timely manner pursuant to Section 5 of this administrative
regulation.
Section
3. Notification Process.
(1) An
adverse action notice regarding an applicant or a recipient shall be mailed to
the applicant, recipient, or authorized representative of the applicant or
recipient using:
(a) The United States Postal
Service; and
(b) A return receipt
requested format.
(2)
Refusal by an applicant, a recipient, or an authorized representative to
confirm receipt of an adverse action notice shall be considered receipt of the
adverse action notice.
Section
4. Request for an Administrative Hearing.
(1) An applicant, recipient, or an authorized
representative may request an administrative hearing by filing a written
request with the department.
(2) If
an applicant, recipient, or authorized representative requests an
administrative 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)
(a) Except as established in paragraphs (b)
or (c) of this subsection or subsections (2), (3), or (4) of this section, if a
request for an administrative hearing is postmarked or received within ten (10)
days of the advance notice date of denial, the individual shall remain eligible
for the care, program participation, or service denied until the date that the
final order is rendered in accordance with Section 12 of this administrative
regulation.
(b) The individual
shall not remain eligible for the care, program participation, or service
denied if:
1.
a. It is determined at the administrative
hearing that the sole issue is one of federal or state law or policy;
and
b. The department promptly
informs the individual in writing that the services shall be terminated or
reduced pending the administrative hearing decision;
2. The individual's eligibility for
time-limited benefits has expired; or
3. The individual receives in full the
specified amount of care or number of services that were authorized by the
department.
(c) Except as
established in paragraph (d) of this subsection, a request for an amount of
care or number of services subsequent to receiving a previously authorized
amount of care or number of services in full shall not be considered a
continuation of the previously authorized amount of care or number of
services.
(d) The following shall
qualify for continuation of services in accordance with paragraph (a) of this
subsection if the care, program participation, or service was previously
received by the individual within thirty (30) days of the request for
continuation:
1. Denial that an individual
meets patient status criteria to qualify for nursing facility services pursuant
to
907
KAR 1:022;
2. Denial that an individual meets patient
status criteria to qualify for ICF IID services pursuant to
907
KAR 1:022;
3. Denial that an individual meets nursing
facility level of care criteria, nursing facility patient status criteria, or
ICF IID patient status criteria pursuant to
907
KAR 1:022 to qualify for 1915(c) home and community
based waiver services; or
4. Denial
of a 1915(c) home and community based waiver service.
(2) 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.
(3) Time-limited
benefits shall not be extended based on a request for an administrative
hearing.
(4) If a request for an
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, the department shall continue to reimburse for
nursing facility services until the date that the final order is
rendered.
Section 6.
Notice of Scheduled Hearing.
(1) A scheduled
administrative hearing notice shall contain:
(a) The date, time, and place of the
scheduled administrative hearing; and
(b) A statement that the local Department for
Community Based Services office provides information regarding the availability
of free representation by legal aid or a welfare rights organization within the
community.
(2) An
administrative hearing shall be conducted within thirty (30) days of the date
of the request for an administrative hearing unless otherwise authorized by the
representative of the designated hearing agency.
(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
(c) Submit additional information in support
of the applicant's or recipient's claim.
(4)
(a) If
an administrative hearing involves medical issues, 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 established in
writing.
Section
7. Conduct of an Administrative Hearing.
(1) An administrative hearing shall be
conducted in accordance with the requirements of KRS Chapter 13B.
(2) A hearing officer shall be impartial and
shall disqualify himself or herself as required by
KRS
13B.040.
(3) An administrative hearing shall be
conducted in-state where the recipient or authorized representative may attend
without undue inconvenience.
(4) A
representative of the designated hearing agency shall offer to transmit a
recommended order by electronic format.
(5) If necessary to receive full information
on the issue, a representative of the designated hearing agency may examine
each party who appears and the party's witnesses.
(6)
(a) A
representative of the designated hearing agency may reopen the administrative
hearing and take additional evidence as is deemed necessary.
(b) Evidence shall be taken in accordance
with the provisions of
KRS 13B.080
and
13B.090.
Section 8. Designation of Alternative Hearing
Agency and Appeal Board.
(1) The secretary of
the cabinet may:
(a) Select a designated
hearing agency; or
(b) Create a
designated hearing agency.
(2) A designated hearing agency shall:
(a) Be composed of cabinet employees who
shall serve as hearing officers; and
(b) Follow all requirements established
pursuant to KRS Chapter 13B.
(3) The secretary of the cabinet may:
(a) Select an appeals board; or
(b) Create an appeals board.
(4) An appeals board shall follow
all requirements established pursuant to KRS Chapter 13B and
KRS
194A.025.
Section 9. Withdrawal or Abandonment of
Request.
(1) A recipient or authorized
representative:
(a) May withdraw the appeal
for an administrative hearing prior to the release of the hearing officer's
decision; and
(b) Shall be granted
the opportunity to discuss withdrawal with the recipient's legal counsel or
authorized representative prior to finalizing the action.
(2) An administrative hearing request shall
be considered abandoned if the recipient or authorized representative fails
without prior notification to report for the administrative hearing.
Section 10. Recommended Order.
(1) After an administrative hearing is
concluded, the hearing officer shall issue a recommended order in accordance
with
KRS
13B.110.
(2)
(a) A
recommended order shall be issued within thirty (30) days of the administrative
hearing date, except for a recommended order regarding:
1. A nursing facility level of care or
patient status decision;
2. An ICF
IID patient status decision;
3. A
nursing facility level of care, nursing facility patient status, or ICF IID
patient status decision related to 1915(c) home and community based waiver
program participation; or
4. A
1915(c) home and community based waiver service.
(b) A recommended order regarding an item
listed in paragraph (a) of this subsection shall be issued within fifteen (15)
calendar days of the administrative hearing date.
(3)
(a) A
copy of the recommended order shall be:
1.
Mailed to each party in accordance with
KRS
13B.110(4); or
2. Sent by electronic means to any party
which requests, during the administrative hearing, that the order be sent by
electronic means.
(b) If
requested during the administrative hearing, a copy of the recommended order
shall be electronically transmitted to a site specified by the applicant or
recipient on the date the recommended order is
rendered.
Section
11. Exceptions to a Recommended Order.
(1) Filing an exception to a recommended
order shall be the same as filing a request for review of a local evidentiary
hearing decision as established in
42
C.F.R.
431.233.
(2)
(a) A
party may file an exception to a recommended order in accordance with
KRS
13B.110(4).
(b) If a party wishes to file an exception to
the recommended order, the exception shall be filed with the Cabinet for Health
and Family Services, Division of Administrative Hearings within fifteen (15)
days from the date that the recommended order is
mailed.
Section
12. Final Order or Review of Recommended Order.
(1) The secretary of the Cabinet for Health
and Family Services or other party authorized by
KRS
13B.010 shall issue a final order:
(a) Within ninety (90) days from the date of
the request for an administrative hearing; or
(2)
(a) In
accordance with
42
C.F.R.
431.233, unless a recipient requests a
de novo hearing, the review of a recommended order shall consist of a cabinet
level review of the record of the administrative hearing.
(b) If an exception to a recommended order
was not filed, the information in the record considered in the cabinet level
review or final order shall be limited to the information considered at the
administrative hearing.
(c) If a
recipient requests a de novo hearing, at the de novo hearing either party may
offer:
1. Evidence not presented at the
hearing below; and
2. The
evidentiary record of the fair hearing.
Section 13. Judicial Review of a Final Order.
(1) A further appeal at the circuit court
level may be initiated within thirty (30) days from the date of mailing of the
final order in accordance with
KRS
13B.140 and
13B.150.
(2) Information regarding free legal aid and
welfare rights organizations may be obtained in accordance with Section 6(1)(b)
of this administrative regulation.
Section 14. 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:
(a) Remain in a nursing facility
or an ICF IID during the circuit court appeal process, the department shall
reimburse for the nursing facility services or ICF IID services which occurred
during the circuit court appeal process; or
(b) Receive a 1915(c) home and community
based waiver service during the circuit court appeal process, the department
shall reimburse for the service which occurred during the circuit court appeal
process.
Section
15. Special Procedures Relating to a Managed Care Participant.
(1) For an adverse action toward an enrollee
regarding a service that is within the scope of managed care, the requirements
governing the MCO internal appeal process and the department's hearing process
for the enrollee shall be as established in
907
KAR 17:010.
(2) For an adverse action by the department
toward an enrollee regarding a service that is not within the scope of managed
care, the appeals policies and requirements established in this administrative
regulation shall apply.
Section
16. 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; or
(c) $300 for
preparatory work and briefs and all other matters incident to an appeal to the:
1. Court of Appeals; or
2. Supreme Court of Kentucky.
(2)
(a) Enforcement of payment of a fee shall:
1. Not be a matter for the department or the
cabinet; and
2. Be a matter between
the counsel or agent and the recipient.
(b) The fee shall not be deducted from a
public assistance payment otherwise due and payable to the recipient.
(3)
(a) The fee limitations stated in subsection
(1) of this section shall:
1. Apply to the
amount an attorney may charge a recipient or applicant; and
2. Not apply to the amount an attorney may
collect from another entity or person who represents the recipient or applicant
in all categories of Medicaid.
(b) The amount an attorney may collect from
an entity or person who is not a recipient or applicant for representing the
recipient or applicant in all categories of Medicaid shall:
1. Be a matter between the attorney and other
entity or person; and
2. Not be a
matter that involves the department or cabinet.
Section 17. Hearings and Appeals
for Individuals with an Intellectual Disability Residing in State Institutions.
A hearing or an appeal relating to a decision to reclassify or transfer a
person with an intellectual disability in a state institution shall be in
accordance with the requirements of
KRS
210.270 and
907
KAR 1:075.
Section
18. Burden of Proof. The party bearing the burden of proof shall
be determined in accordance with
KRS
13B.090(7).