The EOHHS Hearing Office is bound by federal and/or state
law and regulations to recognize the unique appeal provisions applicable to
persons participating in the following programs and/or delivery systems.
2.4.1
AID PENDING
A. See § 2.2.2 of this Part for
additional information related to the continuation or reinstatement of Aid
Pending the resolution of an appeal.
B. HSRI - Commercial Health Insurance through
HSRI Renewals.
1. HSRI. Aid Pending is
available to customers who appeal an eligibility redetermination. Eligibility
redetermination shall be defined in accordance with
45 C.F.R. §
155.330(e)(1)(ii) (December
22, 2016) and
45 C.F.R. §
155.335(h)(1)(ii) (March 8,
2016) not to include later amendments thereto. Aid Pending is available to
customers who appeal eligibility redetermination.
C. For appeals pertaining to General Public
Assistance (GPA), a written request for hearing made within the ten (10) day
advance notice period and must be accompanied by or include a written request
for continuation of GPA to stay the reduction, suspension, or discontinuance
until the administrative fair hearing decision is issued. Only at the
applicant/recipient's specific written request must the agency continue GPA
benefits.
D. If an appeal of
resident discharge or transfer is filed within ten (10) days from the date of
the notice of intended action, a resident may continue residing in the facility
until the EHO administrative hearing decision is issued.
2.4.2
MEDICAID MANAGED CARE PLAN
APPEALS - EOHHS
A. Medicaid
beneficiaries enrolled in certain managed care delivery systems must attempt to
resolve disputes unrelated to eligibility (disenrollment, prior authorization
denial, change in the amount of a covered service, access to a particular
provider, etc.) through the managed care plan's grievance and appeal process
before requesting a hearing through the EHO.
B. The timelines for filing an appeal listed
in the table in §2.3.2(H) of this Part are suspended while the matter is
on review with the managed care plan. However, a Medicaid beneficiary retains
the right to request an Administrative Fair Hearing through the EHO, in
accordance with the provisions set forth in § 2.3.1 of this Part if the
matter remains unresolved after exhausting all remedies available through the
managed care plan's grievance and appeals process. The final federal managed
Medicaid rules allow beneficiaries 120 calendar days to request a fair
hearing.
C. The rules governing
grievances and appeals may vary by type of managed care plan and population
served and are specified accordingly in the applicable sections of the MCAR as
follows:
Medicaid Managed Care Appeals Not Related
to Eligibility
|
Medicaid Managed Care Delivery
System
|
Managed Care Plan Grievance and Appeal
Process
|
Applicable Parts
|
a) RIte Care Plans - Neighborhood Health Plan,
United and Tufts
|
Medicaid beneficiary once enrolled as a plan
"member" must exhaust plan grievance and appeal process before requesting
hearing through EHO.
|
210-RICR- 30-05-2
Scope of Services Plan Appeal Process Member
Rights
|
b) Rhody Health Partners - Medicaid Affordable
Care Coverage Group Adults Age 19-64
|
Medicaid beneficiary once enrolled as a plan
"member" must exhaust plan grievance and appeal process before requesting
hearing through EHO.
|
210-RICR- 30-05-2
Scope of Services Plan Appeal Process Member
Rights
|
c) RIte Share Premium Assistance Program
|
Medicaid beneficiary must appeal issues in
accordance with commercial plan appeals and grievance process. Appeals on all
other matters, including cost- sharing and failure to enroll, and any coverage
issues that remain unresolved must be made to EHO.
|
210-RICR- 30-05-3
Scope of Program Program and cooperation
requirements
|
d) Rhody Health Partners - Persons who are aged,
blind or with disabilities
|
Medicaid beneficiary must exhaust levels I and II
of managed care plan's grievance and appeals process before requesting a
hearing through EHO.
For MCO contracts starting on July 1, 2017,
Medicaid beneficiary must exhaust one level of managed care plan's grievance
and appeals process before requesting a hearing
|
§ 40-10-1 of this Title, RHP Benefit
Package
§ 40-10-1.2.6 of this Title, Grievances,
Appeals and Hearings
|
e) Community Health Team - RI.
|
Medicaid beneficiary must file appeals related to
medical services directly to the EHO. If contracted entity, overseeing delivery
option, fails to resolve non-medical formal appeals within set timelines,
Medicaid beneficiary may request hearing through EHO.
|
§ 40-10-1.26.3 of this Title, Service
Delivery Options
§ 40-10-1.41.7 of this Title, Grievances,
Appeals and Hearings
|
f) Medicare Medicaid Plan (MMP)
|
Medicaid/Medicare beneficiary must exhaust level
I of managed care plan's appeals process before requesting a hearing through
EHO for Medicaid services or overlap services covered by both Medicare and
Medicaid.
|
§ 40-10-1.41.8 of this Title, MMP Benefit
Package
§ 40-10-1.41.7 of this Title, Grievances,
Appeals, and Hearings
|
2.4.3
EXPEDITED APPEAL - MEDICAID,
HSRI, LTSS, SNAP
A. A Medicaid
appellant may request an expedited appeal in circumstances when the matter in
dispute cannot reasonably be resolved during the standard appeals process
without jeopardizing the appellant's life, health, or ability to obtain the
services required to attain, maintain, or regain maximum function.
B. A long-term services and supports (LTSS)
expedited appeal may also be granted in instances in which a state licensed
nursing facility or assisted living residence initiates a transfer or discharge
of a resident due to either:
1. the planned
closure of the facility/residence; or
2. the resident has failed, after reasonable
and appropriate notice, to pay for a stay in the facility/residence.
C. An HSRI customer may request an
expedited appeal when there is an immediate need for health services because
the standard appeal could jeopardize the appellant's life, health, or ability
to attain, maintain, or regain maximum function.
D. A request for an expedited appeal shall
include information supporting the claim that a standard appeal could
jeopardize the appellant's life, health, safety, welfare, or ability to attain,
maintain or regain maximum function.
E. The EOHHS Hearing Office shall review all
expedited appeal requests upon receipt and, as appropriate, require the agency
or LTSS provider that initiated the action to prepare and return a response to
the EHO in three (3) business days or less in instances involving dual-eligible
beneficiaries enrolled in Medicaid managed care. (See § 2.4.3(F) of this
Part).
F. If the EHO exercises its
reasonable discretion and grants an expedited appeal, hearings are scheduled as
follows:
1. Health Coverage Appeals - In
instances in which the appellant is enrolled in affordable care coverage (QHP
through HSRI or Medicaid) or is being involuntarily discharged/transferred from
a long-term care facility in the circumstances indicated in
§§2.4.8(C) and (D) of this Part, the hearing must be scheduled
expeditiously and the decision must be issued without undue delay, taking into
account the appellant's condition, the immediacy of the need for the health
care access or coverage in dispute, and the extent to which any delays in the
adjudication process may jeopardize the well-being or pose risks to the
appellant or affect the efficacy of the health care access or coverage in
dispute.
2. Dually Eligible
Beneficiaries - If the appellant is a dually eligible Medicare-Medicaid
beneficiary, a hearing must be scheduled immediately and appeal must be
resolved in no more than three (3) business days from the date the EHO received
the expedited appeal request.
G. If the request for an expedited appeal is
denied, the EHO shall notify the appellant of this decision without undue delay
by either telephone or other commonly available electronic media; a letter
shall also be sent to the appellant explaining the reasons for the denial.
Denial of a request for an expedited appeal does not delay or otherwise disrupt
the timeline for resolving the dispute through the standard appeal
process.
H. EHO shall expedite
hearing requests from households, such as migrant farmworkers, that plan to
move from Rhode Island before the administrative hearing decision would
normally be reached. Hearing requests from these households shall be processed
faster than others if necessary to enable them to receive an administrative
hearing decision and restoration of benefits if the administrative hearing
decision so indicates before they leave Rhode Island.
I. SNAP. The State agency shall expedite
hearing requests from households, such as migrant farmworkers, that plan to
move from the jurisdiction of the hearing official before the hearing decision
would normally be reached. Hearing requests from these households shall be
processed faster than others, if necessary, to enable them to receive a
decision and a restoration of benefits if the decision so indicates before they
leave the area.
2.4.4
HSRI FEDERAL REVIEW OPTION
A. As
the state entity recognized by the U.S. Department of Health and Human Services
(DHHS) for implementing the federal components of the ACA, HSRI, and the EHO
acting as the appeal entity on the agency's behalf, shall afford appellants
certain specific rights prior to and after an administrative hearing decision
is rendered.
B. If related to an
HSRI action, the EHO shall provide an explanation of the appellant's right to
pursue the appeal before the federal DHHS appeals entity within thirty (30)
days of the date of the notice of the administrative hearing decision. The
federal DHHS appeals process provides the appellant with an additional
opportunity for informal resolution and a formal administrative
hearing.
C. As applicable, EHO
shall transmit, via secure electronic interface, the appellant's appeal record,
including the appellant's records from HSRI, to the DHHS appeals entity. The
appellant shall also be informed that seeking federal review is not a
prerequisite for seeking judicial review unless or until a court with
appropriate jurisdiction finds otherwise.
1.
Upon receiving notice from the EHO of an administrative hearing decision
overturning an agency action, the HSRI shall promptly implement the
administrative hearing decision. Specifically, such an administrative hearing
decision shall be effective:
a.
Prospectively, on the first day of the month following the date of the notice
of appeal decision, or consistent with
45 C.F.R. §§
155.330(f)(2) or (3) (2012) (not including later amendments)
and in accordance with R.I. Gen. Laws §§
42-35-3.2(a)(1) and
(d); or
b. Retroactively, to the date the incorrect
agency action became effective, at the option of the
appellant.
2. HSRI must,
pursuant to
45 C.F.R. §
155.545(c)(2) (2012) (not
including later amendments) and in accordance with R.I. Gen. Laws §§
42-35-3.2(a)
(1) and (d)) redetermine the eligibility of
household members who have not appealed the agency action, but whose
eligibility for coverage and/or advanced premium tax credits or reductions in
cost sharing may be affected by the appeal decision, in accordance with the
standards specified in
45 C.F.R.§
155.305 (2012) not including later
amendments.
3. IRS Role - Decisions
related to an award or level of advance premium tax credits must include a
plain-language statement that the final calculation of tax credits is conducted
by the federal Internal Revenue Service (IRS) through the reconciliation
process, in accordance with section 36B(f) of the Internal Revenue Code (26 U.S.C. §
36B(f)), and
that decisions or interpretations of the EHO are not binding against the IRS
during that process.
2.4.5
HSRI SMALL BUSINESS HEALTH
OPTIONS PROGRAM ("SHOP")
A. HSRI
operates the SHOP to provide small employers with the opportunity to offer
their employees with the option to obtain affordable health coverage through
one or a choice of qualified health plans. The EHO has been designated as the
entity responsible for handling appeals of SHOP actions initiated by SHOP
employers and employees.
B. All
SHOP employer and employee valid appeal hearings shall be conducted in
accordance with
45 C.F.R. §
155.740, 45 C.F.R. §§
155.505(e) through (g) (2012) not including later amendments, and
45 C.F.R. §§
155.510(a)(1), (a)(2), and (c) (2012) not including later amendments.
1. An employer or employee wishing to appeal
denial of eligibility by HSRI shall do so within ninety (90) days of the date
on the notice of the action being taken by the agency. Such appeals may be
filed through the EHO or the HSRI Contact Center by mail, telephone, or in
person.
C. SHOP
appellants, whether an employer or employee, have the right to request an
alternative form of dispute resolution known as a "desk review" in lieu of an
in-person hearing. In this option, the administrative hearing officer reviews
written submissions and evidence provided by the appellant and agency
representative(s) and any applicable statutes, rules and regulations used as
the basis for the agency action. The hearing officer then issues an appeal
decision based on the findings of this review.
1. To request a desk review, the appellant
shall notify the EHO or HSRI Contact Center in advance and as follows:
a. If the hearing has already been scheduled,
the request for the desk review shall be provided to the EHO or HSRI in no less
than five (5) business days before the hearing date. In such cases, the written
submissions from both parties - agency and appellant - shall be provided to the
EHO on the day the hearing is scheduled to occur.
b. If the hearing has not yet been scheduled,
the appellant may request the desk review at any time. Written submissions in
such instances are due to the EHO within ten (10) days of the date the request
is made or at such other time as may be agreed to by the affected party, the
agency, and the EHO.
2.
Upon requesting a desk review, the appellant forfeits the opportunity for an
in-person hearing. The agency and the EHO are responsible for ensuring that the
appellant is aware that the in-person hearing option has been forfeited and
provide information related to any US DHHS and judicial review
opportunities.
2.4.6
DHS OFFICE OF REHABILITATIVE
SERVICES - APPEAL DECISION REVIEW AND IMPLEMENTATION
A. The Office of Rehabilitative Services, of
the Rhode Island Department of Human Services, sets forth the due process
procedures and process for handling contested agency actions, including
opportunities for pre-settlement conferences as provided for in ORS rules and
regulations. Either party in an ORS contested agency action may request a
review of the appeal decision of the hearing officer within twenty (20) days
after the date the decision is rendered. If neither party requests this review,
the decision of the hearing officer becomes the final decision of the agency on
the 21st calendar day after the decision is issued.
B. Director's Review - The impartial review
of the hearing officer's decision when requested is conducted by the Director
of the Department of Human Services.
1.
Review Standards -The following standards of review apply when conducting a
review of the appeal decision and the agency action in dispute:
a. Evidence. Each party is given an
opportunity for the submission of additional evidence and information relevant
to the issue;
b. Basis for
Decision. The reviewing official is prohibited from overturning or modifying
the decision of the hearing officer, or part of the decision that supports the
position of the applicant or eligible individual, unless the Director
concludes, based on clear and convincing evidence, that the decision of the
hearing officer is clearly erroneous and contrary to:
(1) The approved ORS State Plan;
(2) The Rehabilitation Act of 1973,
29 U.S.C. §
701 et seq. as amended, including
regulations, rules, policies, or procedures that are consistent with
implementing the Act; or
2. The DHS Director shall render a final
decision within thirty (30) days of the initial request to review.
3. The reviewing official shall provide a
written decision to both parties.
C. If a party brings a civil action to
challenge a final decision of an impartial hearing officer or to challenge a
final decision of the Director's review, said decision shall be implemented
pending review by the court.
D. Any
individual aggrieved by the final agency decision may:
1. Bring a civil action for review of such
decision in a United States district court of competent jurisdiction without
regard to the amount in controversy, or
2. File for judicial review in accordance
with R.I. Gen. Laws §
42-35-15 as amended by filing a complaint in the Superior Court of Rhode
Island.
2.4.7
DHS CHILD SUPPORT SERVICES APPEALS
A. The DHS Office of Child Support Services
(OCSS) is the state agency charged with establishing and enforcing child
support obligations. In this capacity, the OCSS is responsible for determining
the paternity of children, issuing court orders for financial and medical
support, modifying or changing orders when appropriate, and enforcing child
support obligations on the behalf of persons participating in the state's
Medicaid, RIWorks, and Child Care Assistance programs. Accordingly, program
participants have the right to dispute OCSS actions that affect their child
support through the appeal and hearing process set forth in §§
2.3 through
2.4 of this Part, with the
exceptions provided as follows:
1. As the
state's principal child support agency, OCSS appeal and hearing requests must
concern matters that are within the agency's jurisdiction. Disputes related to
eligibility or the scope, amount, and/or the duration of
benefits/assistance/services must be directed at the agency with the statutory
responsibility for administering and thus taking such actions. Therefore, for
an OCSS appeal to be considered valid, it must meet the filing requirements
established in §2.2.1(A) of this Part and address agency actions related
to:
a. Amount of support paid;
b. Date such payment was made;
c. Date such payment was received by the
applicable state agency or RI Family Court;
d. Date and amount of pass-through and/or
child support paid; and
e.
Pass-through payments that were not made and the reason for
non-payment.
B.
The OCSS sends a quarterly notice to program participants with child support
obligations that shall include, at a minimum, information about any such
actions and a participant's right to appeal and request a hearing for any that
may be in dispute and when a pass-through payment was not sent in a particular
month an explanation as to why the payment was not made.
C. In instances in which a contested agency
action proceeds to a formal administrative hearing, the appellant is advised
that the EHO shall send a written decision via US Mail that includes any
remedies required on the part of the agency or the appellant in no more than
(30) days following the close of the hearing. In the event that an OCSS action
was found to be in error, the agency shall make any corrections required and
issue a new quarterly notice containing information that reflects any changes
that have been made as a result of the appeal.
2.4.8
INSTITUTIONAL AND COMMUNITY-BASED
LONG-TERM CARE RESIDENT INVOLUNTARY DISCHARGES AND TRANSFERS
A. The Executive Office of Health and Human
Services is the single state agency for Medicaid under Title XIX of federal
law. In this capacity, the EOHHS has been designated as the appeal entity for
resident discharges and transfers initiated by state licensed and federally
certified nursing facilities and state licensed assisted living residences,
without regard to payer. All such transfer/discharges that are taken by a
provider without the written agreement or consent of the resident or the
resident's legal guardian or authorized representative are considered to be
involuntary and referred to hereinafter as such.
B. The provisions of this subpart apply only
to involuntary resident discharges and transfers and irrespective of whether
Medicare, Medicaid or private parties pay all or some of the costs for the
resident's stay. State agency actions affecting Medicaid eligibility or
Medicaid-funded long-term services and supports (LTSS) must be appealed through
the process set forth in §§
2.2 and
2.3 of this Part and/or,
where applicable, the Medicaid managed care or expedited appeal provisions set
forth in § 2.4.2 of this Part.
C. In accordance with applicable federal and
state laws, regulations and rules, an involuntary transfer or discharge may
only be initiated by a licensed entity as follows:
1. A resident transfer/discharge is permitted
under applicable federal regulations when it is necessary for medical reasons;
when the resident's health and/or safety or the health and safety of other
residents or staff is endangered if the resident remains; when a resident - or
the party responsible for the resident - has failed, after reasonable and
appropriate notice, to pay for their stay at the facility; or in the event of a
facility closure.
2. A resident
transfer/discharge may be initiated in accordance with the regulations set
forth in the RI Department of Health (RIDOH).
D. Both licensed nursing facilities and
assisted living residences must provide a formal notice of the intent to
transfer/discharge to the resident and/or resident's authorized representative.
1. If the resident has been in the facility
or residence for more than thirty (30) days, at least thirty (30) days advance
notice is required. If the resident's stay is less than (30) days, the notice
of the intent to discharge/transfer must be sent as soon as feasible prior to
the relocation date. The advance notice period begins on the fifth day from the
date notice is mailed.
2. For the
notice to be valid, it must be sent within the time limits indicated above and
include the following written in plain language:
a. The reason for the transfer;
b. The effective date of the
transfer;
c. Where the resident
will be re-located;
d. Notice to
the resident of the right to appeal and request a hearing through the EHO,
designate someone, including legal counsel, to act as an authorized
representative during the appeals process, and to review medical and other
pertinent evidence.
e. Indicate
that if the transfer/discharge is related to facility/licensure closure or
non-payment or may pose imminent risk to a resident's health, a request for an
expedited appeal should be filed within ten (10) days of the notice. The ten
(10) day period begins on the fifth day after the notice mailing
date.
f. Contact information for
both the state's Long-term Care Ombudsman and the RIDOH Center for Health
Facility Regulations for the aged. Persons with behavioral health care
conditions must be provided with information about the state's Mental Health
Advocate and contact information for the RI Department of Behavioral
Healthcare, Developmental Disabilities, and Hospitals and persons with
developmental disabilities must be provided with contact information for the
Rhode Island Disability Law Center.
E. An appeal of an involuntary discharge must
be filed in writing to the EHO during the thirty (30) day appeal period. An
expedited appeal request may be filed and determined to be valid in instances
involving non-payment by a third party (Medicaid or Medicare) and/or imminent
risk to the resident, at the discretion of the EHO, if received within ten (10)
days of the notice of the intent to transfer/discharge sent by the provider. To
ensure timely resolution of such cases, the EHO must notify the provider upon
the appeal's receipt that a written response must be prepared within the
timelines specified in §2.4.8(D)(1) of this Part.
F. The EHO must provide the nursing facility
or assisted living residence with a copy of the appeal. The provider must
prepare and return a response to the EHO in no more than seven (7) calendar
days. In instances in which the EHO has approved a request for an expedited
appeals process, the response must be prepared in accordance with the
requirements of §2.4.8(D)(1) of this Part.
G. If a resident's appeal request is
submitted within ten (10) days of the date of the notice of intent to
discharge/transfer, the resident is prohibited from being relocated pending the
decision of the hearing officer, including in instances in which a continuation
is granted beyond the date of the intended action. In all cases where the
appellant remains in the facility pending the appeal, the hearing must be
scheduled no later than thirty (30) days after the receipt of the request for
appeal by the EHO. If the appeal decision is rendered prior to the date of the
intended action but upholds the nursing facility's decision to
discharge/transfer, the resident may remain in the facility until the date of
the intended action.
H. Prior to
issuing a notice, the provider and the resident may have attempted and
exhausted all available informal dispute resolution options. Appeals to the EHO
may only occur subsequent to the sending of the notice of intended action by
the facility/residence.
I. The
administrative hearing generally will be conducted at the appellant's
facility/residence, unless otherwise requested by the appellant.
J. If not an expedited appeal, official
notice of the hearing must be sent by the EHO to all parties involved at least
ten (10) days prior to the scheduled hearing date. Expedited appeals proceed in
accordance with the provisions in section §2.4.3 of this Part.
K. The administrative hearing process
proceeds in accordance with the provisions established in §
2.3 of this Part except as
indicated herein and as follows:
1. An
appellant may request a continuance of the appeal hearing by contacting the EHO
prior to the date of the scheduled hearing. To the extent feasible, continued
hearings must be rescheduled by the EHO for a date that is within forty (40)
days from the date of the notice of intended action. The EHO may require an
appellant seeking more than one rescheduling of the same hearing to provide
good cause, as defined in §2.3.1(E)(3) of this Part. Notice of the
rescheduled hearing must be provided to the affected parties must be provided
in a minimum of two (2) business days prior to the date of the rescheduled
hearing.
2. The EHO administrative
hearing office must issue a decision in no more than ten (10) days from the
date of the hearing.
L.
In instances in which an appellant does not remain in a facility or residence
during an appeal, a hearing must be conducted as soon as feasible but not more
than ninety (90) days from the date the EHO receives the appeal. An appellant
may request in writing one or more continuance(s) that extends beyond this date
for the purposes of case preparation.
2.4.9
DCYF CHILD ABUSE AND NEGLECT
APPEALS
A. Persons contesting an action
of the Department of Children, Youth, and Families (DCYF) may file a complaint
with the agency though the Central Office or Child Protective Services, in
accordance with §
2.2 of this Part, or by-pass
the complaint process and request an administrative hearing with the agency or
the EHO.
B. In the case of a
complaint related to an indicated finding of child abuse or neglect, a
complaint sent to either the DCYF or the EHO initiates the appeal and hearing
process. The affected party must send the original complaint explaining the
manner in dispute along with the request for hearing directly to the EHO. Upon
receipt, the appeal is handled in accordance with the provisions established in
Part II related to preparation of agency response and the respective
responsibilities of the appellant, the EHO and the agency.
C. At an Administrative Hearing on such a
complaint, the EOHHS Hearing Officer determines whether the:
1. Department proved that abuse or neglect
occurred by a preponderance of evidence; and/or
2. Agency representative that made the
determination complied with all policy and procedures relating to the conduct
of such investigation(s).
D. An appeal decision must be rendered and
sent to the affected parties in no more than 120 days from the date the appeal
was filed in cases in which a finding of an abuse or neglect offense
disqualifies the appellant from employment in a child care position. For
appeals on all other issues, the decision and notice must be rendered in no
more than 180 days from the date the appeal was filed with the EHO.
2.4.10
EQUAL ACCESS TO
JUSTICE ACT (EAJA) REQUIREMENTS
A.
This section implements the statutory requirements contained in R.I. Gen. Laws
Chapter 42-92, as amended, in order to provide equal access to justice for
small businesses and individuals. This section governs the application and
award of reasonable litigation expenses to qualified parties in adjudicatory
proceedings conducted by, or under the auspices of, EOHHS.
B. It is EOHHS's policy that individuals and
small businesses are encouraged to contest unjust administrative actions in
order to further the public interest, and toward that end, such parties are
entitled to state reimbursement of reasonable litigation expenses when they
prevail in contesting an agency action which is, in fact, without substantial
justification, as defined herein.
C. As used in this subsection, the following
terms shall be construed as follows:
1.
"Party" means any individual whose net worth is less than five hundred thousand
dollars ($500,000) at the time the adversary adjudication was initiated; and
any individual, partnership, corporation, association, or private organization
doing business and located in the state, which is independently owned and
operated, not dominant in its field, and which employs one hundred (100) or
fewer persons at the time the adversary adjudication was initiated.
2. "Reasonable litigation expenses" means
those expenses which were reasonably incurred by a party in adjudicatory
proceedings, including, but not limited to, attorney's fees, witness fees of
all necessary witnesses, and other costs and expenses as were reasonably
incurred, except that:
a. The award of
attorney's fees may not exceed one hundred and fifty dollars ($150) per hour,
unless the hearing officer determines that special factors justify a higher
fee;
b. No expert witness may be
compensated at a rate in excess of the highest rate of compensation for experts
paid by this state.
3.
"Substantial justification" means that the initial position of the agency, as
well as the agency's position in the proceedings, has a reasonable basis in law
and fact.
D. Whenever a
party prevails in contesting an agency action and has provided the state agency
with timely notice of the intention to seek an award of litigation expenses as
provided by law, the administrative hearing officer may request testimony,
supporting documentation and evidence, briefs or other legal memoranda from the
parties prior to making a decision.
E. The decision of the administrative hearing
officer to make an award of reasonable attorney's fees shall be made part of
the appeal record, shall include written findings and conclusions with respect
to the award, and shall be sent to the claimant, unless the same is represented
by an attorney, in which case the decision shall be sent to the attorney of
record.
F. No other agency official
may review the award.
G. The
administrative hearing officer will not award attorney's fees or expenses if
he/she finds that the agency was substantially justified in actions leading to
the proceedings and in the proceeding itself.
H. The administrative hearing officer may, at
his or her discretion, deny fees or expenses if special circumstances make an
award unjust.
I. Whenever
substantially justified, the administrative hearing officer may recalculate the
amount to be awarded to the prevailing party, without regard to the amount
claimed to be due on the application, for an award.
J. All claims for an award of reasonable
litigation expenses shall be made by letter application supplied by the agency
and shall be filed with the hearing office within thirty (30) days of the date
of the conclusion of the adjudicatory proceeding which gives rise to the right
to recover such an award. The proceeding shall be deemed to be concluded when
the agency or administrative hearing officer renders a ruling or decision,
there is an informal disposition, or termination of the proceeding by the
agency.
K. The administrative
hearing officer may, at his or her discretion, permit a party to file a claim
not in keeping with the timeframe stated above upon a showing of proof and
finding by such administrative officer that good and sufficient cause exists
for allowing a claim to be so filed.
L. All claims must be postmarked or received
by the hearing office if filed electronically, no later than thirty (30)
calendar days from the date of the conclusion of the adjudicatory proceeding.
These claims must contain:
1. A summary of the
legal and factual basis for filing the claim;
2. A detailed breakdown of the reasonable
litigation expenses incurred by the party in the adjudicatory proceedings,
including copies of invoices, bills, affidavits, or other documents, all of
which may be supplemented or modified at any time prior to the issuance of a
final decision on the claim by the administrative hearing officer;
3. A notarized statement swearing to the
accuracy and truthfulness of the statements and information contained in the
claim, and/or filed in support thereof. In this statement, the claimant must
also certify that legal fee time amounts were contemporaneously kept.
M. Any party aggrieved by the
decision to award or deny reasonable litigation expenses pursuant to the EAJA
may bring an appeal to the Superior Court in the manner provided by the
Administrative Procedures Act, R.I. Gen. Laws §
42-35-1 et
seq.
2.4.11
SEVERABILITY
If any provisions of these regulations or the application
thereof to any person or circumstance shall be held invalid, such invalidity
shall not affect the provisions or application of these regulations which can
be given effect, and to this end the provisions of these regulations are
declared to be severable.