SUBCHAPTER 22H -- APPEALS PROCEDURES

SECTION .0100 -- RECIPIENT/APPLICANT APPEAL REVIEW PROCEDURES FOR DENIAL, TERMINATION, SUSPENSION, OR REDUCTION OF PRIOR APPROVAL REQUESTS FOR MEDICAID COVERED MEDICAL SERVICES OR FOR OTHER MEDICAID COVERED MEDICAL SERVICES

10 NCAC 22H .0101            PURPOSE AND SCOPE

(a)  The purpose of the rules in this Section is to specify the policies and procedures to provide for recipient/applicant or his/her representative requests for an informal appeal of decisions changing a Medicaid recipient/applicant's level of care, denial, termination, suspension, or reduction of prior approval requests for Medicaid covered medical services or for other Medicaid covered medical services.  These policies and procedures do not apply to provider requests for Reconsideration Review of DMA provider post payment review decisions set out in 10 NCAC 26G.

(b)  The rules in this Section apply to decisions made by the Division of Medical Assistance "(DMA)", a Medical Review Independent Professional Review Team "(MR/IPR)", a Prior Approval Unit "(PAU)", other Agencies, or other entities acting as agents of this State agency.

(c)  The decision making body as set out in Paragraph (b) of this Rule shall, within two working days, notify the recipient/applicant in writing of the decision and the following:

(1)           the effective date of the decision denying, terminating, reducing, or suspending a service;

(2)           the reasons for the agency decision;

(3)           the specific regulations that support, or the change in Federal or State law that requires the decision;

(4)           the date Medicaid payment will cease, if applicable; at least 11 days after the date of the notification letter;

(5)           the opportunity for informal and formal appeal of this decision and procedures for requesting such an appeal; and

(6)           the fact that, if appealed, payment for the currently certified level of care or approved service will continue for an eligible Medicaid recipient pending appeal.

Editor's Note:  Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 NCAC 26I .0101 void as applied in Linda Allred, Petitioner v. North Carolina Department of Human Resources, Division of Medical Assistance, Respondent (90 DHR 0940).

History Note:        Authority G.S. 108A-25(b); 42 C.F.R. 431; 42 C.F.R. 456;

Eff. April 13, 1979;

Amended Eff. May 1, 1990; November 1, 1983; October 4, 1979;

RRC objection due to lack of Authority and ambiguity Eff. October 18, 1995;

Amended Eff. December 11, 1995.

10A NCAC 22H .0102            REQUESTS FOR FORMAL AND INFORMAL APPEALS

There are two levels of appeals that may be utilized when the recipient/applicant or his/her representative is dissatisfied with a decision concerning level of care or denial, suspension, reduction, or termination of service, or prior approval.  These levels are informal and formal appeals.

(1)           Informal.  The recipient/applicant or his/her representative may request an informal Reconsideration Review by the Division of Medical Assistance (DMA) Hearing Unit.

(2)           Formal.  Formal appeals are conducted by the Office of Administrative Hearings (OAH) under G.S. 150B, and the rules promulgated by the Office of Administrative Hearings.

Editor's Note:   Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 NCAC 26I .0102 void as applied in Linda Allred, Petitioner v. North Carolina Department of Human Resources, Division of Medical Assistance, Respondent (90 DHR 0940).

History Note:        Authority G.S. 108A-25(b); 42 C.F.R. 431; 42 C.F.R. 456;

Eff. April 13, 1979;

Amended Eff. December 1, 1995; May 1, 1990; November 1, 1983; October 4, 1979.

10A NCAC 22H .0103            TIME LIMITS ON REQUESTS FOR RECIPIENT/APPLICANT INFORMAL APPEALS

The recipient/applicant or his/her representative may appeal a decision made by DMA, MR/IPR, PAU, or other State agency, or entities.  The request for an informal appeal must be made in writing and received by the DMA Hearing Unit by mail, facsimile, or hand delivery within 11 days from the date on the notification letter of suspension, reduction, termination, or denial of service.  If the eleventh day falls on a Saturday, Sunday or legal holiday, then the period during which an informal appeal may be requested shall run until the end of the next day which is not a Saturday, Sunday or legal holiday.

History Note:        Authority G.S. 108A-25(b); 42 C.F.R. 456;

Eff. April 13, 1979;

Amended Eff. May 1, 1990; October 4, 1979;

RRC objection due to lack of Authority and ambiguity Eff. October 18, 1995;

Amended Eff. December 11, 1995.

10A NCAC 22H .0106            PAYMENT PENDING APPEALS

(a)  If no informal appeal is requested, payment shall continue for the existing level of care or approved service(s) rendered until the required change (action) date stated in the notification or until the recipient moves from that level of care or discontinues approved service(s), whichever comes first.

(b)  If an informal appeal is requested in accordance with Rule .0103 of this Section, Medicaid payment for that level of care or approved service(s) shall continue until the informal appeal process is completed.

(c)  If a formal appeal is requested in accordance with Rule .0102(b) of this Section, Medicaid payment for that level of care or approved service(s) shall continue until the formal appeal process is completed.

(d)  If the formal appeal decision upholds the original decision by DMA, MR/IPR, PAU, other State Agency or entity, DMA may institute recovery procedures against the applicant or recipient to recoup the cost of any services furnished resulting from the formal appeal process.

History Note:        Authority G.S. 108A‑25(b); 42 C.F.R. 431;

Eff. April 13, 1979;

Amended Eff. December 1, 1995; October 4, 1979.

10A NCAC 22H .0107            DISMISSAL OF APPEAL

(a)  Scheduled informal appeals may be dismissed if applicant/recipient or his/her representative withdraws the request in writing.

(b)  If applicant/recipient or his/her representative fails to appear at a scheduled informal appeal without good cause, the review will still be held.  Good cause is defined as circumstances beyond the control of the applicant/recipient or his/her representative.

(c)  If, at any time during the informal appeal process, the recipient's medical condition worsens and the patient is properly re-certified or approved for the existing or a higher level of care or service, the informal appeal shall be concluded in favor of the recipient.

History Note:        Authority G.S. 108-25(b); 42 C.F.R. Part 431;

Eff. April 13, 1979;

Amended Eff. December 1, 1995; May 1, 1990.

SECTION .0300 - HEARINGS: TRANSFER AND DISCHARGES

10A NCAC 22H .0301            DEFINITIONS

The following definitions shall apply throughout this Subchapter:

(1)           "Division" means the North Carolina Division of Medical Assistance of the Department of Human Resources.

(2)           "Hearing Officer" means the person designated to preside over hearings between a resident and a nursing facility provider regarding transfers and discharges.

(3)           "Hearing Unit" means the Chief Hearing Officer and his staff in the Division of Medical Assistance, Department of Human Resources.

(4)           "Notice of Transfer and Discharge form" means the form developed by the Division.

(5)           "Request for Hearing" means a clear expression, in writing by the resident or family member or legal representative of the resident, that the resident wants to appeal the facility's decision to transfer or discharge.

(6)           The "Request for Hearing form" means the form developed by the Division.

History Note:        Authority G.S. 108A-25(b); 42 USCS 1396r(e)(3), (f)(3); 42 C.F.R. 483.5; 42 C.F.R. 483.12; 42 C.F.R. 483.202; 42 C.F.R. 483.206;

Eff. April 1, 1994.

10A NCAC 22H .0302            TRANSFER AND DISCHARGE REQUIREMENTS

(a)  A resident and, if known, a family member or legal representative of the resident, shall be  notified in writing of a facility's decision to transfer or discharge the resident.  The Notice of Transfer or Discharge form shall be used by a facility when giving notice of a transfer or discharge.

(b)  Failure to complete the Notice of Transfer or Discharge form shall result in the notice of the transfer or discharge being ineffective.

(c)  The resident shall be handed the Notice of Transfer or Discharge form on the same day that it is dated.

(d)  A copy of the notice of Transfer or Discharge form shall be mailed to the family member or legal representative on the same day that it is dated.

(e)  The facility shall provide a Request for Hearing Form to the resident and family member or legal representative simultaneously with the Notice of Transfer or Discharge form.

History Note:        Authority G.S. 108A-25(b); 42 USCS 1396r(e)(3), (f)(3); 42 C.F.R. 483.5; 42 C.F.R. 483.12; 42 C.F.R. 483.202; 42 C.F.R. 483.206;

Eff. April 1, 1994.

10A NCAC 22H .0303            INITIATING A HEARING

(a)  in order to initiate an appeal of a facility's intent to transfer or discharge, a resident or family member or legal representative shall submit a written request for a hearing to the Hearing Unit.  The request for hearing must be received by the Hearing Unit within 11 calendar days from the date of the facility's notice of transfer or discharge.  If the eleventh day falls on a Saturday, Sunday or legal holiday, then the period during which an appeal may be requested shall run until the end of the next day which is not a Saturday, Sunday or legal holiday.

(b)  The request for hearing shall be submitted to the Hearing Unit by mail, or facsimile, or hand delivery.

History Note:        Authority G.S. 108A-25(b); 42 USCS 1396r(e)(3), (f)(3); 42 C.F.R. 483.12;

Eff. April 1, 1994.

10A NCAC 22H .0304            HEARING PROCEDURES

(a)  Upon timely receipt of a request for a hearing, the Hearing Unit shall promptly notify the facility of the request.

(b)  The parties shall be notified by certified mail of the date, time and place of the hearing.  If the hearing is to be conducted in person, it shall be held in Raleigh, North Carolina.

(c)  At least five working days prior to the hearing, the facility administrator shall make available to the resident all documents and records to be used at the hearing.  The facility administrator shall forward identical information to the Hearing Unit, to be received at least five working days prior to the hearing.

(d)  The hearing officer may grant continuances.

(e)  The hearing officer may dismiss a request for hearing if the resident or family member or legal representative of the resident fails to appear at a scheduled hearing.

(f)  The hearing officer may proceed to conduct a scheduled hearing if a facility representative fails to appear at a scheduled hearing.

(g)  The Rules of Civil Procedures as contained in G.S. 1A-1 and the General Rules of Practice for the Superior and District Courts as authorized by G.S. 7A-34 and found in the Rules Volume of the North Carolina General Statutes shall not apply in any hearings held by a Division Hearing Officer unless another specific statue or rule  provides otherwise.  Division hearings are not hearings within the meaning of G.S. 150B and shall not be governed by the provisions of that Chapter unless otherwise stated in these Rules.  Parties may be represented by counsel or other representative at the hearing.

History Note:        Authority G.S. 108A-25(b); 42 USCS 1396r(e)(3), (f)(3); 42 C.F.R. 483.12;

Eff April 1, 1994.

10A NCAC 22H .0305            HEARING OFFICER'S FINAL DECISION

The Hearing Officer's final decision shall uphold or reverse the facility's decision.  Copies of the final decision shall be mailed via certified mail to the parties.

History Note:        Authority G.S. 108A-25(b); 42 USCS 1396r(e)(3), (f)(3); 42 C.F.R. 483.12;

Eff. April 1, 1994.

SECTION .0400 -- PASARR HEARINGS

10A NCAC 22H .0401            DEFINITIONS

(a)  "Division" means the North Carolina Division of Medical Assistance of the Department of Human Resources.

(b)  "Hearing Officer" means the person designated to preside over hearings regarding Preadmission Screening and Annual Resident Review (PASARR) determinations.

(c)  "Hearing Unit" means the Chief Hearing Officer and his staff in the Division of Medical Assistance, Department of Human Resources.

(d)  "Preadmission Screening and Annual Resident Review (PASARR) Notice of Determination" means the form developed by the Division.

(e)  "Request for Hearing" means a clear expression, in writing, by the evaluated individual or family member or legal representative of the evaluated individual, that the evaluated individual wants to appeal the PASARR determination.

(f)  The "Request for Hearing" form means the form developed by the Division.

(g)  The "North Carolina PASARR Psychiatric/Mental Retardation/Dual Psychiatric and MR/RC Evaluation" forms means the forms developed by the Division.

History Note:        Authority G.S. 108A-25(b); 42 U.S.C.S. 1395i-3(e)(3), (f)(3); 1396r(e)(3), (e)(7)(F), (f)(3); 42 C.F.R. 483.5; 42 C.F.R. 483.12; 42 C.F.R. 483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206;

Eff. October 1, 1994.

10A NCAC 22H .0402            PASARR REQUIREMENTS

(a)  The evaluated individual and family member or legal representative shall be notified in writing of the Division of MH/DD/SAS' PASARR determination under the provisions of 42 CFR 483.130(k) which is incorporated by reference with subsequent changes or amendments.  A copy of 42 CFR 483.130(k) can be obtained from the Division of Medical Assistance at a cost of twenty cents ($0.20) per copy.

(b)  The PASARR Notice of Determination form shall be used by Division of MH/DD/SAS when giving notice of a PASARR determination under provisions of 42 CFR 483.130(l)(1-4) which is incorporated by reference with subsequent changes or amendments.  A copy of 42 CFR 483.130(l)(1-4) can be obtained from the Division of Medical Assistance at a cost of twenty cents ($0.20) per copy.

(c)  The Division of MH/DD/SAS shall provide a Request for Hearing form, pertinent Evaluation form, and PASARR Notice of Determination to the evaluated individual and legal representative under provisions of 42 CFR 483.128(1) which is incorporated by reference with subsequent changes or amendments.  A copy of 42 CFR 483.128(1) can be obtained from the Division of Medical Assistance at a cost of twenty cents ($0.20) per copy.

History Note:        Authority G.S. 108A-25(b); 42 U.S.C.S. 1395i-3(e)(3), (f)(3); 1396r(e)(3), (e)(7)(F), (f)(3); 42 C.F.R. 483.5; 42 C.F.R. 483.12; 42 C.F.R. 483.128; 42 C.F.R. 483.130; 42 C.F.R. 483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206;

Eff. October 1, 1994.

10A NCAC 22H .0403            INITIATING A HEARING

(a)  In order to initiate an appeal of a PASARR determination, the evaluated individual or family member or legal representative shall submit a written request for a hearing to the Hearing Unit.  The request for hearing must be received by the Hearing Unit within 11 calendar days from the date of the PASARR Notice of Determination.  If the 11th day falls on a Saturday, Sunday, or legal holiday, then the period during which an appeal may be requested shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday.

(b)  The request for hearing shall be submitted to the Hearing Unit by mail, facsimile, or hand delivery.

History Note:        Authority G.S. 108A-25(b); 42 U.S.C.S. 1395i - 3(e)(3) and - (f)(3); 1396r(e)(3), (e)(7)(F), and (f)(3); 42 C.F.R. 431.200; 42 C.F.R. 483.5; 42 C.F.R. 483.12; 42 C.F.R. 483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206;

Eff. October 1, 1994.

10A NCAC 22H .0404            HEARING PROCEDURES

(a)  Upon timely receipt of a request for a hearing, the Hearing Unit shall notify the Division of MH/DD/SAS of the request.

(b)  The parties shall be notified by certified mail of the date, time and place of the hearing.  If the hearing is to be conducted in person, it shall be held in Raleigh, North Carolina.

(c)  The Division of MH/DD/SAS shall mail all documents and records to be used at the hearing to the person requesting the hearing by certified mail and forward identical information to the Hearing Unit, to be received at least five working days prior to the hearing.

(d)  The hearing officer may grant continuances.

(e)  The hearing officer may dismiss a request for a hearing if the evaluated individual or legal representative fails to appear at a scheduled hearing.

(f)  The hearing officer may proceed to conduct a scheduled hearing if the Division of MH/DD/SAS fails to appear at a scheduled hearing.

(g)  The Rules of Civil Procedure as contained in G.S. 1A-1 and the General Rules of Practice for the Superior and District Courts as authorized by G.S. 7A-34 and found in the Rules Volume of the North Carolina General Statutes shall not apply in any hearings held by the Division Hearing Officer unless another specific statute or other rule provides otherwise.  Division hearings are not contested case hearings within the meaning of G.S. 150B and shall not be governed by the provisions of that chapter unless otherwise stated in these Rules.  The hearing officer may use the North Carolina Rules of Evidence for guidance in conducting hearings.  Parties may be represented by counsel or other representative at the hearing.

History Note:        Authority G.S. 108A-25(b); 42 U.S.C.S. 1395i-3(e)(3), (e)(7)(F), (f)(3); 42 U.S.C.S. 1396r(e)(3), (f)(3); 42 C.F.R. 431.200; 42 C.F.R. 483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206;

Eff. October 1, 1994.

10A NCAC 22H .0405            HEARING OFFICER'S FINAL DECISION

The Hearing Officer's final decision shall uphold or reverse the Division of MH/DD/SAS' decision.  Copies of the final decision shall be mailed via certified mail to the parties.

History Note:        Authority G.S. 108A-25(b); 42 U.S.C.S. 1395i-3(e)(3), (e)(7)(F), (f)(3); 42 U.S.C.S. 1396r(e)(3), (f)(3); 42 C.F.R. 431.200; 42 C.F.R. 483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206;

Eff. October 1, 1994.