Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
13B.050,
13B.080,
13B.090,
13B.110,
13B.120,
13B.140,
42 U.S.C.
18031,
26
C.F.R. 1.36B-4, 45 C.F.R. Parts 155,
156
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and
Family Services, Office of Health Data and Analytics, Division of Health
Benefit Exchange has responsibility to administer the Kentucky 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. This administrative regulation
establishes the policies and procedures relating to appeals of eligibility
determinations for KHBE participation and insurance affordability programs on
the Kentucky Health Benefit Exchange pursuant to and in accordance with
42 U.S.C.
18031 and 45 C.F.R. Parts 155 and 156.
Section 1. Right to Appeal an Individual
Eligibility Determination or Redetermination.
(1) An applicant or an enrollee may 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 10:120, 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 determination of eligibility
for an enrollment period;
(c) A
failure by the KHBE to provide within twenty (20) days 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);
or
(d) 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 8(3) of this administrative regulation.
(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 the division shall send written notice 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 within ninety
(90) days of the notice of action.
(3) Upon exhaustion of the appeal process
established in this administrative regulation, an appellant may:
(a) Appeal to HHS in accordance with
45 C.F.R.
155.520(c); and
(b) Seek a judicial review of an appeal
decision pursuant to
KRS
13B.140.
(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.
(5) An appeal of an eligibility determination
of an exemption shall be conducted by HHS.
Section 2. Individual Appeal Designation of a
Representative.
(1) An appellant may represent
himself or herself or be represented during an appeal process by:
(a) Legal counsel;
(b) A relative;
(c) A friend; or
(d) Another individual not listed in
paragraph (a), (b), or (c) of this subsection.
(2) The division shall designate a
representative to act on behalf of the division for the hearing.
Section 3. Individual Appeal
Notice of Appeal Rights.
(1) An applicant or
an enrollee shall be notified of the right to appeal, timeframe to file an
appeal, and how to file an appeal when:
(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) or
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 2 of this
administrative regulation;
(d) An
explanation of the circumstances under which the appellant's or enrollee's
eligibility may be maintained or reinstated pending an appeal decision in
accordance with Section 7 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 10:120.
Section 4.
Individual Appeal Requests.
(1) An applicant
or an enrollee may submit an appeal request:
(a) By phone;
(b) By mail;
(c) In person; or
(d) Via the internet.
(2) Upon request, the division 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 representative
of the division.
(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.
Section 5.
Individual Appeal Informal Resolution Completed by the Division.
(1) After receiving an appeal request, the
division shall:
(a) Conduct a desk review of
an appeal prior to sending the appeal to the DAH; and
(b)
1 Except
established in subparagraph 2. of this paragraph, complete the review within
fifteen (15) calendar days of receipt of the appeal request; or
2. For an expedited appeal request submitted
in accordance with Section 10 of this administrative regulation, complete the
review within three (3) business days.
(2) 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)
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 11 of this administrative regulation.
(4) If an appellant is
dissatisfied with the outcome of the information resolution process, KHBE shall
send:
(a) The appeal request and all documents
utilized by the division in the desk review to DAH no later than five (5)
business days after the completion of the informal resolution process;
and
(b) A written notice 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 7 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 6. Individual
Appeal Acknowledgement of Appeal Request and Eligibility Record by DAH.
(1) A request for an appeal sent by KHBE to
the DAH shall be reviewed by DAH to ensure that the appeal request is
valid.
(2) Upon receipt of a valid
appeal request, the DAH shall:
(a) Send within
thirty (30) days notice to the appellant of receipt of the valid appeal, to
include the hearing requirements contained in Section 9 of this administrative
regulation; and
(b) Confirm receipt
of the records transferred by KHBE pursuant to Section 5(4)(a) of this
administrative regulation.
(3) 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)
Upon receipt of an appeal request that is not valid, the DAH shall:
(a) Send written notice to the appellant and
KHBE 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.
Section 7. Individual
Eligibility Pending Appeal.
(1) An appellant
who has submitted an acceptable request as described in Section 1 of this
administrative regulation of a redetermination of eligibility in accordance
with Section 4 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
8. Individual Dismissal of an Appeal.
(1) An appeal shall be dismissed by DAH if
the appellant:
(a) Withdraws the appeal
request in accordance with Section 11 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 4 of this administrative regulation; or
(d) Dies while the appeal is
pending.
(2) If an
appeal is dismissed in accordance with subsection (1) of this section, DAH
shall provide within thirty (30) days written notice to the appellant and the
division that includes:
(a) The reason for the
dismissal;
(b) An explanation of
the effect of the dismissal on the appellant's eligibility;
(c) An explanation of how the appellant may
show good cause why the dismissal should be vacated in accordance with
subsection (3)(a) of this section;
(d) A statement of the eligibility
determination to be implemented; and
(e) A statement discontinuing eligibility
provided under Section 7 of this administrative regulation, if
applicable.
(3) DAH
shall:
(a) Vacate a 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 dismissal showing good
cause why the dismissal should be vacated; and
(b) Provide within thirty (30) days written
notice of the recommendation to the secretary of the Cabinet for Health and
Family Services to deny the request to vacate a dismissal to the appellant, if
the request is denied.
(4) Good cause for the purposes of this
section shall include if the appellant:
(a)
Was away from home during the entire filing period;
(b) Is unable to read or to comprehend the
right to request a hearing on an adverse action notice;
(c) Moved, resulting in delay in receiving or
failure to receive the adverse action notice;
(d) Had a household member who was seriously
ill;
(e) Was not at fault for the
delay of the request, as determined by the hearing officer; or
(f) Did not receive the notice.
Section 9. Individual
Hearing Requirements.
(1) DAH shall provide
written notice to the appellant and the division that:
(a) Acknowledges the appeal request as
required by Section 6(2) of this administrative regulation; and
(b) Meets the notice requirements established
by
KRS
13B.050(3).
(2) An appellant may:
(a) Upon request, obtain from the division,
copies of 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 who have not been directly involved in the
eligibility determination or any prior appeal decision in the same
matter.
Section
10. Individual Expedited Appeals.
(1) An appellant may make an expedited appeal
if:
(a) There is an immediate need for a
health service; and
(b) The
standard appeal process established in Section 9 of this administrative
regulation may 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 4 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 expedited 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 9 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 shall be transferred to the standard
process described in Section 9 of this administrative regulation; and
(c) An explanation of the appellant's rights
under the standard process in Section 9 of this administrative
regulation.
Section
11. Individual Withdrawal of an Appeal. If an appellant wants to
withdraw an appeal, the appellant shall withdraw a request for an appeal:
(1) In writing;
(2) Orally to KHBE staff during an informal
resolution process described in Section 5 of this administrative regulation;
or
(3) Orally to the hearing
officer during an appeal proceeding.
Section 12. Individual Hearing Decision.
(1) After the hearing is concluded or a
decision is made not to reverse a 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
10:120;
(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 the
division;
(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 the division
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 and include in that
notice the appellant rights to a judicial review afforded under
KRS
13B.140 within ninety (90) days of the date
an appeal request under Section 4 of this administrative regulation is
received;
(b) If an appeal request
is submitted under Section 10 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. The division.
(8) Upon receipt of a
notice described in subsection (7)(a) of this section, the division 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 10:120;
and
2.
45 C.F.R.
155.305.
Section 13. Individual Right to
Appeal to HHS.
(1) If an appellant disagrees
with an appeal decision made in accordance with Section 12 of this
administrative regulation or notice of denial of a request to vacate a
dismissal under Section 8(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 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
14. Individual Appeal 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.
STATUTORY AUTHORITY:
KRS
194A.050(1)