Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
194A.060,
205.175,
205.231,
205.237,
210.270
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
205.231 and
210.270
require the Cabinet for Health and Family Services, Department for Medicaid
Services, to establish a system of hearings to be available to Medicaid
recipients.
KRS
194A.050(1) requires the
cabinet to promulgate administrative regulations necessary to operate the
programs and fulfill the responsibilities vested in the cabinet; or to comply
with federal law. This administrative regulation establishes the hearing
procedures for Medicaid-eligible individuals with an intellectual disability
lodged in state institutions who are proposed by the cabinet to be reclassified
and transferred. In accordance with
KRS
205.237, this administrative regulation also
establishes the maximum fees that may be charged to the recipient for
representation by attorneys with regard to the hearings or further resultant
appeals.
Section 1. Definitions.
(1) "At the time of any action affecting a
recipient's claim" means at the time that the cabinet proposes to:
(a) Reclassify the level of care of a
recipient; or
(b) Transfer the
recipient from the state institution in which the recipient is
lodged.
(2) "Authorized
representative" means:
(a)
1. A parent;
2. A guardian;
3. A committee of the recipient; or
4. Other person designated by the recipient
including a relative or friend;
(b) An attorney acting at the request of the
parent, guardian, committee of the recipient, or on behalf of the recipient;
or
(c) A representative of the
facility caring for the recipient who is acting on behalf of the
recipient.
(3)
"Recipient" means an individual:
(a) With an
intellectual disability;
(b) Lodged
in a state institution;
(c) Who is
eligible for Medicaid benefits; and
(d) Who is having the cost of his or her care
paid for using funds from the Medicaid Program.
Section 2. Informing the Recipient of the
Recipient's Rights. Each recipient and authorized representative shall be
informed in writing:
(1) At the time of any
action affecting the recipient's claim, of the recipient's right to a
hearing;
(2) Of the method by which
the recipient may obtain a hearing; and
(3) That the recipient shall be represented
by an authorized representative or be self-represented.
Section 3. Request for a Hearing. At the time
of any action affecting a recipient's claim, any recipient, or an authorized
representative acting on the recipient's behalf, may request a hearing by
filing a written statement clearly indicating a desire for a hearing with the
secretary of the Cabinet for Health and Family Services.
Section 4. Time Limitation for Request. The
time limitation for a hearing request shall be as established in
KRS
210.270.
Section 5. Continuation of Benefits. If the
request for a hearing of a decision to reclassify or transfer any patient with
an intellectual disability is received within the thirty (30) day period
established by
KRS
210.270:
(1)
Medicaid reimbursement shall continue, until the conclusion of the hearing;
and
(2) The recipient shall not be
transferred, until the conclusion of the hearing.
Section 6. Acknowledgment of Hearing Requests
by the Appeal Panel.
(1) The acknowledgment
letter sent by the appeal panel shall contain information regarding the hearing
process, including:
(a) The right to case
record review prior to the hearing; and
(b) The right to representation.
(2) A subsequent notification
shall include the time and place where the hearing will be held.
Section 7. Withdrawal or Dismissal
of Request.
(1) The recipient, or the
recipient's authorized representative, may withdraw the recipient's request for
a hearing at any time prior to release of the appeal panel's
decision.
(2) As appropriate, the
recipient or the recipient's authorized representative shall be granted the
opportunity to discuss withdrawal with the recipient's legal counsel or
representative, if any, prior to finalizing the action.
(3) Except as provided in subsection (4) of
this section, a hearing request shall be dismissed if the recipient fails to
report for the hearing without prior notification.
(4) A hearing request shall not be dismissed
without extending to the recipient, or the recipient's authorized
representative, the opportunity to establish that the failure to report for the
hearing was for good cause.
Section
8. Recipient's Rights Prior to a Hearing.
(1) Each recipient and the recipient's
authorized representative, as appropriate, shall be informed of the recipient's
right to:
(a) Legal counsel or other
representation;
(b) Case record
review relating to the issue; and
(c) Submit additional information in support
of the claim.
(2) If the
hearing involves medical issues:
(a) A medical
assessment shall be completed by a different provider than the person or
persons involved in the original decision if the appeal panel considers it
necessary pursuant to subsection (3) of this section.
(b) The medical assessment may be requested
by:
1. The recipient;
2. The recipient's authorized representative;
or
3. An appeal panel
member.
(3) A
medical assessment shall be considered necessary by the appeal panel if, in the
opinion of a majority of the members of the appeal panel, the available medical
information is insufficient for the appeal panel to determine whether the
recipient should be:
(a) Reclassified;
or
(b) Transferred.
(4) The reason for denial shall be
set forth in writing if:
(a) A medical
assessment at cabinet expense is requested by the recipient; and
(b) The request for a medical assessment is
denied by the appeal panel.
Section 9. Corrective Action Prior to a
Hearing.
(1) Prior to a hearing, the chair of
the appeal panel may review the case record. If the chair determines that a
proposed, pending, or completed action was made erroneously or inappropriately,
the chair shall authorize corrective action in the form of:
(a) Continuing assistance; or
(b) Eligibility.
(2) Except as provided in subsection (3) of
this section, following a corrective action pursuant to subsection (1) of this
section, the hearing request shall be dismissed.
(3) A hearing request shall be subject to
reinstatement at the request of the recipient or the recipient's authorized
representative if that individual feels the corrective action does not fully
resolve the issues prompting the hearing request.
(4) Any request for reinstatement pursuant to
this section shall be made within twenty (20) days of the notice of the
corrective action.
Section
10. Conduct of a Hearing.
(1) A
hearing or 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 established in 42 C.F.R. 431 Subpart E (431.200 through
431.250),
KRS
210.270, and, as necessary, KRS Chapter
13B.
(2) The appeal panel shall be
appointed as required by
KRS
210.270.
(3) A hearing officer of the Cabinet for
Health and Family Services Administrative Hearings Branch shall be designated
as the cabinet representative, in accordance with
KRS
210.270(6).
(4) The hearing officer shall conduct the
hearing in accordance with
KRS 13B.080
and
194A.025.
(5) The chair of the appeal panel may direct
or grant a continuance of a hearing in order to secure necessary
evidence.
(6) In accordance with
KRS
194A.060 and
205.175,
all members of the appeal panel shall be required to:
(a) Maintain the confidentiality of:
1. The hearings;
2. The records;
3. The reports; and
4. All other documents related to the appeal
panel; and
(b) Safeguard
all information relating to:
1. The recipient;
and
2. Any authorized
representative.
(7) The chair of the appeal panel shall be
responsible for:
(a) Maintaining the official
records of a patient's case before the appeal panel;
(b) Receiving a notice of appeal;
(c) Acknowledging the appeal;
(d) Taking and recording the vote of the
appeal panel; and
(e) Sending
notice of the decision to the:
1. Recipient;
or
2. Authorized
representative.
(8) Following the hearing, the chair of the
appeal panel shall:
(a) Take the vote of the
appeal panel; and
(b) Assign the
task of writing the decision to the chair or any other member of the appeal
panel.
(9) The decision
of the appeal panel shall:
(a) Be in
writing;
(b) Include a finding of
facts;
(c) Identify laws and
administrative regulations that support the decision;
(d) Be sent to the appealing party within
ninety (90) days from the date of the request for the hearing; and
(e) Advise the recipient or authorized
representative of the right to appeal the decision in the manner prescribed by
KRS
210.270(7).
(10) The recipient, the recipient's
representative, and any other party to the hearing may:
(a) Present evidence pertinent to the issue
on which the adverse action was, or is proposed to be, taken; and
(b) Advance any arguments without undue
interference.
(11) The
chair and other members of the appeal panel shall, if necessary to secure full
information on the issue, examine each party who appears and the party's
witnesses.
Section 11.
Limitation of Fees.
(1) The cabinet, and its
officers and employees, either in their official or personal capacity, shall
not be liable for payment of any attorney's fee. In accordance with
KRS
205.237, the fee an attorney may charge an
individual shall not exceed the following:
(a) Seventy-five (75) dollars for preparation
and appearance at the hearing before an appeal panel;
(b) $175 for preparation and presentation,
including pleadings and appearance in courts, of appeals to the Circuit
Court;
(c) $300 for preparatory
work and briefs and all other matters incident to appeals to the Court of
Appeals; and
(d) $300 for
preparatory work and briefs and all other matters incident to appeals to the
Supreme Court.
(2) The
fee agreed to by the attorney and his or her client within the maximums
established pursuant to subsection (1) of this section shall be deemed to have
the approval of the cabinet.
(3)
(a) Enforcement of payment of the fee shall
be a matter entirely between the attorney and the recipient.
(b) The fee shall not be deducted, either in
whole or in part, from benefit checks that may be due and payable to the
recipient.
STATUTORY AUTHORITY:
KRS
194A.025(1),
194A.050(1),
205.231,
205.237,
205.520(3),
205.531,
42 C.F.R. 431 Subpart E,
42 U.S.C.
1396