DRCNH Home > Issue Areas > Benefits > Fair Hearing Rights

Michelle Winchester, J.D., Health Policy Analyst
The Policy Resource Center
Institute for Health, Law, and Ethics
2002
Reprinted with Permission

INTRODUCTION
REQUIRED NOTICE OF YOUR FAIR HEARING RIGHTS
REQUESTING A HEARING
SERVICES UNTIL THE HEARING DECISION
A NOTE ON MAKING A“COMPLAINT”
REINSTATING SERVICE COVERAGE UNTIL THE DECISION IS RENDERED
THE HEARING
IS IT WORTH GOING THROUGH A FAIR HEARING?
GO TO ADMINISTRATIVE APPEALS UNIT WEBSITE

INTRODUCTION back to top
You have a right to a fair hearing whenever your request for Medicaid is denied or not acted upon promptly. You also have a right to a fair hearing anytime your Medicaid services are suspended, terminated, or reduced. In other words, you have the right to a hearing to appeal the following:
1. The decision that you are not eligible for Medicaid services.
2. The decision to deny, suspend, reduce or stop Medicaid coverage for a service.
3. Failure to act upon your request for Medicaid eligibility or for service coverage with reasonable promptness.
In these situations, you must be granted a hearing if you request it. (The exception to this rule is that a hearing is not mandatory if the only issue is a change in the law that requires an automatic change that adversely affects some or all Medicaid recipients.)

REQUIRED NOTICE OF YOUR FAIR HEARING RIGHTS back to top
The Department of Health and Human Services (through for example, the Medicaid Administration Bureau or the Division of Family Assistance) must notify you of your right to appeal at the time that you apply for Medicaid and at any time an action (termination, suspension, or reduction of Medicaid eligibility or covered services) is taken that affects your eligibility or services. When the Department notifies you of your right to appeal, under federal law it must also notify you of the method to obtain a hearing and notify you that you may represent yourself or use legal counsel or another spokesman in this process. The notices that the Department currently uses are shown below. (You will note that the Department does not tell you how to obtain a hearing in the notice provided at the time of an action.)

Medicaid Fair Hearing Notice
New Hampshire Department of Health and Human Services
Notice at application for Medicaid (Form 811R): You or someone representing you may request a Fair Hearing if you are not satisfied with any decision regarding eligibility made by the Department of Health and Human Services. You may be represented by an attorney at a Fair Hearing. The Department will not pay for the cost of these legal services. A Fair Hearing may be requested either verbally or in writing by contacting a District Office or the Department of Health and Human Services, 129 Pleasant St., State Office Park South, Concord, N.H. 03301-3857, or telephone (603) 271-4292. TDD Access: Relay NH 1-800-735-2964.
Notice at time of action (Form 810): You or your representative must make a request for a fair hearing either orally or in writing within 30 days of the action being appealed. If the request is received within 10 days from the date of the notice of the action, your assistance may, under certain circumstances, be continued or reinstated at the previous level until the fair hearing decision is reached. . . . . You may represent yourself or be represented by others, including legal counsel, at the hearing.

When the Department takes an action that affects your eligibility or services, the notice must also contain:

• A statement of what action the State intends to take;
• The reasons for the intended action;
• The specific law that is applicable to the action;
• An explanation of
  • Your right to request a hearing, or
  • In the case of an action based on a change in law, the circumstances under which a hearing will be granted; and
• An explanation of the circumstances under which Medicaid is continued if a hearing is requested.

In most situations, the Department must mail this notice to you at least 10 days before the date of action. In other words, there are 10 calendar days between the date that the notice is put in the mail and the date that the action takes place.

Remember: The notice must go to you. A notice to your service provider is not sufficient.

REQUESTING A HEARING back to top
Federal law allows the Department to require that you submit your request for a hearing in writing and that the Department allow you a reasonable time, not more than 90 days from the date that notice of action is mailed, to request a hearing. In New Hampshire, the Department allows you to make the request orally or in writing and requires that you make the request within 30 days of the action. (Some programs may have different limitations on time for appeal. Always check the state regulations for a particular program. Also, the notice from DHHS should include the time for appeal).

The Department may deny or dismiss a request for a hearing if you withdraw the request in writing or if you fail to appear at a scheduled hearing without good cause.

SERVICES UNTIL THE HEARING DECISION back to top
Maintaining Service Coverage Until the Hearing Decision is Rendered
When the Department mails a 10-day notice and you request a hearing before the date of action, the Department may not terminate or reduce services until a hearing decision is rendered, unless¾
· The only issue is one of federal or State law or policy; and
· The Department promptly informs you in writing that services are to be terminated or reduced pending the hearing decision.
You should know, however, that if the hearing decision upholds the original Department decision, the State may require you to pay for the services that it paid for in the interim between the action date and the hearing decision.

A Note on Making a “Complaint” back to top
When the Department notifies you of an action that will affect your eligibility or services, it will also notify you that you may make a complaint with your district office worker or the worker’s supervisor. The Department explains that a fair hearing is a lengthy and time-consuming process and encourages you to resolve your complaint by asking for a conference with your district office. You may bring representation, such as a lawyer, to the conference. The Department goes on to tell you that if you are not satisfied with the conference results, you still have the right to a fair hearing.

A conference may be an option for you. However, remember the 10-day time limit for maintaining services. When you request a complaint conference, consider simultaneously requesting a fair hearing (prior to the date of the action) so as to maintain your services until the matter is resolved.

Reinstating Service Coverage Until the Decision is Rendered back to top
The Department must reinstate services that were terminated and maintain service coverage until a hearing decision is rendered if —
· Action is taken without the required advanced notice;
· You request a hearing within 10 days of the mailing of the notice of action; and
· The Department determines that the action resulted from other than the application of Federal or State law or policy.

THE HEARING back to top
All hearings must be conducted¾ at a reasonable time, date, and place; only after adequate written notice of the hearing; and, by an impartial officer who was not directly involved in the initial determination of the action in question. In New Hampshire, Medicaid fair hearings are usually conducted in Concord at 105 Pleasant Street, although the site can be changed if necessary. One hearing officer from the Administrative Appeals Unit (AAU) of the Department will conduct the hearing. (Five of the six AAU hearing officers are lawyers.)

If the hearing involves medical issues and the hearing officer considers it necessary to have a medical assessment other than the assessment of the individual involved in making the original decision, the medical assessment must be obtained at the State’s expense and made part of the hearing record.

You (or your representative) must be given an opportunity to —
· Examine, at a reasonable time before the date of the hearing and during the hearing, the content of your case file and all documents that the Department will use at the hearing;
· Bring witnesses;
· Establish all pertinent facts and circumstances;
· Present an argument without undue interference; and
· Question or refute any testimony or evidence.
The Department will also have these opportunities and the hearing officer will likely ask questions of both sides.

You will need to decide whether or not to hire a lawyer for this process. You do not need a lawyer. The fair hearing process is one in which you should be able to represent yourself. However, you may find it helpful to have an attorney represent you. You should find out who will represent the Department; if the Department has a lawyer, you may want to have a lawyer. Also, seek the opinion of others who have been through the fair hearing process.

You may also be represented by someone other than a lawyer. For example, in a “Katie Beckett” (children with severe disabilities) hearing on a service denial, your physician or someone who knows the case well may represent you. Often in a “Katie Beckett” service denial, a doctor or nurse represents the Department.

The length of the hearing varies with the type of hearing and probably will vary with the presence or absence of lawyers. The AAU reports that “Katie Beckett” hearings on service denials last one to three hours on average. A “Katie Beckett” eligibility hearing may last a day or more.

After the hearing, you will be notified of the hearing decision in writing and of your right to seek judicial review, should you wish. The matter must be finalized within 90 days from the date of the request for a hearing.

IS IT WORTH GOING THROUGH A FAIR HEARING? back to top
Department decisions are overturned. Sometimes decisions are overturned before the hearing because you produce new evidence that the Department was not aware of. Sometimes the hearing officer overturns the Department decision.

If you think that the Department has made an erroneous decision, you have every right to attempt to correct it through the fair hearing process. The decision to request a fair hearing, however, is entirely up to you.

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