Michelle Winchester, J.D., Health Policy Analyst, The Policy Resource Center
Institute for Health, Law, and Ethics
UPDATED December 2011
Reprinted with Permission
Michelle Winchester, J.D., Health Policy Analyst, The Policy Resource Center
You have a right to a fair hearing whenever your request for Medicaid is denied or not acted upon promptly. This includes a right to a fair hearing anytime the New Hampshire Department of Health and Human Services (DHHS) suspends, terminates, or reduces your Medicaid eligibility or service coverage. In other words, you have the right to a hearing to appeal the following:
- A decision that you are not eligible for Medicaid;
- A decision to deny, suspend, reduce, or stop Medicaid coverage for a service; or
- A failure to act upon your request for Medicaid eligibility or for service coverage with reasonable promptness.
In these situations, you must be granted a fair hearing if you request it. (An 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 Medicaid recipients.)
Required Notice of Your Fair Hearing Rights
The DHHS must notify you of your right to appeal at the time that you apply for Medicaid and any time the DHHS denies, stops, suspends, or reduces your eligibility or service coverage. The notice must:
- Explain how to obtain a fair hearing; and
- Inform you that you may represent yourself or you may use legal counsel or another representative in the hearing process.
The 2011 DHHS notice used at the time of application is shown below.
|Medicaid Fair Hearing Notice at Application (Form 811R)
New Hampshire Department of Health and Human Services You or someone representing you may request an Administrative Appeal if you are not satisfied with any decision regarding eligibility made by DHHS. You may be represented by an attorney or other person at an Administrative Appeal. DHHS will not pay for the cost of any legal services, but there are free and reduced cost legal services available in NH. An Administrative Appeal may be requested either verbally or in writing by contacting a District Office or DHHS, 105 Pleasant Street, Concord, NH 03301-6521. Telephone (603) 271-4292 or 1-800-852-3345 ext 4292; TDD Access: Relay NH 1-800-735-2964 or 7-1-1.
When the DHHS takes an action that affects your eligibility or services, the notice must contain
- A statement of what action the DHHS intends to take (deny, stop, suspend, or reduce your eligibility or service coverage);
- The reason for the action;
- The specific law that applies to the action;
- An explanation of —
- Your right to request a fair hearing; or
- In the case of an action based upon a change in the law, the circumstances under which a hearing will be granted; and
- An explanation of the circumstances under which Medicaid is continued if you request a hearing.
In most situations, the DHHS must mail this notice to you at least 10 days before the date of action. In other words, there should be at least 10 calendar days between the postmark on the notice and the effective date of the action.
Also, the notice must go to you. A notice sent only to your service provider is not sufficient.
Requesting a Fair Hearing
Federal law allows the DHHS to require that you submit your request for a fair hearing in writing. The law also requires the DHHS allow you a reasonable time to request the hearing. In New Hampshire, the DHHS allows you to make the request orally or in writing and requires that you make the request within 30 days of the action.
The DHHS may deny or dismiss a request for a fair hearing if you withdraw the request in writing or if you fail to appear at a scheduled hearing without good cause.
Services Until the Fair Hearing Decision
Maintaining Service Coverage until the Fair Hearing Decision is Rendered
When the DHHS mails a 10-day notice and you request a fair hearing before the date of action, the DHHS may not terminate or reduce services until a hearing decision is rendered, unless —
- The only issue is one of federal or State law or policy requiring an automatic action that affects you; and
- The DHHS 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 DHHS decision, the State may require you to pay it back for the services that it paid for between the action date and the hearing decision.
A Note on Settling Your Complaint about a DHHS Decision outside the Fair Hearing Process
A fair hearing is a lengthy and time-consuming process and you may be able to resolve your complaint about a DHHS decision outside of that process. You can do this by requesting a meeting on your complaint with the DHHS or the District Office. You may bring a lawyer or other representative to the meeting. If you are not satisfied with the meeting results, you still have the right to a fair hearing.
While a meeting may be a good option for you, remember the 10-day time limit for maintaining service coverage and the 30-day time limit for requesting a fair hearing. These time frames do not change even if you first try to resolve your complaint outside of the hearing process. When you decide to request a meeting, consider also requesting a fair hearing within the required time frames in order to maintain your service coverage and your option of a fair hearing until the matter is resolved.
Reinstating Service Coverage Until the Fair Hearing Decision is Rendered
The DHHS must reinstate services that were terminated and maintain service coverage until a fair hearing decision is rendered if —
- It takes an action without the required advanced notice;
- You request a hearing within 10 days of the mailing of the notice of action; and
- The DHHS determines that the action resulted from other than the application of Federal or State law or policy.
The Fair Hearing
Federal law requires all fair hearings be conducted:
- 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 decision in question.
In New Hampshire, Medicaid fair hearings are usually held at your local District Office or in Concord. One hearing officer from the Administrative Appeals Unit (AAU) of the DHHS will conduct the hearing.
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 DHHS 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 DHHS 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 are not required to have 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 DHHS; if the DHHS has a lawyer, you may want to have a lawyer. Also, ask the opinion of others who have been through the fair hearing process. You may also be represented by someone other than a lawyer.
The length of the hearing varies with the type of hearing and probably will vary with the presence or absence of lawyers.
After the hearing, you will be notified of the hearing officer’s decision in writing and of your rights. The decision is based only on the evidence presented at the hearing. It must include the reasons for the decision and any additional appeal processes available, such as the right to take the matter to court.
The matter must be finalized within 90 days from the date of the request for a fair hearing.
Is It Worth Going Through a Fair Hearing?
DHHS decisions may be overturned. Sometimes decisions are overturned before the hearing because of evidence you produce that the DHHS was not previously aware of. Sometimes the hearing officer overturns the DHHS decision.
If you think that the DHHS 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.