PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
The Texas Health and Human Services Commission (HHSC) proposes to repeal Chapter 357, Subchapters A and D - H and proposes new Chapter 357, Subchapter A. Specifically, HHSC proposes to repeal: Subchapter A, §§357.1, 357.3, 357.5 - 357.7, 357.9, 357.11 - 357.13, 357.15, 357.17, 357.19, 357.21, 357.23, 357.25, 357.27 and 357.29, concerning Medicaid Fair Hearings; Subchapter D, §§357.301 - 357.305, concerning Fair Hearings; Subchapter E, §§357.351 - 357.360, concerning Appeals Process; Subchapter F, §§357.401 - 357.417, concerning Hearing Procedure; Subchapter G, §357.441 and §357.442, concerning Social Service Appeals; and Subchapter H, §§357.461 - 357.463, concerning Medical Services Appeals. HHSC replaces the repeal with new Subchapter A, §§357.1, 357.3, 357.5, 357.7, 357.9, 357.11, 357.13, 357.15, 357.17, 357.19, 357.21, 357.23 and 357.25, concerning Uniform Fair Hearing Rules. HHSC also proposes amendments to Subchapter R, §357.702 and §357.703, concerning Judicial and Administrative Review of Hearings.
Background and Justification
HHSC is required to have procedural rules that direct the conduct of client fair hearings. At consolidation of the human services agencies, the fair hearing rules at Texas Department of Human Services were transferred to HHSC. At that time, only fair hearing rules for Medicaid appeals existed at HHSC.
The proposal will repeal the existing sets of fair hearing rules and propose new rules that provide a clearer picture of the rules that govern client appeals at HHSC. In addition, the proposed rules conform to commission practice and fulfill the purpose intended by Government Code §531.0055: that performance of administrative support services for health and human services agencies, including legal support, is the responsibility of HHSC.
The proposed changes to §357.702 and §357.703 clarify the definition of "notice" and that the administrative review is limited to the record considered by the hearing officer. The proposed changes also provide an exception to the 30-day timeframe for requesting an administrative review.
Section-by-Section Summary
New §357.1, describes specific definitions used in the chapter.
New §357.3 sets forth HHSC's authority to issue rules and regulations governing fair hearings, as well as the standards for fair hearings that apply to programs, agency designees, and clients.
New §357.5 describes the responsibilities of the HHSC hearing officer.
New §357.7 describes the responsibilities of the agency and/or its designee.
New §357.9 describes burden of proof in a fair hearing.
New §357.11 describes notice and continued benefits.
New §357.13 describes the appellant's rights and responsibilities.
New §357.15 describes the fair hearing scheduling and hearings notice requirements.
New §357.17 describes the different types of hearings.
New §357.19 describes other procedures such as postponement, dismissals, etc.
New §357.21 describes the use of interpreters in a fair hearing.
New §357.23 describes decisions and actions of the hearing officer.
New §357.25 describes fair hearing records and confidential information.
The amendment to §357.702(4) clarifies the type of notice and the record to be reviewed in an administrative review.
The amendment to §357.703(b)(2) describes an exception to the 30-day timeframe for requesting an administrative review.
Fiscal Note
Tracy Henderson, Chief Financial Officer, has determined that for the first five years the proposal is in effect, there will be no fiscal implications for state government or local governments as a result of enforcing or administering the proposal.
Public Benefit
Paul Leche, Special Counsel for Appeals, has determined that, for each year of the first five years the proposal is in effect, the public benefit anticipated as a result of repealing Chapter 357, Subchapters A and D - H, promulgating new rules at Chapter 357, Subchapter A, and revising Subchapter R, §357.702 and §357.703 will be that all parties and their attorneys, as well as all other members of the public involved in the fair hearing process at HHSC, will have clear, comprehensive and up-to-date rules to follow.
Small and Micro-business Impact and Effect on Local Employment
There is no adverse economic effect on small or micro businesses as a result of enforcing or administering the proposal, because the proposal increases flexibility for appellants and does not add any new requirements for businesses. There is no anticipated economic cost to persons who are required to comply with the proposal. There is no anticipated effect on local employment in geographic areas affected by these sections.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a section of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
Takings Impact Statement
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore, does not constitute a taking under §2007.043 of the Government Code.
Public Comment
Questions about the content of this proposal may be directed to Fairy Davenport Rutland, Appeals Director, at (512) 231-5717. Written comments on the proposal may be submitted to Fairy Davenport Rutland, Texas Health and Human Services Commission, HHSC Appeals Division, P.O. Box 149030 (MC W-613), Austin, Texas 78714-9030, or by e-mail to fairy.rutland@hhsc.state.tx.us, within 30 days of publication of this proposal in the Texas Register.
SUBCHAPTER A. MEDICAID FAIR HEARINGS
1 TAC §§357.1, 357.3, 357.5 - 357.7, 357.9, 357.11 - 357.13, 357.15, 357.17, 357.19, 357.21, 357.23, 357.25, 357.27, 357.29
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
Statutory Authority
The repeals are proposed under §531.033 of the Government Code, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties.
The repeals affect Title 1, Part 15, Chapter 357, Subchapters A, D - H, and R. No other statutes, articles or codes are affected by the proposal.
§357.1.Purpose and Scope.
§357.3.Definitions.
§357.5.Notice of Agency Action.
§357.6.Notice of MCO Action and Resolution of MCO Appeals.
§357.7.Maintaining Benefits or Services.
§357.9.Hearing Official.
§357.11.Preliminary Matters for a Standard Fair Hearing.
§357.12.Preliminary Matters for an Expedited Fair Hearing for Individuals Enrolled With an MCO.
§357.13.Location of Hearing and Accommodations.
§357.15.Telecommunication.
§357.17.Document Hearing.
§357.19.Privileges.
§357.21.Burden of Proof.
§357.23.Procedural Rights of the Individual.
§357.25.Dismissal of Hearing.
§357.27.Recording.
§357.29.Hearing Decisions.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900017
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 424-6900
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under §531.033 of the Government Code, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties.
The repeals affect Title 1, Part 15, Chapter 357, Subchapters A, D - H, and R. No other statutes, articles or codes are affected by the proposal.
§357.301.Rule and Regulation Authority.
§357.302.Definitions.
§357.303.Principles.
§357.304.Requirements.
§357.305.Administrative Review of Fair Hearing Decisions.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900018
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 424-6900
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under §531.033 of the Government Code, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties.
The repeals affect Title 1, Part 15, Chapter 357, Subchapters A, D - H, and R. No other statutes, articles or codes are affected by the proposal.
§357.351.Group Hearings.
§357.352.Information on Right of Appeal.
§357.353.Hearing Officer.
§357.354.Notice Requirement--Proposed Termination or Reduction of Assistance.
§357.355.Food Stamp Client Participation in Fair Hearings.
§357.356.Fair Hearing Request.
§357.357.Time and Place of Hearing.
§357.358.Level-of-Care Hearings.
§357.359.Notice for Disability Determination Hearings.
§357.360.Notice in Preadmission Screening and Annual Resident Reviews.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900019
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 424-6900
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under §531.033 of the Government Code, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties.
The repeals affect Title 1, Part 15, Chapter 357, Subchapters A, D - H, and R. No other statutes, articles or codes are affected by the proposal.
§357.401.Conduct of Fair Hearing.
§357.402.Fair Hearing Proceedings.
§357.403.Private (Ex Parte) Consultations.
§357.404.Confidential Material.
§357.405.Furnishing Medical Information.
§357.406.Interrogatories.
§357.407.Prehearing Conference.
§357.408.Order of Fair Hearings.
§357.409.Action by Hearing Officer.
§357.410.Decisions by Hearing Officer.
§357.411.Public Access to Decisions.
§357.412.Transcripts.
§357.413.Retroactive Payments or Restored Benefits or Services.
§357.414.Recovery of Benefits in 10-day Appeals.
§357.415.Time Limits on Appeals.
§357.416.Transient Appeals.
§357.417.Time Periods for Dismissals.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900020
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 424-6900
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under §531.033 of the Government Code, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties.
The repeals affect Title 1, Part 15, Chapter 357, Subchapters A, D - H, and R. No other statutes, articles or codes are affected by the proposal.
§357.441.Requirements.
§357.442.Reversals.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900021
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 424-6900
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under §531.033 of the Government Code, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties.
The repeals affect Title 1, Part 15, Chapter 357, Subchapters A, D - H, and R. No other statutes, articles or codes are affected by the proposal.
§357.461.Requirements.
§357.462.Right of Appeal.
§357.463.Retroactive Benefits.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900022
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 424-6900
1 TAC §§357.1, 357.3, 357.5, 357.7, 357.9, 357.11, 357.13, 357.15, 357.17, 357.19, 357.21, 357.23, 357.25
The new rules are proposed under §531.033 of the Government Code, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties.
The new rules affect Title 1, Part 15, Chapter 357, Subchapters A, D - H and R. No other statutes, articles or codes are affected by these proposed new rules.
§357.1.Definitions.
The following words and phrases, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise:
(1) Across-the-Board Reduction of Services--An automatic change adversely affecting some or all recipients. Examples include, but are not limited to:
(A) changes in social security benefits;
(B) changes in federal or state law; or
(C) termination of a program.
(2) Action Effective Date--The date the agency action becomes effective.
(3) Adequate Notice--Notice in accordance with applicable law, rules, and regulations of the programs.
(4) Affirmative Defense--An explanation for an appellant's actions that excuses or justifies the appellant's behavior.
(5) Agency--Any one of the agencies listed under the Health and Human Services Agencies.
(6) Agency Action--The agency's decision to:
(A) reduce, suspend, terminate or deny benefits;
(B) deny certification of a household; or
(C) grant a benefit in an amount less than requested.
(7) Agency Representative--An individual from an agency or its designee who is authorized to represent the agency or its designee in a fair hearing.
(8) Appeal--A request for a review of an agency action or failure to act that may result in a fair hearing.
(9) Appellant--A client who requests a fair hearing.
(10) Authorized Representative--A person designated by the appellant in writing or designated by statute, regulation, or rule who may act on behalf of the appellant at the fair hearing.
(11) Benefit--A service administered or assistance provided by the agencies or their designees, including determining eligibility for services in the Supplemental Nutrition Assistance Program (formerly the Food Stamp Program), TANF, and Medicaid-funded programs, and other agency programs in which state or federal law or rules provide a client the right to a fair hearing.
(12) Certified Spanish/English Interpreter--An interpreter who is certified by one of the following entities:
(A) American Translators Association;
(B) Federally Certified Court Interpreter through the Federal Court Interpreter Certification Examination;
(C) Interpreter Certification offered through a four-year college or university;
(D) State Certification Programs;
(E) United States Department of State (Escort, Seminar, or Conference level); or
(F) Any other nationally recognized certification program.
(13) CFR--Code of Federal Regulations.
(14) Client--A person who applies for or receives benefits from one of the HHS Agencies.
(15) Date of Appeal Request--The date on which the appellant or the appellant's authorized representative clearly expresses, in writing or orally as required, a desire to appeal.
(16) Date of Decision--The date of the hearings officer's decision, as noted on the decision document.
(17) Date of Notice of Agency Action--The date on the written notice informing the client of the agency action.
(18) Day--Calendar day, unless otherwise specified.
(19) Designee--A contractor, employee, or other agent designated to act for an agency.
(20) Fair Hearing--An informal proceeding held before an impartial HHSC hearings officer in which a client appeals an agency action. These hearings are not open to the public.
(21) Health and Human Services (HHS) Agencies:
(A) Health and Human Services Commission (HHSC);
(B) Department of Aging and Disability Services (DADS);
(C) Department of Assistive and Rehabilitative Services (DARS);
(D) Department of Family and Protective Services (DFPS);
(E) Department of State Health Services (DSHS); and
(F) A reference to an agency includes a designee.
(22) Health Plan--Includes MCO's, ICM and PCCM plans.
(23) Hearings Administrator--The administrator for fair and fraud hearings in the HHSC Appeals Division who oversees daily operations and staff conducting fair hearings.
(24) Hearings Officer--An HHSC employee designated by the Director of the Appeals Division who is responsible for conducting fair hearings and issuing decisions.
(25) Integrated Care Management (ICM) Program--A Medicaid managed care plan where an ICM Contractor manages and coordinates acute care services and long term services and supports for eligible Medicaid clients.
(26) Language Services--Any services that ensure effective communication for full participation of all parties in a hearing.
(27) Managed Care Organization (MCO)--An entity that has a current Texas Department of Insurance certificate of authority to operate as a health maintenance organization (HMO) or as an approved nonprofit health corporation under the Texas Insurance Code.
(28) Nursing Home Action--The nursing home's decision to transfer or discharge a client.
(29) Party--An appellant or his authorized representative or an agency or its representative.
(30) PASARR--Pre-Admission Screening and Resident Review Determination.
(31) Person with Limited English Language Proficiency (LEP)--Person who does not speak English as a primary language and who has a limited ability to read, speak, write, or understand English.
(32) Primary Care Case Management (PCCM)--A managed care model allowed under federal regulations in which the Commission contracts with providers to form a managed care provider network.
(33) Prior Authorization Request--A request for services that is reimbursable only if authorization or approval for the services is obtained before services are rendered.
(34) Texas Health Steps (THSteps)--A program under Medicaid that provides medical and dental check-ups, diagnosis, and treatment to eligible clients from birth through age 20. THSteps was formerly known as EPSDT.
(35) TANF--Temporary Assistance for Needy Families.
§357.3.Authority and Right to Appeal.
(a) Health and Human Services (HHS) System Authority and Responsibilities.
(1) The Health and Human Services Commission (HHSC) is authorized by law to adopt and implement rules to administer the programs it oversees. These uniform fair hearing rules apply to the TANF program, the Supplemental Nutrition Assistance Program, all Medicaid-funded services, and all other agency programs that are required by state or federal law or rules to provide the right to a fair hearing. HHSC delegates to the Appeals Division the authority to appoint hearings officers and to hear fair hearings.
(2) HHSC Appeals Division is responsible for:
(A) publishing fair hearing rules;
(B) receiving fair hearings appeal requests;
(C) conducting fair hearings; and
(D) issuing decisions.
(b) Right to Fair Hearing.
(1) Clients of Medicaid-funded services, TANF, the Supplemental Nutrition Assistance Program, and other agency programs in which state or federal law or rules provides a right to a fair hearing, are entitled to appeal the following actions:
(A) an action to reduce, suspend, terminate, or deny benefits;
(B) a failure to act with reasonable promptness on a client's claim for benefits or services;
(C) a decision to transfer or discharge a resident from a skilled nursing facility or nursing facility;
(D) an adverse determination made regarding preadmission screening and resident review (PASARR);
(E) the denial of a prior authorization request; and
(F) the failure to reach a service authorization decision within the time period specified by federal law.
(2) Time for Fair Hearing. The client has the right to appeal:
(A) the current level of food stamp benefits anytime within a food stamp certification period; and
(B) in all other actions, within 90 days from the date on the notice of agency action.
(3) Manner of Requesting Fair Hearing. The client may appeal more than one action at the same time and, unless otherwise provided in program rules or notices, in writing or orally.
(4) The Right to a Fair Hearing--Exceptions:
(A) Under the Supplemental Nutrition Assistance Program the household may request a fair hearing when it is aggrieved by a mass change in benefits.
(B) Under all other programs, the agency is not required to grant a hearing if the sole issue is a federal or state law requiring an automatic change adversely affecting some or all clients.
(C) The client can appeal the application to him of an across-the-board reduction in benefits or services on the ground that he is not in the class affected by the automatic change.
§357.5.Hearings Officer Responsibilities.
(a) Fair hearings are conducted by an impartial hearings officer who:
(1) does not have a personal involvement in the case;
(2) was not involved in the initial determination of the action that is being contested; and
(3) was not the agency representative who took the action or the immediate supervisor of that representative.
(b) The hearings officer's supervisor may reassign the fair hearing to another officer.
(c) Responsibilities. The hearings officer conducts the fair hearing as an informal proceeding, not as a formal court hearing, and is not required to follow the Texas Rules of Evidence or the Texas Rules of Civil Procedure.
(1) General duties. The hearings officer:
(A) determines whether a client requested a fair hearing in a timely manner, or had good cause for failing to do so;
(B) schedules a pre-hearing conference to resolve issues of procedure, jurisdiction, or representation, if necessary;
(C) requires the attendance of agency representatives, or witnesses, if necessary;
(D) is prohibited from engaging in ex parte communication, whether oral or written, with a party or the party's representative or witness relating to matters to be adjudicated; and
(E) arranges for reasonable accommodations for disclosed disabilities.
(2) During the hearing, the hearings officer:
(A) makes the official recording of the hearing;
(B) ensures that the appellant's and agency's rights are protected;
(C) determines whether there is a need for an interpreter;
(D) limits the number of persons in attendance at the hearing if space is limited;
(E) controls the use by others of cameras, videos, or other recording devices;
(F) administers oaths and affirmations;
(G) ensures consideration of all relevant points at issue and facts pertinent to the appellant's situation at the time the action was taken;
(H) considers the appellant's changed circumstances, when appropriate and possible;
(I) requests, receives, and makes part of the record all relevant evidence;
(J) regulates the conduct and course of the fair hearing to ensure due process and an orderly hearing;
(K) conducts the hearing in a way that makes the appellant feel most at ease; and
(L) orders, if determined to be necessary, an independent medical assessment or professional evaluation to be paid for by the agency or the agency's designee.
(3) After the hearing, the hearings officer:
(A) makes a decision based on the evidence presented at the hearing;
(B) determines if the agency's or its designee's action is in compliance with statutes, policies, or procedures;
(C) allows the appellant to request and receive a copy of the recording at no charge;
(D) except as provided in subparagraph (E) of this paragraph, issues a timely written decision, and includes findings of fact, conclusions of law, pertinent statutes, and a final order;
(E) issues a decision in THSteps cases containing the purpose of the hearing, the legal authority, procedural history, summary of the evidence, findings of fact, conclusions of law, and relevant authorities; and
(F) to ensure compliance, orders the agency, its representative or designee to implement the order within the time limits specified in the relevant federal regulation, monitors compliance with the order, and notifies program management if the order is not implemented.
§357.7.Agency and Designee Responsibilities.
(a) The agency must:
(1) accept a request for a fair hearing submitted within 90 days from the date on the notice of agency action, or, under the Supplemental Nutrition Assistance Program, at any time during the food stamp certification period;
(2) notify the HHSC Appeals Division within five days of the date the client expresses a desire to appeal; and
(3) allow the client to appeal more than one action at the same time.
(b) The agency or the agency's representative or designee must:
(1) allow the appellant to review the appeal procedures in HHSC's policies;
(2) provide to the hearings officer and the appellant, at no cost, copies of all documentation and evidence to be used in the fair hearing;
(3) appear at the scheduled hearing;
(4) be prepared to explain and defend the decision or action taken against the appellant; and
(5) implement the hearings officer's final order within the time limit specified in the relevant federal regulation.
§357.9.Burden of Proof in a Fair Hearing.
The burden of proof in a fair hearing regarding a specific issue is proof by a preponderance of the evidence. The party that bears the burden of proof meets the burden if the stronger evidence, on the whole, favors that party, as determined by the hearings officer. Depending on the type of hearing, the following apply:
(1) The agency or its designee bears the burden of proof.
(2) The MCO, PCCM or ICM bears the burden of proof.
(3) The nursing facility bears the burden of proof in transfer and discharge hearings.
(4) The appellant bears the burden of proof:
(A) to show good cause, i.e., demonstrate why the appellant did not appear at a scheduled hearing; or
(B) to prove an affirmative defense, i.e., demonstrate that the appellant attempted to comply with program rules.
§357.11.Notice and Continued Benefits.
(a) The agency must:
(1) follow the notice requirements set forth in the appropriate state or federal law or regulation for the affected program;
(2) give clients timely and adequate notice, as appropriate, of the right to a fair hearing;
(3) explain the right of appeal;
(4) explain the procedures for requesting an appeal;
(5) explain the right to be represented by others, including legal counsel;
(6) provide information about legal services available in the community;
(7) continue benefits if required to do so by state or federal regulations or statutes; and
(8) not reinstate or continue food stamp benefits if a client requests a fair hearing after the date his certification period has ended.
(b) In Medicaid cases, except as specifically provided in federal regulations, the following apply:
(1) The written notice to an individual of the individual's right to a hearing must:
(A) contain an explanation of the circumstances under which Medicaid is continued if a hearing is requested; and
(B) be mailed at least 10 days before the date the individual's Medicaid eligibility or service is scheduled to be terminated, suspended, or reduced, except as provided by federal rules.
(2) If a hearing is requested before the date a Medicaid recipient's service, including a service that requires prior authorization, is scheduled to be terminated, suspended, or reduced, the agency may not take that proposed action before a decision is rendered after the hearing unless:
(A) it is determined at the hearing that the sole issue is one of federal or state law or policy; and
(B) the agency promptly informs the recipient in writing that services are to be terminated, suspended, or reduced pending the hearing decision.
§357.13.Appellant Rights and Responsibilities.
(a) Requesting an Appeal. Only the appellant or the appellant's authorized representative has the right to appeal an action by an agency. The appellant may choose in writing any individual or institution to serve as an authorized representative.
(b) During the appeal process, the appellant has the right to:
(1) reapply for assistance;
(2) receive continued benefits if required by state or federal regulation or statute;
(3) confer with supervisory staff within the appropriate agency about the case prior to the hearing;
(4) continue with the fair hearing after a case adjustment or correction is made;
(5) request that reasonable accommodations due to disability or language comprehension be provided at the hearing at no cost;
(6) make an audio recording of the fair hearing;
(7) examine at a reasonable time before the date of the hearing and during the hearing:
(A) the content of the appellant's case file; and
(B) all documents and records to be used by the agency or the skilled nursing facility or nursing facility at the hearing;
(8) review the appeal procedures outlined in agency policy; and
(9) request a copy of the official recording at no charge after the decision is issued.
(c) An appellant or an authorized representative or legal counsel may send written interrogatories or request a pre-hearing conference to get additional information. The written interrogatories must be clear and concise, contain no more than 30 questions, and be submitted no less than 20 days prior to the hearing.
(d) Procedural Rights. The appellant has the right to:
(1) present the case personally or with the aid of others, including but not limited to the appellant's representative or legal counsel;
(2) bring witnesses;
(3) present information about all pertinent facts and circumstances;
(4) present arguments or address anything about the case without undue interference;
(5) confront and cross-examine adverse witnesses; and
(6) submit documentary evidence to the hearings officer before, during, or after the hearing as allowed by the hearings officer. Evidence submitted after the hearing, if accepted, must be entered into the record and shared with all parties.
(e) Appellant's Responsibilities. The appellant or the appellant's authorized representative is responsible for:
(1) participating in the fair hearing; and
(2) informing the hearings officer prior to the fair hearing that the appellant needs an interpreter or other accommodation due to a disability.
§357.15.Scheduling Hearings and Notice Requirements.
(a) Scheduling:
(1) Except as provided by paragraph (2) of this subsection, the hearings officer schedules fair hearings in the order in which the requests are received and determines a reasonable date, time, and place for the fair hearing.
(2) For good cause, the hearings officer may schedule fair hearings other than in the order in which the requests were received.
(3) The hearings officer must expedite hearing requests as provided in §357.17(b) of this subchapter (relating to Types of Hearings).
(b) Notice Requirements. No less than 14 days prior to the fair hearing, the fair hearings office sends all parties notice of the date, time, and place of the scheduled hearing. The notice informs the appellant:
(1) of the basis for the action or intended action taken by the agency or its designee;
(2) of the fair hearing procedures;
(3) of the name, address, and telephone number of the person to notify in the event the appellant cannot attend the hearing;
(4) of legal services that may be available to provide representation at the hearing;
(5) of the requirement to contact the hearings officer before the scheduled hearing to request reasonable accommodations due to disability or language comprehension;
(6) that the fair hearing will be dismissed for failure to appear without good cause;
(7) that documents to be used in the fair hearing are available for appellant's examination at a reasonable time before, during, and after the hearing; and
(8) that the case file is available for review upon request.
§357.17.Types of Hearings.
(a) Telephone and In-Person Hearings.
(1) The hearings officer conducts fair hearings by telephone ensuring that all parties are able to hear and respond to each other;
(2) An appellant may request that a hearing be conducted in person; and
(3) The hearings officer determines whether good cause for an in-person hearing exists.
(b) Expedited Appeals. The following hearings are expedited:
(1) Hearings for Transients--Transient appeals are food stamp and/or TANF appeals submitted by an appellant who plans to move from the jurisdiction of the hearings officer before the hearing decision would normally be issued. An example of a transient appeal is an appeal filed by a household that includes migrant farm workers. The hearing must be held and a decision made within 15 working days from the date the hearings officer receives the hearing request if:
(A) the appellant agrees to the reduced notice of the time, date, and place of the hearing; and
(B) the hearings officer has sufficient information available to make a decision without requesting additional information.
(2) Managed Care Organization (MCO) Hearings which includes PCCM and ICM models.
(A) Expedited hearings are granted an individual if the health plan or health plan provider determines that taking the time for resolution of a fair hearing could seriously jeopardize the individual's life or health or ability to attain, maintain, or regain maximum function;
(B) The appellant may request an expedited fair hearing within 10 days after the date the notice of health plan action is mailed;
(C) The request for an expedited fair hearing must be submitted according to the instructions provided in the notice of health plan action;
(D) The hearing is held within three business days after the receipt of the case file from the health plan which must be immediately forwarded to the Appeals Division; and
(E) If a request for an expedited fair hearing is not received within the 10-day period, the appellant is deemed to have waived the right to an expedited fair hearing. A request received after the tenth day is considered a request for a fair hearing.
(c) Requesting a Fair Hearing Rather Than an Expedited Appeal on Health Plan Actions.
(1) The appellant may file an appeal with the health plan and/or request a fair hearing from the State within 90 days after the date on the notice of health plan action.
(2) The request for a fair hearing must be submitted according to the instructions provided in the notice of health plan appeal resolution.
(3) If a request for a fair hearing is not received within the 90-day period, the appellant is deemed to have waived the right to a fair hearing, and the action of the health plan becomes final.
(d) Group Hearings--The hearings officer may consolidate hearings, upon request of multiple appellants, if the sole issue involved in the cases is one of Federal or State law or policy. In all cases except food stamp cases, the request must be in writing, signed by each appellant, and state the common issue(s). Requests for group hearings in food stamp cases may be made orally or in writing. An appellant may also withdraw from a group hearing at any time before a final decision is issued. If an appellant wishes to withdraw, he must submit a signed request in writing. Group hearings follow the same procedures as individual hearings.
§357.19.Other Procedures.
(a) Postponement. The hearings officer considers a postponement for a hearing only if the appellant or his authorized representative contacts the appropriate appeals office before the scheduled hearing is to occur.
(1) Food Stamp Fair Hearings--The appellant is entitled to receive one postponement of up to 30 days. Additional postponements may be approved if the hearings officer determines that there is good cause.
(2) All other Fair Hearings--The hearings officer may postpone a fair hearing if the hearings officer determines that good cause exists.
(3) The hearings officer must state in writing the decision on the request to postpone and send it to the appellant and agency.
(b) Dismissals.
(1) The hearings officer dismisses the fair hearing if the appellant fails to appear at the scheduled hearing.
(2) The appellant will have 30 days to submit in writing a request to re-open the hearing and the reasons that he failed to appear at the scheduled fair hearing.
(3) The hearings officer will consider the request and determine whether the appellant had good cause for missing the scheduled hearing. If the hearings officer determines the appellant had good cause for failing to appear, the hearings officer will re-open the hearing and set a new hearing date.
(4) The hearings officer documents the dismissal in writing and sends the decision to the parties.
(c) Withdrawals.
(1) Only the appellant or his or her authorized representative can withdraw the request for appeal.
(2) The appellant or his or her authorized representative must make the request to withdraw in writing to the hearings officer, an agency representative, or designee.
(3) If the appellant or his authorized representative orally requests to withdraw the appeal, he must confirm the request in writing. If a written request is not submitted, the hearings officer must notify the appellant in writing that if the written request is not received within 10 days, the appeal will be withdrawn based upon the original oral request.
(4) An oral request to withdraw during a hearing will be accepted in lieu of a written withdrawal.
(5) If an appellant dies during the appeal process, the hearings officer considers the appeal withdrawn unless the hearings officer is notified that the authorized representative or the appellant's executor intends to pursue the appeal.
(d) Recessed Fair Hearings. Once the hearing has begun, the hearings officer may recess the hearings proceedings if the hearings officer finds good cause for the recess. Following notice to both sides, the hearings officer may reconvene the hearing, if necessary.
(e) Administrative Review. Except for TANF decisions, an administrative review of a hearings decision is provided as set forth in §§357.701 - 357.703 of this chapter (relating to Purpose and Application, Definitions and Process and Timeframes).
(f) Review of TANF Decisions.
(1) An appellant or his or her authorized representative may make a timely request for a review of the decision.
(2) A request for a review of the decision must be postmarked within 30 days of the date of notice of the hearings officer's decision, and must be addressed to the hearings administrator.
(3) The scope of the review is limited to determining whether the hearings officer followed laws, procedures, and program rules introduced in the hearing.
§357.21.Interpreters in Fair Hearings.
(a) Determining the Need for Interpreters.
(1) The hearings officer informs the appellant on the record that he will be provided an interpreter at no cost if the appellant can show that the appellant or required participants are not able to participate in the hearing due to a language barrier.
(2) No interpreter is required if the hearings officer determines that all participants are sufficiently fluent in the same language so that no barrier is present.
(b) Types of Interpreters.
(1) Spanish/English--HHSC Appeals Division uses a certified interpreter;
(2) Other Spoken languages--HHSC Appeals Division makes every effort to use the most qualified interpreter for a person with limited English proficiency whose native language is not English or Spanish; and
(3) Sign Language--HHSC Appeals Division provides a qualified sign language interpreter for a person who is hearing impaired and requests the service.
(c) Use of an Interpreter.
(1) An interpreter is not required if the hearings officer determines that all parties are able to communicate effectively in the appellant's primary language and all hearing participants state on the record that they can communicate.
(2) The basis of the hearings officer's decision will be stated on the record.
(d) Effectiveness of Interpretation. If a party or authorized representative, during a fair hearing, makes a legitimate objection concerning the interpretation by an interpreter, the hearings officer:
(1) informs the authorized representative and the appellant of the right to request that the case be reheard;
(2) addresses the objection or complaint concerning the quality of the interpretation, including a request to rehear the case;
(3) finishes the hearing with the original interpreter; or
(4) provides a new interpreter at a later date.
§357.23.Hearings of Officer Decision and Actions.
(a) Time Limits for Issuing Decisions.
(1) Food stamp hearings--60 days from the date the appeal request is received by the agency or designee.
(2) Non-food stamp hearings--90 days from the date the appeal request is received by the agency or designee.
(3) The time limit for issuing a decision may be extended by as many days as the fair hearing is postponed or recessed at the request of the appellant.
(b) Decisions by Hearings Officer. The hearings officer issues a decision based exclusively on testimony and evidence introduced at the hearing. The hearings officer must:
(1) issue a written decision in English;
(2) provide the appellant with a copy of the decision; and
(3) provide a translated cover letter in Spanish for hearing decisions where a Spanish interpreter was used. The cover letter instructs the appellant to call the hearings officer if he needs assistance to understand the decision. An appellant who indicates by telephone, in person, or in writing that assistance is needed to understand the decision must receive an explanation of the hearing decision from bilingual personnel within a reasonable period.
(c) Sustained Decisions in THSteps Appeals--If the decision sustains the agency action reducing, suspending, denying, or terminating a requested service:
(1) on the basis that there is no federal financial participation, the decision must contain an explanation of the basis for the hearings officer's decision, applying the state and federal law to the individual's particular request; or
(2) on the basis that the service is not medically necessary, the decision must contain an explanation of the medical basis for the hearings officer's decision, applying the agency's policy or the accepted standards of medical practice to the individual's particular medical circumstances; and
(3) All THSteps decisions must contain legal authority, purpose of the hearing, procedural history, summary of evidence, relevant authorities, findings of fact, and conclusions of law.
(d) Decisions that are Reversed. The hearings officer reverses a decision of the agency or designee if the action or inaction is not supported by the evidence introduced at the hearing, and is not supported by statutes, policies, or procedures applicable at the time the action or inaction occurred. The agency may be instructed to issue retroactive payments or restored benefits in accordance with applicable rules, regulations, and statutes.
(e) Decisions that are Upheld. The hearings officer upholds a decision of the agency or its designee if the action is in accordance with statutes, policies, and procedures introduced at the hearing.
(f) Reopened Hearings--Appellant. The hearings officer may reopen an appeal and reconsider the decision if, within 12 months of the decision date, the appellant presents evidence that:
(1) the hearings officer has determined the information would have affected the outcome of the original decision;
(2) shows the original decision was not valid; and
(3) was not presented at the hearing by the appellant.
(g) Authority of the Hearing Officer to Re-issue a Decision. The hearings officer has the authority to withdraw, revise, and re-issue a decision. The hearings officer may re-issue the decision within 20 days of the date of the original decision if the hearings officer becomes aware of an error of law or fact that would have affected the outcome of the decision.
§357.25.Records and Confidential Information.
(a) Record Maintenance. The official record of the hearing includes the exhibits offered to the hearings officer, the exhibits admitted, the recording of the hearing, any briefs or memoranda filed in connection with the hearing, the hearings officer's decision, and any items filed in connection with administrative review and the decision on administrative review.
(b) Hearing Record Retention Maintained by Appeals Division.
(1) Records of food stamp cases--three years from the decision date.
(2) Records of all other cases--four years from the decision date.
(c) Public Access.
(1) HHSC Appeals Division records and decisions are available for public inspection and copying, but are also subject to federal and state rules and statutes regarding confidentiality.
(2) Names, addresses, and other identifying information about household members and other individuals who provide information about the household, medical information, and the status of pending criminal prosecutions are confidential.
(3) An appellant or authorized representative may record the hearing or request a copy of the recording, at no cost, from the hearings officer.
(4) All other public access to hearings records and decisions is subject to the Texas Public Information Act.
(5) The agency will redact all confidential information from the hearings decision and make the decision available to the public, without cost, within 30 days of the date of the hearing decision in Texas Health Step appeals.
(d) Confidential Information. Confidential information that can not be shared with hearing participants may not be considered by the hearings officer.
(e) Privileged Communication. No party to a fair hearing is required to disclose at the hearing information that is privileged from discovery by federal or state law, including communications between a lawyer and an appellant, a husband and a wife, a member of the clergy and a person seeking spiritual advice, or the name of an informant whose identity is protected from compelled disclosure.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900023
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 424-6900
The amendments are proposed under §531.033 of the Government Code, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties.
The amendments affect Title 1, Part 15, Chapter 357, Subchapters A, D - H and R. No other statutes, articles or codes are affected by these proposed amendments.
§357.702.Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Administrative Review--A desk review performed by an HHS System attorney of a hearing decision related to benefits provided under the public assistance programs of Chapters 32 and 33, Human Resources Code and is limited to the hearing record that was considered by the hearings officer.
(2) - (3) (No change.)
(4) Date of Notice of Hearings Officer's Decision--The
date on the written notice that contains the hearings officer's
decision [informs the client of the agency action or decision
].
(5) - (8) (No change.)
§357.703.Process and Timeframes.
(a) (No change.)
(b) The following provisions establish the process and timelines for an administrative review under this subchapter.
(1) (No change.)
(2) To be timely, a request for an administrative review of the hearing officer's decision must be postmarked not later than the 30th day after the date of the notice of the decision and must be addressed to the hearings administrator. A request for administrative review will be considered timely if filed after 30 days, where Appellant demonstrates good cause. Exception: The 30 days does not begin until a new decision is issued if the appellant or appellant's representative is working with the hearing officer to reopen or reschedule the hearing.
(3) Within 10 days of receipt of the request for administrative review, the Commission designates a HHS System attorney to handle the administrative review of the hearing decision on behalf of the HHS System Agency. The assigned attorney reviews the hearing decision and the hearings record upon which it is based for errors of law and errors of fact using the "preponderance of evidence" standard. This standard means that the evidence as a whole shows that the fact sought to be proved is more probable than not.
(4) - (5) (No change.)
(c) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900024
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 424-6900