|Client Appeals Update
|Ended on 10/26/2022
Dear Regulatory Supervisor McClellan:
The due process requirement of adequate notice was later clarified to require that “interested parties be given a reasonable opportunity to know the claims of adverse parties and an opportunity to meet them.” North Alabama Express, Inc. v. United States, 585 F.2d 783, 786 (5th Cir.1978). Adequate notice should "specify the nature of the facts and evidence on which the agency proposes to take action." Hess & Clark, Division of Rhodia, Inc. v. Food and Drug Administration, 161 U.S. App. D.C. 395, 495 (D.C.Cir.1974). Wolff v. McDonnell, 418 U.S. 539, 564 (1974) ("Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact"). DDriver v. Housing Authority, 713 N.W.2d 670, 676, 678 (Wis. Ct. App. 2006). Issue switching occurs where the decision-maker decides against the appellant on an alternative ground that was not provided in the notice and therefore the appellant was unable to defend against the new issue. See Camacho v. Bolling, 562 F. Supp.1012, 1019 (N.D. Ill. 1983).
Definitions: We want to note that the definition for adverse decision includes the reasons listed in 42 CFR 431.244 but does not include all of the appeal reasons listed in 42 CFR 438.400(b) and also does not include appealable reasons, such as inaction, found in 12VAC30-110-10. We would ask that this definition be revised.
We are very supportive of Section B as a whole but suggest clarifying agency or MCO deference:
“The hearing officer shall consider[...] and shall not give deference to the agency or managed care organization.”
“D. Submission of evidence. If possible, the [...]
Failure to submit information with the appeal so that it can be moved forward will add delay to the appeal decision due date per 42 CFR 431.244.”
Where the decision is unable to be reached, in an unusual circumstance beyond the agency’s control, the agency still has the right pursuant to 42 CFR§ 431.244(4)(i)(B) to extend the timeline for the decision. However, failure to submit evidence with an appeal request will never meet this rule as that is not a required action. It is only where evidence is submitted so late that it causes an actual delay that a delay can be allowed—unusual circumstances.
E. Previously approved services. In an appeal involving a proposed termination or reduction of a previously approved Medicaid service, the existence of a previously approved service authorization shall create a presumption that the service was medically necessary when it was approved. The strength of this presumption is directly related to the number and duration of previous approvals. For the entity that has proposed the termination or reduction to satisfy its burden of proof, it must demonstrate by a preponderance of the evidence that the Member’s condition has changed since the previous approval such that a reduction or revocation of the service is required by law, regulation, or policy, or it must demonstrate that the previous authorization was made in error with evidence sufficient to rebut the presumption that the service was previously medically necessary.
Final Decision and Transmission of the Hearing Record
Hearing officers have failed to address legal arguments made in hearings in their reasoning and failed to explain why evidence was not probative in violation of due process.
We appreciate all of the work that has gone into implementing the de novo hearing system and the opportunity to comment on these changes.
Emily Hardy Sara Cariano
Elder Law Attorney Senior Health Policy Analyst