Informal Conference/Fair Hearings
Individuals receiving a Notice of Decision (NOD) for issues related to the waiver are eligible for an Informal Conference and/or a Fair Hearing. When a applicant/participant has concerns regarding the NOD, the program tries to work with the applicant/participant to reach a resolution. However, when that can not occur, the program assures the applicant/participant knows his/her rights about requesting an Informal Conference and/or Fair Hearing, and aid continuing, if applicable. All NODs must include information regarding an individual's Informal Conference and Fair Hearing rights; how to apply for an Informal Conference and/or Fair Hearing; and, how to maintain his/her benefits throughout the Fair Hearing process (aid continuing), if appropriate.
If a participant receives a NOD from the RRDS, an Informal Conference may be conducted prior to or while pursuing a formal Medicaid Fair Hearing. A review by the RRDS may be requested by the participant, legal guardian, advocate, Service Coordinator or anyone involved in the development of the Service Plan. Requesting an Informal Conference does not affect the participant's ability or right to request a Fair Hearing.
The Informal Conference is an opportunity for the participant and/or Legal Guardian to review with the RRDS the reasons for the NOD and address information they feel is not properly represented. Through discussion and negotiation, it may be possible to resolve issues without a Fair Hearing.
A Fair Hearing is a hearing held in the presence of a Hearing Officer, a specially trained administrative law judge from the New York State Office of Temporary and Disability Assistance (OTDA). The judge hears arguments from the applicant/participant or Legal Guardian who wishes to aBack to Topppeal a NOD issued by the RRDS. In addition, providers may assist in clarifying issues and attend the hearing upon the request of the RRDS or DOH.
An individual has the right to seek a Fair Hearing for many reasons including issues related to the NHTD waiver. Decisions regarding Medicaid eligibility are addressed through the Fair Hearing process with the Local Department of Social Services.
Issues related to the waiver that can be addressed through the Fair Hearing process include:
- Was the applicant offered the choice of waiver service(s) as an alternative to a nursing home?
- Was the applicant or participant denied the waiver service(s) of his or her choice?
- Was the applicant or participant denied the waiver services of an approved waiver service provider that was willing to serve the applicant/participant?
- Was the decision to reduce or eliminate waiver services correct? and/or
- Was the decision of Denial or Intent to Discontinue correct?
Issues about the waiver that are NOT addressed through the Fair Hearing process include:
- Was the applicant or participant in need of a nursing home level of care (as determined by the PRI/SCREEN)?
- Does the waiver have any openings based on the number of participants
- approved for the waiver as specified by the federal government? and/or
- Does the applicant have evidence of a physical disability if between ages 18 and 64 or, is a senior over the age of 65?
Aid continuing offers the participant an opportunity to continue Medicaid benefits previously received while he/she pursues a Fair Hearing until a final determination is made.
When aid continuing is an option included in the NOD form sent to the participant, he/she has the right to pursue or decline continuation of Medicaid benefits. If the participant wants aid continuing until the Fair Hearing decision is received, this request must be done within ten (10) calendar days of the Notice Date on the form, indicated as the Effective Date. If this ten (10) day time period elapses, the participant can no longer request aid continuing but may still request a Fair Hearing, as long as it is done within sixty (60) calendar days of the Notice Date on the form. If aid continuing is requested, in most instances Medicaid benefits will stay the same until the Fair Hearing decision is made. However, if a participant receives aid continuing and loses the Fair Hearing, he/she may have to pay back the cost of any Medicaid benefits he/she should not have received while waiting for the Fair Hearing decision.
Fair Hearing Process
Upon receiving a copy of a NOD from the RRDS, the Service Coordinator and the participant discuss the impact of the NOD. Information must include discussion of participant's right to pursue an Informal Conference, Fair Hearing or both, and aid continuing policies. The participant is directed to follow the instructions provided in the NOD.
When OTDA receives notification from the participant and/or Legal Guardian of his/her intent to pursue a Fair Hearing, OTDA notifies DOH and the RRDS.
If the request for Fair Hearing also includes the participant's request for aid continuing, the RRDS notifies the Service Coordinator so that appropriate notification can be made to the waiver providers.
To prepare for the Fair Hearing the RRDS:
- 1. Works in conjunction with DOH Waiver Management staff to prepare for the
- Prepares an Evidentiary Packet containing copies of all required documentation and examples that explain the reasons for the NOD and address the participant's concerns;
An Evidentiary Packet includes copies of the following:
- Verification of current Medicaid coverage/eligibility, indicating LTC eligibility;
- Notice of Decision(s) sent to participant resulting in the request for Fair Hearing ;
- Current H/C PRI and SCREEN, completed by an individual(s) certified to administer the tools;
- Freedom of Choice form, signed by the applicant/participant;
- Case notes;
- Current ISP, RSP and/or Addendum approved and signed by RRDS;
- Plan for Protective Oversight;
- Service provider notes/records which serve as documentation of recurring issues, if applicable;
- Neurobehavioral assessments and notes, if applicable;
- Pages from the NHTD Program Manual applicable to the case with section and page number(s) noted; and
- k. Record of attempts made by the RRDS and Service Coordinator to work with the participant to resolve any issues which have contributed to the issuance of the NOD which is the basis for the Fair Hearing.
- Responds in a timely manner to a participant's request for access to and/or copies of documents from the participant's record;
- Attends the Fair Hearing and presents information to the Administrative Law Judge. (DOH may request that its legal counsel or another waiver entity, e.g. waiver provider attend the Fair Hearing and present information as appropriate); and
- Keeps DOH Waiver Management staff informed of any issues that occur during the Fair Hearing process.
Generally within 90 days, OTDA sends a formal written response to the participant, DOH and LDSS with the final decision of the hearing. DOH provides a copy of this response to the RRDS.
- Notifies the Service Coordinator of the outcome of the hearing so that appropriate follow-up can occur;
- Assures that any changes to the Service Plan are made accordingly; and
- Assures that if discontinuation from the waiver is indicated for the participant, the Service Coordinator establishes a safe and appropriate discharge plan.