N.M. Admin. Code § 8.352.2.12

Current through Register Vol. 35, No. 21, November 5, 2024

Section 8.352.2.12 - NOTICE, TIME LIMITS, POSTPONEMENT, OR THE DISMISSAL OF MCO APPEAL OR A HSD ADMINISTRATIVE HEARING REQUEST

A.Notice:

(1) MAD or its UR contractor shall issue a "notice of action" to an individual when it intends to take an adverse action against an individual. When the notice of action relates to a reduction or termination of a service, LOC, or another benefit the individual already receives, the notice of action shall be sent not less than 10 calendar days prior to the date of MAD's or its UR contractor's intended adverse action.

(2) The MCO appeal process is governed by and set forth in detail in 8.308.15 NMAC.

B.Exceptions to a notice of action: Notwithstanding the notice requirement set forth in the preceding subsection, MAD, its UR contractor or the MCO may mail a notice of action to the individual or the individual's authorized representative or estate (in the event of an individual's death) no later than the actual date of the intended adverse action when:

(1) MAD, its UR contractor or the MCO has confirmed the death of the individual;

(2) MAD, its UR contractor or the MCO has received a clear written statement signed by the individual or the individual's authorized representative that all or a portion of an authorized service is no longer wanted;

(3) the individual or the individual's authorized representative provides information to MAD, its UR contractor or the MCO that indicates his or her understanding that such information may require MAD, its UR contractor or the MCO to take the adverse action;

(4) MAD, its UR contractor or the MCO learns the individual is residing in an institution, which renders the individual ineligible for MAP enrollment and MAD services;

(5) MAD, its UR contractor or the MCO cannot determine the physical location of either the individual, or if designated, his or her authorized representative;

(6) MAD, its UR contractor or the MCO has established that the individual has been accepted for medicaid services outside of the state; or

(7) the primary care provider for the individual has prescribed a change in his or her LOC.

C.Time limits: An individual or his or her authorized representative must adhere to the time limits for requesting both a continuation of a benefit and a HSD administrative hearing.

(1) Requesting a HSD administrative hearing: an individual who is not enrolled in a MCO has 90 calendar days from the date of the "notice of action" to request a HSD administrative hearing. To be considered timely, the request must be received by FHB, the individual's local income support division (ISD) office or by the MAD director's office no later than the close of business on the 90th calendar day immediately following the date of the notice of action. If the request for a HSD administrative hearing is mailed by the individual, the request must be postmarked by the 90th calendar day from the date of the notice of action. For a member of a MCO, see 8.308.15 NMAC for detailed description of the MCO appeal process.

(2) Continuation of a benefit:

(a) An individual who is not a member of a MCO, may request that the benefit that is the subject of an adverse action continue while his or her HSD administrative hearing proceeds. A request for a continuation of the benefit shall be accorded to any claimant who requests the continuation within 10 calendar days of the mailing of the notice of action by MAD or its UR contractor. The continuation of a benefit is only available to an individual that is currently receiving the appealed benefit and will be the same as the individual's current allocation, budget or LOC. MAD or its UR contractor must provide information in its notice of action of an individual's rights and limitations to continue a benefit during his or her HSD administrative hearing process and of the responsibility to repay MAD for the continued benefit if the HSD administrative hearing final decision is against the individual.

(b) A member of a MCO must follow his or her MCO appeal process. The member may request the benefit that is the subject of an adverse action continue while his or her MCO appeal process proceeds. A request for a continuation of a benefit shall be accorded to any member who requests the continuation within 10 calendar days of his or her MCO's mailing of the notice of action. The continuation of a benefit is only available to a member that is currently receiving the appealed benefit. The continuation of the benefit will be the same as the member's current allocation, budget or LOC. The MCO must provide information in its notice of action of a member's rights and limitations to continue a benefit during his or her MCO appeal process and of the responsibility to repay the MCO for the continued benefit if the MCO final appeal decision is against a member and, if the member requests a HSD administrative hearing, its final decision is also against the member as a claimant. The MCO appeal process is outlined in 8.308.15 NMAC.

(3) For a member who is enrolled in a MCO and who is dissatisfied with the MCO's final appeal process, the time limit to request a HSD administrative hearing is 30 calendar days following the MCO's final decision of his or her appeal.

(a) Upon requesting a HSD administrative hearing within this time limit, the member is referred to as the claimant and is governed by the remaining sections of this rule.

(b) If the member had a continuation of his or her benefit during the MCO appeal process, the claimant automatically maintains his or her continuation of the benefit throughout the remaining HSD administrative hearing process. If the claimant or the claimant's authorized representative opts to discontinue his or her benefit during the HSD administrative hearing process, the claimant or the claimant's authorized representative must contact the MCO to end services.

(4) The HSD administrative hearing is concluded within 90 calendar days from the date the claimant or the claimant's authorized representative requests a HSD administrative hearing unless the claimant or the claimant's authorized representative agrees to extend the HSD administrative hearing time frame in order to facilitate the process.

D.Dismissal of a hearings request: HSD authorizes FHB to issue a dismissal of a claimant or member's request for a HSD administrative hearing when:

(1) the request is not received within the time periods specified in the rules and notice of action, or if the claimant is a MCO member and the member has not followed or exhausted the appeal process available under the MCO;

(2) the request is withdrawn or cancelled in writing by the individual or the individual's authorized representative;

(3) the sole issue presented concerns a federal or state statue, regulation or rule requiring an adjustment of benefits for all or certain classes of individuals, including, but not limited to, a termination, modification, reduction, or suspension of a service;

(4) the same issue involving the individual has already been subject to a final decision by the MAD director following a HSD administrative hearing;

(5) the sole issue presented is regarding a New Mexico administrative code (NMAC) rule rather than the application of the rule to the claimant or the member; or

(6) the claimant, the member, or the authorized representative fails to appear telephonically or in person at a scheduled hearing without good cause at which time a HSD administrative hearing may be considered abandoned and therefore dismissed. However, if the claimant or the claimant's authorized representative presents to the ALJ good cause for failure to appear within 10 calendar days after the date of the scheduled HSD administrative hearing, the HSD administrative hearing may be rescheduled. Good cause includes a death in the family, a disabling personal illness or another significant emergency or at the discretion of the ALJ, as appropriate, another exceptional circumstance. If the ALJ determines that the claimant or the claimant's authorized representative has shown good cause, the HSD administrative hearing will be rescheduled.

(7) When an ALJ dismisses a claimant's request for a HSD administrative hearing, that decision becomes HSD's administrative hearing final decision. A claimant may elect to then file a state district court judicial appeal.

N.M. Admin. Code § 8.352.2.12

8.352.2.12 NMAC - Rp, 8.352.2.13 NMAC, 6-15-14