C.M.R. 10, 144, ch. 101, ch. I, § 144-101-I-1, subsec. 144-101-I-1.23

Current through 2024-46, November 13, 2024

Subsection 144-101-I-1.23 - PROVIDER AND PROVIDER APPLICANT APPEALS

1.23-1General Principles

Any provider or provider applicant that is aggrieved by a Departmental action made pursuant to this Manual (excluding emergency terminations as referenced in Section 1.19-1 -B) may request an informal review within sixty (60) calendar days from the date of receipt of that decision. If the deadline falls on a weekend or holiday, the deadline will be extended to the next business day. A provider or provider applicant is not aggrieved by, and may not request an informal review of, Departmental action issued to, directed at, or concerning another provider or provider applicant.

The request for an informal review must be in writing (handwritten, typed, or emailed) and addressed to the Director of Compliance, Office of MaineCare Services. This review will be conducted by a designated Department representative who was not involved in the decision under review. The informal review will consist solely of a review of documents in the Department's possession including submitted materials/documentation and, if deemed necessary by the Department, it may include a personal meeting with the provider or provider applicant to obtain clarification of the materials. Issues that are not raised by the provider, provider applicant, individual, or entity through the written request for an informal review or the submission of additional materials for consideration prior to the informal review are waived in subsequent appeal proceedings.

The request for informal review may not be amended to add further issues.

Requests for informal reviews shall be submitted to MaineCare Services or other designated Department representative unless otherwise directed by the governing sections of Chapter II or Chapter III of this Manual. A written report of the decision resulting from that review will be issued to the provider.

A. Administrative Hearing

A provider or provider applicant must properly request an informal review and obtain a decision before requesting an administrative hearing. If the provider or provider applicant is dissatisfied with the informal review decision, he or she may write the Director of Compliance, Office of MaineCare Services, to request a hearing provided he/she does so within sixty (60) calendar days from the date of the informal review report on the Department's action. If the deadline falls on a weekend or holiday, the deadline will be extended to the next business day. Subsequent appeal proceedings will be limited only to those issues raised during the informal review process.

The DAH shall notify the provider or provider applicant in writing of the date, time and place of the hearing, and shall designate a presiding officer. Providers and provider applicants will be given advance notice of at least twenty (20) calendar days from the mailing date of the hearing date. The hearing shall be held in conformity with the Maine Administrative Procedure Act, 5 M.R.S. §8001et seq. and the Administrative Hearings Regulations.

The presiding officer shall issue a written decision and findings of fact to the provider or, pursuant to provisions of the Administrative Hearings Regulations,

issue a written recommendation to the Commissioner of Health and Human Services. The Commissioner will then make the final decision. Legal counsel may represent providers and provider applicants at a hearing and may request or subpoena persons to appear at the hearing where they can be expected to present testimony or documents relating to issues at the hearing.

If the provider is dissatisfied with the final decision, an appeal may be taken to the Superior Court pursuant to the Administrative Procedure Act.

B. Arbitration Alternative

In lieu of the administrative hearing procedure, the parties may choose binding arbitration by a qualified arbitrator or panel of arbitrators as an alternative

means of resolving a dispute. Both parties must agree to this optional method of dispute resolution. The Maine Uniform Arbitration Act shall regulate the arbitration. A provider's request for arbitration must be made within sixty (60) days from the date of receipt of the informal review decision prompting the request. Issues for arbitration shall be limited to those issues raised during the informal review. The arbitrator or panel of arbitrators must be selected and compensated as agreed by both parties.

If the parties cannot agree to the terms of arbitration, the arbitration alternative will not apply and the normal procedures of administrative hearing with the option of appeal to the Superior Court will apply. If agreement for arbitration cannot be reached, a timely request for arbitration shall be construed as a request for an administrative hearing and all other terms of an administrative hearing shall apply. Arbitration is only available as an option when the amount in controversy is ten thousand dollars ($10,000) or less and the subject matter in controversy is assessments, recovery or recoupment orders, sanctions, or administrative fines. A provider choosing arbitration may waive any right of appeal.

1.23-2Appeal Options by Type of Facility

A. Special additional procedures apply to appeals for nursing facilities, residential care facilities, adult family care homes, and Intermediate Care Facilities for Individuals with Intellectual Disability (ICF/IID) for which the certification or provider enrollment/agreement is denied, terminated or not renewed for MaineCare.

Any nursing facility, residential care facility, adult family care home, or ICF/IID for which the MaineCare certification or Provider Agreement is denied, terminated or not renewed must be given an opportunity for a full evidentiary hearing on the denial, termination or nonrenewal. A facility representative must request a hearing within thirty (30) calendar days of the notice of the Department's informal review decision.

1. If the facility requests an administrative hearing, it must be completed either before the effective date of the denial, termination or nonrenewal or within one hundred and twenty (120) calendar days after that date.

2. The hearing must, at a minimum, include:

a. Timely written notice to the facility of the basis for the decision and disclosure of the evidence on which the decision is taken;

b. An opportunity for the facility to appear before an impartial decision maker to refute the basis for the decision;

c. An opportunity for the facility to be represented by counsel or another representative;

d. An opportunity for the facility or its representatives to be heard in person, to call witnesses, and to present documentary evidence;

e. An opportunity for the facility to cross-examine witnesses; and

f. A written decision by the impartial decision maker, setting forth the reasons for the decision and the evidence upon which the decision is based.

B.Medicare/MaineCare Participating Nursing Facilities: Federal Appeal Option

In accordance with 42 C.F.R. § 431.153, if a nursing facility is participating, or seeking to participate, in both Medicare and MaineCare, and if the basis for the State's denial, termination or nonrenewal of participation in MaineCare is also a basis for denial, termination or nonrenewal of participation in Medicare, the state must advise the facility that:

1. The facility is entitled to the review procedures specified for Medicare facilities in Part 405, Subpart R, Title 42 of the Code of Federal Regulations in lieu of the procedures specified above; and

2. A final decision entered under the Medicare review procedures will be binding for purposes of MaineCare participation.

C.Certified Nursing Facility Informal Reconsideration

If the state decides to provide the opportunity for an administrative hearing as outlined in this section only after the effective date of a denial, termination or nonrenewal, the state must offer the facility an informal reconsideration, to be completed before the effective date. The informal reconsideration must, at a minimum, include:

1. Written notice to the facility of the denial, termination or nonrenewal and the findings upon which it was based;

2. A reasonable opportunity for the facility to refute those findings in writing;

3. A written affirmation or reversal of the denial, termination, or nonrenewal; and

4. If the provider is still dissatisfied with the decision, he or she may write the Commissioner of the Department of Health and Human Services to request an administrative hearing provided he or she does so within thirty (30) calendar days of the date of the Director's informal reconsiderationdecision.

C.M.R. 10, 144, ch. 101, ch. I, § 144-101-I-1, subsec. 144-101-I-1.23