Section DHS 10.55 - Fair hearing(1) RIGHT TO FAIR HEARING IN RESOURCE CENTER AND COUNTY AGENCY ADVERSE BENEFIT DETERMINATIONS. Except as limited in sub. (3) and s. DHS 10.62 (4), a client may contest any of the following adverse benefit determinations by filing, within 45 days of receipt of notice of the adverse benefit determination, a written request for a hearing to the division of hearings and appeals: (a) Denial of eligibility under s. DHS 10.31 (6) or 10.32 (4).(b) Determination of cost sharing requirements under s. DHS 10.34.(c) Determination of entitlement under s. DHS 10.36.(1g) RIGHT TO A FAIR HEARING. Except as limited in subs. (1m), (2) and (3), an enrollee may contest any of the following adverse benefit determinations by filing, within 90 days of the failure of a care management organization to act on a contested adverse benefit determination within the time frame specified under s. DHS 10.53 (2) (e) or within 90 days after receipt of notice of a decision upholding the adverse benefit determination, a written request for a hearing to the division of hearings and appeals:(a) Denial of functional eligibility under s. DHS 10.33 as a result of the care management organization's administration of the long-term care functional screen, including a change from a nursing home level of care to a non-nursing home level of care.(b) Failure of a CMO to provide timely services and support items that are included in the plan of care.(c) Denial or limited authorization of a requested service, including determinations based on type or level of service, requirements or medical necessity, appropriateness, setting, or effectiveness of a covered benefit.(d) Reduction, suspension or termination of services to support items in the enrollee's service plan, except when either of the following apply:1. The reduction, suspension or termination was agreed to by the enrollee.2. The reduced, suspended or terminated service or support was only authorized for a limited amount or duration and that amount or duration has been completed.(e) Denial, in whole or in part, of payment for a service.(f) Failure of a CMO to act within the timeframes provided in 42 CFR 438.408(b)(1) and (2) regarding the standard resolution of grievances and appeals.(g) Denial of an enrollee's request to dispute financial liability, including copayments, premiums, deductibles, coinsurance, other cost sharing, and other enrollee financial liabilities.(h) Denial of an enrollee, who is a resident of a rural area with only one CMO, to obtain services outside the CMO's network of contracted providers.(i) An individualized service plan that is unacceptable to the enrollee because any of the following apply: 1. The plan is contrary to an enrollee's wishes insofar as it requires the enrollee to live in a place that is unacceptable to the enrollee.2. The plan does not provide sufficient care, treatment or support to meet the enrollee's needs and identified family care outcomes.3. The plan requires the enrollee to accept care, treatment or support items that are unnecessarily restrictive or unwanted by the enrollee. Note: The rights guaranteed to persons receiving treatment or services for developmental disability, mental illness or substance abuse under ch. 51, Stats., and ch. DHS 94 are also guaranteed under par. (f), and enrollees may request a fair hearing related to such matters in accordance with this section and ch. HA 3, or may choose the grievance resolution procedure under Subchapter III of ch. DHS 94 to grieve a violation of those rights, and if necessary may choose to appeal a provider or CMO grievance decision to the department of health services as specified in ss. DHS 94.42 and 94.44.
(j) Termination of the family care benefit.(k) Determinations of protection of income and resources of a couple for maintenance of a community spouse under s. DHS 10.35 to the extent a hearing would be available under s. 49.455(8) (a), Stats.(l) Recovery of incorrectly paid family care benefit payments as provided under s. DHS 108.03 (3).(m) Hardship waivers, as provided in s. DHS 108.02 (12) (e), and placement of liens as provided in ch. HA 3.(n) Determination of temporary ineligibility for the family care benefit resulting from divestment of assets under s. DHS 10.32 (1) (i).(1m) EXCEPTION TO RIGHT TO FAIR HEARING. An enrollee does not have a right to a fair hearing under sub. (1g), if the sole issue is a federal or state law requiring an automatic change adversely affecting some or all enrollees and the enrollee does not dispute that they fall within the category of enrollees to be affected by the change.(2) GRIEVANCES. An enrollee may contest any decision, omission or action of a CMO other than those specified under sub. (1g) by filing a grievance with the CMO under s. DHS 10.53 (2). If the enrollee is not satisfied with the CMO's grievance decision, or if the CMO fails to issue a grievance decision within the timeframes specified under s. DHS 10.53 (2) (d), the enrollee may request a department review under s. DHS 10.54.(3) REQUESTING A FAIR HEARING. Receipt of notice is presumed within 5 days of the date the notice was mailed. A client shall file their request for a fair hearing in writing within the timeframes specified under subs. (1) and (1g) with the division of hearings and appeals in the department of administration. A hearing request shall be considered filed on the date of actual receipt by the division of hearings and appeals, or the date of the postmark, whichever is earlier. A request filed by facsimile is complete upon transmission. If the request is filed by facsimile transmission and such transmission is completed between 5 p.m. and midnight, one day shall be added to the prescribed period. If a client asks the department, a county agency, a resource center or CMO for assistance in writing a fair hearing request, the department, resource center or CMO shall provide that assistance. Note: A hearing request can be submitted by mail or hand-delivered to the Division of Hearings and Appeals, at 4822 Madison Yards Way, 5 th Floor North, Madison, WI 53705-5400, faxed to the Division at (608) 264-9885, or emailed to the Division at DHAMail@wisconsin.gov. The Division's telephone number is (608) 266-3096.
(4) DEPARTMENT REVIEW OF FAIR HEARING REQUESTS.(a) When the division of hearings and appeals receives a request for a fair hearing under this chapter, it shall set the date for the hearing in accordance with ch. HA 3 and notify the department that it has received the request.(b) When an enrollee has requested a fair hearing under sub. (3), the department shall conduct an informal review to identify, and, as appropriate, intervene in, fair hearing requests related to member health and safety, contract non-compliance and complex situations, if it appears to the department that informal resolution of the matter may be appropriate.(5) FAIR HEARING PROCEDURES.(a) The division of hearings and appeals shall conduct a fair hearing pursuant to this section in accordance with ch. HA 3, in response to each fair hearing requested unless, prior to the scheduled hearing date, any of the following occurs: 1. The client withdraws the request in writing.2. The contested matter is resolved under sub. (4).3. In the case of an enrollee appealing a CMO decision, the person voluntarily disenrolls from the CMO.4. The petitioner has abandoned the hearing request. The division of hearings and appeals shall determine that abandonment has occurred when the petitioner, without good cause, fails to appear personally or by representative at the time and place set for the hearing. Abandonment may also be deemed to have occurred when the petitioner or the authorized representative fails to respond within a reasonable time to correspondence from the division regarding the hearing.5. An informal resolution is proposed that is acceptable to the client, and the client agrees, in writing, to the resolution or withdraws the request for fair hearing.6. An informal resolution acceptable to the client appears imminent to all parties, and the client requests rescheduling of the fair hearing. If the informal resolution that was anticipated is, in fact, not acceptable to the client, a new hearing date shall be set promptly.(b) In accordance with ch. HA 3, the division of hearings and appeals: 1. Shall consider and apply all standards and requirements of this chapter.2. Shall issue a decision within 90 days of the date of receipt of the request for fair hearing.3. May dismiss the petition if the client does not appear at a scheduled hearing and does not contact the division of hearings and appeals with good cause for postponement.(c) An applicant for or recipient of medical assistance is not entitled to a hearing concerning the identical dispute or matter under both this section and 42 CFR 431.200 to 431.246.Wis. Admin. Code Department of Health Services DHS 10.55
Cr. Register, October, 2000, No. 538, eff. 11-1-00; CR 04-040: am. (1) (a), (2), and (4) (b) Register November 2004 No. 587, eff. 12-1-04; corrections in (1) (i) and (j) made under s. 13.92(4) (b) 7, Stats., Register November 2008 No. 635; CR 09-003: am. (1), cr. (1m) Register November 2009 No. 647, eff. 12-1-09.Amended by, CR 22-026: am. (1), renum. (1) (d) to (1g) (b), r. (1) (e), renum. (1) (f) to (1g) (i), renum. (1) (g) to (1g) (j) and am., renum. (1) (h) to (k) to (1g) (k) to (n), cr. (1g) (intro.) (a), (c), (d) to (h), am. (1m) to (3), (4) (title), (b), (5) (a) 3. Register May 2023 No. 809, eff. 6-1-23; correction in (1g) (title) made under s. 13.92 (4) (b) 2, Stats., Register May 2023 No. 809, eff. 6/1/2023