POLICY:

Home and Community Based Services Manual



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APPEAL AND HEARING PROCESS

The designee, i.e., Third Party Assessor (TPA), of the Department of Health and Senior Services

(DHSS), Division of Senior and Disability Services, (DSDS) shall provide an opportunity for all

current or potential participants/authorized representatives, (e.g., guardian, or someone identified

by the current or potential participant by means of the DA-12a with a signed Authorization for

Disclosure of Consumer Medical/Health Information that is in effect) upon request either

verbally or in writing, to appeal decisions that adversely affect Home and Community Based

Services (HCBS) authorized by the TPA (see Chapter 5 for Adverse Actions).

A hearing for Medicaid funded HCBS is granted when a current or potential

participant/authorized representative disagrees with an eligibility or a care plan decision made by

the TPA. If the decision to reduce, deny, or close HCBS is affirmed, the state may hold the

participant or the participant’s estate responsible for payment of HCBS received during this time

period.

Pursuant to federal and state law, a current or potential participant/authorized representative may

appeal a change, denial, or discontinuation of HCBS within the following timeframes:

 Ninety (90) calendar days from the date the Adverse Action Notice (DA-12) was mailed

to a current or potential participant/authorized representative. A current participant, who

misses the ten-day appeal deadline, is not entitled to receive currently authorized HCBS

pending the hearing.

 Ten (10) calendar days from the mailing of the Adverse Action Notice (DA-12) to the

current participant/authorized representative. The current participant remains entitled to

receive currently authorized HCBS pending the outcome of the appeal.

Pursuant to the Code of Federal Regulations (CFR), specifically 42 CFR 431.242, regarding

procedural rights of the current or potential participant/authorized representative, they must be

given an opportunity to do the following:

 Examine, before the date of the hearing and during the hearing, all documents to be

used by the Assessor at the hearing. In addition, upon request, they have the right to

examine the entire content of their case record;

 Bring witnesses to the hearing;

 Establish all pertinent facts and circumstances;

 Present an argument without undue interference; and

 Question or refute any testimony or evidence, including the opportunity to confront and

cross-examine any adverse witness.

Current or potential participants/authorized representatives may withdraw their appeal request, in

writing, at any time prior to the hearing. If this occurs and a hearing request has already been

forwarded to the Administrative Hearings Unit of DSS, Division of Legal Services (DLS), the

Assessor shall forward the withdrawal request to the appropriate DLS Regional Office (see

Appendix 1 of this Chapter) in addition to retaining a copy for the electronic case record.

NOTE: In the event the Assessor has reversed its previous decision regarding a proposed

adverse action, this would not negate the current or potential participant/authorized

representative’s request for an administrative hearing through DLS. The Assessor shall



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notify the current or potential participant/authorized representative verbally and in writing,

explaining the decision to reverse the proposed adverse action. Written notification shall be

made by completing the Reversal of Adverse Action Notice (DA-12b), and forwarding to the

appropriate entities (see Appendix 5, in Chapter 5).

At anytime during the appeal and hearing process when an Assessor is notified or learns an

attorney or other staff from an attorney’s office is representing the current or potential

participant/authorized representative, the Assessor shall immediately notify DHSS’ Office of

General Counsel (OGC) at 573/751-6005 for appropriate action. In addition, on the day of the

hearing, if the Assessor discovers the current or potential participant/authorized representative is

represented by an attorney or other staff from an attorney’s office, the Assessor shall ask the

DLS Hearing Officer for a continuance to secure legal representation through the Missouri

Attorney General’s Office (AGO). The Assessor shall, immediately notify OGC for appropriate

action.

NOTE: Potential actions regarding Personal Care Assistance (Consumer-Directed Model)

(CDS) authorizations involving alleged consumer fraud or falsification of records are

investigated and processed by state staff (i.e., DSDS and/or Missouri Medicaid Audit and

Compliance (MMAC) Unit) as appropriate. The need to close an HCBS authorization as a

result of these investigations will be coordinated with the TPA. TPA staff will not be

required to justify the closing decision at an appeal hearing; however, TPA staff may be

requested to provide relevant documents or testimony.

When an Assessor receives an appeal request, either verbally or in writing, by a current or

potential participant/authorized representative, the Assessor shall:

 Contact and discuss the following with the current or potential participant/authorized

representative within one (1) working day of the appeal request;

 Any additional pertinent information that may have been provided that would affect the

reason for the adverse action;

 The appeal and hearing process, to include, as applicable to the situation;

· For participants authorized for HCBS, when an appeal has been requested within

ten (10) calendar days of mailing the proposed Adverse Action Notice (DA-12),

unless the participant states otherwise, the HCBS shall continue as authorized

during the appeal process. The participant/authorized representative shall be

informed of the possible liability to the participant or the participant’s estate for the

cost of HCBS delivered during the appeal process, should they lose the appeal.

The participant’s decision on continuing or not continuing HCBS shall be

thoroughly documented in the participant’s case notes within the HCBS Web Tool;

· For participants currently authorized for HCBS, when an appeal has not been

requested within ten (10) calendars day but is requested before ninety (90)

calendar days from the date of the DA-12, the proposed action is to be

implemented on the 11th day;







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· A participant whose initial request for HCBS has been denied by the TPA has

ninety (90) calendar days from the date the DA-12 is mailed to appeal the decision.

The individual does not have the right to receive HCBS pending the hearing;

· Upon receipt of, or by completing the DA-12a, copies of the pertinent supporting

documentation shall be mailed to the current or potential participant. If an

Authorization for Disclosure of Consumer Medical/Health Information has been

received or is in effect, the documentation shall be mailed to the authorization

representative, also;

· The date of the hearing shall be determined by DLS. The potential or current

participant/authorized representative shall receive notification of the date,

including other instructions, from DLS.

Upon receipt of the signed DA-12a from the current or potential participant/authorized

representative, the Assessor shall:

 Sign and date the DA-12a;

 Manually create an activity (Request for Hearing) in the HCBS Web Tool, with a due

date of the next business day, mail the appropriate cover letter (see Appendix 4 of this

Chapter) and supporting evidence for the adverse action to the current or potential

participant, and as necessary, the appropriate cover letter (see Appendix 5 of this

Chapter) to the designated representative, and to the Administrative Hearings Unit of

DLS.

Note: The Action Activity shall remain open in the TPA’s work queue until the activity

is manually closed.

 Copy and forward pertinent documents to the Administrative Hearings Unit of DLS, the

current or potential participant/authorized representative and, as necessary, OGC within

one (1) working day from the receipt of the DA-12a.

 Pertinent documents used in making the determination for the adverse action that will,

as appropriate, be presented into evidence at the hearing include, but are not limited to

the following:

· CyberAccess HCBS prescreen, to include the Level of Care (LOC) score

screenshot; or

· CyberAccess HCBS assessment (InterRAI HC), to include the LOC score

screenshot;

· HCBS Care Plan (DA-3);

· The specific Prior Authorization Screens to include the Header and Detail screens;

· Case Notes – (only portions pertinent to the adverse action);

· Adverse Action Notice (DA-12);

· Application for State Hearing (DA-12a) – (a copy of the form that was sent to the

current or potential participant/authorized representative);

· Letter from the Department of Health & Human Services (DHHS), Centers for

Medicare & Medicaid Services (CMS) regarding the reduction of any Personal



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Care Services (i.e., Basic, Advanced, or Authorized Nurse Visits) to individuals

residing in a Residential Care Facility (RCF) or Assistive Living Facility (ALF),

(Appendix 6 of this chapter); and

· Supporting documentation (e.g., care plan worksheet, provider nurse general health

evaluation, a letter from a physician, copy of SLUMS exam, etc.) used to make the

determination for the adverse action.

Note: In instances where the current or potential participant/authorized representative does

not return the DA-12a, but makes a verbal or written request for a hearing, the TPA staff

shall use the information received from the current or potential participant/authorized

representative, to complete the DA-12a and forward a copy to DLS.

Upon receipt, DLS will register the request for hearing and schedule the hearing.

 A Notice of State Hearing will be sent by DLS to the current or potential

participant/authorized representative (attorney, if applicable), OGC, and the Assessor.

The Notice of State Hearing includes the time and place of the hearing and information

regarding procedures for rescheduling.

 Upon receipt of The Notice of State Hearing, the TPA shall contact the appropriate

Family Support Division office (see Policy 2.00, Appendix 1) to assure a room is

available to conduct the hearing.

Hearing Protocol

The burden of proof lies with the party seeking the change in status quo. The TPA has the

burden of proof where there is a proposed change that adversely affects the participant’s current

care plan. When a request for HCBS has been denied, the applicant has the burden of proof.

During the hearing, the TPA witness shall testify to qualify themselves and their position,

establish the case, and state other facts relevant to the proceedings (see Appendix 2 of this

Chapter). TPA staff are responsible for presenting evidence (exhibits) to support the decision of

the TPA.

The DLS Hearing Officer will issue a decision containing the summary of evidence, findings of

fact, conclusions of law, and the decision and order. The law provides additional appeal rights

for the current or potential participant/authorized representative if still aggrieved. Instructions

for these appeal rights are outlined in the decision and can be initiated by the current or potential

participant/authorized representative through DLS, Administrative Hearings Unit.

Hearing Decision

Once the hearing decision is received, the TPA staff shall take the appropriate action.

 TPA action affirmed:

 All affected HCBS the participant received during the hearing process shall be reduced

or closed as appropriate. The TPA staff shall complete the necessary actions for the

reduction or discontinuation and notify the HCBS provider to assure they are aware of





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the action being taken. The date of receipt of the hearing decision shall be the date of

the change.

 TPA action reversed:

 The HCBS shall continue, be increased, or be immediately authorized as required by

the decision. The TPA staff shall complete the necessary actions for the increase or

initial authorization and notify the HCBS provider. The effective date shall be the date

the adverse action was taken.

In addition, when the hearing officer includes in the Decision and Order a statement that TPA

staff are to complete another assessment, the assessment shall be completed within 15 calendar

days of receipt of the decision.

The hearing decision/appeal conference shall be retained in the electronic case record.









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