Section 10.55. Fair hearing.

 

(1)   Right to fair hearing. Except as limited in subs. (1m) , (2) and (3) and s. DHS 10.62 (4) , a client has a right to a fair hearing under s. 46.287 , Stats. The contested matter may be a decision or action by the department, a resource center, county agency or CMO, or the failure of the department, a resource center, county agency or CMO to act on the contested matter within timeframes specified in this chapter or in the contract with the department. The following matters may be contested through a fair hearing:

(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 .

(d) Failure of a CMO to provide timely services and support items that are included in the plan of care.

(e) Reduction of services or support items in the enrollee's individualized service plan, except in accordance with a change agreed to by the enrollee.

(f) 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.

(g) Termination of the family care benefit or involuntary disenrollment from a CMO.

(h) 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.

(i) Recovery of incorrectly paid family care benefit payments as provided under s. DHS 108.03 (3) .

(j) Hardship waivers, as provided in s. DHS 108.02 (12) (e) , and placement of liens as provided in ch. HA 3 .

(k) 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. (1) , 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 he or she falls within the category of enrollees to be affected by the change.

(2)   Limited right to fair hearing. An enrollee may contest, through fair hearing, any decision, omission or action of a CMO other than those specified under sub. (1) (d) to (f) only if a CMO grievance decision under s. DHS 10.53 (2) (a) or a CMO grievance decision under s. DHS 10.53 (2) (a) or a department review under s. DHS 10.54 has failed to resolve the matter to the satisfaction of the enrollee within the time period approved by the department in s. DHS 10.53 (2) (b) or specified under s. DHS 10.54 (2) .

(3)   Requesting a fair hearing. A client shall request a fair hearing within 45 days after receipt of notice of a decision in a contested matter, or after a resource center or CMO has failed to respond within timeframes specified by this chapter or the department. Receipt of notice is presumed within 5 days of the date the notice was mailed. A client shall file his or her request for a fair hearing in writing 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.

(4)   Department concurrent 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 a client has requested a fair hearing under sub. (1) (d) to (g) , the department shall concurrently review and investigate the facts surrounding the client's request using the process established under s. DHS 10.54 in an attempt to resolve the problem informally.

(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 grievance against a CMO, 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 .

History: 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.

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 . Microsoft Windows NT 6.1.7601 Service Pack 1 A hearing request can be submitted by mail or hand-delivered to the Division of Hearings and Appeals, at 505 University Ave., Room 201, Madison, WI 53705-5400, or faxed to the Division at [phone]. The Division's telephone number is [phone]. Microsoft Windows NT 6.1.7601 Service Pack 1