Section 8. Mission Statement

The objective of this rule is to provide instruction for the service portion of the New Mexico medical assistance programs. [8.354.2.8 NMAC - Rp, 8.354.2.8 NMAC, 8/1/2014] 8.354.2.9 CLAIMANT OR THE CLAIMANT’S AUTHORIZED REPRESENTATIVE AND HSD ADMINISTRATIVE HEARING PROCESS: HSD has established a hearing process for a MAP eligible recipient or a MCO member who is adversely affected by the preadmission screening and annual resident review (PASRR) or the transfer or discharge from a NF as required by Section 1919(e)(7) of the Social Security Act. A. Claimant: (1) When an adverse action (see Subsection B of 8.354.2.7 NMAC) is intended or taken against a MAP eligible recipient by MAD, its UR contractor or their designee, the MAP eligible recipient may file as a claimant to request a HSD administrative hearing. (2) When an adverse action (see Subsection B of 8.354.2.7 NMAC) is intended or taken against a member by his or her MCO or its designee, the member may file as a claimant to request a HSD administrative hearing. A member is not required to first exhaust his or her MCO appeal process prior to filing for a HSD administrative hearing when affected by an adverse action listed in 8.354.2.7 NMAC. Upon requesting a HSD administrative hearing, the member is referred to as the claimant and is governed by the remaining sections of this rule. (3) A claimant must request a HSD administrative hearing within 90 calendar days of the mailing of either the notice of action or the denial for new service. B. A claimant or the claimant’s authorized representative may have legal counsel assist him or her during the HSD administrative hearing process. If a claimant or the claimant’s authorized representative, MAD, its UR contractor, the MCO or their designees retains legal counsel, that legal counsel must submit a notice of appearance to the assigned ALJ. The ALJ will forward this notice to the MAD administrative hearings unit (MAD AHU). C

zed representative may have legal counsel assist him or her during the HSD administrative hearing process. If a claimant or the claimant’s authorized representative, MAD, its UR contractor, the MCO or their designees retains legal counsel, that legal counsel must submit a notice of appearance to the assigned ALJ. The ALJ will forward this notice to the MAD administrative hearings unit (MAD AHU). C. The claimant or claimant’s authorized representative may also chose a relative, friend or other spokesperson (spokesperson) to represent or assist him or her in the HSD administrative hearing process. [8.354.2.9 NMAC - Rp, 8.354.2.9 NMAC, 8/1/2014] 8.354.2.10 RIGHT TO A PASRR AND NURSING FACILITY TRANSFER OR DISCHARGE HSD ADMINISTRATIVE HEARING: This specific type of a HSD administrative hearing is an informal evidentiary hearing that is conducted by the FHB so that evidence may be presented as it relates to an adverse action taken or intended to be taken, against an individual by MAD, it UR contractor, the MCO and their designees. MAD or the 8.354.2 NMAC 3 MCO must grant an individual or the individual’s authorized representative the opportunity for a HSD administrative hearing under specific circumstances pursuant to 42 CFR Section 431.220(a) and 27-3-3 NMSA 1978. A HSD administrative hearing occurs telephonically between the parties to the HSD administrative hearing and the assigned FHB ALJ. A. An individual or the individual’s authorized representative may request a HSD administrative hearing based on his or her belief that MAD, its UR contractor, the MCO or their designees intends to take, or has taken, an adverse action. B. MAD, its UR contractor, the MCO or their designees will not be responsible for any fees or costs, incurred by the individual or his or her authorized representative as a result of a HSD administrative hearing, or if he or she files an appeal of the HSD administrative hearing final decision to a New Mexico district court

he MCO or their designees intends to take, or has taken, an adverse action. B. MAD, its UR contractor, the MCO or their designees will not be responsible for any fees or costs, incurred by the individual or his or her authorized representative as a result of a HSD administrative hearing, or if he or she files an appeal of the HSD administrative hearing final decision to a New Mexico district court. [8.354.2.10 NMAC - Rp, 8.354.2.10 NMAC, 8/1/2014] 8.354.2.11 NOTICE, TIME LIMITS, POSTPONEMENT, OR THE DISMISSAL OF A HSD ADMINISTRATIVE HEARING REQUEST: A. Notice: (1) In cases involving a PASRR determination or the determination to transfer or discharge the claimant from a NF, the notice of action is submitted by MAD, it UR contractor, the MCO or their designees. MAD, its UR contractor, the MCO or their designees shall issue a “notice of action” to an individual when it intends to take an adverse action against the individual. When the notice of action is concerning the LOC determination the MAP eligible recipient or the member currently has, the notice of action shall be sent not less than 10 calendar days prior to the date of MAD, its UR contractor, the MCO or their designee’s intended adverse action. B. Exceptions to a notice of action: Notwithstanding the notice requirement set forth in the preceding Subsection, MAD, its UR contractor, the MCO or their designees 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, the MCO or their designees has confirmed the death of the individual; (2) MAD, its UR contractor, the MCO or their designees 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, the MCO or

has confirmed the death of the individual; (2) MAD, its UR contractor, the MCO or their designees 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, the MCO or their designees that indicates his or her understanding that such information may require MAD, its UR contractor, the MCO or their designees to take the adverse action; (4) MAD, its UR contractor, the MCO or their designees learns the individual is residing in an institution, which renders the individual ineligible for MAP enrollment and MAD services; (5) MAD, its UR contractor, the MCO or their designees cannot determine the physical location of either the individual, or if designated, his or her authorized representative; (6) MAD, its UR contractor, the MCO or their designees have 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 for a continuation of a benefit and for requesting a HSD administrative hearing. (1) Requesting a HSD administrative hearing: An individual 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 one of the following: FHB, the individual’s local income support division (ISD) office, offices of DOH- DDSS, the NF the individual resides at, or the MAD’s director’s office no later than the close of business on the 90th calendar day immediately following the date of the notice of action

e of action to request a HSD administrative hearing. To be considered timely, the request must be received by one of the following: FHB, the individual’s local income support division (ISD) office, offices of DOH- DDSS, the NF the individual resides at, or the MAD’s 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. (2) Continuation of a benefit: (a) A claimant may request the current benefit that is the subject of an adverse action continue while his or her HSD administrative hearing proceeds. A request for a continuation of a 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, its UR contractor, the MCO or their designees. The continuation of the benefit will be the same as the claimant’s current benefit or LOC. MAD, its UR contractor, the MCO or their designees must provide 8.354.2 NMAC 4 information in its notice of action of a claimant rights and limitations to continue a benefit during his or her HSD administrative hearing process. (b) A continuation of the benefit in a NF is not approved for a claimant: (i) when the health or safety of other residents in the NF would be endangered by the claimant’s continued presence; (ii) the claimant’s health improves sufficiently to allow a more immediate transfer or discharge; (iii) an immediate transfer or discharge is required by the claimant’s urgent medical needs; or (iv) the claimant has not resided in the NF for 30 consecutive calendar days or more

ant: (i) when the health or safety of other residents in the NF would be endangered by the claimant’s continued presence; (ii) the claimant’s health improves sufficiently to allow a more immediate transfer or discharge; (iii) an immediate transfer or discharge is required by the claimant’s urgent medical needs; or (iv) the claimant has not resided in the NF for 30 consecutive calendar days or more. (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’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; (2) the request is withdrawn or cancelled in writing by the claimant or the claimant’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 claimant 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 (6) the claimant or the claimant’s authorized representative fails to appear at a scheduled hearing without good cause; the claimant or the claimant’s authorized representative request for a HSD administrative hearing may be considered abandoned and therefore dismissed if the claimant or the claimant’s authorized representative fails to appear telephonically or in person (if the claimant or th

or (6) the claimant or the claimant’s authorized representative fails to appear at a scheduled hearing without good cause; the claimant or the claimant’s authorized representative request for a HSD administrative hearing may be considered abandoned and therefore dismissed if the claimant or the claimant’s authorized representative fails to appear telephonically or in person (if the claimant or the claimant’s authorized representative has elected to participate in this manner) at the time of the hearing; 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 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, for another exceptional circumstance; if the ALJ agrees the claimant or the claimant’s authorized representative showed good cause, the HSD administrative hearing will be reschedule.