Chapter 11. Fair Hearings of Individual Exchange Eligibility Determinations

“Administrative law judge” means an individual appointed by the Chief Administrative Law Judge under State Government Article, §9-1604, Annotated Code of Maryland, or designated by the Chief Administrative Law Judge under State Government Article, §9-1607, Annotated Code of Maryland, to adjudicate contested cases at the Maryland Office of Administrative Hearings.

“Affordable Care Act” means the Patient Protection and Affordable Care Act of 2010 (Pub.L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub.L. 111-152), as amended by the Three Percent Withholding Repeal and Job Creation Act (Pub.L. 112-56).

“Appellant” means any individual who requests a fair hearing for the reasons specified in Regulation .03 of this chapter or that individual’s authorized representative, whether regarding an initial determination or a redetermination.

“Authorized representative” has the same meaning as in Regulation .14 of this chapter.

“Catastrophic plan” means a plan established under §1302(e) of the Affordable Care Act.

“Consolidated Services Center” means the call center operated by the Maryland Health Benefit Exchange to assist consumers who apply for, or participate in, a qualified health plan or the insurance affordability programs offered through the Maryland Health Connection.

“Delegate agency” means the Department of Human Services and its affiliate local departments which, under contractual agreements with the Department, determine initial and continuing eligibility in the Program.

“Department” means the Maryland Department of Health, the single State agency which, pursuant to Title XIX of the Social Security Act, implements fair hearing requirements for Program applicants and recipients.

“Individual Exchange” has the meaning stated in Insurance Article, §31-101(h), Annotated Code of Maryland.

“Insurance affordability program” means a program that is one of the following:

“MAGI” means modified adjusted gross income, as calculated for purposes of determining or redetermining eligibility for insurance affordability programs under the Affordable Care Act, as defined in 26 CFR §1.36B-1(e)(2).

“Maryland Health Benefit Exchange” or “Exchange” means the unit of State government that determines initial and continuing eligibility for the MAGI-based insurance affordability programs, including, by delegation, certain eligibility in the Program.

“Maryland Health Connection” means the electronic eligibility system maintained by the Maryland Health Benefit Exchange.

“Program” means the Department’s Medical Assistance Program.

Qualified Health Plan.

The determination or redetermination received from the Exchange of the applicant’s eligibility for enrollment in a qualified health plan is incorrect;

The determination or redetermination received from the Exchange of the applicant’s eligibility for an insurance affordability program is incorrect; or

The determination or redetermination received from the Exchange of the applicant’s eligibility for enrollment in a qualified health plan or an insurance affordability program is untimely as set forth in applicable law.

Of the right to obtain a fair hearing;

Of the method to obtain the hearing;

That the individual may represent the individual or use an authorized representative at a fair hearing;

Of the circumstances under which the individual’s eligibility may be maintained or reinstated pending an appeal decision; and

That an appeal decision for one household member may result in a change in eligibility for other household members, and that such a change will be handled as a redetermination of eligibility for other household members.

Be provided by the Exchange when:

Include a statement of the action the Exchange intends to take;

Include the reasons for the intended action;

Include the specific regulations that support, or the change in federal or State law that requires, the action;

To the extent required by law for Program benefits, include an explanation of the individual’s right to request a fair hearing, including that expenses incurred in connection with a fair hearing, such as transportation and baby-sitting costs, but not including attorney’s fees, shall be paid by the Department when incurred by the appellant and may be paid by the Department when incurred by the appellant’s witnesses;

Include information about fair hearings;

Include an explanation of the circumstances under which Program benefits are continued if a fair hearing is requested as provided in Regulation .05 of this chapter;

Identify who may act as an authorized representative of the appellant in the fair hearing process, explain how an applicant may designate an authorized representative, and provide information about designation procedures under Regulation .14 of this chapter;

Specify that the appellant or the appellant’s authorized representative may examine the appellant’s records upon reasonable notice to the Exchange; and

For termination of Program benefits, be mailed at least 10 days before the date of action except as specified under COMAR 10.01.04.03C.

Any individual, either personally or through an authorized representative, may request a fair hearing by giving a clear statement, oral, electronic, or written, that the individual desires an opportunity to present for review any matter which is the proper subject of a fair hearing as provided in Regulation .03 of this chapter. The request shall be made by:

The Program’s Office of Health Services, the Exchange, the Consolidated Services Center, or the delegate agency that is contacted by an appellant or the appellant’s authorized representative about requesting a hearing shall assist the appellant or the appellant’s authorized representative in preparing the request.

The Program’s Office of Health Services, the Exchange, the Consolidated Services Center, or the delegate agency that receives or prepares a written statement on behalf of the appellant or the appellant’s authorized representative requesting an appeal shall:

If a request for a hearing is made by someone other than the applicant, the Office of Administrative Hearings shall:

Send timely acknowledgement to the appellant, and the appellant’s authorized representative, if applicable, of the receipt of the fair hearing request;

Give advance notice in writing of the date, time, and place of the fair hearing;

Provide the appellant with the information specified in Regulation .04A(4) of this chapter; and

Provide an explanation that any advance payments of the premium tax credit paid on behalf of the appellant pending appeal are subject to reconciliation pursuant to 26 CFR §1.36B-4.

If any party notifies the Office of Administrative Hearings that either the time or place designated by the Office of Administrative Hearings is not convenient to the party, and requests a different time or place for the fair hearing, the administrative law judge shall designate another time or place convenient to the parties if the administrative law judge deems that the party has sufficient reason for requesting the change.

If the appellant is employed during the periods when fair hearings are normally held, the administrative law judge shall attempt to schedule the hearing so that the appellant will not be required to miss employment.

Postmarked, delivered in person, or faxed to the Office of Administrative Hearings;

Postmarked, emailed, telephoned, or faxed to the Exchange;

Postmarked, telephoned, or faxed to the Consolidated Services Center;

Postmarked, delivered in person, telephoned, or faxed to the delegate agency; or

Postmarked, delivered in person, telephoned, or faxed to the Department’s Office of Health Services.

The Exchange or the Office of Administrative Hearings may dismiss a request for a fair hearing when the appeal has been:

An appellant shall be deemed to have abandoned the appellant’s request for a fair hearing if the appellant fails to appear for the fair hearing on the established date without good cause as determined by the administrative law judge.

May respond to a series of individual requests for hearing by conducting a single group hearing;

May consolidate hearings only in cases in which the sole issue involved is one of federal or State law or policy; and

Shall permit each applicant to present the appellant’s own case or be represented by the appellant’s authorized representative.

Present witnesses;

Present documentary evidence;

Present oral and written argument without undue interference;

Establish all facts and circumstances the administrative law judge judges to be relevant; and

Question or refute any testimony or evidence, including an opportunity to confront and cross-examine all witnesses the administrative law judge judges to be adverse.

If the Exchange introduces as evidence documents from the case record, special investigation file, or other sources, the appellant shall have the opportunity to examine the:

The Exchange shall have access to relevant portions of the appellant’s medical record in accordance with Health-General Article, 4-305, Annotated Code of Maryland, to the extent required by law.

The transcript or recording of testimony and exhibits, or an official report containing the substance of what happened at the hearing;

All papers and requests, including those maintained electronically, filed in the proceeding; and

The administrative law judge’s decision.

The administrative law judge shall:

The summary of findings and conclusions shall:

The administrative law judge shall forward to the appellant, and to appellant’s authorized representative, if applicable, a copy of the findings, conclusions, and decision within 90 days from the date the appellant or appellant’s representative filed a request for a fair hearing pursuant to Regulation .05A of this chapter.

If the date of the fair hearing is postponed at the appellant’s request, the length of the postponement may not be counted as part of any of the time period specified in §B(1) of this regulation.

Any party may seek judicial review as provided in State Government Article, §10-222, Annotated Code of Maryland.

An administrative law judge’s decision:

To the extent an administrative law judge’s decision upholds the determination or redetermination of the Exchange with respect to an applicant for eligibility for enrollment in a qualified health plan or for an insurance affordability program described in Regulation .02B(10)(d) or (e), the applicant may appeal to the United States Department of Health and Human Services pursuant to 45 CFR §155.520(c).

When the decision requires action by the Department, the Exchange shall notify the Department.

When the decision is favorable to the appellant, or when the Exchange grants the appellant the relief the appellant requests before the decision, the Exchange, where applicable, shall authorize corrected payments or relief retroactive to the date the incorrect action was taken and redetermine eligibility for household members whose eligibility may be affected by the appeals decision.

Any payment or action by the Exchange under §D(2) of this regulation may not constitute a waiver of the Exchange’s sovereign immunity from suit.

The Program may terminate or reduce services effective as of the date specified in the notice if the Program timely mails the notice as required under Regulation .04 of this chapter and:

Except as provided in §A(3) of this regulation, the Program may not terminate or reduce services until a decision is rendered after the hearing if:

The Program may terminate or reduce services before an administrative law judge renders a decision after a hearing if:

If the Program terminates or reduces services pursuant to §A of this regulation, the Program may reinstate services if a Program recipient requests a hearing not more than 10 days after the date of action.

The reinstated services shall continue until a hearing decision, unless, at the hearing, the administrative law judge determines that the sole issue is one of federal or State law or policy.

The Program shall reinstate and continue services until a decision is rendered after a hearing if:

If a recipient’s whereabouts are unknown, as indicated by the return of unforwardable Program mail directed to the recipient, any discontinued services shall be reinstated if the recipient’s whereabouts become known during the time the recipient is eligible for services.

The administrative law judge may provide for an additional period during which time the request for a fair hearing will result in reinstatement of a recipient’s assistance to be continued until the hearing decision.

If, upon initial determination, an applicant has been determined to be ineligible to enroll in a qualified health plan, the applicant may not enroll in a qualified health plan pending the outcome of the appeal.

Except where the applicant does not appeal a redetermination of eligibility within 90 days of such redetermination, an applicant enrolled in a qualified health plan who, upon redetermination, is found ineligible to remain enrolled in the qualified health plan may remain enrolled in the qualified health plan pending the outcome of the appeal.

Except where the applicant does not appeal an initial determination of eligibility within 90 days of such determination, an applicant who, upon initial determination, has been determined to be eligible to enroll in a qualified health plan may enroll in a qualified health plan within 90 days of the determination of eligibility for a qualified health plan notwithstanding ineligibility for or the amount of Advance Payments of the Premium Tax Credit, Cost-Sharing Reduction, or State-based subsidy for which the applicant was determined to be eligible.

Pending the outcome of the appeal, the applicant under §B(1) of this regulation will receive only the amount of the advance payments of the premium tax credit, cost-sharing reduction, and/or State-based subsidy if any, for which applicant was determined to be eligible upon initial determination.

Except where the applicant does not appeal a redetermination of eligibility within 90 days of such redetermination, an applicant who is receiving advance payments of the premium tax credit and/or cost-sharing reduction and is found to be ineligible for, or subject to a reduced amount of, advance payments of the premium tax credit and/or cost-sharing reduction during a redetermination may elect to continue to receive the advance payments of the premium tax credit and/or cost-sharing reduction that the applicant had been receiving immediately prior to the redetermination pending the outcome of the appeals process, provided that the applicant attests to understanding that by continuing to receive the advance payments of the premium tax credit the applicant may incur a liability to the Internal Revenue Service pursuant to 26 U.S.C. §36B.

“Authorized representative” means an individual or organization acting responsibly on behalf of the applicant in accordance with this regulation, in assisting with an applicant’s application, renewal of eligibility, appeals, and other ongoing communications with the Exchange.

“Signature” includes electronic, including telephonically recorded, signatures and handwritten signatures transmitted by facsimile or other electronic transmissions.

An applicant may designate any individual or organization to serve as authorized representative.

An authorized representative may be designated either:

Legal authority includes, but is not limited to the:

For individuals who lack the capacity to designate an authorized representative and for whom no other individual or organization has the legal authority to act under §B(2) of this regulation, an authorized representative can be any individual or organization acting responsibly on behalf of the applicant who:

For individuals who lack the capacity to designate an authorized representative, for whom no other individual or organization has the legal authority to act under §B(2) of this regulation, and on behalf of whom no individual or organization covered by §B(4) of this regulation is willing and able to act, an authorized representative can be any individual or organization with a direct financial interest in the outcome of the hearing or whose employer has a direct financial interest in the outcome of the hearing who:

Sign an application on the applicant’s behalf;

Complete and submit an update or a renewal form or respond to a request for redetermination;

Receive copies of the applicant’s notice and other communications from the Exchange; and

Act on behalf of the applicant in all matters with the Exchange including appeals.

Is responsible for fulfilling all the responsibilities encompassed within the scope of the authorized representation as described in §E of this regulation to the same extent as the individual the representative represents;

Shall agree to maintain, or be legally bound to maintain, the confidentiality of any information regarding the applicant provided by the Exchange.