WSR 17-15-044 PROPOSED RULES HEALTH CARE AUTHORITY (Washington Apple Health) [Filed July 11, 2017, 11:20 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 17-08-089.
Title of Rule and Other Identifying Information: WAC 182-526-0100 Expedited administrative hearings for urgent health care needs, 182-526-0280 Continuing a hearing when an appellant is an applicant or recipient, and 182-526-0290 Reinstating a hearing after an order of default or an order of dismissal.
Hearing Location(s): Health Care Authority (HCA), Cherry Street Plaza Building, Sue Crystal Conference Room 106A, 626 8th Avenue, Olympia, WA 98504 (metered public parking is available street side around building. A map is available at http://www.hca.wa.gov/documents/directions_to_csp.pdf or directions can be obtained by calling (360) 725-1000), on August 22, 2017, at 10:00 a.m.
Date of Intended Adoption: Not sooner than August 23, 2017.
Submit Written Comments to: HCA Rules Coordinator, P.O. Box 45504, Olympia, WA 98504-5504, delivery 626 8th Avenue, Olympia, WA 98504, email arc@hca.wa.gov, fax (360) 586-9727, by 5:00 p.m., on August 22, 2017.
Assistance for Persons with Disabilities: Contact Amber Lougheed by August 18, 2017, email amber.lougheed@hca.wa.gov, (360) 725-1349, or TTY (800) 848-5429 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To comply with new federal rules in 42 C.F.R. Part 431, the agency is creating new WAC 182-526-0100 to allow for expedited administrative hearings for urgent health care needs. The agency is revising WAC 182-526-0290 (4) and (6) to correct an error in the recently filed permanent rules for chapter 182-526 WAC. In subsection (4), if an appellant fails to appear at the scheduled prehearing conference to address the petition to vacate, the order becomes a final order. The administrative law judge (ALJ) or review judge does not dismiss the matter with prejudice. In subsection (6), if the petition to vacate is not filed timely or the appellant fails to establish good cause to excuse any default or to reinstate the matter for hearing, the ALJ must issue an initial order, not a final order, dismissing the appeal. In WAC 182-526-0280, the agency is proposing to strike the introductory statement "This section applies to continuance requests made by applicants or recipients."
Statutory Authority for Adoption: RCW 41.05.021, 41.05.160, 42 C.F.R. Part 431, Subpart E - Fair Hearings for Applicants and Beneficiaries.
Statute Being Implemented: RCW 41.05.021, 41.05.160, 42 C.F.R. Part 431, Subpart E - Fair Hearings for Applicants and Beneficiaries.
Rule is necessary because of federal law, 42 C.F.R. Part 431, Subpart E - Fair Hearings for Applicants and Beneficiaries.
Name of Proponent: HCA, governmental.
Name of Agency Personnel Responsible for Drafting: Darcy Eliason, P.O. Box 42716, Olympia, WA 98504-2716, (360) 725-1642; Implementation and Enforcement: Evelyn Cantrell, P.O. Box 45504, Olympia, WA 98504-5504, (360) 725-9970.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The agency has determined that the proposed filing does not impose a disproportionate cost impact on small businesses or nonprofits.
A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to HCA rules unless requested by the joint administrative rules review committee or applied voluntarily.
July 11, 2017
Wendy Barcus
Rules Coordinator
NEW SECTION
WAC 182-526-0100 Expedited administrative hearings for urgent health care needs.
(1) Requesting an expedited hearing.
(a) An expedited hearing may be requested only in matters involving applicants or recipients.
(b) An applicant or recipient may request an expedited administrative hearing when the applicant or recipient believes there is an urgent health care need as defined in subsection (3) of this section.
(c) The applicant or recipient bears the burden of proof to establish an urgent health care need and must submit evidence or arrange for evidence to be submitted to the office of administrative hearings (OAH) with the expedited hearing request to support the need for an expedited hearing.
(d) A recipient may be eligible for continued coverage according to WAC 182-504-0130.
(2) Exception to notice requirements. The notice requirements in this section prevail over notice requirements in WAC 182-526-0250.
(3) Standard for granting an expedited hearing request.
(a) For the purposes of this section, an urgent health care need means that waiting for an otherwise timely final order could jeopardize the applicant's or recipient's life, health or ability to attain, maintain, or regain maximum function.
(b) The administrative law judge (ALJ) grants a request for an expedited hearing only if the ALJ finds by a preponderance of the evidence submitted with the applicant's or recipient's expedited hearing request and the information listed below that the applicant or recipient has an urgent health care need.
(c) Information the ALJ may consider when determining whether the applicant or recipient has an urgent health care need and whether to subsequently grant or deny an expedited hearing request includes, but is not limited to:
(i) The documentation submitted with the expedited hearing request to show an urgent health care need;
(ii) Whether the recipient is eligible for continued coverage of the benefits denied, reduced, or terminated by the agency or the agency's designee pending resolution of the appeal as an expedited hearing request may not be granted for individuals receiving continued coverage;
(iii) The length of time between the applicant's or recipient's receipt of the agency's or the agency designee's adverse notice and the applicant's or recipient's request for an expedited hearing; and
(iv) Whether the documentation submitted with the expedited hearing request shows that an appointment with a provider for a health care procedure or treatment to address the applicant's or recipient's stated urgent health care need:
(A) Is scheduled; or
(B) Cannot be scheduled due to a lack of coverage.
(4) Time frame and notice requirements for expedited hearing request determination. The ALJ must grant or deny the expedited hearing request and issue the determination within four business days of receipt of the request by OAH or as expeditiously as possible. OAH must immediately notify the parties orally and in writing of the ALJ's determination, unless notification in writing is waived by the parties. The oral and written notice must clearly state:
(a) Whether the expedited hearing request was approved or denied;
(b) That a hearing has been or will be scheduled; and
(c) The information listed in subsection (3)(c) of this section that the ALJ relied upon.
(5) Scheduling an expedited hearing. If the ALJ grants a request for an expedited hearing, OAH will schedule a hearing and provide notice as expeditiously as possible, allowing for a reasonable amount of notice and time for the parties to prepare for hearing. The notice rules in WAC 182-526-0250 do not apply.
(6) Denial of expedited hearing. If the ALJ denies an expedited hearing request, OAH will schedule the hearing based on standard scheduling practices and the notice rules in WAC 182-526-0250.
(7) Appeal right. There is no right to appeal an ALJ's determination to grant or deny an expedited hearing request.
(8) Expedited hearing initial order. If an expedited hearing request is granted and an expedited hearing is held, the ALJ must issue an initial order as expeditiously as possible.
(9) Expedited final order. Any party may request administrative review of the initial order with the health care authority board of appeals according to WAC 182-526-0560 through 182-526-0600. The board of appeals will issue a final order as expeditiously as possible.
(10) Delayed expedited hearing request determination or expedited hearing initial order. The ALJ has a duty to determine whether to grant or deny an expedited hearing request and, if granted, to issue an expedited hearing initial order as expeditiously as possible, except in unusual circumstances when:
(a) An ALJ is unable to reach a decision because the applicant or recipient requests a delay or does not take a required action; or
(b) There is an administrative or other emergency beyond OAH's or the agency's control.
AMENDATORY SECTION (Amending WSR 17-05-066, filed 2/13/17, effective 3/16/17)
WAC 182-526-0280 Continuing a hearing when an appellant is an applicant or recipient.
((This section applies to continuance requests made by applicants or recipients.)) (1) Any party may request a continuance under this section either orally or in writing.
(2) Before contacting the office of administrative hearings (OAH) to request a continuance, the party seeking the continuance must make a good faith effort to contact the other parties to find out if they agree to a continuance. The party making the request for a continuance must let OAH know whether the other parties agreed to the continuance.
(3) Standard when less than sixty days. When a continuance request is made less than sixty days from the date OAH received the hearing request:
(a) If all parties agree to the continuance, the ALJ must grant the request unless the ALJ holds a prehearing conference and finds that good cause for a continuance does not exist under WAC 182-526-0020.
(b) If the parties do not agree to the continuance, the ALJ must schedule a prehearing conference and determine if good cause for a continuance exists under WAC 182-526-0020 and under the following factors:
(i) Why the party is requesting a continuance;
(ii) Why the other party or parties are objecting to the request;
(iii) Whether a continuance in the case has previously been granted at the request of the same party who is now requesting the continuance and, if so, whether it was for the same reason;
(iv) The extent to which the requesting or objecting parties could have prevented the need for delay;
(v) The number and duration of previous continuances in the case and who requested them;
(vi) The legal or factual complexity of the case;
(vii) The relative harm to the parties if the continuance is granted or denied, including the risk of harm to the appellant if he or she is not receiving continued benefits;
(viii) The impact of a continuance on the parties' ability to adequately prepare and present their cases;
(ix) Any need to provide accommodation, translation, or interpreter services; and
(x) The impact of a continuance on the ability of OAH to issue a timely initial decision; or
(xi) Other relevant factors.
(4) Standard when sixty days or greater. When a continuance request is made sixty days or more from the date OAH received the hearing request:
(a) The ALJ must not only consider whether there is good cause to continue the hearing but also must find a compelling reason for the continuance.
(b) Compelling reasons include:
(i) Medical evidence is required;
(ii) Extraordinary circumstances exist, such as the sudden unforeseen onset of an illness or adverse event that was beyond the party's ability to prevent;
(iii) The hearing format changes or the ALJ finds a compelling reason to change the way a witness appears at the hearing according to WAC 182-526-0360;
(iv) The appellant needs more time to prepare or present evidence or argument because the agency issued an amended notice under WAC 182-526-0260;
(v) The need for more time was caused by another party's action or inaction, considering the relative capacity and resources of the parties;
(vi) The need to provide accommodation, translation, or interpreter services;
(vii) A party received notice of the date or deadline thirty days or more after OAH received the hearing request;
(viii) Whether the continuance is needed to allow for effective assistance of counsel of record; or
(ix) Other compelling reasons.
(5) The ALJ must notify all parties whether a continuance was granted or denied orally on the record, or must do so in writing within five business days of the prehearing conference.
(6) If the ALJ grants a continuance, OAH must serve a new notice of hearing on the parties at least fourteen calendar days before the new hearing date, unless the parties agree to a shorter time period.
AMENDATORY SECTION (Amending WSR 17-05-066, filed 2/13/17, effective 3/16/17)
WAC 182-526-0290 Reinstating a hearing after an order of default or an order of dismissal.
(1) If an order of default was entered under WAC 182-526-0284, or an order of dismissal was entered under WAC 182-526-0285, the appellant may file a petition (request) to vacate (set aside) the order.
(a) The petition to vacate must be filed with the office of administrative hearings (OAH) or the board of appeals (BOA) for nursing home rates cases.
(b) BOA forwards any petition to vacate to OAH except for nursing home rates cases.
(c) The appellant must specify in the petition to vacate the reason why the order should be vacated.
(2) The petition to vacate must be filed within twenty-one calendar days of service (mailing) of the order to the parties. If the petition to vacate is not filed by the deadline, the order of default or order of dismissal becomes a final order.
(3) If OAH receives a petition to vacate, OAH schedules a prehearing conference and serves all parties with a notice of a prehearing conference under WAC 182-526-0250.
(4) If the appellant fails to appear at the scheduled prehearing conference to address the petition to vacate((:
(a))) the order becomes ((the)) a final order((; and
(b) The ALJ or review judge must dismiss the matter with prejudice)).
(5)(a) If the appellant appears for the scheduled prehearing conference:
(b) The ALJ or review judge will receive evidence and argument from the parties regarding whether:
(i) The petition to vacate was timely filed; and
(ii) The appellant has established good cause to excuse any default and to reinstate the matter for hearing.
(6) The ALJ ((or review judge)) must issue ((a final)) an initial order or the review judge must issue a final order dismissing the appeal ((and terminating the hearing process)) if:
(a) The petition to vacate was not filed timely; or
(b) The appellant fails to establish good cause to excuse any default or to reinstate the matter for hearing.
(7) If the ALJ or review judge rules that the order of default or order of dismissal is vacated, the matter may proceed to hearing and the parties may present argument and evidence about the issues identified in the original request for hearing. The hearing may occur:
(a) Immediately following the prehearing conference if agreed to by the parties and the ALJ; or
(b) At a hearing date scheduled by OAH under WAC 182-526-0250.
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