210 R.I. Code R. § 210-RICR-10-05-2.3 - Administrative Fair Hearing Process

2.3.1 GENERAL PROVISIONS

A. The administrative hearing process is initiated when an agency or the EHO receives an appeal request.

B. The EHO is responsible for scheduling the date for the appeal hearing. Upon scheduling a hearing, the EHO must send a written notice to the appellant of the date, time, and location or format of the hearing, no later than fifteen (15) days prior to the hearing date. The EHO must also notify all other affected parties including any authorized representatives of the hearing date.

C. The EHO must assure that the appellant is sent an evidentiary packet, upon request, at least three (3) days in advance of the hearing date, except when using the expedited appeal process. The evidence packet shall, at a minimum, include:

1. Except for HSRI, in eligibility cases, the appellant's original application, the eligibility decision, and, if available, verification results from third party data sources used to make the eligibility determination;

2. In all other cases, any documents provided to the agency by or on behalf of the appellant that were material to the action taken by the agency;

3. Any documents and explanations provided by the appellant;

4. The agency response where applicable;

5. All associated notices.

D. The evidence packet is available to all parties in attendance at the hearing. All parties may request an opportunity to view the evidence packet prior to the hearing, with sufficient advance notice prior to the scheduled hearing. Requests to review the evidence packet should be made to the EHO.

E. The appellant and/or an authorized representative of the appellant must appear for the hearing at the scheduled time, date, and location. Hearings are held typically on the EHO or agency premises or may be conducted by telephone.

1. Request for continuance - If the appellant or an authorized representative is unable to appear for the hearing, the appellant must contact the EHO prior to the hearing date to report that he or she will not be able to appear, explain the reason, and request a continuance/postponement of the hearing.

a. No more than two (2) requests for continuances are permitted, unless the EHO allows, in its discretion, to permit an additional continuance subsequent to a valid claim of good cause as indicated below in §2.3.1(E)(3) of this Part.

b. A SNAP household may receive one postponement of no more than 30 days.

c. A hearing may be held open to a later date, at the discretion of the hearing officer, if an appellant requests additional time in which to submit relevant documents.

2. Dismissal for Failure to Appear - If the appellant or an authorized representative does not provide prior notification to the agency or the EHO of an inability to appear, the appeal is dismissed unless there is an approved claim of good cause. If good cause is found, the dismissal is vacated and the hearing is rescheduled as below.

3. Good Cause for Failure to Appear - Good cause for failure to attend a hearing is liberally interpreted in the appellant's favor. EHO staff may assist the appellant in the establishment of good cause, and when necessary, forward determining information to the hearing officer. If the hearing officer determines that good cause exists, the hearing is rescheduled within thirty (30) days of the request and benefits/assistance/services must be reinstated without undue delay if terminated due to dismissal of the appeal. Good cause claims include, but are not, limited to:

a. Sudden and unexpected event (such as loss or breakdown of transportation, illness or injury, or other events beyond the individual's control) which prevents the appellant's appearance at the hearing at the designated time and place; or appearance at the wrong office;

b. Disabilities, such as linguistic and behavioral health limitations, that may affect the appellant's ability to attend;

c. Injury or illness of appellant or household member that reasonably prohibits the individual from attending the hearing; and

d. Death in family.

4. Vacating a Dismissal - Upon determining that good cause exists, the dismissal is vacated, the hearing is rescheduled, and the EHO provides appropriate notification to the affected parties and agency. If the EHO finds that good cause does not exist, timely written notice of the denial of a request to vacate a dismissal is sent to the appellant. In HSRI appeal cases, the appellant must be advised in the notice in either case - denial or approval of request to vacate a dismissal - of the right to pursue the appeal at the federal level. An appellant choosing to exercise this right must make a request to the federal DHHS appeal entity in no more than thirty (30) days from the date of the EHO notice indicating whether the dismissal is vacated.

F. The appellant may designate anyone, including someone who is not licensed to practice law, to serve as an authorized representative during the appeal process. The appellant may make this designation to the EHO or the agency in-person or in writing by fax, email or U.S. mail or, as appropriate, the state's web-based IES.

1. Role of the Authorized Representative - Once the designation has been recognized by the EHO, the authorized representative is copied on all correspondence pertaining to the appeal that is provided to the appellant. Although the authorized representative may act on behalf of the appellant in all matters leading up to, and including, formal adjudication in a fair hearing, the appellant may opt to participate on his or her own in any dispute resolution proceeding.

2. Legal representation - In situations in which the appellant chooses to engage a licensed attorney to serve as an authorized representative, the EHO must be notified in advance that the attorney intends to make an appearance on the appellant's behalf. Such notification must be provided directly to the EHO by the attorney.

3. Authorized representatives who are out-of-state attorneys must file a pro hac vice motion in Rhode Island Supreme Court to request to be temporarily admitted to practice prior to providing legal representation in the administrative appeal process. In addition, all out-of-state attorneys must meet the requirements of the Rhode Island Supreme Court's Article II, Rule 9 (requirements for non-resident attorneys).

4. If an appellant chooses to have legal representation at the hearing, the representative shall file a written "Entry of Appearance" with the EHO at or before the hearing. The Entry of Appearance acts as a release of confidential information, allowing the legal representative access to the appeal record. The Entry of Appearance is also needed for the EHO to confirm the representation for purposes of follow-up, review, requests for continuances, etc.

G. Persons attending the hearing typically include the appellant, the appellant's authorized representative, the EOHHS Hearing Officer, state attorneys, and one or more representatives from the agency that took the action on appeal. In instances in which the subject on appeal is a change in agency policy, other affected parties may also have representatives in attendance.

1. Agency representatives attending the hearing must be prepared to answer questions related to the action on appeal.

2. It is the responsibility of the hearing officer to record the attendance of all persons who were involved in the relevant action under appeal.

H. All parties, authorized representatives, witnesses, and other persons present at a hearing must conduct themselves with the same decorum commonly observed in any Rhode Island court. Where such decorum is not observed, the hearing officer may take any appropriate actions to restore order, including ejection of parties or adjournment, as appropriate.

I. No person who is a party to or a participant in any proceeding before the agency or EHO or the party's counsel, employee, agent, or any other individual, acting on the party's or their own or another's behalf, is permitted to communicate ex parte with the hearing officer. The hearing officer must not request or entertain any such ex parte communications. These prohibitions do not apply to those communications that relate solely to general matters of procedure and scheduling.

J. Hearing officers hear the case de novo (or with no prior knowledge of the specific issue) and base decisions on applicable laws, regulations, rules and procedures.

K. Persons with disabilities must have access to services and processes necessary to ensure their full participation in the hearing process.

L. In compliance with state and federal statutes and regulations, EHO must have interpreters available for persons with limited English proficiency and other persons needing such services, such as a telephonic interpreter service or a language line.

M. The EHO administrative hearing officer is an impartial designee of the Secretary of EOHHS. Accordingly, a person who has participated in any way in the matter on appeal - either in an official or unofficial capacity - is prohibited from serving as a hearing officer. The hearing officer is responsible for eliciting all relevant facts bearing on the appellant's claim and agency rules, regulations, policies, and/or procedures pertinent to the matter in dispute.

N. The EHO maintains an official transcript of oral presentations made in the hearing. If not transcribed, any tape recording and any memorandum prepared by a presiding official summarizing the contents of those presentations shall be maintained on file. This is the official record for matters appealed from the EOH. Any person who testifies at the hearing shall be sworn in by the hearing officer. An orderly procedure must be followed that includes but is not limited to the following:

1. A statement by the hearing officer reviewing the agency's purpose relative to the hearing; the reason for the hearing; the hearing procedures; the basis upon which the decision will be made, and the manner in which the individual is informed of the decision.

2. A statement by the appellant and/or authorized representative outlining the appellant's understanding of the matter in dispute.

3. A statement by an agency representative, setting forth the legal basis for the agency's action that specifies applicable rules, regulations, policies, and/or procedures.

4. A full and open discussion of all facts and policies at issue by participants under the active leadership of the hearing officer.

O. The hearing may be adjourned from day to day or, within reason, held open to a later date at the discretion of the hearing officer if the appellant has reason to believe that he or she will obtain further relevant information to present at the hearing.

P. The appellant may submit supporting documents into evidence in-person at the time of the hearing, by mail, or by fax, the time frame for such being at the discretion of the EHO.

Q. The EHO must provide the appellant with the opportunity to:

1. Review the appeal record, including all documents and records to be used by agency at a reasonable time of no less than 72 hours before the date of the hearing, as well as during the hearing;

2. Bring witnesses to testify;

3. Establish all relevant facts and circumstances;

4. Be informed of the right to judicial review, if dissatisfied with the hearing decision;

5. Present an argument without undue interference;

6. Question or refute any testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses;

7. Testify telephonically upon request of the appellant and/or at the discretion of the EHO;

8. For HSRI actions, an appellant shall be informed of the right to appeal further to the federal HHS, if dissatisfied with the hearing decision; and

9. For appeals related to HSRI and MAGI Medicaid, an appellant must be informed that a hearing decision affecting one household member may require eligibility re-determinations for other household members.

R. The EOHHS Hearing Officer considers all relevant evidence presented during the course of the appeals process, including any evidence introduced at the formal hearing. Only information bearing directly on the issue under review and the policy, regulation or law put forth as supporting the agency action may be presented by the agency. The hearing officer is prohibited from reviewing any information that is not made available to all parties to the appeal. Further, the hearing officer is prohibited from reviewing any records or evidence that have not been introduced at the hearing.

S. When a hearing involves medical documentation required by federal or state law, such as a diagnosis, a physician's report, or a medical review team's decision, a medical assessment from a qualified person (other than the person(s) involved in the original decision) may be obtained at the expense of the agency and integrated into the appeal record if the hearing officer deems it necessary.

T. No evidence is admitted after completion of a hearing or after a case is submitted on the record, unless the hearing officer allows the record to remain open for such limited purpose, or the hearing officer reopens the hearing, or the parties agree to the submission, and all the parties have been notified of allowing the record to remain open or said reopening.

2.3.2 APPEAL HEARING DECISIONS

A. The full responsibility of the EHO in the hearing process is discharged when a final decision has been made, in writing, by the EHO.

B. The hearing decision must include a full report of the findings and the applicable provisions stipulated in federal and/or state policies, rules, regulations, and/or procedures and any additional relevant evidence presented during the course of the appeals process, including at the hearing, that serve as the basis for the decision.

C. The hearing decision must include findings of fact and conclusions of law, separately stated, and a concise statement of the underlying facts supporting the findings. The hearing decision must include a plain language description of the effect(s) of the decision on the appellant and, when applicable, members of the appellant's household. In addition, the EHO must indicate in writing that the appeals decision is final, unless the appellant chooses to exercise the right to pursue legal action through the RI court system or, in HSRI cases, appeal to the federal DHHS as indicated in § 2.4.4 of this Part. For exceptions to this requirement, see § 2.4.6 of this Part.

D. The EHO must issue written notice of the decision to the appellant within ninety (90) days of the date the appeal request is received, unless otherwise indicated in the program-specific special provisions indicated in § 2.4 of this Part. The EHO must provide notice of the appeal decision and implementation instructions to the agency pertaining to the continuation, reinstatement, or termination of benefits/assistance/services or any required changes in the scope, amount, and/or duration of benefits/assistance/services.

E. In accordance with 7 C.F.R. § 273.15(c)(l), the state agency has sixty (60) days from the receipt of a SNAP beneficiary's request for a hearing to:

1. conduct the hearing;

2. reach a decision; and

3. notify household and agency.

F. The EHO is responsible for assuring that the written decision is disseminated to the following:

1. Appellant/Authorized representative;

2. Agency representatives, including caseworker if there is one, and the associate director and administrator of the agency unit/division responsible for implementation of the action in dispute;

3. Chief legal counsel assigned to the agency, if applicable;

4. Agency Administrative Rules Coordinator, if applicable; and

5. Any other such interested persons or parties that may be involved directly in the decision's implementation.

G. The hearing responsibility of the state agency is considered discharged when the following steps have been completed:

1. The hearing officer renders a written decision, based exclusively on evidence and other material introduced at the hearing, on behalf of the state agency.

2. Copies of the decision are distributed to the appellant, the agency representatives including specific case managers, program administrators, and department senior staff as appropriate, and other interested parties. The decision must set forth the issue, the relevant facts brought out at the hearing, the pertinent provisions in the law and state agency policy, and the reasoning which led to the decision; and

3. Action required by the decision, if any, has been completed by the agency, and confirmed in writing to the EHO.

H. The table below provides an overview of special hearing requirements by agency and program:

Special Hearing Requirements
State Agency Administering Program	Name of Program	Deadline for Hearing (From Date Appeal is Received)	Hearing Decision Due
(01) Department of Human Services	General Public Assistance (GPA)	Unspecified	90 days from date the appeal request is received
(02) Department of Human Services	Child Support Services	Unspecified	30 days from date of close of hearing
(03) Department of Human Services	Supplemental Nutrition Assistance Program (SNAP)	60 days from date appeal request is received	60 days from date appeal request is received
(04) Department of Human Services	Office of Rehabilitative Services	60 days from the date appeal request is filed Note: Requests for informal resolution must take place within days of the appeal request and within 30 days of hearing date	30 days from the date of the close of the hearing
(05) Department of Human Services	Division of Elderly Affairs, Home and Community-based Services	14 days from date the appeal request is received	90 days from the date the appeal is received
(06) Department of Human Services	All Other DHS Programs including Child Care Assistance, and the State-funded Supplemental Security Program	90 days from the date the appeal is received	90 days from the date the appeal is received
(07) Department of Children, Youth, & Families	Findings of Abuse and Neglect	120 days from date appeal request is received	120 days from date appeal request is received
Other programs	180 days from date appeal request is received	120 days from date appeal request is received
(08) Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals	Non-Medicaid Programs	15 days from the date the appeal is received	25 days from date of close of hearing
(09) HealthSource RI - health benefit exchange	Qualified Health Plan, Advanced Premium Tax Credits and Cost Sharing Reductions	Varies - See § 2.4.3 of this Part	Varies - See § 2.4.3 of this Part 90 days of the date of the appeal request as administratively feasible
(10) Executive Office of Health & Human Services	Medicaid	90 days from date appeal is received unless expedited	90 days from date appeal is received unless expedited See § 2.4.3 of this Part for expedited appeal requirements
(11) Executive Office of Health and Human Services	Nursing Facility/Assisted Living Transfers and Discharged	Varies - see § 2.4.7 of this Part	10 days from the date of close of a hearing unless expedited. If expedited, see § 2.4.2 of this Part

2.3.3 OPPORTUNITIES FOR FURTHER RECOURSE

A. An appeal decision is final and is the last step in the state's administrative adjudication process for resolving a contested agency action. Not all available remedies are exhausted once the appeal decision is final, however. Therefore, an appellant also must be informed by the EHO of the opportunity to pursue recourse through other legal channels if dissatisfied or aggrieved by the appeal decision as follows:

1. The appellant may file a complaint requesting judicial review of the appeal decision by the appropriate state court with jurisdiction pursuant to R.I. Gen. Laws § 42-35-15, as amended. The filing of such a complaint does not automatically stay the decision or order unless so ordered by the Superior Court.

2. Court proceedings for review are instituted by filing a complaint in the Superior Court of Providence County or in the Superior Court in the county in which the cause of action arose, or where expressly provided by the general laws in the sixth division of the district court or family court of Providence Count within thirty (30) days after mailing notice of the final decision of the agency, or if a re-hearing is requested, within thirty (30) days after that decision thereon.

3. Copies of the complaint shall be served upon the state agency and all other parties of record in the manner prescribed by applicable procedural rules within ten (10) days after it is filed in Court; provided, however, that the time for service may be extended for good cause by order of the Court.

4. Within thirty (30) days after the service of the complaint, or within further time allowed by the Court, the state agency shall transmit to the reviewing Court the original or a certified copy of the entire record of the proceeding under review.

5. Agency/program Specific Reviews as set forth in § 2.4 of this Part.

2.3.4 AGENCY FOLLOW-UP REGARDING APPEAL DECISIONS

A. After the appeal hearing is held and a decision is reached, the Administrative Hearing Office prepares a written document containing the elements identified above in §2.3.2(C) of this Part. The EHO is responsible for the appropriate dissemination of the decision and providing any additional instructions to the agency that may be necessary to ensure the decision's timely and proper effectuation.

B. The EHO provides public access to all appeals decisions, subject to all applicable federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information, including the redaction of personally identifiable information.

1. Redacted EOHHS hearing decisions, rendered in accordance with its record retention schedule, are available for examination upon request at the EHO.

2. EOHHS may, at its discretion, make redacted hearing decisions available on a publicly accessible website in lieu of, or in addition to, making them available at the central office.

2.3.5 CORRECTIVE ACTION

A. In accordance with 42 C.F.R. § 431.246, the state agency must promptly make corrective payments, retroactive to the date an incorrect action was taken, and, if appropriate, provide for admission or readmission of an individual to a facility if:

1. The hearing decision is favorable to the applicant or beneficiary; or

2. The state agency decides in the applicant's or beneficiary's favor before the hearing.

B. If the EHO decision upholds the state agency's action, a claim against the household for any over issuances shall be prepared in accordance with 7 C.F.R. § 273.18 by DHS.

2.3.6 APPEAL RECORD

A. The EHO is responsible for developing and maintaining the appeal record.

B. The appeal record consists of:

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

2. All papers and requests filed in the proceeding; and

3. The recommendation or decision of the hearing officer.

4. All pleadings, motions, intermediate rulings;

5. Evidence received or considered;

6. A statement of matters officially noticed;

7. Questions and offers of proof and rulings thereon;

8. Proposed findings and exceptions;

9. Any decision, opinion, or report by the EHO;

10. All staff memoranda or data submitted to the EHO or members of the agency in connection with their consideration of the case.

C. The EHO must make the appeal record accessible to the appellant within a reasonable time, at a convenient place, in accordance with all applicable requirements of federal and state laws regarding privacy, confidentiality, disclosure, and personally identifiable information.

2.3.7 MOTIONS

A. General - Any party may request of the EHO any order or action not inconsistent with law, this rule and/or the Rhode Island Superior Court Rules of Civil Procedure.

1. Motions may be made in writing at any time before or after the commencement of a pre-hearing conference or hearing, and/or may be made orally during a pre-hearing conference or hearing. Each motion must set forth the grounds for the desired order or action and state whether oral argument is requested. Certain types of motions are prohibited by law or regulation for various assistance programs. The administrative fair hearing officer is responsible for ensuring all parties to the case are notified accordingly and that the applicable laws and regulations are equitably applied.

2. Within ten (10) business days of the filing of a written motion, an opposing party must file a written objection to the granting of the motion, and shall, if decided, request oral argument.

3. A hearing officer shall be assigned to determine whether oral argument on the motion is warranted and, if oral argument shall be heard, assign a date, time and place for such an argument. The hearing officer may decide a motion without argument if the motion involves a matter as to which the presentation of testimony or oral argument would not advance his or her understanding of the issue involved, or if disposition without argument would best serve the public interest. The hearing officer may act on a motion when all parties have responded thereto, or the deadline for responses has passed, whichever comes first, but no later than thirty (30) days following the filing of the motion.

B. At any time after the issuance of an appeal decision any party may, for good cause shown, by motion petition for a reconsideration of the final order. The petitioner shall file his/her motion within ten (10) days of the issuance of an appeal decision and shall set forth the grounds upon which he/she relies.

2.3.8 APPELLANT RIGHTS AND RESPONSIBILITIES

A. The agency or the EHO acting on the agency's behalf must ensure that appellants are aware of their rights and responsibilities once an appeal is filed and the hearing process is initiated.

B. Appellant Rights. It is the responsibility of the State to inform the appellant of the following:

1. Review of Evidence - The appellant has the right to examine all documents and records to be used at the hearing, at a reasonable time of no less than 72 hours before the date of the hearing, as well as during the hearing.

2. Representation - The appellant has the right to self-representation and/or representation by a third party such as a friend, relative, or legal counsel.

3. Case Presentation - The appellant may present the case without undue interference and bring any witnesses and submit any evidence he or she deems necessary to support the case. The appellant also has the right to question or refute any testimony or evidence at the hearing including, but not limited to, the opportunity to cross-examine witnesses.

4. Voluntary Withdrawal Procedure - An appeal may be withdrawn voluntarily in writing or by telephone by the appellant at any time. Appeals also may be withdrawn by telephone or on-line for certain programs as follows:

a. HSRI QHP/SHOP, Medicaid - Appeals may be withdrawn by the appellant only by calling the Contact Center or through a person's online account.

b. SNAP Appeals - SNAP appellants may make a verbal request to withdraw a hearing. In such SNAP cases, the administrative hearing officer assigned to the appeal must send written notice within ten (10) days confirming the withdrawal and providing the household with an opportunity to request or reinstate the appeal and request for a hearing within ten (10) days from date of the confirmation notice.

C. Appellant Responsibilities. Once the appeal has been initiated, the appellant is responsible for the following:

1. Hearing Appearance - The appellant or the authorized representative acting on the appellant's behalf must appear at the scheduled hearing. Failure to appear without good cause is considered "abandonment of hearing," as described in § 2.3 of this Part, and results in the closure of the contested agency action (except in SNAP cases), and dismissal of the request for a hearing.

2. Withdrawal of Appeal - In cases where the appellant no longer wishes to proceed with the appeal or where the informal resolution process is successful, the appeal may be withdrawn at the appellant's request.

3. Truthful and Accurate Information - The appellant must attest to the truthfulness and accuracy of information and materials presented during the appeal process and during the administrative fair hearing. Deliberate misrepresentations or omissions for the purposes of influencing the outcome of a contested agency action are treated as fraud and, as such, are subject to any applicable penalties established in state and federal laws, rules and regulations.

4. An appellant is responsible for notifying and keeping the EHO and the agency apprised of any changes in address and contact information.

2.3.9 EHO/APPEAL ENTITY ROLE AND RESPONSIBILITIES

A. The agency subject to the appeal or the EHO must fulfill certain responsibilities as the appeal entity.

1. Appeal Tracking - Notwithstanding the manner in which an appeal is submitted the EHO creates a record of the appeal. Hearing requests are tracked, scheduled, and managed while the appeal is pending and until a final decision is issued, or the appeal is withdrawn or resolved.

2. Hearing and Alternative Dispute Resolution Opportunities - An opportunity for an administrative fair hearing is granted to an affected party who submits an appeal.

3. Notice of Hearing - When a hearing is scheduled, EOHHS sends a written notice to the appellant of the date, time, and location or format of the hearing, no later than fifteen (15) days prior to the hearing date unless specifically stated otherwise in this Part.

4. Truthful and Accurate Information - State agency representatives are bound to provide truthful and accurate accounts of the basis for the agency action and the materials presented at the hearing.

5. Dismissal of an Appeal - The EHO shall dismiss an appeal when the appellant:

a. withdraws the appeal request orally or in writing, as is required by applicable law; or

b. fails to appear at a scheduled hearing without good cause;

c. the appeal is resolved in the informal dispute resolution process; or

d. dies while the appeal is pending (For HSRI only).

Notes

210 R.I. Code R. § 210-RICR-10-05-2.3

Amended effective 7/22/2020