210 R.I. Code R. 210-RICR-10-05-2.4 - Agency/Program Specific Appeal and Hearing Provisions

The EOHHS Hearing Office is bound by federal and/or state law and regulations to recognize the unique appeal provisions applicable to persons participating in the following programs and/or delivery systems.

2.4.1 AID PENDING

A. See § 2.2.2 of this Part for additional information related to the continuation or reinstatement of Aid Pending the resolution of an appeal.

B. HSRI - Commercial Health Insurance through HSRI Renewals.

1. HSRI. Aid Pending is available to customers who appeal an eligibility redetermination. Eligibility redetermination shall be defined in accordance with 45 C.F.R. § 155.330(e)(1)(ii) (December 22, 2016) and 45 C.F.R. § 155.335(h)(1)(ii) (March 8, 2016) not to include later amendments thereto. Aid Pending is available to customers who appeal eligibility redetermination.

C. For appeals pertaining to General Public Assistance (GPA), a written request for hearing made within the ten (10) day advance notice period and must be accompanied by or include a written request for continuation of GPA to stay the reduction, suspension, or discontinuance until the administrative fair hearing decision is issued. Only at the applicant/recipient's specific written request must the agency continue GPA benefits.

D. If an appeal of resident discharge or transfer is filed within ten (10) days from the date of the notice of intended action, a resident may continue residing in the facility until the EHO administrative hearing decision is issued.

2.4.2 MEDICAID MANAGED CARE PLAN APPEALS - EOHHS

A. Medicaid beneficiaries enrolled in certain managed care delivery systems must attempt to resolve disputes unrelated to eligibility (disenrollment, prior authorization denial, change in the amount of a covered service, access to a particular provider, etc.) through the managed care plan's grievance and appeal process before requesting a hearing through the EHO.

B. The timelines for filing an appeal listed in the table in §2.3.2(H) of this Part are suspended while the matter is on review with the managed care plan. However, a Medicaid beneficiary retains the right to request an Administrative Fair Hearing through the EHO, in accordance with the provisions set forth in § 2.3.1 of this Part if the matter remains unresolved after exhausting all remedies available through the managed care plan's grievance and appeals process. The final federal managed Medicaid rules allow beneficiaries 120 calendar days to request a fair hearing.

C. The rules governing grievances and appeals may vary by type of managed care plan and population served and are specified accordingly in the applicable sections of the MCAR as follows:

Medicaid Managed Care Appeals Not Related to Eligibility
Medicaid Managed Care Delivery System	Managed Care Plan Grievance and Appeal Process	Applicable Parts
a) RIte Care Plans - Neighborhood Health Plan, United and Tufts	Medicaid beneficiary once enrolled as a plan "member" must exhaust plan grievance and appeal process before requesting hearing through EHO.	210-RICR- 30-05-2 Scope of Services Plan Appeal Process Member Rights
b) Rhody Health Partners - Medicaid Affordable Care Coverage Group Adults Age 19-64	Medicaid beneficiary once enrolled as a plan "member" must exhaust plan grievance and appeal process before requesting hearing through EHO.	210-RICR- 30-05-2 Scope of Services Plan Appeal Process Member Rights
c) RIte Share Premium Assistance Program	Medicaid beneficiary must appeal issues in accordance with commercial plan appeals and grievance process. Appeals on all other matters, including cost- sharing and failure to enroll, and any coverage issues that remain unresolved must be made to EHO.	210-RICR- 30-05-3 Scope of Program Program and cooperation requirements
d) Rhody Health Partners - Persons who are aged, blind or with disabilities	Medicaid beneficiary must exhaust levels I and II of managed care plan's grievance and appeals process before requesting a hearing through EHO. For MCO contracts starting on July 1, 2017, Medicaid beneficiary must exhaust one level of managed care plan's grievance and appeals process before requesting a hearing	§ 40-10-1 of this Title, RHP Benefit Package § 40-10-1.2.6 of this Title, Grievances, Appeals and Hearings
e) Community Health Team - RI.	Medicaid beneficiary must file appeals related to medical services directly to the EHO. If contracted entity, overseeing delivery option, fails to resolve non-medical formal appeals within set timelines, Medicaid beneficiary may request hearing through EHO.	§ 40-10-1.26.3 of this Title, Service Delivery Options § 40-10-1.41.7 of this Title, Grievances, Appeals and Hearings
f) Medicare Medicaid Plan (MMP)	Medicaid/Medicare beneficiary must exhaust level I of managed care plan's appeals process before requesting a hearing through EHO for Medicaid services or overlap services covered by both Medicare and Medicaid.	§ 40-10-1.41.8 of this Title, MMP Benefit Package § 40-10-1.41.7 of this Title, Grievances, Appeals, and Hearings

2.4.3 EXPEDITED APPEAL - MEDICAID, HSRI, LTSS, SNAP

A. A Medicaid appellant may request an expedited appeal in circumstances when the matter in dispute cannot reasonably be resolved during the standard appeals process without jeopardizing the appellant's life, health, or ability to obtain the services required to attain, maintain, or regain maximum function.

B. A long-term services and supports (LTSS) expedited appeal may also be granted in instances in which a state licensed nursing facility or assisted living residence initiates a transfer or discharge of a resident due to either:

1. the planned closure of the facility/residence; or

2. the resident has failed, after reasonable and appropriate notice, to pay for a stay in the facility/residence.

C. An HSRI customer may request an expedited appeal when there is an immediate need for health services because the standard appeal could jeopardize the appellant's life, health, or ability to attain, maintain, or regain maximum function.

D. A request for an expedited appeal shall include information supporting the claim that a standard appeal could jeopardize the appellant's life, health, safety, welfare, or ability to attain, maintain or regain maximum function.

E. The EOHHS Hearing Office shall review all expedited appeal requests upon receipt and, as appropriate, require the agency or LTSS provider that initiated the action to prepare and return a response to the EHO in three (3) business days or less in instances involving dual-eligible beneficiaries enrolled in Medicaid managed care. (See § 2.4.3(F) of this Part).

F. If the EHO exercises its reasonable discretion and grants an expedited appeal, hearings are scheduled as follows:

1. Health Coverage Appeals - In instances in which the appellant is enrolled in affordable care coverage (QHP through HSRI or Medicaid) or is being involuntarily discharged/transferred from a long-term care facility in the circumstances indicated in §§2.4.8(C) and (D) of this Part, the hearing must be scheduled expeditiously and the decision must be issued without undue delay, taking into account the appellant's condition, the immediacy of the need for the health care access or coverage in dispute, and the extent to which any delays in the adjudication process may jeopardize the well-being or pose risks to the appellant or affect the efficacy of the health care access or coverage in dispute.

2. Dually Eligible Beneficiaries - If the appellant is a dually eligible Medicare-Medicaid beneficiary, a hearing must be scheduled immediately and appeal must be resolved in no more than three (3) business days from the date the EHO received the expedited appeal request.

G. If the request for an expedited appeal is denied, the EHO shall notify the appellant of this decision without undue delay by either telephone or other commonly available electronic media; a letter shall also be sent to the appellant explaining the reasons for the denial. Denial of a request for an expedited appeal does not delay or otherwise disrupt the timeline for resolving the dispute through the standard appeal process.

H. EHO shall expedite hearing requests from households, such as migrant farmworkers, that plan to move from Rhode Island before the administrative hearing decision would normally be reached. Hearing requests from these households shall be processed faster than others if necessary to enable them to receive an administrative hearing decision and restoration of benefits if the administrative hearing decision so indicates before they leave Rhode Island.

I. SNAP. The State agency shall expedite hearing requests from households, such as migrant farmworkers, that plan to move from the jurisdiction of the hearing official before the hearing decision would normally be reached. Hearing requests from these households shall be processed faster than others, if necessary, to enable them to receive a decision and a restoration of benefits if the decision so indicates before they leave the area.

2.4.4 HSRI FEDERAL REVIEW OPTION

A. As the state entity recognized by the U.S. Department of Health and Human Services (DHHS) for implementing the federal components of the ACA, HSRI, and the EHO acting as the appeal entity on the agency's behalf, shall afford appellants certain specific rights prior to and after an administrative hearing decision is rendered.

B. If related to an HSRI action, the EHO shall provide an explanation of the appellant's right to pursue the appeal before the federal DHHS appeals entity within thirty (30) days of the date of the notice of the administrative hearing decision. The federal DHHS appeals process provides the appellant with an additional opportunity for informal resolution and a formal administrative hearing.

C. As applicable, EHO shall transmit, via secure electronic interface, the appellant's appeal record, including the appellant's records from HSRI, to the DHHS appeals entity. The appellant shall also be informed that seeking federal review is not a prerequisite for seeking judicial review unless or until a court with appropriate jurisdiction finds otherwise.

1. Upon receiving notice from the EHO of an administrative hearing decision overturning an agency action, the HSRI shall promptly implement the administrative hearing decision. Specifically, such an administrative hearing decision shall be effective:

a. Prospectively, on the first day of the month following the date of the notice of appeal decision, or consistent with 45 C.F.R. §§ 155.330(f)(2) or (3) (2012) (not including later amendments) and in accordance with R.I. Gen. Laws §§ 42-35-3.2(a)(1) and (d); or

b. Retroactively, to the date the incorrect agency action became effective, at the option of the appellant.

2. HSRI must, pursuant to 45 C.F.R. § 155.545(c)(2) (2012) (not including later amendments) and in accordance with R.I. Gen. Laws §§ 42-35-3.2(a) (1) and (d)) redetermine the eligibility of household members who have not appealed the agency action, but whose eligibility for coverage and/or advanced premium tax credits or reductions in cost sharing may be affected by the appeal decision, in accordance with the standards specified in 45 C.F.R.§ 155.305 (2012) not including later amendments.

3. IRS Role - Decisions related to an award or level of advance premium tax credits must include a plain-language statement that the final calculation of tax credits is conducted by the federal Internal Revenue Service (IRS) through the reconciliation process, in accordance with section 36B(f) of the Internal Revenue Code (26 U.S.C. § 36B(f)), and that decisions or interpretations of the EHO are not binding against the IRS during that process.

2.4.5 HSRI SMALL BUSINESS HEALTH OPTIONS PROGRAM ("SHOP")

A. HSRI operates the SHOP to provide small employers with the opportunity to offer their employees with the option to obtain affordable health coverage through one or a choice of qualified health plans. The EHO has been designated as the entity responsible for handling appeals of SHOP actions initiated by SHOP employers and employees.

B. All SHOP employer and employee valid appeal hearings shall be conducted in accordance with 45 C.F.R. § 155.740, 45 C.F.R. §§ 155.505(e) through (g) (2012) not including later amendments, and 45 C.F.R. §§ 155.510(a)(1), (a)(2), and (c) (2012) not including later amendments.

1. An employer or employee wishing to appeal denial of eligibility by HSRI shall do so within ninety (90) days of the date on the notice of the action being taken by the agency. Such appeals may be filed through the EHO or the HSRI Contact Center by mail, telephone, or in person.

C. SHOP appellants, whether an employer or employee, have the right to request an alternative form of dispute resolution known as a "desk review" in lieu of an in-person hearing. In this option, the administrative hearing officer reviews written submissions and evidence provided by the appellant and agency representative(s) and any applicable statutes, rules and regulations used as the basis for the agency action. The hearing officer then issues an appeal decision based on the findings of this review.

1. To request a desk review, the appellant shall notify the EHO or HSRI Contact Center in advance and as follows:

a. If the hearing has already been scheduled, the request for the desk review shall be provided to the EHO or HSRI in no less than five (5) business days before the hearing date. In such cases, the written submissions from both parties - agency and appellant - shall be provided to the EHO on the day the hearing is scheduled to occur.

b. If the hearing has not yet been scheduled, the appellant may request the desk review at any time. Written submissions in such instances are due to the EHO within ten (10) days of the date the request is made or at such other time as may be agreed to by the affected party, the agency, and the EHO.

2. Upon requesting a desk review, the appellant forfeits the opportunity for an in-person hearing. The agency and the EHO are responsible for ensuring that the appellant is aware that the in-person hearing option has been forfeited and provide information related to any US DHHS and judicial review opportunities.

2.4.6 DHS OFFICE OF REHABILITATIVE SERVICES - APPEAL DECISION REVIEW AND IMPLEMENTATION

A. The Office of Rehabilitative Services, of the Rhode Island Department of Human Services, sets forth the due process procedures and process for handling contested agency actions, including opportunities for pre-settlement conferences as provided for in ORS rules and regulations. Either party in an ORS contested agency action may request a review of the appeal decision of the hearing officer within twenty (20) days after the date the decision is rendered. If neither party requests this review, the decision of the hearing officer becomes the final decision of the agency on the 21st calendar day after the decision is issued.

B. Director's Review - The impartial review of the hearing officer's decision when requested is conducted by the Director of the Department of Human Services.

1. Review Standards -The following standards of review apply when conducting a review of the appeal decision and the agency action in dispute:

a. Evidence. Each party is given an opportunity for the submission of additional evidence and information relevant to the issue;

b. Basis for Decision. The reviewing official is prohibited from overturning or modifying the decision of the hearing officer, or part of the decision that supports the position of the applicant or eligible individual, unless the Director concludes, based on clear and convincing evidence, that the decision of the hearing officer is clearly erroneous and contrary to:

(1) The approved ORS State Plan;

(2) The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. as amended, including regulations, rules, policies, or procedures that are consistent with implementing the Act; or

2. The DHS Director shall render a final decision within thirty (30) days of the initial request to review.

3. The reviewing official shall provide a written decision to both parties.

C. If a party brings a civil action to challenge a final decision of an impartial hearing officer or to challenge a final decision of the Director's review, said decision shall be implemented pending review by the court.

D. Any individual aggrieved by the final agency decision may:

1. Bring a civil action for review of such decision in a United States district court of competent jurisdiction without regard to the amount in controversy, or

2. File for judicial review in accordance with R.I. Gen. Laws § 42-35-15 as amended by filing a complaint in the Superior Court of Rhode Island.

2.4.7 DHS CHILD SUPPORT SERVICES APPEALS

A. The DHS Office of Child Support Services (OCSS) is the state agency charged with establishing and enforcing child support obligations. In this capacity, the OCSS is responsible for determining the paternity of children, issuing court orders for financial and medical support, modifying or changing orders when appropriate, and enforcing child support obligations on the behalf of persons participating in the state's Medicaid, RIWorks, and Child Care Assistance programs. Accordingly, program participants have the right to dispute OCSS actions that affect their child support through the appeal and hearing process set forth in §§ 2.3 through 2.4 of this Part, with the exceptions provided as follows:

1. As the state's principal child support agency, OCSS appeal and hearing requests must concern matters that are within the agency's jurisdiction. Disputes related to eligibility or the scope, amount, and/or the duration of benefits/assistance/services must be directed at the agency with the statutory responsibility for administering and thus taking such actions. Therefore, for an OCSS appeal to be considered valid, it must meet the filing requirements established in §2.2.1(A) of this Part and address agency actions related to:

a. Amount of support paid;

b. Date such payment was made;

c. Date such payment was received by the applicable state agency or RI Family Court;

d. Date and amount of pass-through and/or child support paid; and

e. Pass-through payments that were not made and the reason for non-payment.

B. The OCSS sends a quarterly notice to program participants with child support obligations that shall include, at a minimum, information about any such actions and a participant's right to appeal and request a hearing for any that may be in dispute and when a pass-through payment was not sent in a particular month an explanation as to why the payment was not made.

C. In instances in which a contested agency action proceeds to a formal administrative hearing, the appellant is advised that the EHO shall send a written decision via US Mail that includes any remedies required on the part of the agency or the appellant in no more than (30) days following the close of the hearing. In the event that an OCSS action was found to be in error, the agency shall make any corrections required and issue a new quarterly notice containing information that reflects any changes that have been made as a result of the appeal.

2.4.8 INSTITUTIONAL AND COMMUNITY-BASED LONG-TERM CARE RESIDENT INVOLUNTARY DISCHARGES AND TRANSFERS

A. The Executive Office of Health and Human Services is the single state agency for Medicaid under Title XIX of federal law. In this capacity, the EOHHS has been designated as the appeal entity for resident discharges and transfers initiated by state licensed and federally certified nursing facilities and state licensed assisted living residences, without regard to payer. All such transfer/discharges that are taken by a provider without the written agreement or consent of the resident or the resident's legal guardian or authorized representative are considered to be involuntary and referred to hereinafter as such.

B. The provisions of this subpart apply only to involuntary resident discharges and transfers and irrespective of whether Medicare, Medicaid or private parties pay all or some of the costs for the resident's stay. State agency actions affecting Medicaid eligibility or Medicaid-funded long-term services and supports (LTSS) must be appealed through the process set forth in §§ 2.2 and 2.3 of this Part and/or, where applicable, the Medicaid managed care or expedited appeal provisions set forth in § 2.4.2 of this Part.

C. In accordance with applicable federal and state laws, regulations and rules, an involuntary transfer or discharge may only be initiated by a licensed entity as follows:

1. A resident transfer/discharge is permitted under applicable federal regulations when it is necessary for medical reasons; when the resident's health and/or safety or the health and safety of other residents or staff is endangered if the resident remains; when a resident - or the party responsible for the resident - has failed, after reasonable and appropriate notice, to pay for their stay at the facility; or in the event of a facility closure.

2. A resident transfer/discharge may be initiated in accordance with the regulations set forth in the RI Department of Health (RIDOH).

D. Both licensed nursing facilities and assisted living residences must provide a formal notice of the intent to transfer/discharge to the resident and/or resident's authorized representative.

1. If the resident has been in the facility or residence for more than thirty (30) days, at least thirty (30) days advance notice is required. If the resident's stay is less than (30) days, the notice of the intent to discharge/transfer must be sent as soon as feasible prior to the relocation date. The advance notice period begins on the fifth day from the date notice is mailed.

2. For the notice to be valid, it must be sent within the time limits indicated above and include the following written in plain language:

a. The reason for the transfer;

b. The effective date of the transfer;

c. Where the resident will be re-located;

d. Notice to the resident of the right to appeal and request a hearing through the EHO, designate someone, including legal counsel, to act as an authorized representative during the appeals process, and to review medical and other pertinent evidence.

e. Indicate that if the transfer/discharge is related to facility/licensure closure or non-payment or may pose imminent risk to a resident's health, a request for an expedited appeal should be filed within ten (10) days of the notice. The ten (10) day period begins on the fifth day after the notice mailing date.

f. Contact information for both the state's Long-term Care Ombudsman and the RIDOH Center for Health Facility Regulations for the aged. Persons with behavioral health care conditions must be provided with information about the state's Mental Health Advocate and contact information for the RI Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals and persons with developmental disabilities must be provided with contact information for the Rhode Island Disability Law Center.

E. An appeal of an involuntary discharge must be filed in writing to the EHO during the thirty (30) day appeal period. An expedited appeal request may be filed and determined to be valid in instances involving non-payment by a third party (Medicaid or Medicare) and/or imminent risk to the resident, at the discretion of the EHO, if received within ten (10) days of the notice of the intent to transfer/discharge sent by the provider. To ensure timely resolution of such cases, the EHO must notify the provider upon the appeal's receipt that a written response must be prepared within the timelines specified in §2.4.8(D)(1) of this Part.

F. The EHO must provide the nursing facility or assisted living residence with a copy of the appeal. The provider must prepare and return a response to the EHO in no more than seven (7) calendar days. In instances in which the EHO has approved a request for an expedited appeals process, the response must be prepared in accordance with the requirements of §2.4.8(D)(1) of this Part.

G. If a resident's appeal request is submitted within ten (10) days of the date of the notice of intent to discharge/transfer, the resident is prohibited from being relocated pending the decision of the hearing officer, including in instances in which a continuation is granted beyond the date of the intended action. In all cases where the appellant remains in the facility pending the appeal, the hearing must be scheduled no later than thirty (30) days after the receipt of the request for appeal by the EHO. If the appeal decision is rendered prior to the date of the intended action but upholds the nursing facility's decision to discharge/transfer, the resident may remain in the facility until the date of the intended action.

H. Prior to issuing a notice, the provider and the resident may have attempted and exhausted all available informal dispute resolution options. Appeals to the EHO may only occur subsequent to the sending of the notice of intended action by the facility/residence.

I. The administrative hearing generally will be conducted at the appellant's facility/residence, unless otherwise requested by the appellant.

J. If not an expedited appeal, official notice of the hearing must be sent by the EHO to all parties involved at least ten (10) days prior to the scheduled hearing date. Expedited appeals proceed in accordance with the provisions in section §2.4.3 of this Part.

K. The administrative hearing process proceeds in accordance with the provisions established in § 2.3 of this Part except as indicated herein and as follows:

1. An appellant may request a continuance of the appeal hearing by contacting the EHO prior to the date of the scheduled hearing. To the extent feasible, continued hearings must be rescheduled by the EHO for a date that is within forty (40) days from the date of the notice of intended action. The EHO may require an appellant seeking more than one rescheduling of the same hearing to provide good cause, as defined in §2.3.1(E)(3) of this Part. Notice of the rescheduled hearing must be provided to the affected parties must be provided in a minimum of two (2) business days prior to the date of the rescheduled hearing.

2. The EHO administrative hearing office must issue a decision in no more than ten (10) days from the date of the hearing.

L. In instances in which an appellant does not remain in a facility or residence during an appeal, a hearing must be conducted as soon as feasible but not more than ninety (90) days from the date the EHO receives the appeal. An appellant may request in writing one or more continuance(s) that extends beyond this date for the purposes of case preparation.

2.4.9 DCYF CHILD ABUSE AND NEGLECT APPEALS

A. Persons contesting an action of the Department of Children, Youth, and Families (DCYF) may file a complaint with the agency though the Central Office or Child Protective Services, in accordance with § 2.2 of this Part, or by-pass the complaint process and request an administrative hearing with the agency or the EHO.

B. In the case of a complaint related to an indicated finding of child abuse or neglect, a complaint sent to either the DCYF or the EHO initiates the appeal and hearing process. The affected party must send the original complaint explaining the manner in dispute along with the request for hearing directly to the EHO. Upon receipt, the appeal is handled in accordance with the provisions established in Part II related to preparation of agency response and the respective responsibilities of the appellant, the EHO and the agency.

C. At an Administrative Hearing on such a complaint, the EOHHS Hearing Officer determines whether the:

1. Department proved that abuse or neglect occurred by a preponderance of evidence; and/or

2. Agency representative that made the determination complied with all policy and procedures relating to the conduct of such investigation(s).

D. An appeal decision must be rendered and sent to the affected parties in no more than 120 days from the date the appeal was filed in cases in which a finding of an abuse or neglect offense disqualifies the appellant from employment in a child care position. For appeals on all other issues, the decision and notice must be rendered in no more than 180 days from the date the appeal was filed with the EHO.

2.4.10 EQUAL ACCESS TO JUSTICE ACT (EAJA) REQUIREMENTS

A. This section implements the statutory requirements contained in R.I. Gen. Laws Chapter 42-92, as amended, in order to provide equal access to justice for small businesses and individuals. This section governs the application and award of reasonable litigation expenses to qualified parties in adjudicatory proceedings conducted by, or under the auspices of, EOHHS.

B. It is EOHHS's policy that individuals and small businesses are encouraged to contest unjust administrative actions in order to further the public interest, and toward that end, such parties are entitled to state reimbursement of reasonable litigation expenses when they prevail in contesting an agency action which is, in fact, without substantial justification, as defined herein.

C. As used in this subsection, the following terms shall be construed as follows:

1. "Party" means any individual whose net worth is less than five hundred thousand dollars ($500,000) at the time the adversary adjudication was initiated; and any individual, partnership, corporation, association, or private organization doing business and located in the state, which is independently owned and operated, not dominant in its field, and which employs one hundred (100) or fewer persons at the time the adversary adjudication was initiated.

2. "Reasonable litigation expenses" means those expenses which were reasonably incurred by a party in adjudicatory proceedings, including, but not limited to, attorney's fees, witness fees of all necessary witnesses, and other costs and expenses as were reasonably incurred, except that:

a. The award of attorney's fees may not exceed one hundred and fifty dollars ($150) per hour, unless the hearing officer determines that special factors justify a higher fee;

b. No expert witness may be compensated at a rate in excess of the highest rate of compensation for experts paid by this state.

3. "Substantial justification" means that the initial position of the agency, as well as the agency's position in the proceedings, has a reasonable basis in law and fact.

D. Whenever a party prevails in contesting an agency action and has provided the state agency with timely notice of the intention to seek an award of litigation expenses as provided by law, the administrative hearing officer may request testimony, supporting documentation and evidence, briefs or other legal memoranda from the parties prior to making a decision.

E. The decision of the administrative hearing officer to make an award of reasonable attorney's fees shall be made part of the appeal record, shall include written findings and conclusions with respect to the award, and shall be sent to the claimant, unless the same is represented by an attorney, in which case the decision shall be sent to the attorney of record.

F. No other agency official may review the award.

G. The administrative hearing officer will not award attorney's fees or expenses if he/she finds that the agency was substantially justified in actions leading to the proceedings and in the proceeding itself.

H. The administrative hearing officer may, at his or her discretion, deny fees or expenses if special circumstances make an award unjust.

I. Whenever substantially justified, the administrative hearing officer may recalculate the amount to be awarded to the prevailing party, without regard to the amount claimed to be due on the application, for an award.

J. All claims for an award of reasonable litigation expenses shall be made by letter application supplied by the agency and shall be filed with the hearing office within thirty (30) days of the date of the conclusion of the adjudicatory proceeding which gives rise to the right to recover such an award. The proceeding shall be deemed to be concluded when the agency or administrative hearing officer renders a ruling or decision, there is an informal disposition, or termination of the proceeding by the agency.

K. The administrative hearing officer may, at his or her discretion, permit a party to file a claim not in keeping with the timeframe stated above upon a showing of proof and finding by such administrative officer that good and sufficient cause exists for allowing a claim to be so filed.

L. All claims must be postmarked or received by the hearing office if filed electronically, no later than thirty (30) calendar days from the date of the conclusion of the adjudicatory proceeding. These claims must contain:

1. A summary of the legal and factual basis for filing the claim;

2. A detailed breakdown of the reasonable litigation expenses incurred by the party in the adjudicatory proceedings, including copies of invoices, bills, affidavits, or other documents, all of which may be supplemented or modified at any time prior to the issuance of a final decision on the claim by the administrative hearing officer;

3. A notarized statement swearing to the accuracy and truthfulness of the statements and information contained in the claim, and/or filed in support thereof. In this statement, the claimant must also certify that legal fee time amounts were contemporaneously kept.

M. Any party aggrieved by the decision to award or deny reasonable litigation expenses pursuant to the EAJA may bring an appeal to the Superior Court in the manner provided by the Administrative Procedures Act, R.I. Gen. Laws § 42-35-1 et seq.

2.4.11 SEVERABILITY

If any provisions of these regulations or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions or application of these regulations which can be given effect, and to this end the provisions of these regulations are declared to be severable.

Notes

210 R.I. Code R. 210-RICR-10-05-2.4

Amended effective 7/22/2020