Tenn. Comp. R. & Regs. 1240-05-03-.03 - TIME LIMIT FOR FILING AN APPEAL

(1) Appeals or requests for a hearing will be accepted only if they are filed within the required time limit unless good cause can be shown as to why the appeal or request for a hearing could not be filed within the required time limit; provided, however, no good cause will be permitted for TennCare Standard/TennCareMedicaid eligibility reform disenrollment appeals. (State Rule 1240-5-3-.03(1)(l) 3(vi)(III) governs the restriction on good cause extensions and untimely appeals for disenrollment related to TennCare Standard and TennCare Medicaid eligibility reforms).

(a) Adult and Community Services Program Appeals.

1. Except as otherwise specified by these rules or laws or regulations specifically applicable to a program, appellants or individuals acting in their behalf involving Adult and Community Services programs, including persons dissatisfied with services provided directly by the Department, or persons who are dissatisfied with the grievance hearing decision involving assistance/services provided through Department grantees, in the:

(i) Emergency Shelter Grant Program;

(ii) Low Income Home Energy Assistance Program;

(iii) Weatherization Assistance Program;

(iv) Community Services Block Grant Programs;

(v) Social Services Block Grant Programs;

(vi) Refugee Services Program;

(vii) Adult Day Care Services Program; or

(viii) Homemaker Program,

will be allowed thirty (30) days commencing from the date of the notice of action or notice of intended action to appeal any action of the Department, or action of the Department's grantee under the Department grantee's local level grievance process, in regard to denial, reduction, or termination of a service, or failure to act upon a request for service with reasonable promptness. The appellant will be allowed thirty (30) days to appeal the local level grantee grievance decision to the Department.

(b) Adult Day Care Licensing Appeals.

1. The appeal of denials, revocations, or restrictions of the license of an adult day care center licensed by the Department pursuant to T.C.A. § 71-2-401 et seq. shall be made by petition in writing to the commissioner within ten (10) days of the date of the mailing of notice by the Department to the applicant/licensee.

2. The appeal of the decision to continue probation for an adult day care center shall be filed in writing within five (5) business days of the receipt of the notice of the Department's decision regarding the review of the probationary status pursuant to T.C.A. § 71-2-409(2) and (3).

(c) Child and Adult Care Food Program Appeals. 7 C.F.R. § 226.6 and State Rule 1240-5-8-.01(9) govern appeals in the Child and Adult Care Food Program.

1. Applicants and participating institutions and responsible principals and responsible individuals and day care homes will be allowed fifteen (15) days from the date on which notice of action, sent by certified mail, return receipt requested, is received to appeal an action of the Department of Human Services as allowed under 7 C.F.R. § 226.6(k)(2) and 7 C.F.R. § 226.6(l)(2) and (3) .

2. The receipt of the appeal requesting an administrative review pursuant to this subparagraph (c) must be acknowledged by the Department within ten (10) days of receiving the request.

3. Where inconsistencies are present between the requirements of the Tennessee Uniform Administrative Procedures Act, as amended, and the Federal regulations governing the Child and Adult Care Food Program, appeals of the Child and Adult Care Food Program will be processed in accordance with 7 C.F.R. § 226.6(k) and 226.6(l) and State Rule 1240-5-8-.01(9) and not the Uniform Administrative Procedures Act.

(d) An appeal of an agency's dispute of the result of the Intradepartmental Review of a child care agency program assessment under Chapter 1240-4-7, shall be submitted to the Commissioner in writing within (10) business days of receiving the Department's written decision regarding the Review.

(e) Criminal history exclusions for persons having access to children in child care agencies or having access to adults in adult day care centers pursuant to T.C.A. §§ 71-2-403(a) and 71-3-509(e) and (f) shall be filed within ten (10) days of the mailing date of the notice of exclusion or denial of a waiver of the exclusion.

(f) Child Support Appeals.

Timely filed child support appeals shall be in writing and shall be filed within:

1. Twenty (20) days from the date of service of the notice in license revocation proceedings, such as professional, business, fishing, hunting licenses, etc. under T.C.A. § 36-5-701 et seq.; and

2. Fifteen (15) days of the date of the notice of administrative action for all other appeals as governed under T.C.A. § 36-5-1001 et seq. and for all other administrative actions where otherwise not established by statute.

(g) Families First Program appellants or individuals acting in their behalf will be allowed ninety (90) days commencing from the date of the advance written notice of intended action to appeal any action of the Department.

(h) Food Stamp Appeals.

1. A Food Stamp household or its representative shall be allowed to request a fair hearing on any adverse action by the Department of Human Services within ninety (90) days of the date of such action as established by the date of the notice to the household of such action. In the event an appellant successfully appeals an adverse action, such appellant will only be entitled to receive retroactive benefits from the date that is twelve (12) months prior to the date upon which the beneficiary requests such retroactive benefits.

For example, a beneficiary begins receiving benefits from the Food Stamp Program on January 1, 2000. On January 1, 2003, the beneficiary determines that the amount of benefits that she has been receiving is incorrect; she actually should have been receiving a greater amount of Food Stamp benefits since she first entered the program on January 1, 2000. On January 2, 2003, the beneficiary contacts her local DHS office to request that her benefits be increased according to her calculations and that she receive retroactively the benefits that she believes she should have been entitled to since January 1, 2000. DHS sends the beneficiary a written notice on January 30, 2003, which states that DHS is denying her request for increased benefits and retroactive benefits. The beneficiary timely appeals this determination on February 15, 2003 and is informed that she won the appeal on March 31st, 2003. The beneficiary would be entitled to have her benefits increased going forward, and she would be entitled to retroactive benefits from January 2, 2002, to present. She would not be entitled to retroactive benefits from January 1, 2000 through January 1, 2002, because this period is more than twelve months prior to the date when the beneficiary first requested the retroactive benefits, January 2, 2003.

(i) Refugee Assistance Program appellants or individuals acting in their behalf will be allowed ninety (90) days commencing from the date of the advance written notice of intended action to appeal any action of the Department.

(j) Rehabilitation Services Appeals.

1. Vocational Rehabilitation Services Appeals.

(i) Vocational Rehabilitation Services appellants or individuals acting in their behalf, as set forth in Tennessee State Rule 1240-5-1-.05, will be allowed thirty (30) calendar days after the date of notification of the Informal Administrative Review finding to appeal any action of the Department with regard to the furnishing of, denial of, or failure to deliver Vocational Rehabilitation Services, subject to good cause exceptions as determined by the Appeals and Hearings Division.

(ii) If the appellant or appellant's representative elects not to utilize the Informal Administrative Review, the appeal, as specified in State Rule 1240-5-1-.05(9), must be filed within thirty (30) calendar days of the date of the notice by the Division of Rehabilitation Services to the appellant of the action with regard to the furnishing of, denial of, or failure to deliver Vocational Rehabilitation Services, subject to good cause exceptions as determined by the Appeals and Hearings Division.

2. Tennessee Blind Enterprises Appeals.

(i) A manager in the Tennessee Blind Enterprises program who is dissatisfied with any action arising from the operation or administration of the vending facility program may ask for a review of the action as permitted by State Rule 1240-6-11-.01 by filing a written request within thirty (30) days of the Department's action with the Director of the Services for the Blind Division, Tennessee Department of Human Services; or the manager may file an appeal by a written request by the manager, or by a representative selected by the manager, within thirty (30) days of the agency's action from which the grievance arises or within fifteen (15) days following the manager's receipt of an administrative review decision issued by the Director of Services for the Blind Division pursuant to rule 1240-6-11-.01. Receipt is deemed to be five (5) days from the date of mailing for purposes of this subpart.

(ii) Appeals and arbitration proceedings related to the Randolph-Sheppard Act or the Tennessee Business Enterprises Program will be accepted only if they are filed within the time limits specified in this Chapter and State Rules 1240-6-11-.02 and .03, and must be appealed as set forth in those rules; provided, however, time frames for filing petitions for appeals, reconsideration of initial orders and final orders and stays of effectiveness of those orders in contested case proceedings conducted under the Administrative Procedures Act shall be governed by this Chapter.

(k) Summer Food Service Program Appeals. 7 C.F.R. § 225.13 and State Rule 1240-5-8-.01(8) govern appeals in the Summer Food Service Program.

1. Applicants and participants will be allowed ten (10) days from the date on which the notice of action, sent by certified mail return receipt requested, is received to appeal an action of the Department of Human Services as allowed under 7 C.F.R. § 225.13(b).

2. Where inconsistencies are present between the requirements of the Tennessee Uniform Administrative Procedures Act, as amended, and the Federal regulation, appeals of the Summer Food Service Program will be processed in accordance with 7 C.F.R. § 225.13 and State Rule 1240-5-8-.01(8), and not the Uniform Administrative Procedures Act.

(l) TennCare Standard and TennCare Medicaid Appeals.

1. Appeal Time Frames.

Requests for appeals for Medicaid Program applicants and recipients or individuals acting in their behalf under Title XIX of the Social Security Act ( 42 U.S.C. § 1396 et seq.) and TennCare Standard applicants or enrollees must be made within forty (40) calendar days (inclusive of mail time) of the date of the notice to the applicant/enrollee regarding the intended action or prior to the date of action specified in the notice, whichever is later; provided, however, that if the TennCare Bureau enacts a different appeal time, such time frame shall supersede the time frame set forth in this part 1.

2. Requirement for Valid Factual Dispute.

(i) TennCare Medicaid and TennCare Standard appellants will be given the opportunity to have an administrative hearing before a hearing official, as determined by the Appeals and Hearings Division if the appeal presents a valid factual dispute regarding an adverse administrative action.

(ii) If the Appeals and Hearings Division makes an initial determination that an appeal does not present a valid factual dispute, then the Appeals and Hearings Division will send the appellant a letter asking him or her to submit additional clarification regarding the appeal within ten (10) days (inclusive of mail time). Unless such clarification is timely received and is determined by the Appeals and Hearings Division to establish a valid factual dispute, a fair hearing will not be granted.

(iii) The Appeals and Hearings Division's decisions with respect to determination of whether an appeal raises a valid factual dispute shall not be appealable.

3. Appeal Rights for Disenrollment Related to TennCare Standard and TennCare Medicaid Eligibility Reforms.

(i) TennCare Medicaid and TennCare Standard enrollees, who have not been determined eligible for open Medicaid categories pursuant to the Ex Parte Review or Request for Information processes described in State Rules 1200-13-13-.02 and 1200-13-14-.02, will have the right to request a hearing forty (40) days (inclusive of mail time) from the date of the Termination Notice.

(ii) Such appeals will be conducted by the Appeals and Hearings Division for TennCare Medicaid and TennCare Standard applicants/enrollees in accordance with these administrative procedures rules, and in accordance with any other applicable rules, laws or court orders governing those programs.

(iii) Enrollees will not have the opportunity to request an extension for good cause of the forty (40) day time frame in which to request a hearing.

(iv) Enrollees who request a hearing within twenty (20) calendar days (inclusive of mail time) of the date of notice or prior to the date of termination specified in the Termination Notice, whichever is later, shall retain their eligibility (subject to any changes in covered services generally applicable to enrollees in their TennCare category) pending a determination that the enrollee has not raised a valid factual dispute or until the appeal is otherwise resolved, whichever comes first.

(v) The Appeals and Hearings Division is designated by the TennCare Bureau to review each request for hearing to determine if it is based on a valid factual dispute. Enrollees will be given the opportunity to have an administrative hearing before a hearing official, as determined by the Appeals and Hearings Division, regarding valid factual disputes related to termination. If the Appeals and Hearings Division makes an initial determination that the request for a hearing is not based on a valid factual dispute, the appellant will receive a notice which provides ten (10) days (inclusive of mail time) to provide additional clarification of any factual dispute on which his/her appeal is based. Unless such clarification is timely received and is determined by the Appeals and Hearings Division to establish a valid factual dispute, a fair hearing will not be granted.

(vi) The Appeals and Hearings Division will grant hearings under this subparagraph (l), part 3 only for those enrollees raising valid factual disputes related to the action of disenrollment. A valid factual dispute is a dispute that, if resolved in favor of the appellant, would prevent the state from taking the adverse action that is the subject of the appeal. Appeals that do not raise a valid factual dispute will not proceed to a hearing. Valid factual disputes include, but are not limited to:

(I) Enrollee received the Termination Notice in error (e.g., they are currently enrolled in a TennCare Medicaid or TennCare Standard category that is not ending);

(II) The Department failed to timely process information submitted by the enrollee during the requisite time period following the Request for Information or Verification Request;

(III) The Department granted a "good cause" extension of time to reply to the Request for Information Notice, but failed to extend the time (this is the only circumstance surrounding good cause which can be appealed with respect to disenrollment appeals);

(IV) Enrollees requested assistance because of a health, mental health, learning problem or disability, but did not receive this assistance; or

(V) The TennCare Bureau sent the Request for Information or Termination Notice to the wrong address as defined under state law.

(vii) If the enrollee does not appeal prior to the date of termination as identified in the Termination Notice, the enrollee will be terminated from TennCare.

(viii) If the enrollee is granted a hearing and the hearing decision sustains the State's action, the State reserves its right to recover from the enrollee the cost of services provided during the hearing process.

4. Appeals regarding recertification of enrollees in the Core Medicaid Population, as such term is defined in State Rule 1200-13-13, will be processed in accordance with State Rules 1200-13-13-.02(6) and 1200-13-13-.12, and the Rules of the Department of Human Services, as applicable. All other appeals regarding recertification of TennCare Medicaid and TennCare Standard eligibility shall be processed in accordance with the Rules of the Department of Human Services, in conjunction with the applicable rules of the TennCare Bureau regarding eligibility criteria.

(2) Continuation of Assistance or Services Pending Appeal.

(a) Continuation of Eligibility for Assistance or Services in Food Stamp and Families First Program Appeals.

Assistance for a recipient in the Families First and Food Stamp programs shall continue pending the appeal, until such determination is made under 1240-5-3-.03(2)(d) below, if the appeal is received within ten (10) days from the date of the advance written notice of intended action, unless the appellant specifically requests assistance or services not be continued while the appeal is pending.

(b) Continuation of Assistance or Services in the TennCare Medicaid and TennCare Standard Programs. (State Rule 1240-5-3-.03(1)(l) 3 above governs the continuation of assistance or services for appeals for disenrollment related to TennCare Standard and TennCare Medicaid eligibility reforms).

1. Enrollees who request a hearing within twenty (20) calendar days (inclusive of mail time) of the date of notice or prior to the date of action specified in the notice, whichever is later, shall retain their eligibility (subject to any changes in covered services generally applicable to enrollees in their TennCare category) pending a determination by the Appeals and Hearings Division that the enrollee has not raised a valid factual dispute or until the appeal is otherwise resolved, whichever comes first. If the appeal results in the State's action being sustained, the State reserves its right to recover from the enrollee the cost of services provided to the enrollee during the pendency of the appeal.

2. Benefit Level Continuation in TennCare Medicaid and TennCare Standard Programs.

(i) Enrollees disputing the applicability of changes in coverage to their current TennCare category who request a hearing within twenty (20) calendar days (inclusive of mail time) of the date of the notice or prior to the date of action specified in the notice, whichever is later, shall, notwithstanding State Rule 1240-5-3-.03(2)(b) 1 above, continue to receive benefits pending a determination by the Appeals and Hearings Division that the appellant has not raised a valid factual dispute or until the appeal is otherwise resolved, whichever comes first.

(ii) If the enrollee does not clearly allege the applicability of a particular eligibility category, benefits will be continued at the level for Non-Institutionalized Medicaid Adults pending a determination by the Appeals and Hearings Division that the enrollee has not raised a valid factual dispute or until the appeal is otherwise resolved, whichever comes first.

(iii) If the Appeals and Hearings Division subsequently determines that the enrollee is alleging that a particular eligibility category is currently applicable, benefits will be prospectively continued at the level for such eligibility category pending a determination by the Appeals and Hearings Division that the enrollee has not raised a valid factual dispute or until the appeal is otherwise resolved, whichever comes first.

(c) If the recipient can show good cause existed for the failure to appeal within the time frames in subparagraphs (a) for the Food Stamp and Families First Programs and (b) for the TennCare Medicaid and TennCare Standard Programs, assistance or services may be reinstated or continued pending appeal, provided, however, State Rule 1240-5-3-.03(1)(l) 3(iii) and (1)(l)3(vi)(III) above governs the restriction on good cause extensions and untimely appeals for disenrollment related to TennCare Standard and TennCare Medicaid eligibility reforms.

(d) Once continued, the assistance or services designated in subparagraphs (a) for the Food Stamp and Families First Programs and (b) for the TennCare Medicaid and TennCare Standard Programs will, nevertheless, cease as of the earliest of the following events:

1. As provided in State Rule 1240-5-3-.03(2)(b) 1 and 2 above for TennCare Standard or TennCare Medicaid appeals; or

2. A change affecting the recipient's assistance occurs while the hearing decision is pending and the recipient fails to request a hearing after notice of the change; or

3. In Food Stamp cases, the certification period ends; or

4. A final decision is made by the agency that the appellant is not entitled to the assistance or services.

(e) Continuation of services in Vocational Rehabilitation Services appeals is governed under State Rule 1240-5-1-.05(5) and State Rule 1240-5-1-.05(10)(b).

(f) Continuation of services in Summer Food Service Program appeals is governed under 7 C.F.R. § 225.13(11) and State Rule 1240-5-8-.01(8).

(g) Continuation of services in Child and Adult Care Food Program appeals is governed under 7 C.F.R. § 226.6(k)(10) and State Rule 1240-5-8-.01(9).

(h) Title IV-D child support services shall continue if an appeal of the termination of services is filed within sixty (60) days of the date of the notice of the proposed closure of the case.

(i) Continuation of services in Refugee Cash Assistance Program appeals is governed under 45 C.F.R. § 400.54.

(j) Continuation of services in appeals for other Programs administered by the Department is contingent upon other Federal regulations applicable to the Program.

Notes

Tenn. Comp. R. & Regs. 1240-05-03-.03

Original rule filed January 19, 1977; effective February 18, 1977. Amendment filed July 10, 1980; effective August 25, 1980. Amendment filed December 17, 1982; effective March 16, 1983. Amendment filed January 20, 1984; effective February 19, 1984. Amendment filed August 30, 1985; effective November 12, 1985. Amendment filed September 30, 2004; effective December 14, 2004. Amendment filed February 26, 2007; effective May 12, 2007.

Authority: T.C.A. §§ 4-5-202, 4-5-301, 4-5-307, 71-1-105, 71-2-408; 71-3-151, 71-3-154, 71-4-508, 71-4-610, 71-5-106, 71-5-110 and 71-5-305; 7 U.S.C. § 2020(b) and (e)(10) and (e)(11); 20 U.S.C. §§ 107d-1 and 107b(6); 29 U.S.C. § 722(c); 42 U.S.C. § 1396 et seq.; 42 U.S.C. §§ 1761 and 1766; 42 U.S.C. § 6851; 42 U.S.C. § 8624; 7 C.F.R. §§ 225.13, and 226.6; 7 C.F.R. §§ 273.13, 273.13(a)(1), 273.13(a)(3)(v), 273.15(g) and (k); 273.17; 34 C.F.R. §§ 361.48 and 361.57; 34 C.F.R. §§ 395.4 and 395.13; 42 C.F.R. § 431.200 et seq.; 42 C.F.R. §§ 431.210, 431.211, 431.221, 431.230 and 431.231; 45 C.F.R. § 205.10(a)(4)(i)(A) and (ii)(K); 45 C.F.R. § 205.10(a)(5)(iii) and (a)(6) and (7); and 45 C.F.R. §§ 400.23, 400.54 and 400.145.