Michelle Winchester, J.D., Health Policy Analyst
The Policy Resource Center
Institute for Health, Law, and Ethics
UPDATED December 2011
Reprinted with Permission
INTRODUCTION back to top
You have a right to a fair hearing whenever your request for Medicaid is denied or not acted upon promptly. This includes a right to a fair hearing anytime the New Hampshire Department of Health and Human Services (DHHS) suspends, terminates, or reduces your Medicaid eligibility or service coverage. In other words, you have the right to a hearing to appeal the following:
In these situations, you must be granted a fair hearing if you request it. (An exception to this rule is that a hearing is not mandatory if the only issue is a change in the law that requires an automatic change that adversely affects Medicaid recipients.)
REQUIRED NOTICE OF YOUR FAIR HEARING RIGHTS back to top
The DHHS must notify you of your right to appeal at the time that you apply for Medicaid and any time the DHHS denies, stops, suspends, or reduces your eligibility or service coverage. The notice must:
The 2011 DHHS notice used at the time of application is shown below.
When the DHHS takes an action that affects your eligibility or services, the notice must contain
In most situations, the DHHS must mail this notice to you at least 10 days before the date of action. In other words, there should be at least 10 calendar days between the postmark on the notice and the effective date of the action.
Also, the notice must go to you. A notice sent only to your service provider is not sufficient.
REQUESTING A FAIR HEARING back to top
Federal law allows the DHHS to require that you submit your request for a fair hearing in writing. The law also requires the DHHS allow you a reasonable time to request the hearing. In New Hampshire, the DHHS allows you to make the request orally or in writing and requires that you make the request within 30 days of the action.
The DHHS may deny or dismiss a request for a fair hearing if you withdraw the request in writing or if you fail to appear at a scheduled hearing without good cause.
SERVICES UNTIL THE FAIR HEARING DECISION back to top
Maintaining Service Coverage until the Fair Hearing Decision is Rendered
When the DHHS mails a 10-day notice and you request a fair hearing before the date of action, the DHHS may not terminate or reduce services until a hearing decision is rendered, unless —
You should know, however, that if the hearing decision upholds the original DHHS decision, the State may require you to pay it back for the services that it paid for between the action date and the hearing decision.
A Note on Settling Your Complaint about a DHHS Decision outside the Fair Hearing Process back to top
A fair hearing is a lengthy and time-consuming process and you may be able to resolve your complaint about a DHHS decision outside of that process. You can do this by requesting a meeting on your complaint with the DHHS or the District Office. You may bring a lawyer or other representative to the meeting. If you are not satisfied with the meeting results, you still have the right to a fair hearing.
While a meeting may be a good option for you, remember the 10-day time limit for maintaining service coverage and the 30-day time limit for requesting a fair hearing. These time frames do not change even if you first try to resolve your complaint outside of the hearing process. When you decide to request a meeting, consider also requesting a fair hearing within the required time frames in order to maintain your service coverage and your option of a fair hearing until the matter is resolved.
Reinstating Service Coverage Until the Fair Hearing Decision is Rendered back to top
The DHHS must reinstate services that were terminated and maintain service coverage until a fair hearing decision is rendered if —
THE FAIR HEARING back to top
Federal law requires all fair hearings be conducted:
In New Hampshire, Medicaid fair hearings are usually held at your local District Office or in Concord. One hearing officer from the Administrative Appeals Unit (AAU) of the DHHS will conduct the hearing.
If the hearing involves medical issues and the hearing officer considers it necessary to have a medical assessment other than the assessment of the individual involved in making the original decision, the medical assessment must be obtained at the State’s expense and made part of the hearing record.
You (or your representative) must be given an opportunity to:
The DHHS will also have these opportunities and the hearing officer will likely ask questions of both sides.
You will need to decide whether or not to hire a lawyer for this process. You are not required to have a lawyer. The fair hearing process is one in which you should be able to represent yourself. However, you may find it helpful to have an attorney represent you. You should find out who will represent the DHHS; if the DHHS has a lawyer, you may want to have a lawyer. Also, ask the opinion of others who have been through the fair hearing process. You may also be represented by someone other than a lawyer.
The length of the hearing varies with the type of hearing and probably will vary with the presence or absence of lawyers.
After the hearing, you will be notified of the hearing officer’s decision in writing and of your rights. The decision is based only on the evidence presented at the hearing. It must include the reasons for the decision and any additional appeal processes available, such as the right to take the matter to court.
The matter must be finalized within 90 days from the date of the request for a fair hearing.
IS IT WORTH GOING THROUGH A FAIR HEARING? back to top
DHHS decisions may be overturned. Sometimes decisions are overturned before the hearing because of evidence you produce that the DHHS was not previously aware of. Sometimes the hearing officer overturns the DHHS decision.
If you think that the DHHS has made an erroneous decision, you have every right to attempt to correct it through the fair hearing process. The decision to request a fair hearing, however, is entirely up to you.