CurrentNorth Dakota Department of Health & Human ServicesPolicy 75-01-03

Appeals and Hearings

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This chapter governs administrative appeals, fair hearings, intentional program violation hearings, notice requirements, hearing rights, appeal time limits, and responsibilities before hearings for North Dakota Department of Health & Human Services programs and related facilities or human service zones.

Policy Summary

PayerNorth Dakota Department of Health & Human Services

PolicyAppeals and Hearings

Policy CodePolicy 75-01-03

Change TypeAdministrative repealno material clinical or coverage change

Effective DateJan 1, 2019

Next Review DateN/A

Key ActionSend adequate written notices describing the proposed action, its reason and legal basis, corrective-action and fair-hearing rights, and when assistance will continue.

SourceLink

POLICY UPDATE CHANGES

Section 75-01-03-02 concerning vocational rehabilitation determinations and administrative review procedures was repealed effective January 1, 2019.

30 daysStandard appeal filing period

30 daysFacility transfer or discharge notice

60 daysFacility appeal deadline

6Hearing rights identified

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CurrentNorth Dakota Department of Health & Human ServicesPolicy 75-01-03

Appeals and Hearings

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Sign up for North Dakota Department of Health & Human Services Policy 75-01-03 alerts

Get alerted when Policy 75-01-03 changes without checking for updates manually.

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Policy Summary

PayerNorth Dakota Department of Health & Human Services

PolicyAppeals and Hearings

Policy CodePolicy 75-01-03

Change TypeAdministrative repealno material clinical or coverage change

Effective DateJan 1, 2019

Next Review DateN/A

Key ActionSend adequate written notices describing the proposed action, its reason and legal basis, corrective-action and fair-hearing rights, and when assistance will continue.

SourceLink

POLICY UPDATE CHANGES

Section 75-01-03-02 concerning vocational rehabilitation determinations and administrative review procedures was repealed effective January 1, 2019.

30 daysStandard appeal filing period

30 daysFacility transfer or discharge notice

60 daysFacility appeal deadline

6Hearing rights identified

ContinuedAssistance pending timely hearing

Eligibility, Appeals, and Hearing Requirements

Who May Receive a Fair Hearing

A fair hearing is available to eligible applicants, recipients, residents, and other persons who timely request and perfect an appeal as provided below.

ALL applicable requirements

Eligible hearing basis
- Applicant or recipient of Medicaid, the children's health insurance program, an economic assistance program, intellectual disabilities-developmental disabilities program management services, or Medicaid eligibility benefits is dissatisfied because an application was denied or not acted upon with reasonable promptness.
- Human service zone or department action resulted in suspension, reduction, discontinuance, or termination of benefits.
- Resident believes a facility erroneously determined that the resident must be transferred or discharged.
- Individual believes the department made an erroneous determination regarding the preadmission screening and resident review requirements of 42 U.S.C. 1396r(e)(7).
- Individual's Medicaid benefits are administered through a managed care organization and the individual received a notice of resolution upholding an adverse benefit determination, or the organization failed to meet the notice and timing requirements of 42 CFR 438.408(b)(1) and (2).
- Parent, custodian, or legal guardian believes the department erroneously denied or terminated an autism voucher under chapter 75-03-38.
- Applicant or recipient is aggrieved by a department determination made on the department's own motion and requests a hearing.
Additional eligibility rules
- The hearing is required by federal law or regulation.
- The appeal concerns an autism voucher or intellectual disabilities-developmental disabilities program management services.
The dissatisfied claimant timely perfects the appeal.

Special procedural rules

A fair hearing may be denied or dismissed when the sole issue is a state or federal law requiring automatic benefit adjustments for a class of recipients, unless the individual appeal alleges an incorrect benefit computation.
The claimant may seek corrective action from the department or human service zone before requesting a fair hearing.
If a claimant dies after filing and before the decision, the proceeding may continue on behalf of the estate or a statutory successor, subject to appointment of a personal representative where required.
If a dissatisfied claimant dies before filing, the duly appointed personal representative, or a statutory successor if no personal representative has been appointed, may file when the claimant was dissatisfied with an application denial or benefits received before death.

Hearing Rights

A person requesting a fair hearing or subject to an intentional program violation hearing must have a meaningful opportunity to participate and challenge the evidence.

Hearing rights

Examine the individual's or household's case file and all documents and records to be used at the hearing, at a reasonable time before the hearing and during the hearing.
Present the case personally or through legal counsel or another person.
Bring witnesses.
Establish all pertinent facts and circumstances.
Advance arguments without undue interference.

Dismissal Without Hearing

An appeal may be dismissed without a hearing only when the claimant withdraws or abandons it, or the department reverses the appealed decision without a hearing.

Permitted dismissal grounds

The claimant notifies the hearing officer that the claimant no longer wants a hearing.
The claimant or authorized representative fails to appear without good cause.
The claimant cannot be located through the last address of record or authorized representative and that prevents scheduling the hearing.
The department reverses the appealed decision without a hearing.

Rehearing and Reconsideration Criteria

A rehearing or reconsideration request is discretionary and must be filed promptly on specified grounds.

Request requirements

File with the office of the appeals supervisor within 15 days after the executive director issues the decision.
Grounds
- New evidence indicates that the determination was unjust or invalid.
- The executive director incorrectly interpreted relevant statutory or case law.
Additional-evidence request
- Describe the additional evidence.

References, Filing Deadlines, and Time Limits

Federal statutory references governing preadmission screening and resident review appealsmixed

42 U.S.C. 1396r(e)(7)(A)	Preadmission screening and resident review provision
42 U.S.C. 1396r(e)(7)(B)	Preadmission screening and resident review provision
42 U.S.C. 1396r(b)(3)(F)	Federal provision referenced in the definition of adverse determination

Federal regulatory references for screening and review standardsmixed

42 CFR part 483, subpart C	Federal standards referenced for preadmission screening and resident review
42 U.S.C. 1396r(f)(8)	Federal requirement referenced for preadmission screening and resident review standards
42 CFR 483.128	Determination that an individual is not suspected of mental illness or mental retardation, excluded from the defined adverse determination

North Dakota facility charge referencesmixed

75-02-06	Chapter establishing the daily rate referenced for facility charges
75-02-06-14	Covered bed-hold period referenced in facility nonpayment restrictions

Federal hearing decision deadlinesmixed

7 CFR 273.16(e)(2)(iv)	Federal deadline provision referenced for written waiver when holding the hearing record open
42 CFR 431.244(f)	Federal deadline provision referenced for written waiver when holding the hearing record open
45 CFR 205.10(a)(16)	Federal deadline provision referenced for written waiver when holding the hearing record open
7 CFR 273.15(c)(1)	Sixty-day deadline provision referenced for holding the hearing record open

Federal Medicaid appeals authoritymixed

42 CFR 431.151 et seq.

Federal Medicaid appeal provisions identified as implemented by the chapter

Standard appeal filing period

Standard deadline30 days after the order or action

General applicationApplies unless a different state or federal limitation governs

Determining dateGenerally the date notice of the order or action was mailed

SNAP appeal filing period

Deadline90 days after the order or action

ProgramSupplemental Nutrition Assistance Program household appeals

Required Notices, Preparation, and Hearing Administration

Documentation Required

Pre-Hearing Responsibility Assignments

Before a fair hearing concerning assistance or benefits, the human service zone or program must confirm whether the request was timely, promptly forward pertinent information, review the governing authorities and evidence, organize the presentation, prepare copies, arrange witnesses, identify communication or access needs, update the appeals supervisor about changed circumstances, complete required budget computations, and provide a representative authorized to make factual stipulations.

If the request is outside the timely notice period, do not reinstate or continue aid unless an applicable supplemental nutrition assistance program good-cause exception applies.
Provide the appeals supervisor all pertinent information no later than the fifth day after receiving the request.
For amount-of-aid, grant-adjustment, or repayment issues, prepare a month-by-month final budget computation through the hearing date.

Note

Appeal Notice and Timing Procedures

Perfect appeals according to the matter involved and the applicable deadline. Except for supplemental nutrition assistance program, Medicaid, and Medicaid-eligibility matters, the request must be written; those matters may be requested orally, by telephone, mail, in person, through a website, or by other commonly available electronic means. The request must be received by the department or human service zone.

Administrative Appeals Terms

Adverse benefit determination

MeaningFor a managed care organization, any listed action constituting an adverse benefit determination

Service actionDenial or limited authorization of a requested service, or reduction, suspension, or termination of an authorized service

Payment actionDenial in whole or in part of payment for a service

Adverse benefit determination

Timeliness failureFailure to provide services timely or failure to meet required grievance or appeal time frames

Out-of-network requestDenial of certain out-of-network service requests for a rural-area resident with only one managed care organization

Policy Summary

PayerNorth Dakota Department of Health & Human Services

PolicyAppeals and Hearings

Policy CodePolicy 75-01-03

Change TypeAdministrative repealno material clinical or coverage change

Effective DateJan 1, 2019

Next Review DateN/A

Key ActionSend adequate written notices describing the proposed action, its reason and legal basis, corrective-action and fair-hearing rights, and when assistance will continue.

SourceLink

On This Page

Question or refute testimony or evidence, including confronting and cross-examining adverse witnesses.

Explain why it was not previously introduced.

Explain its materiality.

Disposition

The executive director may order rehearing or reconsideration on the director's own motion.
Granting rehearing or reconsideration is within the executive director's discretion.
If granted
- Reconsider the decision on the existing record.
- Take additional evidence.
- Order an entirely new hearing.
A decision issued on rehearing or reconsideration is not subject to further hearing.
Give notice of the decision as provided by section 75-01-03-23.

Determining dateGenerally the date notice of the order or action was mailed

Disability-status Medicaid appeal filing period

Deadline6 months

TriggerOfficial Social Security Administration notification that disability status was approved or reversed

Applies toMedicaid benefits denied, reduced, or discontinued because of disability-status denial or discontinuance

Managed care Medicaid appeal filing period

DeadlineNo later than 120 days

TriggerDate of the managed care organization’s notice of resolution

Required conditionThe notice upholds the adverse benefit determination

Autism voucher appeal filing period

Deadline30 days

TriggerDate of the notice of denial or termination

Who may appealA parent, custodian, or legal guardian of a child seeking autism voucher services

Computation of time

Triggering dayExclude the day of the act, event, or determination

Last dayInclude it unless it is a Saturday, Sunday, or legal holiday

Short periodsExclude intermediate Saturdays, Sundays, and legal holidays when the period is less than seven days

Short-period time computation

Applicable periodA prescribed period of less than seven days

Excluded daysIntermediate Saturdays are excluded

Additional exclusionsIntermediate Sundays and legal holidays are excluded

Advance notice for certain actions

Minimum noticeAt least five days before the date of action

Applies toCertain actions, including benefit adjustments based on verified suspected fraud outside SNAP cases

Notice formThe notice must be adequate and explain the proposed action, reason, legal basis, and hearing rights

Advance notice for other actions

Minimum noticeAt least ten days before the date of action

Applies toAny other action not subject to the five-day rule or an exception

Required contentThe notice must explain the proposed action, reason, legal basis, corrective-action rights, and fair-hearing rights

Fair-hearing request after untimely notice

Request deadlineWithin ten days after mailing of the notice of action

TriggerAssistance was discontinued, suspended, withheld, or reduced without timely notice

ResultAssistance must be reinstated retroactively and assistance-pending-hearing provisions apply

Standard facility transfer or discharge notice

Standard noticeAt least 30 days before the intended transfer or discharge

Start of periodThe first day is the day after notice is issued

Issuance dateThe date notice is delivered or mailed to the resident

Facility transfer or discharge appeal deadline

Appeal deadlineAppeal within 30 days after issuance of a compliant notice

Post-action limitationNo appeal right remains after transfer or discharge if the resident did not appeal within that period

Scope limitationNo appeal right exists for movement between beds in the same certified facility

Intentional program violation postponement request

Request deadlineAt least ten days before the scheduled hearing

Request typeA postponement request for an intentional program violation hearing

Notice requirementThe hearing notice must explain the postponement procedure

Good-cause request after failure to appear

Good-cause deadlineWithin ten days after the scheduled hearing

PurposeShow good cause for failure to appear

Possible resultA new hearing may be provided when good cause is established

Record-open period without written waiver

Without waiverThe record may remain open no more than three additional days

Waiver effectA written waiver may permit additional time under the applicable decision deadline

Expedited hearingNo additional time is allowed unless the expedited-hearing request is withdrawn in writing

Facility appeal filing deadline

Receipt deadlineBy 5 p.m. on or before the 60th day from the notice of the appealable action

RecipientThe appeals supervisor’s office

Required contentsEach disputed deficiency, factual basis, relied-upon authority, and notice recipient’s contact information

ICF/IID evidentiary hearing completion

Completion deadlineWithin 120 days after the effective date of the action

Applies toAn intermediate care facility for individuals with intellectual disabilities requesting an evidentiary hearing

Triggering actionA Medicaid noncompliance finding resulting in the specified provider-agreement action

SNAP appeal record availability

Availability periodThree years after the date of the department decision

Applies toSupplemental Nutrition Assistance Program cases

Record contentsTestimony, exhibits, filings, the recommended decision, and the department decision

Other appeal record availability

Availability period90 days after the date of the department decision

Applies toAll non-SNAP cases

Record contentsThe exclusive record includes testimony, exhibits, filings, the recommended decision, and the department decision

Transcript request deadline

Request deadlineWithin 90 days after the date of the department decision

Available itemA transcribed copy of recorded testimony

CostThe transcript is available upon payment of a reasonable transcription fee

Rehearing or reconsideration request

Filing deadlineWithin 15 days after the executive director’s decision

Filing locationThe office of the appeals supervisor

Authorized groundsNew evidence indicating an unjust or invalid determination, or an allegation of incorrect statutory or case-law interpretation

Notice mailing methods

Certified mailCertified mail with return receipt requested or certified mail without return receipt

Other methodRegular mail is also permitted

Affidavit requirementAn affidavit of mailing is required for certified mail without return receipt or regular mail

An appeal need not use a particular form, but the claimant should identify the program and explain the dissatisfaction.
An employee receiving a qualifying oral request must promptly reduce it to writing and file it.
The issuing human service zone, department division, or nursing facility must assist the claimant with filing.

Documentation Required

Ratesetting Appeal Documentation

A ratesetting appeal is perfected only when the appeal includes the required written documentation for every disputed item.

The department reconsideration decision letter.
Each disputed item and the reason or basis for disputing it.
The facility's or developmental disability provider's computation and claimed dollar amount for each disputed item.
The statutory or regulatory authority relied upon for each disputed item.
The name, address, and telephone number of the person to receive all appeal notices.

Documentation Required

Licensing Appeal Documentation

A licensing appeal is perfected only when the appeal includes the required written documentation for the licensing determination.

The department reconsideration decision letter.
A statement of disputed facts, if any.
The statutory or regulatory authority relied upon for each disputed item.
The name, address, and telephone number of the person to receive all appeal notices.

Note

Assistance With Fair-Hearing Filing

The human service zone, department division, or nursing facility that issued a decision for which a claimant requests a fair hearing must assist the claimant in filing the appeal.

Accept clear qualifying requests made by an authorized representative.
For SNAP, Medicaid, and Medicaid-eligibility matters, accept telephone, internet, mail, in-person, and other commonly available electronic requests.
Explain that identifying the program and reason for dissatisfaction will support prompt action.

Documentation Required

Intentional Program Violation Hearing Request

A human service zone requesting an intentional program violation hearing must file a written request with the appeals supervisor containing the charged individual's or household members' identifying information, detailed charges, and all available evidence.

Include name, mailing address, and telephone number, if any.
Provide a detailed statement of the charges.
Attach copies of all available evidence.

Note

Provide Written Fair-Hearing Rights Information

At the required application, adverse-action, transfer-or-discharge, and preadmission-screening points, provide written information explaining the individual's fair-hearing rights.

Explain the right to a fair hearing.
Explain how to obtain a hearing.
Explain the right to self-representation or representation by counsel, a relative, friend, or other spokesperson.

Prior Authorization

Issue Timely and Adequate Adverse-Action Notices

Issue timely and adequate written adverse-action notices. An adequate notice explains the proposed action, its reason and legal authority, the right to request corrective action or a fair hearing, and when assistance will continue pending the hearing.

Generally mail notice at least 10 days before action; a five-day period applies to the specified verified-fraud adjustment circumstance.
Send adequate written notice for denials and timely, adequate written notice for discontinuance, termination, suspension, withholding, or reduction of covered assistance and benefits.
A same-day notice is permitted only in the listed exceptions, including death, signed withdrawal, institutionalization, certain nursing-facility placement, unknown whereabouts, jurisdictional changes, physician-prescribed level-of-care changes, mass changes, specified SNAP circumstances, and other enumerated conditions.
If assistance was changed without timely notice and a fair hearing is requested within 10 days after mailing the action notice, reinstate assistance retroactively.

Billing Rule

Continue or Reinstate Assistance Pending Hearing

Continue assistance without implementing the proposed action when a recipient files a fair-hearing request within the timely notice period, until the decision is rendered, subject to the listed exceptions.

Exceptions include unconditional withdrawal or abandonment, departmental reversal, a purely legal issue, a later unchallenged change affecting benefits, or expiration of a SNAP certification period.
Continued assistance may be recovered if the claimant does not prevail.
If assistance was not timely noticed, reinstate it retroactively when the request is made within 10 days of the action notice.

Note

Offer a Pre-Hearing Conference

When a person requests a conference during the timely notice period, provide an opportunity to discuss the proposed action, explain its reasons, and present why it is incorrect. The person may appear alone or with counsel, a friend, or another spokesperson; the conference does not eliminate the fair-hearing right.

Document the conference and any information presented.
Do not treat participation in the conference as a waiver of a fair hearing.

Documentation Required

Provide Facility Transfer or Discharge Notice

For an involuntary facility transfer or discharge, issue written notice at least 30 days before the intended action, unless an enumerated exception permits notice as soon as practicable.

Include the proposed action, reason, effective date, destination, authorizing subsection or legal change, appeal method and mailing address, ombudsman contact information, and protection-and-advocacy contact information when applicable.
Explain Medicaid payment continuation, the effect of filing an appeal, and the resident's representation rights.
The 30-day period begins the day after notice is issued.

Denial Risk

Apply Permitted Facility Transfer or Discharge Grounds

Transfer or discharge a resident only on a permitted ground and document the basis. Permitted grounds include urgent unmet medical need, danger to health or safety, specified serious behavioral threat after reasonable alternatives are attempted and documented, improved health, completion or inability to benefit from specialized services, inability to reasonably accommodate needs, official health-or-safety determination, license or program termination, cessation of operations, or qualifying nonpayment.

A facility need not issue the standard notice when the resident signs a clear nonobjection or supplies information requiring the action with understanding of its consequence.
For immediate action, issue notice as soon as practicable when safety is endangered, urgent medical needs require transfer, health has improved, or the resident has lived in the facility fewer than 30 days.
Nonpayment does not include private-room charges, excess bed-hold periods, special services outside the daily rate, or Medicare Part B coinsurance and deductibles.

Note

Supplemental Nutrition Assistance Notice Procedures

For SNAP actions, follow the special notice rules in addition to the general adverse-action requirements, including the enumerated same-day exceptions and the 10-day notice requirement when an individual moves to long-term care, basic care, or an institution within the human service zone.

A SNAP intentional-program-violation notice must include or offer, upon request, the department's published hearing procedures.
Include the applicable information about waiver, penalties, repayment responsibility, and remaining household members in SNAP intentional-program-violation notices.

Documentation Required

Human Service Zone or Program Prehearing Responsibilities

Upon receiving a fair-hearing request concerning assistance or benefits, the human service zone or program must promptly determine timeliness, transmit pertinent information within five days, and prepare the complete case for hearing.

Review statutes, regulations, rules, policies, and evidence; seek department clarification without delay.
Organize and copy evidence and authorities, arrange witnesses, and report communication, access, address, or circumstance changes.
Bring an authorized representative able to make factual stipulations.

Documentation Required

Nursing Facility Prehearing Responsibilities

Before a transfer-or-discharge hearing, the nursing facility must provide pertinent information to the appeals supervisor no later than the fifth day after receiving the request and prepare its complete case.

Review applicable authorities and evidence, organize the presentation, and prepare copies.
Arrange witnesses and report communication, access, or circumstance problems and changed circumstances.
Provide a facility representative with authority to make binding agreements and stipulations.

Documentation Required

Preadmission Screening and Resident Review Responsibilities

For a preadmission-screening or resident-review appeal, the department division that made the adverse determination must provide pertinent information within five days and prepare the evidence and witnesses for hearing.

Review applicable authorities and evidence and prepare copies for presentation.
Arrange witnesses and report claimant communication, hearing-site access, or circumstance changes.
Provide a division representative authorized to make factual stipulations.

Documentation Required

Department Appeal-Hearing Responsibilities

For an appeal that is not a fair-hearing request, the department division that made the adverse determination must provide all pertinent information to the appeals supervisor within five days after receiving the appeal notice and prepare the appeal hearing record.

Review applicable authorities and evidence, organize and copy the presentation, and arrange witnesses.
Report relevant changed circumstances.
Provide a division representative with authority to make factual stipulations.

Billing Rule

Post-Decision Compliance

Immediately upon receiving notice of a department decision, the human service zone must comply with that decision.

Implement the decision without delay.
Coordinate any required benefit, eligibility, or case action with the applicable program.

Note

Appeal Acknowledgment

Acknowledge every appeal in writing to the claimant and to the human service zone, nursing facility, or department division whose determination is under appeal.

For a claimant entitled to a fair hearing, provide the list of available free legal-service organizations that authorized inclusion of their contact information.

Unsupported block type: info

Note

Hearing Administration

Administer hearings impartially, with required parties and representatives present, sworn testimony, and a reproducible record. Hearings and witness testimony may use telephone or other acceptable electronic means subject to the stated notice, identification, connection, and personal-appearance rules.

Limit attendance to directly concerned persons, representatives, interpreters, witnesses, agency or facility representatives, and the hearing officer, absent agreement or a non-disruptive basis for additional attendance.
The hearing officer may waive the North Dakota Rules of Evidence unless all parties or representatives are familiar with them.
Provide a state interpreter when the hearing officer determines one is necessary.

Note

Intentional Program Violation Hearing Procedure

For an intentional-program-violation hearing, the department or human service zone bears the burden of proving the violation by clear and convincing evidence, and the hearing officer must advise the accused of the right to remain silent.

If the accused or representative fails to appear without good cause, conduct the hearing as scheduled; allow 10 days to show good cause and provide a new hearing when good cause is established.
Conduct the hearing, reach the decision, and notify the parties within 90 days after written scheduling notice.
The recommended decision must state reasons, supporting evidence, pertinent regulations, and responses to reasoned arguments.
There is no further administrative appeal from the intentional-program-violation hearing.

Documentation Required

Additional Issues and Evidence

Limit hearing issues to those described in the decision notice unless the person seeking review timely discloses additional issues and satisfies the consent and continuance requirements.

At least 10 days before the hearing, provide a written statement of additional issues, supporting documents or exhibit descriptions, and witness-testimony synopses.
Consent to a continuance and waive any applicable decision deadline; continued-benefit recipients also need department consent, and transfer-or-discharge appellants need facility consent, unless the required department or facility consent is otherwise secured.
If necessary evidence becomes available after the hearing begins, the hearing officer may continue the hearing or hold the record open.
Additional documentary evidence or written argument generally requires a written waiver of the applicable decision deadline; without a waiver, the record may remain open no more than three additional days, and expedited hearings require withdrawal of the expedited request.

Note

Process Hearings for Claimants Living Outside North Dakota

A fair-hearing request from an eligible claimant living outside North Dakota must be acknowledged and reported like other requests. Unless the claimant returns to North Dakota or has an authorized representative there, conduct the hearing by telephone or another acceptable electronic means.

Apply the procedure to Medicaid, CHIP, economic assistance, intellectual-disability/developmental-disability program-management, and Medicaid-eligibility benefits.

Documentation Required

Continue Hearing for Additional Evidence

If additional evidence unavailable at the hearing is necessary for a proper determination, the hearing officer may continue the hearing and order further investigation or production of the evidence.

For additional documents or written argument, close the hearing and hold the record open for a stated period only with the required written waiver of the applicable decision deadline.
Without a waiver, hold the record open no more than three additional days.
Do not grant additional time in an expedited hearing unless the request includes a written withdrawal of expedited treatment.

Documentation Required

Manage Additional Evidence and Written Arguments

Manage additional evidence and written arguments within the applicable deadlines and protect the claimant's rights to a timely decision.

Require advance disclosure of new issues, documents, exhibits, and witness testimony as specified.
Document continuances, deadline waivers, and required department or facility consent.
Ensure any continued record is limited to the period authorized by the applicable rule.

Denial Risk

Dismissal Limits and Appeal Abandonment

Do not dismiss an appeal without a hearing unless the claimant withdraws or abandons it or the department reverses the appealed decision without a hearing.

Withdrawal occurs when the claimant tells the hearing officer the claimant no longer wants a hearing.
Abandonment occurs when the claimant or authorized representative fails to appear without good cause or cannot be located through the record address or representative.
Document the basis for any dismissal.

Billing Rule

Limit Benefit Awards for Official Error or Delay

An error or delay by a public official cannot support an award of benefits to an applicant or recipient who would not have been eligible absent that error or delay.

Apply the eligibility requirement independently of any official error or delay.

Denial Risk

Facility Appeal Eligibility and Exclusions

A nursing facility or intermediate care facility for individuals with intellectual disabilities may appeal specified noncompliance actions and is generally entitled to a full evidentiary hearing, but certain matters are excluded from appeal.

Excluded matters include the choice of sanction or remedy, state monitoring remedy, loss of nurse-aide-training-program approval, and the level of noncompliance except when a favorable decision could affect a civil-money penalty.
A facility may appear before an impartial hearing officer, use counsel or another representative, call witnesses, and submit documentary evidence.
For civil-money-penalty appeals, apply the clearly-erroneous standard and the specified limits on penalty reduction and mitigating factors.

Note

Facility Evidentiary Hearing Rights

Provide the appealing facility a full evidentiary hearing to refute the finding of noncompliance underlying an appealable action, subject to the exclusions and penalty-review limits.

Permit representation by counsel or another representative.
Permit the facility to testify directly or through its representative, call witnesses, and submit documentary evidence.

Documentation Required

Perfect a Facility Appeal

A facility perfects an eligible appeal by mailing or delivering the required information to the appeals supervisor so it arrives by 5 p.m. on the 60th day after notice of the appealable action.

State each disputed deficiency and the factual basis for disputing it.
Identify the statutory or regulatory authority relied upon for each disputed item.
Provide the name, address, and telephone number for service of appeal notices.

Denial Risk

Enforcement Remains Effective During Facility Appeal

An appeal of a deficiency does not suspend or delay enforcement except as expressly provided by the applicable rule and chapter 75-02-05.2.

A hearing request concerning denial or termination of a nursing-facility provider agreement does not delay that action.
The hearing decision need not be issued before the effective date of denial or termination.

Documentation Required

Prepare and Issue Hearing Decisions

After the hearing closes, the hearing officer must issue a recommended decision for appeals-supervisor review and submission to the executive director or designee; the department decision must then be made in writing by the executive director or designee.

The recommended decision must state the facts, applicable statutes, regulations, rules, or policies, and supporting reasoning.
The executive director or designee may adopt the recommendation, decide on the record, or order another hearing.
The written department decision must state the facts, governing authorities, and reasoning.

Note

Provide Notice of Decision

After the executive director or designee renders a decision, the appeals supervisor must mail a copy to the claimant and to the entity whose determination was appealed, together with the right to request rehearing or reconsideration unless the decision already concerns rehearing or reconsideration.

Notice may be sent by certified mail, certified mail with return receipt, or regular mail.
If certified mail without return receipt or regular mail is used, prepare an affidavit of mailing identifying the recipient.

Documentation Required

Preserve the Appeal Record

Preserve the exclusive appeal record, including the verbatim or official hearing record, exhibits, filings, requests, recommended decision, and department decision.

Make the record available to parties for three years after the department decision in SNAP cases and 90 days in all other cases.
Provide a requested transcript within 90 days after the department decision upon payment of a reasonable transcription fee.

Note

Request Rehearing or Reconsideration

A rehearing or reconsideration request must be filed with the appeals supervisor within 15 days after the executive director's decision and must rely on new evidence showing an unjust or invalid determination or an incorrect interpretation of statutory or case law.

For additional evidence, describe it, explain why it was not previously submitted, and explain its materiality.
The executive director may grant rehearing or reconsideration, order additional evidence or a new hearing, or reconsider the record; the grant is discretionary.
A decision on rehearing or reconsideration is not subject to further hearing, and notice follows the decision-notice procedure.

Documentation Required

Submit Filings to Appeals Supervisor

Submit appeal filings and required supporting materials to the appeals supervisor at the designated office address, observing the applicable receipt deadlines.

Appeals Supervisor, North Dakota Department of Human Services, State Capitol—Judicial Wing, 600 East Boulevard Avenue—Department 325, Bismarck, North Dakota 58505-0250.
Facility appeals must arrive by 5 p.m. on the 60th day after notice of the appealable action.
Include all matter-specific documentation and identify the person authorized to receive notices.

Financial liabilityDenial of a request to dispute financial liability, including cost sharing, copayments, premiums, deductibles, or coinsurance

Appeal

MeaningA specific request for departmental review

Who may make itA dissatisfied applicant, recipient, provider, resident, registrant, or licensee

SubjectA decision made by a human service zone, department division, or nursing facility

Appeal hearing

TypeAn administrative procedure

Review basisThe department reviews the decision using evidence and argument

ParticipantsThe claimant, the deciding entity, or authorized representatives may present evidence and argument

Authorized representative

MeaningAn individual authorized by the claimant or legally authorized to represent the claimant

Included professionalAn attorney at law may serve as an authorized representative

AuthorityThe representative may act for the claimant in any and all aspects of a hearing

Filing date

General ruleThe postmark date for a mailed appeal

Other filing methodsThe delivery, telephone, internet, electronic transmission, or permitted oral appeal date

SNAP and MedicaidThe date the request is received by the department or human service zone

Request for fair hearing

MeaningA specialized appeal expressing that the claimant wants the department to conduct a fair hearing

Permitted expressionA clear written expression, or for SNAP and Medicaid matters a clear expression by telephone, website, mail, in person, or commonly available electronic means

Where filedWith the human service zone or in the office of the appeals supervisor

Intentional program violation

Covered programsSupplemental Nutrition Assistance Program, Temporary Assistance for Needy Families, and the child care assistance program

Prohibited conductActs or false statements intended to mislead, misrepresent, conceal, or withhold facts

Other violationsConduct violating applicable program requirements or laws, including misuse of program benefits or payment cards

Discharge

MeaningMovement from a facility to a noninstitutional setting

ResponsibilityThe discharging facility ceases to be legally responsible for the resident’s care

Notice contextAn involuntary discharge is subject to the facility notice and appeal provisions

Resident

MeaningA person admitted to a facility

Included personThe person’s legal representative is included

Relevant rightsA resident may receive notice and appeal an intended qualifying transfer or discharge

Transfer

MeaningMovement from a facility to another institutional setting

Responsibility changeLegal responsibility changes from the transferring facility to the receiving institutional setting

Notice contextAn involuntary transfer is subject to written notice and applicable appeal provisions

Adverse determination

MeaningA determination under 42 U.S.C. 1396r(b)(3)(F) or 42 U.S.C. 1396r(e)(7)(B) and section 75-02-02-09

Service-level findingThe individual does not require the level of services provided by a nursing facility

Specialized servicesThe determination may find that the individual does or does not require specialized services

Significant change

Physical improvementA significant physical-status improvement making a resident more likely to respond to special treatment or appropriate for a less restrictive setting

New conditionMental illness, mental retardation, or a related condition not identified before admission that later emerges or is discovered

Behavioral changeIncreased symptoms of mental illness or behavioral problems, or a circumstance requiring an updated psychiatric-treatment determination

Withdrawal

MeaningThe claimant no longer wishes to have a hearing

How establishedThe hearing officer is notified by the claimant

EffectAn appeal may be dismissed without a hearing when the claimant withdraws it

Abandonment

Failure to appearThe claimant or authorized representative fails to appear without good cause

Unable to locateThe claimant cannot be located through the last address of record or authorized representative

EffectThe inability to locate the claimant prevents scheduling a hearing

Culpability

MeaningNeglect, indifference, or disregard for resident care, comfort, or safety

ApplicationUsed in reviewing the amount of a civil money penalty

MitigationAbsence of culpability is not a mitigating circumstance for reducing the penalty

Facility appeal

Nursing facility scopeApplies to a nursing facility dissatisfied with a noncompliance finding resulting in enforcement under chapter 75-02-05.2

ICF/IID scopeApplies to an ICF/IID dissatisfied with a Medicaid noncompliance finding resulting in provider-agreement denial, termination, or nonrenewal under chapter 75-02-05

Hearing typeA qualifying facility is entitled to a full evidentiary hearing, subject to listed exclusions