Chapter 5101:6-7 Hearing Decisions

5101:6-7-01 State hearings: state hearing decisions.

(A) Hearing authority

(1) The bureau of state hearings is responsible for preparing and issuing state hearing decisions under the authority of the director of the Ohio department of job and family services (ODJFS). For this purpose, the chief of the bureau of state hearings shall designate hearing authorities in addition to the chief to review the findings, conclusions, and recommendations of the hearing officers and to issue decisions under the authority of the ODJFS director.

(2) No person designated as hearing authority shall have previously participated in the agency decision being appealed, nor shall the hearing authority and the hearing officer who conducted the hearing be the same person.

(B) Timely issuance

(1) Hearing decisions involving public assistance, social services, and child support services shall be issued within seventy calendar days from the date of the hearing request. No extension of the seventy-day requirement is permitted because the individual requests a delay in the scheduling of the hearing.

(2) Hearing decisions involving the prevention, retention and contingency (PRC) program shall be issued within thirty calendar days from the date of the hearing request.

(3) Hearing decisions involving food assistance shall be issued within sixty calendar days from the date of the hearing request, with the following exceptions:

(a) When the hearing has been postponed, as described in rule 5101:6-5-02 of the Administrative Code, the sixty day time limit shall be extended by as many days as the hearing was postponed.

(b) Hearing decisions involving a denial of expedited food assistance shall be issued within thirty calendar days from the date of the hearing request.

(c) When the hearing has been requested in response to the simultaneous proposal of public assistance and food assistance adverse actions, the hearing decision shall be issued according to public assistance timeliness standards.

(4) Hearing decisions involving the medicaid program shall be issued within seventy calendar days from the date of the hearing request. This period shall be reduced to three working days in the following instance:

(a) The hearing request is from an enrollee of a medicaid managed care plan; and

(b) The enrollee, or the enrollee's authorized representative, claims that the request requires an expedited resolution because taking the time for a standard resolution could seriously jeopardize the enrollee's life or health or ability to attain, maintain, or regain maximum function; and

(c) The bureau of state hearings agrees that an expedited resolution is required.

(C) Basis

(1) The hearing officer's findings of fact shall be based exclusively on the evidence introduced at the hearing, or after the hearing and subject to examination and rebuttal by both parties as described in rule 5101:6-6-02 of the Administrative Code.

(a) The hearing officer may be guided, but shall not be bound, by the Ohio Rules of Evidence ( as in effect on 2/28/2014) in conducting hearings and in making findings of fact. The hearing officer shall consider all relevant evidence offered at the hearing.

(b) Hearsay evidence may be considered by the hearing officer in arriving at the findings of fact. However, such evidence must be critically evaluated, since it is not given under oath and cannot be cross-examined to test the perception, memory, and veracity of the declarant.

Direct evidence shall normally be given more weight than hearsay evidence when the two are in conflict.

(c) It shall be the responsibility of the agency to show, by a preponderance of the evidence, that its action or inaction was in accordance with rules of the Administrative Code.

(d) The hearing officer's findings of fact shall be binding upon the hearing authority. However, the hearing authority may return the case to the hearing officer if it is determined that additional facts not already established by the hearing officer are essential to a correct decision or if the evidence relied upon was taken in violation of rule 5101:6-6-02 of the Administrative Code.

(2) The hearing officer's conclusions of policy and recommendations shall be based solely on rules of the Administrative Code, or local agency policy adopted pursuant to options authorized in state law, except when these regulations and policies are silent and reference to the Revised Code or other statutory source is necessary to resolve the issue.

(a) When a hearing is regarding the prevention, retention and contingency (PRC) program, the hearing officer's conclusions of policy and recommendations shall be based on the PRC statement of policies if it was submitted at the hearing and if the submitted plan was effective as of the date of the action being appealed.

(b) The hearing authority shall review conclusions and recommendations by the hearing officer, and adopt them when they constitute a correct application of the appropriate regulations.

(c) The hearing authority shall amend conclusions and recommendations that do not correctly apply the appropriate regulations, clearly explaining the reason and basis for any such amendment.

(3) The hearing decision shall address the issues raised in the request or otherwise included upon agreement of all parties, subject to the conditions of rule 5101:6-3-01 of the Administrative Code.

If it is discovered at the hearing that the request or issue meets one of the denial criteria in rule 5101:6-5-03 of the Administrative Code, the decision shall overrule the appeal on that basis.

(4) When a hearing request involves multiple issues, and when the appellant withdraws, in writing, notice of dismissal of the withdrawn appeals, as required by rule 5101:6-5-03 of the Administrative Code, may be included in the hearing decision.

(a) If the appellant withdraws some, but not all of the appeals, because there is no longer need for review by a higher authority on those appeals, the withdrawal is to be included in the decision, requiring no additional action on those appeals.

(b) If during the course of the hearing, the appellant withdraws some or all of the issues under appeal, contingent upon some corrective action agreed to by the agency, the hearing officer shall issue a state hearing decision, indicating that agreement and requiring the agency to comply with the action as agreed to during the hearing. This decision shall be issued via the JFS 04005 "State Hearing Decision" (rev. 3/2003).

(D) Content

The hearing decision shall separately set forth the issue or issues to be decided, the hearing officer's findings of fact, conclusions of policy and recommendations, and the decision and order.

(1) The issue section shall fully describe the action or lack of action being appealed.

It shall include the date and specific nature of the action, including benefit amounts where appropriate, as well as the specific eligibility factor on which the action was based and shall include a summary of the hearing officer's recommendations for resolution of the issue. When multiple issues are involved, they shall be set forth separately and numbered for reference in the remainder of the decision.

(2) The procedural matters shall first address such preliminary matters as delays due to postponement, resolution of disputes as to standing, and amendments or additions to the issue or issues as stated on the agency's written notice or in the hearing request, the dates the appeal summary was received by the bureau of state hearings and the appellant, continuation of benefits (if applicable), and status of subpoena request (if applicable).

(3) The findings of fact shall follow procedural matters. The findings of fact shall be clear and orderly chronological discussion of the facts and events relevant to the issue.

(4) The conclusions of policy shall cite and summarize relevant portions of rules of the Administrative Code and other applicable regulations as necessary, and shall clearly demonstrate how they apply to the facts established. The decision shall clearly indicate the basis for each such finding, to include discussion of the relative weight given to conflicting evidence in arriving at the decision as to where the preponderance of evidence lies.

Food assistance decisions shall also cite applicable federal regulations.

Budget computations, where relevant, shall be clearly set forth.

(5) The hearing officer's recommendations shall separately indicate the outcome of the appeal on each issue addressed, sustaining those in which the agency is found to have acted incorrectly, overruling those in which the agency's action was correct, and, if the provisions of paragraph (C)(4) of this rule apply, dismissing those that have been withdrawn in writing. Clear instructions to the parties shall be given when additional action is necessary to resolve the matter at issue.

Compliance shall be required, via the JFS 04068 "State Hearing Compliance" (rev. 5/2001), as necessary to assure that the individual promptly receives all benefits ordered by a favorable decision.

(6) The decision and order, signed by the hearing authority, shall indicate adoption or amendment of the hearing officer's recommendations, whether each issue is sustained or overruled, and whether compliance is required.

(E) Notification

(1) The individual and authorized representative shall be provided with the written state hearing decision via the JFS 04005. The decision shall provide notice of the right to and the method of obtaining an administrative appeal. A copy of the decision shall also be sent to the local agency electronically, as an e-mail attachment.

(2) When the hearing involves one of the medical determination issues listed in paragraph (C)(1) of rule 5101:6-6-01 of the Administrative Code, a copy of the decision shall also be sent to the medical determination unit.

(3) When the hearing involves action or lack of action by a managed care plan, copies of the decision shall also be sent to the managed care plan and to the unit within ODJFS administering the medicaid managed care program.

(F) Hearing record

The state hearing decision, together with documents introduced at the hearing and all papers and requests filed in the proceeding, shall constitute the exclusive record. The hearing record shall be maintained by the bureau of state hearings in accordance with applicable record retention requirements. It will be made available for review by the individual and authorized representative upon request. The local agency shall be provided a copy upon request as well.

(G) Library of decisions

The chief of the bureau of state hearings shall maintain a library of all state hearing decisions. The decisions shall be available for public inspection and copying, subject to applicable disclosure safeguards.

(H) Binding effect

State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.

Effective: 02/28/2014
R.C. 119.032 review dates: 11/18/2013 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 3125.25 , 5101.35
Rule Amplifies: 3125.25 , 5101.35 , 5160.011
Prior Effective Dates: 7/1/76, 7/1/79, 6/1/80, 6/2/80, 9/19/80, 10/1/81, 5/1/82, 5/2/82, 10/1/82, 7/1/83, 11/1/83 (Temp), 1/1/84, 10/1/84 (Emer), 11/15/84 (Emer), 12/22/84, 2/1/85 (Emer), 2/4/85, 5/2/85, 7/30/85, 4/1/87, 10/14/88 (Emer), 12/22/88, 4/1/89, 11/1/89 (Emer), 1/29/90, 10/1/91, 6/1/93, 6/1/97, 10/1/97 (Emer), 12/30/97, 5/15/99, 4/1/00, 6/1/03, 9/29/06 (Emer), 12/18/06, 9/1/08, 8/1/10

5101:6-7-02 State hearings: standards for revising community spouse income and resource allowances at a state hearing.

(A) Purpose

This rule sets forth the standards to be applied in a state hearing requested for the purpose of revising a community spouse's minimum monthly maintenance needs allowance in accordance with rule 5160:1-3-24 of the Administrative Code, or the community spouse resource allowance in accordance with rule 5160:1-3- 36.1 of the Administrative Code. In so doing, this rule incorporates by reference the definitions set forth in those rules and the standards for evaluating income and resources. An appellant may request a single hearing for revising both the minimum monthly maintenance needs allowance and the community spouse resource allowance, which the hearing officer may continue to successive dates as necessary to determine both issues.

(B) Minimum monthly maintenance needs allowance

(1) If either the community spouse or the institutionalized spouse establishes at a state hearing that the community spouse needs additional income above the level otherwise provided by the existing minimum monthly maintenance needs allowance, the hearing decision shall substitute the allowance with an amount adequate to provide such additional income to the community spouse as is necessary, notwithstanding the minimum monthly maintenance needs allowance cap set forth in rule 5160:1-3-24 of the Administrative Code.

(2) The standard for granting such a revision in the minimum monthly maintenance needs allowance is that the community spouse's need for additional income is due to exceptional circumstances that have resulted in significant financial duress. Exceptional circumstances are those that are more rare than occur in everyday life, such as acts of God or accidents and illnesses that result in personal harm or property damage. Significant financial duress is the result of an exceptional circumstance only when the community spouse is faced with a financial obligation that exceeds the spouse's ability to also pay reasonable living expenses from income or resources that exceed the community spouse resource allowance.

(3) A substituted minimum monthly maintenance needs allowance may not exceed the institutionalized spouse's income minus personal needs allowance. It must be tailored to the circumstance of significant financial duress and may be time-limited as appropriate to the circumstance.

(C) Community spouse resource allowance

(1) An existing community spouse resource allowance may not be revised in a hearing decision if the income of the institutionalized spouse, minus the personal needs allowance, is adequate to raise the income of the community spouse to the minimum monthly maintenance needs allowance. The minimum monthly maintenance needs allowance standard periodically increases, which may create a need for additional income to be diverted from the institutionalized spouse to the community spouse. An additional allocation of resources shall not be made to the community spouse when the minimum monthly maintenance needs allowance standard increases unless the institutionalized spouse's income, minus personal needs allowance, is inadequate to raise the income of the community spouse to the minimum monthly maintenance needs allowance.

(2) If either the community spouse or the institutionalized spouse establishes at a state hearing that the existing community spouse resource allowance, in relation to the amount of income generated for the community spouse by the allowance, is inadequate to raise the community spouse's income to the minimum monthly maintenance needs allowance in effect at the time of the hearing, the hearing decision shall substitute for the allowance an amount adequate to provide such a minimum monthly maintenance needs allowance.

(3) Procedure for determining a substituted community spouse resource allowance

(a) The substitute community spouse resource allowance needed to meet the deficit between the minimum monthly maintenance needs allowance and income available to the community spouse shall be based on the cost of a single premium lifetime immediate monthly payment annuity (SPLIMPA) with monthly payments equal to the deficit, excluding income currently generated by both spouse's countable resources. Either spouse must produce at the hearing three written SPLIMPA cost estimates from three different commercial sources that are each designed to produce monthly payments as closely equal to the deficit as is practicable. Upon request the local agency shall offer assistance obtaining the estimates. Estimates of an annuity that is a delayed payment annuity, a time-period certain, an annuity with a death benefit, or an annuity that guarantees return of the principle is not a SPLIMPA and cannot be used to determine the amount of additional resources needed.

(b) The amounts of the three estimates shall be averaged to determine the average cost of a SPLIMPA. The average of the three SPLIMPA estimates must show the cost of a SPLIMPA that generates income equal to the difference between the minimum monthly maintenance needs allowance, and the total income of the community spouse and institutionalized spouse less the personal needs allowance. If the averaged cost of the SPLIMPA is less than the current community spouse resource allowance, the allowance shall not be changed by the hearing decision. If the averaged cost of the SPLIMPA is more than the current community spouse resource allowance, the allowance shall be substituted with the averaged cost.

(c) Neither the community spouse nor the institutionalized spouse shall be required to purchase a SPLIMPA as a result of the application of this rule at a state hearing. However, if a substituted community spouse resource allowance has been granted through a state hearing that applied this rule, the income that was projected by the approved SPLIMPA average will be deemed to the community spouse whenever a determination or redetermination of the monthly income allowance is computed.

(D) An appeal requested in accordance with this rule for a revision in a monthly minimum maintenance needs allowance or community spouse resource allowance may be overruled if a community spouse or institutionalized spouse has not made a reasonable effort to qualify for any available source of income or resources that would make the revision unnecessary in whole or in part.

Effective: 02/28/2014
R.C. 119.032 review dates: 11/18/2013 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 5101.35
Rule Amplifies: 5101.35 , 5160.011 , 5163.02
Prior Effective Dates: 7/1/82, 12/1/85 (Emer), 2/23/86, 4/1/87, 12/29/89 (Emer), 2/22/90, 10/1/90, 6/1/93, 1/1/96, 3/1/97, 10/1/97, 5/15/99, 6/1/03

5101:6-7-03 State hearings: implementation of the hearing decision.

(A) Responsibility

(1) When the hearing decision orders action to be taken by the agency, the agency that is ordered to take the action is responsible for promptly and fully implementing the decision.

(2) State hearings is responsible for monitoring timely compliance with decisions.

(3) When the hearing decision orders action to be taken by a managed care plan, the managed care plan is responsible for promptly and fully implementing the decision.

The bureau of managed care, Ohio department of medicaid (ODM) , is responsible for timely compliance with decisions involving compliance by a managed care plan.

(B) Promptness

(1) Decisions that order action favorable to the individual

(a) For decisions involving public assistance, social services or child support services, compliance shall be achieved within fifteen calendar days from the date the decision is issued, but in no event later than ninety calendar days from the date of the hearing request.

(b) For decisions involving food assistance, any increase in benefits must be reflected in the food assistance allotment within ten calendar days of receipt of the decision, even if the local agency must provide a supplement, outside the normal issuance cycle.

The local agency may take longer than ten days if it elects to make the decision effective in the assistance group's normal issuance cycle, provided that issuance will occur within sixty calendar days of the date of the hearing request. If the local agency elects to follow this procedure, the benefit increase may be reflected in the normal issuance cycle or with a supplementary issuance.

(c) When the hearing has been requested in response to the simultaneous proposal of public assistance and food assistance adverse actions, compliance shall be achieved according to public assistance timeliness standards.

(d) Compliance shall be promptly reported to the bureau of state hearings, via a notice certifying the agency's compliance with the state hearing decision, and accompanied by appropriate documentation substantiating compliance is met.

When the hearing decision orders action to be taken by a managed care plan, the managed care plan shall also send a copy of the notice certifying the agency's compliance with the state hearing decision, to ODM, bureau of managed care.

(2) Decisions that authorize action adverse to the individual

(a) The agency shall implement the decision promptly, if still appropriate.

(b) When the adverse action results in a decrease in the assistance group's food assistance benefits, the decrease shall be reflected in the next issuance cycle following receipt of the hearing decision.

(C) Date compliance is achieved

(1) For decisions involving public assistance, social services or child support services, compliance shall be considered achieved on the date eligibility, payment, or services are authorized or other action ordered by the hearing decision is taken.

(2) For decisions involving food assistance, compliance shall be considered achieved on the date the action is reflected in the assistance group's food assistance allotment.

(D) Underpayments/underissuances

(1) When the decision determines that the individual has been improperly denied benefits or has received fewer benefits than were due, any underpayments must be corrected in accordance with rules 5101:1-23-60 , 5101:1-5-50 and /or 5101:4-8-03 of the Administrative Code.

(2) The local agency shall restore food assistance benefits to assistance groups that are leaving the county before the departure whenever possible. If benefits are not restored prior to departure, the local agency shall forward an authorization of the benefits to the assistance group or to the new county if this information is known.

The new county shall accept an authorization and issue the appropriate benefits whether the notice is presented by the assistance group or received directly from another county.

(E) Overpayments/overissuances

(1) Overpayments related to the appeal are subject to collection in accordance with rule 5101:1-23-70 of the Administrative Code.

(2) When the appeal involves food assistance, a claim against the assistance group for any overissuance related to the appeal must be prepared in accordance with rule 5101:4-8-15 of the Administrative Code.

(F) Prior authorization issues

(1) When a hearing decision reverses a denial of prior authorization for medical service and authorizes the service, the approval unit shall approve the prior authorization, using the normal prior authorization procedure. The approval notification sent to the provider shall be accompanied by a copy of the hearing decision.

(2) When a hearing decision reverses a denial of prior authorization for additional therapeutic leave days for a medicaid recipient with a developmental disabilities ( DD) level of care in a long-term care facility, the bureau of state hearings shall send a copy of the decision to the long-term care facility. The hearing decision constitutes authorization for the additional leave days.

(G) Precertification issues

When a hearing decision changes a review agency's decision on a request for precertification of a hospital admission or medical procedure, the bureau of state hearings shall send a copy of the decision and a notice certifying the agency's compliance with the state hearing decision to the review agency.

The review agency shall certify those hospital days or medical procedures authorized by the decision using the normal precertification procedure, complete the notice certifying the agency's compliance with the state hearing decision, and send it to state hearings.

(H) Coordinated services program (CSP) issues

When a hearing decision changes a decision by the recipient monitoring and review section concerning proposed or continued enrollment in the CSP or denial of a request for a change of designated provider , the bureau of state hearings shall send a copy of the decision to the recipient monitoring and review section. The recipient monitoring and review section shall take the actions ordered by the decision, complete the notice certifying the agency's compliance with the state hearing decision, and send it to state hearings.

(I) Preadmission screening resident review (PASRR) issues

When a hearing decision changes a preadmission screening (PAS) or resident review (RR) determination made by the Ohio department of mental health and addiction services or the Ohio department of developmental disabilities, the hearing decision shall constitute the revised PAS or RR determination.

Effective: 02/28/2014
R.C. 119.032 review dates: 11/18/2013 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 3125.25 , 5101.35
Rule Amplifies: 3125.25 , 5101.35 , 5160.011 , 5164.758 , 5167.13
Prior Effective Dates: 9/1/76, 10/1/79, 6/1/80, 6/2/80, 10/1/81, 5/1/82, 5/2/82, 10/1/82, 7/1/83, 8/1/83, 11/1/83 (Temp), 1/1/84, 3/1/84 (Temp), 6/1/84, 10/1/84 (Emer), 10/3/84 (Emer), 12/22/84, 2/1/85 (Emer), 5/2/85, 4/1/87, 4/1/89, 10/1/89, 11/1/89 (Emer), 1/29/90, 4/1/91, 10/1/91, 6/1/93, 6/1/97, 5/15/99, 6/1/03, 9/1/08, 7/1/11 (Emer), 1/1/12