Chapter 5101:6-7 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 to review the findings, conclusions, and recommendations of the hearing officers and to issue decisions under the authority of the director, ODJFS.

(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 stamps 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 stamps 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 stamp adverse actions, the hearing decision shall be issued according to public assistance timeliness standards.

(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 (7/1/2007) 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. 6/02), not via the JFS 04000 “State Hearing Dismissal Notice” (rev. 7/00).

(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 stamp 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. 5/01), 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 bureau of managed health care, ODJFS.

(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: 09/01/2008

R.C. 119.032 review dates: 05/30/2008 and 09/01/2013

Promulgated Under: 119.03

Statutory Authority: 3125.25, 5101.35

Rule Amplifies: 3125.25, 5101.35

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

(A) “Income” as used in this rule will be treated according to 42 U.S.C. 1396R-5 (b)(2) which is included in this rule as “appendix A”.

(B) Hearing involving the minimum monthly maintenance needs allowance (MMMNA).

(1) If either the institutionalized spouse (IS) or the community spouse (CS) can document that the CS needs income above the level otherwise provided by the minimum monthly maintenance needs allowance (MMMNA) due to exceptional circumstances that cause extreme financial duress, a hearing decision may substitute a higher MMMNA to provide additional income as necessary. The hearing decision may do so by utilizing the income of the IS, less the personal needs allowance and without regard to the family allowance.

(2) “Extreme financial duress” is defined as circumstances other than those taken into account in establishing maintenance standards for the community spouse. An example is incurment by the community spouse of expenses for medical, remedial, and other support services which contribute to the ability of the community spouse to maintain themselves in the community and in amounts that they could not be expected to pay from amounts already recognized for maintenance and/or amounts held in resources. The following are examples of exceptional circumstances which could indicate a need to increase the MMMNA. These examples are not all inclusive and are only meant to serve as circumstances in which extreme financial duress may exist.

(a) Significant medical expenses of the community spouse and/or applicable family member that require a financial obligation from the CS. Significant medical expenses are those that exceed normal and/or routine medical care costs such as office visits, prescriptions, and eyeglasses.

(b) Catastrophic events or other unexpected events which necessitate home repairs or maintenance that are the financial obligation of the CS. This list is not all-inclusive. The hearing decision must indicate the specific circumstances on a case-by-case basis when an increase in the MMMNA is ordered.

(3) The increase in the MMMNA can be time-limited. For example, a five hundred dollar medical expense could cause a one hundred dollar increase in the MMMNA for five months.

(C) Hearings involving the community spouse resource allowance (CSRA).

(1) If either the IS or the CS disagrees with the attribution of resources or believes that the income generated by the resources attributed to the CS in addition to the CS’s income is not enough to meet the MMMNA, a state hearing can be requested.

(2) If the hearing establishes that the CS’s income, and the income generated by the CS’s resource allowance, is inadequate to raise the CS’s income to the MMMNA, there shall be substituted a resource amount adequate, when combined with the CS’s income, to provide the MMMNA. The hearing decision must specify the amount of the additional transfer authorized and must increase the CS’s resource allowance by the same amount.

(3) The resources required by the CS that are necessary to increase the CS’s income in order to provide the MMMNA shall be based on the MMMNA in effect at the time of the filing of the request for a state hearing.

(4) The MMMNA periodically increases, creating a need for additional income to be diverted from the IS to the CS. An additional allocation of resources shall not be made to the CS when the MMMNA increases. If the MMMNA increases, the IS can allocate a portion of the IS’s income to the CS to raise the CS’s income to the MMMNA.

(5) To establish that the resource allowance is inadequate and to receive a substituted allowance, the applicant must provide verification of all of the income of the CS not including the amount generated by the resource allowance. The CS’s income must be established to determine the shortfall between existing income and the MMMNA. The eligibility determiner shall total all of the gross income of the CS not generated by the resources of both spouses and subtract the CS’s gross income from the MMMNA. The eligibility determiner shall also note any benefits for which the CS may be eligible, but is not receiving (e.g., social security, VA pension, etc.). The amount of benefits that the CS could be receiving shall be estimated and submitted to the hearing officer with the appeal summary. The income that the CS is eligible for, but not receiving, must be considered as available income when determining a reallocation of resources and an MIA.

(6) The amount of resources adequate to increase the CS’s gross income to provide the CS’s MMMNA shall be based on the cost of a single premium lifetime immediate monthly payment annuity (SPLIMPA) with monthly payments equal to the difference between the MMMNA and other countable income (including income available to the CS but not being received) not generated by either spouse’s countable resources.

(7) 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 to generate the difference between the CS’s gross income and the MMMNA.

(8) In order for the CS to receive the substituted allowance, the CS or IS shall be required to obtain three written estimates of the cost of a SPLIMPA. These amounts shall be averaged to determine the cost of a SPLIMPA.

(9) If the IS or CS is unable to obtain the three estimates of the cost of the annuity, the eligibility determiner shall offer assistance in accordance with rule 5101:1-2-212 of the Administrative Code.

(10) The averaged estimate representing the cost of a SPLIMPA shall be substituted for the amount of resources attributed to the CS when the amount of resources previously determined is less than the averaged cost of a SPLIMPA. If the amount of resources previously attributed for the CS is greater than the averaged cost of a SPLIMPA, there shall be no substitution for the cost of a SPLIMPA. The attribution shall remain as previously determined.

(11) Neither the CS nor the IS shall be required to purchase a SPLIMPA as a condition of medicaid eligibility. However, if there has been a reallocation of resources for a SPLIMPA, the income that could be received from the SPLIMPA will be used whenever a determination or redetermination of the MIA is computed.

(12) If the state hearing decision determines that a resource reallocation is not required

(i.e., the original allocation is adequate), the CS can still receive a monthly income allowance (MIA) from the IS. The income that is generated from the original resource allocation must be considered as available income when determining the MIA.

(13) If the state hearing decision determines that an additional transfer should be made, but there are not sufficient resources to transfer to generate the full amount of income necessary to meet the MMMNA, an MIA can also be determined. The determination of the MIA that can be given to the CS by the IS will include as available income, the amount of income that could be generated monthly by the reallocated resources. This amount is determined by obtaining three estimates of the monthly amount that could be generated by a SPLIMPA based on the reallocated resources. The average of the three estimates is the amount of monthly income that is determined to be available to the CS. An MIA can be given to the CS by the IS to provide the amount of the MMMNA that is not generated by the CS’s income and the amount that could be received by the reallocated resources SPLIMPA.

(14) If after a reallocation of resources has been determined, the IS still exceeds the resource limit, the medicaid application remains denied. If the IS reapplies for medicaid at a later date, the reallocated resources remain as the amount of the CS’s share. The SPLIMPA amount that was originally determined would still be considered countable income when determining the CS’s eligibility for an MIA. However, if the remaining resources at the time of the new application are less than the reallocated amount, the CS or IS can obtain three SPLIMPA estimates of the amount of monthly income that could be generated by the CS’s resource allowance. This amount will be considered available income when determining whether the CS is entitled to an MIA from the IS.

(15) The CS will continue to have the option to receive an MIA from the IS in lieu of a statehearing to determine if there should be a reallocation of resources.

Appendix A

Title 42. The Public Health and Welfare

Chapter 7-Social Security

Subchapter XIX-Grants to States for Medical Assistance Programs

1396r-5

(b) Rules for treatment of income

(1) Separate treatment of income

During any month in which an institutionalized spouse is in the institution, except as provided in paragraph (2), no income of the community spouse shall be deemed available to the institutionalized spouse.

(2) Attribution of income

In determining the income of an institutionalized spouse or community spouse for purposes of the post-eligibility income determination described in subsection (d) of this section, except as otherwise provided in this section and regardless of any State laws relating to community property or the division of marital property, the following rules apply:

(A) Non-trust property

Subject to subparagraphs (C) and (D), in the case of income not from a trust, unless the instrument providing the income otherwise specifically provides

(i) if payment of income is made solely in the name of the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse;

(ii) if payment of income is made in the names of the institutionalized spouse and the community spouse, one-half of the income shall be considered available to each of them; and

(iii) if payment of income is made in the names of the institutionalized spouse or the community spouse, or both, and to another person or persons, the income shall be considered available to each spouse in proportion to the spouse’s interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse).

(B) Trust property

In the case of a trust-

(i) except as provided in clause (ii), income shall be attributed in accordance with the provisions of this subchapter (including sections 1396a(a)(17) and 1396p(d) of this title), and

(ii) income shall be considered available to each spouse as provided in the trust, or, in the absence of a specific provision in the trust-

(I) if payment of income is made solely to the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse;

(II) if payment of income is made to both the institutionalized spouse and the community spouse, one-half of the income shall be considered available to each of them; and

(III) if payment of income is made to the institutionalized spouse or the community spouse, or both, and to another person or persons, the income shall be considered available to each spouse in proportion to the spouse’s interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse).

(C) Property with no instrument

In the case of income not from a trust in which there is no instrument establishing ownership, subject to subparagraph (D), one-half of the income shall be considered to be available to the institutionalized spouse and one-half to the community spouse.

(D) Rebutting ownership

The rules of subparagraphs (A) and (C) are superseded to the extent that an institutionalized spouse can establish, by a preponderance of the evidence, that the ownership interests in income are other than as provided under such subparagraphs.

HISTORY: Eff 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 (Emer.); 12-30-97; 5-15-99; 6-1-03

Rule promulgated under: RC 119.03

Rule authorized by: RC 5101.35

Rule amplifies: RC 5101.35

R.C. 119.032 review dates: 12/20/2002 and 06/01/2008

(A) Responsibility

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

(2) The bureau of 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 health care, ODJFS, 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 stamps, any increase in benefits must be reflected in the coupon 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 stamp 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 “State Hearing Compliance,” JFS 04068 (rev. 5/01), accompanied by appropriate documentation.

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 JFS 04068, to the bureau of managed health care, ODJFS.

(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 stamp 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 stamps, compliance shall be considered achieved on the date the action is reflected in the assistance group’s coupon 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 stamp 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 rules 5101:1-23-70 and 5101:1-15-50 of the Administrative Code.

(2) When the appeal involves food stamps, 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 an mental retardation/developmental disabilities (MR/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 JFS 04068 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 JFS 04068, and send it to the bureau of state hearings.

(H) Primary alternative care treatment (PACT) issues

When a hearing decision changes a decision by the recipient monitoring and review section concerning proposed or continued enrollment in the PACT program 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 JFS 04068, and send it to the bureau of 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 or the Ohio department of mental retardation and developmental disabilities, the hearing decision shall constitute the revised PAS or RR determination.

Effective: 09/01/2008

R.C. 119.032 review dates: 05/30/2008 and 09/01/2013

Promulgated Under: 119.03

Statutory Authority: 3125.25, 5101.35

Rule Amplifies: 3125.25, 5101.35

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