XIX. Due Process, Notice of Determination, and Fair Hearings

People receiving services certified or operated by OPWDD, must be afforded the due process required by OPWDD regulations at 14 NYCRR 633.12: Objection to Services Process. These rights apply whenever a provider proposes to modify the provision of services, to discharge a person from their residential or nonresidential facility, program or service, to reduce, suspend or terminate an HCBS waiver service, and/or to initiate changes to an individualized service plan including Life Plans.

More information on due process can be located on the OPWDD website. 

OPWDD and CCO/HHs have roles in the CCO/HH Notice of Determination (NOD) process.

A Notice of Determination must be sent when a person is enrolled in or disenrolled from a CCO/HH. 

CCO/HHs must maintain policies and procedures about Notices of Determination and the Fair Hearing Process. These policies must include:

1. Written notice to people of their Fair Hearing rights
2. Helping OPWDD prepare for a Fair Hearing. This includes, but is not limited to, developing the evidence packet, providing information to Counsel’s Office, and testifying at the Fair Hearing.
   • An evidence packet contains documentation supporting enrollment/disenrollment determinations including, but not limited to, the signed DOH-5055, DOH-5200, and DOH-5201 (if needed) consent forms; the updated Life Plan; care record notes; medical documentation; a written summary of the case; the applicable program policy upon which the decision is based; a copy of the notice sent to the person.

NOD Forms

CCO/HHs must use the two following notices for enrollment and disenrollment actions. 

DOH 5234 Enrollment Notice The DOH-5234 form notifies the person and/or their representative of the person’s CCO/HH enrollment and the commencement of Care Management services. The notice must be mailed to the person along with the CCO/HH welcome letter at the time of enrollment.

For more information on CCO/HH enrollment processes go to Eligibility, Referral, and Enrollment.

DOH 5235 Disenrollment Notice  If a determination is made to disenroll a CCO/HH enrollee, the CCO/HH must give timely notice to the enrollee before any action is taken. Timely notice includes completing Form DOH-5235 and mailing it to the enrollee at least ten (10) days before the effective date of disenrollment (see 18 NYCRR § 358-2.23).

For more information on CCO/HH disenrollment processes go to Disenrollment and Transfers.

OPWDD and CCO/HHs must work together when issuing a CCO/HH Notice of Determination. 

The CCO/HHs must: 

1. Monitor eligibility via the CCO/HH roster provided by the State;
2. Assist OPWDD when a Fair Hearing has been requested;
3. Participate in an informal Agency Conference with the person and/or their family/representative, and a representative from OPWDD, upon request of the person;
4. Comply with the Decision after Fair Hearing as to enrollment in or disenrollment from the CCO/HH program;
5. Send a copy of the CCO/HH Notice of Determination to the person  and/or their family/representatives (see section titled “CCO/HH Notice of Determination” above) with a copy to the DDRFO; and
6. Have clear and focused training on Medicaid notice requirements and maintain a Quality Assurance program to ensure compliance with specified requirements. 

CCO/HHs must include within their Quality Assurance process indicators to ensure that Care Managers comply with CCO/HHs policies and procedures on Notice of Determinations.

Quality indicators must include, but are not limited to, whether the: 

1. CCO/HH forwarded a correct and complete, timely and adequate notice to the person/family/representative
   • per 18 NYCRR § 358-2.23, a timely notice is one that is mailed at least ten (10) days before the date upon which the proposed action is to become effective
2. CCO/HH provided notification of a Notice of Determination to the appropriate DDRFO at OPWDD and provided the evidence packet to the person and their family/representative; and
3. OPWDD provided additional information requested by the person and/or their family/representative within the required timeframes.

For more information on quality management and assurances, see Quality Management Program and Performance Metrics.

A Fair Hearing is a proceeding before an Administrative Law Judge (ALJ) that provides the opportunity for a person and the agency to present evidence in support of a determination that the person does not agree with.

The person has sixty (60) days from the date of the notice to request a Fair Hearing from the Office of Temporary Disability Assistance (OTDA). When a Fair Hearing is requested, OTDA’s Office of Administrative Hearings (OAH) will: 

1. Issue an OAH-4420 form (Acknowledgement of Fair Hearing Request);
2. Assign a Fair Hearing number; and
3. Issue a Confirmation of Aid Status.  

OTDA’s OAH will then issue form OAH-457 (Notice of Fair Hearing) to the Developmental Disabilities Regional Field Office (DDRFO) and the person. Form OAH-457 will provide the Fair Hearing number assigned by OTDA, as well as the date, time, and location of the hearing. Form OAH-457 will indicate the aid status and whether the CCO/HH is being directed to provide Aid Continuing (i.e., to continue providing services unchanged until the Decision After Fair Hearing Notice is issued). 

The person has the right to be represented by legal counsel, a relative, friend or another person, or to represent themselves. At the hearing, the person, their attorney, or other family/representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any person(s) who appear at the hearing. The person has the right to bring witnesses to speak in their favor.  

Per 18 NYCRR § 358-4.3 (c) (1), no later than 5 (five) calendar days before the hearing date, the agency may request a waiver from appearing and elect to present evidence in the form of written documentation in lieu of appearing at the hearing. 

Aid Continuing is the right of a CCO/HH enrollee to have services continue unchanged until a Decision After Fair Hearing is issued. Aid Continuing directives are issued by the Office of Temporary Disability and Assistance (OTDA).  

If the person requests a Fair Hearing before the effective date stated in the notice, they must continue to receive benefits unchanged until the Fair Hearing decision is issued if granted Aid Continuing by OTDA. However, if the person checks the box “I agree to have the action taken on my medical assistance benefits, as described in this notice, prior to the issuance of the Fair Hearing Decision” under Continuing Your Benefits on the back of the notice, the person’s enrollment / disenrollment will remain unchanged in the OPWDD system until the Decision After Fair Hearing is issued. 

If Aid Continuing is not request by the person or granted by OTDA, the CCO/HH must end the enrollment in the OPWDD system at the end of the month of disenrollment. If the Fair Hearing is in favor of the person, enrollment will be adjusted accordingly.  

Agency Conference is defined as an informal meeting that may be requested by the person/family and/or representative, in addition to requesting a Fair Hearing, where the person may submit additional information in support of their disagreement with the determination on enrollment in or disenrollment from the CCO/HH Program.

Pursuant to 18 NYCRR § 358-3.8, at any reasonable time prior to the Fair Hearing, the person can request an informal Agency Conference with the DDRFO. If the person requests an Agency Conference, the DDRFO arranges for a meeting with the person, their representative, or any other person they choose (e.g., friend, family, attorney, neighbor), and a representative from the CCO/HH. The person is allowed to submit additional information related to the Fair Hearing issue. The DDRFO may review its determination on enrollment or disenrollment from the CCO/HH in light of the additional information provided. The DDRFO may choose to withdraw its determination and enroll or re-enroll the person based on their review of additional information. If the DDRFO decides to uphold its initial determination, the person is still entitled to have the initial determination reviewed through the Fair Hearing process. 

Decision After Fair Hearings  

When the Decision After Fair Hearing is issued, it is binding upon the CCO/HH and OPWDD. The decision must be complied with in accordance with 18 NYCRR § 358-6.4.

If the Decision After Fair Hearing is in favor of the disenrolled person, OPWDD will adjust the enrollment accordingly.  

If the person does not feel that OPWDD has complied with the Fair Hearing decision within a reasonable time after receiving the decision, the person may submit a Compliance Complaint to OTDA for investigation.  

Reconsideration of OTDA Fair Hearing Decisions

Either party may request that OTDA reconsider the Decision After Fair Hearing if the party feels there has been an error in law or fact. A request for reconsideration must be sent to the OTDA Litigation Mailbox at [email protected] or faxed to (518) 473-6735.  

While the reconsideration is under review, the Decision After Fair Hearing remains in effect. OTDA will notify the party of the result of its review. OTDA will note, if applicable, that it is correcting an error of law or fact in the decision, and/or reopen the hearing.  

Training on Fair Hearing Process 

CCO/HHs must provide training to Care Managers on notice procedures and management of the Fair Hearing process. CCO/HHs must provide access to OPWDD on training opportunities that include the Fair Hearing Process described in this Policy.