(b) In addition to the fair hearing rights in Part 358 of this Title, enrollees have a right to a fair hearing if:

1. (1) a social services district denies a request for an exemption or exclusion from Medicaid managed care;
2. (2) a social services district denies a request to enroll in, disenroll from, or change an MMCO;
3. (3) the social services district requires the enrollee to disenroll from an MMCO;
4. (4) a PCPCP has upheld the decision of a PCP to: deny a request for a referral; deny or reduce a benefit or service; or authorize a service in an amount less than requested; or
5. (5) an MMCO, or its management contractor, has taken an action, as defined in section 360-10.3 of this Subpart.

(c) Enrollees do not have a right to a fair hearing if:

1. (1) the sole issue is a Federal or State law requiring a change adversely affecting some or all enrollees; or
2. (2) the sole issue is a result of a change in the contract between the MMCO and the State, that has been approved by the Federal government; or
3. (3) the sole issue is an act of an MMCO that does not constitute an action; or

4. (4) the sole issue is a participating provider denied or reduced a service, denied access to a referral, or authorized a service or benefit in an amount less than requested, unless the enrollee has received a determination or notice of action from the MMCO, or its management contractor, confirming the decision of the provider.

   (d) Requests for a fair hearing.

5. (1) Except as provided in paragraph (2) of this subdivision, an enrollee must request a fair hearing in accordance with section 358-3.5 of this Title.

6. (2) A request for fair hearing regarding an MMCO’s or its management contractor’s action must be requested by the enrollee within 60 days of:

   1. (i) the date of the MMCO’s or its management contractor’s notice of action; or

   2. (ii) the MMCO’s or its management contractor’s failure to act on service authorization requests, complaints, grievances, or appeals within the timeframes established by the Public Health Law and applicable Federal regulations, as set forth in guidelines established by the commissioner.

      (e) Notices.

7. (1) A social services district shall notify an enrollee in writing of their right to a fair hearing and how to request a fair hearing, pursuant to section 358.22 of this Title, whenever the social services district:

   1. (i) denies a request for exemption or exclusion from enrollment in an MMCO; or
   2. (ii) determines to disenroll an enrollee from an MMCO; or
   3. (iii) denies a request to enroll in, disenroll from, or change an MMCO.

8. (2) An MMCO or its management contractor shall notify an enrollee in writing of their right to a fair hearing and how to request a fair hearing in a manner and form determined by the department whenever a notice of action is issued. For the purposes of this paragraph, MMCO means an HMO, PHSP or HIV SNP. A notice of action that sets forth all of the information required by subparagraph (i) of this paragraph will be considered an adequate notice for the purposes of section 358-2.2 of this Title.

   1. (i) The notice of action shall include:

      1. (a) the action the MMCO has taken or intends to take and the effective date of the action;
      2. (b) the specific reason for the action, including clinical rationale, if any;
      3. (c) the name of the MMCO and, if the action is being taken by its management contractor on behalf of an MMCO, the name of the management contractor;
      4. (d) a toll-free phone number and address by which the enrollee may request general assistance from the MMCO to understand the notice of action and their rights as described in this paragraph;

      5. (e) the enrollee’s right to file an appeal with the MMCO, or with its management contractor, if applicable, and the procedures for exercising these rights, including:

         1. (1) the timeframe in which to request an appeal;
         2. (2) the circumstances under which an expedited resolution is available and how to request it;
         3. (3) the enrollee’s right to designate a representative to request an appeal on their behalf and how to do so;
         4. (4) the address and toll-free phone number to request an appeal;
         5. (5) the timeframe for resolution of standard and expedited appeals and how the enrollee will be notified of the appeal determination;

      6. (f) the enrollee’s right to a fair hearing and the procedures for exercising this right, including:

         1. (1) the timeframe in which to request a fair hearing;
         2. (2) the address and toll-free phone number to request a fair hearing;
         3. (3) the enrollee’s right to designate a representative to request a fair hearing on their behalf;
         4. (4) an explanation that a request for an appeal with the MMCO or its management contractor is not a fair hearing and that a separate request for a fair hearing must be made;
         5. (5) the specific laws and/or regulations upon which the action is based;
         6. (6) the enrollee’s right to present written and oral evidence at the fair hearing;
         7. (7) the enrollee’s right to see their case file and to request evidence prepared by the MMCO for the enrollee’s fair hearing and how to make such request;
         8. (8) the enrollee’s right to representation by legal counsel or other person; information concerning the availability of community legal services to assist the enrollee with their MMCO appeal or at the fair hearing; and the enrollee’s right to bring witnesses to the fair hearing and to question witnesses at the fair hearing;
         9. (9) if the action or sole issue in dispute is one of those described in subdivision (c) of this section or in section 358-3.1(f) of this Title, an explanation that although the enrollee has the right to have a hearing scheduled, the hearing officer at the hearing may determine that the enrollee does not have the right to a hearing or continuation of benefits; and

         10. (10) if the action is a restriction under the MMCO’s recipient restriction program:

             1. (i) a recipient information packet, which provides a summary of the specific reason(s) for the restriction, including, but not limited to, a summary of any review conducted of the enrollee’s pattern of service utilization and evidence confirming that the enrollee’s use of services meets a condition for restriction, as defined in section 360-6.4(d) of this Part or in the guidelines in the contract between the MMCO and the State;
             2. (ii) the date the restriction will begin;
             3. (iii) the effect and scope of the restriction;
             4. (iv) the right of the enrollee to select a provider for the restricted service within two weeks of date of the notice of intent to restrict if the MMCO provides a choice of providers to the enrollee;
             5. (v) the right of the MMCO to select a provider for the restricted service if a choice is not provided to the enrollee or if the enrollee does not select such provider within two weeks of being given a choice;
             6. (vi) the right of the enrollee to change providers as provided by section 360-6.4(e) of this Part and section 360-10.7(b) of this Subpart;
             7. (vii) the right of the enrollee to explain and present documentation upon appeal to the MMCO showing the medical necessity of the services cited in the recipient information packet;
             8. (viii) the right of the enrollee to examine all records maintained by the MMCO or the state which identify medical assistance services paid for on behalf of the enrollee;
             9. (ix) a statement that filing an appeal with the MMCO does not suspend the effective date of the restriction and that filing an appeal with the MMCO does not take the place of or abridge the enrollee’s right to a fair hearing;
             10. (x) the right of the enrollee to request that benefits be continued unchanged pending resolution of the fair hearing, how to request that benefits be continued and the circumstances under which the enrollee may be required to pay the costs of those services; and
         11. (11) if an MMCO or its management contractor has determined to reduce, suspend, or terminate a service or benefit currently authorized: the circumstances under which the enrollee’s benefits will be continued unchanged; how to request that benefits be continued; explanation that a request for an MMCO appeal is not a request for the enrollee to have benefits continue; and the circumstances under which the enrollee may be required to pay the costs of continued services. Such notice shall be issued within the timeframes required by Federal regulations at 42 CFR 438.404(c)(1) and sections 358-2.23, 358-3.3(a)(1) and 358-3.3(d)(1) of this Title.
   2. (ii) The notice of action shall include other information as may be required by Federal or State law or regulation, or by guidelines issued by the commissioner for MMCO actions and grievance systems.
   3. (iii) The notice of action shall be issued by the MMCO within the timeframes specified in the guidelines for MMCO actions and grievance systems, issued by the commissioner, subject to all applicable requirements of State and Federal statutes and regulations.

9. (3) A PCPCP shall notify an enrollee in writing of their right to a fair hearing and how to request a fair hearing in a manner and form determined by the department whenever a grievance determination notice is issued upholding a participating provider’s decision to deny a request for a referral, or to deny or reduce a benefit or service, or to authorize a service in an amount less than requested. The grievance determination notice shall include information, and be issued within the timeframes specified in the contract between the PCPCP and the State.

   (f) Responsibilities of social services districts and MMCOs.

10. (1) For fair hearings about enrollment, disenrollment, or Medicaid eligibility, a representative of the social services district must appear at the hearing or obtain a waiver of personal appearance, and the district must comply with the other requirements of sections 358-4.2 and 358-4.3 of this Title.
11. (2) For fair hearings challenging MMCO determinations concerning services or treatment, the social services district may, but is not required to, appear at the fair hearing.
12. (3) The MMCO must prepare evidence to justify its challenged determinations. Upon request, the MMCO must provide to the enrollee or the enrollee's authorized representative copies of the documents the MMCO will present at the fair hearing. Upon request, the MMCO must also provide the enrollee or the enrollee's authorized representative access to the enrollee's MMCO case file, and provide copies of documents contained in the file. Such copies must be provided at a reasonable time before the date of the hearing. If the request for copies of documents is made less than five business days before the hearing, the social services district and the MMCO must provide the enrollee and the enrollee's authorized representative such copies no later than at the time of the hearing. Such documents must be provided without charge and must be provided to the enrollee and the enrollee's authorized representative by mail within a reasonable time from the date of the request if the enrollee or the enrollee's authorized representative request that such documents be mailed; provided however, if there is insufficient time for such documents to be mailed and received before the scheduled date of the hearing such documents may be presented at the hearing instead of being mailed.
13. (4) The MMCO may present the evidence at the hearing or request a waiver of personal appearance and submit written evidence. If the MMCO will not be making a personal appearance at the fair hearing, the written material must be submitted at least three business days prior to the scheduled hearing: to the office of administrative hearings (OAH); and to the enrollee or enrollee's representative, unless the material was previously provided to the enrollee or the enrollee's authorized representative in accordance with paragraph (3) of this subdivision. If the hearing is scheduled fewer than three business days after the request, the MMCO must deliver the evidence to the hearing site no later than one business day prior to the hearing; otherwise it must appear in person. If the MMCO has reversed its initial determination and provided the service to the enrollee, the MMCO may request a waiver of personal appearance and submit papers explaining that it has withdrawn the initial determination and is providing the services or treatment. Only the enrollee or the enrollee's authorized representative may withdraw his or her request for a fair hearing.
14. (5) The MMCO must comply with all fair hearing decisions and directives, pursuant to section 22 of the Social Services Law.

(g) Enrollees have a right to have their benefits continue unchanged ("aid continuing") under the circumstances described in section 358-3.6 of this Title and in this subdivision.

1. (1) Fair hearings about enrollment issues.

   1. (i) When an individual files a request for a fair hearing about an enrollment decision made by the social services district before the effective date specified in the notice from the social services district, the individual's enrollment status may remain the same pending the fair hearing.

      1. (a) If the recipient is not enrolled and has a request for an exemption or exclusion denied, the Medicaid recipient will remain in fee-for-service Medicaid until the fair hearing decision is issued if the recipient alleges a basis for exemption or exclusion that is described in section 364-j(3) of the Social Services Law. Otherwise, the Medicaid recipient will be required to enroll in an MMCO until the fair hearing decision is issued.
      2. (b) If a recipient's request to enroll in an MMCO is denied, the Medicaid recipient will remain in fee-for-service Medicaid until the fair hearing decision is issued.
      3. (c) If a recipient is enrolled and has a request for disenrollment, including a request for an exemption or exclusion, denied, the Medicaid recipient will remain enrolled in the MMCO until the fair hearing decision is issued.
      4. (d) If an enrollee is required to disenroll from an MMCO, the enrollee will remain enrolled until the fair hearing decision is made.

2. (2) Fair hearings about MMCO determinations.

   1. (i) Pursuant to 42 CFR 438.420, an enrollee may continue to receive services or treatment unchanged when an MMCO or its management contractor, has terminated, suspended, or reduced a previously authorized service or treatment, or proposes to do so, if:

      1. (a) the enrollee has filed a request for a fair hearing within 10 days of the notice of action or grievance determination notice, or by the intended date of the action, whichever is later; and
      2. (b) there is a valid order for the treatment or service from a participating provider or from the provider originally authorized by the MMCO to provide the treatment or service; and
      3. (c) the enrollee requests that benefits continue.

   2. (ii) If aid continuing is granted pursuant to subparagraph (i) of this paragraph, benefits will be reinstated by the MMCO, or its management contractor, until:

      1. (a) the enrollee or the enrollee's authorized representative withdraws the fair hearing request; or
      2. (b) the provider order expires; or
      3. (c) a fair hearing decision is issued that is adverse to the enrollee.
   3. (iii) Pursuant to section 358-3.6 of this Title, an enrollee may continue to receive services or treatments unchanged, pending the fair hearing, when an MMCO has determined to restrict the recipient under the MMCO’s recipient restriction program and the enrollee requests a fair hearing prior to the effective date of the restriction.
   4. (iv) If a fair hearing decision is not in favor of the enrollee, the enrollee may be required to reimburse the MMCO for the cost of any health care services received while waiting for the fair hearing determination.