1. (a) Agency Notice.

   1. (1) Notice at time of action. If the action of the operating agency or its designee is the denial of Medicaid or program eligibility or the denial of a prior authorization request, at the time of action, the operating agency or its designee shall give an individual written notice of the individual's right to request a fair hearing on the action.
   2. (2) Advance Notice. If an operating agency or its designee proposes to take an action other than the denial of Medicaid or program eligibility, denial of a prior authorization request, the failure to act upon an individual's request for Medicaid-covered services, or failure to determine eligibility within a reasonable amount of time, the operating agency or its designee shall deliver to the individual notice of the individual's right to request a hearing on the action at least ten days prior to the date of action unless the circumstances in subsection (b) of this section otherwise provide.

2. (b) Exceptions. The operating agency or its designee may mail written notice to an individual not later than the date of action if:

   1. (1) the operating agency or its designee has factual information confirming the death of the individual;

   2. (2) the operating agency or its designee receives a clear written statement signed by the individual that:

      1. (A) he or she no longer wishes services; or
      2. (B) gives information that requires termination or reduction in services and indicates that he or she understands that this must be the result of supplying that information;
   3. (3) the individual has been admitted to an institution where he or she is ineligible for further services;
   4. (4) the individual's whereabouts are unknown and the post office returns agency or designee mail directed to him or her indicating no forwarding address;
   5. (5) the operating agency or its designee establishes the fact that the individual has been accepted for Medicaid services by another state;
   6. (6) a change in the level of medical care is prescribed by the individual's physician;
   7. (7) the notice involves an adverse determination made with regard to the preadmission screening requirements; or

   8. (8) the action is the transfer or discharge of a resident from a nursing facility and the date of action will occur in less than ten days pursuant to 42 C.F.R. §483.12(a)(5)(ii) because:

      1. (A) the safety or health of individuals in the facility would be endangered;
      2. (B) the resident's health improves sufficiently to allow a more immediate transfer or discharge;
      3. (C) an immediate transfer or discharge is required by the resident's urgent medical needs; or
      4. (D) a resident has not resided in the facility for thirty days.

3. (c) Content of Notice. The notice shall contain:

   1. (1) the action that the operating agency, its designee, or nursing facility is taking in the case of a denial of Medicaid or program eligibility or a denial of a prior authorization request, or intends to take in the case of any other action except for failing to act upon an individual's request for Medicaid covered services or for an eligibility determination within a reasonable amount of time;
   2. (2) the date of action;
   3. (3) a statement of the reason for the action;
   4. (4) a reference to the statutory or regulatory authority supporting the action, or the change in federal or state law that requires the action;
   5. (5) an explanation of the individual's right to request a hearing and the procedure for requesting same;
   6. (6) a statement that the individual may represent himself or herself or use legal counsel, a relative, a friend, or other spokesperson;
   7. (7) the name and phone number of a person who can answer questions regarding the fair hearing process; and
   8. (8) an explanation of the circumstances under which services are continued, or a transfer or discharge is deferred, if a hearing is requested.

4. (d) Timeframe for Requesting a Hearing. The operating agency and its designee must allow the individual to request a hearing within 90 days from the date the notice required under subsection (a) of this section is mailed.

   1. (1) The request for hearing must be submitted according to the instructions provided in the notice sent to the individual under subsection (a) of this section.
   2. (2) If a request for a hearing is not received before the date of action, the action may be taken or allowed.
   3. (3) If a request for hearing is not received within the 90-day period, the individual is deemed to have waived the hearing and the action becomes final.

Source Note:The provisions of this §357.5 adopted to be effective March 31, 1999, 24 TexReg 2293.