Section 405IAC1.1-1-3. Filing an appeal; scheduling appeals

   (a) Any party complaining of an action by the office of Medicaid policy and planning or by the division of family resources action in accordance with section 2 of this rule may file a request for an administrative hearing as provided in this section.

  (b) Unless otherwise provided for by statute, regulation, or rule, appeal requests by recipients or applicants shall be filed in writing with the division of family resources or the office of hearings and appeals of the family and social services administration as provided in the notice of agency action. The appeal request must be received by close of business not later than:

(1) thirty-three (33) calendar days following the effective date of the action being appealed; or

(2) thirty-three (33) calendar days from the date of the notice of agency action;

whichever is later. Applicant and recipient appeal hearings shall be conducted at a reasonable time, place, and date.

  (c) For purposes of this section, "close of business" means 4:30 p.m., local time, on the business day where the appeal is received. If the thirty-third day is a:

(1) Saturday;

(2) Sunday;

(3) state holiday; or

(4) day the office in which the act is to be done is closed during regular business hours;

the appeal must be received by the close of business the next business day. An appeal request received after close of business on the thirty-third day is untimely and invalid.

  (d) A continuance of a hearing will be granted only for good cause shown. An objection to a request for a continuance shall be considered before a continuance is granted or denied. Requests for a continuance shall be in writing and accompanied by adequate documentation of the reasons for the request. Good cause includes the same factors as cause for a continuance in the Supplemental Security Income program (20 CFR 416.1436):

(1) inability to attend the hearing because of a serious physical or mental condition;

(2) incapacitating injury;

(3) death in the family;

(4) severe weather conditions making it impossible to travel to the hearing;

(5) unavailability of a witness and the evidence cannot be obtained otherwise; or

(6) other reason similar to those listed in this section.

If the appellant is represented by counsel, the request for continuance must also include alternative dates for the scheduling of a new hearing. However, the hearings and appeals section may schedule a new hearing without respect to the requested date if such date cannot be accommodated or confirmed with the requesting attorney within a reasonable time of the request.

  (e) The office of hearings and appeals, upon application of any party, or in its own discretion, may consolidate appeals to promote administrative efficiency. Hearings and appeals may consolidate hearings only in cases in which the sole issue involved is one of federal or state law or policy.

  (f) Any party filing an appeal under this article is not excused from exhausting all interim procedures that may be required by statute or rule for administrative review prior to the filing of an appeal. Any issues not preserved in a timely manner within the interim review procedures are waived and shall not be an issue during the evidentiary hearing.

  (g) The office of hearings and appeals will schedule evidentiary hearings and issue notices to the parties regarding the date, time, and location of the scheduled hearing. (Office of the Secretary of Family and Social Services; 405 IAC 1.1-1-3; filed Jul 18, 1996, 3:00 p.m.: 19 IR 3378; readopted filed Jun 27, 2001, 9:40 a.m.: 24 IR 3822; readopted filed Sep 19, 2007, 12:16 p.m.: 20071010-IR-405070311RFA; filed Feb 17, 2012, 10:42 a.m.: 20120314-IR-405110724FRA; readopted filed Oct 28, 2013, 3:18 p.m.: 20131127-IR-405130241RFA)