C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER C—MEDICAL ASSISTANCE PROGRAMS › PART 431—STATE ORGANIZATION AND GENERAL ADMINISTRATION › Subpart E—Fair Hearings for Applicants and Beneficiaries

42 C.F.R. § 431.223

Denial or dismissal of request for a hearing

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The agency may deny or dismiss a request for a hearing if—

(a) The applicant or beneficiary withdraws the request. The agency must accept withdrawal of a fair hearing request via any of the modalities available per § 431.221(a)(1)(i). For telephonic hearing withdrawals, the agency must record the individual's statement and telephonic signature. For telephonic, online and other electronic withdrawals, the agency must send the affected individual written confirmation, via regular mail or electronic notification in accordance with the individual's election under § 435.918(a) of this chapter.

(b) The applicant or beneficiary fails to appear at a scheduled hearing without good cause.

[44 FR 17932, Mar. 29, 1979, as amended at 81 FR 86449, Nov. 30, 2016]
Notes of Decisions
Cited in 6 cases, 2010–2020 · leading case: Fishman ex rel. Fishman v. Daines, 164 F. Supp. 3d 409 (E.D.N.Y. 2016).
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Fishman ex rel. Fishman v. Daines, 164 F. Supp. 3d 409 (E.D.N.Y. 2016). · cites it 11× “The Second Circuit directed that, on remand, this Court “should ask whether plaintiffs are likely to succeed on their claim that New York violates their § 1396a(a)(3) fail-hearing right as defined further by any relevant federal regulations, including 42 C.F.R. § 431.223 .” Id.…”
Fishman v. Daines, 743 F. Supp. 2d 127 (E.D.N.Y. 2010). · cites it 2× “) The State Medicaid Manual (“the Manual”), a document published by HHS’s Centers for Medicare and Medicaid Services, suggests that this standard is met only when the state agency notifies the appellant that he missed the hearing and the appellant fails to respond. Specifically,…”
Fishman ex rel. Fishman v. Paolucci, 628 F. App'x 797 (2d Cir. 2015). · cites it 2× “” Plaintiffs read this regulation as requiring the state to ascertain before immediately acting whether the beneficiary lacked good cause for failing to appear and contend that the regulatory history and agency interpretations (through the State Medicaid Manual 2 ) of the…”
Fishman ex rel. Fishman v. Daines, 247 F. Supp. 3d 238 (E.D.N.Y. 2017). “The Second Circuit directed that the Court “should ask whether plaintiffs are likely to succeed on their claim that New York violates their § 1396a(a)(3) fair hearing right as defined further by any relevant federal regulations, including 42 C.F.R. § 431.223 .” Id. Following…”
J.G. Vs. Div. of Med. Assistance & Health Servs. (Div. of Med. Assistance & Health Servs.), No. A-3643-17T4 (N.J. Super. Ct. App. Div. May 13, 2019). “" See 42 C.F.R. § 431.223 . The Division argues it failed to schedule a fair hearing because FCC "lacked authorization from J.”
D.A. Vs. Div. of Med. Assistance & Health Servs. (Div. of Med. Assistance & Health Servs.), No. A-2570-17T1 (N.J. Super. Ct. App. Div. Jan. 2, 2020). “Petitioner argues that denial of her fair hearing request was arbitrary, capricious, and unreasonable. Further, petitioner argues that DMAHS can only refuse a fair hearing request if: (1) the applicant withdraws the request in writing, or (2) the applicant fails to appear at a…”
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