The Department must dispose of each application by a finding of eligibility or ineligibility, unless: (1) there is an entry in the case record that the applicant voluntarily withdrew the application, and that the Department sent a notice confirming his decision; (2) there is a supporting entry in the case record that the applicant has died; or (3) there is a supporting entry in the case record that the applicant cannot be located. Eligibility must be considered for the current period and for the three months prior to the date of application if the applicant was eligible. 42 C.F.R. § 435.914(a); ABD Manual § 2050; ABD Manual § 2053.

Requirement to Process Application

42 C.F.R. § 435.914 provides:

(a) The agency must include in each applicant’s case record facts to support the agency’s decision on his application.

(b) The agency must dispose of each application by a finding of eligibility or ineligibility, unless –

(1) There is an entry in the case record that the applicant voluntarily withdrew the application, and that the agency sent a notice confirming his decision;

(2) There is a supporting entry in the case record that the applicant has died; or

(3) There is a supporting entry in the case record that the applicant cannot be located.

Action

“Action” means a termination, suspension, or reduction of Medicaid eligibility or covered services. 42 C.F.R. § 431.201. A denial or an approval for less than the coverage sought is also appealable. 42 C.F.R. § 431.220(a)(1). Using the phraseology of O.C.G.A. § 49-4-153, appeals can relate to “any medical or remedial care or service which such recipient alleges should be reimbursed.”

The Department’s standards and methods for determining eligibility must be consistent with the objectives of the program and with the rights of individuals under the United States Constitution, the Social Security Act, title VI of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and all other relevant provisions of Federal and State laws. 42 C.F.R. § 435.901. Its policies and procedures must ensure that eligibility is determined in a manner consistent with simplicity of administration and the best interests of the applicant or beneficiary. 42 C.F.R. § 435.902. The Department must furnish Medicaid promptly to eligible beneficiaries. 42 C.F.R. § 435.930(a), although information may be verified consistent with 42 C.F.R. § 435.940 through § 435.965.

Inaction: Standard of Promptness

As the Statute indicates, inaction is also the basis for an appeal. 42 C.F.R. § 431.220(a); O.C.G.A. § 49-4-153(b)(1). After an application is filed, the Department has a limited period of time to determine eligibility. That period of time is known as the Standard of Promptness (SOP). The Standard of Promptness is ninety days for applicants who apply for Medicaid on the basis of disability; and forty-five days for all other applicants. 42 C.F.R. § 435.912(c)(3) (at 77 F.R. 17209, former § 435.911 was re-designated as § 435.912). See also 42 U.S.C. § 1396a(a)(8).

The Department must determine eligibility within the standards except in unusual circumstances. 42 C.F.R. § 435.912(c). The Department must document any reason for delay. 42 C.F.R. § 435.912(f). The SOP cannot be used as a waiting period or as a reason for denying eligibility. 42 C.F.R. § 435.912(g).

No secret rules

No agency rule, order, or decision shall be valid or effective against any person or party nor may it be invoked by the agency for any purpose until it has been published or made available for public inspection as required in this Code section. This provision is not applicable in favor of any person or party who has actual knowledge thereof. O.C.G.A. § 50-13-3(b). Although the Department’s manual is not a “rule” that can be reviewed in a declaratory judgment action, Georgia Dep’t of Medical Assistance v. Beverly Enterprises, Inc., 261 Ga. 59 (1991), other notice provisions within the federal regulations would lead to the same result.

Notice of Decision

The Department must send each applicant a written notice of decision regarding each application. The notice must include a finding of eligibility or ineligibility. 42 C.F.R. § 435.917(a). The notice must contain a statement of what action the Department intends to take. 42 C.F.R. § 431.210. If eligibility is denied, the notice must state the reasons for the action, the specific regulation supporting the action, and an explanation of the applicant’s right to request an evidentiary hearing. See 42 C.F.R. § 431.210 and § 435.917(b)(1)(D).

A notice of adverse action must be timely and must include the effective date of action. 42 C.F.R. § 435.917(a). “Date of action” means the intended date on which a termination, suspension, reduction, transfer or discharge becomes effective. 42 C.F.R. § 431.201. If the adverse action involves terminating or reducing benefits already being provided, then notice must be given at least 10 days prior to the date of action. 42 C.F.R. § 431.211. Exceptions allowing the agency to shorten the 10 day notice period (e.g., when fraud is suspected) are at 42 C.F.R. § 431.213 and § 431.214.

“The notice must be “reasonably calculated, under all the circumstances,” to inform the individual of the action being taken and “be of such a nature as reasonably to convey” information regarding the right to appeal. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see Goldberg, 397 U.S. at 267-68 (requiring welfare recipients to receive “timely and adequate notice detailing the reasons for a proposed termination”).” See J. Perkins, Issue brief: Appeal Rihts and Medicaid Benefits (2013).

In Hodges v. Smith, 910 F. Supp. 646 (N.D. Ga. 1995), the Court found that the Department failed to provide notice to a Medicaid recipient that it would terminate payments for Osmolite (a nutritional supplement) and enjoined the Department from ceasing payment of Osmolite pending a hearing on whether it was a health care supply. Specifically, the Court sated:

Plaintiffs, on the other hand, argue that the Defendant’s failure to notify Hodges before terminating his benefits violates 42 C.F.R. § 431.200, et seq., O.C.G.A. § 49-4-153, and the Department of Human Resources ABD Medicaid Manual § [2052-3]. The court finds Plaintiffs’ argument compelling. The state is required under 42 C.F.R. § 431.211 to provide a Medicaid recipient with ten days advance notice prior to taking any action that qualifies under 42 C.F.R. § 431.201 as a “termination, suspension, or reduction of Medicaid eligibility or covered services.” See also 42 C.F.R. § 431.210 (listing the required contents of notices). The parties agree that no notice was given prior to terminating Hodges’ provision of Osmolite, and as such, it appears that Defendant violated this regulation.

Defendant’s reliance on 42 C.F.R. § 431.220(b), moreover, is misplaced. That regulation relieves the state from granting a hearing in cases involving a federal or state law “requiring an automatic change adversely affecting some or all recipients.” Id. It does not mention, however, and therefore does not affect the state’s obligation to provide notice to Medicaid recipients prior to a termination in coverage.

The notice must also include an explanation of the circumstances under which Medicaid is continued if a hearing is requested. 42 C.F.R. § 431.210(e). The Department must include in each applicant’s case record facts to support the Department’s decision on his application. 42 C.F.R. § 435.914(b). See also 42 C.F.R. § 431.210; ABD Manual, Appendix B-3.

Although 42 C.F.R. § 431.210 requires additional information in Mediaid’s notice, 42 C.F.R. § 435.917 governs the general content of the agency’s notice of decision (or action) and provides:

(a) Notice of eligibility determinations. Consistent with §§ 431.206 through 431.214 of this chapter, the agency must provide all applicants and beneficiaries with timely and adequate written notice of any decision affecting their eligibility, including an approval, denial, termination or suspension of eligibility, or a denial or change in benefits and services. Such notice must –

(1) Be written in plain language;

(2) Be accessible to persons who are limited English proficient and individuals with disabilities, consistent with § 435.905(b), and

(3) If provided in electronic format, comply with § 435.918(b).

(b) Content of eligibility notice –

(1) Notice of approved eligibility. Any notice of an approval of Medicaid eligibility must include, but is not limited to, clear statements containing the following information –

(i) The basis and effective date of eligibility;

(ii) The circumstances under which the individual must report, and procedures for reporting, any changes that may affect the individual’s eligibility;

(iii) If applicable, the amount of medical expenses which must be incurred to establish eligibility in accordance with § 435.121 or § 435.831.

(iv) Basic information on the level of benefits and services available based on the individual’s eligibility, including, if applicable –

(A) The differences in coverage available to individuals enrolled in benchmark or benchmark-equivalent coverage or in an Alternative Benefits Plan and coverage available to individuals described in § 440.315 of this chapter (relating to exemptions from mandatory enrollment in benchmark or benchmark-equivalent coverage);

(B) A description of any premiums and cost sharing required under Part 447 Subpart A of this chapter;

(C) An explanation of how to receive additional detailed information on benefits and financial responsibilities; and

(D) An explanation of any right to appeal the eligibility status or level of benefits and services approved.

(2) Notice of adverse action including denial, termination or suspension of eligibility or change in benefits or services. Any notice of denial, termination or suspension of Medicaid eligibility or change in benefits or services must be consistent with § 431.210 of this chapter.

(c) Eligibility. Whenever an approval, denial, or termination of eligibility is based on an applicant’s or beneficiary’s having household income at or below the applicable modified adjusted gross income standard in accordance with § 435.911, the eligibility notice must contain –

(1) Information regarding bases of eligibility other than the applicable modified adjusted gross income standard and the benefits and services afforded to individuals eligible on such other bases, sufficient to enable the individual to make an informed choice as to whether to request a determination on such other bases; and

(2) Information on how to request a determination on such other bases;

(d) Combined Eligibility Notice. The agency’s responsibility to provide notice under this section is satisfied by a combined eligibility notice, as defined in § 435.4, provided by the Exchange or other insurance affordability program in accordance with an agreement between the agency and such program consummated in accordance with § 435.1200(b)(3), except that, if the information described in paragraph (b)(1)(iii) and (iv) of this section is not included in such combined eligibility notice, the agency must provide the individual with a supplemental notice of such information, consistent with this section.

Save the Notice and Envelop

If timing of your response to the notice of action becomes an issue, saving the notice with the envelop may help you prove the notice took too long getting to you. You should also note the date the notice was received.