Notice, Due Process and Procedure in Medicaid Fair Hearings

Minimum Federal Requirements for Medicaid Fair Hearings

Each State must give Medicaid applicants the right to a fair hearing when applications are denied, improperly approved, or simply not acted in a timely manner. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.200-431.250; 42 C.F.R. § part 438. The State’s hearing system must provide for a hearing before the Department, or an evidentiary hearing at the local level with a right to appeal to the Department. 42 C.F.R. § 431.205(b). The State’s hearing system must provide for –

(1) A hearing before –

(i) The Medicaid agency; or

(ii) For the denial of eligibility for individuals whose income eligibility is determined based on the applicable modified adjusted gross income standard described in§ 435.911(c) of this chapter, the Exchange or Exchange appeals entity to which authority to conduct fair hearings has been delegated under § 431.10(c)(1)(ii), provided that individuals who have requested a fair hearing are given the choice to have their fair hearing conducted instead by the Medicaid agency; at state option the Exchange or Exchange appeals entity decision may be subject to review by the Medicaid agency in accordance with § 431.10(c)(3)(iii); or

(2) An evidentiary hearing at the local level, with a right of appeal to the Medicaid agency. If the local hearing is not de novo, the applicant has a right to request a de novo hearing when appealing an adverse decision. See § 431.232 and § 431.233. Georgia provides for a de novo evidentiary hearing at the local level. Ga. R. & Regs. § 616-1-2-21(3).

Standing

When the applicant requests a fair hearing, standing is usually a non-issue because the applicant is the aggrieved party. It might become an issue when someone else seeks to litigate issues in a representational capacity.

Notice of Hearing

As soon as practicable after a case is referred to the Office of State Administrative Hearings, the Administrative Law Judge shall issue a Notice of Hearing for the purpose of setting forth the date, time, and place of the hearing. Ga. R. & Regs. § 616-1-2-.09. In most cases, scheduling inquiries may be made to each judge’s administrative assistant. Their email addresses are listed on the OSAH website. See 42 C.F.R. § 431.240(a)(2) requiring adequate prior written notice.

Notice; opportunity to be heard

All parties must be afforded an opportunity for hearing after reasonable notice is served. O.C.G.A. § 50-13-13(a)(1); Ga. R. & Regs. § 616-1-2-09. Notice of the hearing must include (A) A statement of the time, place, and nature of the hearing; (B) A statement of the legal authority and jurisdiction under which the hearing is to be held; (C) A reference to the particular section of the statutes and rules involved; (D) A short and plain statement of the matters asserted; and (E) A statement as to the right of any party to subpoena witnesses and documentary evidence through the agency. O.C.G.A. § 50-13-13(a)(2). If the agency or other party is unable to state the matters in detail at the time, the notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished. O.C.G.A. § 50-13-13(b)(2)(D).

Place of hearing

The must be conducted at a reasonable time, date and place after adequate notice is given. It must be conducted by an impartial official who was not directly involved in the initial determination. 42 C.F.R. § 431.240; see Schweiker v. McClure, 456 U.S. 188 (1982) (regarding necessity of impartial official). The Department may offer local hearings in some political subdivisions and not in others. 42 C.F.R. § 431.205(c). The Department may hold telephone hearings if appropriate. O.C.G.A. § 50-13-15(5).

Rights Before Hearing

42 C.F.R. § 431.242(a) provides the applicant or beneficiary, or his representative, must be given an opportunity to – (a) Examine at a reasonable time before the date of the hearing and during the hearing: (1) The content of the applicant’s or beneficiary’s case file and electronic account, as defined in § 435.4 of this chapter; and (2) All documents and records to be used by the State or local agency or the skilled nursing facility or nursing facility at the hearing. The applicant has a right to examine all policies and documents that formed the basis of the decision. “In other words, the decision must be based on “ascertainable standards.”” See J. Perkins, Issue brief: Appeal Rights and Medicaid Benefits citing Holmes v. New York City Hous. Auth., 398 F.2d 262, 265 (2d Cir. 1968). This is why the content of the Notice of Decision is critical; it tells the applicant why he or she was denied eligibility and what to look for in the file.

Knowing the applicant’s rights is significant. Attorney Kaltsas sent Massachusetts’ Medicaid’s record custodian a subpoena duces tecum along these lines:

The witness is to furnish or make available for inspection the following documents:

• • Any and all documents, LOCATED in John Doe’s case record, which describes the FACTS that support the agency’s decision to deny the Appellant’s application, per 42 CPR 435.914(a);
  • Any and all documents, NOT LOCATED in John Doe’s case record, which describes the FACTS that support the agency’s decision to deny the Appellant’s application;
  • All documents which describe the FACTS upon which the denial of John Doe’s application was based;
  • All documents, if any, contained in the applicant’s case record, which state the FACTUAL basis upon which a determination of ineligibility was based by the agency, in denying John Doe’s application;
  • All fair hearing decisions or court decisions which were considered as relevant to the John Doe application, including but not limited to any such decisions which reject or support the legal basis or theory upon which John Doe ‘s application was denied.
  • All documents that identify the person who made the decision to deny the application.

Georgia Rule 616-1-2-.19(a) permits issuance of subpoenas for witness testimony or the production of documents at depositions or hearings.

Rights at hearing

An applicant/recipient must be allowed to bring witnesses, establish all pertinent facts and circumstances, present an argument without undue interference; and question or refute any testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses. 42 C.F.R. § 431.242(b)-(e). Goldberg requires that Medicaid  give applicants an effective opportunity to confront adverse witnesses and present his or her own evidence and argument.

Matters Covered at the Hearing

The hearing must cover –

(a) Any matter described in § 431.220(a)(1) for which an individual requests a fair hearing.

(b) A decision by a skilled nursing facility or nursing facility to transfer or discharge a resident; and

(c) A State determination with regard to the preadmission screening and annual resident review requirements of section 1919(e)(7) of the Act.

See 42 C.F.R. § 431.241.

Right to counsel

All parties have the right to counsel. O.C.G.A. § 50-13-13(a)(3). All parties have a right to respond and to present evidence on all issues involved. O.C.G.A. § 50-13-13(a)(3).

Goldberg requirements

Medicaid enrolles have a property interest in Medicaid benefits. See Bd. of Regents v. Roth, 408 U.S. 564 (1972); see J. Perkins, Issue brief: Appeal Rights and Medicaid Benefits (2013). For that reason, 42 C.F.R. § 431.205(d) requires that the hearing system meet the due process standards in Goldberg v. Kelly, 397 U.S. 254 (1970). In Goldberg, the Supreme Court considered whether the State must provide an evidentiary hearing prior to terminating benefits and found that due process requires some form of hearing.

“The fundamental requisite of due process of law is the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 394 (1914). The hearing must be at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.”

Goldberg, at 267-268. One immutable principal of jurisprudence “is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.” Id., at 270. Another such principal is the right to counsel. Finally, the decision-maker’s conclusion as to a recipient’s eligibility must rest solely on the legal rules and evidence adduced at the hearing. … To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on, … though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law. And, of course, an impartial decision maker is essential.” Id., at 271. Neither side is permitted to improperly influence the decision-maker. Ex parte communications with the ALJ are prohibited after a case is referred to OSAH. Ga. R. & Regs. § 616-1-2-10.

Procedure

The Department must maintain a hearing system which provides for (1) A hearing before the agency; or (2) An evidentiary hearing at the local level, with a right of appeal to a State agency hearing. 42 C.F.R. § 431.205. Hearings must meet the due process standards in Goldberg v. Kelly, 397 U.S. 254 (1970). 42 C.F.R. § 431.205(d). Hearings may be conducted by telephonic means if all parties consent and use of that procedure will not jeopardize the rights of any party. O.C.G.A. § 50-13-15(5).

Hearings in Georgia are governed by the Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq. An Administrative Law Judge has discretion to relax procedural requirements to facilitate resolution of matters without prejudice to the parties. Ga. R. & Regs. § 616-1-2-.02(2).

The hearing officer may administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing briefs; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to intervene; provide for the taking of testimony by deposition or interrogatory; and reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the agency or the hearing officer. O.C.G.A. § 50-13-13(a)(6).

Documents filed subsequent to case initiation are filed with the assigned Administrative Law Judge. Ga. R. & Regs. § 616-1-2-.04(2), and must be served on all parties. Ga. R. & Regs. § 616-1-2-.11. Service is permitted by first class mail, fax, e-mail or personal delivery. Ga. R. & Regs. § 616-1-2-.11. Filings must be accompanied either by an acknowledgement of service, or by a certificate of service. Ga. R. & Regs. § 616-1-2-.11(3). Filed documents must be signed by the submitting party. Ga. R. & Regs. § 616-1-2-.04(3). All legal authority not already part of the record must be included in full and not incorporated by reference with the following exceptions: published decisions of the Georgia appellate courts, the Official Code of Georgia Annotated, laws, rules and regulations published by the Secretary of State, and all federal statutes, regulations and published decisions. Ga. R. & Regs. § 616-1-2-.04(4).

Publicize hearing procedure

The Department must issue and publicize its hearing procedures. 42 C.F.R. § 431.206(a). Georgia follows the OSAH rules and regulations. See O.C.G.A. § 49-4-153(b)(1). See also O.C.G.A. § 50-13-3(a)(3).