The right to a hearing is a property right and belongs to the applicant. See Bd. of Regents v. Roth, 408 U.S. 564 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.”). See also Bellin v. Zucker, 6 F.4th 463 (2nd Cir. 2021) (“A constitutionally protected interest exists where “one has a legitimate claim of entitlement to the benefit….”). Under federal regulations, only the applicant or the applicant’s authorized representative may request a hearing. 42 C.F.R. § 431.221(a)(1). The designation of an authorized representative must be in writing. 42 C.F.R. § 435.923(a)(2). In Weeks v. DHS, ALJ Howells held that a nursing home lacked standing to request a hearing, noting that the authority to file a Medicaid application is broader thatn the authority to appeal the denial of an application.
The Department may require that hearing requests be in writing. 42 C.F.R. § 431.221(a); O.C.G.A. § 49-4-153(b)(1); ABD Manual, Appendix B-1. Although ABD Manual, Appendix B-1 indicates that an oral request for hearing is sufficient, if the request is made orally, the applicant must submit a written request within fifteen days following the original request. Never request a fair hearing orally. We always submit a written request and transmit it so we can prove the date the request was made. If you submit the request by facsimilie, save the confirmation of successful delivery.
The Department must grant a hearing to:
(1) Any individual who requests it because he or she believes the agency has taken an action erroneously, denied his or her claim for eligibility or for covered benefits or services, or issued a determination of an individual’s liability, or has not acted upon the claim with reasonable promptness including, if applicable –
(i) An initial or subsequent decision regarding eligibility;
(ii) A determination of the amount of medical expenses that an individual must incur in order to establish eligibility in accordance with § 435.121(e)(4) or § 435.831 of this chapter; or
(iii) A determination of the amount of premiums and cost sharing charges under subpart A of part 447 of this chapter;
(iv) A change in the amount or type of benefits or services; or
(v) A request for exemption from mandatory enrollment in an Alternative Benefit Plan.
(2) Any resident who requests it because he or she believes a skilled nursing facility or nursing facility has erroneously determined that he or she must be transferred or discharged.
(3) Any individual who requests it because he or she believes the State has made an erroneous determination with regard to the preadmission and annual resident review requirements of section 1919(e)(7) of the Act.
(4) Any MCO, PIHP, or PAHP enrollee who is entitled to a hearing under subpart F of part 438 of this chapter.
(5) Any enrollee in a non-emergency medical transportation PAHP (as that term is defined in § 438.9 of this chapter) who has an action as stated in this subpart.
(6) Any enrollee who is entitled to a hearing under subpart B of part 438 of this chapter.
The Department need not grant a hearing if the sole issue is a federal or State law requiring an automatic change adversely affecting some or all beneficiaries. 42 C.F.R. § 431.220(b).
The Department may not limit or interfere with an individual’s right to request an appeal (42 C.F.R. § 431.221(b)), and must provide requested assistance completing the necessary documents. ABD Manual, Appendix B-1.
In some cases group hearings are permitted. The Department may respond to a series of individual requests for hearing by conducting a single group hearing; May consolidate hearings only in cases in which the sole issue involved is one of Federal or State law or policy; Must follow the policies of this subpart and its own policies governing hearings in all group hearings; and Must permit each person to present his own case or be represented by his authorized representative. 42 C.F.R. § 431.222.
A request for hearing must be made within thirty days after notification of a decision. 42 C.F.R. § 431.221(d) requires the Department to give applicant/recipient’s a reasonable time to appeal, but no longer than 90 days. The date of notification of a decision is not necessarily the date on the hearing notice. Attorneys should have a system in place to track the date notices are received. If the notice was not timely mailed, a system tracking delivery of mail received in the office provides a basis for filing an appeal based on untimely delivery. The official postmark date on a document that was mailed is the date of receipt. O.C.G.A. § 50-13-23.
ABD Manual, Appendix B-1. Requests for a hearing received within thirty days are forwarded to the Office of State Administrative Hearings (OSAH). Requests received more than thirty days after notification are reviewed by the Office of General Counsel to determine whether they will be forwarded.
“Whenever an agency under this paragraph receives a request for a hearing in a contested case, such agency shall forward such request for a hearing to the Office of State Administrative Hearings within a reasonable period of time not to exceed 30 days after receipt of such request, and if the agency fails to do so, the party requesting the hearing may petition the Office of State Administrative Hearings for an order permitting such party to file a request for a hearing directly with the Office of State Administrative Hearings.” O.C.G.A. § 50-13-41(a)(1)
The Department may deny or dismiss a request for hearing if the applicant/beneficiary withdraws the request in writing or the applicant or beneficiary fails to appear at a scheduled hearing without good cause. 42 C.F.R. § 431.223. As one Medicaid beneficiary discovered in L.U. v. Div. (N.J. 2023), the Department can also deny your request for a fair hearing and dismiss your case if you fail to complain about any adverse action from the Department.
After an Applicant requests a hearing, the agency refers the matter to OSAH using OSAH Form 1. Ga. R. & Regs. § 616-1-2-.03. Case initiating documents must be filed with the clerk. Ga. R. & Regs. § 616-1-2-.04(2). An entry of appearance form for attorneys is on the OSAH forms page.
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