Transcript Appealing Medicaid Terminations for Nursing Facility Residents

Appealing Katie Beckett
Medicaid Terminations
The Georgia Legal Services Program, Inc
October, 2008
.
Appeal Steps
• DCH makes Request for Additional
Information
• Parents Receive Notice of Termination
of Medicaid
• Parents file Request for Appeal
• Request for Benefits Pending Appeal?
• Long Delay
• Referral to the Office of State
Administrative Hearings – ALJ decision
• Appeal to DCH Commissioner
• Final Administrative Determination
• Appeal to Superior Court
• Appeal to the Georgia Court of Appeals
– discretionary application
• Georgia Supreme Court –
– by certiorari
Laws Governing a Medicaid
Administrative Appeal
• Administrative Procedures Act
– O.C.G.A. § 50-13-19 et. seq.
• DCH Appeal Provisions
– O.C.G.A. § 49- 4 -154
• Office of State Administrative Hearings
Regulations
– http://www.ganet.org/osah/rules/chap616-1-2.pdf
Appeal Process
Parent Files
Appeal

Thru DFCS to
Department of
Community
Health

Appeal to DCH
Commissioner Superior Court


Georgia Supreme
Court
[by certiorari]
Office of State
Administrative
Hearings

Georgia Court of
Appeals
[by application]

Basis for Appeal
• Notice
• Meeting the Level of Care
Inadequate Notice
42 C.F.R. § 431.210 Content of notice.
A notice required under must contain-(a) A statement of what action the State. . . intends to take;
(b) The reasons for the action;
(c) The specific regulations that support, or the change in Federal or
State law that requires, the action;
(d) An explanation of-(1) The individual's right to request an evidentiary hearing
(2) In cases of an action based on a change in law, the
circumstances under which a hearing will be granted; and
(e) An explanation of the circumstances under which Medicaid is
continued if a hearing is requested.
Inadequate Notice cases
• Ortiz v. Eichler – math calculations
• Caldwell v. Wallace – notice to guardian
not resident, inadequate/Who got this
notice?
• Turner v. Ledbetter - inadequate
notices means no proper termination
from program.
Continuing Medicaid
Determination
• 42 C.F.R. § 435.930(b) – State must continue
Medicaid until Recipient found ineligible. State
must make ex parte determination
• Must consider “all possible avenues of eligibility”
Appeals Rules and Procedures
• Office of State Administrative Hearings
OSAH Ch. 6l6-1-2
• 10 days vs. 30 days
• Benefits pending appeal
– Wording on appeal notice vs.
– 90 days to complete administrative process
• 42 C.F.R. § 431.244(f)(1)(ii)
OSAH Rules
• www.ga.net.OSAH.gov
Rule 4 - Filing and Submission of
Documents.
• (1) Papers deemed filed on the
date received by the Clerk or
official postmark date whichever comes first.
Submissions may also be filed by facsimile machine or
other electronic means.
• (2) Office hours of the Clerk are 8:30 a.m. to 4:30
p.m., Monday - Friday, except State legal holidays.
• (3) All papers signed and . . . state the name, address,
telephone number and representative capacity of the
person filing paper.
Rule 5 - Computation of Time.
• (1) When the last day of a deadline is on a day in which the Clerk is
closed, the period runs until the following business day.
• (2) Whenever a party has the right or is required to do some act other
than process upon the party by another party these Rules and not
otherwise specified by law, three days shall be added to that
prescribed period if the notice or paper is served
by mail. – DON”T USE
THIS FOR APPEAL DEADLINES.
• Use certified/provable mailings.
Rule 7 - Burden of Proof
• (d) Any potential or actual recipient of a
public assistance benefit shall bear the
burden unless the case involves an
agency action reducing, suspending, or
terminating a benefit.
Rule 10 – No Ex Parte
Contact with Judge
• No person shall communicate ex parte
with any ALJ relating to the merits of
the proceeding without the knowledge
and consent of all other parties to the
matter until the matter is no longer
pending in any administrative or
judicial forum;
Telephone vs. In person Hearings
• In person hearings allow ALJ to face the
Petitioner
Rule 15- Summary Determination
• (1) Any party may move, based on
supporting affidavits or other probative
evidence, for a summary determination in
its favor upon any of the issues when no
no genuine material fact exists. . . . .
• (2) Any party may file a response to a MSD
or a counter MSD within 20 days after
service of the motion. The response shall
include a short statement of the non
disputed material facts.
• (3) A party opposing the motion must show,
by affidavit or other probative evidence, that
there is a genuine issue of material fact.
• (4) Affidavits are made on personal
knowledge, set forth admissible facts, and
show that the affiant is competent to testify.
Sworn or certified copies of all papers or parts
thereof referred to in an affidavit shall be
attached. Where facts necessary for summary
determination are a matter of expert opinion,
such facts may be resolved on the basis of
uncontroverted affidavits.
Motion for Summary Determination
• (5) The ALJ may set the motion for oral
argument.
• (6) The ALJ may determine that the matter
may better be resolved via an evidentiary
hearing and is inappropriate for resolution by
MSD.
• (7) If all factual issues are decided by
summary determination, no hearing will be
held.
Rules of Evidence
• (1) ALJ shall apply the rules of evidence.
Such evidence which may be admitted includes the
following:
• (a) records, reports, statements, plats, maps, charts,
surveys, studies, analyses or data compilations, in any
form, of public offices or agencies. . . .
• (b) reports, records, statements . . . after testimony
by an expert witness that the witness prepared such
document and that it is correct to the best of the
witness' knowledge, belief and expert opinion;
• (c) . . . .statements contained in published treatises,
periodicals, or pamphlets on medicine, established
as a reliable authority by the testimony or admission
of the witness or by other expert testimony or by
official notice;
• (d) any medical, psychiatric, or psychological
evaluations or . . . of a type routinely submitted to
and relied upon by the Referring Agency in the
normal course of its business; and
• (e) documentary evidence in the form of copies if the
original is not readily available . . . or by agreement of the
parties. . . .
• (2) A copy of each exhibit identified or tendered at the
hearing shall be furnished to the ALJ and the other
parties when first presented at the hearing.
• (3) The ALJ shall give effect to statutory presumptions
and the rules of privilege recognized by law.
• (4) If scientific, technical or other specialized knowledge
may assist the ALJ to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
(5) The ALJ shall have the discretion to . . . require the
submission of direct testimony in written form. . . . The
witness presenting the statement shall swear to or
affirm the statement at the hearing and shall be subject
to full cross-examination during the course of the
hearing.
(6) Whenever oral testimony is excluded, the proponent
may make in offer of proof by means of a brief
statement describing the testimony. Whenever any
documentary or physical evidence or written testimony
sought to be admitted is excluded,
it shall remain a part of the record
as an offer of proof.
(7) All objections shall include a statement of the
legal basis for the objection and shall be made
promptly or deemed waived.
(8) Official notice may be taken of judicially
recognizable facts. Any documents officially
noticed shall be admitted into the record of the
hearing.
(9) The ALJ may take official notice of the
contents of policy and procedure manuals
promulgated by State agencies for which OSAH
conducts hearings.
Rule 19 - Subpoenas and Notices to
Produce.
• (1) The ALJ shall have the authority to
issue subpoenas requiring the attendance
and testimony of witnesses and the
production of objects or documents at
depositions or hearings.
• (2) Requests for subpoenas shall be in
writing and filed at least 5 days prior to the
hearing or deposition at which the
attendance of the witness or the
production of documents is sought.
Rule 28 - Motions for Reconsideration or
Rehearing
• (1) A motion for reconsideration or
rehearing of an Initial or Final Decision
will be considered only if the motion is
filed within 10 days of the entry of the
Initial or Final Decision.
Rule 36 - Alternative Dispute
Resolution Program
• OSAH has established an Alternative Dispute
Resolution ("ADR") Program to provide a speedy,
efficient, and inexpensive resolution of disputes.
The Uniform Rules for Dispute Resolution Programs
adopted by the Georgia Supreme Court that are
applicable to contested civil actions shall be
followed. Copies of the Uniform Rules for Dispute
Resolution
• http://www.state.ga.us/gadr/odr.html
Appeal from OSAH decision
• After a decision from the ALJ
• Request for Review
Rule 37 Request for Agency Records.
Rule 38 Discovery.
• Rule 37 - Requests for access to public records
pertaining to a pending matter shall be governed
by O.C.G.A. § 50-18-70(e). (Open Records
Act)
• Rule 38 - Discovery shall not be available in any
proceeding before an ALJ except to the extent
specifically authorized by a statute or rule.
Nothing in this Rule is intended to limit the
provisions of Article 4 of Chapter 18 of Title 50 or
Rule 37.
Appeals from OSAH
• 30 days to appeal a decision from the
OSAH Administrative Law Judge
• Appeal is to the DCH Commissioner
• Appeal in writing
DCH Commissioner Decision
• Commissioner has 30 days to issue a written
decision affirming, modifying or reversing
the ALJ decision.
• A final decision shall include findings of fact
and conclusions of law, separately stated,
and the effective date of the decision or
order. Findings of fact shall be accompanied
by a concise and explicit statement of the
underlying facts supporting the findings.
Benefits Pending Final Appeal
• Benefits can continue pending final
appeal to commissioner if the applicant
or recipient requests benefits continuing
appeal within 10 days.
• A/R can submit additional evidence or
written argument.
• Commissioner has 30 days
to affirm, modify, or reverse.
Warning
• Commissioner has 30 days to make
decision.
• Commissioner takes the position that if
no decision is issued, the ALJ decision
becomes final.
• If you do not get a final decision from
the commissioner, the appeal must be
filed with 30 days of the decision
becoming final by operation of law.
• O.C.G.A. § 49-4-153(b)(1)
Appeal to Superior Court
• Bound by the record established below
• 30 days to file, in writing
• Fulton County or the County of the
Petitioner
• Serve DCH
• Briefing schedule
• Oral arguments
Appeal to the Georgia
Court of Appeals
• By application to the Georgia
Court of Appeals
• Within 30 days from Final Agency
Decision
• Bound by record below
• Rules at: http://www.gaappeals.us/rules2/
Appeal to Georgia Supreme Court
- by certiorari
• Supreme Court does not have to take
case
• Must show constitutional issues properly
raised or
– Concern, gravity, importance to public
policy
We hope this information has
been helpful.
This is general information that is not
intended to be individual legal advice.
We urge you to obtain counsel
immediately to protect your rights. You
can lose rights by delay.
The Georgia Advocacy Office
FOR MORE INFORMATION OR TO
FIND LEGAL HELP:
www.legalaid-ga.org
www.glsp.org