Transcript Due Process Rights in Medicaid Waiver Determinations

Due Process
Rights for DD
Medicaid Waiver
Determinations
Jodi Siegel
Southern Legal Counsel
November 14, 2008
Federal Fair Hearing
Rights

Medicaid Waiver recipients have the
same due process rights as any
recipient in state Medicaid program:
notice and opportunity to be heard.

42 U.S.C. § 1396a(a)(3) - due process
required when state takes action to
reduce or deny Medicaid benefits.

42 C.F.R. § 431.200, et seq. requires
state Medicaid programs to provide a
recipient of Medicaid services a fair
hearing when state is taking an
action to reduce or deny benefits.
Notice

Notice must detail the reasons for the
proposed termination and explain the
recipient's hearing rights, including
the right to a pre-termination
hearing. Goldberg v. Kelly, 397 U.S.
254, 268 (1970).

Notice requirements apply even when
a proposal to terminate Medicaid is
due to a change in state law. 42
C.F.R § 431.219(d)(2).
Contents of notice

(a) a statement of the action the State intends
to take;

(b) the reasons for the intended action;

(c) the specific regulations that support, or the
change in federal or state law that requires, the
action;

(d) an explanation of the individual's right to
request an evidentiary hearing, or in cases of
action based on a change in law, the
circumstances under which a hearing will be
granted; and

(e) the circumstances under which assistance is
continued if a hearing is requested.
42 C.F.R. § 431.210.
Timing to request
hearing

Must request hearing within 30 days
not to waive the right to a hearing

42 CFR § 431.231 - if the recipient
requests a hearing within 10 days after
the date of the action, the services will
continue until a hearing decision is
rendered.
Florida due process
rights

§393.125(a), Fla. Stat. – any DS applicant or
client, or parent, guardian, guardian
advocate or authorized representative, who
has any substantial interest determined by
the agency, has the right to request an
administrative hearing pursuant to 120.569
or 120.57.

§393.125(b) – notice of right to hearing shall
be given verbally and in writing (in language
of client and in English) at same time as APD
gives notice of action.

§393.125(c) - request for hearing made to
APD within 30 days of receipt of notice.
Florida APA applies

JM v Florida APD, 938 So2d 535
(Fla. 1 st DCA 2006) - Florida
Administrative Procedures Act
applies in cases of Medicaid
reduction/denial of services for
persons with developmental
disabilities.
General Requirements
for Petition

how the petitioner's substantial interests will
be affected by the agency determination;

statement of all disputed issues of material
fact.

concise statement of the ultimate facts alleged,
including the specific facts the petitioner
contends warrant reversal or modification of
the agency's proposed action;

statement of the specific rules or statutes the
petitioner contends require reversal or
modification of the agency's proposed action,
including an explanation of how the alleged
facts relate to the specific rules or statutes; and

statement of the relief sought by the petitioner,
stating precisely the action petitioner wishes
the agency to take with respect to the agency's
proposed action.
Tier Petition:
adverse interests

Petitioner’s substantial interests will
be adversely affected by the intended
action of the Agency for Persons with
Disabilities (APD) in its intended
assignment of Petitioner to Tier ____.

May also state specifically the effect
of the reduced services.
Tier Petition - disputed
issues of material fact

Whether APD’s placement of Petitioner in
Tier ___ was made in error.

Whether Petitioner ’s health and welfare will
be placed in danger by the tier assignment.

Whether petitioner ’s current services are
medically necessary.

Whether the current services are available
through other sources.

Whether Petitioner ’s characteristics, and
physical, medical and behavioral condition
indicate that APD’s placement of Petitioner
in Tier ___ is in error.

Whether APD used operational guidelines
and other processes that did not comply with
the requirements of § 393.0661, Fla. Stat. in
making Petitioner ’s assignment to Tier ___.
Tier Petition:
factual allegations

Petitioner has been diagnosed with ___

For ___ year(s), Petitioner has received the following
services: ___. All of these services were judged medically
necessary by APD and its agents. Petitioner ’s condition
remains unchanged, or worse, and continues to be in need of
these services.

The annual cost of services was $___. The assignment to Tier
___ means that Petitioner will have a limit of $___ on the
medically necessary services currently provided, which will
require Petitioner reduce or terminate services at the
expense of his/her health and safety.

The reduction or termination of services will cause his/her
condition to worsen, potentially place Petitioner in danger to
himself or those around him/her and puts him/her at risk for
institutional placement.

The reduction or termination of services is not justified by
any medical finding made by APD. APD did not consult
Petitioner ’s treatment professionals, physicians and others
prior to making the tier assignment.

APD failed to conduct an assessment prior to placing
Petitioner in Tier ___ to determine if there was a change in
Petitioner ’s condition since the time Petitioner was first
assessed.
Tier petition:
applicable law

§ 393.0661, Fla. Stat.

Fla. Admin. Code R. 65G4.0021 – 4.0024.
Tier Petition:
relief requested

E.g .: The APD action placing
petitioner in Tier 3 should be
reversed and a finding made that
Petitioner meets the criteria for
placement in Tier 2.
Is Petitioner entitled
to a formal hearing?

APD is not required to grant hearings or continue
benefits "if the sole issue is a Federal or State law
requiring an automatic change adversely affecting
some or all recipients." 42 C.F.R. §§ 431.220(b)
(emphasis added). See also 42 C.F.R. § 431.231(b).

I.e ., only individuals who raise issues other than

APD might dismiss petition if it determines that
change in services or tier placement applies to
everyone across the board due to a change in
statute. E.g., Tier 4 has limited services and
petition seeks service not available in that tier.

Application of this principle needs to be carefully
watched to prevent erroneous interpretations as to
APD’s interpretation of the kind of action made
pursuant to statute.
the change in law itself, such as "factual questions
in the application of that change" to their
particular case, are entitled to a hearing and
continued benefits. Budnicki v. Beal, 450 F. Supp.
546, 552 (E.D. Pa. 1978).
The Hearing

Witnesses

Waiver Support Coordinator

Client

Family

Service providers

Possible expert witnesses

Client’s treating physician

Expert on particular disability
Medical assessment at
agency expense

42 CFR § 431.240 (b) – If hearing
involves medical issues such as those
concerning a diagnosis, an examining
physician's report, or a medical review
team's decision, and if the hearing officer
considers it necessary to have a medical
assessment other than that of the
individual involved in making the
original decision, such a medical
assessment must be obtained at agency
expense and made part of the record.
Burden of Proof

Findings of fact shall be based upon a
preponderance of the evidence.

For reduction of benefits, APD has
burden of proof. Fla. Admin. Code R. 652.060(1); Kennedy v. Agency for Health
Care Administration, 954 So. 2d 710, 711
(Fla.1st DCA 2007), citing C.F. v. Dep’t of
Children & Families, 934 So. 2d 1, 6 (Fla.
3d DCA. 2005).

For denials of applications for new
services, Petitioner has burden of proof.
Ethical Considerations

What are the issues in representing a
client with no cognitive ability to
make decisions?

WHO REPRESENTS THE CLIENT
 WSC?
 PARENT?
 CLIENT?
Bar Rules
4-1 CLIENT-LAWYER RELATIONSHIP
RULE 4-1.14 CLIENT UNDER A DISABILITY
(a) Maintenance of Normal Relationship. When
a client's ability to make adequately considered
decisions in connection with the representation
is impaired, whether because of minority,
mental disability, or for some other reason, the
lawyer shall, as far as reasonably possible,
maintain a normal client-lawyer relationship
with the client.
(b) Appointment of Guardian. A lawyer may
seek the appointment of a guardian or take
other protective action with respect to a client
only when the lawyer reasonably believes that
the client cannot adequately act in the client's
own interest.
Comments to Bar Rule

The normal client-lawyer relationship
is based on the assumption that the
client, when properly advised and
assisted, is capable of making
decisions about important matters.

The law recognizes intermediate
degrees of competence.

A client lacking legal competence
often has the ability to understand,
deliberate upon, and reach
conclusions about matters affecting
the client's own well-being.
More Comments
If a legal representative has already
been appointed for the client, the
lawyer should ordinarily look to the
representative for decisions on behalf
of the client.
 If a legal representative has not been
appointed, the lawyer should see to
such an appointment where it would
serve the client's best interests.
 Rules of procedure in litigation
generally provide that minors or
persons suffering mental disability
shall be represented by a guardian or
next friend if they do not have a
general guardian.

Appointment of
guardian advocate

§ 393.12(2), Fla. Stat. – probate court
may appoint a guardian advocate,
without an adjudication of incapacity,
for a person with developmental
disabilities, if the person lacks the
capacity to do some, but not all, of the
tasks necessary to care for his/her
person, property or estate, or if
person has voluntarily petitioned for
appointment of guardian advocate.
Resources

APD website


AHCA website


http://www.apd.myflorida.com
http://www.fdhc.state.fl.us
Advocacy Center for Persons With
Disabilities, Inc. website

http://www.advocacycenter.org

http://www.advocacycenter.org/documents/
Administrative_Hearing_Manual.pdf