Challenging Medicaid Denials
Nancy E. Wright, Gainesville FL www.newrightlaw.com
GAL Video Training 2015
Fair Hearings
1. When Does Fair Hearing Apply?
Denial of eligibility
Denial, reduction or termination of Medicaid benefits (State Plan or Waiver)
MCO’s failure to cover or pay an adverse decision on in-plan grievance
Nursing home decisions to transfer or discharge and adverse decisions on
pre-admission, annual review or MCO grievance
Failure to act with reasonable promptness
2. Florida Fair Hearing Statutes
Administrative Procedures Act, Chapter 120
§120.569 Decisions which affect substantial interests
§120.57 Formal and informal hearing procedures
§409.285 Opportunity for hearing at DCF for denial, reduction or
termination of public assistance, or if application is not acted upon
within a reasonable time.
Chapter 90, Fla. Stat. Evidence Code (with some minor exceptions)
3. Fair Hearing Rules
DCF Fair Hearing Rules: F.A.C. Rules 65-2.042 – 65-2.066
Uniform Rules of Procedure F.A.C. Chapter 28-106, Decisions Determining
Substantial Interests
Florida Rules of Civil Procedure
Continuation of Benefits
4. Continuation of Benefits
ASK and DON’T MISS THE DEADLINE
Services continue pending hearing
42 CFR §431.230 If the agency mails the required notice, and the
recipient requests a hearing before the date of action, the agency
may not terminate or reduce services until a decision is rendered
after the hearing (with limited exceptions.)
42 C.F.R. §431.321 Services must be reinstated if the agency action is
taken without proper advance notification and the recipient requests a
hearing.
5. Federal Medicaid Act
Continuation of Benefits for MCOs:
42 CFR 438.420 Continuation of benefits while MCO appeal is pending IF
Timely request for fair hearing (filed within 10 days of MCO notice of
action)
Termination, suspension, or reduction of a previously authorized
course of treatment
Services were ordered by an authorized provider
Original period covered by the original authorization has not expired;
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and
The enrollee requests extension of benefits.
6. Continued Services Pending Hearing
ASK FOR HEARING WITHIN 10 DAYS OF THE DATE ON THE NOTICE
Or before the day the action is supposed to take place
If authorization is going to expire, ask for a Fair Hearing and request
continued services
Recovery threat is minimal
Initiating a Fair Hearing
7. HEARING REQUEST
Can be oral, but should follow up with written
Suggested contents:
Date and contact information of Petitioner and authorized
representative
Copy of the notice being challenged and date it was received by the
Petitioner
Statement that fair hearing is requested and (if appropriate) you want
services to continue
Brief statement of why you think the notice was wrong
8. What to Expect
Formality varies
Hearing Officers –
Not required to have law degree
Located all over state – calls routed
Filing by email/mail/fax – VERIFY
No online docket
Phone hearings assumed
Must request in-person hearing
No need for notary for phone witnesses
Fair Hearing Issues
9. What are we arguing about?
a. Problems with Notice, or
Putting the “fair” in “Fair Hearing”
Did the notice give individualized reasons for the decision?
Did the notice tell you the rule relied upon? Or did they rely on an
“unadopted rule”?
Has this issue been heard before?
Were services terminated or reduced without an opportunity for
hearing?
b. Corrective Action
The agency must promptly make corrective payments, retroactive to
the date an incorrect action was taken, and if appropriate,
provide for admission or readmission of an individual to a facility
if –
(a) The hearing decision is favorable to the applicant or recipient; or
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(b) The agency decides in the applicant’s or recipient’s favor before
the hearing.
FAC Rule 65-2.066(6) allows a HO to authorize retroactive corrective
action
c. Problems with Delays
Medicaid Act requires assistance to be furnished with reasonable
promptness. 42 USC §1396a(a)(8)
Administrative delay does not excuse responsibility for promptness.
42 CFR §435.930(a)
For MCOs, standard service authorizations require a decision within
14 days of request. 42 CFR §438.210(d)(1)
Corrective action is available for unreasonable delays. See Kurnik v
HRS, 661 So.2d 914 (Fla. 1st DCA 1995)
d. Problems with Medical Necessity
Applies to all services, in all Medicaid Programs
“Medical necessity” is defined by Florida Administrative Code Rule
59G-1.010(166)
Protect life, prevent illness or disability, alleviate pain
Consistent with diagnosis and not in excess of need
Not experimental
No less costly treatment
Not primarily for convenience of client or caregiver
Remember EPSDT
Medical necessity still applies, but:
Services are available to correct or ameliorate an illness or
condition, even if not available to adults
Medical assistance must be sufficient to reasonably achieve its
purpose.
Establishing Medical Necessity
Read the relevant Medicaid Handbooks
All have been adopted as rules
All are found at the AHCA website
Use testimony (NOT just records) of an appropriate health care
professional
Introduce evidence that paints the picture of the client’s condition and
the impact of lack of treatment
Discovery
10. Informal Discovery
Public Records Request (Chapter 119, Fla. Stat.)
Online Provider Handbooks & Agency/Peer Reviewer Websites
CMS (Centers for Medicare & Medicaid Services) policy memos and letters
Request information from the provider
Survey other attorneys
Interview potential witnesses
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Ethics Opinion 09-1 on Contact with Agency Staff
11. Formal Discovery Requests
DCF Rules state that the Petitioner “shall have adequate opportunity to
examine the contents of the case file and all documents and records to
be used … at the hearing….” FAC Rule 65-2.057
Use Request for Production to get case file, and policies or guidelines used
in making the decision, any correspondence
Use Interrogatories and Requests for Admission to narrow issues at hearing
12. Discovery Rules
May need Motion to Shorten Time or Continue Hearing
FL Rules of Civil Procedure apply to extent not inconsistent with APA
HO may issue orders to effectuate discovery and prevent delay. FAC Rule
65-2.057(6)
Negotiation
13. Negotiation and Ethical Obligations
Maintaining control over what you get
Ethical obligations under
Rules of Professional Conduct
If you are an attorney, you must work through attorney for AHCA and for
MCO, unless given permission by opposing counsel. Ethics Opinion
09-1 and Rule 4-4.2 Communication with Person Represented by
Counsel
No settlement without approval of parent/guardian. Rule 4-1.2 Objectives
and Scope of Representation
Treat the child with attention and respect, and as much as possible,
include him or her in communication. Rule 4-1.14 Client Under
Disability
14. Negotiation strategies
Assume unintentional error
Gather as many facts as possible before you attempt to negotiate
Avoid misstatement, overstatement, false statement
Ask if more documentation would help resolve
Do not ignore federal legal issues that might not be addressed in a fair
hearing.
Remember Olmstead v. L.C, 527 U.S. 582 (1999)
Unjustified institutionalization of individuals with disabilities constitutes
illegal discrimination on the basis of disability
But the right to receive services in the least restrictive environment is
not unqualified
The failure of a state agency to place an individual with disabilities in a
community-based setting when it is medically appropriate and the
individual so desires is a violation of Title II of the ADA unless
the state can prove that providing a community-based setting for
the individual would be a “‘fundamental alteration” of the
state’s program
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Hearing Process
15. Motion Practice
Requires statement that you conferred with opposing counsel
Types of Motions
For Continuance (good cause; HO must approve)
For Official Recognition (Judicial Review)
Motion to Dismiss (no statement required)
For Summary Final Order
Other (don’t be afraid to ask)
16. Pre-Hearing Compliance
Pre-Hearing Order
Varies with Hearing Officer
Pre-Hearing Stipulation
Doesn’t require a Pre-Hearing Order
Useful to streamline facts, legal issues, and authenticate documents
Submission of Evidence & Witness List
7 days in advance of hearing
17. Evidence
Chapter 90, Evidence Code, applies
Hearsay exception
Admissible to supplement or explain
Decision can’t be based solely on hearsay
OBJECT TO HEARSAY EVIDENCE ON RECORD
EXPLAIN HEARSAY EXCEPTIONS
PROFFER ANY EVIDENCE DISALLOWED
18. Post-Hearing
Submission of Proposed Final Order
DOAH website for samples
Order (free) audio recording from DCF
Managed Care Challenges
19. Managing Managed Care
A New Frontier
Definitions
Complaint: Lowest level of challenge, prior to formal grievance. Grievance:
Unhappy with anything other than an “action.”
Action: Any denial, limitation, reduction, suspension or termination of
service, denial of payment, of failure to act in a timely manner
Appeal: Request for review of an action
Notice of action: An MCO letter to the enrollee that must include intended
action, reasons for the action, how to appeal or ask for Fair Hearing,
how to get expedited resolution, and how to request continued
benefits
Notice of resolution: MCO decision after grievance/appeal process
19. Options for MCO Challenge
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APPEAL
Review in-house, by different person
Can ask for case file
Can submit evidence
No “hearing” required
Can ask for expedited review
FAIR HEARING
Requested through DCF Office of Appeal Hearings
Evidentiary
Phone or in-person
20. MCO is Party to Fair Hearing
Required by federal law
Required by contract with AHCA
Discovery and evidentiary requirements for party
Motion to add indispensible party
21. MCO Decision Issues
Poor care planning implementation
Inexperience with home and community-based services (including for
children)
Inadequate notices
Delays in responses to service requests
Inadequate provider network
Confusion about the controlling law
22. What is the LAW for MCOs?
FEDERAL
Medicaid Act (42 USC §1396) including EPSDT
42 CFR Part 438, Managed Care
Managed Care Waiver Application with CMS
Americans with Disabilities Act and Olmstead v. LC, 527 US 581 (1999)
integration mandate
STATE
Chapter 409, Parts III and IV
Managed Care §409.961 to 409.985
Contract between MCO and AHCA
Mandated by statute and exempted from APA
“Model” contracts for both LTC and MMA
On AHCA website
Reviewed and amended quarterly
MMA MCOs are supposed to comply with SP Medicaid Handbooks
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