The Voice® Newsletter

November 2013 - Vol. 7, Issue 8

The Voice is the e-mail newsletter of The Special Needs Alliance. This installment was written by Special Needs Alliance members Ann Butenhof and Judith Bomster, of Butenhof & Bomster, P.C., in Manchester, New Hampshire. Both Ann and Judith focus their practices on estate planning, special needs planning, elder law, and probate and trust administration. Ann is a Certified Elder Law Attorney and a Fellow of the American College of Trust and Estate Counsel (ACTEC). Judith currently serves on the Ethics Committee of the New Hampshire Bar Association, and was the primary drafts person for New Hampshire’s first pooled special needs trust program for third party trusts. Both Ann and Judith are members of the National Academy of Elder Law Attorneys (NAELA).

When Medicaid or SSI Benefits are Denied or Terminated – Now What?

There are four general categories of governmental benefits available at the federal, state and local levels for individuals with disabilities: (1) cash assistance, which provides individuals with a monthly allotment of cash to be used for basic necessities; (2) medical assistance, which enables individuals to receive certain medical care at little or no cost; (3) food assistance, which provides individuals either with actual food products or a form of credit used to purchase food items; and (4) housing assistance, which may be provided in the form of discounted rent or rental subsidies.

Each benefit program has its own eligibility guidelines, whether financial or otherwise, and each requires the filing of an application. Unfortunately, individuals who satisfy all eligibility criteria may be denied assistance when they first apply, or their benefits may be decreased or terminated at a later date, for improper reasons. The denial, decrease, or termination can be challenged through an appeals process. If the appeal is successful, the benefit will be approved or the decrease or termination reversed. If the appeal is not successful, there may be further levels of appeal. This article provides a brief overview of the appeals procedures for two of these programs, the Medicaid and Supplemental Security Income (SSI) programs.

1. Medicaid Appeals

The Medicaid program is a joint federal and state medical assistance program for certain low-income individuals, including individuals with disabilities. Each state has its own Medicaid plan. Although the federal law requires some uniformity among states’ Medicaid plans, each plan is managed by the state’s own agency, and services and eligibility criteria vary from state to state.

Federal law requires every state Medicaid program to have an appeals procedure. This procedure first requires that whenever the state Medicaid agency makes a decision about eligibility for benefits, a written notice must be sent to the applicant or recipient explaining the decision.

The Medicaid Denial Notice

If an application for Medicaid benefits is denied, the written notice must specify the reason for the denial and provide enough detail to enable the applicant to determine how the decision was reached. For example, if the reason for denial of benefits is that the applicant’s income was too high, the notice should identify the specific income limit used and how the income was calculated. (Income limits vary based upon a number of factors, including which Medicaid program is involved and how many individuals are in the household.)

If you receive such a notice of denial and you cannot understand the notice, perhaps you were not given enough information. Without specifics it is impossible to figure out whether the decision is based upon accurate information or is flawed in some way. The failure to provide specific information is a violation of your rights in and of itself. If you were denied benefits but cannot determine the reason, your appeal should complain not only about the denial itself, but also about the incomplete nature of the notice.

Requesting a Medicaid Hearing

The notice must also provide instructions on how to appeal the decision made by the Medicaid agency. In some states, the first step in the Medicaid appeal process is an administrative hearing, commonly known as a “fair hearing.” Other states, however, provide for a local “evidentiary hearing,” which may then be appealed through the fair hearing process. The notice should tell you how to request a hearing.

You may request a hearing whenever either your application for Medicaid has been denied or your existing Medicaid benefits have been reduced or terminated, and you believe the state Medicaid agency is mistaken in its analysis. You may also be able to request a hearing to dispute other aspects of the decision, such as a decision about how much you must contribute to the cost of your care or the amount of your benefit. The request for a hearing should be filed promptly since there is always a deadline for making such a request. In addition, when existing Medicaid benefits are improperly decreased or terminated, you may want to request that your benefits continue during the appeal process. Such a request, often referred to as a request for “aid paid pending appeal,” must be made within 10 days of the date on the denial or termination/reduction notice. As a cautionary note, however, you may be asked to repay these continued payments if you ultimately lose the appeal.

States may require hearing requests to be in writing, although some states permit requests to be made orally. Employees of the state Medicaid agency often are willing to discuss the issues after an appeal has been filed. Sometimes a supervisor will get involved and resolve the situation, eliminating the need for any type of hearing. If you are concerned about the deadline, however, you may want to file your request in writing and retain proof of the date of your request. If the state loses your request, you may lose your rights unless you can prove you filed your hearing request on time.

In some states, managed care organizations, rather than the state Medicaid agency, make decisions as to whether a particular health care service or medical device will be covered by Medicaid. States which have a Medicaid managed care component sometimes require enrollees to file an appeal through the managed care organization prior to filing a request for a fair hearing. Other states provide individuals with the option of filing an appeal through the managed care organization or the Medicaid fair hearing system.

The Medicaid Hearing

Medicaid hearings are conducted before a hearings officer, who may or may not be an attorney. The hearing officer is required to be impartial even if, as permitted in some states, the hearing officer is an employee of the state Medicaid agency. The hearing itself will be much less formal than a court trial before a judge, and you have the right to represent yourself or to be represented by an advocate or attorney. At the hearing you may offer evidence, call witnesses, and testify yourself, and you also have the right to cross-examine any witnesses called by the state Medicaid agency. The hearing should be recorded.

Further Appeals after the Medicaid Hearing

If you do not win at the fair hearing level, you have the right to appeal the decision further, using your state court system. In some states, you would appeal the hearing decision directly to the highest state court, while other states require intermediate levels of appeal. If the issue raised in your case is significant enough, a federal court action might be advisable. You will need the assistance of an attorney to determine the merits of further appeal and whether to proceed through the state court system or to bring an action in federal court. There are also deadlines for filing in court. Even if you ask the fair hearing officer to reconsider the decision, those deadlines may continue to run, so it is important to consult an attorney as soon as possible.

2. Supplemental Security Income Appeals

Supplemental Security Income (SSI) is a federal cash assistance program. To be eligible for SSI, you must be disabled as defined by the Social Security Administration (SSA), and you also must meet the program’s income and asset guidelines. In most states, eligibility for SSI means automatic eligibility for Medicaid. Applications for SSI must be submitted to the SSA.

The SSI Denial Notice

If your application for SSI is denied either upon initial filing or at a time of redetermination, you will receive a written notice explaining the reasons for denial. As with Medicaid, the notices should provide the grounds for denial so that the denial’s accuracy may be evaluated and a decision made on whether an appeal is warranted.

SSI Appeals Level One: Requesting Reconsideration

The first level of an SSI appeal is to request reconsideration. Requests for reconsideration must be made in writing using the form provided by the SSA. If you receive notice that your SSI benefits have been terminated, you may request continued benefits while the appeal is pending so long as your request for reconsideration is filed within 15 days of the date on the notice. Otherwise, requests for reconsideration must be filed within 60 days of the notice of denial, although an additional 60 days may be granted for good cause.

There are three types of reconsideration: case review, informal conference and formal conference. For each of these options, you are allowed to submit additional evidence, including new medical reports. With a case review, an SSA employee may hear oral evidence, but in most case reviews, SSA will review only the written record before issuing a decision. At an informal conference, you may present witnesses and be represented by an attorney. An informal conference is available in all SSI cases except when SSA denied the application due to medical reasons or when there is disagreement concerning the date an individual became disabled. After the informal conference, an SSA employee prepares a summary of the conference and issues a decision. A formal conference is available only if your existing SSI benefits have been reduced, terminated or suspended. A formal conference generally is preferred because it permits a full hearing, including cross-examination of SSA witnesses, and the hearing is recorded and conducted before an impartial hearing officer from outside the SSA rather than an SSA employee. As with the other types of reconsideration, a written decision is issued.

SSI Appeals Level Two: The Hearing

If SSI benefits are not granted or reinstated at the reconsideration level, the next level of appeal is to request a hearing. A hearing request must be made in writing using the required SSA form and must be made within 60 days from the date of the reconsideration decision. The hearing is conducted in front of an administrative law judge (ALJ), and you may produce witnesses, provide supplemental medical evidence and cross-examine any SSA witnesses. You will always want to be represented by counsel, if possible, at an ALJ hearing.

Further SSI Appeals

If you do not receive a favorable decision at the ALJ hearing level, you may request review by the SSA Appeals Council within 60 days of the hearing decision date. The Appeals Council is not required to consider every case, and usually considers only those cases presenting issues of wider significance. If the Appeals Council accepts the case, it will review the entire written record, plus additional written documentation you provide, but no live testimony will be taken. After review, it will issue a final decision for the SSA. If the Appeals Council refuses to review your case, its refusal is considered the SSA’s final decision. The SSA’s final decision may be appealed to the federal district court within your jurisdiction within 60 days of the decision. If you lose in federal court, you may consider further appeals.

Conclusion: Exercise your rights to appeal!

U.S. law guarantees you the right to appeal decisions about government benefits. To exercise your appeal rights, it is important that you observe the deadlines and other requirements of the appeals process. Even if it may seem hopeless to ask a government agency to reverse its own decision, appeals are often successful. If you need to challenge a decision about Medicaid or SSI, keep the door open by filing on time while you evaluate your options and seek legal advice from attorneys who are familiar with the Medicaid and SSI programs.

About this Newsletter: We hope you find this newsletter useful and informative, but it is not the same as legal counsel. A free newsletter is ultimately worth everything it costs you; you rely on it at your own risk. Good legal advice includes a review of all of the facts of your situation, including many that may at first blush seem to you not to matter. The plan it generates is sensitive to your goals and wishes while taking into account a whole panoply of laws, rules and practices, many not published. That is what The Special Needs Alliance is all about. Contact information for a member in your state may be obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs Alliance online.

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