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Common Mistakes in the Fair Hearing Process

Join us for episode 8 of Industry Insights, a new video series where we discuss the latest from the elder law community!

In this installment, we dive back into the fair hearing process with our Corporate Counsel Scott Engstrom, J.D. to discuss some of the common missteps we see in the handling of fair hearings. Scott details five situations in which attorneys may encounter preventable challenges related to documentation, scope, procedural objections, adherence to deadlines, and more.

Amy: Hello, I’m Amy Beacham, Communications Director for Krause Financial Services. Welcome to Industry Insights. In this series, we aim to discuss news, updates, and hot discussion topics that affect the elder law space and that are relevant to you as an elder law attorney. Working on hundreds of cases per month and working with attorneys from across the country, we see trends that affect this area of planning, and we want to share some of those insights with you today. Today, we have our Corporate Counsel, Scott Engstrom, here to discuss common mistakes we see when attorneys are going through the fair hearing process. Scott comes from a background in litigation and has a wealth of knowledge to share on this subject. Welcome, Scott.

Scott: Thanks for having me, Amy.

Amy: So, you put together a list of five common fair hearing mistakes that you see attorneys going through when they’re going through the fair hearing process. So, the first mistake, you say, attorneys often don’t request a copy of the caseworker’s file. Can you talk about that and why it’s important?

Scott: It’s very important because a lot of times, people who do a lot of Medicaid cases–attorneys I’m speaking about–they have developed a relationship with the caseworker, and there’s a level of trust there and it’s good to foster those relationships. So, you would typically expect they’re turning over everything that your client would be entitled to. But that’s not always the case. And in fact, people who are new to working with cases where you would be against the state or the government, you’re surprised by the fact that you’re not getting everything turned over necessarily. So, that’s why it’s good to make an express request for discovery in the case even if you have a good relationship with the caseworker. You can use a more formal letter just formally requesting everything you’re entitled to. And they are entitled to it under the code of federal regulations–42 CFR 431 Section 242. It’s important to make sure that you’re reviewing the file, whether that’s getting an electronic copy sent to you, whether that’s going and reviewing and taking notes. I do recommend that you make a copy of the file even if you’re charged for making the copies. It’s important to make sure that your own file is complete and that you’re able to zealously advocate for your client.

Amy: Yes and do your due diligence there. Perfect. Okay. Now, mistake number two. Sometimes during the fair hearing process, attorneys allow the Medicaid office to expand the scope of the hearing beyond the original denial. Can you expand on that?

Scott: Yeah, so that’s a scenario where you might not notice it on the first question they’re asking. You might start getting an inkling on that second question. And then by the third question, it’s almost too late. So, before the cat’s out of the bag or before they start getting into things that an administrative law judge might start getting curious about and then really not be willing to reign the scope of the proceedings back, it is important to get ahead of it because your client has a due process right to be put on notice of the reason for the denial or reason for the adverse action. So, when the state starts veering off–and this is going beyond bringing in relevant information that is a little bit more tangential–it’s when you’re starting to go farther afield and go beyond that actual reason brought up in the denial notice, and they start bringing in information that would relate to another reason that they might want to deny the application that wasn’t raised in the denial notice. That’s where you need to stop and make an objection. You can perhaps ask for an adjournment and request an opportunity to brief on a due process violation because you weren’t notified that, “Hey, we’re going outside the scope of what was raised in the denial notice. I need an opportunity to brief it, review it, analyze the case, discuss with my client, make sure all the discovery was turned over on this second issue, and also have the opportunity to make a more formal objection to the manner in which the state proceeded.”

Amy: So, that’s something they just need to constantly be on the lookout for during any fair hearing.

Scott: Yep. Vigilance is key.

Amy: Okay. Now, the next mistake that you commonly see… now, some attorneys just don’t raise any procedural objections in general. Can you talk about that?

Scott: Yeah. So, and this is hard because administrative hearings are much more limited in scope in terms of how the rules of evidence apply. Relevancy is going to kind of go out the window; hearsay is not going to be much of an issue. But you do need to make procedural objections when the state is not following proper procedure. Say you’ve made a request for discovery and you’re getting it two hours before the hearing, raise that. Ask for an adjournment. Make a formal objection to it and perhaps raise it in a brief at a later time because, quite frankly, administrative law judges are not going to like it if the state is not turning things over. There’s the Supreme Court case, Goldberg vs. Kelly. It’s a key case that explains that applicants and recipients of benefits do have due process rights as they relate to a fair hearing. I would recommend that everyone take a chance to review that case. The citation is 397 US 254. It’s a 1970 case–again, the United States Supreme Court. So, it’s really important to make those kinds of bland, ordinary objections that relate to processing because that’s going to hold the state accountable. It’s going to establish a relationship with the caseworker or supervisor that they’re going to be able to carry over into subsequent cases. Knowing that you’re on it, they need to conduct themselves accordingly, turn over the right information, and follow the right procedures because otherwise, you are going to call them on it.

Amy: Right. So, it also sounds like just understanding the process and what all the steps are is also very important here.

Scott: Very much so. And we do have a Fair Hearing Guide that I’ve developed. It’s kind of a good way to centralize some information in your file, maintain organization, which we’ll get into in a little bit. But that is something that can be very useful in helping proceed through the fair hearing process.

Amy: Awesome. Perfect. Okay, mistake number four… now, sometimes you see attorneys don’t request that the state truly specify their reason for the denial. Can you explain that?

Scott: Yeah, so if I’m an attorney and I get a denial, my first thought is, “Oh my goodness. I helped my client with this. I’ve been working with them on this financial plan. I’ve been helping them get their affairs in order so that they can qualify for Medicaid for these benefits that they should be entitled to. And they’re not entitled to them based on what the state is saying.” So, your first step is to look at it and see where they think this case goes wrong. And a lot of times what you will see are these blanket citations to the administrative code. And it’ll just be a broad section where it refers to basically the entirety of the Medicaid section of the code, or the entirety of the Medicaid manual. And that is not sufficient specificity to satisfy any sort of notice requirement because they’re putting you on notice that you’re denied based on some reason in the Medicaid manual… I don’t know how you expect somebody to prepare a defense to that or put forth your case. So, under federal law, and this is the code of federal regulations–I always recommend that attorneys look at their state counterparts, also look at the administrative procedures act in your state–but, under federal law, it’s 42 CFR 431 sub. 210, so there’s another subsection in there, subsection B that says a clear statement for the specific reasons supporting the intended action. So, that’s a specific reason for the denial or for the adverse action. And then subsection C, following, the specific regulations that support or change in federal law or state law that requires the action. Clearly, a blanket citation to the Medicaid manually or clearly, a blanket citation to just the administrative code at large is not going to satisfy that requirement. And oftentimes, these are just standard, boilerplate notices, and they’re not really going into it, and they’re not thinking through it critically. Put them through their paces. Make sure that they’re clearly engaging with the case because oftentimes, if you raise this issue with them, they’re going to go back, look at the relevant subsection, and oftentimes they’ll realize they made a mistake, and you might even get a reversal well in advance of the fair hearing. So, make sure you put them through paces, grapple with their source, grapple with what they’re actually saying, and make sure that they are firm in their position because if they start waffling on their position, you might get them to fold in advance of the hearing.

Amy: And I think any attorney would want that result.

Scott: Yes, absolutely. It’s less stress for you, less stress for your client.

Amy: Wonderful. Okay, the final mistake that we’re going to talk about today… now, you find that some attorneys don’t monitor deadlines closely enough or they don’t stay on top of their client closely enough to meet those deadlines when it comes to a denial. Can you talk about that?

Scott: And I would say it’s more the latter–making sure that their clients are apprised of the deadline so that they’re getting the relevant information. By and large, the attorneys we work with are very organized, are on top of deadlines. But deadlines can kill you, so it’s always important to have a centralized calendar where you can not just put in your court dates, your client meetings, but also your filing deadlines–I often put a tickler out a couple of weeks in advance and then closer to the actual deadline so that I’m working on it. And that helps me avoid procrastination. I’m working on things constantly and advancing forward at a reasonable pace. And that way, I’m not pressed when I get to a deadline. So, just a bride nudge and reminder on those general organizational things, but also making sure that your clients stay on top of those deadlines.

Amy: Okay, great. Well, thank you very much, Scott.

Scott: Thanks for having me.

Amy: For more information on how to navigate the fair hearing process, head to the Attorney Access dashboard on our website. You’ll find Scott’s recent fair hearing webinar along with the white paper he wrote on that topic that includes the fair hearing checklist he just mentioned. For any other questions, be sure to contact our office at 855-552-5893. Thanks for watching.


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