Correcting the Damage Done Before You Got the Medicaid File

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Correcting the Damage Done Before You Got the Medicaid File

Aug 26th, 2022

Administrative Law, Cases, Evidence, Medicaid, Nursing Homes, Public Benefits

Taking over a case started by someone else is never my preference. It’s far easier to do something correctly the first time. So what do you do when you’re brought in to fix a case. You pray!

First, if someone hires you and no decision has been made, review the file. If there is an eligibility problem, withdraw the application. That’s what we did several years ago when a family, on the advice of an attorney who doesn’t practice law, advised a family to simply not disclose a large transfer of resources. We were able to fix the problem, reapply and get an approval.

If a case is denied, file an appeal and a new application. Don’t rely on one or the other. Do both.

If a case is denied for failure to provide verification, request additional time to provide verification. And file a new application.

But what happens when someone else tries to help with an application and things go south. Now the applicant wants you to fix it. That happened in a case we previously reported on April 28, 2022. In that case, a nursing home resident with advanced dementia was denied eligibility because she couldn’t liquidate a life insurance policy with excess cash value. The excess was $184. Unfortunately, the nursing home bill went unpaid from January, 2021 through May, 2022. Following the first fair hearing, the nursing home was paid beginning October 28, 2021, but remained unpaid from January 2021 through that date. We were brought in to “try to save the day. Here’s what happened after the Conservator hired us to “try” to fix the case. As noted at the end of this post, no decision has been made so as of this time, we don’t know whether our efforts were successful. What we can tell you is that it was time consuming. We’ve redacted names and other identifying documentation from the links below.

First, the case was remanded by the ALJ to Tenncare with the following instructions:

This appeal is, therefore, decided in favor of Petitioner and is GRANTED, in part, and REMANDED to TennCare for further processing pursuant to the findings of this order. TennCare SHALL review Petitioner’s entire record and reconsider her eligibility for LTSS Institutional Medicaid benefits, excluding the value of the life insurance policy as of October 28, 2021. Should TennCare require additional information, TennCare shall request such information from Petitioner, Mr. [REDACTED], and Ms. [REDACTED], in writing, and said individuals are strongly encouraged to cooperate with TennCare and timely provide any requested information pursuant to the instructions in any request. TennCare SHALL provide Petitioner, Mr. [REDACTED], and Ms. [REDACTED] with written notice of its determination, and full appeal rights for Petitioner shall attach to said determination. Should Petitioner be found eligible for LTSS Institutional Medicaid benefits, TennCare SHALL grant said benefits with an effective date in compliance with applicable law. Nothing in this order shall affect Petitioner’s current QMB coverage, nor shall it preclude Petitioner from submitting a new application for LTSS Institutional Medicaid benefits.

After the case went back to TennCare for the “review Petitioner’s entire record” so TennCare could “reconsider her eligibility for LTSS Institutional Medicaid benefits,” TennCare simply issued a notice adopting the October 28, 2021 date and implemented that decision, although under TennCare’s rules, the effective date of eligibility was October 1, 2021. By all appearances, on remand, TennCare did nothing.

I was brought into the case and filed a detailed request for a fair hearing alleging, among other matters, that the post-remand decision failed to take into account the applicant’s severe dementia, lack of any agent with authority to assist in liquidating resources, the continuing nature of a conservatorship proceeding and alleging eligibility should relate back to January 1, 2021. TennCare acknowledged receipt of the hearing request, but in a June 6th notice, stated the hearing would be by telephone. Once again, I requested an in-person hearing where I could present witnesses and documentary evidence. In our office, we like to look opposing witnesses in the eye and we value body language when evaluating credibility.

On July 19, 2022, TennCare sent a detailed notice of hearing (with attachments, totalling 392 Bates-stamped pages) outlining its reasons for opposing the applicant’s position. By seperate notice, on July 19, TennCare also acknowledged the hearing would be in-person. I responded in detail to TennCare’s notice of hearing (with attachments totalling 461 Bates-stamped pages), outlining the applicant’s position. Meanwhile, I added a civil rights claim since the applicant had severe dementia and TennCare failed to take her mental impairment into account when denying eligibility. TennCare’s Civil Rights division acknowledged receipt of the claim, but as of this post has taken no action.

While preparing for the hearing, I worked with the applicant’s doctor to prepare an affidavit that could be used at the hearing. T.C.A. § 4-5-313 permits testimony by affidavit so long as proper notice is given to the opposing party. I then gave notice of my intent to offer the affidavit as required in Tennessee’s Administrative Code. TennCare made no response. Out of an abundance of caution, I filed a contingent motion for continuance if TennCare had any objection to use of the affidavit. Shortly thereafter, the ALJ scheduled a telephone conference on that motion. TennCare voiced its objection based on relevance since it was not contending the applicant had legal capacity at any time relevant to the proceeding – back to January, 2021. So the hearing proceeded on schedule, but with the Judge requiring TennCare to file any dispositive motions prior to trial, giving me a chance to respond.

TennCare filed three motions:

My responses are below:

My reasons for filing one consolidated statement of facts were two-fold. First, I wanted to tell the entire story of the case from beginning to end, rather than pulling out the relevant facts in response to each motion. Second, I want to avoid redundancy. Judges may be interested in reading about the case once, but in my experience, they don’t want to read and then re-read the same material again. Some redundancy cannot be helped, but keep it to a minimum. For Georgia cases, thi is consistent with Rule 616-1-2-.15(1)(a) which requires “a separate, concise, and numbered statement of each of the material facts as to which the moving party contends there is no genuine issue for determination.”

The case proceeded to trial on August 2, 2022, where the Honorable Christie R. Taylor presided. Prior to the hearing, Judge Taylor denied TennCare’s Motion to Dismiss on Failure to State a Claim and denied TennCare’s Motion Based on Res Judicata. She took the remaiing motion under advisement. Thus began what turned into a hearing that lasted almost five hours. Further, the Judge made it clear I would not be allowed to argue the prior decision was wrongly decided. So I had to argue TennCare failed to follow instructions Judge Ren gave TennCare in the remand order. While I disagree with the Judge’s decision since it was the same case in front of the same court following remand, arguing with a Judge is almost always a bad idea.

TennCare was allowed to go first. TennCare’s witness had not worked the case. She eventually testified that she had never worked a case. On cross-examination she relied on notes which were not admitted on hearsay grounds. However, she was allowed to use the notes and after reviewing them, she could not state that, on remand, TennCare reviewed the applicant’s entire record. Further, she could not state whether TennCare considered its policy on mental impairment, Tennessee Policy Manual Number 110.060(3)(a) & (b) during its review. In essense, she could not state whether TennCare had, as Judge Ren ordered following the first fair hearing “grant[ed] said benefits with an effective date in compliance with applicable law.” (Emphasis added).

The applicant offered the doctor’s affidavit as part of her case. TennCare objected on relevance since it conceeded the applicant lacked capacity at all relevant times dating back to January 2021. However, the applicant argued the affidavit was relevant to show the extent of her lack of legal and contractual capacity. The affidavit was admitted for that purpose. The appliant considered this significant because 20 C.F.R.§ 416.1201(a)(1) provides “If a property right cannot be liquidated, the property will not be considered a resource of the individual (or spouse).” If the applicant lacked contractual capacity and had no agent authorized to liquidate her resources, then 20 C.F.R.§ 416.1201(a)(1) and she was eligible from the date of the initial application until the Chancery Court empowered her conservator to liquidate and spend-down the excess resources.

Evidence was submitted at the hearing that TennCare “links up” overlapping applications. For example, if a new application is filed before an existing application is denied and the new application is granted, eligibility relates back to the date of the original application. Also, since 1115 waivers only exempt retroactive coverage to the extent other program requirements are expressly waived (42 § 431.420(a)(1)), the applicant argued TennCare’s 1115 waiver did not prevent retroactive coverage in this case because the precise working in it’s waiver is “To enable the state not to extend eligibility prior to the date that an application for assistance is made.” In this case, the applicant had an application pending and undenied at the time she filed the July 21, 2021 application which was the subject of the hearing. The applicant argued TennCare’s poor drafting should be construed against it. For similar reasons, eligibility could relate back to January, 2021. Finally, in closing the applicant pointed out there was no one with legal authority to act as the applicant’s representative and receive notices when the original January 2021 application was denied in April (and another overlapping application was filed before the January application was denied).

On August 30, 2022, we received an Initial Decision, granting in part and deny in part the relief requested. On September 5, 2022, we filed a Petition for Appeal to the agency.

Practice Notes:

Consider the amount of time it will take to fix someone else’s mistakes and set your fees accordingly. If the case is too far gone, consider your reputation and whether the case is worth your effort.
Where possible, we always request an in-person fair hearing. You can’t read a witness’s body language and non-verbal cues if you can’t see him or her.
If the hearing is scheduled for another County, request that it be moved to the County where the applicant is receiving service. It will be much easier to get your witnesses to Court if they don’t have to travel several hours.
As a rule we don’t file Medicaid applications until we believe our client is eligible, so when a case is denied, we subpoena every caseworker, supervisor or other Medicaid official who touched the file. Frequently caseworkers don’t know federal law, federal regulations or the POMS and will deny a case without understanding that federal law trumps state law.
You can’t know with certainty that the witness isn’t receiving help if they are on the other end of a telephone. If you participate in a telephone hearing and there’s silence, or if you hear typing, ask whether the witness is communicating with anyone else.
If possible, subpoena the entire file including any case notes. In Georgia, case notes are known as “notes in the Gateway system.” At page 17 of applicant’s requests for a fair hearing, I requested TennCare’s entire file and the case notes were not provided. In fact, their existence was not disclosed until TennCare’s witness stated she needed to reference them.