Discovery in Medicaid Cases

As a general rule, discovery is not permitted in any proceeding before an ALJ, except to the extent specifically authorized by law. Ga. R. & Regs. § 616-1-2-.38. In Bd. of Dental Examiners v. Daniels, 137 Ga. App. 706 (1976).

• Appellant/defendant contends that the Civil Practice Act is not applicable to proceedings under the Georgia Administrative Procedure Act. We agree. [O.C.G.A. § 9-11-1] provides that “[t]his Title governs the procedure in all courts of record of the State of Georgia…”
• The CPA does not apply to the Georgia Administrative Procedure Act. The intent of the legislature was to provide an administrative procedure to resolve conflicts within the authority vested in administrative agencies and boards by statute without resort to courts of record in the first instance. See Howell v. Harden, 231 Ga. 594 (1) (203 SE2d 206).

Federal law specifically grants the following discovery and pre-hearing rights, 42 C.F.R. § 431.242(a), including the right to:

• Examine the contents of the case record and all pertinent documents and records prior to the hearing;
• Present the case with or without the aid of a representative, including legal counsel, a relative, friend or other spokesperson;
• Request assistance from the agency for transportation to/from the hearing.

See “Rights Before Hearing” at Notice, Due Process and Procedure in Medicaid Fair Hearings.

Appendix B to the ABD Manual states:

The A/R or his/her AREP has the right to the following:

• examine the contents of the case record and all pertinent documents and records prior to the hearing.

NOTE: Certain confidential case record information may not be released to or viewed by anyone, including the A/R. Refer to Section 2010 and 2011 for additional information, including what may not be released and penalties for unauthorized release.

Confidential information that is protected from release and other documents or records that the A/R may not contest or challenge may not be presented at the hearing.

• present the case with or without the aid of a representative, including legal counsel, a relative, friend or other spokesperson.
• request assistance from the agency for transportation to/from the hearing.

Information described in Section 2010 that may not be released to the applicant includes: medical or psychiatric information marked confidential if the information in the record could be harmful to the A/R; information provided by an individual who has requested confidentiality; confidential information regarding pending criminal prosecution; and information obtained from the IRS. Arguably, if any of this information was used to issue an adverse decisions, the applicant has a right to examine all policies and documents that formed the basis of the decision.  Goldberg v. Kelly, 397 U.S. 254 (1970).

Rule 19 authorizes the use of subpoenas to produce records in the possession of another party, so the ALJ can authorize sufficient discovery to get those items an applicant is entitled to under 42 C.F.R. § 431.242 notwithstanding Rule 38.