Nursing home lacks standing to request fair hearing unless it is authorized representative

In Weeks v. DHS, Division of Family and Children Services, Office of State Administrative Hearings, Docket 2117014 (April 28, 2021), Brian Center Health and Rehabilitation – Canton, purportedly filed a direct appeal on behalf of Marilu Weeks after her Medicaid application was denied. Judge Teate, in Docket No. 2115533, directed Brian Center to provide evidence that it was Mrs. Weks authorized representative, or cite statutory authority showing that OSAH has jurisdiction. Prior to ruling, OSAH received a hearing request transmitted by DHS reulting in dismissal of that case and docketing of a new matter.

Prior to the hearing, Respondent filed a motion to dismiss alleging the appeal was untimely. The Court then notified thee parties that the issue of Brian Center’s standing remained unresolved. Brian Center filed a supplemental response incorporating its brief addressing its authority to file the appeal, previously filed in Docket No. 2115533. A hearing was conducted on April 27, 2021.

Although Respondent must allow the applicant, an adult in applicant’s home, a faily member, an authorized representative or, if the applicant is incapacitated, anyone acting responsibly for an applicant to file a Medicaid application, 42 C.F.R. § 435.907, only the applicant or the applicant’s authorized representative may request a hearing. 42 C.F.R. § 431.221(a)(1).

Federal regulations require Respondent to allow applicants and beneficiaries to designate an authorized representative. 42 C.F.R. § 435.923(a)(1). An individual or entity appointed as the applicant’s guardian or that holds a power of attorney is considered the sme as an authorized representative designated in writing. 42 C.F.R. § 435.923(a)(2). Thus, an authorized representative is an individual or entity designated in writing or who has an order establishing a guardianship or has a power of attorney. 42 C.F.R. § 435.923(a).

Brian Center acknowledged it did not have written authorization to act as Mrs. Weeks authorized representative and was not her guardian. Thus, it did not have standing to request a hearing for Mrs. Weeks. The Court similarly rejected Brian Center’s argument that it had independent standing to request a hearing.

After ruling that Brian Center had no standing, the Court then found that even if it had standing the request for appeal was untimely. Under Georgia Medicaid policy, an applicant has 30 days to request a hearing. Each request for hearing was filed more than 30 days after Mrs. Weeks’ application for Medicaid was denied.