Appealing Katie Beckett Medicaid Terminations

1. Appealing Katie Beckett Medicaid Terminations The Georgia Legal Services Program, Inc. October, 2008

2. Appeal Steps • DCH makes Request for Additional Information • Parents Receive Notice of Termination of Medicaid • Parents file Request for Appeal • Request for Benefits Pending Appeal? • Long Delay

3. Referral to the Office of State Administrative Hearings – ALJ decision • Appeal to DCH Commissioner • Final Administrative Determination • Appeal to Superior Court • Appeal to the Georgia Court of Appeals • discretionary application • Georgia Supreme Court – • by certiorari

4. Laws Governing a Medicaid Administrative Appeal • Administrative Procedures Act • O.C.G.A. § 50-13-19 et. seq. • DCH Appeal Provisions • O.C.G.A. § 49- 4 -154 • Office of State Administrative Hearings Regulations • http://www.ganet.org/osah/rules/chap616-1-2.pdf

5. Appeal Process

6. Notice Meeting the Level of Care Basis for Appeal

7. Inadequate Notice  42 C.F.R. § 431.210 Content of notice.     A notice required under must contain--(a) A statement of what action the State. . . intends to take;(b) The reasons for the action;(c) The specific regulations that support, or the change in Federal or State law that requires, the action;(d) An explanation of-- (1) The individual's right to request an evidentiary hearing (2) In cases of an action based on a change in law, the circumstances under which a hearing will be granted; and(e) An explanation of the circumstances under which Medicaid is continued if a hearing is requested.

8. Inadequate Notice cases • Ortiz v. Eichler – math calculations • Caldwell v. Wallace – notice to guardian not resident, inadequate/Who got this notice? • Turner v. Ledbetter - inadequate notices means no proper termination from program.

9. Continuing Medicaid Determination • 42 C.F.R. § 435.930(b) – State must continue Medicaid until Recipient found ineligible. State must make ex parte determination • Must consider “all possible avenues of eligibility”

10. Appeals Rules and Procedures • Office of State Administrative Hearings OSAH Ch. 6l6-1-2 • 10 days vs. 30 days • Benefits pending appeal • Wording on appeal notice vs. • 90 days to complete administrative process • 42 C.F.R. § 431.244(f)(1)(ii)

11. OSAH Rules • www.ga.net.OSAH.gov

12. Rule 4 - Filing and Submission of Documents. • (1) Papers deemed filed on the date received by the Clerk or official postmark date whichever comes first. Submissions may also be filed by facsimile machine or other electronic means. • (2) Office hours of the Clerk are 8:30 a.m. to 4:30 p.m., Monday - Friday, except State legal holidays. • (3) All papers signed and . . . state the name, address, telephone number and representative capacity of the person filing paper.

13. Rule 5 - Computation of Time. • (1) When the last day of a deadline is on a day in which the Clerk is closed, the period runs until the following business day. • (2) Whenever a party has the right or is required to do some act other than process upon the party by another party these Rules and not otherwise specified by law, three days shall be added to that prescribed period if the notice or paper is served by mail. – DON”T USE THIS FOR APPEAL DEADLINES. • Use certified/provable mailings.

14. Rule 7 - Burden of Proof • (d) Any potential or actual recipient of a public assistance benefit shall bear the burden unless the case involves an agency action reducing, suspending, or terminating a benefit.

15. Rule 10 – No Ex Parte Contact with Judge • No person shall communicate ex parte with any ALJ relating to the merits of the proceeding without the knowledge and consent of all other parties to the matter until the matter is no longer pending in any administrative or judicial forum;

16. Telephone vs. In person Hearings • In person hearings allow ALJ to face the Petitioner

17. Rule 15- Summary Determination • (1) Any party may move, based on supporting affidavits or other probative evidence, for a summary determination in its favor upon any of the issues when no no genuine material fact exists. . . . . • (2) Any party may file a response to a MSD or a counter MSD within 20 days after service of the motion. The response shall include a short statement of the non disputed material facts.

18. (3) A party opposing the motion must show, by affidavit or other probative evidence, that there is a genuine issue of material fact. • (4) Affidavits are made on personal knowledge, set forth admissible facts, and show that the affiant is competent to testify. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached. Where facts necessary for summary determination are a matter of expert opinion, such facts may be resolved on the basis of uncontroverted affidavits.

19. Motion for Summary Determination • (5) The ALJ may set the motion for oral argument. • (6) The ALJ may determine that the matter may better be resolved via an evidentiary hearing and is inappropriate for resolution by MSD. • (7) If all factual issues are decided by summary determination, no hearing will be held.

20. Rules of Evidence • (1) ALJ shall apply the rules of evidence. Such evidence which may be admitted includes the following: • (a) records, reports, statements, plats, maps, charts, surveys, studies, analyses or data compilations, in any form, of public offices or agencies. . . .

21. (b) reports, records, statements . . . after testimony by an expert witness that the witness prepared such document and that it is correct to the best of the witness' knowledge, belief and expert opinion; • (c) . . . .statements contained in published treatises, periodicals, or pamphlets on medicine, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by official notice; • (d) any medical, psychiatric, or psychological evaluations or . . . of a type routinely submitted to and relied upon by the Referring Agency in the normal course of its business; and

22. (e) documentary evidence in the form of copies if the original is not readily available . . . or by agreement of the parties. . . . • (2) A copy of each exhibit identified or tendered at the hearing shall be furnished to the ALJ and the other parties when first presented at the hearing. • (3) The ALJ shall give effect to statutory presumptions and the rules of privilege recognized by law. • (4) If scientific, technical or other specialized knowledge may assist the ALJ to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

23. (5) The ALJ shall have the discretion to . . . require the submission of direct testimony in written form. . . . The witness presenting the statement shall swear to or affirm the statement at the hearing and shall be subject to full cross-examination during the course of the hearing. (6) Whenever oral testimony is excluded, the proponent may make in offer of proof by means of a brief statement describing the testimony. Whenever any documentary or physical evidence or written testimony sought to be admitted is excluded, it shall remain a part of the record as an offer of proof.

24. (7) All objections shall include a statement of the legal basis for the objection and shall be made promptly or deemed waived. (8) Official notice may be taken of judicially recognizable facts. Any documents officially noticed shall be admitted into the record of the hearing. (9) The ALJ may take official notice of the contents of policy and procedure manuals promulgated by State agencies for which OSAH conducts hearings.

25. Rule 19 - Subpoenas and Notices to Produce. • (1) The ALJ shall have the authority to issue subpoenas requiring the attendance and testimony of witnesses and the production of objects or documents at depositions or hearings. • (2) Requests for subpoenas shall be in writing and filed at least 5 days prior to the hearing or deposition at which the attendance of the witness or the production of documents is sought.

26. Rule 28 - Motions for Reconsideration or Rehearing • (1) A motion for reconsideration or rehearing of an Initial or Final Decision will be considered only if the motion is filed within 10 days of the entry of the Initial or Final Decision.

27. Rule 36 - Alternative Dispute Resolution Program • OSAH has established an Alternative Dispute Resolution ("ADR") Program to provide a speedy, efficient, and inexpensive resolution of disputes. The Uniform Rules for Dispute Resolution Programs adopted by the Georgia Supreme Court that are applicable to contested civil actions shall be followed. Copies of the Uniform Rules for Dispute Resolution • http://www.state.ga.us/gadr/odr.html

28. Appeal from OSAH decision • After a decision from the ALJ • Request for Review

29. Rule 37 Request for Agency Records.Rule 38 Discovery. • Rule 37 - Requests for access to public records pertaining to a pending matter shall be governed by O.C.G.A. § 50-18-70(e). (Open Records Act) • Rule 38 - Discovery shall not be available in any proceeding before an ALJ except to the extent specifically authorized by a statute or rule. Nothing in this Rule is intended to limit the provisions of Article 4 of Chapter 18 of Title 50 or Rule 37.

30. Appeals from OSAH • 30 days to appeal a decision from the OSAH Administrative Law Judge • Appeal is to the DCH Commissioner • Appeal in writing

31. DCH Commissioner Decision • Commissioner has 30 days to issue a written decision affirming, modifying or reversing the ALJ decision. • A final decision shall include findings of fact and conclusions of law, separately stated, and the effective date of the decision or order. Findings of fact shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

32. Benefits Pending Final Appeal • Benefits can continue pending final appeal to commissioner if the applicant or recipient requests benefits continuing appeal within 10 days. • A/R can submit additional evidence or written argument. • Commissioner has 30 days to affirm, modify, or reverse.

33. Warning • Commissioner has 30 days to make decision. • Commissioner takes the position that if no decision is issued, the ALJ decision becomes final.

34. If you do not get a final decision from the commissioner, the appeal must be filed with 30 days of the decision becoming final by operation of law. • O.C.G.A. § 49-4-153(b)(1)

35. Appeal to Superior Court • Bound by the record established below • 30 days to file, in writing • Fulton County or the County of the Petitioner • Serve DCH • Briefing schedule • Oral arguments

36. Appeal to the Georgia Court of Appeals • By application to the Georgia Court of Appeals • Within 30 days from Final Agency Decision • Bound by record below • Rules at: http://www.gaappeals.us/rules2/

37. Appeal to Georgia Supreme Court - by certiorari • Supreme Court does not have to take case • Must show constitutional issues properly raised or • Concern, gravity, importance to public policy

38. We hope this information has been helpful. This is general information that is not intended to be individual legal advice. We urge you to obtain counsel immediately to protect your rights. You can lose rights by delay. The Georgia Advocacy Office

39. FOR MORE INFORMATION OR TO FIND LEGAL HELP: www.legalaid-ga.org www.glsp.org