Tips for Assisting Consumers with Medicaid Appeals and Fair Hearings
Medicaid consumer assistance programs can help consumers file appeals and prepare for fair hearings in a variety of ways. Below are some tips from people in the field on how to prepare consumers and yourself for a fair hearing.
BUILDING CONSUMER AWARENESS
First of all, do consumers know they have the right to appeal and to have a fair hearing on their case?
One of the easiest and most critical things consumer assistance programs can do for Medicaid beneficiaries is educate them about their rights to appeal and to fair hearings. Some suggestions on effective ways of getting the word out are the following:
§ Post materials on multiple websites.
o Instead of simply posting community education materials on one’s own website, ask community partners to have a link to your agency’s materials on your websites as well.
§ Include appeal information in multiple places.
o Make sure information regarding appeal rights is included on all educational materials that explain the Medicaid program to consumers.
§ Let consumers know what to expect.
o Create fact sheets not only on rights, but also what to expect during the appeals process.
§ Educate other agencies’ personnel.
o Although other agencies may not have the time or the resources to help consumers with appeals, it is important for them to know the basics of the appeals process so they can inform consumers that an issue may be appealable, that there are deadlines in the appeal process, that there are different kinds of appeal to consider, and that there are places to turn for help.
Do consumers know where to turn for help with appeals beyond your program?
While some consumer assistance programs actually represent consumers at hearings, others are not able to do so. Some programs are able to sit or to listen in on a fair hearing as support for the consumer, while others can only help prepare the consumer. No matter how far a program is able to go to help a consumer, it is important for consumers to know where to turn for help when they need help over and above what the program can do.
§ Establish a working relationship with local legal providers.
o In most states, there are legal services programs or other public interest law firms that are able to represent consumers at Medicaid fair hearings.
§ An example of this is a program that has established a protocol for fair hearings in which the consumer assistance program will do the background research for the consumer’s hearing and then the local legal services office will actually represent the consumer at the hearing.
o If there are no such programs or firms that do this work in your area, know what non-profit legal providers work in your community and how to refer consumers to them for assistance.
GETTING A HEARING
Is a fair hearing the right way to handle this situation?
Before helping a consumer with a hearing, it is important to determine if a hearing is the best way to resolve the issue at hand. There are a few reasons a hearing may not be right course of action.
§ The issue is not appealable.
o It is important to check the regulations that apply to the consumer’s case before the hearing to see if a mistake about coverage has been made. If so, the consumer should appeal. If not, an appeal may not be the best route to help consumers get what they need.
§ There is a quicker way to get a better result.
o It may be possible to negotiate a settlement for the consumer without going through the hearing process. Still it is important to keep in mind deadlines for requesting appeals to make sure the consumer has other options in case the negotiations fail. Consider requesting a hearing before starting negotiations. It is always possible to withdraw a hearing request if the issue is resolved prior to the hearing date.
§ It would be better to take the case directly to state or federal court.
o If the case involves a policy that harms a large number of people, it may be more effective to challenge the policy in a lawsuit rather than through an individual hearing.
o In the majority of states, hearing officers are allowed to rule only on issues regarding the application of state regulations or state law. Find out what authority hearing officers are given in your state. If the issue is regarding the application of federal law, the best course of action may be to take the case to federal court. (It is not necessary to exhaust all administrative remedies prior to filing a case in court. See Patsy v. Florida Board of Regents.)
What kind of hearing should the consumer request?
Consumers have the option to request an in-person hearing rather than having a video or telephone hearing. An in-person hearing allows consumers to make a strong visual impression on a hearing officer and will make it easier for the hearing officer to understand the consumers’ situation. Moreover, consumers may feel more comfortable if they do not have to use technical equipment with which they are not familiar when presenting their case.
PREPARING FOR THE HEARING
Is there enough time to prepare for the hearing?
If for some reason there is not enough time to prepare for a scheduled hearing, it is generally possible to request an extension and have the hearing scheduled for a later date. If consumers request the appeal within the correct time frame, their benefits are extended until a hearing decision is made. In those cases, it may be better for the consumer to request an extension.
What should programs do to prepare for the hearing?
There are many things that consumer assistance program staff can do to prepare themselves and consumers for a hearing. Some suggestions are:
§ Look at the consumer’s file.
o It is crucial to look through a consumer’s file to be adequately prepared for any issue that may arise. In fact, sometimes it is possible to discover information in the file that is helpful in making a case but that has not been noted previously.
§ Get copies of prior hearing decisions.
o It will be useful to review prior hearing decisions on similar cases to get an idea of issues on which the case may hinge and what questions may be asked. States are required to allow the public access to all hearing decisions (see 42 CFR 431.244(g)); however, states must safeguard consumers’ personal information when releasing these decisions. For an example of how one state, Ohio makes hearing decisions available.
§ Prepare your own case summary.
o Rather than rely on the case summary presented by the state, it can be useful to prepare a summary from the consumer perspective. This is a chance to present information helpful to the consumer that may not be included in the state’s summary.
§ Educate consumers on the hearing process.
o The hearing process can be daunting for those who are not used to the process. One way programs can help consumers through this is to tell people what to expect during the hearingby creating fact sheets on what to expect during the appeals process.
AT THE HEARING
Who should be at the hearing?
Consumers are generally allowed to bring to the hearing anyone they need, including any persons directly involved in the case (such as doctors, therapists or social workers) as well as family members and friends. It is generally better for all persons directly involved in the beneficiary’s treatment to be available as witnesses rather than simply to send a statement. If they are at the hearing, they can raise and/or emphasize information that may otherwise be lost. Further, it will make an impression that this particular case is important enough for them to be there.
What if the state has medical information that differs from the consumer’s information?
In this situation, it is even more important that the medical providers involved be available at the hearing. These professionals can counter the state’s written evidence and can ask questions that the written evidence may not be able to answer; they can also point to any inconsistencies and/or errors in the evidence.
What if the consumer is uncomfortable with the hearing process?
Most states and hearing officers understand that hearings can be intimidating to those unaccustomed to the system. Because of this, consumers can often request to present their side of the case without interruptions. Consumers can also have a statement or talking points written out in advance to help them remember all the issues involved in the case.
For more information on how consumer assistance programs can help with appeals and grievances, see the HAP Medicaid Resource Page.