We take any denial of Medicaid long-term care benefits very seriously, and you should too. There are a variety of reasons that Medicaid applications are denied. Some matters are easily resolved, and others present a major challenge. Whatever the reason for the denial, you need to act, and act quickly:
It’s not over.
When an application for benefits has been denied, the applicant has the right to appeal the decision, but there are time limits. Most appeals take the form of a “Request for a Fair Hearing.”
While the case is on appeal, it is possible to work together with the caseworker at the County Assistance Office to resolve the issue. Sometimes more complex matters need to be discussed with the supervisor of the long-term care unit of the County Assistance Office or legal counsel for the Pennsylvania Department of Human Services.
Procedurally an appeal should be filed, even if you are working through the issues with the caseworker at the County Assistance Office. An appeal can always be withdrawn, but if it is not filed on time, it can be too late. It can be a mistake to think the matter is being worked out with the caseworker and not file an appeal. Caseworkers are not offended by the filing of an appeal. They know you have to take certain steps procedurally in order to preserve your rights.
Communication is Key.
The threat of a large unpaid nursing home bill creates justifiable anxiety for the applicant, the applicant’s spouse, the agent under power of attorney, the nursing home business office, and interested family members, notably children of the nursing home resident who are at risk of being named in a filial support collection lawsuit by the nursing home.
Sometimes the child who has stepped-up to serve as the agent under power of attorney finds himself or herself in the middle of a high-stakes Medicaid denial, fighting on three fronts:
- with the County Assistance Office which has denied benefits,
- with the nursing home which is demanding payment, and
- with worried family members who may not have helped with the process but who are there to second-guess decisions and sometimes retain their own legal counsel.
Communicating appropriately with interested stakeholders to let them know the scope of the problem and the plan on how to proceed can calm the situation and avoid needless lawsuits from the nursing home and minimize family angst.
The purpose of the Fair Hearing process.
A Fair Hearing is not necessarily a reason to panic. The option of a Fair Hearing is built into the system so that decisions are uniform and so you have a fair and impartial forum for the review of your case. The best way to win a Fair Hearing is to avoid the hearing in the first place by resolving the issue in advance with the County Assistance Office.
You have the right to a pre-hearing conference before the fair hearing. Sometimes these pre-hearing conferences occur just moments before the hearing with the judge, but that is not the best way to conduct a pre-hearing conference. The best thing is to have the meeting or phone call in advance of the hearing, directly with the caseworker. You can narrow the issues on appeal and stipulate to certain facts in order to save time for disputed matters.
Many problems can be fixed.
Many instances of denied Medicaid benefits can be corrected with the assistance of an elder law attorney.
For example, if benefits were denied due to missing medical documentation that verifies that the applicant in fact requires long-term care, that denial notice can be appealed and the documentation provided to the caseworker. If that is the only issue, then this is an easy fix, the caseworker should be able to authorize benefits once the medicals have been received. Other problems are more complicated, particularly those that involve asset transfers or payments of cash to home health aides.
If new information is provided to the County Assistance Office after the denial, and during the appeal, the caseworker is supposed to reevaluate the decision and take corrective action based on the new information.
The question on appeal, therefore, is not whether the County Assistance Office acted properly at the time of issuing its determination, but whether the applicant was eligible for benefits at the time at issue based upon the evidence the client is able to provide at or before the hearing. It can be said that in some ways the appeal process is an extension of the application process.
The best time to plant a tree.
It’s been said the best time to plant a tree was 20 years ago, and the second-best time is now. The same concept applies to retaining legal counsel.
It’s best to hire a lawyer on the front side, before an application is filed let alone denied. If benefits are denied, you should certainly secure some professional help before it is too late. All other things being equal, you do not want to have to try to fix problems after the fact, when assets have been spent-down, Medicaid benefits have been denied and the nursing facility is pursuing collection activity.
Nunc Pro Tunc Appeal and the Late Timely Appeal.
Okay, so your application was denied, but you missed the appeal deadline; what can be done?
This is a tough situation, but there are some relatively rare situations where there may still be something that can be done.
- Nunc Pro Tunc Appeals. Some appeals can be filed late, such as where there is a serious breakdown in the administrative process. These appeals are called “nunc pro tunc” appeals and are not easy to win.The term “nunc pro tunc” is a Latin term in the law that describes an appeal that is filed “now for then.” In other words, the appeal is late, but there is some factor that suggests a late appeal is appropriate now, normally to correct an error of the court. This type of appeal may be allowed only where delay in filing was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to the appellant, legal counsel, or a third party.
- Late Timely Appeal. An exception to the normal 30-day appeal deadline applies in certain relatively uncommon cases. In situations where the County Assistance Office failed to send a required written notice and notice of the right of appeal, the appeal period is extended to six months. This scenario sometimes occurs when the County Assistance Office mails a denial notice to the wrong address due to a clerical error, to only the nursing facility, or sends the notice only to an incapacitated nursing home resident and not the designated representative.Pennsylvania’s regulation, 55 Pa.Code §275.3(b)(3), provides that when the County Assistance Office fails to send the required written notice of the action taken and the right of appeal, or because of administrative error, ongoing delay, or failure to take corrective action that should have been taken, the usual 30-day time limit will not apply, and for a period of 6 months from the date of the action of the County Assistance Office (or failure to act) the applicant shall have the right to appeal and shall exercise that right in writing.
- Really Late Timely Appeal. If the six-month time period goes by, there is still a slim chance that an appeal could be possible. The appeal permitted under 55 Pa.Code §275.3(b)(3), mentioned above, can be filed after the six-month timeframe if the applicant signs an affidavit stating:
- The applicant did not know of his right of appeal, or believed the problem was being resolved administratively.
- The applicant actually believes the county office erred in its actions.
- The appeal is being made in good faith.
Mitigate the Damage.
Sometimes substantial gifting within the 5-year lookback gives rise to a major transfer penalty, and although there can be ways to address transfer penalties, such as returning all of the gifted assets, there are cases where there is simply no practical way to undo the problem and a period of ineligibility for Medicaid long-term care benefits is unavoidable.
You will want to “mitigate the damage” by not incurring ongoing nursing home bills the Medicaid long-term care benefits will not or may not cover. Normally these cases arise in situations where families did Medicaid planning on their own, or made gifts within the 5-year look-back without consulting an attorney. We can discuss options in these situations.
Sometimes issues cannot be resolved at the Fair Hearing level of appeal. If you do not win at the Fair Hearing, you can request reconsideration by the Secretary of Human Services, and failing a successful outcome there, file a petition for review with the Commonwealth Court. Some cases can be challenged in federal court. Before making a federal case of the matter, a business decision needs to be made at each level of appeal because of the legal costs involved, uncertainty as to outcome, and ongoing emotional cost of being involved in litigation with the Commonwealth of Pennsylvania, Department of Human Services.
Normally the sooner the problem is identified, the sooner steps can be taken to address it, and the greater the chance you have of avoiding a denial and the need for appeal in the first place. The best way to win an appeal is to avoid the denial. The key to this is securing early advice from capable legal counsel.
Now you know what to do if your Medicaid application is denied.
The best way to deal with a Medicaid denial is to contact an experienced elder law attorney. You have legal rights and an appeals process to navigate and both are overwhelming. You do not have to go through it alone; we’re here to help.