1. Due Process Rights for DD Medicaid Waiver Determinations
Jodi Siegel
Southern Legal Counsel
November 14, 2008

2. Federal Fair Hearing Rights
Medicaid Waiver recipients have the same due process rights as any recipient in state Medicaid program: notice and opportunity to be heard.
42 U.S.C. § 1396a(a)(3) - due process required when state takes action to reduce or deny Medicaid benefits.
42 C.F.R. § , et seq. requires state Medicaid programs to provide a recipient of Medicaid services a fair hearing when state is taking an action to reduce or deny benefits.

3. Notice
Notice must detail the reasons for the proposed termination and explain the recipient's hearing rights, including the right to a pre-termination hearing. Goldberg v. Kelly, 397 U.S. 254, 268 (1970).
Notice requirements apply even when a proposal to terminate Medicaid is due to a change in state law C.F.R § (d)(2).

4. Contents of notice
(a) a statement of the action the State intends to take;
(b) the reasons for the intended action;
(c) the specific regulations that support, or the change in federal or state law that requires, the action;
(d) an explanation of the individual's right to request an evidentiary hearing, or in cases of action based on a change in law, the circumstances under which a hearing will be granted; and
(e) the circumstances under which assistance is continued if a hearing is requested.
42 C.F.R. §

5. Timing to request hearing
Must request hearing within 30 days not to waive the right to a hearing
42 CFR § if the recipient requests a hearing within 10 days after the date of the action, the services will continue until a hearing decision is rendered.

6. Florida due process rights
§ (a), Fla. Stat. – any DS applicant or client, or parent, guardian, guardian advocate or authorized representative, who has any substantial interest determined by the agency, has the right to request an administrative hearing pursuant to or
§ (b) – notice of right to hearing shall be given verbally and in writing (in language of client and in English) at same time as APD gives notice of action.
§ (c) - request for hearing made to APD within 30 days of receipt of notice.

7. Florida APA applies
JM v Florida APD, 938 So2d 535 (Fla. 1st DCA 2006) - Florida Administrative Procedures Act applies in cases of Medicaid reduction/denial of services for persons with developmental disabilities.

8. General Requirements for Petition
how the petitioner's substantial interests will be affected by the agency determination;
statement of all disputed issues of material fact.
concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency's proposed action;
statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency's proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and
statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the agency's proposed action.

9. Tier Petition: adverse interests
Petitioner’s substantial interests will be adversely affected by the intended action of the Agency for Persons with Disabilities (APD) in its intended assignment of Petitioner to Tier ____.
May also state specifically the effect of the reduced services.

10. Tier Petition - disputed issues of material fact
Whether APD’s placement of Petitioner in Tier ___ was made in error.
Whether Petitioner’s health and welfare will be placed in danger by the tier assignment.
Whether petitioner’s current services are medically necessary.
Whether the current services are available through other sources.
Whether Petitioner’s characteristics, and physical, medical and behavioral condition indicate that APD’s placement of Petitioner in Tier ___ is in error.
Whether APD used operational guidelines and other processes that did not comply with the requirements of § , Fla. Stat. in making Petitioner’s assignment to Tier ___.

11. Tier Petition: factual allegations
Petitioner has been diagnosed with ___
For ___ year(s), Petitioner has received the following services: ___. All of these services were judged medically necessary by APD and its agents. Petitioner’s condition remains unchanged, or worse, and continues to be in need of these services.
The annual cost of services was $___. The assignment to Tier ___ means that Petitioner will have a limit of $___ on the medically necessary services currently provided, which will require Petitioner reduce or terminate services at the expense of his/her health and safety.
The reduction or termination of services will cause his/her condition to worsen, potentially place Petitioner in danger to himself or those around him/her and puts him/her at risk for institutional placement.
The reduction or termination of services is not justified by any medical finding made by APD. APD did not consult Petitioner’s treatment professionals, physicians and others prior to making the tier assignment.
APD failed to conduct an assessment prior to placing Petitioner in Tier ___ to determine if there was a change in Petitioner’s condition since the time Petitioner was first assessed.

12. Tier petition: applicable law
§ , Fla. Stat.
Fla. Admin. Code R. 65G –

13. Tier Petition: relief requested
E.g.: The APD action placing petitioner in Tier 3 should be reversed and a finding made that Petitioner meets the criteria for placement in Tier 2.

14. Is Petitioner entitled to a formal hearing?
APD is not required to grant hearings or continue benefits "if the sole issue is a Federal or State law requiring an automatic change adversely affecting some or all recipients." 42 C.F.R. §§ (b) (emphasis added). See also 42 C.F.R. § (b).
I.e., only individuals who raise issues other than the change in law itself, such as "factual questions in the application of that change" to their particular case, are entitled to a hearing and continued benefits. Budnicki v. Beal, 450 F. Supp. 546, 552 (E.D. Pa. 1978).
APD might dismiss petition if it determines that change in services or tier placement applies to everyone across the board due to a change in statute. E.g., Tier 4 has limited services and petition seeks service not available in that tier.
Application of this principle needs to be carefully watched to prevent erroneous interpretations as to APD’s interpretation of the kind of action made pursuant to statute.

15. The Hearing Witnesses Waiver Support Coordinator Client Family
Service providers
Possible expert witnesses
Client’s treating physician
Expert on particular disability

16. Medical assessment at agency expense
42 CFR § (b) – If hearing involves medical issues such as those concerning a diagnosis, an examining physician's report, or a medical review team's decision, and if the hearing officer considers it necessary to have a medical assessment other than that of the individual involved in making the original decision, such a medical assessment must be obtained at agency expense and made part of the record.

17. Burden of Proof
Findings of fact shall be based upon a preponderance of the evidence.
For reduction of benefits, APD has burden of proof. Fla. Admin. Code R (1); Kennedy v. Agency for Health Care Administration, 954 So. 2d 710, 711 (Fla.1st DCA 2007), citing C.F. v. Dep’t of Children & Families, 934 So. 2d 1, 6 (Fla. 3d DCA. 2005).
For denials of applications for new services, Petitioner has burden of proof.

18. Ethical Considerations
What are the issues in representing a client with no cognitive ability to make decisions?
WHO REPRESENTS THE CLIENT
WSC?
PARENT?
CLIENT?

19. Bar Rules 4-1 CLIENT-LAWYER RELATIONSHIP
RULE CLIENT UNDER A DISABILITY (a) Maintenance of Normal Relationship. When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) Appointment of Guardian. A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

20. Comments to Bar Rule
The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.
The law recognizes intermediate degrees of competence.
A client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being.

21. More Comments
If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.
If a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client's best interests.
Rules of procedure in litigation generally provide that minors or persons suffering mental disability shall be represented by a guardian or next friend if they do not have a general guardian.

22. Appointment of guardian advocate
§ (2), Fla. Stat. – probate court may appoint a guardian advocate, without an adjudication of incapacity, for a person with developmental disabilities, if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his/her person, property or estate, or if person has voluntarily petitioned for appointment of guardian advocate.

23. Resources APD website AHCA website
AHCA website
Advocacy Center for Persons With Disabilities, Inc. website
Administrative_Hearing_Manual.pdf