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Issue Alert - 11-04-01

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Date:

Jul 12, 2011

Program Area:

Medicaid (MA)

Issue Summary:

The ability of Medicaid applicants and recipients to submit medical evidence in hearings about eligibility for disability-based Medicaid has been severely restricted under new state policies.

Persons Affected:

People who are denied or terminated from Medicaid based on a Medical Review Team decision issued on or after March 21, 2011.

For More Information:

Center for Civil Justice 320 S. Washington, 2nd Floor Saginaw, MI 48607 (989) 755-3120, (800)724-7441 Fax: (989) 755-3558 E-mail: info@ccj-mi.org Michigan Poverty Law Program 611 Church Street, Suite 4A Ann Arbor, MI 48104-3000 (734) 998-6100 (734) 998-9125 Fax


Background

Summary Description of Disability-Based Medicaid Eligibility Process

 

The Medicaid program is made up of dozens of Medicaid eligibility categories (sometimes referred to as different “types” of Medicaid).   Each category has its own rules or criteria for who qualifies, including both financial criteria (such as income or asset requirements) and non-financial criteria.  Many Medicaid eligibility categories require that a person be disabled as one of the non-financial criteria.   See generally BEM 105.

“Disability” or “disabled” can mean different things for different programs or laws. 

In Michigan, people who have been determined disabled by the Social Security Administration (SSA) are also considered disabled for purposes of Medicaid eligibility.  On the other hand, if SSA reaches a final decision (after all appeals have been exhausted) that a person is not disabled, that decision will be accepted by Michigan Medicaid unless the person has a new or worsened condition.  See generally BEM 260 and BAM 815.

However, it may take months or years to establish disability through the SSA process.  Therefore, Michigan Department of Human Services (DHS) will separately determine whether a person is “disabled” if the person has not yet received a binding determination from SSA.   The procedure for DHS disability determinations involves the collection of medical and other information from the client and other sources (such as medical providers), which is reviewed by the DHS Medical Review Team (MRT).  The MRT makes the decision for DHS on whether the client meets the disability criteria for Medicaid.  See generally BEM 260 and BAM 815.

In some cases, after initially determining disability, the MRT also reviews a recipient’s disability periodically to determine whether they continue to be eligible for disability-based Medicaid. Id.

When DHS denies or terminates Medicaid eligibility based on a MRT decision that the person is “not disabled”, DHS issues a written notice of the denial or termination action, the reasons for the action, and the client’s hearing rights in connection with the action.  See generally BAM 220 p. 1-2 and BAM 600 p. 1.

When a claimant requests a hearing, he or she has the right to submit evidence and present arguments about why DHS’s decision was wrong. See 42 U.S.C. 1396a(a)(3), MCLA 400.9 and .37, MCLA 24.272(3), and implementing regulations and rules.   Clients have the right “[t]o present a case… bring witnesses…establish all pertinent facts and circumstances…[and]  refute any testimony or evidence”. Mich. Admin. Code R. 400.912; see also 42 C.F.R. 431.242.   

In addition to evidence submitted by the applicant or recipient, the Administrative Law Judge hearing the case will obtain another medical assessment of the person’s condition if he or she considers such assessment necessary.  Mich. Admin. Code R. 400.910.

What's Happening?

The State Office of Administrative Hearings (SOAHR), which conducts hearings for DHS, has issued revised “Instructions to DHS ALEs within MAHS” with “Guidance on handling cases in which Medical Assistance Based on Disability and/or State Disability Assistance (MA-P/SDA) is at issue”. 

Under the instructions, MAHS clarifies that applicants and recipients are permitted to introduce certain medical evidence of their disability at the hearing.  However, Administrative Law Judges (ALJs) are not permitted to order additional medical tests or examinations unless they “relate to the impairment/disability alleged on the application for disability benefits or in the medical documentation submitted to the Department prior to the final eligibility determination” or to impairments that “relate to or have any effect on” the impairments alleged on the application or shown in the medical records reviewed by MRT.

Thus, it appears a client who has an undisclosed cognitive impairment and applies for Medicaid based on severe, uncontrolled diabetes and hypertension could not submit evidence of the cognitive impairment at the hearing unless it was written up in the medical records reviewed by MRT or can be recognized as “related to or having an effect on the diabetes and hypertension” (for example, resulting in compromised ability to adhere to a medication and diet regime)  However, it appears that client could submit new evidence of heart disease related to the diabetes or hypertension.

Thus, in some cases the new policy denies the claimant the right to an evidentiary hearing and transforms the hearing into a review on the record rather than a de novo hearing. 

By refusing to allow claimants to introduce some evidence of disability, the policy denies them their right to a full evidentiary hearing under state and federal law, as summarized in the Background, above.

In addition, the new policy will deny prompt Medicaid coverage to individuals who are eligible for Medicaid but are barred from establishing their eligibility at a hearing, in violation of federal law.  42 U.S.C. 1396a(a)(8).  It also may result in denial of retroactive coverage to eligible individuals, in violation of 42 U.S.C. 1396a(a)(34).  Individuals who are eligible for Medicaid but are denied by MRT based on insufficient medical documentation will be forced to re-apply for Medicaid in order for DHS to consider additional medical documentation.  This inevitably will result in delays in accessing Medicaid and loss of Medicaid for some or all months of retroactive eligibility.

Finally, the new policy will violate the maintenance of eligibility requirements of the American Recovery and Reinvestment Act (ARRA) and the Affordable Care Act (ACA), which prohibit the state from imposing new standards, methodologies, or procedures for determining eligibility for Medicaid that are more restrictive than the standards, methodologies, or procedures that were in effect on July 1, 2008 (for ARRA) and March 23, 2010 (for the Affordable Care Act). See section 1501 of ARRA (Pub. L. 111-15) and 42 U.S.C. 1396a(gg)(1)The new procedures are more restrictive because some applicants will be denied eligibility under these procedures who would have been determined eligible under the old procedures. 

What Should Advocates Do?

1.    Educate clients about the importance of reporting all physical and mental health conditions or impairments when they apply for Medicaid and when they fill out forms as part of the medical evaluation process.

2.    Educate clients about the importance of gathering and submitting medical reports and results to DHS when they are applying for disability-based Medicaid.

3.    Assist clients with informing DHS about their impairments, and gathering and submitting medical evidence to DHS during the initial application process.

4.    Continue to assist clients in pursuing hearings to contest Medicaid eligibility decisions involving MRT decisions.

5.  Contact CCJ and/or MPLP(contact info is at the top of this alert) when you have cases involving these recent MRT decisions.

 

 

What Should Clients Do?

1.      If you have medical or problems that keep you from working full time (disabilities), report all physical and mental health conditions or impairments when you apply for Medicaid and when you fill out forms as part of the medical evaluation process.  Put it in writing on the application or other forms.

 

 

2.     

Make sure your doctors and other medical providers submit all information about your condition to DHS.

 

3.  

Get legal help as soon as possible when you are applying for Medicaid and have serious medical problems that prevent you from working.

 

4.    Get legal help immediately if you disagree with a decision that you do not qualify for medicaid because you are not disabled.  

 

 

 

 

 

 

 

 

Finding Help

Most legal aid and legal services offices handle these types of cases, and they do not charge a fee. You can locate various sources of legal and related services, including the free legal aid office that serves your county, at MichiganLegalAid.org. You can also look in the yellow pages under "attorneys" or call the toll-free lawyer referral number, (800) 968-0738.