Representing Yourself: Appeal of Nursing Home "Level of Care" Denial

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This is a guide to help you represent yourself at an administrative hearing to dispute Medicaid's determination that you do not meet the criteria for nursing facility level of care. It is not necessary to have a lawyer at an administrative hearing. The nursing home resident or beneficiary can represent themselves, be represented by a family member or other spokesperson.

Administrative hearings are referred to as informal because they do not follow the strict procedural rules of a court. However there will be rules to how the hearing is to proceed. Those rules are spelled out in regulation 907 KAR 1:563 and KRS 13B.080 and KRS 13B.090.

The hearing will be presided over by a hearing officer, called an administrative law judge (ALJ). The hearing officer is not part of a court. Hearing officers are specially trained employees of the Office of Administrative Hearings Branch. They are not employees of Medicaid or of Health Care Review, the people whose decision you are appealing.

Use the following steps to prepare for this type of an administrative hearing:

  1. Read your written notice of adverse action very carefully. You have a right to a written notice. If you did not receive a written notice, ask for one right away.

  2. The notice should indicate that Medicaid, through Health Care Review, determined that you did not meet payor criteria. The criteria for each is the same but your rights will be different. The actual decision that you did not meet the criteria is made by Health Care Review Corporation, an agency who contracts with Medicaid to make these determinations. These determinations are considered actions taken by Medicaid.

  3. The notice should tell you if the denial was for a "continued stay" or a "new admission". A "continued stay" means that you were already in a nursing facility or already receiving Medicaid waiver services paid for by Medicaid and Medicaid is now discontinuing that payment. A "new admission" means that Medicaid was not previously paying for your care but was contacted by the facility or Medicaid waiver provider and asked for permission to bill for your care and that permission was denied.

  4. Carefully note the number of days allowed for you to appeal the adverse action and be sure to file your request for an appeal on time. You must appeal within 30 days of the date of notice. Follow the instructions on the written notice about how to file your notice of appeal.

  5. If your denial is for "continued stay", you will have the right to continue receiving benefits during your appeal if you file your request within 10 days of the date of notice. In this case be prepared for a hearing to be scheduled right away. Traditionally Medicaid has not attempted to collect repayment from persons who are unsuccessful in their appeal. However, remember that it is possible that you may be responsible for repaying Medicaid for the services that you received during your appeal.

  6. You should be contacted within a few days after your request and given a time, date and location for your hearing. You may request that the hearing be held at a convenient location. You will also be asked if you will accept a hearing by telephone or if you prefer a face-to-face hearing. Most persons representing themselves will do better in a face-to-face hearing. You will also be asked if you wish to have the details of the hearing recorded (written down) at your expense. Although you may need a copy of the hearing if you choose to appeal the decision in court, your attorney should be able to obtain a copy of the tape recording of the hearing and have it transcribed later.

  7. Be sure you understand the reason for the adverse action that is stated in your written notice. If the reason is unclear or the notice does not give a reason, immediately write to Health Care Review requesting a more specific explanation. If the reason refers to other "guidelines" or "manual sections", write to Health Care Review to request copies of these documents.

  8. Write Health Care Review to request a copy of your file (the records used by Health Care Review when making their determination) or to at least be able to examine your file. Do this as early in the process as you can.

  9. Keep a copy of everything that you send. Consider sending documents via certified mail with a return receipt so that you will have proof of what you mailed and that the agency received the information. If you have trouble obtaining evidence you need, you may request that the hearing officer issue a subpoena.

  10. Request copies of medical records from your physicians and health care providers. These records will be helpful in proving why Health Care Review's adverse action is not valid. You should send these records to the hearing officer as far in advance of the hearing as possible. If it is not possible to send those in advance, bring the records to your hearing.

  11. If the health care provider refuses to give you records that will support your case, you can ask the hearing officer to issue a subpoena ordering the health care provider to give you the records. You can request a subpoena in writing from the hearing officer. This request should contain the names of the parties involved, the docket number (located on the notice), a list or description of the documents(s) needed and the reason the subpoena is needed. Because there are certain requirements in serving the subpoena, you should request the subpoena well in advance of your hearing.

  12. If you have questions, you can usually contact the hearing officer whose name appears on the notice for hearing that you received. You will not be allowed to present any arguments to the hearing officer until the day of the hearing.

  13. Carefully plan your argument, outlining why the reason(s) for the adverse action provided by Health Care Review are not valid. Pay specific attention to the criteria for skilled care and to the nine specific care need categories that are listed in 902 KAR 1:022 Section 4 (3). Gather evidence to prove that you did require these specific care needs at the time the denial was made.

  14. You should ask your primary care physician to write a letter for you that states, in detail, why the specific care needs or services are medically necessary for you. The doctor needs to talk about your individual medical history and condition. You can also ask for additional letters of medical necessity from other medical specialists who have examined or treated you at some time. You should send or present these letters to the hearing officer and Health Care Review in advance of the hearing if possible.

  15. You may also present witnesses who can testify to their personal knowledge of your needs. You may also request that any witnesses be allowed to appear by telephone. These requests should also be submitted in writing, before the hearing.

  16. Sometimes, one or both parties may request that a hearing be rescheduled. The hearing officer will make a decision as to whether there is a good reason for the delay. If you will not be able to appear at the time and place scheduled for the hearing, you should ask the hearing officer to reschedule the hearing at a later date or to allow you to appear by telephone rather than in person. Requests for postponement should be submitted in writing at least fifteen (15) days prior to the hearing.

  17. When the day for the hearing arrives, take the following items with you:
    • Your medical records and letters of medical necessity, even if you have already submitted them to Health Care Review and the hearing officer
    • Any correspondence between you and Health Care Review
    • Any other evidence which supports your claim
    • A written list of points that you wish to make
    • A written list of any questions you want to ask Health Care Review
    • Paper and pen so you may take notes

  18. At the hearing, the burden of proof will be on you, not Health Care Review. You must show that you are entitled to Medicaid payment. Health Care Review will be represented either by the doctor who made the determination or by another Health Care Review doctor with whom he/she has consulted about your case.

  19. The hearing officer will help you through the proceeding. Health Care Review will generally go first and present their reasons for taking the adverse action. You should take notes of any points about which you want to question them. Then you will be allowed to present your argument regarding the reason(s) why the adverse action is wrong as well as the evidence that supports your reasons. You and your witnesses can be questioned (cross-examined) after you have finished speaking. Both sides will have an opportunity to speak in conclusion. At that point, you will be able to provide a summary of the reasons and the evidence that explain why you should win. The hearing officer will be deciding whether Health Care review's decision that you did not meet payor criteria was correct given the criteria set forth in 907 KAR 1:022 based on your condition on the day the determination was made. Generally, the hearing officer will not tell you his/her decision on the day of the hearing, but will write a decision later. You will receive the decision in the mail within 90 days from the hearing date.

  20. If you do not win the hearing, the hearing officer's decision will include information about your further rights to appeal, which usually includes the right to obtain judicial review in court.

Reviewed August 2009