NDRN Medicaid Webcast part V

Elizabeth: Thank you everyone for being here. The last of our five part Medicaid web cast. I did appreciate everyone coming back and the big turnout we’ve had. I just want to say that we will not be having question and answers at the end in order to save costs, but if you do have questions and answers after hearing this call, you can call either myself directly. I’m Elizabeth Priaulx at the National Disability Rights Network or Jane Perkins and Sarah Summers at the National Health Law Program, North Carolina office and NHELP has for years had a legal backup conference….contract through NDRN to provide legal technical assistance for the P&A’s and hopefully many of you have availed yourself of that. I’m going to let them go ahead and just let you all know that if you’ve been looking for the parts II, III, IV of this there has been a delay getting them up on the web site, but I will get them all up on the web site and contact everyone when all five parts are up and I apologize for that delay. It has nothing to do with Jane and Sarah. So take it away.

Jane: But it easily could Elizabeth. Well thank you so much Elizabeth and Sarah and I just wanted to start out this last webcast by saying that we have very much enjoyed doing this. We had not participated in something like this before, so it was new for us and we really had a good time….have had a good time doing it. Talking about the law is something anyone could consider a good time. But thank you so much Elizabeth for having the idea and to those of you who have attended some of these are who are attending today, thank you all so much for attending.

In this last session that we’re having today is, obviously, we’re covering Medicaid due process and court access. So we’re moving away from kind of a nitty gritty of how things work in terms of eligibility and services and administration and into the nitty gritty of what do you do when things go wrong as they inevitably will at some point in…at some point in time. Nothing’s perfect. So to the next slide…we’re going to be covering today really three major topics. Due process. And that’s just our short hand way of talking about administrative processes. Section 1983, which is the legal handle for getting into court in many cases and preemption. Which is a growing legal handle for getting into court and we’ll be talking about that last. There are numerous places where the due process requirements of Medicaid law are set forth. The first and the most important one is the United States Constitution, the 14th amendment, requires due process. And the Supreme Court in this case that you see cited here, Goldberg versus Kelly, held that it violates the due process clause of the 14th amendment to terminate public benefits without adequate notice and opportunity to be heard. The court decision noted the brutal need that public assistance recipients have, for the benefits that they are receiving, and held that to terminate them without this notice and opportunity to be heard did violate the Constitution. Significant to Goldberg is that in instances where you’re talking about individuals who are receiving services and those services are being terminated or who are being counted as eligible and are then being told you’re not eligible, Goldberg is significant because it is requiring under the Constitution a pre-termination hearing for the opportunity for a pre-termination hearing. And those of you who have worked with due process and other contacts know that under other tests of the

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Supreme Court, Mathews versus Eldridge being another, that at times that hearing in terms of what process is due, might not need to be before the termination.

There are other due process citations that are important as well. The Medicaid Act requires due process. This provision is cited section 1396-AA3 and what it says is that the state plan must provide for an opportunity for a hearing. And in all instances where….in all cases where claims are denied or not acted upon with reasonable promptness. So interestingly you can see that the statute itself does not discuss the concept of notice. It’s fairly brief and to the point. But as we were saying in court the other day, sometimes things can be brief and still be powerful. The regulations that implement this statute are found at 42CFR section 431.200. And the thing that’s important about that is that they do provide in depth information to states on how they are to provide due process to Medicaid recipients. One of the first things that these regulations do, interestingly, is to incorporate Goldberg versus Kelly. In other words, when you turn to those regulations you’ll see that there’s a regulation there and it says these regulations are being implemented in order to be consistent with Goldberg versus Kelly. So it’s a little twist there. Something that I don’t think exists in any other Medicaid regulation, that is, or the statute for that matter. That is an explicit citation to a case. Actually there is another exception to that in the statute which we’re actually going to be talking about later on when we talk about section 1983. The third citation that is of importance is the sections 438.400 and for 438.210. They are important because that…those are fairly recent requirements in the Medicaid regulations that apply to individuals who are enrolled either by choice or by mandate in managed care plans or with managed care entities. These are important because to us today, because not only are people with disabilities enrolled in managed care plans governed by section 438 by choice, but also because one area of intense interest by the managed care industry and by state Medicaid programs is to expand mandatory enrollment in managed care plans to people with disabilities. So if you’re not familiar or haven’t had the need to be familiar with the section 438 regulations so far, you may need to in the not too distant future. Due process is also described in the state Medicaid manual. Now this isn’t a regulation, but it is a manual that the HHS, the Department of Health and Human Services publishes that states must…that set forth guidelines for states. And interestingly in the state Medicaid plans that each state submits, typically, one of the very first pages of those state plans will be a page where the state says that it will adhere to the federal law, the federal regulations, and the guidelines set forth in the state Medicaid manual. I’m saying that because for purposes of resolving a complaint, that may be something that you might want to remember and use carefully because it hasn’t really been tested in the future. And that is that in the state Medicaid plan, which is really a contract between the federal government and the state made for the Medicaid beneficiaries benefit, the state has bound itself to these manual provision to compliance with these manual provisions and these regulatory and statutory provisions and you may have be able to argue that your client is a third party beneficiary of that promise, which you are now seeking to enforce. State constitution laws and regulations also deal with Medicaid due process, as do state manuals, particularly of case worker manuals, provider manuals, and the like.

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So on the next slide you see that we now, in terms of Medicaid, due process and with the growth and existence of managed care have a number of confusing terms to deal with and one of the disappointments with the most recent round of federal regulations, which were some extensive regulations on due process in managed care that were issued in the early 2000’s was we had tried very hard and...to get terms boiled down so that they weren’t…there weren’t so many terms and they weren’t so confusing to beneficiaries and had really made a lot of progress in that respect with the Clinton people, but the final regs that came out under the Bush administration have a number of terms in them that can be confusing. These terms all have meanings when they’re used by…in the federal rules and thus supposedly by federal and state authorities. Due process is written notice and an opportunity to be heard before an impartial decision maker. The fair hearing is complaints that occur at the state level. Usually before an ALJ, an administrative law judge, where oftentimes the final…the appeal then goes….or the recommended decision comes from the ALJ with the final decision being made by the agency head. There is…there are two terms that are used in the managed care context, which obviously have also been used outside of it. But, they have particular meaning in managed care. The first is appeal. Complaints in managed care that are regarding actions to deny, delay services, or payments, are appeals. They’re the more serious concern or are the label for more serious concerns. Whereas as grievances are dissatisfaction regarding other managed care activities that aren’t actions. Let me give an example though of how these can get confusing. Because this is an actual case that we worked on here. The person was not satisfied with their assigned provider in managed care and they were having trouble getting out from having that person be their primary care provider. The managed care plan said that that was a grievance. But because the situation was so unbearable to the client, the client didn’t want to go to that provider at all. And so was not going in to get healthcare. And nevertheless the health plan or the managed care entity labeled it as a grievance. That’s significant because what a plan does in response to a grievance is different from and less than and timed differently than what a plan must do in response to an appeal. There are indeed significant differences between due process in the fee for service context as opposed to managed care. And this next slide just steps through some of those. If you move from one side of the page to another. Your legal portfolio in the fee for service context is a complaint that involves statutes and rules. In the managed care context it is also involving that managed care contract. Typically in the fee for service context it’s not unusual for the service to have already been provided. So you really have a more established or a more known set of facts. Facts that cannot really be played with a lot. Whereas in the managed care context oftentimes the service is still needed and for those of you who have done managed care complaint advocacy, you know, that sometimes it can be like shooting at a moving target in the dark. Because the reasons get changed based on what you’re saying is the problem. That can’t happen in the fee for service context because the…or it can happen less because the facts are much more established because the service has been provided typically. In the fee for service context also you may find that the provider, the healthcare provider, is a great advocate for your client because she wants to get paid. The treatment, as I said, may already have been provided as opposed to the managed care context where the provider may not be able to be depended on to such a great degree. The service may not have been provided. The provider may be concerned that the service is going to…providing that service is

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going to cause him or her to be some sort of standard deviation away from what he or she needs to be to be contracted with again. So the incentives for providers can be very different in managed care. In the fee for service context as well, there is the final distinction, which is that Medicaid beneficiaries have direct access to a fair hearing by an impartial decision maker. That is the state ALJ decision process. Whereas in managed care, beneficiaries are often told to first pursue the plan level grievance or appeal and in some instances…in some states indeed must exhaust that level of appeal before going forward despite the bias that is in the managed care system. And that’s what the next slide shows you, which is a great quote from this case Daniels versus Wadley, a Tennessee case from 1996 that said that because of the pecuniary interest incentives that managed care organizations have for denying, suspending, or terminating care under the ten care system, and because of other differences between tendencies pre 1994 Medicaid program and ten care, ten care enrollees need strong due process protections to protect themselves from inappropriate denials of care. Remember in the managed care context, at least at the macro level, we’ll talking about the state paying a preset amount of money ahead of time per member per month. For which the managed care company is agreeing to provide all medically necessary services when the individual needs them. However, the pecuniary incentive is that the less you do, the more you keep.

Elizabeth: Jane this is Elizabeth……for a second….is…could you just give us a brief overview for folks on the phone who might be new to this. The best way to keep up to date on their ever changing managed care plans or state Medicaid manuals, I mean…you know, at the federal level. It’s things like CCH, the Medicare and Medicaid guide. Is there a good place for P&A’s to start when they want to collect state….

Jane: Yes. That’s a terrific question and that’s just a great question. The critical thing that you have to get your hands on is the managed care contract. The problem is that in most states where we work, they…the states are loathe to provide you copies of actual managed care contracts because the managed care companies say that there are business secrets in them. So what you….if you can’t get the actual managed care contract, what you can and should try to get is the…what’s called either the model contract or the RFP. Request For Proposals. Typically what we see in the managed care context is contracting every two or three years. Of course, there are provisions in the contracts that allow them to be modified or terminated over the course of that, but in terms of major renegotiation, generally happens every two to three years as we’ve seen. So get a copy of the RFP or the model contract, whatever the state is calling it and that is going to give you a pretty good sense of what it is the providers participating in this system are dealing with and what the managed care and state have agreed to. Now some states have that posted on their web sites. We’re doing some in depth consulting in Ohio now and I know just from working there that they have printed all of their RFP’s and model contracts on their web sites and you can just download them from there. There is a section in there that will talk about grievance and appeal. Your state may also have state regulations that deal specifically with due process and the managed care contacts. Quite frankly I haven’t seen as much of that because a lot of…one reason is because so much of what happens on the ground is…is really dictated by these contracts. Okay so….

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Female: Jane. You had mentioned something. I wanted to touch on. When you talk about the idea that managed care and companies aren’t going to want to let their contracts get out because they have business secrets. That’s something that pervades the managed care and just the privatization of healthcare in general. The idea that things that…the crucial pieces of information, the identity of a provider, a provider’s opinion, the context of the….the contents of a contract, all nature of things, they may…a private entity may say well that’s…that’s secret. That’s our business secret and that’s not…and that’s a battle that a lot of people are fighting in different states.

Jane: Yeah. That’s a great point. That is very true and we have dealt with it here. We have responses for that and just one thing to keep an eye out for it’s something that you might not initially put together with this issue, but there is a case in Connecticut right now that’s under way that is dealing with the freedom of information act and the ability to get information from managed care plans through the freedom of information act. Our argument has been all along that these managed care plans are really an extension of the state. They’re an agent of the state. They are controlled by the state contract, by the state regulations. They’re doing what they’re doing entirely because of a state statute or regulation and thus are a state act or a state agent and that has great implications for not only the ability to get information from them once you have filed a compliant, but also who you may decide to sue if you file a court action.

Alright. So let’s talk a little bit about the managed care appeal. Now remember an appeal is something particular here that we’re talking about. That’s where a service is being denied or terminated or…and in those context an appeal may be filed by either an enrollee or a provider. Now that’s a significant thing is as I’m talking because one of the issues that we have in the non managed care context is what is a claim. Under the due process clause in the statute, remember, AA3, it says that you get an opportunity for a hearing when a claim is denied or not acted on with reasonable promptness. There is some case law to say that a claim can only be submitted by a provider. You know, in other words it looks at it as a term of ____21:37. However, in…now we have a regulation….I’m talking out loud here, so this…you may want to just put this in the circular file with other thoughts here, but because this regulation says an enrollee or a provider may file that may give some leeway in the other area to argue that a claim is really something that is coming from an enrollee or a parent. A plan has to give 20 to 90 days from notice of its action to allow an individual to appeal and must give a written notice that includes the reason for the action and how the person can appeal. This sounds a little bit like the typical due process for those of you who have worked in…in the…in the outside the managed care context I’m sure.

There are two types of appeals in the managed care context. One is…remember…one is an expedited appeal and this is what you…the process to use if you’re life or health is being seriously jeopardized and under this process they must take action within three working days. This is an absolutely critical feature of these managed care regulations and one that we really fought very hard for, that the service is being withheld, in other words, the person is being told no you don’t need this, as opposed to arguing…arguing over…over a service that’s already been provided. I just saw something pop up. What is

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RFP. That’s a request for proposal. And that is what states sometimes call their model managed care contracts. Back to the managed care appeal. So you have an expedited appeal for very serious denials and then a standard appeal and under that context you should get a decision within 45 days. The individual making the decision should be someone who was not involved with the prior decisions and if medical necessity is at issue, a health professional with appropriate clinical expertise should be involved. Now we have problems with this whole managed care appeal process. I will tell you quite frankly because everyone within it is really operating under the incentive of managed care and before we move on to other managed care, I will just tell you that our typical advice in the managed care context is to get through this process as quickly as you possibly can. If you don’t have to exhaust it, you may want to consider not exhausting it and going straight to the state agency process. On the other hand, if you do have a provider that is working hard for you within the managed care plan, that might be a reason for working with this appeal process. But generally our advice is try to get through this as quickly as you can and consider not using it at all if you don’t have to.

So on to more…to due process. Now this is what will apply in states that do not have managed care where your clients are not enrolled in a managed care plan from the outset and also what applies in states where you may have clients who are in managed care who either may or may not be required to or asked to first go through the managed care plan appeal process. And on to Sarah.

Sarah: Okay. So this is…these are basics of the federal requirements for the…for the fair hearing process. First of all, let’s, you know, starting from the very beginning. There is a responsibility to inform the public, the Medicaid beneficiaries of what the hearing procedures are. State agencies have to issue notice and hearing procedures and publicize them. At the time of the application and any time the agency takes some action that affects…that affects the claim for services, the agency has to inform the applicant or the recipient in writing of the right to a hearing, the method they can use to get a hearing, and the right to represent themselves, or using a legal counsel or relative or a friend. Yes. Remember these apply to not just people who are in the system, beneficiaries, but apply for people…apply to people who are applying for eligibility. On the right to representing yourself, keep in mind that there is no paid right…there’s no right to paid legal counsel. And the fact that a relative or friend can represent someone is important because particularly in settings where…where it’s more formal, there may be some resistance to allowing somebody who’s not a lawyer. On the other hand, some states have very…very formal types of proceedings that are almost like judicial proceedings and there may be issues about unauthorized practice of law because it’s only a setting for an attorney. But that’s sort of a more complicated issue. Anyway.

Onto the next. Notice is required. Notice is required whenever there’s an action. And that is a denial of eligibility or termination, suspension, or reduction of Medicaid eligibility or of covered services. It’s adverse actions that require a written notice. This is distinguishable from situations where there may be…may be the type of problem that gives rights to the right to a grievance in the managed care…in the managed care context. Dissatisfaction with the provider or something like that.

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Elizabeth: Sarah?

Sarah: Yeah?

Elizabeth: This is Elizabeth. The…the power point only says the action of termination and suspension or reduction and yet when you went through it you said at time of application. So does that mean that you’re required notice if you apply and are rejected…you apply for Medicaid eligibility and are denied eligibility?

Sarah: Yeah. It says termination, suspension, or reduction of Medicaid eligibility or covered services.

Elizabeth: Oh that’s true.

Sarah: Yeah we just didn’t put the word denial in there, but…

Elizabeth: Just confirming that. Sorry.

Sarah: Yeah. That’s okay. Alright. Could you go onto the next one? Okay. The elements of the notice…it has to include….it has to include all of these things. A statement of the intended action. The reasons for the action. The specific legal authority on which it’s based. An explanation of your rights at a hearing and an explanation of the right to continued benefits. Pending a hearing. Which Jane talked about earlier. So the statement of the intended action, that means that they are either going to deny eligibility, they’re going to reduce your services, deny services, etc. The reasons for the action. This is the part where written notices are often problematic. The…the…you will see notices that say things like medical necessity or violation of the rules or something like that. Very vague, very vague kind of explanations for it. That’s not…that’s not adequate under due process. It has to explain because this service has been found not medically necessary. Or something like that. Something that really…the benchmark sort of is does it give the person getting the notice a grounds to…to argue about it. To understand what’s being…what the reason is and to give them an opportunity to…to argue against it. Specific legal authority, simply is citation to the entire federal Medicaid act or state…all the state laws governing Medicaid is not…is not adequate either. And then the explanation of continued benefits. Something to keep an eye on. It is…it is authorized certainly for the state agency to recover amounts paid for benefits that were wrongly given. For example, if a person is…is told that their benefits are being cut off and they decide to…request that they continue to get the benefits pending the hearing, if it turns out that they lose, the state may take action to recover the cost of those services. And what’s more, states are allowed to put that on the notice. What happens is that if it’s very prominent this will discourage people from requesting a hearing or requesting benefits pending a hearing. And unfortunately there…there is….that’s something that is allowed by the law. But there is a point at which, you know, I think one can make an argument that if it’s…if that’s all that the notice says to you, then the notice isn’t adequate. Again, you know, you hear me being sort of being, you know, being relativistic about this. But that’s because some of these things are clearly spelled out in the regulations and others

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are a matter of interpretation. There are some cases on some of these issues too. So if you have particular issues that have arisen and you want to ask us questions about it, you know, we’d be glad to talk to you about it. So, the advance notice has to come generally speaking 10 days before the date of the action. If there is fraud indicated, then it only need be five days before the intended action. And there are other exceptions to the ten day advanced notice before terminating, suspending, reducing, denying. Unless the recipient is confirmed to be dead, declines the services in writing, their in an institution in which they’re not eligible for Medicaid. An example of that being a person…an adult who is in an institute for mental diseases, which that treatment is covered by Medicaid. So there wouldn’t need to be…there wouldn’t need to be advanced notice. When the recipient changes residency or the whereabouts is unknown. It’s on the recipient to keep the Medicaid agency apprised of where they are. And finally if it’s based on a change in care prescribed by the recipients physician. Now obviously the…oh don’t go ahead yet Elizabeth please. Obviously this doesn’t….this doesn’t apply if you’re asking for something….if you’re asking for something new anymore than the benefits being paid pending a hearing applies under those circumstances. So I see a question coming up, what about request for DME, wheelchairs, how does the ten day rule play out here. Again, if it’s a request for something that you haven’t gotten, then there’s no need for advanced notice. You know, it just isn’t….it…practically speaking it doesn’t work that way.

Okay so those…onto the next one please. The right to a hearing. Now keep in mind there’s two separate tracks we’re going down. First of all there is the right to a notice…to advanced notice and there is a right to a hearing to contest a decision that the beneficiary or applicant doesn’t agree with. Not every circumstance that gives right to the right for notice, gives rise to the right for a hearing. So you have a right to a hearing when a claim is denied or not acted on with reasonable promptness, when the agency has taken an action erroneously, or a managed care entity has acted incorrectly. Keep in mind that the agency need not grant a hearing when the sole issue is a federal or state law requiring an automatic change adversely effecting some or all recipients. Now the devil is in the details here. The scenario that this is envisioning is let’s say your state decides that it’s going to eliminate an optional category of eligibility. We’re no longer going to cover poor elderly and disabled people with incomes under 100% of poverty. They would argue that if you’re getting terminated for this reason, you don’t…you don’t get a hearing. Because there’s nothing to argue with. They’ve changed the law and you no longer have a basis for arguing that they’ve done something wrong. On the other hand, what can be tricky here is if you…if a person wants to make an argument that the change in the law….in the federal or state law doesn’t apply to them. If for example they believe they should qualify under another category of eligibility. If there’s some determination being made that they fall into a certain category of people and they dispute that. This is where litigation happens.

Female: Yeah. Let me just mention one thing on that. One thing that is sort of creeping in here and it comes out of Tennessee and that is a recent decision from the……I guess a decision last year in a case called Rosa I think is the name of it. A six circuit court of appeals case that said that the…that the attorney general who works for the Medicaid

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agency or Ten-Care can be the one who decides whether or not the sole issue is a federal or state law requiring an automatic change.

Sarah: Which, you know, you’re kind of out of luck. And if anybody wants that decision, we can give you the citation if you e-mail us. Okay. So the other sort of aspects to the right to a hearing. First of all the agency is allowed to require that you request a hearing in writing. They don’t have to, but they generally are going to want to. And that’s true in most states, that it is required that you make the request in writing. In some cases we have negotiated and other advocates have negotiated that if a person makes an oral request for a hearing or expresses interest in a hearing, that there should be…they should be assisted in making a written application for a hearing. There’s a general requirement that the agency can’t interfere with the freedom to request a hearing. The agency may assist the claimant in requesting a hearing. An agency has to allow reasonable period, ranging from no fewer than 20 days to no more than 90 days to request a hearing. 20 days is pretty short. What you see…what typical is 30 to 60 days, although there are a number of states that allow up to 90 days. And finally the agency may hold a group hearing. The federal regulations authorize this. And we, you know, we have always advised people that if you have sort of a general cross cutting issue of law, it may be useful to have a group hearing so you can get something akin to class relief or declaratory relief. On the other hand, we have…we’ve talked to some advocates who tried to do this and they have…we haven’t talked to anybody who’s found it particularly effective. That’s not to say that it might not be in certain circumstances.

Female: If you’re thinking about doing it, you might really want to catch up with the P&A folks in Maryland, Kathy and Ciras and Gail Hefner. Because they have…

Sarah: They tried it. Yeah and they had different problems with it as we recall. Anyway so in addition the right to hearing…the basics that it has to allow are the opportunity to be heard by an impartial hearing officer. The right to review their case file and records, to present witnesses and other testimony, to cross examine witnesses, to represent self or represent yourself or be assisted, and finally the written decision should be out within 90 days with the request for a hearing. I can just imagine some of you shaking your head and saying yeah right, because many of these things are observed in the breech rather than otherwise. The agency may request a waiver for the 90 days on the decision. It may give itself an extension. It may just ignore the time limits altogether. The opportunity to review the file and records, the state agency or the particular case worker can…can…can throw a lot of obstacles in that. It’s, you know, in some cases you may be able to get them to make a copy of the file and give it to you. In other cases they’re going to make you run around for it. And anything else to say on those things? Yeah. Okay.

So, the….if the hearing involves medical issues, the hearing officer….the hearing officer that is, is entitled to get another medical assessment at the agency expense. That’s…that’s not a right that can be invoked by the person who is going through the hearing. The decision has to be based exclusively on evidence introduced at the hearing and this is really an important requirement. Because in the sort of…..you know, I’m sure many people out there have been at administrative hearing of different kinds where all of the

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sudden, you know, some slew of documents comes out or a doctor’s testimony or something that you’re not prepared for. That is verboten by the federal regulations. And again, we continue to emphasize that if requested the benefits have to continue pending the administrative decision. That’s only if we have something ongoing. Not if you’re talking about getting something new. We…before we go on, let’s talk about the burden of proof.

Female: Let me mention very quickly and I’m so sorry. I can’t remember the name of it, but there has been a very recent decision out of Texas. It’s a case I love. I think that the advocacy inc. folks did the case. Jonathan something may be the name of it. But what was happening there, as I’m sure you all deal with was there were approvals of services in chunks. Chunky approvals. So you’d get three months of private duty nursing. And so the way the appeal process was working as you can imagine, is that the service would always come to an end or the state would say that is the service. Is three months of private duty nursing. So there’s nothing to continue. And this decision has some wonderful language in it about that and does not let that fault demarcation by the state and by the system preclude the hearing from being held and continued benefits.

Sarah: I can’t think of the name of it either.

Female: Jane it’s Jonathan See….Enray Jonathan See I believe and we have a copy of that case at NDRN. You could just e-mail us.

Female: Yeah. That’s a great case. You may just want to send it out.

Female: We love that case.

Female: Yeah…we’ve sent it out over the community integration list serve. So if you’re on that, you can just look back on the archives of the community integration list serve. If not, just give us a call.

Female: Yeah. That’s a great decision. And you know, for some…for some of you this is all, you know, a lot of blah, blah, blah. But for those of you who have had to tangle with it, that’s a really pesky part of the continued benefits argument. And there are a lot of particular wrinkles on it and the context to prescription drugs and for various litigation related reasons we’ve done all kinds of memo-ing about that. So if that’s something you’ve run up against, let us know. Because we’ve obsessed about it.

Female: We’ve come out flat through the clothesline thingy.

Female: Anyway. Burden of proof, memos, plenty about burden of proof. Generally speaking, the burden of proof is on…is to show that you need a service is on the beneficiary. They need to come forward with some showing that…that there’s a need for this service. And that tends to carry through to the administrative hearing. The burden is on you to show that you need it. On the other hand, there are…there are some deviations from that in particular state laws. There, you know, simply because you have the, you

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know, a beneficiary may have the burden of proof doesn’t mean that…that if you put up evidence and the state puts up rebuttal evidence, that’s the end of it and they win. I mean there will be a weighing of credibility and other things like that. We wrote a fact sheet about this didn’t we?

Female: Yeah. We have. It’s an important thing to check because there are no federal rules on burden of proof and so where you will be checking is either and/or your state administrative procedure act or state common law.

Female: Yes and that’s actually is on the task portion of the web site and if you click onto disability issue areas, Medicare and Medicaid, Q&A’s and fact sheets, it would be under enforcement section. Or you could just call me.

Female: Okay. We’re going to pick up the pace a wee bit for these last few due process slides so we can talk about enforcement. The decision has to be in writing, have a summary of the facts, identify the specific law supporting the decision and indicate the right to request further review, including judicial review. In many states there is another…there is a right to proceed to state court to appeal an adverse administrative determination. There is a regulation requiring that the public have access to the state’s agency hearing decisions. This could be tricky to find, but if you want to request them, that’s something nice that you can…you can….you can cite in your letter to the state agency. Okay. Corrective action. The agency is required to make corrective payments if…if a person….if payments have been made out of pocket by an individual beneficiary or for or to a hospital or provider that has…that has, you know, that has wrongly been denied payment. There is federal financial participation available to states for various aspects of the due process system carrying out the hearing decisions for…for, you know, some of these other items here.

Female: Just a quick on that. There is a recent case out of California, Conrad versus Shurey. That gets into some of the…gets into the prickly issue of making corrective payments when the individual has paid out of pocket. So just keep in mind that is an issue as well.

Female: Right. Okay so here is some of the classic problems that you will see that there’s litigation on these and memos and you name it. Inadequate notices, failure to continue benefits pending the decision, managed care mess ups galore, failure to provide agency witnesses, and hearing decisions that take a lifetime to come out. These are all commonly recurring problems that different advocates have wrangled with and while nobody has a magic bullet for these problems, there is a fair amount of resources to draw on to get some idea. Some other ideas about how you can advocate outside of the litigation context, have meetings with the Medicaid agency personnel. Remember that there is a requirement for a medical care advisory committee that’s populated in part by people with beneficiaries and people with beneficiary interest orientation. Your state very likely has an MCAC, Medical Care Advisory Committee and in some cases, say Ohio, Pennsylvania, they are very vital and effective. State legislators can be helpful in this area and there is always…there is always the beloved reviewing and comment on any

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proposed regulations or on agencies contracts with managed care entities and others. Okay.

Due process. Some arguments to…to convince your friends in the legislature and in the executive branch how important this is. It assures accountability in an area where a lot of state and federal money is being shoveled out. It is the best way to find problems immediately. It’s, you know, a good source of quality monitoring and information. Otherwise, you know, the administrative offices can be totally overwhelmed. There’s individual liability problems. And in managed care you have the extra incentive that these services have been paid for and these private companies have gotten a lot of money and they should be held to account for what they are…what they got going on. So finally as we transition into the discussion of federal enforceability, we acknowledge that as excellent administrative hearings can be for solving individual problems, hashing out certain factual patterns, there can be problems. Many of us have had the experience of the agency head summarily reversing an excellent decision by an administrative law judge. It’s necessarily limited to a single claimant. There a few states that have administrative processes for class action or declaratory type belief, but those are few and far between. Many times the forum…the LAJ may not even be empowered to hear federal claims or constitutional claims and even more frequently they may think that they don’t. And it’s hard to get systemic problems, although not impossible and in at least one state in Texas there’s no right to appeal to state court. You’re at the end of the road when the state agency head tells you to go jump in a lake. So as…so we talk about the limitations. Now I’ll hand it back over to Jane.

Jane: Well as a result of those limitations or….and particularly the one involving the need at times to address systemic problems, the…that process…that due process process isn’t adequate. So people turn to state or federal court to file original actions. We’re going to focus the rest of the time mainly on federal court. And the vehicles that individuals have used to get into federal court for the most part over the last 42 year history of the Medicaid program, is this provision you see here on your screen now. 42 USC section 1983. That’s because when you look at Medicaid itself you don’t see a provision in there that says if you are harmed or if the state or federal government violates this provision, you can go to court. It’s not like Medicare has a provision that allows for appeal. This, however, this section 1983 however does provide an express cause of action to every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof, to the depravation of any rights, privileges, or immunities secured by the constitution and laws…and laws I just said, shall be liable to the party injured in an action at law, suit and equity, or other proper proceeding for redress. So basically what section 1983 is…or what your requiring to make out of section 1983 as shown on the next slide is that you have a depravation of a right, that is a federal right that is secured by the constitution and laws by a person acting under color of law. So for example you would be alleging that this provision of the Medicaid Act establishes a federal right. This provision, this right that you have is indeed secured by either the constitution if you’re going to bring a 14th amendment claim in a due process context or the Medicaid law itself and that you’re being deprived of this

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right by a person acting under color of state law. Clearly that’s the state official and that’s the person in federal court that you can sue. A state official. Not the state itself. And you can…just to digress for a moment here. In terms of providing for legal and equitable remedies, the remedies that you can get here are because of sovereign immunity limitations, a declaratory and injunctive relief for ongoing violations of federal laws. Section 1983 provides for attorney’s fees and it also, although we’re focusing here on federal court, you can also bring a section 1983 in state court because state courts are not courts of limited jurisdiction. There are some paces that are important to keep in mind in…in sort of framing a 1983 case. The first one is Maine versus Pepitock. And it says what…in very succinct language that section 1983 means what it says in that laws includes federal statutes acting alone. Now behind this little parenthetical which all of you are going well of course it would, because it says laws and that’s essentially what the case says. Is a huge fight and this case Maine versus Pepitock is at the heart of the fight and that is that the federalist society and other very conservative jurists who believe that federal courts have been too involved in enforcing federal laws, feel that these laws that are going beyond laws that are enforcing the 14th amendment itself are not intended to be within the scope of section 1983. So it wouldn’t, for example, extend to the new deal programs like food stamps, like Medicaid, like the housing programs. And so in a lot of the cases if you ever get into these, one of the things that is lying back behind them and will have certainly been briefed in U.S. Supreme Court cases dealing with them, and many of those briefs by the way having being filed by John Roberts, is the request to overrule Maine versus Pepitock.

Female: Or Supreme Court chief justice.

Jane: Yeah. Okay. Sorry. And another case that’s very important is Golden State Transit versus City of Los Angeles. Again, it’s a case that has been around for a long time and you sort of see in that case the surfacing of this notion that the plaintiff must allege a federal right. Now in the next breath Golden State Transit goes on to say that as a broad remedial statute, section 1983 should be broadly construed, but this notion of a federal right has been picked up on in subsequent cases and has become the heart of the enforcement requirement for Medicaid and other cases. So what you have to do is find a federal right. And the traditional test and let me just back up to say, the way this comes up is you file your complaint very carefully pled, having consulted with people who work with these issues on a daily basis to make sure that it’s avoiding any unknown pitfalls and so you filed your very carefully pled complaint and then the state files a motion to dismiss saying that your clients don’t have a federal right to enforce the statutes that you have included in your complaint. When that happens a traditional test has been applied and in determining whether or not to grant the motion to dismiss, the court would ask three questions: was the provision intended to benefit the plaintiff, does the provision establish clear requirements for the court to enforce or is it so vague that the court can’t tell what it is being asked to enforce. Is the provision mandatory on the state. If those three questions are answered yes, then the question becomes does the statute evidence the lack of a comprehensive remedial scheme and this is taken from Blessing versus Freestone from a Medicaid case, Wilder versus Virginia Hospital Association.

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Importantly in Wilder the court held that Medicaid did not have a comprehensive remedial scheme.

Female: Yeah and just to give you a little perspective on that. There are very few times has the Supreme Court held that a statute has the kind of comprehensive enforcement scheme that would indicate, you know, that would overcome the presumption that there’s an enforceable right. And one of the classic examples being the precursor to the IDEA. What was then called the Education For All Handicapped Act. And that, as some of you may know from having two hats in your organization, there is a very elaborate due process procedure prescribed in the IDEA that has an expressed right of federal judicial review. So it’s gotten…the bar is high on that.

Jane: Yes. Let me say that this is…this battle royale that has been going on about the ability of poor people and people who depend on spending programs like Medicaid and food stamps and other Social Security act program, child welfare and adoption assistance act programs, is huge. And the Renquist court really targeted this kind of individual enforcement and in a case called Penhirst State Hospital versus Holderman, it said that the typical remedy in a spending….for a spending clause violation is not for the individual beneficiaries of the program to bring an action in court, but for the federal government to terminate federal funding. To terminate it’s federal funding. Obviously a result that we wouldn’t want to have happen because that would mean that the program would…or that part of the program would not have it’s very vital federal funding. But after the Penhirst case, the court has, in almost every instance, except that 5-4 decision in Wilder, not enforced the spending clause program that’s in front of it. In Blessing versus Freestone, the case that you saw before the court said that the provisions that were cited had some difficulty telling what those were, but it did not see anything enforceable in front of it that was….any provision in front of it that was enforceable and it remanded it. But in a case called Suiter versus Artist M., an adoption assistance and child welfare care, the court said that that provision in that case was not enforceable and went on to say that in programs that are set up with a state plan, such as Medicaid, the…what the right was…what the federal right was, was to have a written…to require the state to have a written plan that had been approved by the secretary. Well every state has that. The right didn’t extend, however, to actually getting the details of the Medicaid program. Well not surprisingly Suiter versus Artist M. caused a great upheaval and so Congress went into the Social Security Act and amended it in 1994 to add this provision that you see here. Section 1320A-2. It’s repeated in section 1320A-10 and it’s not the greatest example of clarity, but the…and what you see here is not the provision itself, but the legislative history to the provision, which says that the intent of the provision is to ensure that individuals who have been injured by the state’s failure to comply with the federal mandates of the state plan titles of the Social Security Act are able to seek redress in federal courts to the extent they were able to prior to the decision in Suiter versus Artist M. Now prior to that date, that was Wilder versus Virginia Hospital Association. That’s important for us because we read this provision to six in time, the test that is applied in Social Security Act cases to the Wilder test.

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Female: Keep in mind though that this is what we’re quoting here is the legislative history. Not the language of the actual statutes. So you may get a justice Scalea type who says, well, who cares.

Jane: Or you can just look at Justice O’Scallon’s opinion in the Sanchez V. case who says well who cares. That’s a Medicaid case. But suffice it say that the language you need to look it up. You can…you’ll see it. You’ll see what they’re getting at. I would say the congressional intent is what we’re after here in terms of creating a federal right. The congressional intent is crystal clear. That these Social Security Act titles be privately enforceable. So a little game is going on. The next case….do you want to say something else?

Female: Well I shouldn’t get into it, but you know…there…when…when…when now chief justice John Roberts was going through his confirmation hearings, senator Lahee asked him specific questions about Gonzaga and about this whole issue of enforceability through section 1983. And what justice…then judge Roberts said was, all we’re asking is that Congress just say when they want a statute to be enforced and that sounds all very fine and reasonable until you consider that for better than 30 years that was not the case. The presumption was when Congress enacted a law, it was enforceable and so that…why would Congress say it explicitly when they thought that it went without saying. So it’s pretty….it’s fairly disingenuous…but….

Female: Winning nonetheless.

Female: Winning nonetheless and because we’re sitting here doing web casts and justice John Roberts is presiding over the Supreme Court, but maybe us dogs will have our day again sometime.

Jane: And sending Kennedy over to the Senate to ask for more money for federal judges I might add. Okay so going on to the next slide, what has through sort of another kink in the…in the rope is this Gonzaga decision and it’s cited here….Gonzaga University versus Doe. It’s not even a Social Security Act case. It’s a family education rights and privacy act case. But it cited the Penhirst case, which I mentioned before to say that private enforcement of spending clause enactments is rare. And that if you were going to enforce a federal enactment that doesn’t have an expressed cause of action in it through section 1983, then what needs to be clear is congress unambiguous intent to confer individual rights. The court says that what we’re going to do is use the implied right of action test to determine if this plaintiff is the intended beneficiary of the statute and as you know if you’ve been working or from law school, it’s hard to get an implied right of action. Basically the courts will be looking for rights or duty creating language that has a focus on the individual versus in the aggregate and if there are provisions for enforcement in this statute at all, any sort of provision of enforcement, the court will take that as an indication that Congress did not intend to confer individual rights, in other words, did not intend to allow individuals to enforce that federal spending clause enactment through section 1983. I want to mention just one other case very briefly. City of Rancho Palace Verdis is the Supreme Court's last statement on section 1983. It’s a telecommunication

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act. It focuses on whether or not there’s a comprehensive enforcement scheme and Sarah pointed out previously that it is a very high standard indeed and it is. It’s your looking at in terms of this aspect of the test whether there’s a more restrictive private judicial remedy. So it’s not…the fact that there’s an administrative review process wouldn’t tout towards this prong of the test. But what is of concern in this case is that Scalea, in his decision, didn’t talk at all about the very heavy burden that is placed on the defendant in showing that there is a comprehensive enforcement scheme. Suffice it to say, the supreme court does remain interested in these issues and in a Medicaid case, which is on the next slide, Farma versus Walsh, you can see that two of the justices in an otherwise….in decisions that otherwise agreed with the majority felt compelled to write separate concurrences where Justice Scalea said that he didn’t think that the plaintiff’s should be in this Medicaid case at all because the process they should have used was to exercise or go through the fund termination process as it called it and then only after not getting what you wanted out of that process could you appeal through the APA. The problem with that is that there is no process and then Justice Scalea…I mean Justice Thomas went for his part of the….for his concurring opinion. Said that Medicaid is just a contract and there’s no third party enforcement of that contract. In other words, what he’s doing is he’s saying we’re a spending clause program and this is very radical as you can tell, where a spending clause program is involved because this state doesn’t have to participate in that program. The federal law, in and of itself is of no consequence. What is the legally operative document is the contract between the state and the federal government when the state takes the feds up on their offer. And that’s what’s the law here. And it’s just a contract and Medicaid beneficiaries don’t have third party rights to enforce it. It’s not clear how justices Roberts and Alleoto will come down on this. Scalea and Thomas were unable to get other judges, particularly Kennedy, who would be the only one left in play there to join them, I think he did not join them on these concurring opinions.

Female: ____________1:07:03.

Jane: Yeah. Keep in mind though that Roberts has been a chief amicus friend of the court proponent of overruling Maine versus Teebatodo. Kind of all of which this is based.

So let’s look at what’s going on in the lower courts at this point. Some of the provisions that are of great importance to Medicaid enforcement is the idea that you get Medicaid services and eligibility with reasonable promptness. It has a good enforcement history. As you see from these third circuit and first circuit citations. But be aware that there is a horrible developing trend to view medical assistance or Medicaid as payment only and that is what the sixth circuit and the tenth circuit have both recently held. In other words, Medicaid does not…when you get Medicaid, you’re not, as a beneficiary, getting a right to the services themselves. And the statute does not place upon the state an obligation to provide actual care and services or to provide for, I should say, actual care and services, but rather to make payment to a provider when and we would say if, a claim is ever submitted. That’s huge. We’re working on a legislative fix. Anyone who is interested in helping with that, please get in touch with us.

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Female: Anyone who wants more information on that, you guys just did another Q&A on that as well. I think you touched on those decisions.

Jane: We did. We did and that was…that was just the last one.

Female: Yes. So.

Jane: By the way, I’m glad you mentioned that. There is an extensive issue…I think it was an issue brief actually on this that was our December issue brief which we actually posted in early January which talks about both 1983 and preemption. I’ll go through these couple of things pretty quickly here. These are other provisions. AA10 which is very important as well because it says that individuals who meet the eligibility requirements get the services or to get the services that are listed in section 1396DA. That has been upheld. The nursing home reform act has been upheld and when I say upheld, I mean the court has found that it creates federal rights that are privately enforceable through section 1983. A couple of other examples of statutes that have fared pretty well under these ever heightening enforcement tests, are the freedom of choice provision AA23, which allows an individual to choose from among qualified providers. The state can’t require you to get your services from a certain provider unless it has a waiver of section of AA23. And then the early and periodic screening, diagnosis, and treatment provisions have been upheld by two federal circuit courts, again, a good enforcement history. That’s not true for all Medicaid provisions. You see two here that are in deep trouble. Section AA30, the equal access requirement has been held to be unenforceable by the 10th and the 9th circuits. Also by the first circuit for providers. It is currently before the fifth circuit. It was actually…we forgot to include the sixth circuit on here. The sixth circuit held that it is unenforceable in the West Side Mother’s case. AA17, reasonable standards, which had been enforced countless times by countless courts. They certainly knew how to enforce it and were enforcing it under this new more restrictive test. Has been found to be unenforceable by both of the federal circuit courts that have looked at it. But that last case, Langford, is our segue into preemption.

Female: And for all of you who are frantically writing this down, Jane and Sarah have maintained a wonderful docket of 1983 decisions. So you don’t…since these things are changing on a weekly basis, you can get those from Jane.

Jane: Right. And we try to update that four times a year and make it available to you on request.

Female: And we don’t…we keep it close to the vest so you’ll have to e-mail us and ask for it. It’s not…you can’t just find it lying around on our web site…virtually lying around.

Female: Yes and we have just completed an exciting preemption docket that’s still a work in progress, but we are trying to track Medicaid cases in which they have used a preemption theory to enforce it. And it talks about the history of…of preemption like concepts. Okay so as you may recall from law school days, there are three basic types of

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preemption. There is expressed preemption. Field preemption and conflict preemption. Expressed preemption…the best example of that is…is the ERISA, Employment Retirement and Income Security Act. Recent example of this was that the fourth circuit held that the Wal-Mart bill, the bill requiring…that Maryland pass requiring large employers to offer health insurance was held to be preempted by ERISA. Which has an expressed provision that it regulates employee benefit plans. There’s field preemption where a law is so extensively regulated scenario that it’s…it’s thought to indicate…it’s taken to indicate that Congress meant to occupy the entire field. Like some communication…telecommunications acts are like this. Medicaid is not one of those by the way. The theory that would be used in the Medicaid context would be conflict preemption. And that is where there’s a direct conflict between a federal requirement and a state requirement. And the way it’s articulated is the state law would stand as an obstacle to the achievement of the federal purpose. So that’s the kind that…the conflict preemption is the type that…that we generally are talking about.

Female: And to explain you would raise the preemption claim as opposed to raising a section 1983 enforcement claim?

Female: Well it’s more complicated than that and we will talk about that as we go along. So the source of the preemption theory is that…is the supremacy clause. And the Supreme Court has affirmed relatively recently that it’s beyond dispute. The federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights. A plaintiff who seeks injunctive relief from state regulation on the ground that such regulation is preempted by a federal statute, which by virtue of the supremacy clause of the constitution must prevail, presents a federal question, which the federal courts have jurisdiction under 28USC 1331 to resolve. So the idea here is there are two sort of angles on this. The idea being that when you’re talking about section 1983 you are talking about a mechanism that you…that basically it’s almost like the hardware that you utilize the software of particular statutory requirement and determine whether…whether there’s a right that could actually be enforced. Preemption is almost like two…two…..two, you know, two cars colliding. You’re looking…you’re arguing that these two…these two things can’t function together and that the federal law is going to have the right of way and what you have to prove is that there’s actually a conflict. There’s none of this stuff about whether you have an enforceable right. So back to Elizabeth’s question, this is…this is a theory that can be plead in the alternative. You can say we have a 1983 claim and what’s more there’s preemption. In some cases there will not be a preemption argument. In other cases there will not be a section 1983 argument. It depends on the particular type of problem you’re looking at. So here’s the supremacy clause. The constitution and the laws of the USA and all treaties shall be the supreme law of the land. And judges in every state are bound by it, not withstanding any state or constitutional law. And so that is the source in article IV of the constitution. Now what’s…back to the 1983 structure, you talked about jurisdiction. Whether the federal courts have jurisdiction of a 1983 claim. Yes they do. Whether the federal courts have jurisdiction over preemption claim. Yes we just saw the supreme court says that they do. So what’s next? In section 1983 you’re looking for whether there’s a federally enforceable right. The parallel in the preemption context is much less flushed out. It’s

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still…it’s still kind of a morphis and there are…the cases are sort of all over the place. But one of the articulations of it is, that there is an implied right of action under the supremacy clause to enforce the federal law. So, again, you don’t have to look at the particular federal provision to see if it confers a right. It’s the supremacy clause that you’re looking at. Now this makes it sound very neat and clean, which it isn’t necessarily. The cases are all over the place. But this is one…one way to sort of…to sort of structure it.

So when you’re talking about what will preempt on the next slide, the sources of a requirement that have preemptive effect is obviously the US constitution. A federal statute, in this case, the Medicaid statute. Federal regulations can have preemptive effect and that’s another contrast to the section 1983 context where it’s all about congressional intent and a regulation not being enacted by congress doesn’t evidence any congressional intent. Finally, federal agency orders or as we will see in some of the cases, federal agency sub regulatory guidance such as CMS, the state medicaid manual, or CMS’s dear state medicaid director letters have been found to have preemptive effect.

Jane: In some very unusual and on the edge cases. Don’t go run out there and….

Female: Don’t try this at home is what Jane is saying. And we’ll talk about that more when we talk about the Langford case. What the object of preemption…certainly state statutes and state regulations, possibly state agency orders, and written policies and directives, like a state….like a state handbook for how you administer the Medicaid program. Or state written policies. It’s very hard and again, this really I wouldn’t try at home, to try to argue that a state practice is preempted. That is an area where preemption isn’t going to get you very far. Because you’re looking at the clash between the written rules. And if a state is just doing something wrong, first of all you’re going to have proof problems, but it’s not really…it’s not really a preemption type of argument. So, that’s a contrast. So compare and contrast. Our preemption versus 1983. The Gonzaga Blessing Wilder Federal Right Test doesn’t apply in the preemption context. And in addition, the courts will take a much broader view of the congressional history and the scheme of the statute. The 1983 juris prudence is very, very rigid and very closely tied to every word of a statutory provision. Preemption is still, at this point at least, somewhat more freewheeling. They look at what the statute…what’s the purpose of the statute and is the state law getting in the way of that. And finally federal regulations can form the basis of the claim. Because the supremacy clause doesn’t distinguish between types of laws or regulation as the law. Finally, we haven’t talked about this, but there’s the release issue. You can get an injunction against the state law in the preemption context. You can’t get damages. And unless there is an independent basis for it, you can’t get attorney’s fees like you can with section 1983. There is one case…it’s called Gurling Global Re-Insurance or something from the 9th circuit where they said, well, it doesn’t look you have a section 1983 claim and you do have a preemption claim, but so…we think you should be able to get attorney’s fees anyway. It’s not something that…that is very clearly reasoned, but if you want this citation of the case, just e-mail me.

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So let’s talk about specifics. Again, there is…unlike section 1983 where the paths are pretty well worn, there is not, you know, the snow is pristine in some areas here in preemption. I’m just full of metaphors today.

Female: You are. You’ve been in the south awhile here I can tell.

Female: It’s rubbing off on me. So there, you know, there…there’s…there’s not a lot of cases to point to. There….first of all the supreme court said in 2005 that there was a presumption against preemption and there are a number of cases that say, particularly in the Medicaid context, there’s a presumption against preemption because it is a cooperative federal and state program and they’re meant to operate together. On the other hand, out of, you know, seemingly out of the blue, there was a case that was a case filed in federal court arguing that the…..It’s the Arkansas Department of Health and Human Service and I said there was an invalidated conflicted Missouri law. Well that’s obviously not right. It was the state law of the state in which the case was happening. But the….yes someone was pointing their arrow to it.

Female: Thank you Elizabeth.

Elizabeth: I was trying to fix it.

Female: It’s too late. Anyway, but they….without using the word preemption or even conflict, they held that there was…that there was a difference between the state law governing Medicaid liens and the federal law and that therefore the Missouri law was unenforceable. It’s interesting because there’s no talk of any rights or any, you know, any comments particular to Medicaid. It’s a simple straightforward let’s look at the two statutes. The state one stands in the way of the federal one. It’s out.

Female: It’s interesting too because of…about a year or so and before that thought was this case from Wisconsin, Brummer, and it had…

Female: Bloomer.

Female: Bloomer. And it had the most unusual group of dissenters. It was Scalea, Ginsberg, and O’Connor I think and they were all saying that the state law essentially was preempted by the federal law. I don’t think the dissent ever mentions those words, but they were saying the federal law is clear and the state law must yield.

Female: Yeah it’s called Bloomer versus Wisconsin Department of Family Services or something like that against the Wisconsin Medicaid Agency and the supreme court case from the last is maybe 2003 and 2004. But anyway, so let’s talk about our favorite case, Langford versus Sherman. Now we’d already put….we’d already pointed out that….that the reasonable standards provision was found by the 8th circuit in this case to be unenforceable under section 1983. But they went on…it was plead in the alternative under 1983 and under a preemption theory, the idea that this particular state provision, which strictly limited durable medical equipment and oh yeah we didn’t….we…it’s 451

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___ 3rd 496 which frighteningly Jane knows by heart…we made this when it was just out. Anyway, the court said, okay, there’s no section 1983 right, but preemption claims are different. You just look at whether the state law is standing as an obstacle and so they looked at Missouri’s strict limitation of durable medical equipment and they said first of all, it violates the reasonable standards provision, because it’s unreasonable and it’s in conflict with federal regulations and what’s more guidance from the centers for Medicare and Medicaid Services make it clear that this is wrong. That it’s not what the state is supposed to do. And so this case is funny. It’s another murky sort of case because the line between a conflict, between the federal and the state law and whether a federal requirement of reasonableness is being violated, is not….is not clearly delineated at all and so you can read it many times and not really get a clear picture of what they’re talking about. Basically what they said was this is unreasonable. This is a stupid law. And it’s, you know, it shouldn’t be allowed to stand under the Medicaid scenario. But they used a preemption theory to get to that result. And they did emphasize and this is, you know, particular to Medicaid, the state accepted the conditions imposed by Medicaid. They signed on for the ride and so they have to abide by all the federal requirements down to the letter from CMS to the state Medicaid agency head dealing with this particular case. And that is that. So that’s not going any…that’s back at the trial court level, but that’s another story. No one has asked to appeal that to the supreme court. We don’t know when we’ll hear what the supreme court has to say about preemption. We don’t know of anything lurking around.

Female: Well one thing that is lurking around is in the 1983 context there is unfortunate…well the…one of the decisions that we’ve mentioned here….Mandy R. versus Owens, a petition for cert has been filed.

Female: Yeah so watch that. Particularly you tent circuiteers. I know there’s people from Utah on the phone at least and….

Female: That’s kind of like ________1:25:44.

Female: Okay. You guys need some rest.

Female: And that is ignominious end to our five web casts and the court enforcement.

Female: Yeah.

Female: I’m sure we won’t be back next year. Anyway.

Female: How happy you guys get about Medicaid and I do too and so I hope that you all do have questions about this, because it’s a complicated area and if you’re feeling like you don’t even understand it enough to have questions, to formulate your questions, I encourage you to go onto the task portion of the NRDN web site and read a few of the materials around section 1983 and preemption that are in the Q&A and fact sheet section and that might help you to even formulate some questions for Sarah and Jane, but Jane

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could you repeat what you said in the very beginning about how P&A’s should go to…to other outside experts before trying these cases. I guess I just repeated it.

Jane: I will just happily repeat that. We are…we are available and happy and indeed anxious to consult with you on cases that you are thinking about filing or have gotten a motion to dismiss on or have lost a motion to dismiss on and certainly want to know about one’s where you’ve won them. This is really hard and…and we work with a lot of people and we can see how it can go right and how it can go wrong, so please, if you think you might need some help do call because we’re anxious to help.

Elizabeth: And one other thing that I don’t think you mentioned, there were a couple of slides in the due process hearing context where you were mentioning common problems and, you know, particular statutes that you might assert to overcome common hearing denial problems. And I wanted to point folks out to also under the enforcement section of the task web site, Jane and Sarah have regularly updated some fact sheets about common problems and due process hearings and the particular claims that you might try. So I would search that one out if you do a lot of Medicaid due process hearings. And…so I do want to say thank you for participating in the web cast. I will have these up on the web site eventually and so you guys can meet again in staff meetings or just listen to them at your leisure or just read the transcripts to continue to think over these issues and if you’re not actively litigating or working on due process hearings now, you can always pull them up on our web site. They are going to be on the public page of our web site, so you can also…well I don’t know if this due process one should go on the public page, but we’ll discuss that.

Female: Actually. Take that last little clip off please.

Female: Yeah. We might have to modify the enforcement number five of the web cast, but definitely one through four will be on the public page and so if you have others that you work with outside of the P&A network that you would like to help get educated about Medicaid, we encourage you to do so and thank you all for attending. Thank you Jane and Sarah. You can see what a wonderful resource they are to the P&A network. Goodbye.

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