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Medicaid: How To Appeal Denials

Administrative Law Judge

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An Administrative Law Judge is the second appeal level. Once Reconsideration has refused to reverse the initial denial, you can file to have your claim reviewed by an Administrative Law Judge. That is the term that Social Security uses for its second level appeals and chances are your state uses the same term or something similar.

This level is a hearing, like an informal trial, before a judge. You, or your representative, presents your case, Medicaid presents its case, and the judge decides whether to approve your claim or not.

Generally, you must request the Administrative Law Judge hearing within sixty days of having your Reconsideration denied.

The Overview

The denial letter after Reconsideration will describe the procedure and include a form in which to request a hearing before an Administrative Law Judge. Again, Medicaid allows your 60 days plus 5 days for mailing time from the date of the denial to submit your request for an Administrative Law Judicial Hearing.

This is the stage where you may want to consider enlisting legal assistance. Most people who appear before an Administrative Law Judge win their case, so it is in your best interest to present the best case possible and an attorney or other trained professional is likely to be needed to accomplish that.

The form requesting a hearing before an Administrative Law Judge will vary from state to state, but all will ask the same basic questions about the claim. There are some things to keep in mind as you complete the form:

  • Like the Request for Reconsideration, you need to do some planning about just how you intend to present your arguments at the Administrative Law Judge before you complete the Request form.
  • If you plan to use an attorney, find the attorney and let him or her assist you with the form. The attorney will be able to help you clarify the issues. Also, more paperwork is required if you send in this form without an attorney and engage one later.
  • The request for an Administrative Law Judge Hearing will ask: "I REQUEST A HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE. I disagree with the determination made on my claim because…:" or a similar question. This is where you outline your reasons why you think your claim should be approved. Write on a separate sheet of paper if needed. Again, it is important to include all the arguments you can think of that help prove your case. Some Administrative Law Judges do not permit you to raise any argument at the hearing that is not in your application for a hearing.
  • You will often be asked what new evidence you intend to provide. The more new evidence you can present, the more likely you are to win your appeal. New evidence may be in the form of medical records, third party testimony, or written statements by doctors, therapists and other health care providers.
  • If the form gives you a choice of whether or not to attend the hearing, experts advise that you should say "Yes." It is important that you attend the hearing and participate as much as possible -with your attorney's advice, if you use one.

NOTE: The steps listed below may vary slightly by state, but there will usually be something similar.

You will receive a confirmation letter from the Medicaid Office of Hearings and Appeals.

  • The letter will give you the date and time of your hearing as well as the address and phone number of the office where the hearing will be held.
  • By law, this letter must reach you at least 20 days before the date set for the hearing.

If you intend to represent yourself, immediately call the telephone number noted on the denial letter and ask for a copy of your file.

  • The file will show you what information they used to deny your claim and should help you determine what you need to provide to win approval.

Although these hearings are conducted in a manner similar to a court trial, they are much more informal. If you choose to represent yourself, you can do fine if you have adequate preparation and don't lose your cool.

  • The hearings are fairly informal. The only people likely to be there are the judge, a secretary operating a tape recorder for transcribing the proceedings, you (the claimant), your attorney if you have one, and anyone else you have brought to testify. In some cases, the Administrative Law Judge will have a medical doctor or vocational expert present to testify at the hearing. These people are supposed to give their objective opinion, but are more than likely to side with Medicaid's denial.
  • There is no jury or any spectators at the hearing.
  • There is no attorney at the hearing representing Medicaid trying to get the judge to deny the disability claim.

The Hearing: Preparation

Be prepared for the kind of tough, skeptical questioning that a judge might ask. For example, in a disability case:

  • The judge will often ask about education, work history, work activity, daily activities, medications taken, doctors visited, treatment received, symptoms of impairments, and whether a claimant thinks she can do something.
  • There may be a vocational expert at the hearing. "Just in case," think about the various jobs you may arguably be able to do, and be ready to explain why you could not do each of them. For instance, if you are visually impaired but not legally blind, you will have to show the presence of other disabling conditions. Explain how when the two are coupled together, they prevent you from doing the work.
  • In case Medicaid calls a doctor, become thoroughly familiar with all the medical records that Medicaid has reviewed. Be ready to point out the portions of the records that support your claim of disability.
  • Ask the Judge's clerk whether there will be a doctor or other expert attending. If so, find out as much information as you can about who the person is, and his or her expertise.

Go over your answers and practice saying them in front of a mirror so you can convey what you want the judge to know.

Be aware that the judge is likely to look at your physical demeanor when you enter and leave the room. He or she will also be trying to assess whether you are telling the truth when you make your statements.

Keep in mind that if you testify, if you have problems understanding the questions, don't hesitate to explain that to the judge.

The Hearing

For the hearing, you will go to the Office of Hearings and Appeals. Let the receptionist know you are there. Assume your hearing will start on time.

If possible, ask the clerk how long your particular Administrative Law Judge likes the hearing to last. You will usually be given between 30 to 60 minutes. You should watch the clock to be sure that you get your most important evidence testified to within the customary time. If your Administrative Law Judge likes his or her hearings completed in 30 minutes and you are at the 45-minute mark, you should be bringing up critically important information that has not already been testified about.

When you are called into the hearing room, the judge might already be there. Typically, the judge sits at the head of a long table with a court reporter to his right. You usually will sit facing the judge with the person transcribing the proceedings and any other people seated near by.

There are usually microphones in front of all of the key participants.

  • You may ask to be allowed to make an opening statement or argument. This can be a good way to focus the Administrative Law Judge's attention, but keep it brief -- only one or two minutes.
  • The etiquette differs from judge to judge, but you're on safe ground if you conduct yourself as you would in a regular courtroom. Address the judge as "Your Honor" and stand, or offer to, if you are able, when speaking unless told otherwise. Most Administrative Law Judges have their clerk tell you to stay seated when they rise, but some judges like to be accorded all of the formalities of a regular courtroom.
  • The Judge typically starts out by asking you or your lawyer if you object to any of the agency exhibits (which is the information in the file) and the basis for your objections.
  • If there are vocational experts or doctors present, it tends to make the hearing a little more formal and a little more like that of a traditional courtroom. However, in general, the Administrative Law Judge hearing is more like an informal fact finding conference. The critical issues are the witnesses' credibility, and, if the question is about disability, how the medical conditions impact the particular individual.
  • The styles of judging can differ greatly. Some judges question you themselves, and only allow the attorney to question you after they have finished. Some let the attorney question you and interrupt from time to time to ask relevant questions.
  • Typically, the judges have reviewed the files or been briefed by the clerks, and probably have a tentative ruling in mind before the hearing starts based on the exhibits in the file. That doesn't mean they aren't open to being persuaded at the hearing.
  • Some judges issue a tentative oral ruling at the conclusion of the hearing; but more often, they say nothing at the end except "thank you." Occasionally, a doctor or vocational expert will attend the hearings to give their impression of your ability to work based on your medical record and exhibits. They are both contracted by Medicaid to offer testimony, the physician on your medical record, the vocational expert on your ability to work. If possible, see if you can find out in advance of the hearing whether one or both will attend. If so, plan to cross-examine them.

Unfortunately, Medicaid does not impose a time limit on administrative law judges rendering their opinions. Allow four to six weeks to pass after the hearing, then follow-up with the hearing office on progress of the written opinion. When the judge is finished, you will receive his or her opinion by mail.

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