The Congress returns from its winter break next week with the same issues confronting it when it left in December.

While the Congress and the White House agreed to a temporary, two month “fix” for physician payments, that fix will expire on February 29.

Meanwhile, the House and Senate have appointed Members to a conference committee to try to reconcile differing versions of a one year physician payment fix. The conferees have begun meeting, but little progress has been made so far.

The same programs, providers and stakeholders are at risk as Congress seeks to find 25 billion dollars or more in order to offset the increased payments to physicians.

The nursing home industry should continue to monitor the conference committee’s activities closely.

We will keep you posted on further developments.

We all make mistakes. In the normal course of business, the facility and resident (or the resident’s legal representative) will sign an Admission Agreement upon admission. However, what happens if the resident is now refusing to cooperate with the Medicaid eligibility process, and no one ever signed the Admission Agreement? To some, this might sound like a worst case scenario. However, there are a variety of tactics facilities may want to consider to attempt to secure compensation and qualify these kinds of residents for Medicaid benefits.

1. File an application on behalf of the Resident: This application does not have to include all of the verification information necessary to approve the resident. Instead, the goal is to lock down the date of eligibility. Once a new application is filed, the assigned caseworker will likely request the information to fill in the blanks, which could buy the facility or resident time to obtain the necessary verifications.

2. Have the resident sign an Authorization Statement: An Authorization Statement is crucial to collecting verification information necessary to approve the Resident’s application. Additionally, it can open the gate of communication between the facility and assigned caseworker, thus giving the facility the ability to keep its finger on the pulse of the application.

3. File litigation. Despite the absence of a contract, litigation may not sound like an option since the resident would not be liable for breach of contract. However, there can be a variety of alternative causes of action depending on the jurisdiction and particular facts of the case, such as:
a. Breach of statutory duty of support;
b. Breach of fiduciary duty; or
c. Quasi-contract.

4. Petition for Guardianship. If a resident is incapacitated and without a legal representative or the legal representative is not acting in the resident’s best interests, petition for the appointment of a guardian or conservator may be an option. Once appointed, the guardian or conservator would have the power to secure verification information and spend down a resident’s assets.
It is crucial for facilities to act swiftly should any Medicaid issues arise, particularly if there is no signed Admission Agreement. Waiting for a resident or his or her legal representative to satisfy the requirements of the Medicaid eligibility process could lead to the loss of benefits. Taking any of these steps may ameliorate the situation.

As the colder winds bring in the winter weather, the winds change appear to be blowing at the Board of Hearings.

First, the lengthily back log of appeals seem to be clearing up as we have recently noticed a shorter period from the time a request for hearing is filed and the actual hearing date. What a breath of fresh air. In the past, it could have taken up to six months or more for a hearing date to be set, even though the a hearing officer is under a duty issue final decisions within 45 days from the date of request for hearing. See 130 C.M.R. 610.015(D) (Time Limits for Rendering a Decision). While the Board of Hearings is still violating this regulation, the time frame from hearing request to hearing date appears to have shortened to approximately 4 months, on average. Still a long way from 45 days, but progress nonetheless! We’ve recently “heard it through the grapevine” that eligibility workers are being encouraged to resolve appeals as soon as possible to avoid a hearing date from even having to be set.

The second major development this Fall is that stipulations for extensions of time (a.k.a. “Record Opens”) are becoming disfavored by Hearing Officers. As our clients are well aware, for many years an applicant could appear at a Medicaid appeal hearing and request additional time to produce verification information via a “Record Open” – an agreement between MassHealth and the applicant, approved by the Hearing Officer. Recently Hearing Officers in both Tewksbury and Springfield have been extremely reluctant to allowing additional time to produce verification information an applicant has known about since the denial but – for whatever reason – still fails to provide at the hearing. If a Record Open is not allowed, the denial will stand and months of Medicaid coverage is lost, costing the facility tens of thousands of dollars.

What does this mean to you and where do you go from here?

First, always provide the outstanding information into the MassHealth eligibility worker well in advance of a hearing. At best, you could get your case approved without a hearing even being set. At worse, you’ll avoid having to ask for a Record Open for additional time which may be denied.

Second, contact Schutjer Bogar sooner rather than later if there is verification information that a family member is not tuning over or cannot access. Let’s face it, if an agent has not produced certain financial information or an Agreement to Sell form during the application process or immediately after a denial, what are the chances that person will provide the information by the appeal hearing? Don’t bang your head against the wall – you just need a new strategy and we are here to help. The attorneys at Schutjer Bogar can evaluate your case and come up with a concrete, effective approach to secure the information by the hearing so there will be no need for a Record Open. The sooner you contact us, the more options are available to you.

Remember – You cannot control the direction of the wind, but you can adjust your sails!

Janice Lorrah focuses her practice in Massachusetts and Colorado. She is currently the managing attorney of Schutjer Bogar’s only western office, located in the Cherry Creek section of Denver, Colorado. Janice works with Sarah Thomas and Mitchell Ronningen in Denver and Andrea Gonzalez in Boston.