hi this is Peter Hoffer I'm a senior litigation attorney for disability
rights Texas and I'm here with Hannah Hannah, would you like to introduce yourself - thank you,
Peter this is Hannah Mehta with protect Texas
fragile kids and we are really grateful to have Peter and his expertise with us
today to share a little bit more about Medicaid fair hearings and today
we're going to just talk about what to expect when you're in a medicaid fair
hearing we're going to cover how to prepare for a fair hearing in another
episode but today is really after you've asked for the appeal and you're at the
hearing and so I want to start with some just basic rules so you understand your
rights.. all the hearings have to be held at a reasonable time date or place now
most of the hearings as we'll talk about later are held on the phone but when you
get your fair hearing notice if it isn't a reasonable time or date in other words
if you have a doctor's appointment or you can't get off work that day you can
ask for a different date and typically you can ask for one continuance and when
you ask for that continuance you should ask for if you have a particular time or
date that or day of the week that works better for you you should ask for that
some other important rights you have a right to bring witnesses to support your
case you have a right to establish all pertinent or relevant facts and you have
a right to present an argument without any undue interference so you shouldn't
be rushed by the hearing officer or the other side or you shouldn't be bullied
you have a right to present your case without interruption you also have a
right to question or as lawyers call it cross-examine adverse witnesses whether
you do so or not or how you do that we can talk about a little bit later you
also have a right and this is important to submit additional documents before
during or after the hearing so if something comes up in the hearing and
you think I've got those records yes that the record for the hearing be kept
open and you can submit them after the hearing if someone does need to change
the time or date of their hearing will their services continue until that next
appointed date yes so if you are getting continued services because you've
for the appeal or the fair hearing timely and asked that your services be
continued and those services have a right to be continued so it's not an
initial request for service then yes your services continue until the hearing
is held and a decision is issued so typically we see it takes about a month
to get the first setting and a month to get a decision if you ask for a
continuance and it's set another month later you're looking at three or four
months to get through the hearing process and your services must be
continued by law over that time just a reminder for those who are watching that
is a 10-day period that folks have from the notification of denial to make that
request for continuance is that correct that's correct it's from the date of the
denial or reduction notice so you may it may be less than 10 days by the time you
get the notice so you should do it right away ask for the appeal ask for
continued services and the reason you don't want to wait is you don't wanna
miss continued services and if you decide after speaking with your medical
professionals that you don't want to appeal you can always withdraw the
appeal and you can even withdraw the appeal at the hearing you could call in
and say I don't want the appeal anymore and it's with John so don't miss the
continued services because otherwise you're going to go 3 or 4 months without
services even if the hearing officer finds the decision was incorrect thank
you so the basics about the fair hearing they're informal because 90 probably 98%
of the hearings are done without attorneys so they're very informal
they're typically over the phone and the hearing officer is not a lawyer or a
medical professional it's just a person that's been employed as a hearing
officer the informality goes to there's no rules of evidence there's no rules of
procedure per se the agency or the health plan has the burden of proof
that's important to know what that means in legal terms is they have to prove
their decision was correct you don't have to come and improve you're correct
they have to prove that they were correct by a preponderance of the
evidence and what that means is more likely than not so sort of
1% supports their decision I'm not sure how much the hearing officers or the
health plans understand but they carry the burden of proving their decision was
correct it's possible that the health plan attorney will appear they don't
typically do fair hearing so they're not they don't add very much typically
sometimes they just listen in sometimes they don't show up at all I imagine in
most cases if there's not an attorney on your side
that an attorney won't be there to follow up questions for you on that
Peter you you mentioned the burden of proof being on the health plan or on the
agency and you said that the fair hearing officer may or may not be
completely aware of how that works is there a way to incorporate that into
your statement or the evidence that you've presented or your verbal appeal
to them sometimes in closing I'll say that they haven't met their burden of
proof they haven't demonstrated that through the evidence that their decision
was correct or even in the beginning if I do ask them questions I'll make sure
that they understand that the burden is with them you know that could be one of
the first questions to the health plan witness do you understand that you have
the burden of proof in this case and you have to prove your decision was correct
so there's two ways to do it I mean the hearing officers know that it's just
since they're not lawyers or judges I'm not really sure how much they understand
the weight that that burden place is on them but you know it is what it is as
they say so the second follow-up question for you
Peter we have had some families recently who have experienced an overwhelming
number of representatives on the other side of the table for the health plan in
their Fair hearings recently and sometimes multiple attorneys and other
executives with the third-party groups that are making these decisions for the
health plan what would your advice be in a situation like that if there's may be
a parent and a therapist on the other side and say ten people from the health
plan well first off the number of people on the other side isn't going to make
their decision any better so you know numbers don't necessarily
equate to the correct decision also typically a hearing officers not gonna
want to hear from 12 people on their side there's gonna be one or two key
people now when we do hearings since we are able to cross-examine witnesses
after one of their witnesses goes we would cross-examine that individual
witness some hearing officers will allow anyone to answer which is really
improper because you're trying to cross-examine or question that person's
testimony and that's the way it should go and I always asked ask the hearing
officer that person testified I'm asking them questions about their testimony and
some will limit it to that individual others will let anyone answer and I
think that's unfair but if that happens it happens but I wouldn't be intimidated
you and again you can go back to I have a right to present my case without
interference and I have a right to present all the facts and just don't be
intimidated and I always tell parents all those people you could have 40
people in the room no one knows your child better than you do and no one
knows their medical needs better than you do so they're at a disadvantage
you're the expert in the room and so don't be intimidated so when you go into
the hearing what should you have with you well you should have the exhibits
that the health plan or the agency provided to the hearing officer that the
hearing officer provided to you if we call it a fair hearing packet so it's
going to have the denial or reduction notice it's going to have the submission
from the provider for what they were asking for it may have some rules or
policies it could be anywhere from 40 to 100 pages that's their evidence packet
you need to have that with you any evidence that you send in prior to the
hearing letters of medical necessity emergency room records other medical
evidence any information on your child's
condition you should have that evidence with you - you should have the fair
hearing notice because it's going to give you the call-in number
the ID number so you need that with you you should have an outline at the very
least of what you intend to say so that if you get distracted or they start
saying things you didn't expect you can always look back on your outline and
know the points you wanted to make you should have a notepad so you can take
notes and I'll talk about this later the way I do it is I have a legal pad and I
draw a line down the side and I take notes on what they're saying on the left
hand side and on the right hand side I write things that I might want to ask
them a question about doesn't mean I'm going to but if they talk for 20 minutes
and I've got six pages of notes I need to pick out the three or four things
that were wrong or questionable that I want to think about asking them
questions about I would also suggest bringing in a calendar your calendar in
case it gets rescheduled because they don't have the evidence or they want
more time or the hearing officer gives you a certain number of days to submit
additional evidence so you need to calendar that I'm not Peter going back
to that first bullet talking about your exhibits and what you bring with you to
that fair hearing and I know we're going to do a follow-up segment on how to
prepare so there's a little crossover here but you talked about letters of
medical necessity and you talked about your witnesses and the information you
submit tell us a little bit more about that if you would what who are those
letters from what should they look like is a letter better than an individual
witness okay first of all yes so letters of medical necessity typically let's say
in a nursing case or even in an MD CP denial they're gonna have a medical
person there so if you go in without medical support you're gonna have a
tough time convincing the hearing officer that your decision is better
than their medical persons so letters of medical necessity from physicians are
very important one is great and your pediatrician or
ever the sort of main specialist is but the more the better so if you're if you
have a child that sees five specialists routinely and those all affect the
nursing services you've requested however many of those doctors will sign
letters of medical necessity for you the better because the argument is they're
associate medical director who's never met your child is their decisions not
going to be better than these four or five doctors that have written letters
for you now we we're going to provide sort of a template or sample of what our
letters look like doctors are very busy it's hard to get them sometimes to write
sort of a detailed enough letter so what we do is we take the medical information
from the records and in interviewing the parent and we make sure the letter is
accurate we run it by the parent and then we send it to the doctor and say
we've got a draft for you if you need to revise it if you're not happy with it
let us know otherwise if this looks good to you and this is your opinion sign it
unfortunately sometimes when doctors write the letters by themselves they're
there you know a few sentences and it's sort of squishy you know it would be
great if they could have these services that's really not that helpful if you
get some of those letters you don't have to submit them as evidence you can keep
them to yourself you know the hearing officer is only going to see the
evidence you submit so we usually do a draft of a letter for the doctor and ask
them to revise it as necessary and ask them to sign it if that's their medical
opinion witnesses that's sort of a longer discussion but whether you bring
a nurse or not if it's a nursing case the problem for us is we don't usually
get the time to adequately prepare them we're not sure what they're going to say
on cross-examination or if they're gonna have two or three hours to commit to a
hearing especially if the hearing day keeps changing so at the very least I
would say get the letters of medical necessity and of course your nurse could
explain in writing why the nursing services you're requesting are needed
but sometimes there are nursing agencies where the nurse
is very passionate and has the time and is going to do a better job than the
parent in explaining the nursing issue in a nursing case and so yes you can
have the nurse come and testify and they can either have their own outline and do
it themselves or you could question them
so what happens when the hearing starts you call in you put in your code and
then the hearing starts the hearing officer comes on the health plan
representatives are on the hearing officer typically starts with
introductions who who's on the phone make sure everybody knows who's on the
phone the hearing officer usually gives an overview of the hearing process what
to expect what we're gonna do usually gives a statement that the ruling is
gonna be made on the basis of policy not law hearing officers are told that their
authority is restricted to considering whether the health plan followed policy
and that's why the policies are important a question for you on that
what policy right and so when you get there evidence packet you'll see
typically they attach some let's say let's just stay with a nursing case the
nursing policies and either it's from the Texas Medicaid provider procedures
manual which can be found at the T MHP website or it's the health plans nursing
policies or both one thing sometimes you'll see is the only sort of
cherry-pick certain policies from the entire nursing policies and so you if
you have the time you should look at all of them and see if there's anything
helpful in the rest of them sometimes they do the opposite thing is they give
you 40 pages of policies and the denial notice just says it's the nursing
policies and doesn't specify which one and so that might be a question when
they're going through when you have a China chance to ask them questions which
policy in particular did you base your decision on and often they can't point
to one and Peter if it seems that there's a
conflict perhaps between the health plans policy and say the state's policy
what what is your advice in that type of situation yeah and we see that and
certainly we and and in almost all cases the state's policy the Medicaid provider
procedures manual policy is the better policy and health plans are required to
conform to those policies so I certainly make that argument with the state and
point out that this is the state's policy your policy deviates from that
and is causing this reduction or denial which it should not and then hope that
the hearing officer understands that what one thing we've seen specific to
nursing cases is that sometimes the reductions in service are in direct
opposition to what is written into the Administrative Code and how would you
advise the families to deal with that yeah so the private duty nursing roles
that are in the Texas Administrative Code were came from a lawsuit called
Alberto and and those rules were negotiated between the parties over a
number of years those are very strong rules that help people in these fair
hearings and so you should include that in your evidence packet and again those
are things you you can question them on or you can just point it out in your
testimony if you don't want to be confrontational so when you during your
testimony you could say this nursing rule says this so in other words this
nursing rule says you're supposed to get nursing over the span of time the needs
arise my child gets six g-tubes if it g tube feeds a day between 8 & 8 that's 12
hours so he's legally entitled to 12 hours of private duty nursing per day so
they violated that rule the next rule says you can't have parents providing
nursing services since they're not covering all the G tube feedings I'm
having to do them it violates that rule the rules say you can't reduce services
because there's your child's condition is stable this plan of care was the same
as the one before they're violating that rule so you just point out those
policies the more you can talk to policies or rules that's gonna be
helpful to the hearing officer if it sort of gets down to well you know this
doctor says that and this doctor says that
it's a little it's more of a factual dispute you should still win that one
because your doctor has actually assessed your child and they have it but
yes when you can point out that they violated the rules that's very good and
in that statement do your homework so these hearings are different than
regular trials and a regular trial you've done discovery what we call
discovery and depositions and you know what everyone's gonna say and it's sort
of a show these hearings you don't really know who's going to show up it's
not always the person listed on the notice you don't really know what
they're gonna say so by doing your homework and knowing everything that's
in there evidence packet and everything that's in yours then you you have a big
advantage because when their person says well the documents submitted shows that
your child only got four G tube feedings a day and you know that's wrong and you
can point to the nursing notes in the evidence packet that's a big advantage
if you're not familiar with the documents and you can't say mmm that
doesn't sound right but I don't know where it is you're at a
disadvantage so the real advantage is being more prepared than they are and
you're already starting out ahead because you know more about your child
but if you look through those documents and really highlight the things that
that are important and then they deviate from that you're prepared and Peter what
if some of the evidence in the packet is incorrect
what if it's not accurate again that's something you point out either through
cross examination which might be a little intimidating and also you don't
know what they're gonna say to that so you could say well this is wrong and
then you get in an argument you could also just do it in your testimony I want
to point out that you know this medical statement here is incorrect you know it
says my child does not have this diagnosis he does because you're a
witness you're testifying you're providing evidence so you can do it
through your own testimony if that if you're more comfortable with that so
let's see the hearing officer will go through all of the evidence and this is
why hearings can take some time so they'll have the health plan sort of go
through the evidence the fair hearing packet sort of like you know page 5
through 7 is the denial notice page 8 through 15 or the nursing policy so they
sort of lay what's in the hearing packet they'll ask
you to do the same so you can just sort of say you can do an index for your
evidence and say you know pages 1 through 30 are the is the prior request
for nursing services page 32 to 42 or letters of medical necessity so they'll
go through that then the hearing officer will swear in the witnesses so you just
raise your hand and swear to tell the truth if you have a witness at the
hearing and they're not going to be able to stay for the whole thing and they
need to go at a certain time to take care of that at the beginning of the
hearing say hearing officer I've got a nurse here that can testify on behalf
they've only got between 2:00 and 2:30 can we can we take them out of order if
if that's ok and they should grant that also if you did not get the evidence the
fair hearing packet or any other evidence then you should raise that at
the beginning of the hearing I never got an evidence packet I asked for it I
didn't get it the other thing we'll talk about when we do the second episode on
how to prepare is the case file and the case file is different than the fair
hearing packet fair hearing packet is the evidence that the health plan wants
to use to prove its case your child's case file is all of the evidence and
you're entitled to that by law prior to the hearing they don't just give it to
you they should in my opinion but they don't so one way to get a continuance
right off the bat is say I want a continuance I just got the hearing
notice I need time to get some additional medical information any time
to see if a lawyer will take my case and I'm entitled to my case file I want my
case file they didn't give me my case file because in that case file so
nursing gives a good example if they give you the denial or reduction the one
that's being challenged earing let's say you've been approved
for nursing the same amount of Nursing six times prior and your condition your
child's condition has not changed and those requests for nursing services look
the same you would want to use those or submit those to the hearing officer
saying look every request for services looks the same every plan of care looks
the same my child's condition is stable and
hasn't changed and now we have a different result they can't do that but
you're not going to get that unless you ask for the case file right they don't
know but it's a it's by state rule and federal regulation you're entitled to
the case what if there are families who get to their fair hearing and they have
not received an evidence packet yeah so at the start of the hearing when the
hearing officer starts the hearing and they go through the introductions and
they it's your turn to speak I would say I think we're gonna have to continue
this hearing I never got a fair hearing packet and they're gonna be able to look
up in their system and see whether it was generated by the health plan and the
hearing officer didn't send it or the hearing officer never got one okay but
do that at the beginning you don't want to get into the hearing now I've had
hearings continued we're in the middle of their testimony they referred to some
piece of evidence that I didn't have and I'd say I don't have that you didn't
give me that and the hearing officer will grant you a continuance because
you're supposed to have it beforehand and you're supposed to have time to
consider it so you shouldn't be having to deal with new evidence during the
hearings so it's important really to follow along as they're going through
your evidence and make sure you are on the same page that they are yes and
that's what we're gonna talk about next so after all the introductions and the
swearing in then they're gonna tell the health plan go ahead and present your
case now they go first because as we talked about earlier they carry the
burden of proof they have to prove they were right they go first
so what you need to do when they're giving their testimony is pay attention
to the person who's testifying make sure so you've already gone through
the evidence packet so if they bring in you know Suzy Smith and she's testifying
about why the denial reduction was correct and you think to yourself I
didn't see Suzy Smith's name anywhere in that evidence packet I saw other doctors
mentioned or other nurse reviewers but not Suzy Smith well then she really
doesn't know much about why the decision was made they just handed her to the
file and she's doing the hearing so first thing think who is doing this is
the associate medical director that's testifying were they involved in the
decision or is it again just some person second hand coming in to read what was
written in the notes and Peter if their name is not in that packet then they
typically weren't involved with the decision process is that correct that's
correct yeah you'll see it in the internal notes the nurse reviewer sort
of saying I don't think this nursing is justified and then an associate medical
director reviews it it might say agreed but often those aren't the people who
show up so oftentimes the people that are there just don't really know they
can't they're not adding anything to the documents because they don't know
anything more when they're testifying sometimes you'll have to prepare
yourself as sort of an endless review of non-relevant
policies like some people just sort of this is why we did it and this is what
we think and it's over sometimes they'll read every nursing policy in the manual
whether it has anything to do with the decision or not and you just sort of
have to suffer through it and so just be prepared for that the other thing is
they had to give you a reason and typically it's not very clear but let's
say you can sort of ferret out what the reason was in the denial notice so you
want to listen is that the reason they're sticking with at the hearing
because what makes a hearing fair or protects you is they have to stay with
their decision so in other words if they based it on one thing in the notice they
can't come up with a new thing in the hearing and so I just saw an instance of
that not at a hearing but recently where they were denying a piece of equipment
saying it wasn't covered and then that was what was in the notice
then they tried to claim while there was something less costly but equally
effective that's a different reason you have to stick with the reason that was
given in the notice so you want to listen for that you want to listen for
factual errors which is gonna be easy for you all because you know your
children so well so that's something you'd write on the side on the right
side of your notepad you know they said this about my child that's wrong
they said this about his medical needs that's wrong okay so listen for factual
errors listen for the policy or the legal basis for the denial do they have
one are they saying it's this particular policy and then take notes and we talked
about that because you're you know they're gonna be talking talking talking
you're probably going to be getting angry about what they're saying so
that's why you've got to take notes and sort of pick out the things you want to
talk about based on what they said a lot of families don't have an attorney to
help them with this process do you recommend that if they're concerned
about maybe getting too emotional in the process that they have a neutral third
party there to help keep track of those things yes and you're entitled to a
legal representative and it doesn't have to be an attorney so you could have
someone else there with you they could ask you the questions or they could take
notes and sort of help you they could point out some things maybe depending on
how well versed they are and the issues and your and your children would
potentially be allowed to participate in the hearing if you chose or asked them
to to do so sure sure so that's what's gonna happen in their testimony if you
want to cross-examine them or ask them questions you know again you can do that
you don't know what they're gonna say sometimes there's some people witnesses
for health plans that you know they'll talk a lot and not really say anything
and it gets very confusing so you have to decide whether you want to make your
points in your testimony or you want to try and cross-examine them some things
you could do you know you could ask them what was their role in the decision so
that might be where they have to admit I didn't really have a role in this
decision I just came here for the hearing that's gonna sort of
make their testimony look weaker you could talk about you could say it
doesn't the policy also say that private duty nursing is supposed to prevent
frequent hospitalizations yes it says that it's done that in that K in this
case has yes so you could do a couple little sort of get in your points that
way but you could also do it through your own testimony if there's an issue
with the notice there's things in the notice that are incorrect you could
point those out point out the factual errors if they say the nursing notes say
for G tube feedings a day and you can show them in the notes where it says six
you can certainly say do you see that there it says six right so instead of an
open-ended question like what does it say about G tube feedings in that note
you want to lead the witness so what that means is you lead them to the
answer you want so you would say if you look at the nursing note on page 35 it
says there that was the six G tube feeding of the day doesn't it so they
have sort of an answer yes or no way and you can use look you can use letters of
medical necessity and cross-examining them you could say you can see my
neurologist recommended it I would say probably to use those in your own
testimony where you could read them into the record or talk about you know my
child has seen this neurologist for 12 years my neurologist knows my child way
better than this doctor I've never met and this is what the doctor said so I
probably wouldn't use it in cross-examination
computer have you found one method to be more effective than the other yes I
think for parents I would I would limit cross-examination because it's more of a
lawyer skill and also you don't know they could start saying things that are
sort of off-the-wall or talk about policies and you're not really going to
know what to do with it so I think if unless there's sort of concrete factual
errors or things you want to point out does does the nursing rule say you can't
deny for stability so it's very simple things otherwise I would just do it in
your case so stick to what you know yeah stick to what you know
now when it's your time so when they are done the hearing officer will say it's
time for the appellant to talk any representative so that's your time to
testify you could do it in a question and answer but you're probably going to
be there on your own so you just go ahead and give your testimony that's
where the outline comes in and you know you're not gonna when the when the a
health plan talks about your child they're gonna talk about well they asked
for this much nursing and this is why we denied it they're not gonna paint a
picture of your child that's what you need to do you need to talk about this
is my child this is what issues they've had to deal with these are the health
conditions these are the significance of the health conditions the severity of
the health conditions you have to paint a background if if you know there's been
lots of surgeries lots of hospitalizations none of that's going to
come up on there and they're not going to talk about that and I think it's
important to remember that the fair hearing officer may not have a medical
background correct that's right and we often use we asked the parent when we do
the questions to explain the condition so I mean you can talk about you can
throw out the diagnosis but the hearing officer is not going to appreciate what
that means so you want to paint a picture of your child and then paint a
picture and the needs now you have to remember your audience is the hearing
officer the health plan representative who probably has no authority to do
anything other than testified that hearing isn't gonna have some Eureka
moment and say wow now that you've testified we were totally wrong I
approve the service they're not the audience the hearing officer is so you
should be polite be honest be committed and and then if they ask you questions
which this can happen at the end of your testimony the hearing officer might have
a few questions or the plan representatives might have
some questions typically they're factual what was the name of the medication your
child's taking for seizures I missed that so things you know if they do ask
you if the health plan representative starts asking you questions that you
don't know something about nursing policy or the Nursing Practice Act just
say you don't know I don't know is a good answer I'm a parent this is my
child the
all these doctors say that she needs this nursing that's what I'm here to do
they've written these letters like again state of what you know
don't start speculating or guessing but you know I don't know as a as a
perfectly fine answer now if you have a nurse with you to testify and you know
what they're gonna say and you know they didn't want to put it in a letter or
they have a letter and they want to sort of do that you can do that too
lawyers can redirect witnesses and that's a lawyer skill but to explain it
simply is if you have a nurse testifying and let's say they're talking about
something and they and they get the years wrong they're talking about last
year instead of this year and they just make a mistake so when they're done and
they ask them some questions you can correct it by saying I just have a
couple questions for the nurse during your testimony you were talking about
2016 you meant 2017 right and they say right
and you've cleaned it up but other than sort of cleaning things up then the
nurse is going to be sort of on their own now whether to have a nurse there
it's hard to be super aggressive cross-examining a parent of a child with
a disability it's a lot easier to go after a nurse so you have to bear that
in mind they're gonna go softer on parents than they are in the nurse so
that's why you have to the nurse has to be really committed and really believe
in what they're saying and be prepared you don't want them to sort of start
waffling and saying they don't know and I don't really know about that okay and
perhaps something good for families who are watching to know is that a lot of
Nursing agencies have a managerial person who has experience with fair
hearings and understands the process and will often work with you to help
represent your child yes and they can either be supportive and I mean
typically when they're looking at denying or reducing nerv nursing
services they're there in contact with the nursing provider and then they're
providing additional information trying to justify it and that should end up in
the fair hearing packet or in your evidence because they've already tried
to solve the problem if you do have a nurse testify there is
the sort of office nurse that may be more familiar with fair hearings but
they may not be as familiar with your child and the in the nursing care and so
that can trip them up in a hearing where they don't really know whereas you might
get the direct care nurse but they're not as familiar with fair hearings so
there's a lot to consider and likewise for therapies and other services right
true so you need to you need to be sure whoever's going to testify for you
you're comfortable that they're going to help you out circling back around I'm
one of the one of the things that you said earlier I think was a really great
point because we've had some parents who've been in the situation where the
health plan will question them stick with what you know and don't be afraid
to say I don't know don't get into that back-and-forth right right you're not
gonna win a back and forth with a medical person I would just keep coming
back to you know I don't know I don't know nursing policy what I do know is
these six doctors think my child needs these nursing services it's been
improved in the past nothing has changed there's gonna be significant risk if
this nursing is taken away you can bring it back to your child and the effects of
the nursing and the benefits of the nursing and the prior history with
nursing so yeah you don't want to get into a 30-minute dialogue about what the
nursing policy is and you know all the time if you don't know you don't know if
you don't remember you don't remember and that's just you'll sound you'll
sound better to the hearing officer you'll sound more truthful when you just
say you don't know so when you're done testifying the hearing officer if if
they have any questions or the health plan has any questions eventually the
hearing will reach its conclusion sometimes the hearing officer will keep
saying you know does anyone have anything else doesn't even have anything
else and people keep talking sometimes you have to know when to quit when
you're ahead if you feel you've done a good job and they've done a bad job then
you know you need to recognize that I think things are going well I just don't
want to I don't want to do any harm here they might ask if you want to do a
closing argument a closing argument you know it's not like on TV
this is over the phone so if there were two or three things that you wanted to
make sure the hearing officer remembered so it could be my child's been getting
eighty four hours of nursing services for two years her condition has not
changed four of her doctors have said she has a medical need for these fate
eighty four hours the doctors for the health plan I've never met or assess my
child therefore it's important that these hours be maintained something like
that just a summation of the key points or you don't have to do it at all
because you will have just testified so
so typically in doing this for 20-something years I've never seen a
decision issued at the hearing they go ahead and take it under advisement they
have to write a hearing decision it can take anywhere depending on their
deadline it could be a couple weeks could be a couple months and either just
a clarification because we've had a lot of families ask this after they've gone
through a fair hearing what if they get to the end of that fair hearing and they
realized that there was a question raised or an issue raised that perhaps
wasn't addressed in their letters of medical necessity or that they feel like
something wasn't covered that was pertinent to the decision yeah great
question so at the end of the hearing if the hearing officer doesn't ask about if
there's anything else or do you want to keep the record open you should say you
know the issue of a swallow study came up we have one tomorrow I'd like to have
a couple weeks to get the results of that submitted or they talked about
seizures and there wasn't a seizure log we have a seizure log I didn't know that
was going to come up I want to submit that you do have a right to submit
additional evidence so you just asked for the record to be kept open for a
certain period of time and then you submit that evidence it's also possible
I mean it's a sort of an uphill battle but if you were to lose your hearing and
you came upon new information that would have changed the outcome of the hearing
and you can demonstrate that you can get hearing reopened and hearing officer has
to consider that information it doesn't happen very often but but if there was
some new diagnosis or new finding that would have changed things had they known
that you could do it that way but so don't don't expect a hearing decision
right away typically it's a month or two and you'll be getting your services
continued the whole time the other thing to remember though is particularly in
nursing cases now an eligibility case once you're found eligible you when
you're hearing you're going to be eligible until the eligibility process
comes around again but with nursing because this takes three or four months
sometimes longer once you get the decision you're gonna have to resubmit
for nursing wien or lose so if you win and nothing has changed then you should
feel pretty confident that the next request for the same services should be
approved if not that's a strong case because nothing has changed and they
just didn't like the decision and they're sort of ignoring it but let's
say you lose your hearing if nothing's changed
but you didn't get enough letters or you didn't make a good case or you didn't
put on a good show let's say you could ask for the more hours again and submit
additional information and see if you can get it resolved in the next
authorization period or if things have changed I've had hearings go on so long
or the appeal process go on so long that when you do resubmit after the decision
the condition is completely different and so you don't have to ask for the
same amount you can ask for more you can ask for less so you have to be aware
depending on what's what the condition is but you're gonna have to resubmit
because the two months have probably already gone by so it's but don't be
surprised when you have to resubmit right away so if you lose your hearing
your best bet is probably resubmit with additional information see if there's
some other service that will help you out see if the doctors can do better job
explaining you know sometimes the pediatrician is signing the request but
really the neurologist is driving the need so maybe they have to sign the
request for nursing and they can provide more
port you can't ask for an administrative review basically that's just an HHS C
attorney reviewing the decision I think only four percent or so are granted it's
really unlikely you can go ahead and request it there's no harm in doing it
after that there's judicial review but you'd really need an attorney to do that
you won't get your services continued while that's happening and it can take a
year and a half or longer you're better to resubmissions that are never exactly
so that's sort of what to expect in a fair hearing sort of the basics and then
in the next episode we'll talk probably a longer episode on how to prepare for
the fair hearing if you're going to go it alone one question to follow up how
will parents be notified of the decision that the hearing officer makes well it's
either mailed I guess for parents it typically comes in the mail I've had
some parents the same with notices the same with fair hearing packets where
they don't get it you know if you've gone a couple months
and you haven't gotten it you could inquire of course your providers going
to know because all of a sudden they're gonna have to resubmit so you'll either
hear about it if you hear that your provider knows one way or the other and
you haven't gotten it you can call your hearing officer now if you're getting
continued services some parents get anxious and they're waiting for the
decision but you know the longer it takes for the decision you're still
getting your services so you shouldn't be in any rush I wouldn't be calling the
hearing officer trying to rush them yes they must continue by law if you've
timely asked for the appeal and the services are can be continued they have
to be continued until the decision issues so and if you have problems with
that then that's something you can take to the hearing officer you can fax in a
letter saying my you know my services are supposed to be continued they were
being continued to your decision as an issued yet now they're they're not
continuing them and that's something they have to take home so thank you
Peter this has been I think very enlightening and I know there are a lot
of families who are very grateful for your insights
and sharing your experience that will find it very helpful and in the days to
come thank you