- Hi, this is Peter Hofer, I'm a senior litigation attorney
for Disability Rights Texas and I'm here with Hannah.
Hannah, why don't you introduce yourself.
- Thank you, Peter.
This is Hannah Maeda 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 yeah, today we're gonna to just talk about what to
expect when you're in a medicaid fair hearing.
We're gonna 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 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, you ask that the record
for the hearing be kept open and you can submit them
after the hearing.
- Peter, I have a follow up question on that.
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 asked 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 wanna 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 gonna go three or four 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 51% 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.
- So, two follow up questions for you on that, Peter.
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 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 10 people from the health plan
on the phone.
- Well, first off the number of people on the other side
isn't gonna 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 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, 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.
- Good advice, Peter, thank you.
- 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.
We call it a fair hearing packet.
So it's gonna have the denial or reduction notice,
it's gonna 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, too.
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.
It 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.
- So a couple follow up questions on that, 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 whoever 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 gonna 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 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 gonna 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
gonna 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 gonna 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.
- Thank you.
- 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'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.
- So Peter, a follow up question for you on that.
What policy?
- Right.
And so when you get their evidence packet,
you'll see, typically, they attach some,
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 TMHP
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 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 is your advice in that type of situation?
- Yeah and we see that and certainly we
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.
- 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 Ann,
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 feeds a day between eight
and eight, 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 haven't,
but yes, when you can point out that they
violated the rules, that's very good.
- So do your homework.
- Yeah, do your homework.
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 gonna 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, Hmm, 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
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 you're more comfortable with that.
- Good to know.
- 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,
soft of like, you know, page five through seven is the
denial notice, page eight through 15
are the nursing policies, so they sort of lay out
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 of one through 30 are the,
is the prior request for nursing services.
Pages 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 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, I need 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 at the hearing.
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.
- And most parents, I imagine, don't know to ask
for the case file.
- Right, they don't know but it's by state rule
and federal regulation, you're entitled to the case file.
- Now, 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 that 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
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,
and might say, agreed.
But often those aren't the people who show up.
So, often times, the people that are there just don't
really know, 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 know, they're gonna be talking,
talking, talking, you're probably gonna 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.
- Peter, you know, 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 children.
- So they 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 in this case has it, 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 four 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 sixth 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
- And Peter, have you found one method to be
more effective than the other?
- I think for parents, 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 gonna 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 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
gonna 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 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 there's been lots of surgeries,
lots of hospitalizations, none of that's gonna
come up on there end, they're not gonna 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 gonna
appreciate what that means, so you want to paint
a picture of your child and then,
paint a picture of 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 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.
All these doctors say that she needs this nursing
that's what I'm here to do.
They've written these letters.
Again, state of what you know.
Don't start speculating or guessing.
I don't know 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 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 gonna 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
on 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 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.
- True, so you need to you need to be sure
whoever's going to testify for you,
you're comfortable that they're gonna help you out.
- Circling back around, 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 with them.
- Right, right, you're not gonna win a back and forth
with a medical person.
I would just keep coming back to 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 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 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
does anyone have anything else, does anyone
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 wanna, I don't want to do any harm here.
They might ask if you want to do a closing argument.
A closing argument, 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
84 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 84 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--
- Keep it simple.
- Keep it simple, exactly.
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 Peter, just 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 gonna come up.
I want to submit that, you do have a right to submit
additional evidence, so you just ask 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 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, 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 win you're hearing you're gonna 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, win 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
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 support.
You can ask for an administrative review.
Basically, that's just an HHSC 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 off just resubmitting.
- You're better to resubmit.
- Than to start over.
- 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 gonna go it alone.
- And Peter, 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 gonna 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.
- So until that decision is made,
those services should continue.
- Yes, they must continue by law if you've
timely asked for the appeal and the services
can be continued, they have to be continued
until the decision issues.
So 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 services
are supposed to be continued,
they were being continued, your decision
hasn't issued yet, now they're they're not
continuing them and that's something they have
to take up.
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.