Presenters: Steven Elliot, Esq. Jennifer Giesen, Esq.

1. Preparation for a Medicaid Assistive Technology HearingOctober 21, 2009Hilton Garden Inn, Austin, TexasSponsored by the National AT Advocacy Project, Project of Neighborhood Legal Services, Inc.Advocacy, Inc., Austin, TX Presenters: Steven Elliot, Esq. Jennifer Giesen, Esq. Advocacy, Inc., Austin, TX Minnesota Disability Law Center Diana Straube, Esq. & James R. Sheldon, Jr., Esq. National AT Advocacy Project, Buffalo, NY

2. How a DME Case StartsDue Process Notice and Request for Hearing Timely Decision-Making Required • Reasonable promptness requirement. • State agency must “furnish Medicaid promptly without any delay caused by the agency’s administrative procedures.” 42 C.F.R. § 435.930. • For DME, state Medicaid agencies generally use a prior approval process. • States allowed to set time limits for prior approval, but must be reasonable.

3. Notice of Adverse Decision • Medicaid agency must send out notice to Medicaid recipient whenever the agency takes “action” against the beneficiary. • “Action” – includes “termination, suspension, or reduction of Medicaid eligibility or covered services. 42 C.F.R. § 431.201. • “Action” – may also include an “approval” of service if approved with modifications. Ladd v. Thomas, 962 F.Supp 284 (D. Conn. 1997). • Denial/approval with modification of DME request is an action and requires timely and adequate notice.

4. Adequacy of the Notice The Medicaid Act, Regulations Require: • Statement of the proposed action. • Reasons for the proposed action. • Specific regulations supporting the action. • Explanation of the person’s right to request a hearing and the type of hearing available to the individual. • Description of circumstances under which Medicaid eligibility or eligibility for a specific service is continued pending the outcome of the hearing. 42 C.F.R. § 435.919

5. Examples of Defective Notices • “Not medically necessary.” • “Fails to meet prior authorization criteria.” • “Does not meet the criteria of Medicaid’s durable medical equipment regulations.” • Does not state time limit for requesting the hearing (NY caselaw on “tolling” statute of limitations). • Does not explain “how” to request the hearing.

6. RESEARCH &INVESTIGATION

7. Research & Investigation Steps • Telephone screening • Client interview • Check written notices, determine deadlines for requesting a hearing • Factual investigation (interview the expert, the vendor, the manufacturer) • Review the Medicaid agency’s file • Medical or disability-related research • Legal research • Gather supporting documentation, including expert reports • Evaluation of case merit

8. Interviewing Clients and Witnesses • Establish trust • Be a good listener • Take good notes • Build a narrative • Probe for additional information • Help the witness remember by: • setting the scene; • triggering detail; or • using other sources.

9. Evaluation of Case Merit • Research the legal elements you must prove. • Analyze whether the facts of this case meet the legal elements. • Determine how you will prove those facts. • Determine whether you can dispute the reasons the AT was denied.

10. Medical Justification Letter – Part I • Introductory sentence • Professional credentials • How you know this patient • Patient’s diagnosis and prognosis • Description of the current device • Explanation of how it is failing to meet patient’s needs.

11. Medical Justification Letter – Part II • Description of the requested device, including, if necessary, how it meets the DME definition. • Explanation of how the requested device will meet the patient’s medical needs. • If the patient did not need the device before, explanation of why it is needed now. • How this device is the least costly, equally medically effective device.

12. Medical Justification Letter – Part III Other possible supporting documentation: • Medical articles/journals/studies • Information about DME requested • Food and Drug Administration (FDA) documents • Picture or videos of client using DME

13. Attempt to Resolve Without a Hearing • Always good strategy • Saves time for client • Saves resources for P&A • Decide whether to request hearing first, then negotiate. • Even if negotiations do not lead to full resolution, you can: • Clarify issues in dispute…avoid wasting time at hearing; • Resolve one or more issues in client’s favor; or • Have opportunity for “free discovery”…to review strengths, weaknesses of agency’s case.

14. Developing a Theory of Your Case Each hearing could involve one or more of the following elements to establish the right to DME: • Individual must be eligible for Medicaid. • Services or DME sought must be “covered” • For an adult, must be either a required service, or an optional service that state has elected to cover. • For child, service must be among federally required or optional services. • Are services covered by another funding source? • Are services medically necessary? • Are services the least costly alternative that will meet the individual’s needs?

15. Hearing Logistics • Will the hearing take place in person or by phone? • What is the scheduled length of the hearing? • How will the hearing be recorded?

16. Location of Hearing • Do hearings take place in the recipient’s home county or at the Medicaid agency? • Are the hearings at the county social services offices? • Do hearings take place in a conference room large enough to accommodate all of your witnesses? • Can the hearing be held at your client’s home?

17. Know Your Hearing Officer • Are they an employee of the Medicaid agency? • What are their qualifications and background? • What is their record on similar cases? • How do they conduct hearings?

18. Hearing Procedures • Are pre-hearing disclosures required? • How are subpoenas obtained? • Is the proceeding like a formal court hearing? • Do the rules of evidence apply? • Who has the burden of proof? • What is the role of the Medicaid agency?

19. Presenting Evidence at Hearing • Documents organized in binders • Witness statements and testimony • Assistive technology as evidence • Actual technology at hearing • Videotape demonstration

20. Prepare and Deliver an Opening Statement • An oral summary, presented at beginning of hearing. • Gives decision maker a preview of what case is about. Your opportunity to accomplish several things: • Explain who your client is, what the requested equipment will do for him or her. • Explain what is not in dispute. • Clarify the issues which remain in dispute. • Explain your theory of the case. • Explain testimony and documents you will use.

21. Do You Ever Waive the Opening Statement? • No universal “yes” or “no” • May choose a very simplified form of opening statement • May be appropriate if advocate knows ALJ will not need an elaborate explanation. • A detailed opening is most needed when ALJ is not familiar with the issues, the type of documentary evidence, or applicable law. Remember the goals of the opening. • Tailor your opening to meet these goals.

22. How Long Should the Opening Be? • It could depend on what you know about the ALJ • An ALJ may have a reputation of not wanting to hear long opening statements. • If so, try to keep it under 5 minutes. • If longer statement needed, be prepared for ALJ who is resistant. • Tailor length to complexity and length of hearing • 20 minutes may be too much for 1 hour hearing with 3 witnesses. • 20 minutes (or longer) may be appropriate for 2 day hearing with 50 exhibits and 13 witnesses.

23. Should Written Statement be Used in Lieu of or to Supplement Opening Statement? • A multi-media approach – oral opening and written statement – can be very effective • Would rarely waive right to an oral opening statement. • Good written materials allow you to shorten opening statement. • Written opening should be no longer than needed to provide ALJ with: • The theory of your case • How you intend to prove your case

24. Additional Guidelines for Opening Statements • Do not overstate your case. • Do not promise a witness or document you might not get. • Do not try to paint the agency or representatives as bad guys. • Take the high road. • ALJs are interested in facts, expert evidence and relevant law. Keep your opening to those issues.

25. Preparing a Witness for Direct Exam • Explain to them how the hearing is run and the roles of the players involved. • Tell them about the questions you plan to ask and the order of your questions. • Prepare the witness for cross exam questions. • Help the witness understand how much information to give in response to a question.

26. Construction of Direct Examination • Construct your direct exam with your case theory in mind. • Be sure to cover the facts you need to prove your case. • Anticipate the cross exam.

27. Organize the Direct Exam in a Persuasive and Logical Way • Start by accrediting the witness. • Organize your questions by topic or in chronological order. • Utilize the doctrines of primacy and recency by starting and ending big.

28. Conduct a Persuasive and Interesting Direct Exam • The witness is the star of direct exam. • Use simple non-leading questions. • Use head notes to signal a change in topic. • Keep a steady pace to your questions and avoid long pauses.

29. THE EXPERT WITNESS

30. Direct Examination of the Expert Witness: Organizational Structure • Introduction (identification and relation to the case) • Qualifications • Tender the witness as an expert (if necessary) • Role and overview of basis for opinion • Opinion • Explanation of opinion (educating the decision maker) • Conclusion – end strong!

31. Using Documents to Support the Expert’s Opinion(some options) • Highlight important sections of the expert’s report. • Use the agency’s notice to differentiate the expert’s opinion with the agency’s opinion. • Use journal articles, professional standards, or consensus statements.

32. Differentiating the Competing Expert’s Opinions • How are the opinions similar? • How are the opinions different? • What is the rationale for the divergence? • Why is your expert correct?

33. Cross Examination Pre-hearing Preparation: Part I • Identify the witness. • Qualifications • Relationship to opponent • Get copies of any reports by the witness regarding this case. • Compare the report to the letters of medical justification. • Compare the report to published articles/studies. • Compare the report to law and regulations.

34. Cross Examination Pre-hearing Preparation: Part II • Review any professional articles the witness may have written. • Decide whether, or how, you can use the witness. • Any points in your favor? • It can be dangerous to cross examine and you may decide not to cross examine at all.

35. Cross Examination Conduct of Hearing • Listen to witness’s testimony. • Maintain control of the testimony. • Be brief. • Do not ask a question for which you do not know the answer. • Do not argue with the witness. • Know when to stop asking questions.

36. Prepare and Deliver a Closing Argument When to Do Closing? • Nearly always, but could be extremely short in some cases. Preparation • Prior to hearing, prepare general outline of closing. • Edit outline based on what happens at hearing. • Short hearings (half day or less)…work off outline, with very short notes added. • Longer hearings…plan to edit outline as breaks allow. • If submitting a written argument…closing can be very short.

37. Prepare Closing Brief or Written Argument Should you submit written arguments? • Great variation in how hearings are run in different states. • Decision should be made on individual circumstances. • Will the written arguments aid the decision maker in deciding the case? • How complex are the medical, technological, and/or legal issues involved?

38. What are the Goals of Your Written Argument? • Summarize evidence in logical, easy-to-understand fashion. • Lay out law, regulations, and policy so that ALJ can easily follow the arguments. • Discuss evidence on both sides, explain why you prevail. • Summarize strengths, meet weaknesses head on. • Make the job of the ALJ easy.

39. Deciding What Your Written Arguments Should Look Like • Short letter brief • Longer letter brief, short memorandum of law • As document gets longer (two pages or more), use headings to separate sections. • Your goal – make it easy for ALJ to quickly grasp arguments. • Standard memorandum of law • Proposed findings of fact, conclusions of law

40. When Does the Written Argument Get Submitted? • Ask for set time, such as two weeks • Briefing schedule, if that is the practice