Starting Monday, Without a Veto, the Legal Burden of Proof Will ALWAYS Be on the Medicaid Recipients

I am not sure whether you have noticed, but Medicaid recipients have very little pull in North Carolina government.  Medicaid recipients have very little voice in our society.  Obviously, Medicaid recipients are indigent, so they do not have the money to hire lawyers and lobbyists. 

Politicians (while they are campaigning) always protest that they believe that Medicaid recipients are important…that Medicaid is important…but, most importantly, that it is important that Medicaid recipients receive quality health care….right?

We’ve heard the rhetoric over and over.

But then what happens when the politician takes office?

I can tell you what does NOT happen. Medicaid recipients do not band together, hire a lobbyist and begin influencing government policies.

Per norm, the Medicaid recipients remain invisible.  And mute.

I have a client with a daughter.  This daughter, we will call her Jennifer, is in her 30s, but with mentality of an 18-month old.  Jennifer is diagnosed with Tuberous Sclerosis Complex (“TSC”), a rare, multi-system genetic disease.  She is nonverbal and requires 24 hours/day supervision for health and safety and total care for activities of daily living and incidental activities of daily living, just as an 18-month old would require.

The Managed Care Organization (MCO), where Jennifer resides, is Smokey Mountain Center (SMC).  For the last 4 years in North Carolina (five years ago Jennifer resided in California), Jennifer has received 16 hours/day Medicaid. Once SMC went live and Jennifer’s yearly authorization was up for renewal, SMC reduced Jennifer’s services to 12 hours/day, thereby leaving a 4-hour gap in which Jennifer would be  unsupervised. (Shocking that the MCO did not want to foot the bill for the extra 4 hours, right?)

I will spare you the details of the legal arguments on both sides, as, today, my husband made a comment that my blogs were “too long.”

So, we are in the administrative hearing in front of an Administrative Law Judge (ALJ) with the attorneys for SMC and the Department of Health and Human Services (DHHS) present.  The ALJ asks me, “Counselor, who has the burden of proof, the Petitioner [us] or the Respondents [them]?”

To which I had to think back to my days during which I worked as an Assistant Attorney General (AG) for NC  (yes, I used to work on the other side…where do you think I learned this stuff?? At law school?)

For those of you without law degrees, the burden of proof (onus probandi, in Latin) is the obligation (hence the Latin word “onus“) on the party in a trial, who must prove [something] in court in order for the burden to shift to the other party to dispute.

Sometimes people will explain the burden of proof as “the necessity of proof always lies with the person who lays charges.”  As in, if you claim that I stole your watch, you must prove I stole it.  I do not have to prove that I did NOT steal it.

This may seem like ridiculous semantics to you, but, legally, who bears the burden of proof is huge.

In Jennifer’s example, the ALJ was asking me whether we (Jennifer) had to prove that she medically needed 16 hours/day Medicaid services or whether the State had to prove why Jennifer did NOT need the 16-hours/day Medicaid services.

If we (Jennifer) put on compelling evidence that she needed 16-hours/day services, and Respondents SMC and DHHS put on equally, compelling evidence that she did NOT need 16-hours/day services, then the Judge would have to rule against the party bearing the legal burden of proof.

As of today, here is the law as to burden of proof for Medicaid recipients:

(d) Burden of Proof. – The recipient has the burden of proof to show entitlement to a requested benefit or the propriety of requested agency action when the agency has denied the benefit or refused to take the particular action. The agency has the burden of proof when the appeal is from an agency determination to impose a penalty or to reduce, terminate, or suspend a previously granted benefit. The party with the burden of proof on any issue has the burden of going forward, and the administrative law judge shall not make any ruling on the preponderance of evidence until the close of all evidence.

(emphasis added). 

Senate Bill 553 will change all this.

Senate Bill 553 states that, “The enrollee has the burden of proof on all issues submitted to OAH for a contested case hearing under this section and has the burden of going forward. The administrative law judge shall not make any ruling on the preponderance of evidence until the close of all evidence in the case.”

The enrollee = the Medicaid recipient.

Therefore, even if the MCO terminates an enrollee’s services (and even if the termination is arbitrary and without merit), the Medicaid RECIPIENT bears the legal burden to prove this.

Really?  Let’s make it even harder for Medicaid recipients to appeal denials or reductions in services.  They can handle it!  They can hire a lawyer!  Right?

Who does this change benefit? Who benefits from the Medicaid recipients bearing the burden of proof in a legal action?

Answer? The MCOs.  And guess what?  The MCOs have lobbyists.  The MCOs have lawyers.

Senate Bill 553 was ratified July 26, 2013.  Which means that SB 553 will be law beginning Monday unless Governor McCrory vetoes the bill by Sunday.  On Sunday (August 25, 2013), McCrory can choose to sign SB 553, allow SB 553 to pass without his signature, or veto the bill.

If McCrory does NOT veto the bill, Medicaid recipients will bear the burden of proof in all contested cases. 

I ask you, why would we as a society place the legal burden of proof on the party LEAST likely to be able to afford a lawyer?

Send Gov. McCrory an email. Veto SB 553!!!

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on August 22, 2013, in Administrative Law Judge, Burden of Proof, Denials of Medicaid Services, DHHS, Gov. Pat McCrory, Legal Analysis, Legislation, McCrory, MCO, Medicaid, Medicaid Recipients, Medicaid Recipients Under 21, Medicaid Services, Medical Necessity, Mental Health, Mental Health Problems, Mental Illness, North Carolina, Senate Bill 553, Smokey Mountain Center and tagged , , , , , , , , , , , , , , . Bookmark the permalink. 2 Comments.

  1. I have a very serious problem with this. Not only are they less likely to be able to afford an attorney, but the patient should be determined to have already met the burden of proof once before.

    On top of that, they have placed the decision as to whether or not the provided coverage is to be reduced in the hands of an organization with a vested interest in reducing said coverage! All they have to do is reduce coverage enough times and the patient will stop fighting due to a lack of resources! This is ridiculous!

  2. …and I don’t mind if your blog runs long. I really enjoy it. 🙂

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