New Denials, Contentious Appeals Hearings Irk Senior Advocates

Irene Nashtut was taken aback. As an administrator at the AmeriCare Adult Day Health Care Center in San Marcos, Nashtut had accompanied an elderly couple to an appeals hearing in San Diego.

Both people had been adult day health care beneficiaries and had been denied eligibility to the new replacement program, Community Based Adult Services. It was a challenge to transport the two frail elders to the appeal, she said, but waiting for them outside the hearing itself turned out to be far different than what she expected.

“The process itself in the hearing room, it was really difficult for somebody who has mental health issues,” Nashtut said. “I could hear attorneys fighting, yelling and screaming. And when they got out from that room, I could see how frightened [the two beneficiaries] were. The elderly gentleman said he just wouldn’t go back in again, because it was so terrifying.”

Dana O’Callaghan, a San Diego-area social worker who attended a hearing on May 31, said she was amazed at the atmosphere. “The [state attorney] was very theatrical and upset, he kept throwing a pen and rolling his eyes and huffing and puffing,” O’Callaghan said. “It was really tense, I felt tense for my client. He was nervous before, even going in. There was a lot of continued pressing for certain answers.”

That intense, contentious experience has been uncommon for Medi-Cal eligibility appeal hearings in the past, according to Elissa Gershon, attorney for Disability Rights California — but has been standard for most of the CBAS appeals so far, she said. Medi-Cal is California’s Medicaid program.

“I’ve been to appeal hearings before. They’re very informal, generally,” Gershon said. “You’re usually in a conference room; it’s not like a courtroom setting at all. It’s more of a conversation.”

“These CBAS hearings are significantly different. I’ve never before seen a DHCS lawyer on the other side of a Medi-Cal hearing,” Gershon said. “They are taking a much more aggressive approach to their defense than I’ve ever seen.”

State officials say these hearings are not out of the norm, and that attorneys do argue, sometimes strongly, for their positions.

“These are test cases, with attorneys present on both sides,” according to Norman Williams, deputy director of public affairs for the Department of Health Care Services. “Sometimes things can get heated between attorneys.”

Court Rulings Expected Soon

The first appeals hearings took place on May 30, and DHCS officials originally said they expected to hear from judges by the start of July.

“The judges have 30 days to rule,” said Jane Ogle, deputy director of DHCS. Ogle said that once those rulings are given to DHCS, the department then has to decide whether to accept those decisions — which is the way the appeals system works in California.

“At that point, it is up to the director [of DHCS] to accept or reject those recommendations,” Ogle said. “I am not going to speculate on what he might do.”

DHCS officials said this week they have received a number of judges’ decisions, beginning around June 18 — “under 20 rulings,” according to Williams. Now DHCS has to decide whether or not to accept those rulings. The state also has 30 days to make a decision, so the final decision on the first rulings could come any day now, Williams said.

Williams said about 1,800 appeals have been filed so far. That does not include individuals who fall into the presumptively eligible for CBAS category, which consists of those people who received ADHC care for roughly four days a week. DHCS and advocates thought this population would qualify in large numbers for CBAS.

“We said they were presumptively eligible, based on a review of paper and the number of days they were attending ADHC,” Ogle said. “But we didn’t do a face-to-face interview. Now we’re finding there are people who don’t meet the criteria.”

Ogle said denials for the presumptively eligible are running at roughly the same rate as the general ADHC population — about 80% to 90% are eligible (meaning that 10% to 20% are ineligible).

Gershon said she thought the phrase “presumptively eligible” meant that people were presumed to be eligible. So why, she wanted to know, are they being denied eligibility at the same rate as everyone else in the general ADHC population?

“It’s pretty shocking,” Gershon said. “And new enrollees also are being denied at a pretty high rate. People are shocked at these outcomes. It’s very troubling. I find all of these circumstances very troubling.”

Ogle said the 3,500 presumptively eligible beneficiaries were simply set aside for later evaluation, and now that the evaluations are being completed, it’s not entirely clear why roughly the same percentage of these beneficiaries qualifies for CBAS.

“We haven’t been able to go back and do the analysis, why people were denied and how it compares to the general population,” Ogle said. “That’s something we haven’t had time to do, but I’m sure that’s something we’ll do eventually.”

The one thing that is known, Gershon said, is that all of the new denials — of the presumptively eligible and the newly eligible — most likely means a significant number of new appeals will be added to the current state-estimated pool of 1,800 hearings, Gershon said.

The first step in that process should happen soon, when the first judicial rulings come to DHCS.

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