Settlement with EOHHS Regarding Treatment of Trusts and Administrative Appeal Timelines

This settlement with the Executive Office of Health and Human Services (EOHHS) arises out of several consolidated cases brought in Suffolk Superior Court. Congratulations to Nicholas Kaltsas of Elder & Disability Law Advocates, John Welch of Life Care Planning Law Group, and John Ford of the Northeast Justice Center for their perseverance. All the underlying cases pertained to the denial of Medicaid eligibility based on excess trust assets.  The settlement addresses promptness of fair hearing decisions and responses to requests for rehearing, as well as procedures to promote MassHealth’s consistent treatment of trusts when determining financial eligibility for long-term care. The court did not retain jurisdiction to enforce the agreement, but by the terms of the agreement,  non-parties may seek specific performance of the  requirement for timely Board of Hearings decisions.  A copy of the Oct 14, 2021 final judgement on the joint motion  dismissing the litigation as well as the Sept 13, 2021 settlement agreement is attached.  Some highlights are:

Promptness of fair hearing decisions: the settlement reinforces 42 C.F.R § 431.244(f)’s requirement that the Board of Hearings make a final decision within 90 days of the request for fair hearing. It requires MassHealth to create an email address that appellants awaiting a fair hearing decision may email within 14 days of the 90 day deadline. If the board then fails to issue a timely decision, the appellant may bring an action in superior court seeking specific performance of the agreement's requirement of timely decisions. It also requires publication of statistics on the percentage of decisions issued by the 90 day deadline.

Consistent Treatment of Trusts: This settlement defines “good cause” for the Medicaid Director to grant a rehearing request  when the fair hearing decision is inconsistent with a previously issued hearing decision or an appellate court decision construing the same trust language or law. This settlement sets a 45 day timeline for decisions on a request for rehearing; the request is deemed denied if the Medicaid Director doesn’t act on it in 45 days, unless the appellant opts out of this timeline in writing. It is not clear whether this 45 day timeline only applies to request for rehearing based on inconsistent treatment of trust assets or to all requests for rehearing; presumably the promised subregulatory guidance will clarify this at some point. With respect to two prior court decisions regarding the adequacy of notice denying eligibility based on trust assets, it also provides that appellants may notify the agency of noncompliance with those orders and the legal department shall monitor such complaints.

The settlement also requires the Board of Hearings to make its best effort to make fair hearing decisions available online by September, 2023.

The settlement  directed the agency to post subregulatory guidance regarding the provisions of the settlement. As of Jan 1, 2022 we are aware of no such guidance, but the agency has posted some of the information and forms referred to in the settlement on a new MassHealth Appeals website linked below.

UPDATE: The link below is to a new MassHealth website on how to file an appeal. Pursuant to the settlement agreement, it includes quarterly statistics on the number of appeals filed, those closed by decision, and the percentage of decisions made within 90 days. It also includes a form to notify the General Counsel if a decision has not yet been issued 14 days prior to the 90 day deadline for timely decisions. In addition it includes  a form specific to denials for excess trust assets through  which appellants can notify the legal department when the eligibility denial notice is not  in compliance with either of two prior court decisions regarding adequate notice of denial based on trust assets. The web address below also now links a page where redacted fair hearing decisions are posted.

MassHealth amended the fair hearing regulations at 130 CMR 610.91 regarding rehearing "long-term care eligibility decisions" in when fair hearing decisions  are inconsistent with court decisions. Attached are comments submitted by MLRI, HLA, GBLS and DLC on the proposed rules seeking clarification of the provision of 610.019. No clarifications were made in the final rule leaving considerable uncertainty about the application of 610.91. A copy of the comments are attached.