Tag Archives: appeals

Should an Appeal Be Filed If a Denial for MassHealth Long Term Care Is Received?

by: Brian E. Barreira, Esq.

Usually when a MassHealth denial is received, it makes sense to file an appeal within 30 days of the denial date.  To have proof that you appealed timely, it is advisable that the appeal be sent via fax to the Board of Hearings.

In many cases, receiving a MassHealth denial means that the MassHealth eligibility worker requested something (known in MassHealth lingo as a “verification”) and did not receive it on a timely basis.  In those situations, submitting a missing verification during the following 30 days is treated as a new application for MassHealth.  Since a MassHealth application is retroactive for no more than 3-4 months, it is important to determine whether the new application will go back far enough.  If not, an appeal should be filed, and if all of the missing verifications are submitted at an appeal, the original application date will be preserved.

If a denial is received for any reason other than missing verifications, filing an appeal may or may not help the situation.  If there were disqualifying transfers, sometimes an appeal would be futile and a return of the assets to the MassHealth applicant makes more sense.  Sometimes, the denial refers to excess assets and there are financial steps that can be taken to “spend down” the excess assets.

What I have been seeing a lot of lately is a denial that is the result of an overworked MassHealth eligibility worker’s mistake.   This is also a just plain ridiculously stupid MassHealth process now in place, where you send your documents to MassHealth on a timely basis, then MassHealth sends the documents out to be scanned for electronic storage and doesn’t let the eligibility worker know when the documents were received, so the worker issues a denial because the worker doesn’t receive the scanned documents back on time.

When a denial is received and you file an appeal, MassHealth’s own regulations require that most appeals be heard and decided within 45 days.  Unfortunately, at present, it now takes the Board of Hearings 4-5 months just to schedule an appeal.  Nursing homes, which are not being paid during that time, are sometimes filing lawsuits against MassHealth applicants and their families before they even get a chance to have their appeal heard.  Thus, when you receive a MassHealth denial for any reason whatsoever, attaining the services of an elder law attorney within the following 2-3 weeks is now extremely important.  It shouldn’t be that way, but the MassHealth system seems to be out of control at this point.

What Is Considered a Disqualifying Transfer When Applying for MassHealth?

by: Brian E. Barreira, Esq.

Under federal Medicaid law and MassHealth regulations, the past five (5) years of a MassHealth applicant’s assets are scrutinized to determine whether the applicant has made any disqualifying transfers.  As the term indicates, a disqualifying transfer makes the MassHealth applicant ineligible for MassHealth.

A disqualifying transfer is usually a gift (or something similar to a gift) that the MassHealth applicant made in the previous 5 years.   Any transfer that occurred more than 5 years ago (even just 5 years plus one day ago) is outside the Medicaid lookback period, and cannot be considered a disqualifying transfer.  A disqualifying transfer, however,  is not limited to gifts.  To put it as simply as possible, if the MassHealth applicant had ownership of anything on one day and did not have the same ownership the next day, a disqualifying transfer may have occurred.  Thus, any sale for less than fair market value can be a disqualifying transfer.  Paying a child or other relative for services, or even reimbursing them for expenses, can be treated by MassHealth as a disqualifying transfer.  Unrepaid loans can also be considered disqualifying transfers.

Sometimes the lawyers representing MassHealth make unfair stretches of the law.  For example, should a  bad investment be treated as a disqualifying transfer.  In one case that I handled that took 5 years to win, the MassHealth lawyers saw that a MassHealth’s applicant’s husband had made a risky investment that dropped in value.  Those lawyers attempted to convince a judge that he should have foreseen that the investment would drop in value, and therefore he had essentially made a disqualifying transfer.   Fortunately, a full 5 years after the MassHealth application had initially been filed, a Superior Court judge overturned the decision of a fair hearing officer who had sided with MassHeath’s silly argument.

Applying and Appealing to Receive Retroactive Medicaid Benefits in Massachusetts

by: Brian E. Barreira, Esq.

In Massachusetts, Medicaid coverage of nursing home costs is obtained by filing a MassHealth long-term care application.

Any MassHealth application can be retroactive to the first day of the third month prior to the application. Based on the date that MassHealth is needed, in many cases you must keep the original application alive. If an applicant receives a denial due to missing verifications and mails in missing verifications within thirty (30) days after the denial, that action is treated as a new application, causing a new application date, which affects the maximum time period that MassHealth can be retroactive. A later application date can also cause the date of payments of medical or nursing home bills to become important to whether retroactive MassHealth benefits will be allowed.

For example, suppose Jane applies for MassHealth on December 19, needing coverage as of September 20. Under this application, MassHealth can be retroactive to as early as September 1. Only the original application, however, will obtain the needed retroactivity. If Jane receives a denial on February 5 due to missing verifications and submits one or more of them during February, a new application is deemed to exist, and its maximum retroactive date would be November 1.

The treatment of previously-paid expenses can be affected by the timing of the MassHealth application. Medical and nursing home expenses that are less than ninety (90) days in the past are allowed as part of the spenddown process whenever they are paid, but if those expenses precede the MassHealth application by more than ninety (90) days, then a different rule can apply. If we also suppose in the example in the previous paragraph that Jane sold stock and received the proceeds on December 3 and immediately paid the nursing home at its private pay rate for the September 1-September 20 period, that action would have no impact on the effective retroactive date of MassHealth coverage for the original application. The result would be difficult if the denial of the original application were not appealed. Under a new application, that action could change the maximum retroactive date of the later application to December 3.

There is a MassHealth regulation which allows a successful appeal of a denial to keep the original application alive. If Jane appeals the denial instead of just sending in the missing verifications, a new application would not be deemed to exist, and the original application would be preserved, thereby allowing MassHealth coverage retroactive to the earliest possible date.

When these procedures are not followed, the result can be that the nursing home will not be paid far enough retroactively by MassHealth and the MassHealth applicant will be responsible for the unpaid amount. As a last resort, the only possible way to cover the shortfall could be to make a request to MassHealth that the unpaid nursing home bill be paid over time via deductions from Jane’s monthly income. Although MassHealth would have been required to cover the bill if the appeal process had been correctly followed, there would be no guarantee that MassHealth would help Jane and the nursing home on previously-disallowed nursing home bills.

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