Whenever a MassHealth applicant receives a denial, it can be appealed through a process known as a “fair hearing.” In Attorney Barreira’s opinion, all denials should be appealed, even if the MassHealth eligibility worker seems to be working on resolving the problem. The appeal can always be withdrawn later, once the problem has been officially resolved, and written proof of the resolution has been received.
Some fair hearings can involve simple issues such as resolving missing verifications, but other issues can be more complicated. (See What Is a Fair Hearing under MassHealth, and Can You Really Expect It to Be Fair?) Unfortunately, the lawyers representing the Office of Medicaid have been gaming the legal system, and the Board of Hearings, which is supposedly an independent part of the Office of Medicaid, has allowed these lawyers to violate the due process rights of MassHealth applicants. In many cases, especially involving trusts, the lawyers representing the Office of Medicaid advise the MassHealth eligibility worker to withhold the actual reasons for the denial, and the appellant does not learn about these reasons until the fair hearing has already begun, when a lengthy memorandum is entered into the record.
To give just one example of how unfair the fair hearing system is, Attorney Barreira represented a MassHealth appellant at a December 2014 fair hearing, where, despite having made multiple requests for the reasons for the denial in advance of the hearing, after the fair hearing had begun he was handed a 19-page, single-spaced memorandum to which the hearing officer expected a response. The lawyer who had drafted the trust had taken the day off from work to attend the hearing and testify about his trust, and he and I had to read through this extremely detailed memorandum and comment on it point-by-point in front of the hearing officer. Anybody with a bit of common sense should be asking: how could any hearing officer even begin to think that this process was fair? (Fortunately, because I had collected other secret memoranda from the Office of Medicaid and had posted them online at IrrevocableTrust.info, we were largely prepared for many of the silly legal points we were reading on the fly.)
The obvious reason for the latest possible filing of memoranda by these lawyers representing the Office of Medicaid is that they do not want to allow MassHealth applicants to be able to prepare for the hearing, and unlike any other type of legal proceeding, they do not even show up at the hearing to discuss what they had written. The lawyers representing the Office of Medicaid are quite simply not being truthful about Medicaid trust law in these memoranda, but the lack of training provided to the hearing officers by the Board of Hearings on trust issues has led to some odd fair hearing decisions. So that elder law attorneys and MassHealth appellants can be aware of the lengths to which the lawyers at the Office of Medicaid will go against trusts, as well as the conflicting nature of the opinions rendered by hearing officers, Attorney Barreira continues to collect fair hearing decisions and memoranda submitted at fair hearings by the lawyers representing the Office of Medicaid, and publishes them online at IrrevocableTrust.info. For some issues in non-trust cases, he maintains fair hearings at MassHealthAppeals.com.