State Enjoined from Dismissing Defaulted Medicaid Fair Hearings Absent Inquiry

The New York State Office of Temporary and Disability Assistance (OTDA) and the New York State Department of Health (DOH) have been "preliminarily enjoined from dismissing administrative appeals of defaulting Medicaid [appellants] who are not given at least 10 days to respond to a written notice from defendants inquiring whether they would like their hearings rescheduled." Fishman v Daines, 09-CV-5248, Memorandum and Order, at p. 9 (E.D.N.Y. March 4, 2016).

U.S. District Court Judge Joseph F. Bianco concluded that

"Plaintiffs have made a clear showing that they are likely to succeed on the merits of their statutory claim. As previously held by this Court and confirmed by the Second Circuit, 42 U.S.C. § 1396a(a)(3) creates a right to a fair hearing before Medicaid benefits are revoked, which is enforceable through § 1983. 42 C.F.R. § 431.223’s requirement that a Medicaid fair hearing request not be dismissed without good cause may be reasonably understood to be part of the right to an opportunity for a Medicaid fair hearing. Further, the State Medicaid Manual – which provides in a directive that participating states must inquire by written notice as to whether Medicaid appellants want their defaulted hearings rescheduled and may only dismiss them if no reply is received – is entitled to Skidmore deference. To the extent that defendants argue that the multiple pre-hearing notices are sufficient to satisfy the statutory “fair hearing” requirement and render a post-default notice unnecessary, the Court disagrees based upon the Skidmore deference that should be afforded to the State Medicaid Manual. In other words, Section 1396a(a)(3), as informed by the relevant federal regulation and agency interpretation of the regulation (through the State Medicaid Manual), requires what due process does not – namely, that the State, before dismissing an appeal as abandoned when the Medicaid appellant failed to appear at the hearing, must ascertain through a post-default notice whether the appellant wishes any further action on his request for a hearing. In sum, plaintiffs have demonstrated a likelihood of success on the merits, and therefore, plaintiffs’ motion for a preliminary injunction, enjoining defendants from dismissing administrative appeals of defaulting Medicaid appellants who are not given at least 10 days to respond to a written notice from defendants inquiring whether they would like their hearings rescheduled, is granted" (emphasis supplied).

Id. at pp. 1-2.

The Fishman plaintiff class is represented by Peter Vollmer.

For more information, see the article, Dismissal of a Fair Hearing Request.

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Author: Gene Doyle, LMSW.