Late Medicaid Appeal: Bradford County Manor v. Pennsylvania Department of Human Services
Disclaimer: This article has been posted for general information purposes only, and discusses Pennsylvania law. You should not act upon the information in this article without first retaining legal counsel.
By Robert C. Gerhard, III, Esquire
The Commonwealth Court case of Bradford County Manor v. Pennsylvania Department of Human Services[1] illustrates the importance of timely filing an appeal when Medicaid long-term care benefits have been denied. Additionally, this case shows how critical it can be to enter sufficient evidence into the record before the Bureau of Hearing and Appeals in order to support a request for a late appeal, nunc pro tunc.
The normal deadline for appealing a denial of Medicaid long-term care benefits is 30 days after a notice (Form PA-162) has been issued by the County Assistance Office (CAO), but there are exceptions to this general rule which permit late appeals under certain circumstances. In this case, the Commonwealth Court upheld the Bureau of Hearings and Appeals finding that Bradford County Manor’s late appeal was untimely, and found that the grounds for a late appeal, nunc pro tunc, had not been established based on the evidence of record.
Ms. Congdon entered the Bradford County Manor nursing facility on February 8, 2010 suffering dementia, and an application for Medicaid long-term care benefits was filed for her on March 2, 2010. Ms. Congdon’s family was informed by the Pennsylvania Department of Human Services’ caseworker that certain missing documentation was required in order to make a determination regarding eligibility for nursing home Medicaid benefits. That missing verification was supplied in short order, but based on that documentation the County Assistance Office promptly denied long-term care benefits with a written notice dated April 1, 2010 citing “excess resources.”
A second application was filed and that subsequent application was eventually approved. Unfortunately long-term care benefits were only authorized retroactively to January 1, 2011, leaving an unpaid nursing home bill for some period of time between Ms. Congdon’s admission to Bradford County Manor and January 1, 2011 when benefits under the second application were approved.
This type of case is referred to by some elder law attorneys as a “gap in coverage case.” Benefits are approved, but not far back enough to cover all that is owed to the nursing home. Medicaid long-term care benefits can only be authorized retroactively to the first day of the third month before the month in which a Medicaid application, Form PA-600L, is filed. With the benefit of hindsight, it would have been important for Ms. Congdon to appeal the denial of benefits under the first application, and not just file a second application.
It can be difficult for applicants and nursing home business offices to discern eligibility, or a quick path to eligibility when faced with a denial of benefits. The rules are complicated, and the financial information needed to make accurate decisions on whether to appeal or re-file is not always immediately available. We can see now that it would have been preferable for those helping Ms. Congdon to immediately file an appeal of the first denial as a protective measure.
An appeal of the first denial notice was eventually filed on February 25, 2015, almost 5 years after the date of the initial denial notice. There are situations where appeals after the normal 30-day deadline are timely, or can be satisfactorily explained and treated as timely, but a nearly 5-year delay is going to require a solid explanation, and in these late appeal cases the appellant bears a heavy burden of proof.
The Commonwealth Court cited applicable precedent in upholding the administrative law judge’s decision: “An appeal nunc pro tunc will be allowed only where the petitioner’s delay was caused by extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances related to the petitioner, his counsel or a third party.” C.S. v. Department of Public Welfare, 879 A.2d 1274, 1279 (Pa. Cmwlth. 2005). Our Supreme Court has held that a breakdown in the administrative process occurs “where an administrative board or body is negligent, acts improperly or unintentionally misleads a party.” Union Electric Corporation v. Board of Property Assessment, Appeals & Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000). In such cases, “an appeal nunc pro tunc may be warranted.” Id. (emphasis added). The petitioner bears the burden of establishing that an administrative breakdown has occurred. J.C., 720 A.2d at 197.”
Not receiving the denial notice from the County Assistance Office (CAO) can permit an appeal beyond the 30-day time frame in certain cases. In the Bradford County Manor case the CAO supervisor testified at the hearing that the notices were sent, and the administrative law judge found his testimony as credible, even though the CAO failed to retain the notice as was technically required by DHS policy. Testimony by the CAO supervisor stating that it was the CAO’s business practice to send the required notice to the applicant’s authorized representative was credited as sufficient. Additionally there was no testimony of record from Ms. Congdon’s authorized representative or otherwise to substatiate that she did not receive the denial notice.
An applicant’s lack of mental capacity, coupled with lack of notice to the applicant’s authorized representative can be a reason for an appeal filed after the 30-day deadline to proceed. However, even though Ms. Congdon suffered dementia, it appears the court noted the active pursuit of the second application by the family and nursing facility to be an indication that there were people working on the matter who should have taken steps to bring the appeal more quickly.
The court recited the key elements that must be proven when seeking permission to file an appeal nunc pro tunc, specifically that: (1) the appeal was filed within a short time after learning of and having an opportunity to address the untimeliness; (2) the elapsed time period is of very short duration; and (3) appellee is not prejudiced by the delay.”
The party filing the request for an appeal nunc pro tunc has the burden of proof, and the appellant in Bradford County Manor v. DHS did not meet that burden. The nursing home did not file its appeal until 1,796 days after the denial notice was issued. Even if the appeal of the first denial had been brought more quickly, it is not clear that an appeal nunc pro tunc would have been permitted to proceed. The court noted that even where the nunc pro tunc criteria are met, the appeal *may* be permitted to proceed. Late appeals are a challenge.
There are some potential lessons to learn from this case:
- The “authorized representative” of a Medicaid applicant must carefully follow the application though the system and should sometimes file an appeal as a protective measure. It is easy enough to withdraw an appeal if not needed, but it is not easy to prevail where the appeal is filed late – especially when the appeal is filed almost 5 years late!
- Families with a loved one in a nursing home should consult with an elder law attorney to help them through the application and appeal process. Any denial of benefits needs to be taken seriously. It appears that the applicant in this case worked directly with the nursing home and did not hire an elder law attorney.
- A gap in Medicaid benefit coverage for nursing home care should be quickly identified, and promptly addressed. Although late appeals can be permitted under certain circumstances, the burden of proof is high.
[1] Bradford County Manor v. Pa Dep’t of Human Services, (Pa. Cmwlth. May 25, 2016).
Robert C. Gerhard, III Esquire is the managing shareholder of Gerhard & Gerhard, P.C., an estate planning and elder law firm located in Montgomery County, Pennsylvania. Attorney Gerhard specializes in elder law, with emphasis on Medicaid Planning, Medicaid Applications, and Medicaid Appeals. He is the author of the Pennsylvania law treatise, Pennsylvania Medicaid, Long-term Care.
