Emmett B. Irwin, Esq.
This presentation will focus on the Bureau of Long Term Care Eligibility, which comprises the LTC MA units for Baltimore City, PG County, Baltimore County, and Anne Arundel County. I understand that people from other counties are attending this presentation, or watching by video. Don’t worry, much of the presentation is generally applicable to every county in MD. The tips, tricks and pitfalls to avoid will come in handy in other counties, too, but they are especially useful at the Bureau.
Four score and seven years ago, or something like that, the founding fathers and mothers of the Maryland Legislature decided to shake up the Medicaid world. Up until that point, the Baltimore City, Baltimore County, Anne Arundel County, and Prince George’s County Departments of Social Services all had staff dedicated to accepting and processing Long Term Care Medicaid applications. The legislature’s grand dream was to transfer every case worker in the state to the new “Bureau of Long Term Care Eligibility.” [Darth Vader music.] The Bureau would ruthlessly process all Long Term Care Medicaid applications with an iron fist, making the whole thing faster, easier, and everyone would be happy… Well, not to insult anyone who worked on the process, but that didn’t happen. Workers from PG County and Anne Arundel County were transferred to Catonsville. Some were now facing an hour long commute. Many experienced caseworkers and supervisors retired. Baltimore City caseworkers and supervisors, who actually taught me the long term care application process, were now transferred to Catonsville. Their workload increased and their workspace decreased – consequently they were drowned in paperwork (this was before scanning). Picture a cubicle completely awash in bank statements as if First Mariner had carpet-bombed Catonsville with paper. Many more experienced caseworkers and supervisors retired. Turnover increased, and efficiency decreased. The new caseworkers didn’t know the rules, and the old caseworkers didn’t care enough to do the work. Sometimes the new caseworkers didn’t care enough to do the work. And the old caseworkers didn’t know the rules. It was a mess, People! Nothing has appreciably changed since the Bureau imploded, except the staff is now allegedly scanning all the documents that they allegedly receive. So here we are, having to send our applications and hard-earned bank statements, etc. to what at least one practitioner has dubbed the “Catonsville Black Hole”…
However frustrating this situation is, we still have the opportunity to help people. This work is incredibly rewarding and in the coming years we will have many more opportunities to make a real difference in people’s lives as the population in Maryland ages.
Obviously, the application process in general is hopelessly complicated and very daunting to the average attorney, not to mention a layperson. What’s worse is that the Bureau is overwhelmed and good at losing things. This section will hopefully help you when problems arise.
Tip: Send the application by Priority Mail rather than regular mail. Anything more is probably overkill, because the Bureau/appeals will generally accept the priority mail receipt as proof that they received the application. Remember, proof of the application date in the form of a Priority Mail receipt is sometimes very important because you can only get coverage for three months prior to the month of application. For example, if you apply in December, you can get coverage for September, October, and November provided your client is asset and otherwise eligible for those months.
Trick: If you are not comfortable with Priority Mail or regular mail (shudder), there is a mail return receipt (don’t forget to put the name of the client and “MA LTC application” on the receipt). The link to a picture of a certified mail return receipt is https://about.usps.com/publications/pub370/pub370_tech_005.htm
Hand delivery, of course, is the ultimate option because you get a receipt signed by a BLTCE worker with the name of the client on the receipt and exactly what documents that you delivered. For most of us, hand delivery is impractical but I included it here for the sake of completeness.
Tip: Know and love the Maryland Medical Assistance Manual (MMAM). The link is https://mmcp.dhmh.maryland.gov/SitePages/Medical%20Assistance%20Eligibility%20Updates.aspx
It is helpful to know COMAR and federal law, of course, but the caseworkers and supervisors generally respond better, and know more about, the MMAM. Sending them a section of the MMAM is usually more helpful than sending them COMAR. Yes, MMAM! And don’t ever waste your time sending federal law, you might as well read them the Magna Carta for all the good it will do.
Trick: Manual Releases are supposed to update the MMAM. They replace whole sections of the manual sometimes. However, the manual is not updated regularly, if at all. So if you see manual sections that directly conflict with manual releases, it is usually because that part of the manual has been replaced. Ex – MR 159 replaced sections of the MMAM.
Tip: Go up the chain. Call the caseworker, then call the supervisor, then call the assistant director, then call the director. Of course, at the Bureau the Asst. Director and the Director are the same person, Virginia Johnson.
Trick: File the application before you get all of the documents. The caseworker will take at least a month to get you a 1052. In the meantime, you can pursue that OPM (Office of Personnel Management) Award letter that you’ve been trying to chase down.
Tip: Face-to-face interviews are held every Tuesday and Thursday at the Bureau, but you must call in advance for an appointment.
Trick: If you have all of the documents, or are very close to having all of the documents, request a face-to-face interview at the BLTCE with a caseworker. You will get a 1052 on the spot, speeding the application process by a month or more. The 1052 will hopefully request only a form 257. You can then badger the nursing home to get you the 257. It is the responsibility of the nursing home to get the 257, which proves that your client needs a nursing home level of medical care. Doing face-to-face interviews is how I got to know the caseworkers at the Bureau! When I was starting out, the caseworkers taught me a lot about the application process.
Pitfalls to Avoid:
Pitfall: Not being nice! This is the ultimate pitfall but unfortunately the Pit most fallen into. The caseworkers and supervisors have much more discretion than you think. That discretion can go in your favor or against you. And when I say “you” I mean your client. The caseworkers are from a completely different world than you are. They don’t work for a law firm - it is only a slight exaggeration to say that State employees cannot be fired. If your client’s application ends up in the trash, or no one returns your calls, no one will at the Bureau will care. And no ALJ will care, either. No one will get in trouble. They are not working for you, so be grateful for any little thing they do, and apologize for any inconvenience you put them through. “Thank you so much for the 1052, I appreciate it!” “I’m so sorry that I have to ask your supervisor about this, my client is really breathing down my neck about this one!”
If you do enough Medicaid applications, especially at the Bureau, you will inevitably have to appeal a case or two, or fifty. Appeals at the Bureau are not as difficult as they may seem at first, and the current appeals staff there is excellent.
Tip: There are two kinds of appeals that you will file at the Bureau. The first is an appeal for Agency Inaction, which is a cause of action from COMAR. The second is from a denial where there is an issue. Sometimes it’s a phantom issue that will easily be worked out, sometimes it’s a genuine issue that the Bureau will take to hearing. Good luck figuring out the difference!
Trick: Do not pursue a Remand Order on the issue of Agency Inaction until the second appeal. Currently, the Bureau’s appeal representatives are top notch. If you withdraw the appeal, the Bureau will generally process the application. Definitely write the reason that you are withdrawing on the hearing notice/withdrawal form, because sometimes the appeals rep will put the previously signed appeal form into evidence and make a Motion to Dismiss. You do not want to be in front of an ALJ down the road explaining why you withdrew the previous appeal. The Bureau’s staff can change anytime and future appeals reps may not remember or care about what agreement you made with their predecessors. Generally speaking, it is a waste of time to go in front of an ALJ on the issue of delay. And even more of a waste to put something on the record about what the Agency has agreed to do in what amount of time. I have about fifty Remand orders for delay in my desk drawer and trust me when I tell you that the Agency could care less about them. Your only recourse if the Agency does not follow the Remand Order is to file an action for Mandamus in the Circuit Court and that is almost assuredly not worth your time.
Tip: To figure out the difference between a phantom issue and a real issue, go up the ladder (some of these tips are generally applicable). You’d be surprised, however, at how many Circuit Court appeals that I’ve seen where the issue is a phantom issue but the attorney for the appellant had only talked to the appeals rep about the case. Then a bad ALJ is assigned to the case and the attorney loses at hearing. The outcome likely would have been avoided if the supervisor had been contacted. Sometimes I was actually the attorney that made that mistake! It’s easy to get caught up in the preparation for the hearing and not go down every avenue possible. Appeals reps get their cases assigned about two weeks before the hearing date. Call the appeals rep early and often to discover whether the issue is one that can be worked out or if the appeals rep wants to go to hearing.
Trick: If the appeals rep wants to go to hearing, apologize profusely and call the supervisor, at the Bureau it’s Shelby Robertson. If Shelby doesn’t agree with you, then ask if you can call Debbie Rizzo. “Do you mind if I talk to Debbie about this?” If Debbie doesn’t agree with you then you’re definitely going to hearing.
Tip: Most ALJs will postpone a hearing if you haven’t received the Department’s summary within 6 days before the hearing date.
Trick: The closer to the hearing date that you received the summary, the more likely a postponement will be granted.
Tip: According to the Office of Administrative Hearings website, there are currently 56 different ALJs in the state of Maryland. They each conduct hearings on wildly different subject matter, from Inmate Grievance hearings and MVA license suspension hearings to Involuntary Psychiatric Commitment hearings and everything in between. They all have different styles and knowledge of Medicaid and some will be overtly hostile to you in the hearing. Most will have a vague recollection of the general regulations and policy, and not know anything about the sources that you are citing. Always do an opening and closing with your understanding of the law and facts and give the ALJ a written argument.
Trick: No matter what the ALJ says about the law, always get the facts into the record. Exhibits and testimony are of the utmost importance. What you argue about the law and facts is of secondary importance. If the ALJ rules against your client, the Circuit Court judge will not ask about what you thought was the law at the hearing. The law is the law, and the ALJs are expected to know it. However, if an exhibit is not in the record or your client’s testimony is not in the transcript, you will lose unless you can show that the ALJ improperly stopped you from getting the evidence in.
Tip: If an ALJ decision is unfavorable to your client, you now have the option of either appealing to the Board of Review or appealing directly to the Circuit Court.
Trick: In my opinion, you should almost always appeal directly to the Circuit Court. The Board of Review of DHMH meets once a month and only hears 10-15 cases per docket. They do not meet in February and March, during the legislative session. They also do not meet if they can’t get a quorum. The members of the Board are mostly laypeople who have a very poor understanding of legal matters. They almost never Remand anything and you may be waiting six months for a hearing to be scheduled, just to lose. Circuit Court judges are generally very good, you will still wait six months for a hearing but you have a good shot to win if you have a case.