Due Process Rights - Denial or Reduction of Medicaid Services

This section explains your due process rights and rights to a hearing when Medicaid services are denied or reduced.

Medicaid services are provided through the Medicaid State Plan by the Agency for Health Care Administration [AHCA], and the Agency for Persons with Disabilities [APD] for persons receiving services under the Developmental Disabilities waivers, or by another agency responsible for particular home and community based waiver service.

Services received under the waivers are Medicaid services and provide the same hearing rights.

You have a right to a due process hearing whenever an agency reduces or denies Medicaid services. Due process means that the agency must give you Notice and an opportunity to be heard at a hearing before an impartial judge or hearing officer.

The tabs below will describe your hearing rights, give practical hints and instructions on requesting a due process hearing, and provide information on how you should prepare for a hearing and what to do when you go to a hearing.

Right To A Hearing

When an agency denies the services you request, denies eligibility for services, or reduces services, you have a right to DUE PROCESS.   Due process means that the agency must give you notice and the opportunity to present your case at a hearing before an impartial hearing officer or judge.  

NOTICE: The agency must provide you with written notice of its decision to deny or reduce your services.

In the notice, the agency must tell you:

  • What action the agency intends to take
  • The reason the agency is taking the action
  • The specific statute and/or rule that the agency relied upon to take the action, and
  • An explanation of your hearing rights. 

If the action is to reduce services you are receiving, the services must continue as long as you request a hearing within 10 days of receipt of the notice.  Otherwise, you generally have 30 days to request a hearing.

HEARING

If you request a hearing within the time indicated in the notice, the agency must provide the hearing.   The hearing is before an impartial judge or hearing officer. 

BEFORE THE HEARING

You have the right to look at your file and to look at all of the documents the agency plans to use at the hearing.  

At the hearing you have the right to:

  • Bring witnesses,
  • Present all the facts and documents that support your case,
  • Present your argument without interference from the agency,
  • Present your argument against the agency’s reasons,
  • Question or challenge any evidence the agency presents,
  • Question, confront and cross examine the agency’s witnesses. 

AFTER THE HEARING

The agency must give you its decision in writing and advise you of your right to appeal the decision to a higher court.  

Requesting A Hearing

Before you request a hearing, you must read the notice very carefully.  The notice will tell you where to send your hearing request and the deadline for making your hearing request.  Deadlines are very important.  If you do not send the hearing request in time, you will have your services cut or denied and the action becomes final. 

The deadline for sending hearing requests to the agency is generally 30 days, but look at your notice.  If you are receiving the services that are being denied or reduced, you must request a hearing within 10 days of receiving the notice.

The hearing requests are made to the agency at the address they give you on the notice.  It is up to the agency to send the case to either the Office of Hearing and Appeals (OHA) or the Division of Administrative Hearings (DOAH). 

DOAH hears cases concerning the developmental disabilities waivers.  OHA hears all other Medicaid cases.

The hearing request may be made by letter or by petition.  It must be in writing.  In your hearing request, you should provide:

  • your name, address and telephone number 
  • If someone is representing you at the hearing, the name address and telephone number of your representative 
  • A statement that you are requesting an administrative hearing; 
  • All the facts and reasons why the agency is wrong in denying or reducing your services
  • A statement of the date you received your notice. 
  • Include a copy of the notice with your request. 

You should keep copies of the notice and your hearing request.   

Preparing For The Hearing

In order to prepare for a hearing you should

  • prepare a list of the exhibits (documents) you will give to the judge or hearing officer, and
  • prepare a list of the witnesses (persons) that will testify on your behalf.  

EXHIBITS

Exhibits generally consist of documents, charts, photos, and records.  You should make a list of all your exhibits in the order that you plan to use them. Make copies of all your exhibits for the judge or hearing officer and the agency, and keep copies for yourself.  Identify each exhibit by number on the originals and all of the copies. Keep a copy of all your exhibits for yourself.

WITNESSES

Witnesses are persons who can testify on your behalf at the hearing.  The testimony of witnesses is evidence that the judge or hearing officer will consider.  You are also a witness if you plan to testify at the hearing.  Your doctor, friend, family member or other person who knows your situation are examples of witnesses. 

Before the hearing you should make a list of the witnesses who will be testifying at the hearing in the order you want them to appear.  You should write your questions for each witness and visit or call each person to explain the purpose of the hearing and go over your questions.     

Visit or call each witness, explain the purpose of the hearing, and go over your questions and their answers.

MAKE SURE YOU GIVE YOUR WITNESSES THE DATE, TIME AND LOCATION OF THE HEARING.

The Hearing

At the beginning of the hearing, the judge or hearing officer will give you instructions about how he or she wants the case to proceed. 

Generally the agency presents its case first at the hearing.  The agency witnesses will be questioned by the agency attorney.  This is called “direct examination”.  After direct examination, you have the opportunity to ask the witness questions concerning the agency’s decision to reduce services you are receiving. This is called “cross-examination”.

When it is your turn, you can present your witnesses and documents to the hearing officer or judge.  You can ask your witnesses questions and you can also testify as to the reasons the agency’s action is wrong.  The agency attorney can question you and your witnesses. 

At the end of the hearing, the judge or hearing officers will not give his or her decision.  The judge or hearing officer will issue a decision in writing at a later date.   

Medical Necessity

Medicaid can only pay for services that are medically necessary.  The agency bases its decision to deny or reduce services based on “medical necessity.”   The Notice will contain the reasons the agency believes the service is not medically necessary.   The agency’s job at the hearing is to show that the service is NOT medically necessary.  Your job at the hearing is to show that the service IS medically necessary.

“Medical necessity” has a legal definition which is in Rule 59 Florida Administrative Code 59G-1.010 (166).  The rule states:

 “Medically necessary” or “medical necessity” means that the medical or allied care, goods, or services furnished or ordered must:

1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;

2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs;

3. Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;

4. Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and

5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.