In the case of Boudreau v. Director of the Office of Medicaid (Mass. App. No. 13-P-1337, July 25, 2014), the Massachusetts Court of Appeals dismisses a complaint for judicial review because it was filed by the appellant’s attorney rather than his conservator.
Pertinent dates in this case
On August 8, 2012, a MassHealth application was filed on behalf of August Cristofori, a resident of the JML Care Center in Falmouth. MassHealth rejected the application for lack of verifications—a common occurrence in the application process—on September 13, 2012, and on September 19, 2012, Attorney Matthew J. Dupuy filed two requests for fair hearing, one signed with Cristofori’s name, though apparently by Dupuy, and one signed by Dupuy as “Attorney for August E. Cristofori.”
On September 18, 2012, Attorney Mark Boudreau was appointed as Cristofori’s temporary conservator and on October 16, 2012, Dupuy sent a letter to the Board of Hearings stating that he represented both Boudreau and JML. On October 23, 2012, the Board of Hearings rejected the request for a fair hearing ruling that Dupuy lacked standing to make the appeal on Cristofori’s behalf.
Boudreau appealed this denial, first to Superior Court and then to the Court of Appeals, losing at each level. The Court of Appeals here rules that since standing to appeal comes from the MassHealth statute, MassHealth’s regulations govern whether Dupuy had standing. Interestingly, the regulations have different standards for standing to apply for MassHealth and for appealing a denial. Dupuy did have standing to file the application for benefits on Cristofori’s behalf but not to serve as a so-called “Appeal Representative” who must either have written authorization from the applicant for benefits or “has, under applicable law, authority to act on behalf of an appellant in making decisions related to health care or payment for health care. An appeal representative may include, but is not limited to a guardian, conservator, executor, administrator, holder of power of attorney, or health-care proxy” (130 CMR 610.004(2)).
The Court’s ruling
The Court of Appeals rules that Dupuy did not satisfy either requirement and thus the Board of Hearings was correct in dismissing his appeal. The Court rejects the argument that the definition of a “Eligibility Representative” and an “Appeal Representative” must be identical: “While incongruous, the regulations prescribing who may apply for benefits and who may appeal a denial of benefits are a product of the agency’s discretionary power to which we defer.”
The Court also notes the Superior Court’s dismay at having to enforce this regulation, quoting it in a footnote as follows:
Common sense and equity favor allowing the plaintiff to proceed but the language of the regulation as to “appeal representative” is clear, and is not equivalent to “eligibility representative.” This strict application of the regulations, while within the prerogative of the defendant, will do little in the long run to promote public confidence in the administration of Medicaid.
Form over function
This decision, while disturbing in its enforcement of form over function, raises a number of questions. First, while Dupuy did not have standing to appeal, Boudreau did. He failed to do so within the 30-day window after the MassHealth denial of benefits. However, he was not appointed until five days after the denial and Dupuy sent a further letter to the Board of Hearings stating his representation of Dupuy four days after the expiration of the 30-day appeal period. Shouldn’t the running of the 30-day appeal period have been stayed for five days while no one had authority to act on Cristofori’s behalf?
Inexperienced attorneys may have been a key factor
Second, Attorney Dupuy’s website lists his specialties, including “Representation of Nursing Homes statewide.” He does not list elder law or MassHealth planning as a specialty nor membership in the National Academy of Elder Law Attorneys. While I cannot find a website for Attorney Boudreau, the online information I found about him does not reflect any MassHealth or elder law experience. This is not meant as a knock against either lawyer but rather to point out that nursing homes consistently fail to engage attorneys who specialize in helping residents qualify for MassHealth.
What are the financial consequences?
Third, it’s not clear from the record how much is at stake here. The standard practice when there’s a denial of MassHealth benefits is to file a new application to preserve the application date. Applicants can seek three months of retroactive benefits. If Boudreau had applied on Cristofori’s behalf during October 2012, he could have sought coverage back to July 1, 2012. The harm to JML in terms of loss of benefits may have been relatively limited.
A moral of this story is to read the regulations very, very carefully.
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