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Mr. Miller has many years of experience in designing and implementing a comprehensive variety of Trusts, Wills, and other estate planning documents, as well as settling estates in the most expedient and appropriate method. Further, he counsels and assists clients on becoming eligible for VA benefits and Medi-Cal.

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Can One Appeal a Medi-Cal or VA Denial?

By merv,

  Filed under: Elder Law, Medi-Cal Benefits, Veteran's Benefits

Can One Appeal a Medi-Cal or VA Denial?


So what happens when VA or Medi-Cal denies your claim?

Why an attorney?

How long does it take?

My experience VA

My experience Medi-Cal

Introduction: Max was in a skilled nursing facility (SNF). The monthly cost was staggering–$20,000 per month! Sara, Max’s wife, was worried–how would she afford the cost. The SNF social worker told Sara that Medicare would pick up the tab—-but only for the first 100 days, and maybe not that long.

What did she mean by “maybe not that long?” The social worker explained that as soon as Max stopped improving with the rehabilitative treatment, Medicare would end and that they expected that that would be within the next 2 weeks. But Max would still need skilled care so he couldn’t return to the lower cost Assisted Living Facility. In other words, the continuing care would still be hovering around $15,000 per month for the long term.

Sara began to panic. Then Bob, her son, suggested she see an attorney. The attorney recommended that Sara, on behalf of Max, apply for Medi-Cal and VA benefits. There were a couple of twists and turns to get them eligible and that took about 30 days. Once that was completed the application for Medi-Cal and VA were filed. The VA benefits were granted in about 1 month. That provided approximately $2000 per month; but that was really only a drop in the bucket. Medi-Cal was really what they were after. Given that Max’s monthly income was only approximately $3000 per month, that meant that Medi-Cal would pick up the almost $12,000 difference ($15,000 monthly SNF bill less the $3000 of Max’s income).

Fortunately, after filing for Medi-Cal and once Medicare stopped paying, Sara only had to pay Max’s estimated “share of cost” (the amount that Sara would have to pay if Medi-Cal were approved. $3000 was a lot better than $15,000! But then Sara received in the mail a denial letter from Medi-Cal. The letter said that Sara (and her attorney) had not cooperated in providing the requested information to the Medi-Cal eligibility worker. How could that be, every time a request was made, the necessary document was sent in?

So what happens when VA or Medi-Cal denies your claim? Appeal is the magic word. There are time limits to be dealt with so one must read the denial letter carefully. With Medi-Cal it is generally 90 days, with a hearing within in about 45 days of your request. VA is typically one year with everything being dealt with through the mail, at least at the first stage. And in either case, if you don’t already have an attorney, you probably want one, now. And note, I said an attorney, not a non-attorney representative (authorized representative for Medi-Cal or accredited agent for VA).

Why an attorney? Although the initial application can often times be handled by a non-attorney representative, appeals can get technical and usually require citations to the actual statutes and regulations. Most non attorney representatives, even those who actually know what they are doing, do not have that type of knowledge and are not equipped to do this.

How long does it take? For the VA, an appeal to a Decision Review Officer (a DRO is sort of a senior case worker taking a new look at the file) generally takes 7-15 months to obtain a decision. If one is turned down at that stage, then the next step is a formal appeal to the Board of Veterans Appeals (BVA).

For Medi-Cal, as stated earlier, the hearing occurs rather rapidly and a decision can be expected in about 90 days. If turned down at that stage, an appeal to the local State Superior Court would be the next step. Further, at least in San Diego County, before the hearing, the county authorities actually comb through the case file to determine whether they think they have a strong footing or not. If not, they usually will withdraw the denial letter and start all over.

My experience VA: I have mixed emotions about DRO reviews. We have had success on a number of cases at this stage. But since it is rare to non existent to actually speak to a live person on VA cases or DRO reviews, I can only say that sometimes I feel that the DRO has done no better job of understanding what the facts are and what law governs than the initial case worker. In those situations, formal appeal to the BVA is the appropriate remedy. An actual hearing is available. For all appeals, the VA must approve all fees charged to the claimant. Up to 20% of back due benefits is presumed to be reasonable and over 33% is presumed to be unreasonable.

My experience Medi-Cal: (Note this applies to San Diego County, only) I have been very pleased with the appeals process as to the speed of the process, and the treatment by the Medi-Cal authorities during the appeal. It is relatively rapid and the Medi-Cal authorities have expressed an interest in “getting it right.” Attorney fees are not reviewed by the Medi-Cal authorities.

July 2012

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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning

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