At the most recent annual MCLE conference on elder and disability law (which I co-chaired), Brian Barreira of Plymouth provided advice on preparing for a MassHealth fair hearing, both in terms of being successful at the hearing and in order to build a strong record in case a 30A appeal to superior court becomes necessary. He was speaking in the context of much inconsistency by MassHealth in its treatment of irrevocable trusts and its practice of not explaining what it finds wrong in a trust until the fair hearing itself. This gives proponents of such trusts little time to prepare. While hearing officers have been generous in permitting litigants time after the hearing to counter MassHealth's arguments in a written memorandum, this is different from being able to argue the points directly to the hearing officer or to present additional relevant evidence. The practice appears to violate the Massachusetts Administrative Procedure Statute, which states at M.G.L. Ch. 30A, sec. 11 (1):
Parties shall have sufficient notice of the issues involved to afford them reasonable opportunity to prepare and present evidence and argument. If the issues cannot be fully stated in advance of the hearing, they shall be fully stated as soon as practicable. In all cases of delayed statement, or where subsequent amendment of the issues is necessary, sufficient time shall be allowed after full statement or amendment to afford all parties reasonable opportunity to prepare and present evidence and argument respecting the issues.
While the practice of permitting legal briefs to be permitted after the hearing does ameliorate to some extent MassHealth's failure to provide an explanation of its position in advance, it does not permit the appellant to present evidence as required by this statute. Given this environment, Barreira recommends taking the following steps:
- In advance, ask the director of the Board of Hearings, Kim Larkin, to direct that MassHealth provide its legal memorandum prior to the hearing.Click here for a fair hearing request form which includes the Board of Hearings address and telephone number.
- Subpoena the memorandum prior to the hearing. Under M.G.L. Section 30A, sec. 12 (3), the attorney can do this herself or ask the hearing officer to do so. Barreira recommends taking both steps. The MassHealth regulations only permit the hearing office to issue a subpoena. 130 CMR 610.052. So far, the Board of Hearings has refused to issue any of the subpoenas requested by Barriera, but making this request will strengthen further claims in state or federal court that the process does not afford the appellant due process.
- Use Barreria's website, MassHealth trust website at irrevocabletrust.info to prepare for the hearing.
- At the hearing, explain the facts and the law to the hearing officer and consider the following:
- Bring in the attorney who drafted the trust to testify as to its purpose.
- Have the trustee testify as to how the trust was managed.
- Have a bankruptcy attorney testify or submit an affidavit about whether the trust could be reached by creditors.
- Bring in an expert witness on trust law.
- Make sure that the trustee has independent counsel who can advise on the trustee's fiduciary duties under the terms of the trust.
- Put into the record supporting hearing decisions in other cases.
- Put the relevant laws and regulations into the record.
If all litigants pursue these practices, some may be successful in achieving due process at the fair hearing level. If not, ultimately a state or superior court judge will order MassHealth and the Board of Hearings to change their practices. Denial of due process should also be grounds for being awarded attorneys fees under section 1983 of the federal civil rights act.