An administrative law judge from the Department of Social Services issued an opinion that the Department of Health Care Services does not have the legal authority in two cases to deny eligibility for the Community Based Adult Services program. That opinion was rejected in an alternate decision issued Wednesday by DHCS director Toby Douglas.
The appeals process, contained at this point within the state Health and Human Services Agency, is overseen by DSS, which submits its findings to Douglas, who has final word on appeals decisions.
One of the two potential beneficiaries whose coverage was denied by the state provided California Healthline with the 10-page document containing the judge's ruling and the state's overruling of it.
DHCS officials declined to comment Thursday and Friday last week.
It was the first opinion issued in a series of test cases to decide eligibility for the new program designed to provide care for some of the frailest seniors and disabled persons in California. State officials have estimated 1,800 appeals have been filed by people who were denied eligibility for CBAS services.
Judge Steven Shaffer focused on one aspect of the two hearings he examined -- whether or not the state has the authority to deny eligibility based on a controversial quality-assurance process.
Hundreds of applicants -- between 500 and 600, according to some estimates -- were denied eligibility after first being approved in face-to-face assessments by a nurse. The denial came after the state conducted a quality review of that face-to-face interview. Judge Shaffer wrote that DHCS didn't have the right to reverse eligibility based on that review.
"Under the Settlement Agreement, there is no authority for the DHCS to later reexamine or overturn that finding of eligibility made after a first level face-to-face review is completed," Shaffer wrote.
Douglas disagreed. He issued an alternate decision that negated the judge's proposed decision.
"The Director rejects the conclusion that the Department does not have the authority to review a nurse reviewer's initial determination of CBAS eligibility and to disagree with that determination in making a final decision about a person's eligibility for CBAS services," Douglas wrote.
Elissa Gershon, Disability Rights California attorney representing the appellants in these two cases, said the explanation from DHCS does not fully explain the legal basis for rejecting the judge's decision.
"They came up with their own bullet points saying that they had the authority, but there was nothing specific in terms of the law," Gershon said. "It wasn't as complete as the judge's decision, so I have a lot of questions about it. And clearly I disagree with it."
Although Douglas' alternate decision deals only with these two cases, the rejection of the judge's opinion could affect hundreds of appellants.
"We need to figure out what we're going to do," Gershon said. "We don't know yet what the next steps will be."