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Does the Director of the Board of Hearings at the Office of Medicaid Realize (or Even Care) that the MassHealth Subpoena Regulation is Legally Invalid?

July 7, 2015

Under a MassHealth regulation governing fair hearings, 130 CMR 610.052 (B), a MassHealth appellant has the right to a subpoena, either requiring the attendance and testimony of a witness or the production of any evidence (including books, records, correspondence, or documents) relating to any matter in question at the hearing. According to this MassHealth Board of Hearings (“BOH”) regulation:  “Any party may submit to BOH a written request for the issuance of such subpoena. If, in its discretion and in accordance with 130 CMR 610.065(B), BOH allows such request, a subpoena will be issued within three business days of receipt of such request.”

The problem with that regulation, which was presumably reviewed and approved by lawyers representing the Office of Medicaid, is that it overrules Massachusetts law instead of interpreting it.  A regulation is supposed to be an interpretation of law wherever there is ambiguity or room for agency discretion.  The underlying Massachusetts law, Massachusetts General Laws, Chapter 30A, Section 12, from which this regulation is derived does not give the BOH even a hint of authority to decide whether a subpoena should be issued.  Rather, M.G.L. c. 30A, s.12 provides that “[a]ny party to an adjudicatory proceeding shall be entitled as of right to the issue of subpoenas in the name of the agency conducting the proceeding. The party … may make written application to the agency, which shall forthwith issue the subpoenas requested.” (emphasis added)  The regulation at 130 CMR 610.052 is derived from M.G.L. c. 30A, s.12 and cannot be interpreted to deprive the appellant of the right to a subpoena under Massachusetts law.

It is completely beyond my belief that all of the many lawyers at the Office of Medicaid and the BOH do not understand or care that they are regularly violating this subpoena law, but the ultimate blame has to be placed on the Director of the BOH, Kim Larkin, who is a lawyer and oversees the fair hearing process.  By law, under Massachusetts General Laws, Chapter 118E, Section 48, the BOH is supposed to be independent of the rest of the agency, but good luck trying to subpoena information from the other part of the agency.

I have had direct experience with the BOH in its consistent refusal to issue subpoenas. When challenging the Office of Medicaid’s failure in 2000-2001 to calculate the average daily cost of nursing home care (a critical figure in the imposition of a MassHealth ineligibility period due to disqualifying transfers of assets), I requested subpoenas regarding the process used to calculate the figure and the underlying data. The Director of the BOH, Kim Larkin, refused to issue any subpoena at that time. In 2014, in Appeal 1411682, where a trust amendment was being treated as a disqualifying transfer of assets, I wrote to the hearing officer for a subpoena to be issued to the Director of the Office of Medicaid (or her designee) for the underlying data used to calculate the average daily rate being posted. The subpoena was not issued by the hearing officer based on the flimsy excuse that it presumed the MassHealth representative would not be able to provide the requested information at the hearing, and that the Office of Medicaid was now put on notice that the issue could arise at the hearing; not so coincidentally, the MassHealth representatives at the hearing did not have the subpoenaed information, and the hearing officer did nothing at all about it.

In another 2014 appeal (Appeal 1409671), I requested a subpoena to the Director of the Office of Medicaid (or her designee) regarding similar trusts that had received approvals, and it was denied in large part because the hearing officer claimed that the information requested was irrelevant. The next day, at the fair hearing, the hearing officer acknowledged that the issue was a valid one to be pursued by the appellant, but then his excuse for refusing to issue the subpoena was that I had had a notary public issue my own subpoena after I had received his refusal to do so; thus, the hearing officer stated he did not have to do so because there already was one in existence. He then gave me 2 weeks to petition the Superior Court for an order requiring compliance with the terms of the subpoena that he himself could have simply issued after acknowledging that the issue being pursued was valid. It seems that the BOH hearing officers always have an excuse for not issuing a subpoena to the Director of the Office of Medicaid, and it therefore appears that the claimed independence of the BOH, which is a part of the Office of Medicaid, is lip service only.

When a subpoenae is directly issued to the Director of the Office of Medicaid (or her designee) by a notary public, as is permitted under M.G.L. c. 30A, s.12, lawyers representing the Office of Medicaid usually send back a form letter which states that a subpoena is only valid if issued by the BOH hearing officer, and that the Office of Medicaid will not comply with the subpoena.  Thus, it seems that these lawyers representing the Office of Medicaid either lack a basic understanding of how regulations cannot override laws, or are advising their client not to follow the law, which would seem to be unethical lawyering. It may also be unethical conduct for a hearing officer (who is a lawyer) not to issue a subpoena, where black letter law states that it must be done.

Under 130 C.M.R. 610.065(A)(4), the Board of Hearings has the duty “to ensure that all parties have a full opportunity to present their claims orally or in writing and to secure witnesses and evidence to establish their claims,” but it seems clear that the Office of Medicaid does not want its hearing officers to be required to issue subpoenas, and the hearing officers and the Director of BOH seem to bend over backwards to find excuses not to allow appellants to attain their right to a subpoena under M.G.L. c. 30A, s.12.  Unfortunately for the system of justice, the Director of the BOH does not seem to understand or care about these fundamental issues of due process and administrative law.

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