by Gene Doyle, LMSW
A January 26, 1995 memorandum was issued to ALJs by Deputy General Counsel for Administrative Hearings Russell J. Hanks as part of the Order of Partial Settlement in Ewing v Dowling, 92-CV-6521T (W.D.N.Y. November 7, 1994). This memo provided instructions for ALJs concerning the provisions of 7 CFR § 273.15(m)(3)(iii) and (v), which require that the
"hearing official shall: . . .
"(iii) Request, receive and make part of the record all evidence determined necessary to decide the issues being raised; . . .
* * *
"(v) Order, where relevant and useful, an independent medical assessment or professional evaluation from a source mutually satisfactory to the household and the State agency; . . .
Mr. Hanks instructed ALJs (at p. 1) as follows:
"These provisions are interpreted to require the use of an independent medical assessment or professional evaluation only in the rare circumstance where:
"1) the issue cannot be disposed of on other grounds, and
"2 ) the parties have had full opportunity to present their own relevant evidence, through the appropriate use of adjournments, remands and reopened hearings, and
"3) the parties have had full opportunity to review and contest the relevant evidence presented by the opposing side, through the appropriate use of adjournments, remands and reopened hearings, and
"4) in weighing the evidence, the ALJ concludes that the relevant evidence presented by the opposing parties is equally convincing and a determination cannot be made without additional independent evidence.
"In the event that all of the above conditions are met, the ALJ must consult with her/his supervisor."
The State Medicaid Manual (SMM) is published by the United States Department of Health & Human Services (HHS) Centers for Medicare and Medicaid Services (CMS), formerly known as the Health Care Financing Administration (HCFA).
As explained in its Foreward (at p. i),
"This manual makes available to all State Medicaid agencies, in a form suitable for ready reference, informational and procedural material needed by the States to administer the Medicaid program. It is an official medium by which the Health Care Financing Administration (HCFA) issues mandatory, advisory, and optional Medicaid policies and procedures to the Medicaid State agencies."
"An appeal on medical issues may involve a challenge to the Medical Review Team’s decision regarding disability; or there may be disagreement about the content of reports concerning the appellant’s physical or mental condition or the individual’s need for medical care requiring prior authorization. When the assessment by a medical authority, other than the one involved in the decision under question, is requested by the claimant and considered necessary by the hearing officer, obtain it at agency expense. The medical source should be one satisfactory to the claimant. The assessment by such medical authority shall be given in writing or by personal testimony as an expert witness and shall be incorporated into the record."
See also 18 NYCRR § 358-5.6(b)(4), which applies to all Fair Hearings and which authorizes "where the hearing officer considers independent medical assessment necessary, require that an independent medical assessment be made part of the record when the fair hearing involves medical issues such as a diagnosis, an examining physician's report, or a medical review team's decision[.]"
Note: By operation of the opening provision of New York's Medical Assistance (MA) State Plan, "the New York State Department of Health hereby agrees to administer the program in accordance with the provisions of this State plan, the requirements of titles XI and XIX of the Act, and all applicable Federal regulations and other official issuances of the Department." New York Medicaid State Plan Submittal Statement, effective October 1, 1996. The federal The State Medicaid Manual (SMM) is an "official issuance" of HHS.
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