How to Research and Use Fair Hearing Decisions

by Benjamin Scott Wright
Mar. 29, 2024

Researching and using fair hearing decisions is one of the trickiest parts of practicing elder law. These important decisions by administrative law judges occur at the first level of appeal after a negative Medicaid decision. They have doubtful legal authority beyond the parties, but are often the best persuasive authority available. Because few Medicaid cases are appealed and even fewer result in precedential decisions by the appellate courts, fair hearing decisions are often the only legal decisions on the finer points of Medicaid law.

Regrettably, fair hearing decisions are not easy to find or research. It’s unclear what difference a decision makes, what its legal authority is, or how to use one. That was my experience as a new elder law attorney, and the experience of many more senior attorneys I’ve talked to. It’s even confusing for ALJs: one recently asked me whether previous decisions were binding legal authority on him.

In this article, I aim to clarify the law of fair hearing decisions and give some guidance on how to research and use them in the practice of elder law.

The Law of Fair Hearing Decisions

Fair hearings exist because applicants and members of entitlement programs have the right to due process when benefits are denied or reduced. Recipients of public benefits are entitled to notice and an opportunity for a hearing as a matter of constitutional due process. Goldberg v. Kelly, 397 U.S. 254 (1970); see also Wis. Stat. § 227.42, Wis. Admin. Code § DHS 104.01(5), Wis. Admin. Code § HA 3.03.

Fair hearings are the first level of appeal after a negative decision by the county income maintenance or economic support agency. Wis. Stat. § 227.42. A negative fair hearing decision can then be appealed to a circuit court, then to the state court of appeals, and ultimately to the Wisconsin Supreme Court. Wis. Stat. §§ 227.53(1), 227.58.

Fair hearing decisions are decisions of the Wisconsin Department of Health Services. Wis. Admin. Code § HA 3.09(9). Just as county income maintenance offices act as agents of the Wisconsin Department of Health Services (DHS), so do ALJs. In some cases, in fact, ALJs must issue a decision as proposed until the DHS Secretary approves, rejects, or modifies it (this used to be more common, but is now rare). So from the beginning of a Medicaid application all the way through a fair hearing, it is the administrative agency making the decisions. The fact that ALJs are employees of the Department of Administration helps maintain some impartiality, but it is not until an appeal to a circuit court that a judge outside the executive branch presides.

Once an ALJ issues a written decision, what legal authority does it have? It certainly governs the parties to the case, and the ALJ can order the Department and its agents (such as county IM workers and MCOs) to take specific actions. Wis. Admin. Code § HA 3.09(13) (“A final decision is binding upon the department and agency involved and may be enforced by appropriate legal and fiscal sanctions.”). On other cases, however, the prevailing view is that it has no mandatory authority. ALJs do not issue holdings that lay down enforceable legal principles for future cases; they only make findings of fact in the case before them and reach conclusions about the application of existing law to those particular facts. ALJs often remind petitioners that they have no equitable powers and cannot provide relief merely because the application of the law is unfair, citing Wisconsin Socialist Workers 1976 Campaign Committee v. McCann, 433 F. Supp. 540, 545 (E.D. Wis. 1977). They also cannot consider constitutional arguments. Id.; see, e.g., DHA Case No. FCP 203910 (Wis. Div. of Hearings and Appeals March 23, 2023) (DHS).

Note, though, that the legal authority of fair hearing decisions was not entirely clear to anyone I’ve talked to. “I have no idea,” said Attorney Amy Greske, of O’Neill Elder Law in Hudson, at first. After further thought, her sense was that decisions have no legal authority, but that DHS and ALJs highly value consistency with prior decisions. Similarly, Attorney Andy Falkowski, of Falkowski Law Firm in West Bend, thinks decisions are not controlling but are highly persuasive when they have similar facts. Attorney Peter Grosskopf, of Grosskopf & Burch in Eau Claire, notes that decisions are often quoted by ALJs but also that ALJs seem to ignore them freely when there are multiple decisions on either side of an issue (as with exempting rental property as a business asset, for example).

Although prior fair hearing decisions appear to be generally not binding, it is worth noting that a circuit court can reverse any agency decision that is inconsistent with an agency rule, policy, or prior practice if the deviation is not justified. Wis. Stat. § 227.57(8). So there is an enforceable rule that Department decisions, even at the fair hearing level, must be consistent to some extent. It might be worth reminding ALJs and case workers of this rule more often.

How to Use Fair Hearing Decisions

Experienced elder law attorneys use fair hearing decisions to persuade case workers in an initial Medicaid application, to persuade ALJs in fair hearings, to keep up to date on the issues arising throughout the state, and to learn more about Medicaid eligibility and benefits.

Persuading Case Workers

Attorneys differ on using fair hearing decisions with case workers. Greske and Grosskopf rarely do so. “I don’t think the fair hearing decisions are that persuasive to case workers,” says Greske, “but once you file for a fair hearing and have a supervisor for the case assigned, that’s often when it’s resolved.” She never includes a fair hearing decision with an application or in response to a notice of proof, but uses them only after an application is denied and she is asking for reconsideration. Similarly, Grosskopf rarely includes a fair hearing decision with an application. In his experience, case workers usually rely on the Medicaid Eligibility Handbook and the help desk.

Falkowski, however, will submit fair hearing decisions with applications when they seem relevant and warranted. His approach is to put as much into the initial application as possible to address anticipated issues. And it seems to have worked for him—he has had very few cases requiring a fair hearing. This has been my approach and experience, as well—most of the time. I did recently have a case where two decisions directly on point failed to persuade a case worker and supervisor, though they did ultimately persuade the ALJ at our fair hearing.

Clearly, a lot depends on the particular case worker. Grosskopf, for example, says he had one case worker in his area who constantly denied applications. Outcomes noticeably shifted when the worker left.

Persuading ALJs

Elder law attorneys agree that prior fair hearing decisions are highly persuasive to ALJs. Because so few Medicaid issues are appealed to higher courts, they are often the only form of precedent you have to work with.

“I think they are very persuasive,” says Greske, “but ALJs don’t know every previous decision. You have to carefully explain how the relevant decision applies to your facts. You can’t just say ‘I win because of this case.’” Again, Grosskopf—who has always done quite a number of fair hearings—has found that ALJs sometimes pick and choose the prior decisions they will follow. Focusing on the relevant, comparable facts is key. This might mean hunting down additional evidence prior to the hearing to ensure an important fact is crystal clear.

Attorney Ben Adams, now retired, says that fair hearings have been critical tools in resolving problems for clients, especially when a case worker makes an error or the appropriate relief is not within their authority. Increasing the community spouse’s asset share or income allowance are examples, and the fact-specific decisions on those issues are of utmost importance when arguing before an ALJ. Similarly, Adams cited one case where finding the appropriate fair hearing decisions allowed them to greatly reduce a divestment penalty.

Keeping Up to Date

Changes in elder law can come quickly, so it’s essential to stay up to date. Falkowski has found that paying attention to fair hearing decisions helps him know what’s going on in the state and in the field of elder law, giving him a sense of how cases are being decided and what issues are coming up.

Some issues come up again and again. When you have one of those issues, it’s good to know you aren’t the only one. And the more you’ve paid attention and already have decisions on point, the easier it will be to prepare a brief or appeal when needed.

Learning About Medicaid Eligibility, Benefits, and Strategies

Knowing the law of Medicaid planning is one thing; seeing how it works out in practice is another. There is no substitute for personal experience, but reading others’ experiences is the next best thing. I have found, for one, that reading many fair hearing decisions has given me a much better sense of how Medicaid programs affect my clients and the benefits available to them. It also gives me confidence that the advice I give and the strategies I use are in line with others’.

You might learn a new strategy by reading decisions. More likely, you will see how too-clever strategies and arguments fail. In this way, fair hearing decisions can help you plan your strategy. But there is always the human factor, too, says Greske: “Your experience may not exactly follow the fair hearing decisions.” You might have to go to a fair hearing yourself.

Reading decisions can also give you perspective on the other side of Medicaid planning: the ongoing benefits and eligibility issues after enrollment. Many—perhaps most—fair hearing decisions are on coverage issues. Will Medicaid pay for orthodontia? Or home modifications? What about when a home care agency increases its rate? These become important questions for clients, but many elder law attorneys—especially newer ones in private practice, where the focus is more on the initial planning and application—lack the experience to answer them. The many fair hearing decisions on these issues can fill this gap in knowledge. Though it is difficult to research decisions on these issues for a specific case—there are so many, and they are so fact-dependent—once you read a number of them you will have a better sense of how to advise clients.

Useful Decisions

Although this is just the tip of the iceberg, I asked the attorneys I talked to what decisions they have found the most useful over the years. Here they are:

• Decisions concluding that a community spouse’s annuity that is qualified as an IRA is exempt: MRA 135337, MRA 178406, and MGE 208717.
• Decisions concluding that the “name on the check” determines who the income belongs to: MRA 167179, MED 66/47172.
• Grosskopf’s decision on over-verification (this one, he notes, is useful to send to a caseworker): MGE 174654.
• Decisions on promissory notes: MDV 37/88496, for example.
• Decisions on increasing the community spouse income allocation: MRA 207266, MGE 197217, and MRA 205971, for example.
• Decisions on the business exemption: FCP 181279, MGE 198872, MGE 208281, MDV 45/86382, and MGE 170367, for example.
• Decision concluding that a mailed check reduces available assets: FCP 193270.

How to Research Fair Hearing Decisions

“Being able to research and unearth the decisions we need to know about is a critical need,” says Adams. Alas, the attorneys I talked to all agreed: researching fair hearing decisions is hard. There is no great solution to this problem. There is no Westlaw, LexisNexis, or Fastcase for fair hearing decisions. Most elder law attorneys do the best they can by cobbling together a few different strategies.

The DHA Site

The primary source for published fair hearing decisions is DHA’s website. DHA publishes all fair hearing decisions on a Sharepoint database that is publicly available. New decisions are published as searchable PDFs with personal information redacted (though the redactions are not always thorough or consistent).

Unfortunately, this site is not very useable or reliable. New decisions are added to it sporadically and unpredictably—as of mid-October 2023, for example, the most recent Medicaid decisions on the site were dated June 1. The site only contains decisions going back to 2013, also. It has a basic search function, but using it is tedious, says Grosskopf. According to Falkowski, “It seems very random, very difficult to search.” Both Falkowski and Greske said it can take them hours to research a case on the site. “When I have a fair hearing, I usually come in on a weekend so I’ll have a large amount of uninterrupted time,” says Greske.

You can, however, narrow your search by selecting for the relevant Medicaid programs (though some issues apply across all programs). Each case is given a hearing code based on the primary program or issue involved (you can find a list of the codes with descriptions on the DHA website). Greske, for example, usually starts with a narrow search of decisions in the same program as her case; a search narrowed to hearing code CWA for Community Waivers programs, for example. She will then move to a broader word search across programs. She noted this strategy is not always effective, but at least weeds out some of the irrelevant cases. Grosskopf recommends starting with the most recent decisions and focusing on the one or two key words most related to your issue.

Still, when searching the DHA site, you will simply have to wade through a lot of decisions. Thankfully, most are short. Greske recommends scanning the facts and then the very end of the decision to quickly decide if it’s relevant.

CLE Updates

Because researching on the DHA site is so difficult and time-consuming, none of the attorneys I talked to make it their go-to resource. For that, they all said the same thing: Pay close attention to the fair hearing and case law updates at the three regular CLEs for Wisconsin elder law attorneys.

There is usually a session on recent decisions at the January workshop put on by the Wisconsin chapter of NAELA, at the spring Wispact Update seminar by the State Bar, and at the fall Legal Issues of the Aging seminar by the State Bar. These sessions review a curated selection of recent fair hearing decisions and case law relevant to elder law attorneys.

These sessions form a reliable foundation for keeping up to date on the most relevant decisions and case law. But don’t just attend the sessions: the attorneys I talked to said they will often make note of decisions during the sessions, look up and save the decisions to their own files afterwards, and even save the summaries in the CLE materials for reference. “This is the most important way to keep up,” says Greske. Though she also notes that there is always selection involved on the presenter’s part. It can never be a complete replacement for your own research.

Listservs

Besides staying up to date with the CLE sessions, asking the email lists for relevant decisions is often helpful. Both the Elder Law and Special Needs Section and the Wisconsin chapter of NAELA have helpful e-lists.

Falkowski, for one, has often discovered useful decisions by monitoring the e-lists and shares relevant decisions whenever he can. “No one person can remember or be able to locate all these decisions over the years,” he says—so don’t be afraid to ask for help. He prefers, in fact, to ask the e-list before attempting research on the DHA site. Greske and Grosskopf use the e-lists in the same way.

It is possible to search the e-list archives for fair hearing decisions mentioned in the past. Similar to the DHS site, these search functions are basic and the archives only go back so far. But a quick search or two is worthwhile. Especially if you are a newer elder law attorney, there’s a decent chance someone else has asked for a fair hearing decision on the same issue in the past.

Your Firm’s File

As mentioned, the attorneys I spoke to all kept their own files of decisions. It seems every established elder law firm in Wisconsin has one. Some are electronic files, some are old-fashioned paper. They are built by saving every relevant or useful decision the attorney comes across over the years.

Falkowski, for example, prints decisions and files them by subject in large hanging file folders. He’s done this since 1998 and has gathered several hundred cases. Similarly, he prints and files the summaries from each CLE update.

Open Records Requests

You can request fair hearing decisions directly from DHA, either informally or with an open records request. A few Wisconsin elder law attorneys have done this over the years, including Grosskopf. He received a ton of decisions in response, many not relevant. “It wasn’t very helpful,” he says.

Also, DHA keeps decisions for only 7 years. I discovered this when I made my own records request for several old decisions I discovered through citations. The response: “In accordance with the Division’s record retention policy, all public assistance files and accompanying documentation are destroyed after a case has been closed for 7 years.” If an elder law attorney didn’t save the decision, it’s gone.

Researching Decisions on Elder Law in Wisconsin

To improve on the above methods, I’ve developed Elder Law in Wisconsin to publish, summarize, and report fair hearing decisions. I hope it will become your go-to resource when you need to find a fair hearing decision or research the finer points of Medicaid law.

Elder Law in Wisconsin has currently published almost 250 decisions from 2020 to date, with a few decisions going back to 2000. My goal is to eventually publish every Wisconsin fair hearing decision relevant to elder law attorneys. The database includes a short summary of the rule, facts, and outcome for each decision. The searchable decisions are tagged by issue, program, and ALJ. You can also sign up for an email newsletter reporting new decisions soon after they are published.

Here are a few things you should know about the fair hearing decisions in this database:

• I generally publish the decisions as-is, without correcting spelling, typos, citations, or other errors (of which there are many). I do occasionally make exceptions when the error is potentially misleading or affects ease of reading. Sometimes I slightly modify formatting for the online medium.
• I redact the names of petitioners when those are missed by whoever does the redactions at DHA, which happens with some regularity.
• Redactions are represented by a single em dash (—).
• You can always look at the original decision, which I attach as a PDF to each decision on Elder Law in Wisconsin.

Final Advice

Though researching and using fair hearing decisions is more difficult than it should be, the attorneys I talked to were all hopeful and encouraging.

“Don’t get frustrated,” says Falkowski. “It’s a huge field. You’re going to be learning so much over the years. It’s a sharing field. Whether you have a mentor or belong to the organizations, stay active. There’s so much knowledge and support out there. If you don’t know something, don’t be afraid to ask.”

Falkowski’s final piece of advice is the most important: “Go to the human resources.”