In re: REDACTED DCIS No.: REDACTED

Appearances: REDACTED, pro se, Appellant REDACTED, Appellant’s Spouse Howard Tse, Translator Lisa Scurry, Division of Social Services, Declarant

I.

REDACTED and her spouse oppose actions by the Division of Social Services to discontinue the Medicaid Program benefits they receive for themselves and their children REDACTED.

The Division of Social Services (sometimes herein “DSS”) contends that REDACTED was sent an application to renew the family’s Medicaid Program coverage and did not return the application. According to DSS the non-submission of an application justifies the termination of Medicaid Program coverage.

REDACTED’s testimony for the hearing is that she did not receive an application. Even if she had received an application form by mail, she does not read English or communicate well without the aid of an interpreter.

I instructed the DSS declarant to provide the family with an application form after the close of the hearing and to assist them in completing it.

II.

As a result of the information received for the hearing, I find that DSS sent REDACTED notices to terminate the Medicaid she receives for herself, her spouse and their two children on or about March 7, 2005.

The effective date of the termination was April 1, 2005.

REDACTED filed requests for a fair hearing on March 22, 2005. [Exhibit # 1] The requests are timely as defined at §5305 (1) of the Division of Social Services Manual. Since the requests were filed timely, DSS was required, by operation of §5308, to reinstate aid pending a pre-termination hearing.

I find that DSS has not reinstated benefits as required by §5308. Consequently, I instructed the DSS declarant at the hearing on June 27, 2005 to reinstate the appellant’s Medicaid(REDACTED’s testimony is that she needs a Medicaid card in case her children become ill or need to see a doctor. She has not had a need to use a card since the case was closed ) retroactive to April 1, 2005.

I also find that the notices sent to Ping Li do not contain a citation to a rule as required by §5301 (4) (b). [Exhibit # 1]

Since the March 7, 2005 notices [Exhibit # 1] do not comply with the procedural prerequisites for termination notices at §5301 they are not legally sufficient to effect the termination of the appellant's assistance after March 31, 2005. This is because the notices do not "provide [a] citation to the regulation(s) supporting the action to be taken" as required by §5301 (4) (b).

The lack of a citation to a rule that supports the action to terminate the appellant’s Medicaid Program coverage is reversible error under a 1985 order of the United States District Court for the District of Delaware. A notice that omits a citation to the rule governing the action the notice announces deprives appellants of the adequate notice required by due process. "Due process requires that claimants facing termination of public assistance benefits must be given 'adequate notice detailing the reasons for a proposed termination.'" Ortiz v. Eichler, 794 F2d 889,892 (3d Cir. 1986) (quoting Goldberg v. Kelly, 397 U.S. 254, 267 (1970)). "Such notice is necessary to protect claimants against proposed agency action 'resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.'" Id.

I also find that the DSS hearing summary notice omits a citation to the rule governing the action under appeal. In addition, the facts stated in the summary are not supported by evidence. There is no documentary evidence offered for the hearing record that supports the fact that Medicaid Program redetermination notices were mailed to the appellant on February 2, 2005. The statement in the hearing summary [Exhibit # 2] that “client failed to return the form” is unsupported. REDACTED’s testimony is that she did not receive the form. If she did not receive the redetermination form then there could not have been a “failure” to return the form. It is notable that DSS did not write simply that a redetermination form was not received by DSS in response to its request. Instead DSS concluded that Ping Li “failed” to return the form. This finding is not supported by the hearing record.

III.

For the reasons given above, the decision not to reinstate the appellant’s Medicaid coverage after a timely request for a fair hearing was received is reversed as inconsistent with §5305 (1) and the decision to terminate the family’s Medicaid Program assistance effective after March 31, 2005 is reversed as unsupported by the facts and because the notice authorizing the action is inconsistent with §5301.

Date: June 27, 2005 ROGER WATERS HEARING OFFICER

THE FOREGOING IS THE FINAL DECISION OF THE DIVISION OF SOCIAL SERVICES

RW cc: REDACTED Lisa Scurry, DSS Jessica English, DSS

EXHIBITS

Exhibit # 1 (four pages) are the appellant’s requests for a fair hearing. The requests are made on the last page of two notices dated March 7, 2005 and are date stamped as received by DSS on March 22, 2005. They are admitted as evidence of timely requests for a fair hearing. The notices are admitted as evidence of their non-compliance with §5301 (4) (b) and as evidence of non-compliance with the Court’s order in Ortiz v. Eichler as discussed above.

Exhibit # 2 (two pages) is a DSS §5312 fair hearing summary. This is not admitted as evidence of a notice that complies with §5312 because the summary does not contain a citation to a rule as required by §5312 (5) (e). In addition the facts as stated in the summary are not supported by the hearing record as discussed above.