Overcoming Denials and Fair Hearing Support

Tom: Hi, I’m Tom Krause, Vice President of Krause Financial Services. We’d like to welcome everybody to today’s program. This is episode one of our newest series, Industry Insights. In this series, we’ll be exploring topics that are relevant to you as an elder law attorney. Working with elder law attorneys across the country and consulting on hundreds of crisis planning cases a month, we see trends that affect the elder care space, and we want to share some of those insights with you. We have a very special guest on today’s show, the newest member of our in-house legal team, Mr. Scott Engstrom. Scott is responsible for working with attorneys that experience a case denial. Welcome, Scott.

Scott: Thanks, Tom.

Tom: Scott, let’s start by telling us a little bit about your background.

Scott: Absolutely. I graduated from Appleton West High School. Appleton is in the Fox Cities, a little bit south of Green Bay. Go Packers. After high school, I went to the University of Minnesota, graduated with a bachelor’s in political science. After Minnesota, I went to Penn State for law school. When I was in law school, I was a member of the Civil Rights Appellate Clinic. We did some amicus briefs to the third circuit of the United States Supreme Court. After graduation, I got a clerkship with a trial-level judge in Pennsylvania. I also took and passed the Maryland Bar. I ultimately decided that I wanted to move back to the Midwest, so I took and passed the Wisconsin Bar as well and began a litigation career. In terms of my litigation experience, I did criminal defense, some guardianships, mental health commitments. I also did family law, some probate work, and also business and commercial litigation.

Tom: Sure. So, why did you pursue law as a career?

Scott: I always felt that I was a good communicator, even in high school and before that. In classes, I’d find myself adopting a position, defending it, and getting into debates. I also really enjoy breaking down barriers between people and trying to get them to see my viewpoint. So, all of those things kind of dovetailed into a career in the law, which has, thus far, proven very satisfying.

Tom: Excellent. So, tell us a little bit more about your role here at Krause Financial Services.

Scott: My role here at Krause is kind of three-fold. I help out with compliance in terms of the products that we offer. I also provide in-house best practice support. And I also provide support for our attorney clients in the event that they receive a Medicaid application denial and have to proceed to a fair hearing.

Tom: Tell us a little bit about denials, fair hearings. What does that mean?

Scott: Sure. So, ultimately, if a person’s trying to get on Medicaid and receive benefits, they have to submit an application. There are certain requirements, and you can learn all about those on our website. But, ultimately, if you get denied, if you want to overcome that denial of your application, you have to proceed to a fair hearing. Now, ultimately, you can avoid a fair hearing if you engage in a conversation sometimes with the caseworker, you can negotiate a resolution. But, ultimately, if you have to go to that fair hearing, it’s an administrative proceeding, and basically, you try to tell your story to get that application ultimately approved.

Tom: Can you give us a little more insight as to how an administrative hearing is different than your traditional courtroom setting?

Scott: So, your traditional courtroom setting, what you’re thinking of when you watch TV with the wood panels with the judge up on their bench with the robe, that’s what you’re thinking of when you think of a trial case. Now, you can also have administrative hearings where an agency handles a certain subject matter and, like in the case of a Medicaid application, where it’s denied and a person who’s applying wants to challenge that denial. So, a trial-level court, they’re going to be more strict on the rules of evidence, objections are going to be more frequent, and the burdens of proof are going to be more clearly defined. In an administrative hearing, the burden is much lower, and you’re not going to have those same roadblocks in terms of objections. They will be less frequent. And it’s more about telling your story, getting the information in front of the judge, and getting them to see your viewpoint.

Tom: Excellent. So, how has your background in the courtroom and the litigation really prepared you for this role?

Scott: The best way I can describe it is all of the litigation experience that I have gained firsthand allows me to put myself in the shoes of our attorney clients. So, when they go through a denial, I know what it’s like to know that you’re going to be litigating a case. I am able to empathize, know what they’re feeling, and know the steps that need to be taken in terms of research and drafting memos and all of the preparation that would go into that.

Tom: So, if a case is denied, what is some advice you would give an attorney?

Scott: The first thing is not to panic. A lot of people who do this area are either recovering litigators, or they’re relatively new to the practice of law. And you need to not panic. You need to have confidence in yourself, rely on your training, rely on the fact that you know you’re an attorney and you know how to do this. The second step, I would contact me. You can reach out to me directly at [email protected]. We have a lot of great resources here at Krause. You can also sign up for our Attorney Access. You’ll get all sorts of state-specific information that will help you. And, in terms of communicating directly with me, I’m there to be a sounding board. Whether you need me just for high-level strategy questions, want me to provide some litigation or research support, or, ultimately, if it’s appropriate for us to provide expert testimony, we’re willing to do that as well and help you in drafting questions and proposed answers and getting you prepared for the final stretch and ultimately litigating that fair hearing.

Tom: Are there any types of issues that you can shed some light on that you’ve worked on since starting this role?

Scott: Absolutely. So, a lot of the issues that we have come directly from Medicaid application denials. Those are cases where the local Medicaid office is considering something a transfer of resources when they shouldn’t be considering it a transfer of resources; where they’re considering somebody over-resourced; or where you’re dealing with something like the “Name on the Check Rule.” So, there are a variety of issues that come to us. Attorneys also reach out to us where they might just have a high-level question, or it might not even be something that’s ultimately a denial. It might be a pre-application question.

Tom: Thank you. Have you learned anything about the elder law industry that differs from the other practices of law that you’ve experienced?

Scott: Absolutely. When you think of litigation and when you think of battling things out in court, it’s very adversarial. There’s a lot of head-butting. Now, that’s not to say that Medicaid applications, when they’re denied, that it’s not adversarial and not contentious. But the elder law community, especially the attorneys, it’s very collegial. It’s a very inquisitive group of people that are ultimately just looking for ways to best accomplish their clients’ goals. It’s a very client- and outcome-oriented practice of law, and, ultimately, it’s a very positive experience so far for me. I think that all the people who engage in elder law practice ultimately just want the best for their clients.

Tom: Will you be putting out any additional material? Where else can attorneys interact with you?

Scott: So, I will be submitting blogs on our website. I’ll also be doing white papers. You might see me at local functions with a variety of different organizations that Krause works with. And you may see me in other publications going forward.

Tom: Excellent. Can you tell us why it’s important that attorneys have an on-demand resource like yourself?

Scott: Absolutely. I can tell you from my firsthand experience that, while I feel that I was a good litigator and I still would be a good litigator if I still did that, it’s important to have sounding boards. It’s important to have somebody you can bounce ideas off of. And it’s important because that helps you work through the problem yourself. Whether it’s just hearing yourself say the words and maybe it helps something click or it helps you understand where you’re missing something, it’s walking through those problems and having a sounding board that’s really important. I can also direct you to resources that you might not be aware of because I spend a lot of time on Westlaw just using a variety of research tools that I have available. And I’m really able to provide that support role, especially if you don’t have time and you have multiple cases.

Tom: Well, excellent, Scott. So, what is the best way, I know you mentioned it earlier, that an attorney can get in touch with you?

Scott: You can contact me directly at [email protected]. If you work with one of our great planners here or any of the sales team, you can ask them to put you in contact with me. So, there are a variety of ways to get in touch with me. Please don’t hesitate to reach out. I don’t bite, I promise. I pride myself on being very responsive and getting back to you in a timely manner. So, I look forward to hearing from you with any questions or comments that you might have.

Tom: Well, thank you, Scott. I appreciate you coming on today to give us an in-depth look into your role as to how you assist clients when they’re in this situation. And I want to thank everybody for joining us today. We look forward to the opportunity to bring you additional content throughout this series. And remember, industry-leading support is only one click away at Krause. If you have any questions about how Krause Financial Services can help you in your practice, call us today at 855-552-5893. Thank you.