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Legal Network News:
Appeal of Medi-Cal Estate Claim Hearing Decisions
by Writ of Mandate

By Andy Rossoff

So you lost your estate claim hearing. The ALJ wouldn't buy your argument that your elderly client's homelessness qualified as a hardship. Don't despair. You can get relief by filing a Petition for a Writ of Mandate under CCP §1094.5. See 22 CCR §50964. Don't let your lack of familiarity with writs stop you. Here is how I muddled through.

Getting Started

Early on you must decide whether you are seeking a peremptory or an alternative writ. In part because of the way it rolled off my tongue I chose the peremptory writ. The peremptory writ is obtained through a noticed motion. The alternative writ is more like an order to show cause; it involves at least one extra court appearance (the ex-parte hearing on the alternative writ) and some additional pleadings. In addition, you will need to serve the petition (after obtaining the alternative writ) prior to filing it with the court. This can present a problem with a rather short statute of limitations looming.

Speaking of statute of limitations, my extensive research left me uncertain of what it actually was but rather sure of how to beat it. Government Code §11523 is probably the controlling authority; it provides for a 30-day statute of limitations from the last day upon which reconsideration of an administrative decision could be obtained. Since the Department of Health Services (DHS) notices of decision tend to say, "this is the final decision of the agency" I was not sure whether reconsideration of that decision was still possible. How final is "final"? I found no mention of reconsideration of estate hearing decisions in any of the estate hearing regulations. Rather than play chicken with the statute of limitations, I conservatively read Gov. Code §11523 to require filing the petition no later than 30 days from the date of the Notice of Decision. Do you get 5 days for mailing or credit for the time it takes to receive the notice? Maybe, but I didn't find any clear authority for it. I did however save the envelope containing the administrative decision so that I could show that it was actually mailed several days after the date of the notice. I needed those extra days to get my petition on file.

There is a way to extend the statute of limitations. Government Code §11523 also provides that any statute of limitations shall extend at least 30 days beyond the date on which the administrative record is completed and delivered. This extension applies only if the administrative record is requested within 10 days of the last day on which reconsideration may be ordered. Yes, this does require a rather quick decision on whether to go forward. However, if you request the record up front you will have a chance to review the transcript of the hearing as well as the other materials in the record before you are required to file your petition. This can be very helpful if your memory of who said what at the hearing is a bit fuzzy.

It took about a month for the record to be prepared. We were able to slow the process down a little bit by being slow to pay the required deposit. The cost of our record was about $350 including a 70-page hearing transcript (of an approximately 45-minute administrative hearing) and about 160 pages of documents at $.25 per page. If your client is indigent, these costs may be waived pursuant to Gov. Code §68511.3.

You should probably file your petition in your local superior court. However, some forum shopping is available under CCP §401(1), which allows filing in any county where the Attorney General has an office. This includes Sacramento, Los Angeles, San Francisco and Oakland. The Attorney General may also attempt to remove the case to Sacramento under CCP §955. In my case, the Assistant Attorney General was willing to allow the case to remain in my local court and was content to phone in his appearances. I believe that the fact that our opposition was in the form of a disembodied voice was a net gain for our side.

The Petition

The petition should tell the story of how your client was robbed of a hardship finding by the administrative decision. A detailed factual statement with references to the record establishing that your client fits within one or more of the hardship criteria of 22 CCR §50963(a) would be helpful. In addition, your petition should explain the erroneous legal interpretations of those criteria made by the ALJ. For example, if the ALJ says that no hardship exists because the DHS is willing to "work with" your client to establish an amicable payment arrangement, you might assert in your petition that the application of this non-existent criteria is an abuse of the agency's discretion. I sprinkled the phrase "abuse of discretion" throughout my petition.

You don't need to prepare and serve a summons unless you are combining your writ petition with a complaint for declaratory or injunctive relief. Incidentally, the Assistant Attorney General assigned to my case was willing to sign an acknowledgment of receipt of the petition.

Standard of Review

Your petition should define the standard of review that the court should apply in determining whether the writ should issue. Your two choices are "substantial evidence" and "independent review". Under the substantial evidence standard, the court defers to the agency's findings unless there is no substantial evidence to support them. Under the independent review standard, the court re-weighs the evidence and interprets the legal standards giving no deference to the agency's findings of fact or interpretations of law. Whether you are entitled to independent review depends on whether the case involves a fundamental vested right. Although there is no California case that establishes that the rights affected by a hardship denial are fundamental and vested, the body of case law in this area is quite helpful.

The leading case of Bixby v Pierno (1971) 4 C3d 130 establishes that the fundamentalness of the affected right depends on both the economic and human aspect of the threatened loss. A line of cases has rather firmly established that termination or denial of welfare or health benefits also requires independent review. See Cooper v Kaiser (1991) 230 Cal.App. 3d, 1291, 1299 and Harlow v Carleson 16 C3d 731, 737. It seems to me that the potential loss of one’s home is significant in both its human and economic aspects. But then again I am biased. (Incidentally the Attorney General argued that the substantial evidence test should apply because the right to a "free ride" off the taxpayers was not fundamental.)

The Motion

The Motion for Writ of Mandate will look very similar to any other noticed motion. If there is new evidence not presented at the Administrative Hearing that you would like the court to consider, you can attempt to submit it with your motion papers. However, you will need to establish that the new evidence was unavailable at the time of the hearing and could not have with due diligence been presented at the hearing. This is probably not going to be an opportunity to present what you forgot to present at the hearing. If you are unsuccessful in convincing the court that it should apply the independent review standard, the court will be unable to consider your new evidence no matter how unavailable it was at the time of the hearing. However, the court would have the power to remand the case to the ALJ for consideration of the new evidence. If the court conducts an independent review, it can consider appropriate new evidence.

CEB's Administrative Mandamus Practice suggests that the parties agree on a briefing schedule. I understand that some courts have rules which cover procedures for setting your motion; however, if your court does not have any special rules for these proceedings, you can probably set your motion for the normal Law and Motion Calendar and use the briefing schedule outlined in CCP §1005. This schedule is favorable in that you will have the opportunity for the opening brief as well as the final reply brief. Since the reply brief must be filed and served 5 days prior to the date of the hearing, the Attorney General will be left with very little time to prepare a response to your reply and no opportunity to submit that response in writing prior to the hearing. In my case the Attorney General was only able to fax a whiney letter to the Judge asking him to ignore the arguments contained in my reply brief.

The Arguments

Depending on the circumstances of your case you will likely be arguing that the ALJ's factual determinations were not supported by the record, that the ALJ made errors of law, or a combination of both. In my case the DHS made one basic argument: that the Department had broad discretion to determine what is and is not a hardship. The source of this discretionary power was, according to the Attorney General's brief, the "not limited to" category of the hardship regulation. See 22 CCR §50963. My response to this argument was twofold.

First, the federal and state statutory and regulatory schemes do not support it. There is no mention of this broad discretion in any of the statutory or applicable regulatory provisions. See 42 U.S.C. §1396p(b)(3); State Medicaid Manual, Transmittal 75; California Welfare & Institutions Code §14009.5. Moreover, the federal law and HCFA regulatory guideline seem crystal clear that a waiver is mandatory when the hardship criteria or standard is met. The California hardship regulation is certainly fuzzier but clearly should defer to the federal mandate.

Second, application of the "not limited to" category violates due process under the California and Federal Constitutions as well as the California Administrative Procedure Act.

All three authorities and the case law interpreting them support the basic notion that the government cannot deny or take away a substantial benefit without first having some ascertainable standards upon which to base that decision. See Holmes v. New York Housing Authority 398 F.2d 262 (2d Cir. 1968); Goldberg v. Kelly (1970) 397 U.S. 254, 267 to 268; Armistead v. State Personnel Board (1978) 22 Cal 3d 198, 204. Thus, if your client's hardship denial was based upon factors or standards which were not specifically identified in the hardship criteria, the decision is faulty as a matter of law. Arguably, even the specifically identified criteria of 22 CCR §50963 can be attacked as void for uncertainty and lacking adequate standards. A good test for whether the standards are adequate would be whether two different decision-makers would be likely to arrive at the same decision under the standards.

The Hearing

The hearing on a writ motion is actually a trial. The evidence, however, rather than coming from live witnesses, is derived from the record and any new evidence admitted. At some point during the hearing you might suggest that the court admit the record and any new evidence into evidence. If the court neglects to formally admit the record into evidence, you might have some serious difficulties on appeal. With an appeal in mind, it also makes sense to request a statement of decision pursuant to Code of Civil Procedure §632. That request should be submitted prior to submission of the case. That request, preferably made in writing, should identify the issues in controversy on which you would like the court's ruling and reasoning. For example, you would probably want the court to address issues such as the appropriate standard of review, the admissibility of new evidence and the determination of whether hardship criteria have been met.

My local Superior Court Judge asked at our oral argument whether issuance of the writ was discretionary. Technically, extraordinary writs including administrative mandamus are "discretionary". However, if the petitioner establishes a clear legal right to relief, it would be an abuse of the court's discretion to deny it or at least remand it back to the ALJ with appropriate instructions.

The Appeal

Let's not jinx it. We'll save that discussion for
another day.

Andrew M. Rossoff, Esq. is the Directing Attorney at the Senior Law Project, Inc. in Lakeport. You can reach Andy at

From the June 2001 Legal Network News

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