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Judge dismisses elderly plaintiffs' suit over Medicaid regulation

A judge has dismissed a lawsuit brought by elderly Marylanders who claim they were unjustly denied Medicaid-funded services because a state regulation applies stricter standards than federal or state law.

While expressing sympathy for the plaintiffs, Baltimore City Circuit Court Judge Gail E. Rasin told their lawyers that they had failed to exhaust administrative remedies and the appellate process in the seven underlying claims.

“That is the process that the law requires in each one of these cases,” Rasin said. “And it works.”

Interpretation of the regulation by administrative law judges may vary, she said, but that does not necessarily mean the regulation itself is ambiguous.

The benefits at issue are services “above the level of room and board,” such as help with bathing or transferring from a bed to a wheelchair.

The seven original plaintiffs, aged 75 to 88, were deemed medically ineligible for such services. Some live at home; others were in an assisted living facility but were required to pay out-of-pocket for such services.

The regulation in question requires the applicant (whether at home or in a nursing facility) to demonstrate a regular need for services that can be provided only “under the supervision of licensed health care professionals.” (The limitation also affects eligibility for Medicaid-funded adult day care programs.)

Neither the state nor federal law requires such a demonstration, the suit alleges.

Under heavy questioning Thursday by Rasin, however, plaintiffs’ lawyer Sarah Lock of the AARP acknowledged that the regulation had been erroneously interpreted.

Assistant Attorney General Lorie Mayorga, who represented the state Department of Health and Mental Hygiene in the case, said she was surprised by that admission.

“I thought it was a rather interesting turn of events. They’ve always claimed that COMAR on its face was in violation of applicable statutory authorities,” Mayorga said. “Essentially they’ve conceded that their entire action was meritless.”

But Regan Bailey of the Maryland Legal Aid Bureau Inc., who was co-counsel with Lock, noted that Rasin made several encouraging comments regarding the merits of the case before dismissing it on procedural grounds.

“Procedurally, technically, [the suit] was dismissed, and that’s a loss,” Bailey said. “But on the substance of the issue, we are correct and so we feel somewhat vindicated on that. …We’re looking forward to bringing these same issues in front of the Court of Special Appeals.”

Rasin promised a written opinion would follow her decision, which Bailey expects will be “instructive” as to how to proceed with the individual cases.

According to Bailey, one of the original seven plaintiffs has died and another has dropped out. Three are in agency proceedings following remand by the circuit court, and two are before the Court of Special Appeals, Bailey said.

The plaintiff group grew to 11 in August; three of the new plaintiffs’ cases are before the circuit court.