IT’S MY CONSTITUTIONAL RIGHT

Sometimes it seems as if people think the United States Constitution holds the answers to all of their problems. “It’s my constitutional right,” they’ll say when they have a legal problem. But I can assure you, you don’t have a constitutional right to have the contractor who is fixing your sink fix your sink in a timely manner. The Constitution says nothing about your right to drive 75 miles per hour on the Garden State Parkway.

While the Constitution does not address every aspect of a person’s life, it does guarantee us certain fundamental rights. It is from these fundamental rights that many of our laws derive. For instance, you have a fundamental right to free speech, to associate with whom you wish, and to be free from government searches.

The Constitution also ensures you the fundamental right to “due process.” What “due process” is depends upon the given situation. For example, if you are arrested for a crime, in most instances, you have the right to an attorney, the right to have a trial by a jury of your peers, and the right to appeal any decision that the jury may render against you. The State must prove its case against you “beyond a reasonable doubt.”

Those are constitutional rights. If you’ve ever watched a cop show on television, you’re probably familiar with those rights, so to some extent, you know what due process is.

In a nutshell, due process is the right to present your case and to have your case decided by an impartial person, who will render a decision, based upon the facts and the law. If you’re in an automobile accident and the driver of the car you hit sues you, it wouldn’t be fair if that driver’s spouse were the judge and jury in his lawsuit against you. There would be no due process.

Yet, when presenting a Medicaid application to the Board of Social Services, the persons “judging” the application are often biased against the applicant. If a person is seeking Medicaid assistance to pay for their stay at a nursing home, they will make an application for such assistance to the County Board of Social Services.

The Board will determine whether or not the individual is eligible for such assistance. Their determination may or may not be correct. If you disagree with their decision, your recourse is to appeal the decision. Your appeal will be heard by an Administrative Law Judge (ALJ).

Administrative Law Judges work for a state office that is independent of the County Boards. If the ALJ rules in your favor, the County Board has the right to appeal to the Director of the Medicaid program. In other words, the person who heads the department that initially denied your application makes the ultimate administrative decision as to whether or not your application will be accepted. A situation very similar to the spouse judging the automobile accident case.

Obviously, the Director of the Medicaid program has a bias to rule against you. After all, it was her department that ruled against you in the first instance.

You would then have the right to appeal the Director’s decision to a court of law, but that could, quite literally, take years. And remember, we’re dealing with a person in a nursing home. They may not have years and the years they have left shouldn’t be spent appealing erroneous decisions.

There is a significant lack of due process in the Medicaid system. People don’t have a right to receive Medicaid benefits; it’s an “entitlement” program, and they should be required to prove their entitlement to the program. But once their application is denied they should have the right to fair treatment under the law. They should not have to wait years to obtain an impartial determination of their case.