1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0139P (6th Cir.)

File Name: 04a0139p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

LARNCE HAMBY,

Plaintiff-Appellee,

BETTY OOTEN,

Intervenor Plaintiff-Appellee,

NORA HYSLOPE,

Intervenor Plaintiff-Appellee,

v.

C. WARREN NEEL,

Commissioner, Tennessee

Department of Finance and

Administration; MARK

REYNOLDS, Deputy

Commissioner, Bureau of

TennCare,

Defendants-Appellants.

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Nos. 01-5653/5930

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 98-01023—William J. Haynes, Jr., District Judge.

Argued: January 31, 2003

2 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

Decided and Filed: May 17, 2004 

Before: BATCHELDER, MOORE, and CLAY, Circuit

Judges.

_________________

COUNSEL

ARGUED: Sue A. Sheldon, OFFICE OF THE ATTORNEY

GENERAL, Nashville, Tennessee, for Appellants. Lenny L.

Croce, RURAL LEGAL SERVICES OF TENNESSEE, Oak

Ridge, Tennessee, for Appellees. ON BRIEF: Sue A.

Sheldon, OFFICE OF THE ATTORNEY GENERAL,

Nashville, Tennessee, for Appellants. Lenny L. Croce,

RURAL LEGAL SERVICES OF TENNESSEE, Oak Ridge,

Tennessee, for Appellees.

CLAY, J., delivered the opinion of the court, in which

MOORE, J., joined. BATCHELDER, J. (pp. 27-34),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

CLAY, Circuit Judge. This is a consolidated appeal. In

Case No. 01-5653, Defendants, C. Warren Neel, the

Commissioner of the Tennessee Department of Finance and

Administration, and Mark Reynolds, the Deputy

Commissioner of the Bureau of Tennessee’s Medicaid

Demonstration Project (“TennCare”), appeal from the district

court’s order entered on April 27, 2001, granting summary

judgment in favor of Plaintiffs, Larnce Hamby, Betty Ooten,

and Nora Hyslope. In Case No. 01-5930, Defendants appeal

from the district court’s order entered June 8, 2001, denying

Defendants’ motion to stay the district court’s April 17, 2001
Nos. 01-5653/5930 Hamby v. Neel, et al. 3

order. For the reasons set forth below, we AFFIRM the

district court’s orders. 

STATEMENT OF FACTS

Procedural History

Plaintiffs brought this action under 42 U.S.C. § 1983 and

the Fourteenth Amendment of the United States Constitution,

challenging the TennCare program’s handling of their

applications for coverage under the program when Plaintiffs

were denied coverage.

Plaintiff Hamby commenced this action inOctober of 1998.

Plaintiffs Ooten and Hyslope requested and were granted

permission to intervene in the action in 1998 and 2000,

respectively. Thereafter, Plaintiffs and Defendants filed

cross-motions for partial summary judgment. On April 13,

2001, the district court issued an order granting Plaintiffs’

motion for partial summary judgment, thereby awarding

TennCare benefits to Plaintiffs from the date of their original

applications, and denying Defendants’ motion for partial

summary judgment. The district court modified its order on

April 27, 2001 and May 10, 2001, changing a sentence in the

order and providing a correct citation to a regulation.

Defendants timely filed a notice of appeal on May 11, 2001

(Case No. 01-5653). Pending appeal, Defendants filed a

motion to stay the district court’s April 27, 2001 order. By

order entered on June 8, 2001, the district court denied the

motion to stay. On July 2, 2001, Defendants moved this

Court for a stay pending appeal. This Court denied the

motion to stay on August 9, 2001, insofar as the motion

sought a stay of an injunction requiring Defendants to

approve benefits under the TennCare program to Plaintiffs as

of the date of their first applications. However, this Court

granted a stay pending appeal of all other aspects of the

district court’s April 17, 2001 order.

4 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

On July 5, 2001, Defendants timely filed a notice of appeal

from the district court’s June 8, 2001 order (Case No. 01-

5930). This Court consolidated the two appeals on July 26,

2001, and conducted oral argument on January 31, 2003.

Thereafter, on February 24, 2003, Plaintiffs filed a motion to

dismiss the appeals for lack of jurisdiction. By order issued

on April 11, 2003, this Court denied the motion to dismiss.

Facts

A. TennCare Enrollment and Eligibility

The Tennessee Department of Health (“TDH”) administers

the TennCare program for the State of Tennessee. TENN.

CODE ANN. § 71-5-104. The TennCare program is a federal

waiver plan under the Medicaid Act approved by the

Secretary of Health and Human Services under 42 U.S.C.

§ 1315. The waiver eliminated certain requirements for

eligibility for medical benefits under the Medicaid Act.

Under the TennCare program, Tennessee provides medical

assistance to eligible persons through managed care

organizations rather than through traditional fee-for-service

arrangements with providers. TennCare coverage is extended

to three groups of individuals: (1) existing Medicaid

beneficiaries and those who meet Medicaid’s financial and/or

medical eligibility requirements; (2) the uninsured; and (3)

the uninsurable. TENN.COMP.R.®S. 1200-13-12-.02(2)

(a) 2 and 3. The TennCare regulations define uninsured

persons as:

[A]ny person[s] who as of March 1, 1993 . . . did not

have coverage under an individual health insurance

policy or who did not have (either directly or through a

family member) coverage under, or access to, employersponsored health insurance or to another government

plan, and continues to lack this access . . . . 
Nos. 01-5653/5930 Hamby v. Neel, et al. 5

TENN. COMP. R. & REGS. 1200-13-12-.01(36). Persons

eligible for TennCare coverage as uninsureds can enroll

during periods of open enrollment. TENN.COMP.R. ®S.

1200-13-13-.03(1)(d). The open enrollment period continues

until the program reaches 85% of the maximum enrollment

cap for that year. TENN. COMP. R. & REGS. 1200-13-13-

.03(1)(d).

The TennCare regulations define uninsurable persons as

“[A]ny person[s] who are unable, because of an existing

medical condition, to purchase health insurance, but who

meets the guidelines of the [program].” TENN. COMP. R. &

REGS. 1200-13-12.-.02(35). Persons eligible for TennCare

coverage as uninsurables can enroll at any time. TENN.

COMP. R. & REGS. 1200-13-12-.03(1) (b) 2.

To enroll in the TennCare program, an applicant must

answer a series of written questions and submit the completed

forms to the TennCare Bureau. The same application is used

for both uninsured and uninsurable applicants. Applicants are

not required to reflect on the application whether they are

seeking medical insurance as an uninsured or uninsurable

person.

The TennCare regulations state that enrollment in the

program is complete when the “person eligible for enrollment

has selected a managed care plan from those available in the

area where the person resides, the application has been

approved by the Bureau of TennCare, and when any

applicable premiums have been paid.” TENN. COMP. R. &

REGS. 1200-13-12-.03(1). The regulations further provide

that “[e]nrollment shall be deemed complete retroactive to the

date of the original application, if that application is

approved.” TENN. COMP. R. & REGS. 1200-13-12-.01(1).

This is consistent with the Medicaid regulations and waiver

that require approval of medicaid coverage up to three months

from the date of the approved application.

6 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

However, if an application is denied, the TennCare

regulations require that written notice to the applicant include

the following:

1. An explanation of the reasons for the Bureau’s

actions, including a brief statement of the factual basis

and the rule or contract provision relied upon by the

Bureau;

2. An explanation ofthe circumstances under which the

TennCare applicant can request an appeal; and

3. An explanation of the TennCare applicant’s right to

submit documents or other information in support of a

request for appeal.

TENN.COMP.R.®S. 1200-13-12-.11(3)(b). Furthermore,

an applicant may appeal the denial of TennCare coverage

within 30 days after the date of the notice of denial. TENN.

COMP. R. & REGS. 1200-13-12-.11 (3) (a).

B. Plaintiff Hamby’s Application Process

In 1995, Hamby, then sixty-one years old, was treated for

skin cancer and testicular cancer. Hamby applied for

TennCare coverage in December of 1995. Because Hamby

had not yet received a response from the TennCare Bureau

regarding his December 1995 application, Hamby completed

and mailed a second application to the Bureau in February of

1996.

On his applications, Hamby stated that he had not been

turned down for a health insurance policy other than Medicaid

or Medicare. The TennCare Bureau denied both of Hamby’s

applications. The TennCare Bureau sent Hamby a written

notice, dated March 20, 1996, which provided in part:

THIS IS WHY WE THINK YOU DO NOT QUALIFY

FOR TENNCARE.
Nos. 01-5653/5930 Hamby v. Neel, et al. 7

Your [February 1996] application was received after the

end of an open enrollment period.

. . . . 

If you or someone in your family has lost or cannot get

health insurance because of a medical condition, fill in

the attached appeal form and return it to us. You and

your family members may qualify for TennCare because

you are uninsurable. Uninsurable people can enroll in

TennCare at any time.

. . . .

There are three ways to qualify for TennCare. We only

checked one way. You may also be eligible if you are

uninsurable (you lose or cannot get health insurance

because of a medical condition you have) or if you

qualify for Medicaid.

. . . . 

REMEMBER! Even if you are not eligible for TennCare

or Medicaid . . . you can apply later if the facts about you

change.

(J.A. at 211-12.) 

In June of 1996, Hamby sent a third application to the

TennCare Bureau, in which he indicated that he had been

denied health insurance. Hamby’s third application was

received by the TennCare Bureau on June 12, 1996. The

TennCare Bureau later informed Hamby that he was enrolled

in the program effective June 12, 1996.

In June of 1997, Hamby filed an appeal and declaratory

ruling requesting that his enrollment relate back to the date of

his original application in December of 1995. On June 12,

1998, the Administrative Law Judge (“the ALJ”) issued an

order finding Hamby eligible for TennCare coverage based on

his second application submitted in February of 1996. The

ALJ reasoned that the Commissioner was required to open

8 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

TennCare enrollment during the first three months of each

calender year until enrollment reached 95% of the enrollment

cap applicable for that year, and that Hamby had filed his

February 1996 application during the open enrollment period

of that year, when the total enrollment was less than 85% of

the maximum enrollment of 1.5 million.

On September 4, 1998, the Commissioner’s designee

reversed the ALJ’s order. The designee concluded that

Hamby’s enrollment date should have been based on his third

application of June 12, 1996 because Hamby responded on

his December 4, 1995 and February 15, 1996 applications that

he had never been denied other medical insurance. The

designee also concluded that Hamby’s first two applications

were submitted after enrollment for coverage as an uninsured

person was closed. Hamby did not appeal or request for a

hearing concerning the denial of his December 1995 and

February 1996 applications. 

C. Plaintiff Ooten’s Application Process

On July 2, 1998, Ooten, then forty-nine years old, had a

heart attack and was taken to Roane County Medical Center

in Harriman, Tennessee. While in emergency care, Ooten’s

daughter completed a TennCare application for Ooten and

submitted it to the hospital. After her release from the

hospital, Ooten called the TennCare Bureau to inquire about

her application. The TennCare Bureau informed Ooten that

her application had been denied and advised her to submit a

new application together with a denial letter from an

insurance company. The TennCare Bureau later sent Ooten

written notice, dated July 23, 1998, which provided in part:

THIS IS WHO IN YOUR FAMILY DOES NOT

QUALIFY AND WHY WE THINK THEY DO NOT

QUALIFY: 

Betty S. Ooten ###-##-#### [Social Security Number]

This person(s) denied for the reason listed below. 
Nos. 01-5653/5930 Hamby v. Neel, et al. 9

Your application was received during a period of closed

enrollment. 

. . . . 

YOU HAVE THE RIGHT TO REQUEST A

REASSESSMENT

Do you think we are wrong for turning you down for

TennCare?

You have the right to ask for a reassessment to tell us

why.

(J.A. at 499.)

On July 21, 1998, Ooten filed another application with a

denial letter from a private insurance company. This

application was received by the TennCare Bureau on July 24,

1998. The TennCare Bureau enrolled Ooten in the program

effective July 24, 1998. On July 28, 1998, Ooten requested

a reassessment of her original application and informed the

TennCare Bureau that she could not get medical insurance

because she had a preexisting medical condition; a 70%

blockage in her arteries. Ooten’s request for reassessment

was referred to a formal hearing.

At a hearing held on February 3, 1999, Dena Bost, an

officer of the TennCare Bureau, testified as follows on direct

examination:

Q. Can you explain why TennCare denied the July 2nd

application?

A. The July 2nd application did not indicate that Ms.

Ooten had been turned down for other insurance,

and there was no attachment indicating that either.

Q. Why did TennCare approve the July 24th

application?

A. A denial letter from an insurance company denying

her coverage on the basis of her medical condition

was attached to that application, and she indicated

that she had been denied.

10 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

(J.A. at 609.) On cross-examination, Bost conceded that a

person can have an existing medical condition that they know

makes them uninsurable and cited personal circumstances.

Bost also conceded that applicants are not asked if they are

unable, because of an existing condition, to obtain health

insurance. Bost testified that applicants may respond

differently to the question “have you been denied insurance?”

if they were asked about existing medical conditions.

The ALJ issued an order on May 3, 1999, denying Ooten’s

request that her date of eligibility relate back to the date of her

original application. Ooten filed a petition for appeal. As of

the date of this appeal, Defendants had not yet ruled on

Ooten’s administrative appeal.

D. Plaintiff Hyslope’s Application Process 

Hyslope, suffering from diabetes, submitted an application

for TennCare coverage on May 14, 1999. Hyslope indicated

in her application that she had not been denied health

insurance. The TennCare Bureau denied Hyslope’s

application because it was received during a period of closed

enrollment. The TennCare Bureau sent Hyslope written

notice dated June 9, 2000, which was identical to the written

notice sent to Ooten.

Thereafter, on June 12, 1999, Hyslope requested

reassessment of her denied application. On July 22, 1999, the

TennCare Bureau affirmed the denial of Hyslope’s

application. The written notice provided in part:

We want you to know that it is still possible that you are

eligible for TennCare.

Other ways you may be able to get TennCare:

1) . . . .

2) . . . .
Nos. 01-5653/5930 Hamby v. Neel, et al. 11

3) Apply for TennCare again if you cannot get health

insurance because of health problems. Include an

insurance company letter which states a medical reason

why you cannot get health insurance . . . . If the letter is

from an insurance agent, it must be on the agent’s

letterhead. It must be dated within the last 12 months

prior to your TennCare application.

(J.A. at 794.) (emphasis in original). 

Hyslope requested a hearing on July 28, 1999. While

awaiting a hearing, Hyslope sent a second application, dated

August 23, 1999, to the TennCare Bureau. In the application,

Hyslope responded “yes” to the question “have you been

denied health insurance?” The TennCare Bureau approved

Hyslope’s second application effective August 30, 1999. On

November 4, 1999, a telephone hearing was held. Hyslope

was not represented by counsel at the hearing.

The ALJ affirmed the denial of Hyslope’s first application

on November 8, 1999, finding that Hyslope did not submit an

insurance denial letter with the application. On November 10,

1999, Hyslope requested a reconsideration of the denial of her

first application. Hyslope stated that she had to go to the

hospital due to an ulceration on her toe and that she almost

lost her foot due to diabetes. The Commissioner’s designee

affirmed the denial of Hyslope’s first application on May 2,

2000.

DISCUSSION

Standard of Review

We review a district court’s grant of summary judgment de

novo. Johnson v. Econ. Dev. Corp., 241 F.3d 501, 509 (6th

Cir. 2001). A moving party is entitled to summary judgment

as a matter of law when there are no genuine issues of

material fact. Id.; Fed. R. Civ. P. 56(c). When determining

a summary judgment motion, we view the evidence and draw

12 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

all reasonable inferences in the light most favorable to the

non-moving party. Williams v. Int’l Paper Co., 227 F.3d 706,

710 (6th Cir. 2000). Nevertheless, “[t]he moving party need

not support its motion with evidence disproving the

nonmoving party’s claim, but need only show that there is an

absence of evidence to support the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Moreover, constitutional questions are questions of law

subject to de novo review. Johnson, 241 F.3d at 509.

Analysis

Plaintiffs contend that TennCare’s eligibility and

enrollment process violates their Due Process rights under the

Fourteenth Amendment because the process does not provide

adequate notice that, upon applying, applicants must identify

themselves as either uninsured or uninsurable persons, nor

does the process express that such a distinction is

determinative of their eligibility for coverage. The Plaintiffs

also contend that they were denied a meaningful hearing, in

violation of their Due Process rights, because of Defendants’

policy to determine a claimant’s “unininsurable” status by

focusing upon the receipt of an insurance company’s letter of

rejection rather than the Plaintiffs’ medical condition.

Defendants argue that Plaintiffs have no legitimate claim of

entitlement to have their denied TennCare applicationstreated

as applications for coverage as uninsurable individuals since

Plaintiffs did not indicate on their denied applications that

they were uninsurable or were applying as uninsurables.

Defendants contend that because Plaintiffs did not submit

insurance denial letters, the TennCare Bureau had no

indication whatsoever that Plaintiffs had existing medical

conditions that rendered them uninsurable. Defendants assert

that Plaintiffs did not inform the TennCare Bureau of their

existing medical conditions until they submitted subsequent

applications which the TennCare Bureau approved.

Defendants therefore argue that Plaintiffs are entitled to

TennCare coverage as of the date they submitted approvable
Nos. 01-5653/5930 Hamby v. Neel, et al. 13

applications and not the date they actually became

uninsurable. We disagree with Defendants for the following

reasons.

I. Due Process Rights

The district court concluded that “Plaintiffs have a

‘substantive interest’ in TennCare or Medicaid benefits and

if they meet the program’s requirements, each of the Plaintiffs

has ‘a legitimate claim of entitlement’ that gives rise to

procedural and substantive due process rights.”

It is well established that the requirements of substantive

and procedural due process apply to the deprivation of

interests encompassed by the Fourteenth Amendment’s

protection of liberty and property. Bd. of Regents v. Roth,

408 U.S. 564, 571 (1972) (holding that a professor did not

possess a property interest in his teaching position where it

was subject to a limited term appointment such that no

legitimate claim to re-employment existed). The United

States Supreme Court established a standard, in Roth, for

determining whether a person has a property interest:

The Fourteenth Amendment’s procedural protection of

property is a safeguard of the security interests that a

person has already acquired in specific benefits. These

interests–property interests–may take many forms.

. . . .

To have a property interest in a benefit, a person clearly

must have more than an abstract need or desire for it. He

must have more than a unilateral expectation of it. He

must, instead, have a legitimate claim of entitlement to it.

. . . .

Property interests, of course, are not created by the

Constitution. Rather they are created and their

dimensions are defined by existing rules or

understandings that stem from an independent source

14 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

such as state law–rules or understandings that secure

certain benefits and that support claims of entitlement to

those benefits.

Id. at 576. Thus, the first issue we must decide is whether

Plaintiffs have a legitimate claim of entitlement to have their

denied TennCare applications treated as applications for

coverage as uninsurable individuals such that due process

requirements are invoked. See id.

Plaintiffs, like other Tennessee citizens, have a right to

apply for and enroll in the TennCare program as uninsurable

persons at any time. See TENN. COMP. R. & REGS. 1200-13-

12-.03(1)(b). The TennCare regulations provide that

enrollment in the TennCare program is complete when the

“person eligible for enrollment has selected a managed care

plan from those available in the area where the person resides,

the application has been approved by the Bureau of

TennCare, and when any applicable premiums have been

paid.” TENN. COMP. R. & REGS. 1200-13-12-.03(1). The

TennCare regulations further provide that “[e]nrollment shall

be deemed complete retroactive to the date of the original

application, if that application is approved.” TENN.COMP.R.

& REGS. 1200-13-12-.03(1). Finally, TennCare nonMedicaid applicants, if denied, “will be given an opportunity

to have an administrative hearing before the Commissioner

regarding the denial of their applications.” (J.A. at 583.)

Unsuccessful TennCare applicants must be notified in

writing, which must contain: “(1) [a]n explanation of the

reasons of the Bureau’s actions, including a brief statement of

the factual basis or the rule or contract provision relied upon

by the Bureau; (2) [a]n explanation of the circumstances

under which the TennCare applicant can request an appeal;

(3)[a]n explanation of the TennCare applicant’s right to

submit documents or other information in support of a request

for appeal.” TENN. COMP. R. & REG. 1200-13-12-.11(3)(b).

Both the Supreme Court and this Court, have analyzed

various scenarios that involve a legitimate claim of
Nos. 01-5653/5930 Hamby v. Neel, et al. 15

entitlement, giving rise to a property interest. Roth, 408 U.S.

at 576-79; Flatford v. Chater, 93 F.3d 1296, 1304 (6th Cir.

1996); Banks v. Block, 700 F.2d 292, 296-297 (6th Cir. 1983).

These cases have been instructive to this Court in determining

what constitutes a property interest warranting due process

scrutiny, and what does not.

In Roth, the Supreme Court rejected the plaintiff’s claim

holding that he had no property interest in re-employment, but

merely a unilateral expectation, which would not constitute a

legitimate claim of entitlement rising to the level of a

protected constitutional right. 408 U.S. at 578. The Court

stated that the limited “terms of respondent’s appointment [as

a professor] secured absolutely no interest in re-employment

for the next year.” Id. The Court compared this claim to that

of a welfare recipient’s legitimate claim of continuous

entitlement to his or her welfare benefits for which they had

not yet shown eligibility, but were entitled to do so. Id. at

577 (citing Goldberg v. Kelly, 397 U.S. 254 (1970)).

This Court, in Banks, used the Supreme Court’s

determination in Roth, as instructive guidance in determining

the property interest in a plaintiff’s expectancy of continuous

receipt of food stamp assistance. 700 F.2d at 296. We stated

that Roth was instructive in two respects. Id. First, this Court

held that the plaintiff’s “unilateral expectancy in the

continuous receipt of food stamps is not enough to create a

constitutionally protected interest,” because the Food Stamp

Act’s explicit terms did not “justify a reasonable expectancy

of entitlement” beyond the “expiration of the assigned

certification period.” Id. at 292-297. In Banks, the Food

Stamp benefit recipients were “eligible for only a limited

‘certification period,’ defined as the ‘period for which

households shall be eligible to receive authorization cards.’”

Id. at 294 (quoting 7 U.S.C. § 2012(c)). Banks differs from

Goldberg in this respect; whereas Goldberg’s continuous

welfare benefit receipt was a legitimate claim of entitlement,

the limited nature of Banks’ Food Stamp awards was merely

a unilateral expectation. 

16 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

1

Contrary to the dissent’s analysis, a property interest is neither

predicated upon whether an individual has “earned” the benefits in

question, nor upon the existence an individual’s contribution towards that

benefit. Instead, the Supreme Court has made clear that the rights

bestowed upon individuals with legitimate property interests are defined

by the language of intent found in the federal or state statute creating such

benefits, to then aid the particular plaintiff in question. Atkins v. Parker,

472 U.S. 115, 128, 105 S.Ct 2520 (1985) (reiterating the Court’s

determination that “[f]ood- stamp benefits, like the welfare benefits at

issue in Goldberg v. Kelly, [], ‘are a matter of statutory entitlement for the

persons qualified to receive them.’”) (internal citations omitted).

Second, we were guided by Roth’s holding that “property

interests are created and their dimensions are defined by an

independent source,” meaning that the determination of the

existence of a property right protected by due process is

controlled by the statute creating and defining that right. Id.;

see also Goldberg, 397 U.S. at 254. Therefore, this Court

held in Banks that the expectancy of entitlement to a

continuous receipt of food stamps was an abstract, unilateral

one, and would not rise to the level of a property interest, due

to the Food Stamp Act’s limited certification period of

eligibility, much like the one-year teaching contract in Roth,

which established no property interest beyond the term of the

assigned period. Banks, 700 F.2d at 297.1

With Roth’s property interest claim of re-employment

subject to a limited and defined employment contract, and

Bank’s food stamp recipient’s property interest claim of

continuous benefits subject to a limited certification period,

the difference between the denial of due process rights in

those two instances and the affirmation of a welfare

recipient’s property interest in Goldberg, lies in the continuity

of entitlement. Id. In Goldberg, welfare recipients

challenged existing aid termination procedures, where under

the statute involved, recipients were not allowed to appear

and present evidence prior to termination of their supposedly

continuous welfare benefits. 397 U.S. at 254. The Supreme

Court held that such a procedure violated due process
Nos. 01-5653/5930 Hamby v. Neel, et al. 17

2

In Gonzaga University v. Doe, the Supreme Court in holding that

a plaintiff may bring a private cause of action for “the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws”

under 42 U.S.C. § 1983, found that the determination of a private

plaintiff’s private rights simply require a determination as to whether or

not Congress intended to confer individual rights upon a class of

beneficiaries. 536 U.S. 273, 285-87 (2002); see also California v. Sierra

Club, 451 U.S. 287, 294 (1981) (determining whether or not a statute

“confer[s] rights on a particular class of persons”).

concepts since recipients were entitled to benefits, on a

continuous basis, so long as they remained eligible. Id.

Since TennCare is a waiver created under the Medicaid

Act, 42 U.S.C. § 1315, medical assistance to “uninsured” and

“uninsurable” individuals is partially federally funded. The

Medicaid Act does not subject its recipients to a limited

duration of services so long as the eligibility requirements are

met; and if challenging a discontinuance, up until the

exhaustion of all appeals. 42 C.F.R. §§ 431.230(a) and

431.232(d). Furthermore, this Court has previously held that

a social security claimant has a property interest in benefits

for which he or she hopes to qualify. Flatford, 93 F.3d

at1304 (based on the holding in Richardson v. Perales, 402

U.S. 389, 398 (1971), in which the Court accepted the

proposition that petitioner’s claim to benefits gave him a

protectable property interest). Since Medicaid is a program

established by Title XIX of the Social Security Act, 42 U.S.C.

§ 1396, et seq., we find that Plaintiffs likewise have a

property interest in the TennCare coverage for which they

hope to qualify. Id.

2

Based solely on Plaintiffs’ negative responses to the

question “have you been denied health insurance” and their

failure to submit insurance denial letters with their original

applications, the TennCare Bureau presumed that Plaintiffs

applied for coverage as uninsured persons only, and that

Plaintiffs did not have an existing medical condition that

prevented them from obtaining health insurance elsewhere.

18 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

Moreover, Defendants do not even contend that Plaintiffs

were not uninsurable persons at the time of their original

applications. Rather, Defendants contend that because

Plaintiffs did not submit insurance denial letters with their

original applications, Defendants properly denied Plaintiffs’

claims of entitlement to TennCare coverage. However,

because Defendants’ applications did not inform Plaintiffs of

this presumption and because none of Defendants’ regulations

explaining uninsurable eligibility criteria stated that an

insurance denial letter must be submitted with the application,

Plaintiffs were justified in believing their original applications

would be considered in light of the relevant laws and

regulations that would grant Plaintiffs medical coverage

provided they were eligible. Therefore, given Plaintiffs’

eligibility, we hold that Plaintiffs have a legitimate claim of

entitlement to TennCare coverage as of the date of their

original applications.

II. Procedural Due Process

Additionally, it is well-established that a possessory interest

in property invokes procedural due process, which would

require adequate notice and a meaningful hearing prior to any

attempt to deprive the interest holder of any rights. Thomas

v. Cohen, 304 F.3d 563,576 (6th Cir. 2002) (citing Fuentes v.

Shevin, 407 U.S. 67, 87 (1972)); see also Mathews v.

Eldridge, 424 U.S. 319 (1976) (holding that a claim of

entitlement to social security benefits triggers due process

protection).

A. Adequate Notice

The district court concluded that Defendants’ notices “did

not inform Plaintiffs that they could offer proof of an existing

condition to qualify as uninsurable, a basic element of this

status under TennCare rules” or “that a second application

will undisputably result in a loss of any benefits under their

first application.” 
Nos. 01-5653/5930 Hamby v. Neel, et al. 19

The Supreme Court’s standard applied to a notice inquiry

when establishing the constitutionality of a process which

may be determinative of the finality of parties’ rights requires

that “notice [be] reasonably calculated, under all

circumstances, to apprise interested parties of the pendency of

the action and afford them an opportunity to present their

objections.” Mullane v. Cent. Hanover Trust Co., 339 U.S.

306, 314 (1950). The Supreme Court further clarified the

standard for adequate notice in Goldberg. 397 U.S. at 268

(requiring that notice be reasonably calculated to inform the

recipient of the action to be taken and an “effective

opportunity to be heard”).

Defendants argue that the TennCare Bureau provided

Plaintiffs with adequate written notices that (1) their

applications were denied because the applications were

received during a period of closed enrollment; (2) they had a

right to appeal and seek assistance in appealing; and (3) they

had a right to request a hearing within 30 days from the date

of the notices. Defendants point out that the forms necessary

for appealing were included with the notices.

We find that although Defendants’ notices adequately

informed Plaintiffs of TennCare’s denial of their applications,

the notices failed to inform Plaintiffs that (1) their

applications were denied because they were not considered

uninsurable persons; (2) their applications were rejected

because the applications were incomplete due to a lack of

proof of a previous insurance denial; (3) if an appeal of a

denied application was not pursued, applicants would be

barred from a claim of benefits originating from the date of

their original applications; and (4) if applicants did submit

new applications with insurance denial letters, the second

claim would cut off eligibility based on the first applications.

Because Defendants failed to include such information in the

notices, Plaintiffs were not adequately advised of the reasons

for denial of their applications, their right to appeal, the

existence of a presumption that Plaintiffs did not apply for

20 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

coverage as uninsurable persons, and the consequences of not

appealing and filing new applications.

In Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir.

1990), the Ninth Circuit reviewed the sufficiency of notices

by the Secretary of Health and Human Services (the“HHS”)

concerning denial of applications for social security disability

benefits. The HHS’s initial notices of denial provided:

If you believe that this determination is not correct, you

may request that your case be reexamined. If you want

this reconsideration, you must request it no later than 60

days from the date you receive this notice. You may

make your request through any Social Security office. If

additional evidence is available, you should submit it

with your request. Please read the enclosed leaflet for a

full explanation of your right to question the

determination made in your claim. If you do not request

reconsideration of your case within the prescribed time

period, you still have the right to file another application

at any time.

Id. The Ninth Circuit held that the HHS’s notices violated a

claimant’s right to procedural due process because the notices

did not “clearly indicate that if no request for reconsideration

is made, the determination is final.” Id. The Ninth Circuit

reasoned:

Requiring notices to accurately state how a claimant

might appeal an initial decision does not impose a

significant financial or administrative burden on the

Secretary . . . . Moreover, the form of the notice[s] used

here is sufficiently misleading that it introduces a high

risk of error into the disability decisionmaking process .

. . . One of the fundamental requirements of procedural

due process is that a notice must be reasonably calculated

to afford parties their right to present objections.

Id.
Nos. 01-5653/5930 Hamby v. Neel, et al. 21

This Court, in Day v. Shalala, has followed the Ninth

Circuit’s views regarding the sufficiency of notice. 23 F.3d

1052, 1066 (6th Cir. 1994) (stating that “[w]e join the Ninth

Circuit in finding this particular notice form . . . inadequate).

In Day, the notice of an applicant’s denial was similar to that

of Gonzalez. Id. at 1065-66. Plaintiffs argued that the denial

of a disability benefits notice and the accompanying

explanatory leaflet failed to make clear the crucial distinction

between appealing a determination and reapplying for

benefits. Id. The Court agreed that a claimant who reapplied

rather than appealed might encounter limitations on the

payment of retroactive benefits if eventually approved, which

would be calculated from the date of the new application

rather than the date of the initial, unappealed one. Id.

 In the instant case, Plaintiffs argued that Defendants’

notification attempts violated due process in two separate

ways. First, TennCare’s denial notices failed to advise

applicants of its reasons for denial and of their right to appeal.

There is no mention of an applicant’s status as an

“uninsurable applicant,” when the applicant is issued a denial.

All three Plaintiffs received denial letters from their original

applications stating that they failed to enroll within the open

enrollment period, which is a requirement for “uninsured”

applicants only. Since there was no section of the application

itself that required an applicant to specify under which status

they wished to enroll, all applications that did not have an

insurance letter attached indicating a recent denial, or an

answer in the affirmative as to whether or not they have

previously “been denied insurance,” were categorically

denied. Once Plaintiffs eventually sent a previous insurance

letter indicating a denial, they were approved; however, the

benefits were not retroactive to the date of the first

application. Applicants eligible for TennCare’s benefit were

not adequately informed as to how to fully receive the

benefits to which they were entitled, at the time they were

entitled to them, nor were they fully apprised of the reasons

for denial as “uninsurable” applicants.

22 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

Second, the denial notices did not advise the applicants of

the consequences of not appealing and filing new

applications. Again, all three Plaintiffs were told to re-apply

to TennCare upon receiving their denial letters, instead of

appealing. There was no notice given that a new application

would cut off eligibility for the benefits requested by

Plaintiffs’ first applications.

Like the notices in Gonzalez and Day, we find the notices

here to be constitutionally inadequate inasmuch as they failed

to adequately advise Plaintiffs of their rights to properly apply

as “uninsurable” persons, to be fully informed as to why they

were denied as “uninsurable” applicants, and not merely

“uninsured” applicants, and to the consequences of reapplying after a denial instead of appealling such decisions.

We therefore hold that Plaintiffs were given constitutionally

inadequate notices in violation of procedural due process.

B. Meaningful Hearing

The district court concluded that Plaintiffs “were not

allowed to show an existing medical condition that makes

them unable to obtain health insurance.” 

Defendants argue that Plaintiffs were not denied

meaningful hearings because they were represented by

counsel, obtained significant discovery from Defendants, and

were given the opportunity to raise legal challenges to the

TennCare coverage eligibility criteria which resulted in the

denial of their applications. We disagree.

Although Plaintiffs timely appealed the denial of their first

applications, the TennCare Bureau continued to deny

Plaintiffs coverage because Plaintiffs failed to indicate on

their applications that they had been denied health insurance

and failed to attach insurance denial letters to their

applications. When the TennCare Bureau received Plaintiffs’

subsequent applicationswith attached insurance denial letters,

it treated the applications as separate applications for
Nos. 01-5653/5930 Hamby v. Neel, et al. 23

coverage as uninsurable individuals. Plaintiffs’ subsequent

applications, filed before their requestsforreassessment, were

ignored by the TennCare Bureau for purposes of reassessing

their first applications. In sum, because Plaintiffs stated on

their first applications that they had not previously been

denied health insurance, Defendants disallowed them from

demonstrating at a hearing that they had existing medical

conditions that made them unable to obtain health insurance,

thus evidencing their “uninsurable” status, before denying

coverage under the original application. See Friedrich v.

Sec’y Health & Human Servs., 894 F.2d 829, 837 (6th Cir.

1990) (finding that the touchstone of procedural due process

is the fundamental requirement that an individual be given the

opportunity to be heard in a meaningful manner). We

therefore hold that Plaintiffs were denied a meaningful

hearing in violation of procedural due process.

The dissent’s dismissive suggestions that a ruling in

Plaintiffs’ favor would make a constitutional issue out of

every bureaucracy’s faulty paperwork, is only partly true.

Because statutory language bestows legitimate rights upon an

individual, and those rights are entitled to procedural due

process, only those bureaucracies which engage in practices

that violate an individual’s rights, procedurally or otherwise,

will have themselves created a constitutional problem. 

III. Constitutionality of Defendants’ Irrebuttable

Presumption

The district court concluded that Defendants’ policy and

practice of requiring an insurance denial letter to demonstrate

eligibility for TennCare coverage as an uninsurable person

constitutes an unconstitutional irrebuttable presumption.

Defendants argue that the district court’s conclusion is

erroneous because Cleveland Bd. of Educ. v. LaFleur, 414

U.S. 632 (1974), was the last line of cases in which the

Supreme Court ventured into the irrebuttable presumption

analysis. Shortly after its decision in Cleveland Bd. of Educ.,

24 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

3

The Court in Kirk recognized that no irrebuttable presumption exists

where the plaintiffs have the opportunity to present the evidence upon

which the ultimate decision is derived. Nevertheless, the Court goes on

to say that absent proof of a failure to present evidence, a plaintiff’s “only

constitutional claim is that the test they cannot meet is not so rationally

related to a legitimate legislative objective that it can be used to deprive

the Supreme Court made it clear that heightened scrutiny of

a statute could not be triggered by merely asserting a claim

that the challenged statute contained an irrebuttable

presumption. See Weinberger v. Salfi, 422 U.S. 749, 777

(1975)).

In Weinberger, the Court reviewed the Social Security

Administration’s duration-of-relationship requirement that

irrebuttably presumed that if a marriage did not precede the

wage earner’s death by nine months, the marriage was entered

into for the purpose of securing Social Security benefits. The

Court upheld the requirement, finding that “the Due Process

Clause can be thought to impose a bar only if the statute

manifests a patently arbitrary classification, utterly lacking in

rational justification.” Id. at 768. The Court explained that

the plaintiffs’ “only constitutional claim is that the test they

cannot meet is not so rationally related to a legitimate

legislative objective that it can be used to deprive them of

benefits available to those who do satisfy that test.” Id. at

772. The Court reasoned that the irrebuttable presumption

analysis was inappropriate because the plaintiffs’

noncontractual claim to receive funds from the public treasury

did not deserve heightened constitutional protection. Id.

In Kirk v. Secretary of Health and Human Services, 667

F.2d 524, 534 (6th Cir. 1981), we recognized that the

irrebuttable presumption analysis is inapplicable to challenges

to aspects of social welfare programs. To challenge the

constitutionality of Defendants’ alleged presumption,

Plaintiffs must prove that Defendants’ presumption is not

rationally related to a legitimate state objective. Id.; see also

Weinberger, 422 U.S. at 772.3
Nos. 01-5653/5930 Hamby v. Neel, et al. 25

them of benefits available to those who do satisfy that test. Weinberger,[]

422 U.S.[ at 772].” 667 F.2d at 533. The Court then dismissed the

plaintiffs’ claim because they could not argue “successfully that the

guidelines [were] so unrelated to a legitimate legislative goal as to violate

this ‘rational relationship’ test.” Id. In the instant action, this Court will

not affirm the district court’s characterization of Defendants’ enrollment

process as an unconstitutional irrebuttable presumption; however, we

dispute Defendants’ assertion that the current process is rationally related

to their proffered legitimate state goals. 

Here, Defendants argue that their presumption that

Plaintiffs did not apply for TennCare coverage as uninsurable

persons because they responded “no” to the question “have

you been denied health insurance?” and because they had

failed to attach insurance denial letters to their applications is

rationally related to the legitimate state goals of (1) extending

medical benefits to those persons most in need of them; (2)

verifying that applicants are unable to purchase health

insurance due to existing medical conditions; and (3)

discouraging health insurance carriers from cost-shifting their

enrollees to the publicly-funded TennCare program.

We find that Defendants’ presumption is not rationally

related to legitimate state goals because applicants, who have

not been previouslyrefused health insurance but have existing

medical conditions that make them unable to obtain health

insurance, will be excluded from TennCare coverage simply

because they provided a negative response to the question

“have you been denied health insurance?” A negative

response to that question is not conclusive of an applicant’s

status and should not be determinative of their approval or

disapproval. The apparent justification for Defendants’

presumption is administrative convenience. By asking “have

you been denied health insurance,” Defendants seek to

eliminate the need for an individualized determination which

may be more time consuming and expensive. However,

Defendants’ “interest in administrative ease and certainty

cannot, in and of itself, save the conclusive presumption from

26 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

the invalidity under the Due Process Clause where there are

other reasonable and practicable means of establishing the

pertinent facts on which the state’s objective is premised.”

Vlandis v. Kline, 412 U.S. 441, 451 (1973); see also

Weinberger, 422 U.S. at 776-77 (criticizing portions of the

Vlandis ruling on other grounds; however, reiterating the

validity of statutory restrictions, so long as Congress “could

[have] rationally [] concluded both that a particular limitation

or qualification would protect against its occurrence, and that

the expense and other difficulties of individual determinations

justified the inherent imprecision of a prophylactic rule.”).

Defendants’ enrollment process is not rationally related to

their proffered legitimate state goals. In fact, there are

alternative reasonable and practical means by which

TennCare can administer its medical benefits, such as

modifying the application so as to eliminate the solicitation of

vague or ambiguous information regarding the applicant’s

insurance coverage history, instead opting for direct and

concise information; or modifying the initial denial process

by encouraging the immediate supplementation of the

application before a decision is made or there is an immediate

appeal, rather than suggesting re-application. We therefore

hold that Defendants’ current process is not rationally related

to legitimate state goals. 

CONCLUSION

For the forgoing reasons, we AFFIRM the district court’s

order in Case No. 01-5653; and AFFIRM the district court’s

order in Case No. 01-5930.
Nos. 01-5653/5930 Hamby v. Neel, et al. 27

_________________

DISSENT

_________________

ALICE M. BATCHELDER, Dissenting. I respectfully

dissent. I would hold that the plaintiffs do not have a

property interest in or a legitimate claim of entitlement to the

TennCare benefits prior to plaintiffs’ obtaining approval of

their applications, and that even if the plaintiffs could

demonstrate such an interest, they have not demonstrated

either a procedural or a substantive due process violation.

Finally, I would hold that the irrebuttable presumption

doctrine has no rational application to this case.

It is not clear to me whether in the section entitled “Due

Process Rights” the majority opinion actually holds that the

plaintiffs have demonstrated a substantive due process

violation, or holds only that the plaintiffs have demonstrated

that they have a property interest for the purposes of a

procedural due process claim. In my view, the plaintiffs can

demonstrate neither. Unlike the plaintiffs in Goldberg v.

Kelly, 397 U.S. 254 (1970), these plaintiffs were not already

receiving benefits which the state intended to or did terminate

without a pretermination hearing. And the majority’s

conclusion that because TennCare is a program created under

the Medicaid Act, and Medicaid is a program established

under the Social Security Act, applicants for TennCare, like

applicants for social security, have a property interest in the

benefits “for which they hope to qualify” is unwarranted.

Contrary to the majority opinion’s claim, we did not hold in

Flatford v. Chater, 93 F.3d 1296 (6th Cir. 1996), that

applicants for social security benefits have a property interest

in those benefits. Rather, based on the Supreme Court’s

decision in Richardson v. Perales, 402 U.S. 389, 401-02

(1971), which in turn quoted the Court’s observation in

Flemming v. Nestor, 363 U.S. 603, 610 (1960), that the “right

to Social Security benefits is in one sense earned,” we said:

28 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

1

The majority opinion cites Atkins v. Parker, 472 U.S. 115 (1985),

where the property rights (food stamp benefits) established by statute

were being taken away; unlike the situation here where no right has ever

been established. See Atkins, 472 U.S. at 117-18.

Because the Supreme Court has assumed in Perales that

a social security applicant has ‘more than a unilateral

expectation’ of a benefit, and because this assumption is

necessary to the holding in that case (that due process

applied) we proceed on the same basis. Thus we will

assume that Flatford has a property interest in the

benefits he claims.

Flatford, 93 F.3d at 1304-05 (internal citations omitted)

(emphasis added).

In Bd. of Regents v. Roth, 408 U.S. 564 (1972), the

Supreme Court made it clear that a property interest is

something in which an individual “must have more than an

abstract need or desire . . . . He must have more than a

unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.” Id. at 577. And

property interests, the Court emphasized, are not created by

the Constitution but are creatures of independent sources such

as state law.1 Id.

TennCare is a partially federally funded waiver plan created

by the State of Tennessee under Medicaid. TennCare benefits

are different from social security benefits, which are premised

on contributions paid into the system by the claimant during

his or her years of employment. Although Medicaid is set up

under the social security program, it is not a program that

awards benefits that are in any sense “earned,” and TennCare,

which is established under Medicaid, is not a medical

insurance program into which these plaintiffs have made

payments or contributions. Medicaid is a program that was

enacted “for the purpose of providing federal financial

assistance to States that choose to reimburse certain costs of

medical treatment for needy persons,” Harris v. McRae, 448
Nos. 01-5653/5930 Hamby v. Neel, et al. 29

U.S. 297, 301 (1980), and a state is not required to provide

Medicaid services for which there is no federal financial

participation. See id. The TennCare program is subject to

both state and federal funding limits, and the state law

establishing the program provides that expenditures of state

funds for the program cannot exceed the amount appropriated

for it by the legislature. TENN. CODE ANN. § 71-5-109.

TennCare is not only limited in financial scope, it is limited

to specific classes of recipients: material to this litigation are

those who are uninsured and those who are uninsurable. The

program is further limited as to the former—they have a

window of opportunity for applying for the insurance; no

such limitation applies to the latter. In order to enforce those

limitations, the State has empowered the Commissioner of the

Department of Finance and Administration to designate the

place and manner in which applications for enrollment in the

program are to be filed. The Commissioner requires that any

applicant who seeks enrollment in TennCare on the basis of

uninsurability must provide a letter from a private insurer

stating that the applicant has been denied insurance coverage.

In short, only those applicants who are eligible by reason of

their being uninsured or uninsurable have any hope of

becoming insured under TennCare; only those uninsurable

applicants who provide evidence of uninsurability may take

advantage of the open enrollment; and only a finite number of

those will be enrolled in the program because of the funding

limitations.

These plaintiffs have demonstrated no more than a

unilateral expectation that they would be able to enroll in the

TennCare program. They are not in the position of the

Goldberg plaintiffs, whose existing benefits were about to be

terminated without any opportunity for the plaintiffs to

establish their continuing eligibility for those benefits under

the statute. They are not in the position of the plaintiff in

Flatford, whose claim was for benefits from the social

security system into which he had paid during the years of his

employment. The fact that Medicaid does not limit the

30 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

2

The majority opinion’s reliance on Supreme Court precedent

concerning private rights of action to buttress its conclusions as to

property rights is troubling. In Gonzaga University v. Doe, 536 U.S. 273

(2002), the Supreme Court discussed the determination of a cause of

action under § 1983. Gonzaga, 536 U.S. at 283-84. The Supreme Court’s

discussion in California v. Sierra Club, 451 U.S. 287 (1981), likewise

concerns a private right of action. Sierra Club, 451 U.S. at 294 (“Here,

the statute states no more than a general proscription of certain activities;

it does not unmistakably focus on any particular class of beneficiaries

whose welfare Congress intended to further. Such language does not

indicate an intent to provide for private rights of action.”) The majority

opinion provides no authority to support its apparent conclusion that

property rights are the equivalent of private rights of action.

duration of benefits to Medicaid recipients after they have

been found to be eligible does not, as the majority opinion

holds, establish a continuity of entitlement in an applicant for

enrollment in the TennCare program, and the fact that

Medicaid is established under the Social Security Act does

not suffice to convert a TennCare applicant’s hope of

becoming an enrollee into a legitimate expectation of

obtaining TennCare coverage. These plaintiffs have no

property interest in the TennCare benefits they seek.2

Even if one could conclude that the plaintiffs have

demonstrated a property interest, however, they have not

demonstrated that they have been denied due process, either

substantive or procedural. Turning first to substantive due

process, as this court has often observed, “[t]he interests

protected by substantive due process are of course much

narrower than those protected by procedural due process.”

Bell v. Ohio State Univ., 351 F.3d 240, 249-50 (6th Cir.

2003). The Supreme Court has made it clear how narrow

those interests are:

Our established method of substantive-due-process

analysis has two primary features: First, we have

regularly observed that the Due Process Clause specially

protects those fundamental rights and liberties which are,

objectively, deeply rooted in this Nation’s history and
Nos. 01-5653/5930 Hamby v. Neel, et al. 31

tradition, and implicit in the concept of ordered liberty,

such that neither liberty nor justice would exist if they

were sacrificed. Second, we have required in

substantive-due-process cases a careful description of the

asserted fundamental liberty interest.

Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

Under no stretch of the imagination does the plaintiffs’ claim

of entitlement to enrollment in TennCare rise to the level of

a fundamental right or liberty implicit in the concept of

ordered liberty. Indeed, it is difficult to imagine liberty or

justice being disturbed at all by the deprivation these

plaintiffs claim, let alone ceasing to exist.

While I do not think that the forms used by the TennCare

program provided applicants with the best or clearest notice

of the application requirements or the appeal procedures, I

believe any deficiencies in these forms fall well short of

depriving these plaintiffs of procedural due process. These

plaintiffs may have been confused by the application forms or

the denial letters, but even if that confusion was the fault of

the TennCare Bureau, it does not rise to the level of a denial

of due process. Contrary to the majority opinion’s finding,

the denial letters did advise plaintiffs that they had a right to

appeal, and, indeed, the letters invited the plaintiffs to call the

telephone number provided in the letter if they had questions.

To hold, as the majority opinion does, that forms utilized by

the bureaucracy deny due process to the individuals who are

to use them because those forms are confusing or are less

clear than they might be, is to make a constitutional issue out

of every dispute over an agency’s paperwork. Neither was

there any denial of a meaningful opportunity to be heard.

These plaintiffs not only received a hearing, they were

represented by counsel and had the opportunity to raise their

legal challenges to the procedures. That those challenges

were not successful does not mean that the plaintiffs were

denied due process.

32 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

Finally, the majority opinion concludes that TennCare’s

requirement that applicants seeking to enroll in the program

as uninsurables must provide a letter from a private insurer

establishing uninsurability, subjects those applicants to an

unconstitutional irrebuttable presumption that they are not

uninsurable. This flies in the face of logic. An irrebuttable

presumption is a presumption that as a matter of law can

never be rebutted, regardless of the facts. But an applicant for

TennCare who has not provided the required letter and is

therefore presumed not to be uninsurable, may rebut the

presumption simply by providing the letter. It is true that an

applicant who is in fact not uninsurable will not be able to

obtain the letter, and hence will not, as a matter of fact, be

able to rebut the presumption. But the presumption as to that

applicant is irrebuttable only because it is true, not because

the applicant, regardless of the actual facts, is not permitted

as a matter of law to rebut it.

The majority opinion’s reliance on Cleveland Bd. of Educ.

v. LaFleur, 414 U.S. 632 (1974) (irrebuttable presumption

that every pregnant teacher is physically incapable after the

fifth or sixth month of pregnancy of continuing to teach), and

Vlandis v. Kline, 412 U.S. 441 (1973) (irrebuttable

presumption of nonresidency for any student who had lived

outside the state during the year prior to his application for instate tuition rate) is entirely misplaced. In neither of these

cases were the plaintiffs permitted to avoid the application of

the presumptions by providing evidence to rebut them. The

plaintiffs before us here, on the other hand, could rebut the

presumption that they were not uninsurable simply by

providing TennCare with the required letter. The fact that

they failed to do so or failed to do so timely, does not make

the presumption irrebuttable.

In any event, the Supreme Court has explicitly declined to

extend the principles annunciated in Vlandis and LaFleur, to

“a noncontractual claim to receive funds from the public

treasury[, which claim] enjoys no constitutionally protected

status . . . .” Weinberger v. Salfi, 422 U.S. 749, 772 (1975).
Nos. 01-5653/5930 Hamby v. Neel, et al. 33

In that case, the Court upheld the constitutionality of a

provision of the Social Security Act that barred widows who

had been married to their late husbands for less than nine

months from receiving certain social security benefits that

would normally be paid to widowed spouses. Rejecting the

district court’s extension of the holdings of Stanley v. Illinois,

405 U.S. 645 (1972) (holding unconstitutional an irrebuttable

presumption that all unmarried fathers are unfit to raise their

children), Vlandis, and LaFleur to the “nine-month rule,” the

Court said that to apply the doctrine of those cases to the

eligibility rule would turn that doctrine “into a virtual engine

of destruction for countless legislative judgments which have

heretofore been thought wholly consistent with the Fifth and

Fourteenth Amendments to the Constitution.” Id. at 771. The

“nine-month rule,” the Court concluded, would pass muster

if it were legislatively reasonable:

[T]he question raised is not whether a statutory provision

precisely filters out those, and only those, who are in the

factual position which generated the congressional

concern reflected in the statute. Such a rule would ban

all prophylactic provisions, and would be directly

contrary to our holding in Mourning [v. Family

Publications Serv. Inc., 411 U.S. 356 (1973)]. Nor is the

question whether the provision filters out a substantial

part of the class which caused congressional concern, or

whether it filters out more members of the class than

nonmembers. The question is whether Congress, its

concern having been reasonably aroused by the

possibility of an abuse which it legitimately desired to

avoid, could rationally have concluded both that a

particular limitation or qualification would protect

against its occurrence, and that the expense and other

difficulties of individual determinations justified the

inherent imprecision of a prophylactic rule.

Id. at 777.

34 Hamby, et al. v. Neel, et al. Nos. 01-5653/5930

The TennCare requirement at issue here is designed to

ensure that only individuals who are in fact uninsurable are

eligible for TennCare’s open enrollment. Certainly the State

has a legitimate desire to avoid abuse of the open enrollment

benefit, and certainly the State could rationally have

concluded that requiring a letter establishing uninsurability

would protect against such abuse. Unlike the indiscriminate

“nine-month rule” upheld in Weinberger, the TennCare rule

is imprecise only for that period of time until the individual

applicant submits the letter demonstrating his uninsurability.

It is difficult to envision a method of ensuring against abuse

with which it would be easier for the applicant to comply.

Finally, the challenged requirement is perfectly rational

when one considers the definition of “uninsurable” that is

promulgated in the Tennessee regulations: “unable, because

of an existing medical condition, to purchase health insurance

. . . .” TENN. COMP. R. & REGS. 1200-13-12-.02. The

TennCare Bureau does not determine whether an individual

is able to purchase health insurance from a private

carrier—the carrier does. The alternative would be for the

TennCare Bureau to keep abreast of changes both in medical

science and health insurance standards so as to be able to

make a conclusive guess as to whether or not a given

individual would, if he applied for insurance, be able to

purchase it. It is difficult to imagine that such an approach

would be more applicant-friendly than the requirement

challenged by these plaintiffs.

For all of the foregoing reasons, I dissent.