Larnce Hamby v. C. WARREN NEEL, Commissioner, Tennessee Department of Finance

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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

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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 in October 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. & REGS. 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, employer-
sponsored health insurance or to another government
plan, and continues to lack this access . . . .

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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. & REGS.
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 of the 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. & REGS. 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.

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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.

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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) . . . .

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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 applications treated
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

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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 non-
Medicaid 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

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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
1Contrary to the dissent’s analysis, a property interest is neither
predicated upon whether an individual has “earned ” the benefits in
question, nor up on the existence an ind ividual’s contribution towards that
benefit. Instead , the Sup reme Court has m ade 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 Go ldberg v. K elly, [], ‘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

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Nos. 01-5653/5930 Hamby v. Neel, et al. 17
2In 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 C onstitution 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 C alifornia v. Sierra
Club, 451 U .S. 287, 294 (198 1) (determining whethe r or no t 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.”

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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.

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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 re-
applying 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 applications with attached insurance denial letters,
it treated the applications as separate applications for

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Nos. 01-5653/5930 Hamby v. Neel, et al. 23
coverage as uninsurable individuals. Plaintiffs’ subsequent
applications, filed before their requests for reassessment, 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
3The Court in Kirk recognized that no irrebuttable presum ption 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

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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 irrebuttab le presump tion; however, we
dispute Defend ants’ assertion that the current process is rationally related
to their p roffered 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 previously refused 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.

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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
1The majority opinion cites Atkins v. Parker, 472 U.S. 115 (1985),
where the property rights (food stamp bene fits) 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

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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
2The majo rity opinion’s reliance o n Sup reme 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 Sup reme Court discussed the determination of a cause of
action under § 19 83. Gonzaga, 536 U.S. at 283 -84. T he Suprem e Co urt’s
discussion in California v. Sierra Club, 451 U .S. 287 (1 981), 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

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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 in-
state 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).

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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.

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