Blog

New Medicaid Fair Hearing Procedures

New York City has implemented several changes to the Medicaid Fair Hearing procedures. One of those changes includes restricting the ability to obtain an adjournment of the hearing by making the request online or by telephone. When contacting the N.Y.S. Office of Temporary Disability and Assistance (OTDA) office in Albany to request an adjournment, the agents who answer the phone will question the basis for the adjournment. They use a subjective standard of “good cause” to determine whether or not to grant the adjournment. In fact, I had a client who requested an adjournment of a fair hearing because the hearing was scheduled on Rosh Hashanah and she wanted to use that day to prepare for family who would be visiting for the Holiday. OTDA denied my request for an adjournment because Rosh Hashanah was not observed until sundown on the scheduled date.

I argued vehemently that religious observance was “good cause” and that OTDA cannot deny an adjournment request based upon religious observance. However, the request for an adjournment was denied. The agency’s rigid construction of “good cause” emanates from a lawsuit filed against the OTDA for delays in providing fair hearings to individuals who require immediate assistance. A court order is in place requiring OTDA to schedule a fair hearing within 90 days of the request.

The need to ensure efficiency must be balanced with the need to ensure that those with legitimate needs to postpone hearings are not unduely prejudiced by OTDA’s need to comply with the court’s order. It must be noted that pursuant to the Fishman lawsuit, that if an individual defaults (fails to appear) on a fair hearing, OTDA is required to notifiy the individual that their case will be defaulted if they fail to notify the agency that they wish to proceed with the hearing. Although my request for an adjournment was denied, I was able to obtain another hearing date on behalf of my client knowing about the Fishman litigation.

Critics Fear G.O.P.’s Proposed Medicaid Changes Could Cut Coverage for the Aged

by Jennifer Steinhauer, NY Times

According to the Congressional Budget Office, in the 2010 fiscal year, 77 percent of people enrolled in Medicaid were children and families, while 23 percent were elderly or disabled. But 64 percent of Medicaid spending was for older Americans and people with disabilities, while 36 percent went to children and families.

According to the Kaiser Family Foundation, which analyzes health care issues, 7 of 10 nursing home residents are on Medicaid, in large part because even middle-class patients often run through their savings while in a nursing home and turn to the entitlement program.

Changes to the Home Care Program

The Budget makes significant changes to New York’s home care program by limiting level 1 personal care services to 8 hours per week and authorizing the Commissioner to set standards for “high-intensity” high-hour personal care services users, pursuant to emergency regulation. Changes in the definition of estate will increase liens and Medicaid recovery actions.

The Budget also mandates enrollment in Managed Long Term Care (or program models that “may” include long term home health care programs) for anyone over age 21 who needs home and community based services ( “as specified by the Commissioner) for more than 120  days. This is likely to be everyone receiving personal care (home attendant), certified home health agency (CHHA) services, and Consumer-Directed Personal Assistance Program services.  Before it becomes mandatory, a federal waiver must be applied for and approved – which is unlikely before the end of 2011 at least.

Persons subject to mandatory enrollment will be assigned to a plan if don’t select one within 30 days of the date on which they are given the choice of plans. Plans are to contract directly with the State Department of Health and perform assessments for their members’ care needs every six months. The role of local districts in assessing and providing long term care is thus significantly reduced.

 

Reprinted from “NY Health Access”

Certified Home Health Agencies not permitted to reduce hours previously authorized without due process

On April 8th  and 15th, 2011,  the State Commissioner of Health sent all CHHA administrators two directives reminding them that state law  does not allow CHHAs to reduce home health aide services that were previously authorized, without doctor’s orders and notice and hearing rights.  Similarly, if a CHHA client is hospitalized, or in temporary short-term rehabilitation, these changes do not allow the CHHA to abandon them — the CHHA must reinstate the same home health services after the hospital or rehab stay is over, if the client continues to need the services as prescribed by his/her treating physician.