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Handling Medicaid appeals has become an increasing part of the elder law practice lately. In recent years, federal and state regulations have provided opportunities for Managed Long Term Care Plans (“MLTC” or “Plans”) to delay increasing care hours to home care recipients who need more care, and they have given the Plans more latitude in reducing hours. The result has been that the Plans are able to pay for less care longer - and vulnerable seniors and people with disabilities are forced to either have insufficient care, incur the cost of sometimes multiple appeals or go into a nursing home. The following are examples of significant changes that have opened the door to this result.
Pursuant to changes in federal regulations[1], New York implemented the requirement as of May 1, 2018, that MLTC Plan Appeals must be exhausted before going to an External Appeal or a Fair Hearing.[2] We refer to this as the “Exhaustion Requirement”. This means that before requesting either an External Appeal or a Fair Hearing, a recipient must first ask the MLTC Plan to reconsider its decision. The decision in question would typically be either a denial of increased hours or a notice that a recipient’s hours are being reduced or terminated. In increased hours requests, this requirement necessarily increases the amount of time a client must go without the additional care.
Effective November 8, 2021, a new rule governing a recipient’s Transition Rights was implemented. Transition Rights for this purpose refers to a recipient’s continuity of care rights when required to enroll in an MLTC.[3] This arises particularly in the context of Immediate Needs clients transitioning to MLTC once they’ve received services through Immediate Needs for 120 days. Upon transitioning, these clients are entitled to have their hours remain the same for the next 90 days. After the transition period the MLTC can re-assess the case. Prior to November 8, 2021, MLTC Policy 16.06[4] required that a Plan could only reduce or discontinue hours if it had a “legitimate reason” for doing so.[5] In essence, a legitimate reason was considered: (A) Changes in enrollee’s medical or mental condition or social circumstances; or (B) Mistake in the prior authorization - and the notice had to specify what the changes or mistakes were. This was a difficult showing for the Plans to make, because most often our clients’ conditions do not improve overtime, they typically deteriorate.
After November 8, 2021, however, an MLTC plan is no longer required to demonstrate any change of condition according to the reasons set forth in MLTC Policy 16.06 as a reason for reducing hours. Rather, the regulation was amended to require only that the Plan must “indicate a clinical rationale that shows review of the client’s specific clinical data and medical condition.”[6] This nebulous standard has opened the door for the Plans to be much more arbitrary in reducing hours without any medical justification. It is embarrassing how quickly we saw the MLTCs making arbitrary cuts in services from the moment the new regulation went into effect. In fact, many Plans advised the clients during their initial assessment - when the client first chose the MLTC to transition to from Immediate Needs - that their services would be reduced from what they were receiving (often live-in or split shifts) to, e.g. 6 or 7 hours/day. This is a clear violation of MLTC Policy 13.10, which prohibits Plans from engaging in “any communication that infers the Plan could impose limitations on…services”.[7] Nevertheless, we needed to make regular complaints to the Department of Health about these blatant violations by the MLTC Plans.
The good news, in my experience anyway, is that the appeals are very winnable. The bad news is that appealing arbitrary decisions is an added expense, one which, in my opinion, the client should not have to bear. And win or lose, the Plans win in the sense that they’ve created delay, which saves them money, but it costs our clients in both potential health and safety risks as well as legal fees.
There are several events in the lifespan of a home care case that may occasion an appeal. This article will address the situations we see most commonly: Immediate Needs appeals, New York Independent Assessor (“NYIA”) appeals and MLTC appeals. The primary focus, however, will be the MLTC appeals which are the most procedurally cumbersome, and in which we are seeing the biggest increase.
A. Immediate Needs: Under certain circumstances it may be necessary to do an appeal in the
immediate needs phase of the case (meaning when an application has been made through the expedited immediate needs process). If the client disagrees with the initial award of hours, the remedy would be a Fair Hearing. However, on a case-by-case basis, if we disagree with the number of hours awarded by the Local Department of Social Services (LDSS), we are often able to submit a new M11q (medical form used in the boroughs) or a doctor’s letter and get the hours increased through advocacy.
Recently, although traditionally not that common, we now see cases getting stuck in between being approved for home care and having the care actually be put in place. This happens regularly now in high needs cases because the Home Care unit cannot find an agency to staff the case. It may also happen if something falls through the cracks somewhere in the process and for some reason the case isn’t moving. We have seen this lately in the boroughs with the Community Alternative Systems Agencies (“CASAs”). This is something that has not been so much of a problem for several years, but it has become more common in the last year or so since we have been experiencing an aide shortage and since some reorganization has occurred in some of the CASA offices.
In this situation, the client has not yet been enrolled in an MLTC Plan, so MLTC is not involved. There has also technically not been an unfavorable decision or a “denial” from Medicaid (to the contrary, we have an approval), and some practitioners are concerned that a Fair Hearing is not necessarily an available remedy. However, the relevant federal statute states that a “State Plan for medical assistance must … provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the Plan is denied or is not acted upon with reasonable promptness” [emphasis added]. [8] We have scheduled Fair Hearings for these delays and have, so far, been able to get the case moving without going forward with a complete hearing. I would argue that the “immediate need” in an Immediate Needs case is the need for the care (which is the very reason this procedure exists) – not merely the need for Medicaid approval, and that when a case drags on for months without care being put in place, this constitutes “not being acted upon with reasonable promptness”. The Office of Temporary and Disability Assistance (OTDA) has allowed these cases to be scheduled. I have not had one go to decision yet, so whether my argument would succeed remains to be seen.
This is not the first step we usually take, however. Thus far, we only resort to a Fair Hearing early on like this if we have not had any luck resolving the issues with the supervisors at CASA and the Home Care Services Program (HCSP). If unable to resolve the situation, then we will request an expedited Fair Hearing based on violation of the Immediate Needs time parameters.
B. NYIA Assessments in Immediate Needs Cases: As of December 1, 2022, New York has
implemented the New York Independent Assessor (NYIA) requirement for the initial assessments in all Immediate Needs cases. [9] (This process went into effect for non-Immediate Needs cases as of 5/16/22.)
This is now the process used to determine if an individual is eligible for Personal Care Services (PCS) or Consumer Directed Personal Assistance Program (CDPAP) in New York. Upon receipt of an immediate needs home care application, the LDSS contacts NYIA and schedules two assessments: (1) a Community Health Assessment (CHA) to be completed by a nurse and (2) a Clinical Appointment (CA) to be completed by a physician or nurse practitioner. If this practitioner determines the individual is self-directing (or has someone who can direct the care) and has a stable medical condition, they will complete a Practitioner’s Order (PO) advising the individual is eligible for MLTC.[10]
If the individual requires more than 12hours/day, however, the case must be referred to an Independent Review Panel (IRP) for a high needs review. This panel has 6 days to advise the LDSS if the plan of care will maintain the patient’s health and safety at home. If the IRP’s determination is that health and safety cannot be maintained at home, the implication is that the individual needs to be forced into a nursing home. This decision is appealable. This appeal would be in the form of an Expedited Fair Hearing. We seem to begetting good results on these appeals so far. Unfortunately, this is at the expense of our clients, in both paying legal fees and paying privately for care pending the outcome of the appeal –not to mention experiencing the distress of fearing that they or their love done may be forced into a nursing home.
C. MLTC: Unlike in fee-for-service Medicaid (e.g. Immediate Needs through the LDSS), the initial award of hours by an MLTC is not appealable at this time. This construction is specific to managed care, which is presently receiving privileged treatment in New York. In Bellin v. Zucker,[11] the Medicaid recipient appealed the initial award of hours by the MLTC for inadequacy. The District Court found that she did not have a statutory right to appeal an initial authorization of personal care hours. The court held, inter alia, that she did not have a constitutionally protected property interest in an MLTC’s initial determination of a particular number of care hours and thus granted the defendant’s motion to dismiss. On appeal, the Second Circuit vacated the judgment as to that issue and remanded the case for further proceeding, holding that Bellin has plausibly alleged that the limitations on an MLTC applicant’s right to appeal deprives her of a constitutionally protected property interest.[12] Summary Judgment motions are currently pending.
At this time, there are two common occasions when MLTC appeals are typically necessary:
1) When the Plan cuts the existing hours (including when Plan reduces hours after the transition period from Immediate Needs to MLTC). In these cases, the Plan must give ten (10) days’ written notice that it is reducing hours. (The effective date of the reduction must be at least 10 days after the notice date.) It is very important that the client request the Plan Appeal before the effective date so the client can get Aid to Continue, which means the hours will remain the same pending the outcome of the appeal.[13]
2) When an individual requests an increase in hours and the Plan denies the request. If we have the opportunity to get the client at the very beginning of the process, we advise that all requests for additional hours should be made in writing to the Plan and the request should be specific about how many hours are being requested (e.g. if looking for 24hours/day, must indicate whether looking for live-in or 24-hour split-shift continuous care). The Plan will then do anew assessment and provide notice in writing of its decision. This notice will be either an Approval Notice or an Initial Adverse Determination if the request is denied or even partially denied. If the request is denied, the client has a right to appeal.
This is the point at which a Plan Appeal must be exhausted. As a practical matter, we often see the Plans take the appeal request over the phone at the time the recipient is told by the Plan’s care manager that the request has been denied. There is a procedure in the Plan’s notice (the Initial Adverse Determination) that affords the recipient an expedited 72-hour appeal with the Plan if a letter from the patient’s physician is provided, stating the patient’s health or safety is in jeopardy if the appeal is not decided on an expedited basis. Otherwise, the Plan has 30 days to make a decision.[14] If the Plan shows that there is need for additional information and that the delay is in the enrollee’s interest, it may extend its time frame by 14 days.[15] If the Plan fails to adhere to the notice and timing requirements, the enrollee is deemed to have exhausted the Plan Appeal process (called “deemed exhaustion”)[16] and the member may proceed to the next level of appeal.
However, again as a practical matter, this Plan Appeal is often requested and conducted before the recipient even gets the Initial Adverse Determination. In many cases, it is decided in one day. The Plan will then call the recipient and advise that the appeal was denied (or that the Plan reconsidered and is approving the request). Assuming it was denied, thereafter, the recipient will receive both the Initial Adverse Determination (IAD) (which informs the client of the denial of the request) and the Final Adverse Determination(FAD) (which informs them of the denial on the Plan Appeal). If the client gets this information via a telephone call, it is imperative that they request the IAD, FAD and Uniform Assessment System – New York (UAS) (the Plan’s assessment tool) be sent – or emailed - to them immediately.
Very often, our first contact with the client is after their Plan Appeal has already been denied. This is not tragic, though, because the Plan appeals are quite often denied, and the client gets this out of the way and retains us to do the appeals that we have a much better likelihood of winning. In fact, we sometimes advise the client to do this futile verbal Plan Appeal and reach out once they’ve received the Plan’s decision.
We usually approach the appeal process strategically, with an eye toward conserving the client’s resources, getting the quickest result possible and yet preserving the right to have a second “bite at the apple” if we do not prevail.
The following is an example of a typical case and our strategies:
The client’s daughter calls and says she requested more hours for her mom and the Plan denied the request. Right away we would need to know several facts:
1. How many hours were requested? If 24, did they request live-in or split shifts or did they not specify? If they did not specify, the Plan will characterize the request as live-in when it issues the IAD, and we will not be able to get any more hours than what the Plan says the client asked for.
2. Was the request made inwriting?
3. Did they receive a written decision (in the form of an IAD)?
4. If so, did they request a Plan appeal?
5. If so, was a Plan appeal done? (At this point I might tell the client to go ahead and do it verbally over the phone to get it over with and advise the Plan to send the FAD immediately. This can save the client money in legal fees.)
Sometimes the client hasn’t even received a decision yet, but the nurse doing the assessment or the case manager tells them they aren’t eligible for the 24 hours. I’ve been shocked on a regular basis by some of the things the clients have been told. This is a really egregious practice by the Plans, and we hear it a lot.
Once we establish where the client is in the process, we ask for copies of the IAD, the FAD, the UAS (sometimes there are several) and all records the Plan has pertaining to the client (the Plan’s Case File). In the meantime, we will plan our strategy. We have two options at this point: we can do an External Appeal or a Fair Hearing. All things being equal, I generally prefer to start with an External Appeal[17] (typically an expedited 72-hour appeal). The reason is that if we lose, we can go to a Fair Hearing[18]– whereas if we start out with a Fair Hearing and lose, we cannot then do an External Appeal.
If the request for increase was for 24-hoursplit shifts, the client may become a member of the class pursuant to the Varshavsky v. Perales[19] class action settlement. This entitles the client, upon proper documentation, to a homebound hearing. If a homebound hearing is not scheduled within 45 days, OTDA must direct that the increased care be put in place pending the outcome of the homebound hearing. So in addition to preparing an External Appeal, we will simultaneously request a homebound fair hearing, supported by a physician’s letter stating the client cannot travel to a Fair Hearing without substantial hardship or medical detriment and, thus, requires a homebound hearing. We will also notify Varshavsky class counsel. This will get the clock ticking on the Varshavsky relief. The state is permitted to hold a first hearing by phone. If the hearing is decided fully in the client’s favor, there is no need for a home hearing. If a favorable decision is not issued within45 days of the hearing request, then the MLTC will be ordered to provide the increased hours pending the home hearing and subsequent decision.[20] It should be noted that the state’s position at this time is that Varshavsky rights do not apply to Medicaid Advantage Plus Plans.
Once the Internal Appeal/Plan Appeal is exhausted, the client may file an External Appeal. An External Appeal is filed with the New York State Department of Financial Services (DFS) and must be referred to a reviewer that is independent of both the State and the Plan.[21]
Upon receipt of the proper documentation, the client is entitled to an expedited (72-hour) review. My experience has been that this time frame is strictly adhered to. In a recent case of mine, the 72 hours was up at 10:00 a.m. on a Saturday morning and I received the decision at 9:59 a.m.
The following documentation should be submitted with the External Appeal:
- New York State External Appeal Application/Fast Track request form signed by doctor/provider (This form isavailable online and is also included in FAD letter)
- Letter from doctor advocating for the higher hours and stating that an expedited review is required so that the patient’s health and safety will not be jeopardized - and also making the Varshavsky showing, if appropriate
- Medical records from doctor (preferable but not required)
- The Plan’s assessment or UAS
- Authorization Form
- Consent to Release of Records Form
- IAD
- FAD
- HIPAA Release
- Appeal Letter
- Any other information we have to support our client’s request
Once we have all the above, we can put the appeal letter together and submit the package. The New York State External Appeal Application contains instructions on what fax number the application should be sent to. It also gives a number to call to advise DFS that the application has been sent so they can go look for it. The DFS does not prefer to receive the entire appeal package. Only the application with Physician’s Attestation, the appeal letter, the forms signed by the client and the FAD should be faxed over to DFS.
You should get a fax from DFS on the same day acknowledging receipt and asking for any additional information or corrections. If the application is complete, DFS will send a fax advising which independent reviewer the case was sent to and giving the reviewer’s contact information. The reviewer almost immediately faxes over a letter with a document request. We then immediately forward the entire package to the reviewer and follow up to confirm receipt. If the package is sent over in more than one fax or email transmission, it is extremely important to confirm receipt of all parts. We had a reviewer recently decide a case without realizing there were two packages. We were able to show receipt of both packages was confirmed and the reviewer then reviewed the second package and found in our favor, but this caused unnecessary delay.
The reviewer issues a decision within the72 hours and we receive a copy of it from DFS. DFS simultaneously provides a copy of the decision to the Plan and the Plan must provide the additional care. Be sure to carefully read the reviewer’s recitation of which documents it relied on to make the decision to confirm that all documents you sent over were reviewed.
Some practitioners may prefer to go straight to a Fair Hearing after exhausting the Plan Appeal. Each case has its own factual and legal issues to analyze, and different practitioners have different strategies. The above only represents how we typically approach a case in my office. The Fair Hearing procedure has not changed except to the extent that the Office of Administrative Hearings (OAH) began conducting them telephonically since the COVID emergency.[22] OAH calls a day before the scheduled hearing to confirm, and the Administrative Law Judge calls all parties at the time of the hearing. Evidence is to be submitted through OAH’s new portal and served on Office of Legal Affairs prior to the hearing.[23]
If the client loses the Fair Hearing, the remedy would be to commence a special proceeding in Supreme Court under CPLR Article 78. This proceeding is beyond the scope of this article.
Although not exhaustive, the aforementioned situations are what we’ve been seeing lately in my office. The number of appeals has increased dramatically. We are concerned daily about the safety and well-being of our home care clients in light of the cavalier way the Plans are treating their requests for care. In all our appeal cases thus far, the Plans’ decisions have been in direct contradiction to much of the information contained in their own assessments – hence, the appeals are winnable. This suggests to me that the Plans have become ever more emboldened to put their bottom lines ahead of the population they serve without fear of reprisal. There are no financial penalties or sanctions. The only consequence to them is probably that the small percentage of people whose families can afford to fight them will win, but they get away with it with the vast majority of people who either do not know their rights or cannot afford lawyers. Although some of the home care clients have done prior transfers of assets or have families who can assist them financially, many, many people receiving home care through Medicaid are living at the poverty level and do not have family with resources. These people likely cannot afford to exercise their right to appeal. If the Plans continue to disregard the needs of these vulnerable elderly people and New York continues to allow it, the consequences to our seniors may be devastating. More scrutiny and oversight of the Plans is needed, and there should be a mechanism for sanctioning reckless determinations.
____ Get HIPAA, authorizing doctor/provider to disclose information to us (we may have in file if we did the application)
____ Get New York State External Appeal Application from materials received from Plan or online
____ Pull and complete all forms that require client’s signature
- Consent to the Release of Records for New York State External Appeal,
- Appointment of Representative
- Authorization – Medicaid Managed Care
- HIPAA Release (for provider and DFS/Plan)
____ Email all forms together to client or POA for signature
____ Draft proposed letter for doctor based on medical information we have, advocating for the care and making required showing for expedited appeal and Varshavsky homebound hearing.
____ Email doctor proposed letter, request medical records with HIPAA Release; New York State External Appeal Application, which includes Physician’s Attestation. Must follow up with doctor’s office.
____ When have all the above documents, prepare the appeal. Go through each category in the IAD, FAD, all UASs and Plan’s file and pull the information from the various documents. You will find information in the Plan’s documents that supports our case. Always point out what our client’s doctor stated in the doctor’s letter.
____ Annex as exhibits all documents referred to in the appeal letter.
____ Fax over to DFS at 800-332-2729 the Appeal Letter, the External Appeal Request Form with the FAD and the forms signed by the client.
____ Call DFS at 888-990-3991 and inform them the appeal was just emailed over. They will check to make sure they have it and usually call us back. If they do not call to confirm, call them back.
____ Keep an eye out for fax from DFS asking any questions. When they consider the submission complete, they will send to reviewer for expedited review and email or fax us a letter with the reviewer’s information.
____ Once DFS assigns case to a reviewer, email appeal with all exhibits (usually in 2 to 4 separate emails, titled “Email 1 of 4”, etc.) to the email address the Reviewer directs that it be sent to in the letter.
[1] 42 CFR 438 Subpart F – Grievance and Appeal System; 81 FR 27853,May 6, 2016.
[2] 10 NYCRR 98-2.10(m) and 18 NYCRR 360-10.8(f)(5), (f)(8), (g) and(i).
[3] http://www.wnylc.com/health/download/797/.
[4] MLTC Policy 16.06 – Guidance on Notices Proposing to Reduce or Discontinue Personal Care Services or Consumer Directed Personal Assistance Services, dated 11/17/16.
[5] 18 NYCRR Sec. 505.14(b)(5)(v)(c)(2)(i) through (vi) and 18 NYCRR Sec. 505.28(h)(5)(ii)(a) through (f).
[6] 18 NYCRR Sec. 505.14(b)(4)(viii)(c)(3)(vii) and505.28(i)(4)(iii)(h)
[7] MLTC Policy 13.10: Communication with Recipients Seeking Enrollment and Continuity of Care. This policy states “…For Medicaid recipients who are in receipt of services and are transitioning to MLTC, plan representatives may inquire about the recipient’s current plan of care and service provider only for informational purposes to assist with the required in home assessment process. The MLTC plan shall not engage in any communication that infers the plan could impose limitations on provision of services, or requires specific conditions of family / informal supports; any f which could be viewed as an attempt to dissuade transitioning recipient or interested party…”
[8] 42 U.S.C.1396a(a)(3).
[9] 22 OHIP/ADM-01; GIS 22 MA/05; GIS 22 MA/07.
[10] GIS 22 MA/09
[11] 457F. Supp. 3d 414 (S.D.N.Y. 2020), rev’d. in part and aff’d. inpart, 6 F.4th 463 (2d Cir. 2021).
[12] Bellin v. Zucker, 6 F.4th 463 (2d Cir. 2021).
[13] Goldberg v.Kelly, 397 U.S. 254 (1970)(holdingthe Due Process Clause of the Fourteenth Amendment requires an evidentiaryhearing before recipient of certain government welfare benefits can be deprivedof such benefits.
[14] 438.408(b)(2).
[15] 438.408(c)(1)(ii).
[16] 438.408(c)(3).
[17]438.408 (f)(1)(ii).
[18] 438.408 (f)(2).
[19] 202 AD 2d 155 (1stDept. 1994)
[20] http://health.wnylc.com/health/afile/228/765/1/
[21] 438.408(c)(2).
[22] 20 GIS TA/DC 097 –NYS OTDA Transmittal 20-05 – Allowing or Requiring Fair Hearing Appearances byWritten, Telephonic, Video, or other Electronic Means (10/16/20).
[23] https://upload.ny.gov/en-US/; see Office of AdministrativeHearings (OAH) Transmittal 22-02, dated 9/1/22.
