submitted by Kelly Barrett Sarama, Esq.
At the Center for Elder Law & Justice, we help people navigate the complicated health care system, learn how their health insurance works, and how to access vital services such as home care. Even before the pandemic, we were monitoring the trend of a shortage in home care aides across New York. Throughout the pandemic, these shortages have worsened, causing some individuals to forgo the level of care they need and deserve.
Below, we briefly outline some of the trends we are monitoring, and suggest complaint avenues you can take if you are experiencing these issues. This blog is focused on accessing home care services through the various Medicaid programs, since Medicaid is the primary payer of home care and long-term care in New York. Our experienced health care team is here to help talk you through these challenges to accessing home care, and may be able to represent you to help advocate for access to the care you need. Call us today at (716) 853-3087 to see if we can help.
Delays with scheduling initial assessments
Generally, in order to sign up for home care services through Medicaid, you must submit a Medicaid application to your Local Department of Social Services (LDSS). Once you have done this, you can call New York Medicaid Choice and schedule a nursing assessment through the New York Independent Assessor (NYIA) (previously called the Conflict-Free Evaluation and Enrollment Center) by calling 1-855-222-8350 during regular business hours. The evaluation is done by a nurse who is not affiliated with any managed care plan or provider of long-term care services. The evaluation will review your “activities of daily living” (ADLs) and is used to determine whether you qualify for services.
The evaluation is supposed to be scheduled within 14 days of your call. However, we have received several reports of extreme delays, up to 45 days or longer, to schedule these initial evaluations. This is a problem, because you cannot access home care services through a Medicaid program without this evaluation.
What can I do?
If you have experienced a delay in scheduling your initial assessment for Medicaid home care services that was longer than 14 days, we urge you to file a complaint as soon as possible. The New York State Department of Health (DOH) needs to hear directly from people who are trying to enroll in order to track and address these delays. The complaint will be most effective if the consumer directly submits it, as DOH may otherwise refuse to count it or provide information to an advocate (someone calling or writing on behalf of a consumer).
How do I file a complaint?
We recommend submitting a complaint via email and including all of the following email addresses (you can copy and paste these and send as one email to all): email@example.com; Independent.firstname.lastname@example.org; CF.Evaluation.Center@health.ny.gov
Please describe as specifically as possible, what happened. We advise you to include the following information, at a minimum:
- Include your name (or name of person in need of assessment if sending on someone’s behalf – but remember, this will be MOST EFFECTIVE if sent directly from the Medicaid applicant), address and zip, DOB, Medicaid CIN number,
- Contact info for person who called for the evaluation and their relationship to applicant (self, caseworker, attorney, POA),
- Date of call to NY Medicaid Choice/Maximus,
- What happened – did it go into voicemail? If so did they get a callback and when?
- What date was offered for the assessment? Was it by telehealth or in person?
- If by telehealth, were they offered for it to be in-person? If not, did they ask for that? What date were they given for in person?
- If the Medicaid applicant is not submitting their own complaint, try to include a HIPPA release if possible. You can use this form: https://www.nycourts.gov/forms/Hipaa_fillable.pdf
It is crucial that these delays be reported directly to NY DOH in order for them to get addressed.
Pressure to accept fewer hours than you qualify for
After you are found eligible, you will have a second assessment to assist in creating your care plan. If you need long-term care for at least 120 days (as determined by the initial assessment), you will then have to choose which health plan you would like to enroll in, and the health plan will propose a plan of care to meet your needs.
Across the state and beyond, there is a massive shortage of home care aides, which makes it very difficult to connect people with the services for which they are eligible and entitled to. We have received reports of some plans trying to convince new enrollees to accept a care plan with fewer hours than you qualify for, in order to ensure your care plan can be staffed due to the shortage issues.
What can I do?
If you are put into this position, you have a tough choice to make. Some care is better than no care if you are in need, but what if you need more care than the plan you have chosen is willing or able to offer? If you find yourself in this situation, you have some options.
- You could choose to accept level of care offered and immediately request an increase to your desired/needed level of care. You can do this by contacting your plan and asking to speak with your care manager. We recommend putting your request in writing and asking your care manager for assistance with submitting it. Your plan must provide you with a written determination once it has evaluated your request. If you receive a denial, you have appeal rights. Our office may be able to assist you with this process.
- You can ask more than one plan to assess you and see who can offer the highest level of care, before you commit to enrollment. If urgency is a factor, this option may not be ideal.
How do I file a complaint?
To file a complaint with NY DOH against a Medicaid Managed Long-Term Care (MLTC) plan, you can call or write:
State Complaint Number for MLTC Problems – 1-866-712-7197
For enrollment complaints – call NY Medicaid Choice –
- 1-855-886-0570 (Advocates line)
- 1-888-401-6582 (Consumers line)
To submit a complaint, often referred to as a grievance, internally with your plan, you must contact your plan directly. A comprehensive list of plans and internal complaint information has been compiled by NYLAG and can be found here: http://www.wnylc.com/health/entry/179/
How to I file an appeal if I want to challenge my hours?
The best way to do this is to ask for an increase in your services and receive a formal plan determination, which you can then appeal if you are denied. You must first request an internal plan appeal and receive a final adverse determination from the plan before you can request a Fair Hearing with the Office of Temporary and Disability Assistance.
For more specific information, we urge you to give us a call at (716) 853-3087. We may be able to represent you in these appeals.
Attempts to reduce your services
Per NY DOH MLTC Policy 16.06, personal care or consumer directed personal assistance services may only be reduced if the plan can show there was a mistake in your original plan of care which miscalculated your level of care, or if you have experienced a change in medical, mental, or social circumstances. You can read the policy here: https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/16-06.htm
Medicaid plans must provide a minimum of 10 days notice to a consumer before their services can be changed. You have the right to request an internal plan appeal within 60 days, but you must request it within 10 days of the notice date in order for your services to continue unchanged while a decision is made on your appeal. You should explicitly request aide continuing when you request an appeal, and we urge you to follow up any verbal requests with a request in writing. If you receive a final adverse determination from your plan, you have 120 days to request a Fair Hearing, but again, only 10 days to request aide continuing to guarantee the same level of care while your matter pends.
We have been monitoring a trend where plans may issue arbitrary reductions which are not on the basis of mistake or change in circumstances, though sometimes the notices may allege there has been a mistake or change. We urge you to request an appeal if this happens to you, and to contact our office at (716) 853-3087 to see if we can represent you, free of charge.
How do I file for an appeal with aide continuing?
You must first request an internal plan appeal, directly with your Medicaid plan, and you should explicitly request aide continuing. We urge you to follow up in writing with this request, if you decide to call your plan first to file an appeal.
If you receive a final adverse determination, you can then request a Fair Hearing. You must again request aide continuing when you request a Fair Hearing if you want your care to remain unchanged. There are multiple ways to request a Fair Hearing:
- Online: https://otda.ny.gov/hearings/
- By phone: (585) 474-8781 or 1-800-342-3334
***REMINDER: Even though you have 60 days to request an internal plan appeal, you must request your appeal within 10 days of the receipt of the reduction notice in order to qualify for aide continuing. If you miss the 10 day deadline, you can still appeal, and you can still request aide continuing, but your care may be reduced while your matter pends.
Similarly, you have 120 days to request a state Fair Hearing after you receive a final adverse determination from your plan, but only 10 days to do so if you want to request aide continuing.
Of note: if you receive aide continuing but later lose at a Fair Hearing, and your care is reduced, you face possible liability for the difference between the higher and lower level of care provided to you while the matter was pending. This is extremely rare, but the plans do have a right to pursue reimbursement.
Not enough staff
Even before the public health emergency in relation to the Coronavirus pandemic, New York State was experiencing a shortage of aides and a widespread inability to fully staff home care cases. This shortage has been exacerbated over the last few years, and has reached a crisis situation. We are hearing constant reports of people receiving fewer hours daily than their approved level of care.
What can I do?
Depending on your specific circumstances, there may be different paths forward that we would recommend, so we urge you to contact us to have a conversation about your specific circumstances.
We also recommend filing a grievance both with your plan and the state if you are experiencing a staffing shortage and are not receiving the level of care for which you have been approved. See above for specific appeal and grievance contact information.
If the issue has been persistent, we may recommend contacting your plan to request an appeal on the basis of a “constructive reduction.” If you have not received a reduction notice, wherein your plan has advised you of its intent to reduce or change your plan of care, but you have been consistently receiving a lower level of care than your care plan provides, you may have an argument that the plan has constructively reduced your care without notice. This may not apply in all circumstances, and we are unable to give generalized advice without an individual assessment of your situation.
Fair Hearing delays and aide continuing issues
During the Public Health Emergency (PHE), the Office of Temporary and Disability Assistance has not prioritized hearings for individuals who have been granted aide continuing in any matter. This means that you will eventually have your hearing, but so long as you are receiving uninterrupted care that has remained the same, your hearing likely will not be scheduled until the PHE has been lifted. DOH, nor OTDA, have issued information as to when OTDA will schedule these hearings or how the backlog will be addressed.
Hearings that do not involve aide continuing have been scheduled regularly, and have been typically scheduled as telephone hearings. You have the right to request an in-person hearing if you would prefer, but you must explicitly request this by calling OTDA. Otherwise, your hearing will likely automatically be scheduled as a telephone hearing. You also have the right to request a home hearing if you are homebound, just be aware that there are extreme delays with scheduling home hearings.
Due to staffing shortages, we have seen attempts to reduce care even where someone has been granted aide continuing while their matter pends. If this happens, we urge to you call OTDA to report this immediately. Our office may be able to assist you with a complaint to OTDA, who can then order that your care be restored.
DISCLAIMER: This blog post does not establish an attorney-client relationship and does not constitute legal advice. Every case is complex and different, and the information herein is subject to change at any time, particularly during the Public Health Emergency. Please contact us at (716) 853-3087 to talk about your specific circumstances and see if we can assist you.