In New York State, there are various Medicaid programs that provide home care. The Medicaid application process for home care used to be much simpler than it is today. One would simply apply for Medicaid with the local Medicaid agency and the Medicaid agency would determine financial eligibility and what services would be received. However, starting in 2012, this one-step process to obtain Medicaid home care services became a two-step process: first, one must apply to the Medicaid agency to have his or her financial eligibility determined; and second, after financial eligibility is determined by the Medicaid agency, one must then arrange for a Managed Long Term Care Plan (MLTC) to do an evaluation to determine the Medicaid home care services that will be received. Recently, this two-step Medicaid eligibility process evolved into a three-step eligibility process with the addition of a requirement that the Medicaid applicant undergo a “no conflict” evaluation to determine whether they are in need of home care services. This evaluation must be completed before the MLTC plan does its evaluation. It is now not unusual to take five months or longer for a Medicaid home care applicant to completely navigate the Medicaid application process and actually start receiving Medicaid home care services. (If one is in “immediate” need of Medicaid home care services, there is a shortened process but obviously everyone cannot claim they are in “immediate” need.)
An MLTC is a private company that receives the same payment regardless of how many hours of Medicaid home care services it provides. When this new Medicaid system was put into place, elder law attorneys, including Pfeifer & Choi PLLC, believed that this new system might lead to an unfair reduction of Medicaid services to our clients. We reasoned that the MLTC companies would be incentivized to reduce the number of home care hours they provide to our clients so as to maximize their own profits. We, and other elder law attorneys, have personally seen evidence that some MLTC plans are reducing hours inappropriately. A new report, which was written by Medicaid Matters New York (MMMY) and the National Academy of Elder Law Attorneys, NY Chapter (NY NAELA), confirms our observations.
The report is entitled, Fair Hearing Decisions on Medicaid Home Care Reductions by Managed Long-Term Care Plans June – December 2015 (hereinafter “Medicaid Home Care Reduction Report”). The Medicaid Home Care Reduction Report is dated July 2016 and is available at http://www.nytimes.com/interactive/2016/07/21/nyregion/document-Report-on-Medicaid-Home-Care-Reductions-in-New.html.
The Medicaid Home Care Reduction Report looked at fair hearings involving the reduction of hours by MLTC plans. A fair hearing is a proceeding that is conducted before an administrative law judge. Where an MLTC plan wants to reduce the number of home care hours provided to one of its clients, it must articulate changes in the client’s circumstances that would justify the reduction of hours. If the client disagrees with the reduction, she may request a fair hearing.
There were 1,042 fair hearing decisions involving home care reduction of hours during the period of June 1, 2015 to December 31, 2015. The number of decisions issued each month increased six-fold from June to December 2015, with 98% of the decisions involving MLTC plan members living in New York City. 87% of the proposed reductions were by three MLTC plans: Senior Health Partners, VNSNY Choice and CenterLight (Medicaid Home Care Reduction Report, pages 3 and 4). 31% of the hearings involved proposed reductions in hours of between 40% to 49% (Medicaid Home Care Reduction Report, page 4). The MLTC plans prevailed in only 1.2% of the fair hearings (13 out of 1,042) (Medicaid Home Care Reduction Report, page 4).
Before reducing hours, MLTC plans are required to give notice to its clients that, among other things, informs them of the reduction of services, the justification for same and the right of the client to appeal the decision. Many members never received a proper notice of reduction from their MLTC plans. In some cases, they received no notice at all. (Medicaid Home Care Reduction Report, page 5.) The Medicaid Home Care Reduction Report recommends, among other things, that the Department of Health should monitor reductions of hours by MLTC plans and that it restore hours that were reduced without legal justification (Id., pages 5, 6 and 31).
MLTC plan members have a right to pursue a fair hearing when their hours are being reduced. However, as noted in the Medicaid Home Care Reduction Report, this is an inadequate remedy. First, many members did not even receive a proper notice – or in some cases any notice at all – so they were not aware of their appeal rights. Second, the appeal of these decisions costs time and money. One must wonder how many clients, who had their hours reduced, did not avail themselves of their right to appeal simply because they either did not know that they had a right to appeal or were too elderly, sick or disabled to pursue such an appeal. In addition, many individuals no doubt acquiesced to the reduction of hours not realizing that the MLTC plans had no basis for the reduction. Unfortunately, the Department of Health does not keep adequate data so we do not know how many people had their hours reduced without appealing (Medicaid Home Care Reduction Report, page 31).
We recently had a client contact us because her Medicaid home care hours were being reduced. However, when we filed for a fair hearing and asked for a reconsideration; the MLTC backed down. In our opinion, there was no basis for the reduction of Medicaid home care hours whatsoever. However, the MLTC plans know that if the person does not know his or her rights, they will get away with the reduction of hours, even if there is absolutely no justification for the reduction.
Reduction of hours is just one problem. We are also concerned that our clients are not receiving the appropriate number of hours initially from some MLTC plans. We are taking steps at our law firm to maximize the amount of Medicaid home care hours our clients receive.
New York State instituted the practice of having MLTC plans determine the amount of services Medicaid recipients would receive so as to save the State money. Although we do not wish to demonize all MLTC plans, reported findings clearly indicate that some MLTC plans put their profits ahead of the aged, blind and disabled clients that they serve. Our law firm is taking steps to help the most vulnerable citizens in the community receive the Medicaid home care hours to which they are entitled.
