HOW TO WIN A MLTC REDUCTION OF HOURS APPEAL

NY Medicaid Managed Long Term Care Plans (MLTC) and Appeals of Initial Adverse Determination for Reduction of Personal Care Hours

Attorney Inna Fershteyn is the top specialist representing clients with various NY Medicaid Managed Long Term Care plans including Senior Whole Health (SWH)/ Magellan Health, ElderServe, Health First, Senior Health Partners and has been very successful in reversing MLTC negative determinations and increasing personal care hours for her clients.  Based on her 22 years of experience working with MLTC plan appeals, representing clients at Medicaid Fair hearings and in front of Department of Health, she put together this list of MLTC Appeals Frequently asked questions:

Managed Long Term Care in NYS and Legal Procedures Required to Reduce Home Care Services

If a Medicaid Beneficiary is receiving home care aid service, the MLTC is permitted to change the care plan, but only to the extent permitted by the law and using the safeguards, regulation and policy set forth in strict requirements for NOTICE to Medicaid beneficiaries.  If the personal care hours are proposed to be reduced by the MLTC, adequate notice and “transition protections” must be given to the MLTC beneficiary.

Mayer v. Wing is a Federal Court Decision Prohibiting Reduction of Personal Care Hours without Justification

Based on the case law in 1997 decision of Mayer v. Wing, NY Federal Court case, Medicaid Personal care services may not be reduced or terminated without following:

  1. Proof that individual’s medical condition or social circumstances had changed since the services were originally authorized by the MLTC
  2. The change in circumstances justifies reduction of personal care hours
  3. There is Proof that a mistake was made in the original authorization
  4. There is proof that certain other limited justifications apply
  1. How Do I Appeal an Initial Adverse Determination from MLTC reduction of hours?

You have 10 days to submit an internal appeal to MLTC when you receive an Initial Adverse Determination for reduction of personal care hours.  That deadline to appeal internally is extremely important as while internal or external appeal is pending MLTC has no right to take away your personal care hours and your home attendant services.

  1. How do I know that Initial Adverse Determination was Made by the MLTC?

MLTC (including Senior Whole Health-Magellan Health Care, Health First, Senior Health Partners) are all required to serve the patient with an Initial Adverse Determination after the NY Comprehensive Community Assessment report recommending reduction of personal care hours was made.  Your case will be evaluated thought Uniform Assessment System in NY by a registered nurse every 6 month.

Usually, the MLTC would try to reduce the hours even if the patient’s health is declining (which is usually the case with elderly and severely disabled patients who are receiving multiple MLTC hours).

The typical initial adverse determination letter may say the following:

“You are currently receiving 24 hours split shift live-in Personal Care Assistant (PCA) services.  A recent nursing care plan review of your clinical needs fails to show that a split shift 24 hour live -in is necessary at this time, and that your needs can be met with a 24 hour live-in PCA”

Or

the recommendation is to reduce current hours of PCA care from 2 12 hours Split Shift to 7d/12h=84h/wk.  The recommendation is based on that needs can be met with hours recommended as per recent assessment, member lives with supportive family, hours are for supervision, RN reports member is stable condition under family and PCP care. O2 and equipment care is out of the scope of the PCA”.

The MLTC plan Must give adequate notice of such reduced hours determination and allow for an internal appeal without reduction of hours.

  1. My personal care hours have been reduced by the MLTC without adequate notice. How do I submit a complaint to the Department of Health?

New York State Department of Health (DOH) is an agency that monitors MLTC plans.  In order to submit a complaint to the department of health, a phone call or a letter detailing violation of the federal regulations must be made.  Here is an example of such typical complaint:

“Attention:  Department of Health Via Facsimile to 518-474-6961

Re: MLTC (name of the MLTC here) violation of the rights of (patient’s name here)

Please investigate MLTC actions as the are in violation of several Sections of 18 NYCRR and 42 CFR, including, but not limited to:

I. 18 NYCRR 358-2.2, which provides description of and adequate notice. The patient did not receive any notice about the service change, and service change was done retroactively

II. 42 CFR Subpart D Section 438.210, which provides that each contract with MCO, PIHP, or PAHP … may not arbitrarily deny or reduce the amount, duration, or scope of a required service solely because of diagnosis, type of illness, or condition of the beneficiary”. The patient was arbitrary denied

III. 42 CFR Subpart F, Section 438.400, which provides in part that: “Section 1902 (a) (3) requires that a State plan provide an opportunity for a fair hearing to any person whose claim for assistance is denied or not acted upon promptly.” Also, Section 1932 (b) (4) requires Medicaid managed care organizations to establish internal grievance procedures under which Medicaid enrollees, or providers acting on their behalf, may challenge the denial of coverage of, or payment for, medical assistance. The patient was denied an opportunity for a “fair hearing” as she never received adequate notice or access to her medical records.

  1. How do I request a Fair Hearing if my MLTC rejected my appeal of the Initial Adverse Determination?

Your MLTC Should provide you with appeal instructions from Initial Adverse Determination which has to include Department of Health compliant proceedings as well as Instructions and Important information about your right to Fair Hearing.

You have 60 days from the date of the notice to reduce your personal care (PCA hours) to ask for a Fair Hearing.  However, if your want your Health Care to stay the same until the fair hearing you have ONLY 10 days (!) to request a Fair Hearing.

To ask for a Fair hearing you can go online, call, mail, fax of walk in your request.  We usually suggest that such request be both Faxes and Mailed with return receipt requested.

To Mail Fair Hearing Request Form you must send it to:

New York State Office of Temporary and Disability Assistance
Office of Administrative Hearings
Managed Care Unit
PO Box 22023
Albany NY 12201-2023

  1. How do I fight Systemic Pattern of Unjustified Reductions in my case by the MLTC?

Medicaid Matters New York (MMNY) and National Academy of Elder Law Attorneys, NY Chapter NAELA) as well as elder lawyers observed a sharp increase in the number of clients reporting that their MLTC plans reduced their home care (PCA) hours since 2015 and until present.  The two groups mentioned above undertook a very detailed study of MLTC cases that went through all New York State office of Temporary and Disability Assistance Fair hearings and reviewed all the decisions involving “home care services” as well as Consumer Directed Personal Assistance (CDPA) services.

For a MLTC Medicaid Plan in New York city, call our Law Offices at (718) 333-2394.