NY Health Access About Us   |   Contact Us Empire Justice Center Legal Aid Society NYLAG WNYLC
Search:     Advanced search

Appeals & Grievances in Managed Long Term Care - Consumer Rights

Views: 4211
Posted: 25 Jan, 2013
by Valerie Bogart (New York Legal Assistance Group)
Updated: 24 Sep, 2013
by David Silva (New York Legal Assistance Group)

Consumers need to learn new procedures to appeal decisions by Managed Long Term Care plans than those they are used to from the longtime system of requesting hearings to appeal decisions by the CASA/Medicaid offices.  Now, consumers need to learn when to file a “GRIEVANCE” and when to file an “APPEAL.”  For Appeals, consumers need to request an INTERNAL APPEAL first before they request a FAIR HEARING

CAUTION - For most plans, one requests a grievance or appeal by calling the member services telephone line.  A consumer must be assertive in requesting that they be referred to file a Grievance or Appeal, and know the difference.  Otherwise, the call may never be routed or recorded as an appeal.  

CLICK HERE to DOWNLOAD A FACT SHEET ON APPEALS & GRIEVANCE RIGHTS IN MLTC by MEDICAID MATTERS NY

What is a Grievance?

A grievance is a complaint you make directly with the MLTC plan about the quality of care, services or treatment you received or about communications with the plan.   A grievance is not about the scope, amount or type of service that was approved by the plan. 

EXAMPLES where you would request a grievance: 

HOW TO FILE A GRIEVANCE:

You or someone on your behalf can file a grievance with the plan in writing, over the phone or in person.   Your member handbook or member services representative should explain how to file the grievance.

TIMING:  The plan must decide your grievance within 45 days after receiving the information they need to decide and no later than 60 days.  If you or your provider think that a delay in deciding the grievance would result in serious harm to your health or ability to function, you can request an expedited grievance.  The plan must decide expedited grievances within 48 hours of receiving information needed, and within no more than 7 calendar days. 

 If you are not satisfied with how your grievance is handled, or it is an emergency, you can also call the State Department of Health MLTC Complaint Hotline at 1-866-712-7197.

If you do not agree with the grievance decision you can file a grievance appeal. You must do so within 60 days of receipt of the grievance decision. Grievance appeals can also be expedited.

What is an Appeal?           

An Appeal is a request for a review of an action taken by a plan.  If your MLTC plan denies, reduces, or ends services that you think you should have, you have the right to appeal.   For example, the plan reduces your personal care services from 12 to 8 hours/day, or denies your request to participate in the Consumer-Directed Personal Assistance Program (CDPAP).  

You can appeal if the plan misses the deadline to decide your request for new services or for increased services.  These deadlines are explained in this article.  If the plan fails to issue a decision on your request for new or increased services by the required deadline, federal regulations specifically state that this constitutes a denial and is thus an adverse action, which can be appealed just as a written decision can be appealed.  42 CF.R. 438.404(c)(5).

The appeal process in MLTC is very different than the one that is familiar from appealing decisions of the local CASA/DSS office about personal care/home attendant services.  Now there are two steps of the appeal:

  1. First, you must request an internal appeal by the Plan.  The Plan will take another look at your service needs and will send you a letter with their decision.  This process is explained more below.

  2. Second, if you are not satisfied with the plan’s internal appeal decision, you can ask for a Fair Hearing.  At a Fair Hearing, also known as an administrative hearing, you can explain to an Administrative Law Judge, assigned by the State Department of Health, why the plan’s decision is wrong.   This hearing system is  the same one previously used to appeal CASA/DSS denials or reductions in home care services.  Both you and the MLTC plan can bring witnesses and documents.  The Administrative Law Judge will listen and make a decision.

HOW TO APPEAL A DECISION OF AN MLTC PLAN

The appeal process with MLTC is different than it was with CASAYou may NOT request a fair hearing right away.   If you receive a notice from the plan denying, reducing, or ending any of your services, or the plan tells you verbally that any services are denied or reduced, here are the steps of an appeal:

STEP 1     REQUEST AN INTERNAL APPEAL. 

In an internal appeal, a supervisor in the MLTC plan will review the decision made to reduce, deny or end your services.  

HOW TO REQUEST THE INTERNAL APPEAL:

You may either -

1.       Call the member services phone number of your plan.  Ask if you need to confirm your request in writing and ask for the address, fax number, and/or email, OR

2.       Write to your plan.  Write to Member Services return receipt requested and write APPEAL REQUEST on the envelope and on the letter.  Make sure you include your Member ID number, name, address, Medicaid number, phone number, and the reasons for your appeal. 

WHEN TO REQUEST THE INTERNAL APPEAL:

  • You should request it right away – within 10 days of the date of the notice or before the “effective date” on the notice – if you want your same hours or services to continue while the appeal is pending (called “aid continuing”). 

  •  Be sure to ask for aid continuing.   (See ALERT about Aid Continuing below).

  • You may still request the appeal within 45 days of the date of the notice, but you will not receive aid continuing  if you do not appeal within  the first 10 days. 

  • If you missed the deadline to request “aid continuing,” ask for the appeal to be expedited because a delay would jeopardize your health.  The plan must decide an expedited appeal within 3 days instead of 30 days.

YOU HAVE THE RIGHT TO EXAMINE AND RECEIVE COPIES OF YOUR CASE FILE for your appeal.

STEP 2     FAIR HEARING

If your internal appeal is denied, the MLTC plan will send you a written notice of its decision to deny your appeal, which will explain your right to request a fair hearing and/or an external appeal (an external appeal is explained in Step 3 below).  The notice from the plan should explain that if you request the hearing within 10 days and ask for aid continuing the plan will continue your services in the current amount – with no reduction -- until the hearing is decided. 

HOW TO REQUEST A FAIR HEARING:

§         In person:    14 Boerum Place (NYC) or, if you are outside NYC, your Local Department of Social Services         

§         By fax:         (518) 473-6735 (Download form http://otda.ny.gov/oah/FHReq.asp)

§         By telephone:  (800) 342-3334

§         Online:             http://otda.ny.gov/oah/FHReq.asp

§         By mail:            New York State Office of Temporary and Disability Assistance
                                   Office of Administrative Hearings
                                   P.O. Box 1930
                                   Albany, New York 12201-1930

Be sure to ask for AID CONTINUING when you request the hearing, to continue your services unchanged while the hearing is being held.  You must request the hearing quickly – within 10 days of the plan’s notice – to get Aid Continuing.    See ALERT about Aid Continuing on next page.

YOU HAVE THE RIGHT TO EXAMINE AND RECEIVE COPIES OF YOUR CASE FILE for your hearing.

STEP 3     REQUEST AN EXTERNAL APPEAL (OPTIONAL). 

The plan’s notice denying your Internal Appeal will explain your right to request an External Appeal, if the reason for the denial is because they determine the service is not medically necessary or is experimental or investigational.   You may request an External Appeal even if you also request a Fair Hearing.   External Appeals are reviewed by a different State agency than Fair Hearings.  If you request both an External Appeal and a Fair Hearing, the decision from your Fair Hearing will be the one that is followed by your plan.

***ALERT ABOUT 60-Day Transition Requirement and AID CONTINUING***

MLTC Policy 13.01 REVISED: Transition of Care for Fee for Services Participants in Mandatory Counties dated Feb. 6, 2013 --  further clarifies a previous  Jan. 17, 2013 Directive  -

Both the Jan. 17th and Feb. 6th directives remind MLTC plans that they are required to continue previously authorized long-term care services unchanged for 60 days when a consumer initially transfers into MLTC plans. This is called the Transition Period, required in the CMS Special Terms and Conditions approving the MLTC Waiver. p. 17 par. 28(d).  These directives remind plans of their obligation to provide notice before reducing services at the end of the 60-day transition period.  They must continue services unchanged during the internal appeal and until a hearing is decided, known as “Aid Continuing,” when a member appeals the plan's proposed reduction e or terminate a service.  

The directive states: 

This means that, for any individual receiving fee for service Medicaid community based long term
services and supports and enrolling under any circumstance, the plan must provide 60 days of continuity
of care. Further, if there is an appeal or fair hearing as a result of any proposed Plan reduction,
suspension, denial or termination of previously authorized services, the Plan must comply with the aid
to continue requirement identified above. In particular, if the enrollee requests a State fair hearing to
review a Plan adverse determination, aid-to-continue is to be provided until the fair hearing decision is
issued.
The revised directive of Feb. 6th clarifies that the requirement to continue past services unchanged for the first 60 days of MLTC enrollment applies to these services: 
  • Personal care (home attendant and housekeeping in NYC)

  • Consumer-Directed personal assistance (CDPAP)

  • Home Health (CHHA) services

  • Adult Day health Care

  • Private Duty Nursing

The revised directive of Feb. 6th also clarifies that the initial appeal of a proposed reduction in services is an INTERNAL APPEAL within the plan.  Only if that decision is adverse, in whole or in part, does the consumer have the right to request a FAIR HEARING.   

The revised directive of Feb. 6th includes a SAMPLE NOTICE to be used by MLTC plans  -- until now, the State had not issued any type of model notice, resulting in inconsistent and inadequate notices drafted by every plan.  

AID CONTINUING --  The plan must give “Aid Continuing” if the consumer TIMELY appeals the reduction, both at the INTERNAL APPEAL level and through the FAIR HEARING process 
If an MLTC plan reduces or terminates services after the initial 60-day transition period after an individual first transitions from CASA/DSS home care to an MLTC plan,  the State requires the plan to give “Aid Continuing” if the consumer appeals the reduction.  

Since this policy has not been made clear before, advocates expect problems with compliance.  

If you do not receive Aid Continuing when you appeal a reduction or termination of services, please contact one of the STATEWIDE or NEW YORK CITY ADVOCATE organizations listed below. 

LEGAL AUTHORITIES:

NYS DOH Model Contract -Partial Capitation Plans - Appendix K

N.Y. STATE DEP’T OF INSURANCE, EXTERNAL APPEALS

NYS Public Health Law § 4403, 4403-f

CMS Special Terms and Conditions approving the MLTC Waiver (amended Sept. 2012) 

NYS DOH MLTC Policy 13.01 REVISED: Transition of Care for Fee for Services Participants in Mandatory Counties dated Feb. 6, 2013

WHERE TO GO FOR HELP 

Government Hotlines

NYS Department of Health MLTC Complaint Hotline      
(866) 712-7197
New York Medicaid Choice (for enrollment problems)                 
(888) 401-6582
Fair Hearing Requests (must wait until after internal appeal decision)
(800) 342-3334

STATEWIDE ADVOCATES

The Legal Aid Society Health Law Help-line:      
      NYC                                   
(212) 577-3575
      Outside NYC   
(888) 500-2544
Community Health Advocates Hotline 
(888) 614-5400
Empire Justice Center
(585) 454-6500
Find other organizations throughout NYS (by zip code or population)

ADVOCATES for New York City Only

New York Legal Assistance Group                                                                          
(212) 750-0800
Cardozo Bet Tzedek Legal Services                                                                         
(212) 790-0240
Selfhelp Community Services                                                                   
(212) 971-7658
Services for people Age 60+ by Borough:
                Legal Aid Society Brooklyn Office for the Aging   
(718) 645-3111
                JASA/ Queens Legal Services for the Elderly            
(718) 286-1500
                Bronx Legal Services
(718) 928-3700
                Manhattan Legal Aid for Seniors Project - Above 110th Street
(212) 822-8300
                                                        Senior Intake Line -  Below 110th Street            
(212) 417-3880
                Staten Island                                                                                                          
(718) 233-6480


NOTE:  Some of the organizations listed above give only advice, not legal representation.

NON-LEGAL ADVOCACY ORGANIZATIONS

There are other organizations who can provide non-legal advocacy assistance, such as independent living centers.  For a list of local centers, visit http://www.nysilc.org/directory.htm.

Attached files
file MLTC Policy 2013 01 17 Aid Continuing.pdf (66 kb)
file MMNY - MMC Fact Sheet Advocate - MLTC 2 Appeals 8-2014.pdf (516 kb)

Also read
document SDOH Transitional Care Policy
document Managed Long Term Care
document Tools for Choosing a Medicaid Managed Long Term Care Plan
document Applying for Medicaid Personal Care Services in New York City - BIG CHANGES SEPTEMBER 2012
document Grievance and Appeal Contacts for Managed Long Term Care Plans
document Statistics on Medicare and Medicaid Managed Care -- Enrollment Numbers and other Data -- New York State
document New Permanent Nursing Home Residents in NYS will be Required to Enroll in Medicaid Managed Care Plans or MLTC Plans - Effective Date postponed til January 2015

Also listed in
folder Medicaid -> Home Care
folder Medicaid -> Medicaid Managed Care

Prev   Next
Court Strikes Down Restrictions in Medicaid Coverage for...     New York Medicaid Expansion under the ACA ... and other 2013...


This site provides general information only. This is not legal advice. You can only obtain legal advice from a lawyer. In addition, your use of this site does not create an attorney-client relationship. To contact a lawyer, visit http://lawhelpny.org. We make every effort to keep these materials and links up-to-date and in accordance with New York City, New York state and federal law. However, we do not guarantee the accuracy of this information. To report a dead link or other website-related problem, please e-mail us.