People who apply for Medicaid in order to obtain home care services face long delays in getting Medicaid approved and then accessing home care services from a managed long term care plan. Click here to learn about the reasons for these delays. A New York law passed in 2015 that is being implemented in July 2016 should help speed up approval of Medicaid in only SEVEN DAYS and Medicaid home care in TWELVE DAYS if there is an "immediate need" for home care. This article describes this new procedure and other strategies to minimize these delays.
KNOW YOUR RIGHTS - Download this Fact Sheet with Key Forms for Immediate Need.
Law & Regulations
A 2015 law requires the State Medicaid agency to set up procedures for Medicaid applications to be processed and approved in SEVEN CALENDAR DAYS if there is an "immediate need" for personal care services or consumer-directed personal assistance services (CDPAP). NY Soc. Serv. L. §366-a(12). It took a year for the State to set up these procedures, after soliciting comments from the public.
DOH Directives and FAQ's Implementing Immediate Need
NYC HRA ALERTS AND FORMS on IMMEDIATE NEED
Procedures to Get Medicaid Approved in 7 Days and Personal Care or CDPAP Services Authorized in 12 days
a. Who can Use the New Procedures?
Any adult who has Medicare who needs Medicaid home care can use these procedures, including:
Anyone applying for Medicaid should receive this Fact Sheet (page 2 of this link) explaining their right to apply under the new procedures and request Immediate Need Personal Care or CDPAP services. This is required by the ADM. Note: the Fact Sheet includes a web address to download the Medicaid application forms at the NYS Dept. of Health website, but not the M11Q or any other form to be used as a physician's order.
b. How to Apply for Medicaid (or How to apply for Personal Care if you already have Medicaid) and if You have an Immediate Need for Personal Care or CDPAP Services
Download this FACT SHEET that summarizes these procedures.
Submit the following package to the local Medicaid office in your county.
WHERE: In New York City, submit the package to the HRA--HCSP Central Medicaid Unit
HRA--HCSP Central Medicaid Unit
785 Atlantic Avenue, 7th Floor
Brooklyn, NY 11238
. E-Fax a copy of the complete application and all documents to HRA HCSP 1-917-639-0665;
FAQs issued in 2019 LCM-02 - Immediate Need for Personal Care Services and Consumer Directed Personal Assistance Program (CDPAP) - FAQ's clarify that if Medicare or private pay providing some but not all needed assistance, then still qualifies for Immediate Need. FAQ also says the attestation form is "self-authenticating" - DSS cannot demand proof of need if attested to. Also if family cannot continue to provide the assistance, you can still apply. If the consumer writes in any notations on the form, she or he should initial them, and explain the particular facts in a COVER LETTER.
NOTE that Attestation Form specifically states may be submitted while applicant in the hospital or a skilled nursing facility.
c. What Happens After I Submit the Application Package?
BACKGROUND: Causes of Delays for new Medicaid Applicants to Enroll in Managed Long Term Care Plans - Before the New Law
MORE BACKGROUND: State Law Historically Authorized Temporary Services Pending the Medicaid Application -- Litigation Challenged Amendments to the Law
A lawsuit filed in 2007 and still pending -- Konstantinov v. Daines -- asserts that Medicaid services must be authorized while a Medicaid application is still pending, before it is accepted, if there is an immediate need for services. The lawsuit focuses on Medicaid personal care services, and was brought before the transition to Managed Long Term Care. Since the lawsuit was filed, the legislature has amended the state law upon which the lawsuit is based repeatedly, most recently in April 2015. The state contends that the 2015 amendments to state law eliminate the authority for providing any Medicaid applicant with services before their application is approved. However, the 2015 amendments now require new procedures to approve Medicaid applications in just seven days. As of December 21, 2015, these procedures are still not established. In 2015, the State had reminded local Medicaid offices of procedures in a directive, GIS 15 MA/011 - Reminder of Expedited Authorization Process for Medicaid Recipients with Immediate Need for Personal Care Services -- PDF. These only helped people who already had Medicaid. Before 2016, however, there was no way to speed up the processing of the Medicaid application faster than 45 days.
Brief history of lawsuit
A 2010 court Order directed the NY State Dept. of Health to establish a procedure for certain needy Medicaid applicants and recipients to obtain immediate temporary personal care services while their Medicaid application was pending. Konstantinov v. Daines, 2010 WL 7746303 (N.Y. Sup. 2010, Hon. Joan Madden). The State was further ordered to provide Medicaid applicants with notice of the availability of these services. The lawsuit was brought by Aytan Bellin, Esq., a private elder law attorney practicing in Westchester and New York City.
The Court order was upheld on appeal in 2012. 101 A.D.3d 520, 522 (1st Dept. 2012). In 2013 the State moved to vacate it because of new legislation enacted -- SSL § 364-(i)(7), which the State contended limited the impact of the decades-old law upon which the Court's 2010 decision was based. That law -- NY Social Services Law Sec. 133, in its current form states:
"Upon application for public assistance or care under this chapter, the local social services district shall notify the applicant in writing of the availability of a monetary grant to meet emergency needs assistance or care and shall, at such time, determine whether such person is in immediate need. If it shall appear that a person is in immediate need, emergency needs assistance or care shall be granted pending completion of an investigation. The written notification required by this section shall inform such person of a right to an expedited hearing when emergency needs assistance or care is denied. A public assistance applicant who has been denied emergency needs assistance or care must be given reason for such denial in a written determination which sets forth the basis for such denial."
By order dated March 12, 2014, Justice Madden denied the Department’s motion to vacate her July 2010 Order, and ordered the State to propose regulations to implement the Order. Konstantinov v. Daines, 2014 N.Y. Misc. LEXIS 1137; 2014 NY Slip Op 30657(U),
2014 Proposed Regulations
To comply with the Court Order, the State published proposed regulations to by which Medicaid applicants and recipients may obtain “immediate temporary personal care services,” The regulations were published in the July 16, 2014 State Register p. 20. NYLAG, Empire Justice Center, the Legal Aid Society and other consumer advocates filed comment in support of the regulations, but recommending that the procedure be adapted in light of the sweeping changes in the delivery of Medicaid personal care services. When the 2010 court order was issued, these services were authorized by local county Medicaid programs, such as HRA in New York City. Now, managed long term care plans are charged with authorizing and delivering these services. The proposed regulations would use the old system to provide the temporary services, with the local Medicaid offices conducting the assessment process.
In February 2015, after reviewing the comments, the State issued revised proposed regulations, specifically citing NYLAG's comments. to the 2014 proposed regulations. Again, NYLAG and other organizations filed comments.
In April 2015, State law was amended in to require the State Dept. of Health to establish procedures to process a Medicaid application in SEVEN DAYS of the filing of a complete Medicaid application, for any applicant with an immediate need for personal care or consumer-directed personal assistance services. N.Y. Social Services Law §366-a(12). The State Department of Health went back to court contending that this and another change in section 133 of the Social Services Law meant that the State no longer needed to publish regulations establishing an expedited procedure for authorizing personal care services for new applicants for Medicaid.
In July 2015, the State Supreme Court Justice hearing the Konstantinov case rejected the State's argument with respect to Medicaid recipients -- those whose applications were already accepted. For Medicaid applicants, whose applications were still pending, the Court "stayed" or postponed the requirement for the State to issue regulations. As to Medicaid recipients -- these persons already on Medicaid -- in immediate need, Justice Madden ordered that the regulatory procedure begun July 2014 continue. That means that DOH was required to issue final regulations concerning Medicaid recipients on July 16, 2015, which is one year after the Notice of Proposed Rulemaking was published, or must issue a second revised notice of proposed rulemaking on July 16, 2015 with the final Rules to be issued by October 14, 2015.
On July 1, 2016 new regulations become effective that will require that Medicaid applications be processed and approved in SEVEN CALENDAR DAYS if there is an "immediate need" for personal care services or consumer-directed personal assistance services (CDPAP). The regulations implement a new law enacted April 1, 2015. NY Soc. Serv. L. §366-a(12).