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New Law Requires 7-Day Medicaid Application Approval if "Immediate Need" for Personal Care or CDPAP - Addresses Delays in Enrolling in MLTC Plans.

Views: 12685
Posted: 16 Sep, 2014
by Valerie Bogart (New York Legal Assistance Group)
Updated: 28 Oct, 2016
by Valerie Bogart (New York Legal Assistance Group)

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.  

On Oct. 24, 2016 - NYS DOH issued a Q & A about the new Immediate Need Procedure - 2016 LCM-02 - Immediate Need for Personal Care Services and Consumer Directed Personal Assistance Program (CDPAP). The Q&A clarifies that the local district is required to process the Medicaid application and the assessment of need for home care concurrently.

On Oct. 19, 2016, HRA issued a new Procedure Alert, replacing one issued on 9/23/16 that was released in error.    Download the new policy  - 2016-10-19 MICSA ALERT re Immediate Need for PCS and CDPAP.pdf

The policy requires use of a new  NYC HRA  Transmittal Form, released Sept. 23, 2016, when submitting applications.

About the 2015 Law  

What is the 2015 law?  The law enacted April 1, 2015 required 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

The Regulations add new sections 18 NYCRR 505.14(b)(7) and (8)  (PCS) and 505.28(k) an (l) (CDPAP), published in NYS Register 5/25/2016. See more here.

What happened in July 2016?  The New Procedures Go Live!

In July 2016, the NYS Dept. of Health issued a comprehensive directive implementing the 2015 law.  16ADM-02 - Immediate Need for Personal Care Services and Consumer Directed Personal Assistance Services (PDF) (Attachment)   The State directive requires local Medicaid offices to process and approve a Medicaid application in SEVEN DAYS, and authorize personal care or CDPAP services in TWELVE DAYS, if there is an immediate need for these services.  These procedures are explained below.   

The Dept. of Health also posted information about these new procedures on its Medicaid website: Click here:

The New Procedures to Get Medicaid Approved in 7 Days and Personal Care or CDPAP Services Authorized in 12 days - new in July 2016!

a.  Who can Use the New Procedures?

These directives make an important change for any adult who has Medicare who needs Medicaid home care, and apply to:

  1. Individuals who do not already have Medicaid - whether they are only now first applying, or already have a Medicaid filed and pending.

  2. Individuals who already have  Medicaid but not coverage of community-based long term care (they "attested" as to the amount of their assets and did not submit "Supplement A" with the application [DOH-4495A except in Suffolk, Albany, or  Schoharie Counties - there use Form DOH-5178A)(alternate languages and formats of forms posted at this link

  3. Individuals who have a Medicaid case at NY State of Health (NYSoH or the "Marketplace" or "Exchange") under the Affordable Care Act, who are not in a managed care plan.  Their Medicaid must be transferred from NYSOH to the Local Medicaid office through procedures described in pages 5-6 of the ADM - the transfer can only be initiated with an email to hxfacility@health.ny.gov. Procedures still unclear.

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 if You have an Immediate Need for Personal Care
      or CDPAP Services

See new  Transmittal Form dated Sept. 23, 2016.  See the new HRA Procedure released 10/19/16 .

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;

  1. In NYC, use new HRA HCSP Transmittal Form HCSP -3052

  2. Medicaid application with all required documents.  This must include "Supplement A"  (DOH-4495A except in Suffolk, Albany, or  Schoharie Counties - there use Form DOH-5178A)(alternate languages and formats of forms posted at this link).  See more about Medicaid eligibility here.
    • If you already have Medicaid, submit the approval notice and the CIN number. 
    • If an application was already submitted and is pending, submit a copy of it along with all documentation, and proof of when and where it was filed. 
  3. Physician's order/ Form M11q in NYC - Must be current, seen by and signed by doctor within last 30 days.  See tips at Q-Tips  (these are designed for NYC form but can be adapted for any county)(Find the form used in your county. Some forms outside NYC available here.

  4. Attestation of Immediate Need (OHIP 0103) -- Consumer must  sign this form to attest to immediate need. The form requires you to attest that:
    1. You have no informal caregivers available, able and willing to provide or continue to provide needed assistance; 
    2. You are not receiving needed help from a home care services agency;  
    3. You have no adaptive or specialized equipment or supplies in use to meet your needs; and
    4. You have no third party insurance or Medicare benefits available to pay for needed help.

Note that the form says family or home care agency not providing "needed assistance," so that if they can give some assistance you can still apply if that assistance is not enough.  Also if they 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. 

  1. a Cover letter that explains the particular nature of the "immediate need" for services,
  • status of the Medicaid application if previously approved or filed,
  • how the applicant was managing previously and what precipitated the need for Immediate Needs consideration.
  • whether there are other services in place and if there are informal supports available, or if they were available explains they are no longer available .  

  1. Married applicants seeking spousal impoverishment budgeting can request it with the initial application and should receive it pending MLTC enrollment as explained in the ADM. This is a change from the State Health Department's earlier policy, which only allowed a married individual to request spousal impoverishment budgeting after he or she was already enrolled in an MLTC plan.  Before, many married applicants needed to submit a Spousal Refusal form with the application, and later request spousal impoverishment budgeting.
  • Use the DOH  "Request for Assessment" form to request spousal budgeting (page 9 of this link)

  1. HIPAA release - OCA Form No. 960 - Authorization for Release of Health Information Pursuant to HIPAA

c.   What Happens After I Submit the Application Package?

  1. The Q & A issued Oct. 26, 2016 by the NYS Dept of Health  - 2016 LCM-02 - Immediate Need for Personal Care Services and Consumer Directed Personal Assistance Program (CDPAP). - clarifies that the local district is required to process the Medicaid application and the assessment of need for home care concurrently.

  2. Within FOUR days of receiving the application -- the local Medicaid office must determine if the application is complete;

  3. Within SEVEN CALENDAR days of receiving a complete application -- the local Medicaid office must reach a determination as to eligibility for Medicaid;

  4. Within TWELVE CALENDAR days of receiving a complete application, the local Medicaid office must:

    • conduct a social and nursing assessment of client in her home,

    • determine whether she is eligible for personal care or CDPAP services,

    • authorize services and notify the applicant of the amount authorized. 

  1. The Medicaid office must assign the case to a contracted Medicaid agency or CDPAP fiscal intermediary and arrange for services to be provided  “as expeditiously as possible."

  2. After the home care services are provided for 120 days, the individual will receive a notice from New York Medicaid Choice, a state contractor that serves as the enrollment broker for all managed care programs.  The notice will explain that she needs to select and enroll in an Managed Long Term Care (MLTC) plan within 60 days, and if she does not select one, she will be auto-assigned to one. 

BACKGROUND:  Causes of Delays for new Medicaid Applicants to  Enroll in Managed Long Term Care Plans - Before the New Law

  1. Normally Medicaid office has 45 days to process an application -- and sometimes 90 days.  See this article on these deadlines and this article for information about how and where to file these  applications in New York City, and this fact sheet with tips for applications..   It can often take longer.  Before the July 2016 directive,  the "front door" was closed at the local Medicaid program to request Medicaid personal care services from the local Medicaid agency. Anyone who had Medicare had to apply for Medicaid at the local Medicaid agency, but then had to enroll in a Managed Long Term Care plan to get home care.   

    • July 2016 -  NEW 7-DAY APPROVAL TIME FOR MEDICAID!  

  1. Next, most adults  who have Medicare must request a "conflict free" eligibility assessment from New York Medicaid Choice, a company under contract with the NYS Dept. of Health.  This company determines if they are eligible for long term care.  It can take 2 weeks to set up that assessment.  If they are found eligible --
  2. Next they must contact different managed long term care plans and request they schedule an assessment in the home, at which time the individual can enroll.  However, the plan must submit the signed enrollment forms by the 18th of the month in order for enrollment to start on the 1st of the following month.  IF they miss that deadline, it delays enrollment in an MLTC plan a whole month.   See contact lists for MLTC plans here (look only at Long-Term Care Plans at that link)

  3. Further delays can be caused it the individual has a "spend-down" -- then the plan must often request the local Medicaid program to change the Medicaid eligibility codes in the computer system - a process called a "conversion."   These procedures and forms are explained in this fact sheet.

MORE BACKGROUND:   State Law Historically Authorized Temporary Services Pending the Medicaid Application -- But is Still Tied up in Litigation over Recent 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. 

2015 Amendment to State Law and Regulations to Expedite Medicaid Applications in 7 Days --  and Authorize Home Care for those with Immediate Need in 12 Days

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).  

Attached files
file 2016-09-23 Immediate Need transmittal Form.pdf (225 kb)
file 16adm2.pdf (324 kb)
file 16adm2att.pdf (299 kb)
file NYLAG Comments Immediate Need PCS 12-9-2015.pdf (191 kb)
file Q-TIPS 4-10.pdf (155 kb)
file HCSP-M11q (12-9-2014)Fill-in-able.2.pdf (137 kb)
file Troubleshooting - 4-16-15 pp.pdf (2.11 mb)
file NYLAG Comments Immediate Need PCS.pdf (447 kb)
file MAP-2161 Spousal Refusal combined.pdf (172 kb)
file NYLAG Comments Immediate Need PCS FINAL.pdf (534 kb)
file 2016-10-19 Immediate Need for PCS and CDPAP.pdf (220 kb)

Also read
document Medicaid Personal Care or Home Attendant Services
document Applying for Medicaid Personal Care Services and CDPAP Outside NYC - 2016 Changes
document Medicaid Consumer Directed Personal Assistance Program (CDPAP) in New York State
document Managed Long Term Care
document New Application Form (2010, updated 3/2015) Used for Medicaid, Child Health Plus and Family Health Plus in New York State
document KNOW YOUR RIGHTS: Fact Sheet Explaining Basic Rules on NYS Financial Medicaid Eligibility for People who are Disabled, Aged 65+, or Blind
document Spousal Impoverishment Protections for Married Couples where One Spouse is in a Managed Long Term Care Plan - Pooled Trusts Allowed as an Option
document Delays in Processing of Medicaid Applications - What are Your Rights and Lawsuits Challenging Delays
document Applying for Medicaid Personal Care or CDPAP Services in New York City - 2016 Changes
document Know Your Rights: NYLAG Webinars on Medicare and Medicaid -

Also listed in
folder Medicaid
folder Medicaid -> Applying For and Keeping Medicaid

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