 |
||||||||||||||||||||||||||||
|
This article describes New York's Medicaid and related programs and lays out financial eligibility rules in an outline format with citations to federal law, state law, and sub-regulatory resources. It also explores the federal underpinnings for New York's major public health insurance programs and how due process rights can vary in different settings.
I. The Federal Medicaid Program
Medicaid was created under federal law as a joint, federal-state entitlement program. Individuals have a legal right to payment for covered services that are medically necessary. Also, states have a legal right to federal contributions to state expenditures. See 42 U.S.C. § 1396 et seq., 42 C.F.R. § 430 et seq.
Not surprisingly, federal payments to the states come with conditions. Most notably, federal law requires all participating states to provide a minimum level of services, referred to as “mandatory services,” to specified “mandatory” populations of low-income persons.
A. Mandatory populations are children, caretakers, and the elderly, blind and disabled.
B. Mandatory services are:
1. hospital services,
2. physician services,
3. laboratory services,
4. nursing home service (for those over 21).
5. For children, states must provide early and periodic screening and diagnostic services, as well as treatment for any conditions discovered. These services for children are referred to as EPSDT. See 42 CFR §441 Subpart B.
C. Services must be provided in an amount, duration and scope sufficient to achieve their purpose.
D. Services must be furnished with reasonable promptness.
E. Services received by one mandatory group or geographic area must be comparable to what others receive.
F. Medicaid must be the payer of last resort and is payment in full.
G. States must describe their Medicaid programs in formal state plans, which are submitted to the federal Center for Medicare and Medicaid Services (CMS) for approval.
H. Federal law does allow states to experiment with new and different ways of structuring health care services for the low-income by proposing waivers to CMS for approval.
II. New York’s Medicaid Program
“If you’ve seen one Medicaid program, you’ve seen one Medicaid program.” New York’s is quite unique in both complexity and breadth. NY Medicaid is actually a conglomeration or patchwork of different public health programs, each governed by different state statutes, regulations and sub-regulatory administrative directives [guidance issued by the New York State Department of Health (NYSDOH) to the local counties, which are charged with determining eligibility].
It is important to be aware of which program your client is participating in or qualifies for because there are some major differences. Differences in scope of services will be covered below. Another major difference to keep in mind is that Regular Medicaid provides coverage retroactively for three months prior to the month of application. The same is not true in Family Health Plus or Child Health Plus.
New York’s major public health insurance programs include:
A. Medicaid (termed Medical Assistance by state statute, often referred to as “Regular Medicaid”)
Regular Medicaid is available in New York to children, caretaker adults and the elderly and disabled, as well as single adults and childless couples (at lower income levels). Regular Medicaid is described in New York’s State Plan and codified at N.Y. Soc. Serv. L. §§ 122, 131, 363- 369-1; 18 N.Y.C.R.R. § 360, 505. Regular Medicaid does provide retroactive coverage.
The health care services clients can access under Regular Medicaid go well beyond the minimum services required of all states. The types of services NY Medicaid covers include:
For a more detailed listing, see NY Soc. Serv. L. §365-a(3). Most clients must receive Medicaid services through a managed care plan. For information on Mandatory Medicaid Managed Care, see Section II of Empire Justice Center’s training outline, “Medicaid 201:Accessing Care.” This outline will be posted on nyhealthaccess.org and empirejustice.org as soon as updates are completed.
B. Family Health Plus (FHPlus)
FHP is an extension of New York’s Medicaid program that provides health coverage for adults who are over-income for regular Medicaid. FHPlus is described in New York’s 1115 waiver and codified at N.Y. Soc. Serv. L. §369-ee. Services are provided through managed care plans only and do not include long term care. FHP does not provide retroactive coverage.
C. Child Health Plus (CHPlus)
CHP is a sliding scale premium program for children who are over-income for regular Medicaid. CHPlus is codified at N.Y. Pub. Health L. §2510 et seq. Eligibility is determined by health plans under contract with NYSDOH. Services are provided through managed care plans only and do not include long term care. CHP does not provide retroactive coverage.
D. Other Programs include:
Emergency Medicaid covers treatment for emergency medical conditions for undocumented immigrants and non-citizen, non-immigrants, as long as they satisfy all other eligibility requirements for Medicaid. Residency becomes an issue for those here on temporary visas. Emergency Medicaid does provide retroactive coverage.
An emergency medical condition is narrowly defined as a condition that, after sudden onset, has acute and severe symptoms which if left untreated could place the applicant’s health in jeopardy. See N.Y. Soc. Servs. L. § 122(1)(e); 00 OMM/ADM-9 and 04 OMM/ADM-7.
2. Prenatal Care Assistance Program (PCAP) - Now Referred to as Medicaid Prenatal Care Services
Access to prenatal care services and the benefits of what was formerly called PCAP, has been expanded to include all prenatal care providers participating in the Medicaid program. In addition to all former PCAP providers, all Medicaid enrolled Article 28 prenatal care providers must now perform presumptive eligiblity determinations, assist with Medicaid applications and help with Medicaid managed care plan selection for pregnant women. The expanded prenatal care income eligiblity standard of up to 200% of the federal poverty level, regardless of immigration status continues. Once presumptive eligiblity has been established, all prenatal care providers participating in the Medicaid program must provide prenatal care services. For additional information on expanded access to service for pregnant women, see the NYS Medicaid Update Prenatal Care Special Edition - Clarification April 2010.
3. Family Planning Benefit Program (FPBP)
FPBP was created as part of the 1115 waiver that also created the FHPlus program in New York. FPBP provides family planning services, including birth control and emergency contraception, to women of child-bearing age up to 200% of the federal poverty level. Other health services may be covered as well, when related to family planning decisions. FPBP is codified at N.Y. Soc. Serv. L. § 366(1)(a)(11).
The MBI-WPD program provides full Medicaid coverage to people with disabilities who are working, at incomes levels significantly above the income level for Regular Medicaid. The MBI-WPD program is codified at N.Y. Soc. Serv. L. §366(1)(a)(12). MBI-WPD does provide retroactive coverage.
Implementation of the program remains problematic at the county level, despite numerous administrative directives from the State Department of Health to the local social services districts.
5. Medicaid Cancer Treatment Program (MCTP)
In order to be eligible for this program, clients must be in need of treatment for breast, cervical, colorectal or prostate cancer, and must have been screened by agencies participating in the New York State Cancer Services Program. For a list of participating local organizations, check the NYSDOH website at http://www.nyhealth.gov/nysdoh/cancer/center/cancerhome.htm
In MCTP, uninsured people with income up to 250% of the federal poverty level can receive full Medicaid benefits, including medically necessary prescription drugs and transportation, for as long as they need cancer treatment. The MCTP is codified at N.Y. Soc. Serv. L. §366(4)(v).
6. Medicare Savings Programs (MSP)
This catch-all term refers to three separate Medicaid programs, QMB, SLMB and QI-1. These programs help Medicare recipients with incomes up to 135% of poverty pay their Medicare premiums, and at lower income levels, other cost-sharing obligations. See, N.Y. Soc. Serv. L. §367-a(3)(a), (b) and (d).
MSPs also automatically qualify recipients for the Medicare Part D Low Income Subsidy, which significantly reduces out-of-pocket costs for prescription drugs. Of the three MSP programs, only QMB provides retroactive coverage.
E. Sources of Sub-regulatory law
Administrative directives governing these programs are posted on the NYSDOH website at http://www.health.state.ny.us/health_care/medicaid/publications/
Other valuable sources of state policy for local district implementation of the Medicaid program include:
All of these publications are available on the NYSDOH website at:http://www.health.state.ny.us/health_care/medicaid/reference/index.htm Sub-regulatory law governing CHP is harder to access because directives issue directly from NYSDOH to the plans are not posted on the web currently. You will find model contracts and providers rules on nyhealthaccess.org at http://wnylc.com/health/entry/93/ . See also the fall 2009 Legal Services Journal for a primer on the program. III. Financial Eligibility for Medicaid in New York
A. Eligibility Categories.
Different population or eligibility categories are subject to different income and resource limits in order to qualify for Medicaid. This complexity grows out of the program’s historical connection to welfare and provisions of federal law that limit federal Medicaid funding to populations historically considered more “deserving.” Federal health care reform is likely to make fundamental changes to these kinds of provisions.
For an updated chart that pulls together income and resource levels for the different programs and populations in New York, visit the NYCHuman Recources Administration website and click on the links for the income chart.
B. Medicaid Budgeting.
To make matters even more complicated, different categories of applicants and recipients are subjected to different Medicaid budgeting rules. These budgeting rules vary in terms of what kinds of income/resource disregards are available and how household size is determined.
The different budgeting rules are drawn from the rules used for related cash assistance programs. For example, elderly and disabled applicants use the budgeting rules that apply to Supplemental Security Income (SSI), while caretakers and children use budgeting rules for TANF ( Temporary Assistance to Needy Families) related programs. See NYS Medical Assistance Reference Guide, Sections I & II.
Applicants who qualify for both SSI and TANF (often referred to by the acronym that predated TANF, “ADC”) related budgeting have the right to choose the most favorable budgeting rules.
1. Household Size
Determining household size is the first step in Medicaid budgeting.
a) For SSI-related clients, household size is either one or two, as explained in this SSI-Related Household Size Chart. Factors include:
(i) whether the client lives with a spouse,
(ii) whether the spouse receives SSI income,
(iii) whether the spouse’s income exceeds “allocation amount” ($350 in 2009), and
(iv) whether there are children living in the household
b) For TANF-related (ADC-related) clients (and safety-net clients), household size is the number of persons in the household who are applying for Medicaid (excluding any PA/SSI recipients) AND those who are legally responsible relatives of the applicant.
2. Counting Income and Resources.
Income is determined by adding together all money, earned and unearned, that is available to everyone in the household. Sources of income that are counted include wages, Social Security, pensions, Unemployment, and child support. Some income of legally responsible relatives not in the household will also be deemed available to the applicant.
Resources are savings and other property that is available to members of the household. Income that is not spent in the month received becomes resources going forward. Effective Jan. 1, 2010. there is no longer any resource limit for many Medicaid recipients -- those under age 65 who are not disabled or blind.
Some types of income and resources will be disregarded or subtracted from these totals. The rules for which kind of income/resource can be disregarded vary by the eligibility category of the applicant, just as household size does. Some of the most important income disregards are as follows:
a) Earned Income – TANF related applicants disregard the first $90 of earned income. SSI related applicants can disregard the first $65 of earned income and ½ of the earned income that remains after all other deductions are applied.
b) Unearned Income – All applicants can disregard money deemed available but actually received by other household members if it is based on need. SSI related applicants can also deduct the first $20 of unearned income. They then deduct
c) In-Kind Income – This rule applies across eligibility categories. In most instances, unless the recipient actually earns in-kind Income by performing some kind of service in return, in-kind income is disregarded for Medicaid purposes. The exception to this rule is in-kind income provided by a legally responsible relative who lives outside the household.
For a complete list of income disregards by eligibility category see the income disregards chart and resource disregards chart, based on SSL §366.4(a), 18 NYCRR §§360-4.6 - 4.7; MARG Section II.
There is no penalty for transferring resources prior to applying for Community Medicaid services, which include home care, personal care, CDPAP and Medicaid assisted living programs. This is true even for single adults and childless couples (this last being a fairly recent legislative change).
Also, there is no transfer penalty for Medicaid’s waiver programs, even where eligibility is dependent on need for institutional level care in programs like the long term home health care program (Lombardi), the Traumatic Brain Injury Program (TBI), and the Nursing Home Transition and Diversion Wavier (NHTDW).
However, applicants for Institutional Medicaid, or nursing home care, are subject to a penalty period if a transfer was made for less than fair market value within five years before long term care services begin, or the application is filed, whichever is later. The applicant will be disqualified for a period of time equal to the value of the transfer divided by the monthly cost of nursing home care in the applicant’s region.
Exceptions to the transfer penalty include circumstances where application of the penalty would result in undue hardship, which is very difficult to establish, and where transfers were of the applicant’s home to a spouse, or to a disabled child who cared for the transferor for at least two years prior to institutionalization, or a sibling with equity interest who has lived in the home for at least one year.
C. Spend down
Federal law allows states to use a program called spend down to extend Medicaid to “medically needy” persons in the federal mandatory categories (children, caretakers, elderly and disabled people) whose income or resources are above the eligibility level for regular Medicaid. See 42 USC § 1396(a)(10)(ii)(XIII).
Under spend down, applicants in New York’s Medically Needy program can qualify for Medicaid once their income/resources, minus incurred medical expenses, fall below the specified level. Spend down is not available to single adults and childless couples and is not available to any participants in FHP or CHP.
Spend down rules are complicated -- see Spend-down training materials. In brief: :
1. Need only incur medical expenses – not actually pay bills.
2. Expenses can be incurred on behalf of anyone in the household.
3. Medicaid with spend down is certified for a period of between one and six months – depending on district practice.
4. For inpatient hospital bills, Medicaid requires recipients to be responsible for SIX months of income spend down before bills are paid by Medicaid.
5. Paid expenses cannot be carried over into the next budgeting period– unpaid expenses can.
6. New applicants can use old bills, as long as the bill is still viable.
7. Expenses that can be counted include:
a) Medicare & other insurance cost-sharing
b) Expenses for medical and remedial services NOT covered by Medicaid
c) Expenses paid for by public non-Medicaid funded programs (including EPIC, ADAP, OMH)
d) Expenses for medical and remedial care that ARE covered by Medicaid
IV. Applying for Medicaid
A. Where to apply-- (For NYC, see this article).
1. Where to apply depends on your client’s eligibility category and circumstances:
a) SSI recipients do not have to apply for Medicaid as they receive it automatically. If SSI terminates, these clients should receive a notice that tells them they need to recertify as Medicaid-only. See 18 NYCRR § 360-2.b.Medicaid should continue without interruption.
b) PA recipients can apply at Income Support Centers and Job Centers by checking the box on the application to indicate that they want Medicaid. If PA is denied for these clients, Income Support should forward the application for Medicaid on to the Medicaid unit to process as a Medicaid-only application.
c) Medicaid-only applicants – these clients can apply either at their local social service district or with facilitated enrollers. Facilitated enrollers are employed by community based organizations and managed care plans to enroll low-income New Yorkers in Medicaid and related programs. Currently, New York does not fund facilitated enrollment for SSI-related Medicaid applicants.
d) Families with children eligible for CHP but not Medicaid are better off applying with a facilitated enroller at a managed care plan rather than with the local district, because eligibility and enrollment for CHP is delegated to managed care plans.
e) Hospitalized persons – Most hospitals in NY are deputized to apply for Medicaid and even conduct interviews on behalf of patients.
B. Proof of Citizenship or Qualified Immigration Status
1. Citizenship. The Deficit Reduction Act of 2006 imposed strict citizenship & identity documentation requirements on states.
a) Although NY had always required proof of citizenship, the new federal rules have made documentation more complicated.
b) Citizen applicants for Medicaid in NY must now provide two different documents to prove citizenship and identity, unless they can produce either a US passport or a certificate of Naturalization or Citizenship.
c) In addition, eligibility workers must now note in the file that hey have seen the original documents as opposed to copies. For a list of the documents that will satisfy the requirements, see 08 OHIP/INF-1 and GIS 08 MA/009.
d) Only pregnant women, recipients of SSI or Medicare and children in foster care are exempt from these citizenship documentation requirements
Following the class action Aliessa v. Novello, 96 NY2d 418,(201), NYS provides both Medicaid and FHPlus to all “qualified immigrants.” See GIS 09 MA/009.
Qualified immigrants include:
a) Lawful permanent residents
b) Conditional entrants
c) Persons paroled into the US for at least one year
d) Certain battered aliens and their parents or children
e) Refugees and Asylees
f) Immigrants whose deportation has been withheld
g) Qualified aliens on active duty in the US or honorably discharged, and their spouses, widows and dependent children
h) Persons permanently residing under color of state law (PRUCOL). For clarification on establishing PRUCOL status see 08 INF-01 and 08 INF-04.
Immigrants who are undocumented and temporary non-immigrants cannot access Medicaid or FHP, but they can qualify for CHP, PCAP and Emergency Medicaid.
C. Timelines for applying
Federal law prescribes the timelines for Medicaid applications. These rights are important to clients, not only in order to get access to health care as quickly as possible, but in order to maximize reimbursement while waiting.
1. Applications that require disability certification should be completed in 90 days.
2. Applications on behalf of pregnant women and children should be completed in 30 days.
3. Applicants who apply for Public Assistance and Medicaid and are denied PA, are entitled to a decision on the Medicaid application within 30 days of denial of the PA application.
4. Everyone else is entitled to a decision on a Medicaid application in 45 days.
Many counties in New York fail to comply with these timelines. Advocates are encouraged to request fair hearings if the Medicaid office delays processing a client’s application, but hearing officers often only remand the cases back to the local offices. Empire Justice is involved in several class action cases against counties for failure to process applications in a timely manner.
V. Due Process
Notice, Aid Continuing and Fair Hearing Rights –
Clients enrolled in Regular Medicaid and FHP are entitled to appeal every adverse action at an administrative hearing. Adverse actions include denials of applications, delays in processing, incorrect budgets or spend down amounts, incorrect effective dates of eligibility and threatened reductions or terminations of care.
Once a client is receiving Medicaid or FHP, he or she is entitled to receive advance notice (notice must be received at least 10 days in advance of the adverse action taking effect). If the client requests a fair hearing on the action within 10 days of receiving this notice, he or she then has the right to receive Aid Continuing until a hearing is held and decided.
Due process rights will vary in the situations below:
1. Homebound clients -- are entitled to a phone hearing or a representative hearing. If this results in a loss, the local district must then schedule a second hearing at home. Aid continuing terminates only after the second hearing is lost. Even if these clients do not receive aid continuing, they may be able to get special interim aid while awaiting the home hearing. See Varshavsky v. Perales, 608 N.Y.S. 2d 194 (App. Div. 1994).
2. Clients in Medicaid Managed Care & FHP – who are denied services are also entitled to file grievances and utilization review appeals. These procedures are governed by N.Y. Pub. Health L. §§ 4800 & 4900. These avenues can be pursued simultaneous with a request for fair hearing. The determination in the fair hearing will trump decisions on grievances and utilization review appeals.
3. Clients in CHP – who are denied services or coverage are not entitled to fair hearings. They do have the right to disclosure from their plans and can file grievances and utilization review appeals. For more on advocating for families with children in CHP, see fall 2009 LSJ.
|
|||||||||||||||||||||||||||
Powered by KBPublisher (Knowledge base software)