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WNYLC Online Resources / Home / News / 2022 / Covid-19 Resources on Medicaid in NYS - Public Health Emergency will...

Covid-19 Resources on Medicaid in NYS - Public Health Emergency will be Extended at least until mid-March 2023

14 Nov, 2022

This article describes laws, policies and  procedures developed by the federal government (CMS),  the NYS Department of Health (DOH), and by New York City is HRA to protect Medicaid during the Public Health Emergency.   On this page we will gather links to helpful resources and to key government guidance, as well as describe advocacy done by NYLAG, Legal Aid Society, Empire Justice Center, Bronx Legal Services, and other organizations regarding Medicaid. 

NYLAG consumer-friendly guide to many Covid-19 changes in  benefits                                                       https://www.nylag.org/covid19/ -- 

Information on Housing, benefits,  employment & unemployment, courts, taxes, powers of attorney, and many other benefits.   For HEALTH, click on  Medicaid (Applying), Medicaid (Home Care), Medicaid (If you Already Have), or Medicare.

In This Article:

  1. NEWS UPDATES -   Nov. 11, 2022 - since HHS did not give states 60-day notice that the Public Health Emergency (PHE) will end on Jan. 11, 2023, the end date of the last extension on Oct. 13, 2022, the PHE will be extended at least another 60 days until mid-March 2023. See here. 

  2. VACCINE MANDATE -- HOME CARE workers must have one vaccine by Oct. 7, 2021

  3. Medicaid Home Care - NYS Dept. of Health Policies and Procedures & Consumer Advocacy

  4. Maintenance of Effort Requirements to Maintain Medicaid  Eligibility - what are they and how are they implemented in NYS - 

  5. NYS OTDA Fair Hearing Information

  6. ADVOCACY by NYLAG and other CONSUMER ADVOCATES 

  7. Emergency Medicaid for Undocumented Immigrants - Covers Covid-19 Testing & Treatment 

  8. How do Covid-19 Federal Stimulus Payments impact SSI, Medicaid & other Benefits - including for Nursing Home & Adult Home Residents?

  9. Federal Authorities Allowing States flexibility in Disasters + NYS Request for  1135 Waiver

  10. NYS Dept. of Health Guidance for Health Care Providers

  11. Compilations of Resources from National & NYS Organizations

1.  NEWS UPDATES

 2.  Medicaid Home Care - NYS Dept. of Health

DOH guidance to Medicaid providers here and  to all health care providers at this ink. See below for some key provider directives from DOH.  

Key Medicaid  home care guidance relevant for consumers:

  •  VACCINE MANDATE - On Jan. 25, 2022, DOH  updated FAQ's about the emergency regulation passed on  Aug. 26, 2021 mandating COVID-19 vaccinations for licensed home services agencies (LHCSAs) and certified home care agencies (CHHAs), among other providers. Workers at those agencies must  have their first shots by Oct. 7.  The FAQ No. 3 states that this mandate does not apply to CDPAP personal assistants.  This expands the vaccination mandate announced on August 16th requiring all staff of nursing homes, other congregate care setings, and hospitals to have first shots by Sept. 27th.   The DOH  FAQ's exempted CDPAP PA's but in NYC it is possible that they are  required to be vaccinated under a Dec. 2021 NYC  Executive Order.  The exact meaning of this order for CDPAP is unclear.  The Gothamist reported on Oct. 16, 2021 the strain this has caused to some home care consumers, including a featured client of NYLAG who depends on round-the-clock private duty nursing.

  • Feb. 8, 2022 - DOH Amends the July 26, 2021 guidance Rescission of COVID-19 Guidance for the Authorization of Community Based Long Term Services and Supports Covered by Medicaid (previouly updated 9/30/21 and Jan. 5, 2022.  As of Feb. 8, 2022  the rules are:

    • ​​​​​​​For Medicaid Managed care and MLTC plans, local Medicaid agencies, CDPAP agencies

      • 7/26/21 - Instructions for Provider Personnel at Risk of COVID - providers should have policy to screen personnel for COVID symptoms/risk prior to home or in-person visits with consumers, and to send person home/ prevent in-home visit if sick.

      • UAS Nurse Assessments in Facilities (Nursing Homes) (does not mention Hospitals)  --7/26/21 Guidance remains the same in 9/30/21 amendment,  saying "where possible" in-person assessments  must resume, but with masks and social distancing as required by facility.   This would include conflict-free assessments by NY Medicaid Choice or Immediate Need assessments by the local Medicaid office/CASA and enrollment visits  or other assessments by MLTC plans. 

      • CDPAP personal assistants annual health reassessment - had been suspended but 9/30/21 guidance REQUIRES them to be done by 12/30/21 (extending time from 9/30/21 as DOH had stated in the 7/26/21 guidance)  

      • Periodic re-assessments by nurses for managed care, MLTC and local Medicaid offices  and 6-month care management visits for MLTC- these had been suspended, but  the 7/26/21 Guidance required them to resume IN-PERSON.  The 9/30/21 amended guidance says they can also be conducted by telehealth but not by phone..  Gives a phased in schedule for plans and LDSS to complete reassessments for those who were not assessed during the pandemic. 

      • "Community Health Assessments" - a/k/a UAS Nurse Assessments - 9/30/21 guidance reinstates rule allowing UAS nurse assessment to be completed by telehealth, but still may not be conducted by telephone.  The Sept. 30, 2021 modification rescinds the July 26, 2021 guidance that required these assessments to be completed IN PERSON (by MLTC plans, local Medicaid agencies, and the conflict-free assessment by NY Medicaid Choice.)  Gives plans 90 days to complete an in-person OR teleheath UAS for anyone who had a "temporary" plan of care based on a partially completed UAS. 

      • PHYSICIAN ORDERS - After 7/26/21, still allows physician to complete M11q/Physician's order by telehealth or telephone, without an in-person visit.  However, physician may NO LONGER phone in order to initiate services, which before had allowed MD to follow up with written orders within 120 days.  

  • Annual health assessment for all personnel - were originally suspended  by an April 10, 2020 Dear Administrtor Letter but on October 14, 2020, the state issued a new Dear Administrator Letter  lifting its suspension and requiring annual health assessment by December 31, 2020.

  • DOH Update: Home and Community-Based Services Regarding COVID-19 (Updated June 18, 2020)

  • April 10, 2020  NYS DOH Dear Administrator Letter (see here) to CHHAs, LHCSAs, LTHHCPs, and Hospice programs, the state Department of Health has suspended or changed the following regulations.

    • The annual health assessment has been temporarily suspended for all employees.    These assessments were reinstated again with Oct.  14, 2020 directive.

    • New employees may have health assessments completed by telehealth or by an RN. New employees must follow guidelines in place for all staff, including daily symptom screenings and at least daily temperature checks.

    • All CHHAs, LTHHCPs, AIDS home care programs and LHCSAs serving individuals affected by the COVID-19 public health emergency may conduct in-home and in-person supervision through indirect means, including by telephone or video communication, as soon as is practicable after the initial visit.

  • April 23, 2020  COVID-19 Guidance for Voluntary Plan of Care Schedule Change - (Web)  (PDF) - 
    • Allows voluntary changes in service plans, presumably mostly reductions in hours of home care, on a temporary basis because of the pandemic.  Plan must confirm the change in writing and have the consumer sign agreement.  Plan must reinstate original service plan on 72 hours request.  Advocacy concern exists allowing plan to reach out to consumers to ask for consent to a voluntary change-- this outreach is supposed to be limited to those consumers who have "refused or cancelled services because of concerns about COVID-19 exposure," or who are known to have available informal caregivers, but will consumers be pressured to agree to temporary reductions?    See FACT SHEET for CONSUMERS - KNOW YOUR RIGHTS!
    • This guidance does not expressly prohibit but should prevent plans from disenrolling members who have refused or cancelled services because of COVID. 

ADVOCACY:

3. Maintenance of Effort Requirements to Maintain Medicaid Eligibility in the Public Health Emergency - and How they are Implemented in NYS

TWO COVID laws have "Maintenance of Effort"  requirements - that required States to maintain Medicaid eligibility during the Public Health Emergency in exchange for receiving billions of Medicaid dollars.   The two "MOE" requirements are slightly different. 

  1. The Families First Coronavirus Response Act (FFCRA) signed on March 18, 2020, establishes a moratorium on Medicaid case closings or reductions.  No Medicaid recipient may lose their coverage after March 18, 2020 through the end of the Public Health Emergency, unless they move out of state or die or voluntarily close their case.  Also, eligibility cannot be reduced, meaning their spend-down can't be increased.   

  • The FFCRA Maintenance of Effort requirement has two prongs that apply to NYS, in addition to banning Medicaid copayments or other cost-sharing for COVID vaccines, testing or treatment:

    1. INDIVIDUAL ELIGIBILITY --States may not cut off or reduce Medicaid for any individual who had it on March 18, 2020 or who becomes enrolled after that date through the end of the month in which the Public Health Emergency ends.  FFCRA Section 6008(b)(2).  See more about how this applies in NYS here. 

    2. States may not make eligibility standards, methodologies, or procedures for determining eligibility for Medicaid more restrictive than they were on Jan. 1, 2020.  This restriction is in effect until the end of the  quarter in which the PHE ends.  FFCRA Section 6008(b)(3) (as of now through March 31, 2023). This is one reason why the new "lookback" for community-based long term care, and the Minimum ADL thresholds for personal care and CDPAP, enacted in April 2020, have been postponed, among other changes.   Since the lookback and Minimum ADL thresholds also restrict eligibility for Home & Community Based Services, the separate Maintenance of Effort requirement under the ARPA law also prohibits these changes from going into effect.

  • HOW LONG IS THE FFCRA PUBLIC HEALTH EMERGENCY (PHE)?    The Public Health Emergency has been repeatedly extended -- most recently  on Oct 13, 2022 by HHS Order.  The PHE extensions are for 3 months, so the latest one will extend thru Jan.  11, 2023. See earlier extensions here.  

    •  In a March 3, 2022 bulletin, the federal CMS repeated its earlier promise that states will receive 60 days advance notice before the Public Health Emergency  ends, allowing States time to plan for "unwinding" the COVID moratorium on case closings, etc.   Under the Trump Administration, the PHE  was extended every 3 months, leaving much uncertainty.  See this Georgetown Health Policy Institute blog about what the latest extensions mean. 

    • All of the flexibilities described below for applications and renewals, and the ban on discontinuances now extend through January 2023.   See this Georgetown Health Policy Institute blog explaining what the PHE extensions mean.  Since  HHS did not give states 60-day notice that the Public Health Emergency (PHE) will end on Jan. 11, 2023, the PHE will be extended at least another 60 days until mid-March 2023. See CNBC report here and The Week.  In mid-January 2023, HHS might extend it another 3 months until mid-April 2023, as it normally does, or give notice that it will end in 60 days in mid-March.  Stay turned.

  1. There is a separate Maintenance of Effort Requirement under the American Rescue Plan (ARPA).  States cannot restrict eligibility for Home & Community Based Services (HCBS) until the earlier of when they spend the federal ARPA funds  or March 31, 2025.  See this link.  See NYS ARPA website for its spending plan and quarterly reports to CMS.   

  • NYS DOH has delayed the lookback for home care & the Assisted Living Program  to begin no earlier than March 1, 2024. 

After the Public Health Emergency is declared over,  a process of "unwinding" the Maintenance of Effort protections will begin.   On March 3, 2022, CMS issued guidance about how this unwinding process will work, followed by FAQs in Oct. 2022 and other guidance posted here. 

  •  Under CMS’ Marcn 2022 guidance, states must initiate the renewal process for all Medicaid receipients within 12 months of the eventual end of the PHE, and complete renewals within 14 months.    Many recipients will not have returned a renewal for 2 years -- and many only applied for Medicaid during the pandemic so never had to do a renewal.  This will be new to them.   

  • To prepare for the renewal process,  in Dec. 2021, HRA did a mass mailing to all recipients requesting them to update their address to ensure that they receive these renewals.  See HRA Alert  Dec. 20, 2021, which describes this mailing, which includes Form 751k (fillable)  for recipients to report a change of address. Download 751K  in varioius languages here.

  • With the extension of the PHE until Jan. 13, 2022, and now at least 60 days later til mid-March 2023,  renewals will not be processed until 2023, when the INCREASED income and asset limits will be in effect for non-MAGI Medicaid - which covers people age 65+, disabled and blind. 

  • See The National Health Law Program fact sheet on the Maintenance of Effort requirement, available here, The Trump administration in its last days published federal regulations called the Interim Final Rule that chip away at the moratorium on case closings and reductions, allowing states to make some adverse changes on eligibility.  NYLAG joined with the National Health Law Program and other organizations opposing this rule.  See Kaiser 12/20 article here. 

  • Invoking this Trump federal rule, some states are cutting off Medicaid and replacing it with the Medicare Savings Program, or shifting QMB eligibility to the less generous SLIMB or QI-1 eligibility.  We commend NYS for not allowing these reductions during the PHE.   A lawsuit has been brought challenging these regulations, and HHS has since proposed to revoke them.  

3a. NO MEDICAID CASE CLOSINGS OR REDUCTIONS  during Public Health Emergency - Automatically Extensions at Renewal  - and Spend-down cannot be Increased 

  • NYS Guidance Implementing FFCRA Maintenance of Effort Ban on CASE CLOSINGS and REDUCTIONS During the Public Health emergency - The main State directive issued to comply with this "maintenance of effort" requirement in federal law is GIS 20 MA/04, updated in GIS 20 MA/11.  -- The moratorium means:

    • Medicaid cannot be discontinued by the local Medicaid agency or NYSofHealth even for someone who is no longer eligible..  

    • People who lose SSi or Cash Assistance normally have to go through a recertiification process to keep their Medicaid (called the Stenson and Rosenberg procedures in NYS).   While they will still receive mail asking them to complete and return the renewal forms, their Medicaid should not be discontinued even if they do not to so. 

    • AUTOMATIC ONE-YEAR EXTENSIONS of ELIGIBILITY - If Medicaid was authorized for a period ending March 31, 2020 through January 31, 2023,  the local district must recertify  Medicaid  for 12 months, regardless of whether the recipient  fails to return the annual renewal forms or respond to requests for information - Medicaid will NOT BE DISCONTINUED.  DOH explains this will allow districts to devote the reduced staff to new applications rather than routine renewals.   This is also true even if the recipient reports information that would normally make them ineligible for Medicaid, or would increase their spend-down .

      • NYS DOH has not updated GIS 20 MA/04 since GIS 20 MA/11 to keep extending the authorization period dates entitled to  automatic extensions of eligibility.  Instead, DOH is notifying  the local districts of these extensions informally.  NYC HRA issues Alerts periodically that state the latest extensions.  Most recently, an HRA Alert says authorization periods ending January 31, 2023 will be automatically extended --New York State Medicaid Program Modifications COVID-19 Emergency -  10/25/22 See more NYC alerts here.

    • Those who had MAGI Medicaid and turn 65,  or become eligible for Medicare based on disability, would normally have their Medicaid transferred from NYSofHealth to the local district, to be redetermined under non-MAGI Medicaid rules.  Instead, they will  have Medicaid automatically extended for 12 months.   

      • However, during this emergency,  cases are not referred to the districts and coverage is just extended by NYSofHealth.  They will not have to show that they applied for Medicare, or applied for VA benefits  if they are veterans, contrary to the usual rule.  Some cases may still be referred manually to the LDSS, such as those who need nursing home care, since institutional Medicaid can only be authorized by the LDSS even if eligibility is based on MAGI.  

      • Also,  these individuals are mostly in Medicaid managed care plans.  They remain in these plans during the emergency, even though they now have Medicare.  Normally, they are dis-enrolled from these plans once they obtain Medicare. If they need Medicaid home care, they request it from their plan.  

    • "Individuals in the Medicaid Buy-In Program for Working People with Disabilities who have experienced job loss as a result of the COVID-19 emergency must be given a grace period due to loss of work. If applicable, the grace period should be extended for six (6) additional months."  GIS 20 MA/04  The DOH 5/20/20 FAQ clarifies that the initial extension is 6 months, and "an additional six-month period will be provided if needed to look for new employment."  (FAQ #16).

    • Medicaid may not be discontinued for "whereabouts unknown" if correspondence from the LDSS/HRA is returned.  GIS 20 MA/04 p. 3

    • If had active Medicaid because of "Aid Continuing" on March 18, 2020, this must continue GIS 20 MA/04 p. 6.    The May 20, 2020 DOH FAQ clarifies that  "your Medicaid coverage will continue under Aid to Continue status even if you lose your fair hearing."  (FAQ #7)

    • Surplus/Spend-down Cases -- Initially in the PHE,  if the spend-down was met in March, the LDSS/HRA put up coverage for 6 months.  That is no longer true.  Bils must be submitted to meet the spend-down. NYC Recipients who have problems submitting bills should follow the instructions on the HRA  policy  - and elsewhere contact their local district office. A spend-down may be reduced, but not increased, during the emergency (GIS 20 MA/04)  The May 20, 2020 DOH FAQ states further regarding spend-down, in FAQ #10:

      10. I participate in the Medicaid Excess-Income or Pay-In program, but I have been unable to submit a bill or payment due to the COVID-19 emergency. What should I do?

      • Contact your local district or, if you pay your spenddown to a Managed Long Term your Care Plan, contact your plan, as soon as possible. Explain that you haven´t been able to submit your bills or pay your spenddown due to the COVID-19 emergency.

      • Save your receipts or the monthly amounts of your pay-in (spenddown) because you may be asked to provide them at the end of the COVID-19 emergency period.

    • In NYC (from HRA): 2021-10-29 Medicaid Surplus Coverage Update – During the Covid Health Emergency, surplus consumers must continue to meet their surplus requirement and, upon payment, should contact the Surplus Hotline to report that a payment was made. If consumers cannot make a surplus payment or their income have gone down, they should have their case re-budgeted.  If they are unable to submit payment because of health issues related to Covid-19, such as quarantine or hospitalization, they can attest by calling the Surplus Hotline.

3b.  STATE and NYC MEDICAID POLICIES:

NYS Directives

New York City Directives - also see NYC HRA Health Assistance Webpage

  • NYC HRA 10/25/2022 New York State Medicaid Program Modifications COVID-19 Emergency (update to 3/27/20, 6/22/20, 8/10/20, 09/09/20,12/17/20, 1/13/21, 2/22/21, 3/25/21, 4/27/21, 5/21/21, 6/14/21, 8/4/21,  8/23/21, 11/5/21, 12/06/21, 01/24/22, 03/14/22, 04/14/22, 05/09/22, 07/05/22 & 09/08/22 alerts)

    • 10/25/22 alert extends automatic renewals to cases ending through January 2023

  • NYC HRA 12/30/21 - See HRA Alert explaining mass mailing to all Medicaid recipients telling them to report a change of address that occurred in the last 2 years.  Change should be reported with  Form 751k (fillable) or in varioius languages here.  Updating addresses is important because once the pandemic is declared over, all recipients will receive Renewal notices by mail. Without an updated address, they will not receive these renewals, and Medicaid could be discontinued. 

  • NYC HRA 08/30/2021  REVISED Fax Submissions to MICSA & HCSP (revises earlier  alerts) 

  • NYC HRA 5/28/2020  Defective Renewal Notices During Covid-19 Emergency  (See this update re HRA sending 32,056 case closing notices in error for renewals due May 2020). 

3.c. APPLICATIONS

  • Allows self-attestation of income, assets and most other factors of eligibility on applications, renewals and requests for increased coverage, except for documenting citizenship and immigrant status on applications. 

  • MAY NOT ATTEST TO these - need to submit documentation ( per DOH FAQ May 20, 2020) - Q. 11, 

    • Citizenship and Immigration Status - GIS 20 MA/04 p. 3 - DSS/HRA will try to verify status through SSA data match.  If that can't be done and documentation is needed, DSS/HRA will put up 90 days of coverage while applicant has an opportunity to obtain documentation.   If the emergency period has not ended after 90 days, it will be extended for another 90 days if applicant still hasn't obtained documentation.  See 10 OHIP ADM-8 for procedures "to give a reasonable opportunity period to consumers who are attesting to be U.S. Citizens."

    • Pre-Paid Burial Agreements -   must submit proof that the agreement is final and irrevocable.

    • Trusts - including Pooled Income Trusts - Copies of all trust documents are still required.  Regarding the disability documents for SNT, the DOH FAQ #4 says:

4. I am over 65 and need a disability determination so that I can apply for Medicaid using a pooled trust. I cannot get an appointment with my doctor to complete, sign, and date the NYS disability papers because of the COVID-19 emergency. What can I do?

You should first contact your local district and file your Medicaid application. Your local district staff and Department of Health staff can then help you with the necessary paperwork to process your disability determination. They can also help if you are under age 65 and need a disability determination for Medicaid.

Comment:  How would LDSS or DOH help with the paperwork?

  • Individuals turning 65 do not have to apply for Medicare, SSA or VA benefits as a condition of eligibility

  • Do not have to respond to reports received by local DSS after  3/1/20 -- that a Social Security number could  not be verified, or that a resource appeared on an electronic match or could not be verified

  • No proof of Third Party coverage is required - local districts are not required to make
    new cost effective determinations for possible reimbursement if sufficient information
    is not available.   But if insurance ends, district may stop payment of premium.      GIS 20 MA/04 p.6

  • WHERE TO APPLY - Every local DSS has its own procedures. 

    • NYC prefers FAXed applications - 3 different fax numbers depending on who is submitting the app and if it's for "Immediate Need" home care 

      1. E-FAX applications to 917-639-0732  (For general public who are not authorized submitters) (HRA PREFERS this to mailing! 

  • MAKE CLEAR ON APPLICATION IF SEEKING TO ENROLL IN MLTC, or SEEKING MEDICAID ONLY.  

  1. IMMEDIATE NEED HOME CARE applications  E-FAX 1-917-639-0665. DO NOT fax other applications here. 

  2. Authorized Submitters (C-REPs) ONLY can fax to  917-639-0731 

  • NYC - can also MAIL  to this address, but HRA prefers use E-FAX number above)
Mail in Unit
MICSA
505 Clermont, 5th Floor
Brooklyn, NY 11238
  • Application Signatures – from GIS 20 MA/04 p.4- 5: and also see 5/20/2020 DOH Consumer FAQ (#2)
    • "During this period, for individuals in hospitals or nursing homes, the Access NY application (DOH-4220-I) and/or Supplement A (DOH-5178A) can be signed by someone acting on the individual’s behalf .

    • If a signature on the application cannot be obtained from the applicant/recipient (A/R) or the A/R’s spouse, Attachment 1  to  17ADM-02 - Asset Verification System , “Submission of Application on Behalf of Applicant” DOH-5147 (MAP-3044 for NYC A/Rs), must be signed by the person signing and submitting the application and must accompany the application. In Section C of the DOH-5147 (Reason for Submission/Section II of the MAP-3044) “COVID-19” should be noted if the A/R cannot sign the form due to access issues. All information must be completed on the application.

    • If a signature can be obtained from the applicant/recipient, Section D (Authorization to Apply for Medicaid on Applicant’s Behalf) of the DOH-5147 form should be signed by the A/R authorizing another person or the facility to apply on behalf of the individual.

  • Aged, Blind and Disabled (ABD) Facilitated Enrollers (FE  outside NYC) (in NYC) who are unable to assist individuals in person during this time will be following a similar process with one exception: the DOH-5147 form (or MAP-3044  form) will be signed by the applicant authorizing the ABD. 

 from GIS 20 MA/04 p.4- 5  and see  DOH FAQ #2 

  • Requests for Information while Application pending - from GIS 20 MA/04 p. 5

... During this period, if an application or Supplement A is missing required information, the district should contact the applicant, authorized representative or the person submitting the application on behalf of the applicant, if applicable, by email or telephone to obtain the necessary information. The district does not need to receive the information in writing and can accept information verbally. The eligibility staff should note in the case record any information obtained by phone and make a notation in the case record that information was received verbally due to COVID-19 circumstances.

If after three (3) attempts, the local district is unable to contact the individual, the individual’s authorized representative or the person who submitted the application on behalf of the applicant (including when no response is received from an email contact), the local district must send a written request to the individual and the authorized representative or person submitting the application on behalf of the applicant, for the missing information. The request sent must include a response due date of no less than 10 days. Information concerning how the missing information can be given to the district by telephone and/or email must be included in the letter sent requesting the information.

The DOH FAQ 5/20/20, states,  "If you don´t provide the missing information your application may be denied." (FAQ #3). 

  • MSP/Medicare Insurance Payment Program/ Health Insurance Premium Payment program -  “the department can assist districts, if needed, with an extension of MIPP (Medicare reimbursements) and HIPP (health insurance reimbursements) payments to coincide with the extension of an individual’s authorization period.” 

4.  NYS Medicaid FAIR HEARINGS - Office of Temporary  & Disability Assistance

5.   CONSUMER ADVOCACY - by NYLAG and OTHER CONSUMER ORGANIZATIONS 

NURSING HOMES -

HOME CARE

MEDICAID FAIR HEARINGS - NYS Office of Temporary & Disability Assistance

  •   Letter to OTDA 3/24/20 Requesting Clarification of GIS above and for protections for appellants in the new phone hearing procedures - from NYLAG, Legal Aid Society, Empire Justice Center & other organizations. 

6. Emergency Medicaid for Undocumented Immigrants - Covers Covid-19 Testing & Treatment 

“Emergency Services Only” Coverage - Medicaid Update Number 7: March 2020 Special Edition -
COVID-19 Coverage and Reimbursement Policy (published: 3/27/2020) (Web) or (PDF) — (Redline PDF).

NYS Medicaid coverage for undocumented immigrants is limited to emergency services only. COVID­19 lab testing, evaluation, and treatment are emergency services and will be reimbursed by NYS Medicaid for individuals with coverage code “07.” Claims submitted for COVID-19 tests and practitioner office visits for the purpose of COVID-19 testing, evaluation, and/or treatment should be identified as an emergency by reporting Emergency Indicator = Y.

Institutional providers (emergency department, hospital outpatient/diagnostic and treatment center, FQHC, and hospital inpatient) should report Type of Admission Code = 1 to indicate an emergency when the purpose of the visit is for testing, evaluation, and/or treatment related to COVID-19.

There is no copay for emergency services including testing, evaluation, and treatment for COVID-19.

7.  How do Covid-19 Federal Payments impact SSI, Medicaid & other Benefits?

Clarifies that the one-time Stimulus payments and the $600 weekly Pandemic Unemployment compensation are not countable income for Medicaid, including under post-eligibility budgeting used in nursing home Medicaid, meaning that the payments will not be counted toward the NAMI (Net Available Monthly Income).  
CARES ACT: ...Notwithstanding any other provision of law, any refund (or advance payment with respect to a refundable credit) made to any individual under this title shall not be taken into account as income, and shall not be taken into account as resources for a period of 12 months from receipt, for purposes of determining the eligibility of such individual (or any other individual) for benefits or assistance (or the amount or extent of benefits or assistance) under any Federal program or under any State or local program financed in whole or in part with Federal funds. 

Click on https://www.nylag.org/covid19/ and go to Economic Stimulus Payments

8.  Federal Authorities Allowing States Flexibility in Disasters - and New York Application to CMS 

9. Selected NYS DOH Guidance for Health Care Providers - of Interest to Advocates

These are just a few of the many guidance documents issued nearly every day - check

GUIDANCE FOR MEDICAID PROVIDERS - https://health.ny.gov/health_care/medicaid/covid19/index.htm

GUIDANCE FOR ALL HEALTH CARE https://coronavirus.health.ny.gov/information-healthcare-providers 

 VACCINE MANDATE - On Jan. 25, 2022, DOH  updated FAQ's about the emergency regulation passed on  Aug. 26, 2021 mandating COVID-19 vaccinations for licensed home services agencies (LHCSAs) and certified home care agencies (CHHAs), among other providers. Workers at those agencies must  have their first shots by Oct. 7.  The FAQ No. 3 states that this mandate does not apply to CDPAP personal assistants.  This expands the vaccination mandate announced on August 16th requiring all staff of nursing homes, other congregate care setings, and hospitals to have first shots by Sept. 27th.   The DOH  FAQ's exempted CDPAP PA's but in NYC it is possible that they are  required to be vaccinated under a Dec. 2021 NYC  Executive Order.  The exact meaning of this order for CDPAP is unclear.  The Gothamist reported on Oct. 16, 2021 the strain this has caused to some home care consumers, including a featured client of NYLAG who depends on round-the-clock private duty  

The Gothamist reported on Oct. 16, 2021 the strain this has caused to some home care consumers, including a featured client of NYLAG who depends on round-the-clock private duty nursing.

TELEHEALTH  -NYSDOH has issued a “broad expansion for the ability of all Medicaid providers in all situations to use a wide variety of communication methods to deliver services remotely.”   

  • Medicaid Update Special Edition: Comprehensive Telehealth Guidance (Web) or (PDF) (published: 5/1/2020).
    • Frequently Asked Questions (FAQs) on Medicaid Telehealth Guidance during the Coronavirus Disease 2019 (COVID-19) State of Emergency - (Web) - (PDF) - Updated 5.1.2020
    • Webinar: New York State Medicaid Guidance Regarding Telehealth, Including Telephonic, Services During the COVID-19 Emergency - 5.5.2020

HOME CARE, WAIVER PROGRAMS, PRIVATE DUTY NURSING, DME

ADULT DAY CARE PROGRAMS - Medical Model and Social Model

Nursing Homes and Adult Care Facilities - Assisted Living

  • Vaccination Rates and COVID cases and deaths  in Nursing Homes -

    • NYS DATA  COVID deaths by nursing facility

    • CMS is posting in two places  -- comprehensive data re deaths and vaccine rates here.    At that link, scroll down to this heading - Resources for Using and Understanding the Data - then click on the link in this paragraph:  Listing of vaccination rates for individual nursing homes.  If you download the Excel document, sort it by STATE then by COUNTY to find local nursing homes. 

    • Also in CMS Nursing Home Compare database

  • July 8, 2021 - NYS DOH updates guidance on NURSING HOME VISITATION and separate guidance on ADULT HOME/ASSISTED LIVING Visitation.  As the Long Term Care Community Coalition observed,  the July 8th Nursing Home guidance is somewhat inconsistent -- at the beginning it states that the use of PPE and social distancing are required, but then later on it states:

    • If the resident is fully vaccinated, they can choose to have close contact (including touch) with an unvaccinated visitor while both are wearing a well-fitting face mask and performing hand-hygiene before and after. 
    • If both the resident and their visitor(s) are fully vaccinated, and the resident and visitor(s) are alone ..., the resident and visitor may choose to have close contact (including touch) without a mask or face covering. 
    • Regardless, visitors should physically distance from other residents and staff in the facility. 

  • March 10, 2022- CMS updated Sept. 2020 guidance expanding Nursing Home Visitation in iight of the vaccination of many residents and staff.   CMS updated this guidance in conjunction with the CDC guidance also updated Feb. 2, 2022.  The CMS guidance states:

    • "Facilities shall not restrict visitation without a reasonable clinical or safety cause, consistent with 42 CFR § 483.10(f)(4)(v). A nursing home must facilitate in-person visitation consistent with the applicable CMS regulations, which can be done by applying the guidance stated above. Failure to facilitate visitation, without adequate reason related to clinical necessity or resident safety, would constitute a potential violation of 42 CFR § 483.10(f)(4), and the facility would be subject to citation and enforcement actions.

    • Residents who are on transmission-based precautions for COVID-19 should only receive visits that are virtual, through windows, or in-person for compassionate care situations, with adherence to transmission-based precautions. However, this restriction should be lifted once transmission-based precautions are no longer required per CDC guidelines, and other visits may be conducted as described above."

    • If a nursing home is not following the revised CMS/CDC guidance,  file a complaint with the NYS health department, making clear any harm or suffering that is resulting from the resident’s isolation. This includes emotional distress and psycho-social harm, which the health department is required to take seriously.  Seek help from your local Long Term Care Ombudsman office.  

    • The memo includes information and direction on specific issues including:

      • Clarifying compassionate care
      • Visitation during an outbreak
      • Access to LTC Ombudsman services
      • Communal activities and dining
      • Federal disability law rights and protections

  • Mar. 25, 2021 - NYS DOH Issues Guidance Expanding Nursing Home Visitation -  

  • Nov. 12, 2021 - CMS Issues Revised Guidance Expanding Nursing Home Visitation - The guidance  - QSO-20-39-NH REVISED  - and CMS  fact sheet.  

    • See Frequently Asked Questions: LTSS Visitation Rights & COVID-19  by the National Center on Law & Elder Rights (NCLER).  

    • Also see summary from  the Consumervoice.org - the new guidance allows indoor and outdoor visits for all residents, except in limited circumstances.  Infection prevention protocols are still in place and must be followed by all visitors.  Visitation is allowed regardless of vaccination status.

      Limitations on visitation may occur: for unvaccinated residents if the COVID-19 county positivity rate is greater than 10% and less than 70% of residents in the facility are fully vaccinated; for residents with COVID-19, regardless of vaccination status, until they have met criteria to discontinue precautions; or for residents in quarantine, regardless of vaccination status, until they have met criteria to be released from quarantine.

      Compassionate care visits should be allowed at all times, regardless of vaccination status, an outbreak in the facility, or the county's positivity rate.

      While CMS and CDC recommend that the core principles of infection prevention be followed at all times, including physical distancing, if a resident is fully vaccinated, they can choose to have close contact (including touch) with their visitor while wearing a well-fitting mask and performing hand hygiene.  

  • Congregate Facility Visitation in Micro-Cluster Zones (suspends visitation in RED and ORANGE zones, with exceptions for "compassionate" or "medically necessary" care, accompanying a minor, etc. and superseding the 9/17/20 guidance in those zones described below), dated  Oct. 23, 2020 - Look up an address to see if falls into a Red, Orange, or Yellow Zone. 

  • Health Advisory: Revised Skilled Nursing Facility Visitation   (NYS 9/17/20), revising guidance issued on 9/15/20 based on intervening CMS guidance issued on 9/17/20 -  Nursing Home Visitation - COVID-19 (CMS, 9/17/20).  State 9/17/20 guidance places many conditions on visitation - no new COVID positive tests in 14 days, weekly staff testing, many other requirements - see guidance. 

  • Visitation in Adult Care Facilities - rules for visitation in Phase 3 areas (July 10, 2020)

  • Health Advisory: COVID-19 Cases in Nursing Homes and Adult Care Facilities  (Mar. 13, 2020, revised July 10, 2020)(limited visitation expanded to Long Term Care Ombudsprogram) 

  • DAL 20-14: Required COVID-19 Testing for all Nursing Home and Adult Care Facility Personnel (requires weekly testing of all staff including private or Medicaid aides) (May 11, 2020)

  • Advisory: Hospital Discharges and Admissions to Nursing Homes (Mar. 25, 2020)(Nursing homes must automatically re-admit residents who are temporarily hospitalized, even if they test positive for COVID-19)

  • Guidance Regarding Adult  Care Facilities and CoronaVirus (Mar. 22, 2020)

  • Recommendations to Protect Nursing Home Residents (Mar. 20, 2020)

  • Health Advisory: Respiratory Illness in Nursing Homes and Adult Care Facilities in Areas
    of Sustained Community Transmission of COVID-19     (Mar. 21, 2020)

  • Nursing Home Guidance Letter (March 11, 2020)

10. Web resources - compilations of policies - Medicaid, Medicare, etc.

This article written by Evelyn Frank Legal Resources Program, NYLAG  eflrp@nylag.org  Check back for updates 

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