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WNYLC Online Resources / Home / News / 2021 / Covid-19 Resources and Advocacy on Medicaid in NYS - COVID...

Covid-19 Resources and Advocacy on Medicaid in NYS - COVID Flexibilities extended through end of 2021

27 Jan, 2021

As Social Distancing and  shuttered offices become the new normal, New Yorkers who depend on Medicaid or need to apply for it need to learn new policies and  procedures that are quickly being developed by the federal government (CMS),  the NYS Department of Health (DOH), and by each local Medicaid agency, which in New York City is HRA.   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  

  2. NYS OTDA Fair Hearing Information

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

  4. Medicaid  Applications, Renewals, Eligibility in NYS - and Consumer Advocacy

  5. ADVOCACY by NYLAG and other CONSUMER ADVOCATES 

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

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

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

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

  10. Compilations of Resources from National & NYS Organizations

1.  NEWS UPDATES

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

  • 10/16/20 GIS - 20 GIS TA/DC 097 – NYS OTDA Office of Admin. Hearings (OAH) Transmittal 20-05 - Allowing or Requiring Fair Hearing Appearances by Written, Telephonic, Video, or other Electronic Means - continues Demonstration Phone Hearing program  through March 12, 2021, holding all hearings by phone, video "or other means,"  unless the appellant requests the hearing to be held in-person, or the ALJ or OTDA finds an in-person hearing should be held. 

    • This GIS replaces and supersedes the earlier directives issued for this demo program:

    • Local districts or Managed care plans must provide documents they plan to submit to the Appellant and their rep to be received at least one day in advance. 

    • "Agencies may request the waiver of their personal appearance at any hearing. OAH may draw a negative inference if an Agency representative is needed and not available to participate or contact information is not provided. Agencies planning to have a representative participate in the hearing should make specific reference thereto in the coversheet and summary. Failure to request contact specifically may result in a decision being issued based on documentary evidence alone."

    • Submitting documents for telephone hearing - Appellants or their representative must submit documents TWO BUSINESS DAYS in advance to OTDA - may submit by email to  otda.sm.fhdocuments.submissions@otda.ny.gov --OTDA said this email address may only be used during the Covid-19 emergency. 

      • Or use same FAX used for requesting fair hearings.. FAX 518-473-6735

    • "Hearing Officers will call Appellants and their authorized representatives two times during the scheduled hearing period, with at least twenty minutes between calls. If the Appellant and their authorized representative fails to answer, the hearing request may be considered abandoned."

  • ADVOCACY:    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. 

 3.  Medicaid Home Care - NYS Dept. of Health

DOH is issuing frequent guidance to Medicaid providers here and  to all health care providers at this ink. 

See below for some key provider directives from DOH.  

Here is some of the key home care guidance relevant for consumer Medicaid advocates:

  • On October 14, 2020, the state issued a new Dear Administrator Letter stating that it is lifting its suspension of the annual health assessment for all personnel. All personnel are advised to obtain an annual health assessment by December 31, 2020.

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

  • April 8, 2020 updating Mar. 18, 2020 -  COVID-19 Guidance for the Authorization of Community Based Long-Term Services and Supports Covered by Medicaid – UPDATED 4.8.20 

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

    • Allows physician to complete M11q/Physician's order by telehealth or telephone, without an in-person visit.  4/8/20 update allows MD to CALL in order and follow up with written orders within 120 days.  Plan or DSS can authorize 90-day temporary service plan based on oral orders 

    • Allows the UAS nurse assessment to be completed by telehealth or telephone (by MLTC plans and local Medicaid agencies), except that the conflict-free assessment by NY Medicaid Choice must be completed in person (at least for the functional assessment).  If NY Medicaid Choice cannot do the assessment in person, "the member’s LDSS (local Medicaid office) will develop and monitor the plan of care."  

    • Suspends requirement for 6-month periodic re-assessments by nurses for managed care, MLTC and local Medicaid offices.  4/8/20 update also suspends requirement for M11q/physician's order for reassessments for personal care and CDPAP - however, services will only be reauthorized for 3 months, which will create burdens down the road.. 

    • CDPAP personal assistants do not have to obtain the annual health reassessment, but new personal assistants must still have them  (TB test, immunizations)

    • UAS Nurse Assessments in Nursing Homes- it's up to the nursing home to decide whether the assessment is "medically necessary," so nursing home is apparently allowed to refuse access.  This would be conflict-free assessments by NY Medicaid Choice or Immediate Need assessments by the local Medicaid office/CASA.  

  •  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:

4. Medicaid Applications, Renewals, Eligibility Determinations

Under Families First Coronavirus Response Act signed on March 18, 2020, no Medicaid recipient will lose their coverage after March 18, 2020 through the end of the Public Health Emergency.  The Public Health Emergency originally ended April 27, 2020.  After an initial extension ending July 26, 2020,  extended until Oct. 23, 2020,  HHS Secretary Azar  extended the Public Health Emergency again effective Oct. 23, 2020.    The extensions are for 3 months, so it will expire Jan. 23, 2021 unless renewed again. As a result of this extension, all of the flexibilities described for applications and renewals and the ban on discontinunces extend through January 2021.   

The National Health Law Program fact sheet, available here, summarizing the Medicaid-related provisions that were included in the three coronavirus response laws enacted so far.

4a.  STATE and NYC MEDICAID POLICIES:

NYS Directives

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

4b. AUTOMATIC RENEWALS/ NO DISCONTINUANCES After March 18, 2020  

If Medicaid was authorized for a period ending March 31, 2020 or later,  the local district must recertify  Medicaid  for 12 months, regardless of whether the recipient  fails to return renewals 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.  

  • Under GIS 20 MA/04, "Medicaid cases are being extended and individuals will not be required
    to renew their Medicaid eligibility during the emergency period. All active Medicaid cases with
    authorization and coverage dates ending in March, April, May and June will be systemically
    extended for 12 months."  If a case was closed after March 18, 2020 it will be reopened. 

  • MAY 28, 2020 - NYC HRA issues an ALERT that it mistakenly notified 32,052 individuals that Medicaid or MSP would be discontinued because of not sending renewals due  in May 2020.  See info here. 

  • Those who lose SSI or public assistance,  who would normally need to recertify for Medicaid under the Stenson and Rosenberg processes, will have  Medicaid automatically extended for 12 months.  

  • 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 -- If the spend-down was met in March, the LDSS/HRA will put up coverage for 6 months.  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.

4.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.

    • HRA informed advocates that all Medicaid & Medicare Savings Program applications for people who are age 65+ or who are disabled and have Medicare, so cannot apply on NYSofHealth  - can

      • E-FAX applications to 917-639-0732  (HRA PREFERS this to mailing! 

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

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 

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

  • Home Care Association of NYS - Covid-19 Resource Page

  • October 14, 2020, Dear Administrator Letter lifting  eaerlier suspension of the annual health assessment for all personnel. All personnel are advised to obtain an annual health assessment by December 31, 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 (but were later reinstated 10/14/20).

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.

ADULT DAY CARE PROGRAMS - Medical Model and Social Model

  • Adult Day Health Care centers - closed  (March 13, 2020) (Medical Model programs only; DOH does not regulate social adult day care but they are apparently also closed) 

    • Medical Model ADHC programs may offer telehealth services --  COVID–19 Telephonic and Telehealth Services Available to Statewide Adult Day Health Care Program Services – (Web) – (PDF) 03.28.20.  COMMENT:  MLTC plans should continue to contract with ADHC for telehealth. 

    •  4/7/20 - Social Adult Day Care programs may offer telehealth services for MLTC plans - COVID-19 Guidance for Providing Adult Social Day Care (SDC) Services Telephonically. (Web) - (PDF) 

    • Questions and Answers Related to COVID-19 Guidance for Providing Adult Social Day Care (SDC) Services Telephonically, (May 16, 2020)(MLTC plans REQUIRED TO offer telephonic/telehealth  SDC services to members, and plan must reach out to members who received the SDC service before they closed down 3/18, and offer either telehealth or telephone services from SDC.  (NOTE that does not require MLTC to offer increased home care services in lieu of the day care services)  

      • SDC programs may offer home-delivered meals, and MLTC plan can contract with the SDC to provide them.  

Nursing Homes and Adult Care Facilities - Assisted Living

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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