August 2018 Question of the Month
My father received a notice from his MLTC Plan that he would be re-assessed to see if he still needs the same hours of care by his aide. We think he needs more hours of care because my siblings and I can only care for him on the weekends. The MLTC Plan mentioned something about appeals. Has there been a change in the rules?
Through its home care program known as Managed Long-Term Care (MLTC), NY State still provides services to homebound seniors, and to seniors who need assistance in the home but can attend a day care program for memory-impaired persons.
But what happens if the MLTC notifies you that it will reduce the number of hours it is willing to pay for an aide for your loved one?
Or, what if you requested increased hours for an aide or number of days for day care and MLTC’s response is to deny your request or re-evaluate and decrease the number of hours?
With the new MLTC administrative rules which began in May, 2018, challenging a reduction in hours is now more complex, but not impossible.
The new rules require the MLTC to provide written notice of any change of care plan, including the reduction of aide hours and / or services.
- You must file an internal appeal through the MLTC plan. Even if you telephone the plan administrator, you are still required to follow up with a written appeal request. The exception is in an emergency, called an expedited appeal.
- Since the appeal must be made by the senior, who may have dementia, either the senior may designate a representative or, a well-drafted power of attorney document may have already designated you as the agent(s) to serve as the MLTC appeal representative, to handle their interests in the MLTC appeal.
- Once the appeal is requested, the MLTC plan must make a written decision within 30 days. If an expedited emergency appeal was requested, the MLTC must notify you of its decision within 72 hours.
- Critical to this step is that the senior or their designated representative must request that the level of services continue (“Aid Continuing”) unchanged during the time that the MLTC Plan is reviewing your request challenging the decrease in hours. “Aid Continuing” must be requested within 10 days of the date of your MLTC notice, not 10 days from when you request the internal appeal.
- If the MLTC Plan denies the appeal, and you want to continue the challenge, you must request a Fair Hearing from NYS Medicaid’s Department of Social Services (DSS) within 120 days of the date on the MLTC Plan’s written determination on your internal appeal.
- However, to arrange ongoing “Aid Continuing,” the senior or their designated representative must request the Fair Hearing from the NYS DSS within 10 days of the written decision of the MLTC Plan. This can be requested by telephone, fax or online. Click link for more information: https://errswebnet.otda.ny.gov/errswebnet/erequestform.aspx
A legal basis is needed for you to challenge the MLTC and for the MLTC to challenge your request. For reductions in care, the MLTC Plan must prove that the current level of service is no longer medically necessary for the senior. For your request to increase day care hours or days, you must prove that the increase is medically necessary for the senior.
It is – even for the most seasoned attorneys. Know your rights and protect your rights. My law office provides legal representation for MLTC internal appeals and fair hearings. We counsel and represent seniors in the preparation of their powers of attorney to meet their need for financial management and health care representation in the future.
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