Class Action Changes State Policy

on County to County Medicaid Moves

August 1, 2008

Author: Trilby de Jung

Thanks to the successful resolution of Luberto v. Daines, Index No. CV-05-5421 (EDNY), a class action lawsuit filed on Long Island by Peter Vollmer, Medicaid and Family Health Plus recipients who move from one social service district to another no longer have to reapply for Medicaid, as long as they notify the original district of their change in residency, and have no other change in circumstances relevant to Medicaid eligibility.

In October of 2005, Mary Luberto, a Medicaid recipient in need of continuous personal care services as a result of a brain aneurysm and a prolonged coma, moved from Nassau County to Suffolk County.  When Nassau County refused to transfer her Medicaid case and Suffolk County insisted that she establish eligibility as a new applicant (complete with a face to face interview and documentation of eligibility requirements already verified in Nassau county), Ms. Luberto brought suit.

The lawsuit challenged the policy and practice of the New York State Department of Health (NYSDOH) to require local social services districts to terminate Medicaid to recipients who relocate to another social services district and process an  entirely new Medicaid application for the newly   relocated, Medicaid recipient in the new county.  Luberto sought relief on behalf of a statewide class of Medicaid recipients who are subjected to this policy against a defendant class comprised of all local social services commissioners statewide and the NYSDOH.  The complaint alleged violations of the constitutional right-to-travel, as well as due process, equal protection, and preemption by federal law and regulation.

On November 13, 2007, a Stipulation and Order of Settlement was "so ordered" by Judge Wexler in the Eastern District.  The stipulation requires social services districts to seamlessly transition all Medicaid recipients who relocate inter-district and so inform their local district on or after December 28, 2007, without imposing the burdens of termination in the original county and reapplication in the new county.  The stipulation and complaint in Luberto are posted in the Benefits Law Database which can be accessed in the Online Resource Center at: http://onlineresources.wnylc.net/welcome.asp?index=Welcome

This year's Health Budget amended Social Services Law §62(5)(a) to conform with the Luberto settlement, by adding a new paragraph (a-1) which provides:

• Medicaid recipients who move from district to district are required to inform the original district of their new address and any material changes in circumstances affecting medical assistance eligibility;

• The original social services district shall then continue to provide Medicaid for the period ending on the last day of the month following the month in which the Medicaid recipient reported his or her move and new address, provided that the recipient is otherwise eligible and has not yet begun receiving Medicaid in the new district;

• The recipient then becomes eligible for Medicaid in the new district without further application, beginning on the day after the last day of the month following the month in which the move was reported.

• The new policy does not apply to Medicaid recipients who are institutionalized in a hospital, nursing home, intermediate care facility, inpatient psychiatric center or inpatient alcohol treatment facility.

The process gets slightly more complicated for those enrolled in Medicaid Managed Care or Family Health Plus plans.  The Local Commissioners Memorandum that was issued to explain the new policy to local districts (see below) provides that although cases will transition to new districts with fee-for-service coverage, recipients who were enrolled with a plan under Medicaid Managed Care should be re-enrolled in the same managed care plan in the new district if the plan is available.  If that plan is not available, fee for service coverage will extend while managed care enrollment proceeds according to local district requirements.

Likewise, Family Health Plus recipients are to be re-enrolled in the same FHPlus plan in their new district of residence if the plan is available.  Individuals who have moved to a district where only one FHPlus plan is available must be enrolled in that plan.  If the FHPlus plan is not the same plan the individual was enrolled in, the new county must take the steps necessary, including contacting the plan in writing if necessary, to insure the enrollment is effective in the new plan by the first day of the month following the closing in the original county.  If more than one plan is available in the new district, but the original plan in not one of them, the case should transition to the new district, with provisional coverage and the new county is to provide the individual with plan selection information as soon as possible.

For further details on the procedures for recipients who have FHPlus, as well as Temporary Assistance Medicaid, see LCM 08 OHIP/LCM-1, "Continued Medicaid Eligibility for Recipients Who Change Residency (Luberto v. Daines), at http://onlineresources.wnylc.net/welcome.asp?index=Welcome .  A second directive should be issuing within the next few months to instruct local social services districts of the retroactive relief that will be available for class members who have been harmed since November 17, 2002, by New York State's former policy of terminating Medicaid coverage because of an inter-district move.

The NYSDOH has said computer changes have been made to prevent local social services districts from terminating coverage for any non-institutionalized Medicaid recipient who move within the state.  However, roll-outs of new procedures are rarely smooth.  In addition, the state has been resistant to including Medicaid recipients in need of home care and medical transportation in the new procedures. Peter Vollmer has asked that any advocates who come across anyone whose Medicaid coverage is terminated because of relocation within New York State to contact him as plaintiff class counsel, at (516) 277-1156).