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Empire Justice Memo of Support: Medicaid Long Term Care Recipients Desperately Need Better Consumer Protections!

March 7, 2014


Put “Fair” Back into the Managed Care Fair Hearing Process

A.4996 (Gottfried)/S.6586 (Rivera)

The Medicaid Redesign Team (MRT) initiative has changed the delivery system for Medicaid recipients in New York.  Over the past three years, the New York State Department of Health (DOH) has moved virtually all Medicaid recipients from a fee-for-service (FFS) model to a “managed care for all” model.  In the most recent developments, DOH will move almost all long term care recipients into Managed Long Term Care (MLTC) plans by the end of this year. [1]  Unfortunately, as New York has transitioned long term care consumers into MLTC, it has failed to preserve critical, basic due process rights for this population. 

FFS long term care recipients faced with a proposed termination or reduction of services by their local Medicaid agency can continue to receive those services without interruption while they appeal the termination/reduction through the fair hearing process.  This is called “aid continuing.”  The entire fair hearing process - making the request, having the actual hearing, and receiving their favorable decision - can take up to 3 months or longer.   

New York does not extend these same rights to managed care members whose plans decide to terminate or reduce their services.  These individuals may appeal, but the plan is allowed to go ahead and reduce or even cut off services while the appeal is pending.  There is no right to “aid continuing.”  The most vulnerable Medicaid recipients – those who need personal care to remain safely at home – are left without vital services for 2-3 months, while they are waiting for their fair hearing and the hearing decision.  For most, this means the end of living in their home and the beginning of life in an institution.   

This aid continuing gap puts managed care consumers at risk of institutionalization and also violates basic due process rights guaranteed by the Supreme Court in Goldberg v. Kelly and the US Constitution.  On top of this, plans have been found to inappropriately cut services or hours 3 out of every 4 times when these cases actually do get to a fair hearing.  New York needs to fix this problem and guarantee the same aid continuing rights to all long term care recipients, whether they are in FFS Medicaid or managed care.  A.4996/S.6586 achieves this result.

There is another serious inequity in the MLTC fair hearings process.  New York has added an additional requirement that doesn’t exist in any other part of the Medicaid program, including “mainstream” Medicaid managed care.  MLTC members now must pursue an appeal within the MLTC plan first before they can request a fair hearing (called the “exhaustion” requirement).  This dramatic change to the system has proven very confusing and has even resulted in some people losing all appeal rights completely.  Some MLTC consumers whose plans proposed to reduce their services immediately requested fair hearings, since this is the way appeals have been done for decades.  They wound up losing their fair hearing because they didn’t appeal to the plan first.  By the time they got their fair hearing decision, it was too late to appeal to the plan.  

A.4996/S.6586 levels the playing field by removing the harmful internal appeal exhaustion requirement that only applies to MLTC recipients.  To ensure clear communication, the MLTC plans are notified of every fair hearing request, and are free to review the case internally before the fair hearing.   

RECOMMENDATION: A.4996/S.6586 provides important consumer protections for our elderly and disabled Medicaid recipients who rely on personal care services to remain safely at home.  Let’s put “fair” back into the Medicaid managed care fair hearing process.  Our most vulnerable Medicaid recipients are depending on us.

End Note:
 [1] See MLTC upstate roll-out schedule at

For more information, please contact:

Geoffrey Hale

Empire Justice Center
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614