Navigating the Medicaid Home Care System

By Ronald A. Fatoullah, Esq. and Stacey Meshnick, Esq.

{3:04 minutes to read} Recently, it has become increasingly difficult for those in need to obtain 24-hour home care, especially split shift care (two 12-hour shifts). It is unclear how New York State will be able to sustain the Medicaid home care program with the move in recent years to managed long-term care (MLTC), which is essentially an HMO model (Medicaid pays the agencies the same monthly amount per recipient, whether they provide four hours per day or 24 hours per day) and with the current challenges to wage and hour laws for home care workers.

If an individual is already receiving care and the hours are reduced, he or she must be provided with written notice as to the reduction and the reason for such reduction. There are methods to appeal this decision. The individual can initiate an internal appeal and request a reevaluation. However, it is important to simultaneously request a Medicaid fair hearing with "Aid Continuing" within ten days of the decision. If the Commissioner of the Department of Health grants the request for Aid Continuing, Medicaid must continue to provide services to the individual at the same level at which he or she was previously awarded until such time as a "Decision After Fair Hearing" is issued.

In order to receive the necessary care, it is important to know what needs to be demonstrated to the agency evaluating the number of hours that will be provided. A common misconception is that services are based on the diagnoses of the Medicaid recipient. In fact, hours are awarded based on the extent to which the Medicaid recipient requires assistance with his or her Activities of Daily Living (ADLs). Therefore, during an evaluation, it is important to educate the evaluating nurse on which ADLs the Medicaid recipient requires assistance with and the frequency of such need. The ADLs that typically result in a higher award of hours tend to be ambulation/transfers and toileting.

It is important for a Medicaid recipient to offer concrete evidence of his or her needs. In addition to specifying the activity, the frequency of the need must be addressed, such as the recipient requiring assistance with going to the bathroom several times during the night.

If an individual must attend a fair hearing, he or she should bring any documents supporting the need for increased care. Such documents include doctors' recommendations and an Affirmation from a doctor, medical records, evaluations performed by disinterested parties, and a witness, such as an aide.

Personal care services must be authorized in amounts that are medically necessary. While there are specific standards for determining the need for 24-hour care, the regulations are not as specific for people who require less than 24-hour care. Local Medicaid programs as well as managed care and MLTC plans that authorize personal care aides are permitted to use assessment tools that may not result in receiving the number of hours actually needed.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Stacey Meshnick, Esq. is a senior staff attorney at the firm who has chaired the firm's Medicaid department for over 15 years. The law firm can be reached at 718-261-1700, 516-466-4422, or toll-free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also a partner with Advice Period, a wealth management firm, and he can be reached at 424-256-7273.