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In New York, there are over 10,000 Medicaid fair hearings pending past the 90-day deadline. The backlog grew significantly during the COVID-19 Public Health Emergency and is the largest in the nation. To address the backlog and avoid corrective action, the Department of Health (DOH) announced a fair hearing compliance agreement on February 4, 2025. The compliance plan is in effect through December 31, 2025. This policy was announced as MLTC Policy 25.01 and in a February 4, 2025 Letter to Managed Care Plans. The Fair Hearing E14 waiver for the duration through December 31, 2025, the duration of the Fair Hearing Compliance plan. See the Department of Health's 2025 Fair Hearing Update Letter attached to this article and available here. The Fair Hearing E14 waiver provides that OTDA order aid continuing, where applicable, even when the request is not timely and prohibits recoupment of aid continuing among other things. The Pre-Hearing Disposition (PHD) Process The main strategy of New York's fair hearing compliance plan is a pre-hearing disposition (PHD) process. A PHD has the same impact as a fully favorable fair hearing decision for the Appellant. This means that if a PHD is issued, the fair hearing should be fully resolved in the Appellant's favor avoiding the need for the hearing. Download an example of a PHD here. Under the compliance plan, DOH has directed Medicaid Managed Care Plans (MMCP) to attest to a PHD for certain pending fair hearings. DOH has identified pending hearings with the following criteria as eligible for a PHD. The pending hearings must be:
In February 2025, DOH sent each MMCP a spreadsheet of pending hearings and required the MMCP to attest to a PHD for each matter. MMCP's responded to the first batch of pending hearings in mid-February 2025 and PHDs issued the week of March 10, 2025. In the instructions to MMCPs explaining how to completing the spreadsheet, DOH directed that "plans are now required to agree to PHD cases unless the plan can provide an allowable reason why a . . . case should not go through PHD." The instructions state that a plan may not NOT reject a PHD for any of the following reasons: • Plan believes a PHD is not appropriate • Plan believes the reduction or rejection of increase is appropriate • Increase was temporary, including temporary for continuity of care • Member was not following systems or processes (Not specific enough, see below) • Member is problematic (Not specific enough, see below) • Member has recently been assessed • Member has transferred to another plan since fair hearing was originally filed.
The instructions provide the following reasons in which an MMCP MAY reject a PHD: • The member is deceased (this should be indicated separately) • The hearing has been withdrawn • A case specific reason which DOH will review DOH intends to send additional batches of pending hearings to MMCPs to be reviewed for PHDs throughout 2025. What are the MMCP's obligations after the PHD is issued? After a PHD is issued by the Office of Temporary Disability Administration (OTDA) the MMCP must issue a new service authorization to the member. The service authorization must specify the type and amount of services as required by the Aid Continuing (AC) order. DOH's 2025 Fair Hearing Backlog Directive requires that the MMCP "must send a notice of service authorization to the members promptly and as expeditiously as the member’s condition requires and no more than 72 hours from when the plan receives notice of the fair hearing decision." See #10 at p. 2. Important Tip: The service authorization is very important. Please ensure that you get a copy from the MMCP and keep it in your records. If the MMCP fails to send you the service authorization, you may file a grievance with the MMCP or file a complaint with the Department of Health's TAC Unit. Consumer Protections After the PHD Following a PHD, an MMCP may not take action to reduce or discontinue hours of service without conducting a new assessment, which must occur after the date the PHD is issued. If the MMCP seeks to reduce or discontinue care after the new assessment, the MMCP must comply with all procedures including providing timely and advance notice complying with MLTC 16.06. The MMCP's obligation to protect consumer rights before reducing or discontinuing care is emphasized in the DOH's 2025 Fair Hearing Backlog Directive. DOH directs that "[s]hould the plan in the future determine to reduce or discontinue Medicaid home care services, the plan must do so based on the results of a new assessment and the plan must issue a new adverse determination notice in accordance with state and federal law." See #14 at p. 2.
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