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Medicaid Budget Cuts Triggering Illegal Cuts in Certified Home Health Services -- Know Your Client's Rights - Interim Settlements in Federal Court Lawsuit

20 Jun, 2011

Interim settlements have been reached with two certified home health agencies that were sued in a federal lawsuit  challenging arbitrary cuts in Medicaid Certified Home Health Agency (CHHA) services, precipitated by changes in reimbursement enacted in the State budget  effective  April 1, 2011. 


The changes in reimbursement and other budget changes are described here Fundamental Changes to NYS Medicaid in 2011 State Budget.   None of these changes requires or allows immediate reduction or termination of CHHA services.  The lawsuit challenges widespread cuts in hours of home health aide services, or refusials by CHHAs to reinstate home health aide services after their patients were hospitalized or in short-term rehabilitation.  CHHAs have misinformed patients and their families that Medicaid law no longer allows 24-hour care.  These actions violate existing state law and regulations.  

  • On April 8th  and 15th, 2011,  the State Commissioner of Health sent all CHHA administrators two directives reminding them that state law  does not allow CHHAs to reduce home health aide services that were previously authorized, without doctor's orders and notice and hearing rights.  Similarly, if a CHHA client is hospitalized, or in temporary short-term rehabilitation, these changes do not allow the CHHA to abandon them -- the CHHA must reinstate the same home health services after the hospital or rehab stay is over, if the client continues to need the services as prescribed by his/her treating physician.   See DOH Letter April 8, 2011  and  See DOH Letter April 15, 2011.  

  • On  April 21, 2011, the New York Legal Assistance Group filed the lawsuit, Johnson v. Shah in federal court in the Eastern District of New York, challenging these cutbacks and seeking to restore home care services for individual clients. See news article, the Complaint, and their press release

Past litigation, called Catanzano v. Dowling, established strict procedures that CHHAs must follow when they reduce or terminate services, and limit the grounds for a CHHA to reduce or terminate services -- but the grounds are limited, and procedures must be followed.   See this article on CHHA services.    The CHHA must arrange for the local Medicaid office to give the client written notice of the proposed reduction, with an opportunity to request a Fair Hearing with "Aid Continuing."  The grounds for reductions and the written procedures are described in this Selfhelp Fact sheet.   

  • Note that a hospitalized individual who had received CHHA services before the hospital stay is considered a "recipient" for purposes of being entitled to Notice, Hearing and Aid Continuing rights -- in other words, the CHHA must reinstate his/her services when ready for discharge.   

  • State regulations also provide, "Services shall not be diminished or discontinued solely because of the change in the patient's source of payment or the patient's inability to pay for care."  10 NYCRR 763.5(f).  This provision prohibits a CHHA from reducing services solely because of changes in Medicaid reimbursement enacted by the state effective April 2011.

Interim Settlements Reached with Two Certified Home Health Agencies - in settlement of Preliminary Injunction Motion

Par. 1.  If treating physician did not order the reduction in hours, CHHA will refer any proposed reduction to HRA to give notice with hearing rights, pursuant to the Catanzano implementation Plan in 18 NYCRR 505.23 

Par. 2.  If reduction is pursuant to a treating physician's order --

2.a.  If the physician's order was prepared or requested by Americare, Americare will mail written notice to client and designated legal representative 6 business days before proposed reduction, with the amount of proposed hours and effective date.  The notice will state that if client believes doctor ordered the reduction in error, doctor may fax a new order to Americare at 718-256-5600.  

Client won't request fair hearing during the 6-day notice period.   If doctor confirms during that period that reduction was validly ordered, then no hearing will be requuested based on that order  (Par. 3)

2.b.  If the physician was acting on his or her own initiative to contact Americare to reduce hours, then Americare may reduce the services immediately upon oral notice to client, but must give written notice to client with same contact in foregoing bullet point. 

Agreement is essentially the same as Americare, except that advance notice described in 2.a. must be received by client 3 business days before implementation of reduction.  Fax number for physicians to send corrected orders is 718-368-6259.   

Advocacy Steps  - WHAT TO DO 

 1.  WARNING:    Some CHHAs are misleading treating physicians into signing orders for a lower amount of home care services than the physician believes are medically necessary.   Advocates should inform physicians that they should continue to prescribe the hours of home health service that their patients need in order to remain safely in the community.  Their written orders are a key part of Medicaid home care authorization, and without orders that represent their professional judgment of medical necessity, their patients will not receive the services they need.

For other CHHAs -- find fax or phone number on this webpage http://homecare.nyhealth.gov/ 

2.  Request a Fair Hearing if hours are reduced or if services are not reinstated in the amount provided before a temporary hospital or rehab stay.    Make sure to request AID CONTINUINGProvide the name and contact number of the CHHA and a copy of the treating physician's written statement if you have it.   To request a hearing,  go to this site http://projectfair.org/request_form.html (except note that in-person requests in NYC can no longer be filed at 330 W. 34th Street).

 2.a.  Request Documents Needed to Prepare for Fair Hearing -- Forms attached to request from both:

3.  If you need legal advice or representation, call one of the following:

  • New York Legal Assistance Group -- (212)-613-5000 (advice and representation)(NYLAG is counsel in the lawsuit challenging these cuts in CHHA servicess)

  • Selfhelp Community Services  - (212) 971-7658 (advice only)(INTAKE CLOSED UNTIL JULY 18th). 

  • Legal Aid Society Health Law Unit (212) 577-3575 (advice only)

  • Empire Justice Center (800) 635-0355 (technical assistance to professionals - outside of NYC)

4.  In addition to (not instead of) requesting a fair hearing,  file a complaint with the NYS Dept. of Health -

The New York State Department of Health, Division of Home and Community Based Care is responsible for investigating complaints and incidents for home care agencies and hospices in New York State. The federally mandated Home Health Hotline (1-800-628-5972) can be called 24 hours per day, seven days per week. The hotline is manned by Division of Home and Community Based Care staff from 10 a.m. to 4 p.m. Monday through Friday. Complaints and incidents may also be submitted by fax (518-408-1636) or by mail to:

Bureau of Home Care/Hospice Surveillance and Quality Indicators/Evaluation

161 Delaware Avenue

Delmar, New York 12054

Alternatively, you may send an e-mail to hmhscsurv@health.state.ny.us with the nature of the complaint. We also would appreciate if you would optionally provide us with your e-mail address, contact number, and name, so that we may contact you promptly regarding the complaint.

Prepared by Selfhelp Community Services, Inc.  April 12, 2011, updated  June 20, 2011

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