NY Health Access About Us   |   Contact Us Empire Justice Center Legal Aid Society NYLAG WNYLC

NYS Budget Victories - "Spousal" and "Parental" Refusal Remain Intact, "Aid Continuing" Rights in Managed Care & MLTC, SCRIE Increase

31 Mar, 2014
The details of the 2014-15 NYS Budget is just being voted on today -- posted at  A9205/6914 -- details are just being digested, but Medicaid recipients can celebrate at least  two hard-won victories!! We owe a huge thank you to Assembly Health Committee Chair Richard Gottfried and the staff of the Assembly Health Committee and Ways and Means Committees!  Please thank them!

1 --Spousal and Parental "Refusal" Remain Intact!

The Governor had proposed once again to abolish "spousal refusal" for most Medicaid recipients, allowing it to remain only for couples where one spouse was enrolled in a Managed Long Term Care (MLTC) Plan.   This would have left out many married individuals -- those who need Medicaid for services other than managed long term care,  those whose county doesn't yet have MLTC plans, those who need the Medicare Savings Programs (MSPs) for help with out-of-pocket Medicare costs, hospice recipients who are not eligible for MLTC, and children with chronic or acute illness whose parents cannot afford the cost of insurance.   Many advocacy groups including Medicaid Matters NY, the NYS Bar Association Elder Law Section, and the Coalition to Protect the Rights of New York’s Dually Eligible[¹]  Against Gov's Proposal to Limit Spousal Refusal to Those in Managed Long Term Care. Download a PDF copy of the Coalition's Statement, 

2-  Vital Fair Hearing Rights Protected for Medicaid Managed Care - "Aid Continuing" Guaranteed when a Managed Care or MLTC plan reduces or stops services

Thanks to Assemblyman Richard Gottfried, Chair of the Assembly Health Committee, the most vulnerable Medicaid recipients are guaranteed the right to “aid continuing” in fair hearings -- one of the most fundamental rights guaranteed by the Due Process clause of the Fourteenth Amendment.  Since the U.S. Supreme Court decided Goldberg v. Kelly, 397 U.S. 254  in 1970,  recipients of  Medicaid and other benefits that are based on financial need are entitled to notice and a hearing before their benefits are reduced or terminated.  This means the Medicaid program has always issued a written notice giving the right to request a hearing with “aid continuing” before  reducing or terminating long term care services. 18 NYCRR §§ 358-3.6, 505.14(b)(5)(v)(b).  If a hearing is requested before the effective date of the change, the services continue for the months it takes to hold and decide the hearing. 

In the MLTC program, however, the Department of Health authorized MLTC plans to reduce and terminate hours of home care services, with no right to Aid Continuing, if the plan’s service reduction coincides with the end of the plan’s “authorization period” for the services.  Home care services have always been authorized for an "authorization period" of up to six months.  This ensures that the administrator - whether the local Medicaid program or an MLTC plan -- has reassessed the individual's needs to make sure services meet changing needs.  Since these are LONG-TERM care services, the end of the authorization period does not mean services should end - they should be reauthorized with no interruption.   But - the State's view allowed disruption and even termination of these services without these crucial hearing rights.

The NYS Budget incorporates an Assembly Bill proposed by Chairman Gottfried (A4996) that guarantees the right to receive AID CONTINUING "without regard to expiration of a prior service authorization."  The final budget bill is A9205 Sec. 42, amending Soc. Services Law Sec 365-a, subd. 8 (Section 42 is at pp. 134-135 at this link).  See NYLAG Statement in Support of A4996. 

WARNING:   MLTC members must still "exhaust" their internal appeals within the MLTC plan before they request a fair hearing.  Many people don't realize that their fair hearing will be DISMISSED if they did not first request an INTERNAL APPEAL from the MLTC plan.  See more about MLTC appeals in this article

It is hard to overstate the harm caused by denying “aid continuing” for dual eligibles receiving long term care services. An individual whose 24-hour care is reduced to 8 hours/day would be at severe risk of harm if left alone 16 hours/day without care for several months, while a fair hearing is pending to challenge the reduction.   Falls and other accidents, malnutrition, pressure sores could result.  Without help to take medications, medical conditions could deteriorate.  The result could  lead to avoidable hospital stays, institutionalization and even death.  It is the prevention of this irreparable harm that is the cornerstone of due process.  

  Here's an example of one of NYLAG's clients who will now be protected by this change:

Recent Example of Illegal Denial of Aid Continuing

In November 2013, a managed long term care plan threatened to reduce 24-hour split-shift continuous home care to 12 hours a day for Ms. D, a severely disabled New York City resident who cannot get out of bed or go to the bathroom without an aide’s help.   Though she requested a hearing, the managed care plan and the State’s hearing office contended that she did not have the right to “aid continuing” for the months that the hearing would take, because the date of the threatened reduction coincided with the last day of the so-called “authorization period” of the services.  She would have been left alone 12 hours per night had not NYLAG been able to reach a settlement in  her case.  Thanks to this new change in the law, it won't happen to her when the next authorization period ends --  or to thousands of others like her.  

See NYLAG's Statement in Support of A4996

3 - Other Budget Items

  1. Authorizes language to create a Basic Health Program

  2. Expansion of the membership and scope of the Medicaid Managed Care Advisory Review Panel (MMCARP), including new language proposed by Assembly Health Chair Gottfried to require review of notices, trends in service denials, and more.  It also requires MMCARP meetings to be webcast.

  3. Limiting recovery against Estates of MAGI recipients - When many people across the nation expressed reluctance to apply for the expanded Medicaid on the Exchange, for fear of a lien being placed against their Estates after they die, CMS issued a policy directive in February 2014  that allowed States to limit the scope of recovery.   Though this came late in the NYS Budget process, CSS Community Health Advocates, NYLAG and other advocates succeeded in convincing NYS to exercise this option afforded by CMS.  For anyone who obtains Medicaid using the new "MAGI" budgeting, a lien on their Estate can only be placed if they were over age 55 when they received Medicaid, and only for the cost of certain services -- nursing home services, home and community-based services, and related hospital and prescription drug services.  MAGI recipients are generally not eligible for nursing home care anyway.   This is section 62-a of the budget law at  A9205/6914.  NOTE that this does not apply to "non-MAGI" recipients - anyone who has Medicare is non-MAGI and is still subject to a lien against their Estate for the cost of all Medicaid services received after age 55.

  4. SCRIE INCOME LIMITS RAISED - Effective July 1, 2014, the SCRIE limit for household income increases to $50,000/month from $29,000/month.  Enacted in (S6355-D/A8555-D) pp. 81-82 - Part U, sec. 1.

  5. EPIC INCOME LIMITS RAISED -  This is the state-funded prescription drug subsidy program for people age 65+ to subsidize costs incurred with Medicare Part D.  Effective April 1, 2014, the income limit for the deductible plan will increase from $35,000 to $75,000/year for those who are single and from $50,000 to $100,000/year for those who are married.  See  EPIC's website for old rules.  In the new eligibilty group:

SINGLE deductible  will go up to $2,430 year for highest income (up from max of $1,230/year)

MARRIED deductible will go up to $3,215/year for highest income (up from max of $1,715/year)

See Sections 12-13 of  A9205/6914  (pp. 19-21)



¹DUALS COALITION STEERING COMMITTEE:  Center for Disability Rights ● Center for Independence of the Disabled/NY ● Community Services Society ● Consumer Directed Personal Assistance Association of New York State ● Empire Justice Center ● Legal Aid Society NYC ● Medicare Rights Center ● New York Association on Independent Living ● New York Legal Assistance Group. 

print  Print   Share

This site provides general information only. This is not legal advice. You can only obtain legal advice from a lawyer. In addition, your use of this site does not create an attorney-client relationship. To contact a lawyer, visit http://lawhelpny.org. We make every effort to keep these materials and links up-to-date and in accordance with New York City, New York state and federal law. However, we do not guarantee the accuracy of this information. To report a dead link or other website-related problem, please e-mail us.