RIGHTS of People Who Cannot Travel to a Fair Hearing Because of Disability

• This article can also be downloaded as a Fact Sheet here. 

Individuals who, because of mental or physical disabilities, cannot travel to a fair hearing without substantial hardship or medical detriment, have rights under an injunction in a class action called Varshavsky.  Read about the court order and the right to a home hearing here.   When the hearing involves a request for an increase in Medicaid home care, the appellant has special rights under Varshavsky.   See COVID-19 Note here. 

• CONTENTS

1.  INTRODUCTION to VARSHAVSKY ORDER and PROTECTIONS

2.  Home Hearing Procedures - with Tips in Hearings seeking Increases in Medicaid Home Care  

3.   COVID-19 PANDEMIC NOTE

4.   List of NYS OTDA Form Notices Used for Varshavsky Hearings - with links to download

5.   CONTACTS

1.   INTRODUCTION to VARSHAVSKY ORDER and PROTECTIONS

See this article for a summary of the the original New York Supreme Court decision granting the preliminary injunction in  Varshavsky v Perales, Index No. 40767/91 (Sup. Ct. New York Co. March 5, 1992),  affirmed, 202 A.D.2d 155 (1st Dept. 1994).  

Who is considered "homebound" and entitled to Varshavsky Protections?    The class consists of people who, because of mental or physical disabilities, cannot travel to a fair hearing without substantial hardship or medical detriment.  

• Warning:  Under current NYS policy,  Varshavsky does not apply to members of Medicaid Advantage Plus (MAP) Plans.   The rights explained in this article undisputedly apply where the request for Medicaid home care was denied by the local Medicaid agency (Dept. of Social Services) or by a mainstream managed care plan or Managed Long Term Care plan.  The state has taken the position that Varshavsky rights do not apply to the new integrated appeal system for the 10 Medicaid Advantage Plus (MAP) plans in NYS, which began in 2020.  The appeals are called “FIDE” plan appeals, which stands for Fully Integrated Dual Eligible plan. These FIDE hearings are run by a new office within OTDA –  the Integrated Administrative Hearings Office (IAHO).  For more about MAP plans and FIDE appeals see this article.  MAP plan members may contact Varshavsky class counsel Nina Keilin if denied Varshavsky rights – ninakeilin@aol.com.

Under the Varshavsky injunction, the NYS Office of Temporary & Disability Assistance  (“OTDA”) is required to hold a hearing at the appellant’s home within 45 days of the hearing request by a class member.   Because this isn't practical to do, Varshavsky gives special protections: 

• Even outside of COVID-19, it is impractical to hold a home hearing at all, let alone within 45 days of the hearing request.  For this reason, the court order permits the state to hold a hearing first either by phone or, outside of the pandemic, with a representative appearing on the appellant’s behalf. 

• If that first hearing held by phone is decided with a fully favorable decision, then the hearing is over.  There is no “home hearing.”

• If a fully favorable decision is not issued within 45 days of the hearing request, then the state gives the appellant a temporary form of relief in some types of cases.  For class members asking for an increase in home care hours, the state orders the MLTC plan or local Department of Social Services to provide the requested increase until the home hearing is held and decided.  OTDA sends the appellant a letter referencing this “Varshavsky relief” as “Aid Continuing,” which can be confusing, since “Aid Continuing” is generally ordered to prevent a reduction of services.    Sample of OTDA letter at p. 9 of this link.

  • If the issue of the fair hearing is the denial of ANY home care or other services, then there is NO interim relief. 

• The initial phone hearing may not even be scheduled within 45 days—let alone have a decision issued.    So 45 days after the hearing is requested,  OTDA should order the Varshavsky interim relief to start even before a phone/representative hearing is held.  Sample letter  at page 9 of this link. 

• Home Hearings are not being scheduled at all durng the pandemic.   See COVID-19 Note here. 

2.  Home Hearing Procedures - with Tips in Hearings seeking Increases in Medicaid Home Care

--  Also see COVID-19 NOTE here--

It is important to establish homebound status/Varshavsky class membership and to document the request for hours properly to ensure the appellant receives the correct relief.

1. Indicate “homebound” status when you request the hearing.  The fax and online hearing request forms ask if the appellant is homebound.  If the appellant could not travel to a hearing without substantial hardship or medical detriment,  make sure to check YES that the appellant is homebound.   If you request the hearing by phone, this question should be asked.  If you are not asked, be sure to volunteer that the appellant is homebound.   This starts the clock for the 45 days to run until temporary relief is ordered by OTDA.
2. In the hearing request, specify the number of home care hours that had been requested that the plan or Medicaid office denied.  This is important later, when OTDA orders  a “Varshavsky” increase after 45 days.  The increase can only be to the amount of hours the plan denied and that is in dispute at the hearing.

   • If client requested 24 hour care, be specific about whether it is live-in or split shift – especially if client is seeking split shift. Otherwise they’ll interpret a request for “24 hours” to be live-in, which limits the Varshavsky increase.

   • If the plan’s notice is vague on this distinction, which sometimes happens, be sure to request the hearing about the correct amount at issue and point out in your hearing request that the notice is vague or incorrect.  Attach proof of the amount of your request, if this is not clear from the denial notice.   

3. If you’ve indicated that client is homebound,  OTDA will send “Letter 15” requesting that you confirm homebound status by mailing back an attached FORM with MEDICAL proof (attached as pp.  6-8  of this PDF). 

   • COVID-19 NOTE:  You must verify homebound status even during the COVID-19 pandemic even though all hearings are held by phone.  Only people who cannot travel because of disability get the extra Varshavsky protections – see COVID-19 note here.

   • The doctor’s letter submitted to OTDA must specifically address client’s inability to travel to the hearing without substantial hardship or medical deteriment by any available means,  even by taxi, because of her disability.  The letter should not solely list her diagnoses and disabilities.  

   • If client is actually receiving Medicaid 24-hour care or is a permanent resident in a nursing home, you do not need a doctor’s letter. Attach to the form proof if you have it. Otherwise just write it on the form. Usually, the state will know that the person already has 24-hour care or is permanently in a nursing home because it will be in the record. It’s not enough to be REQUESTING 24-hour care to be relieved of the need to send medical proof of inability to travel.  The client must actually already be receiving it. It is also not enough for a client to reside in a nursing home. The nursing home must indicate that the client is a permanent resident. Even if the client is in a nursing home, it is a best practice to submit a doctor's letter to OTDA addressing the client's inability to travel to the hearing without significant hardship or medical detriment due to their mental or physical disability.

   • TIP:  If you are working with the client’s physician to write a letter of medical necessity anyway—at the plan level  or for the hearing --  ask the MD to add to the letter of medical necessity the inability to travel to a hearing without substantial difficulty, so that letter can be used to document homebound status.  Only one and not two doctor’s letters may be needed. 

4. At the initial hearing (whether held by phone or, if there is reason to request the hearing without the appellant present be held in person) – verify with the Judge that the client is classified as “homebound.”  If the client has not been classified as homebound, it’s not too late.  Ask the Judge to change the classification.   If it has been more than 45 days since the fair hearing was requested, ask the Judge to notify OTDA that the client is entitled to the “Varshavsky” increase, a/k/a Varshavky "aid continuing," described below.   Follow up with  a call to OTDA a week later to make sure homebound status is indicated.

5. 45 days  after you requested the fair hearing,  OTDA should direct the local Medicaid agency or managed care plan to implement the “Varshavsky increase,” also called “Varshavsky Aid Continuing.”  OTDA will order an increase to the amount of hours the plan or the local Medicaid agency denied that is at issue in the fair hearing.   This is called “Aid Continuing” but it is not the traditional concept of Aid Continuing.  It is a temporary increase that is ordered to continue until the Home Hearing is held and a decision issued.   If that decision is unfavorable, the temporary increase will stop and the hours will revert back to what they were.  OTDA informs the appellant of this relief by sending  a letter (p. 9 at this link)

OTDA will never require the plan or local Medicaid agency to give more hours than appellant originally requested and that was denied.   Nor will OTDA order that a service be provided if the service was denied altogether. 

Warning:  OTDA will NOT order "Varshavsky Aid Continuing" if appellant is enrolled in a Medicaid Advantage Plan.  See this note. 

6. Put a tickler in your calendar to contact OTDA 45 days after the date the hearing was requested, and point out that the client is homebound and it is time for the Varshavsky increase.  Email AnneMarie.Bevilacqua@otda.ny.gov  and homebound.hearings@otda.ny.gov,  and cc Nina Keilin, Varshavsky class counsel  at Ninakeilin@aol.com.   Be sure to include the Fair Hearing ID number assigned by OTDA (this is on the Acknowledgement of fair hearing request sent by OTDA after receiving the request). 

7. After the fair hearing –

   1. If you win the initial hearing, which the client may have participated in by phone, or not at all, OTDA will issue a hearing decision as usual.  If the client had received a “Varshavsky increase” in the meantime, the favorable fair hearing decision awards that same increase, and the temporary Varshavsky increase now becomes permanent.  If the plan wants to reduce hours in the future, it must send a new Initial Adverse Determination to reduce hours that  must comply with NYS DOH MLTC Policy 16.06.    

   2. A person classified as homebound cannot lose the initial hearing.  If the Judge finds that the Medicaid agency or managed care/ MLTC plan was correct in denying your request for an increase, then you  should not receive a hearing decision.  Instead you should receive another letter from NYS OTDA (attached at page 10 of this PDF) -- saying the case is being referred for a HOME HEARING. The Notice also explains that “Aid Continuing” is being ordered, which is the special Varshavsky Aid Continuing or “Varshavsky increase” discussed in No. 5 above.  This increase will continue until the home hearing is held and decided.

   3. Sometimes OTDA mistakenly issues an unfavorable fair hearing decision after the initial hearing, even though the client is “homebound” and could not have traveled to the hearing because of their disability.  This may happen because the client has not been correctly coded as “homebound.”  If your homebound client receives an adverse fair hearing decision, contact class counsel for Varshavsky and give the name of the appellant and the Fair Hearing number:  Nina Keilin at ninakeilin@aol.com.   She will investigate whether the decision was properly issued and if not, she will advocate with OTDA to reopen the fair hearing. If the hearing is reopened, “aid continuing” should be reinstated if the issue was a reduction, or the special Varshavsky increase should be implemented if the issue was a denial of an increase in hours.   Either way, a home hearing will ultimately be scheduled and held.

COVID-19 PANDEMIC NOTE

During the COVID-19 Public Health Emergency, all hearings are held by phone. See  20 GIS TA/DC 097 – NYS OTDA Transmittal 20-05 - Allowing or Requiring Fair Hearing Appearances by Written, Telephonic, Video, or other Electronic Means (Oct. 16, 2020)(saying hearings held by phone at least until March 21, 2021)(see updates about hearings during COVID here).  Since all hearings are held by phone, it may seem silly to go through the steps of making sure a client is classified as “homebound” and unable to travel to a regular hearing.   However, it is still important to do so because Varshavsky rights continue through the pandemic.   Though everyone now has a phone hearing, only people who cannot travel to a hearing because of disability get the extra Varshavsky protections.  These protections are:

1. Varshavsky Aid Continuing – the  temporary increase in hours that should be ordered by OTDA 45 days after the hearing was requested, requiring the plan or local Medicaid agency to increase home care until a HOME hearing is held and decided.  The increase should be to the amount originally requested by the consumer, the denial of which is the issue of the hearing.   OTDA informs the appellant of this relief by sending  a letter (p. 9 at this link)
2. Home Hearing – this is the second hearing in the appellant’s home, if the first hearing held by phone cannot be decided fully favorably.  

4.   List of NYS OTDA Form Notices for Varshavsky Hearings - with links to download

The following notices are all attachments to this fact sheet on Varshavsky.

1. “Letter 15” requesting that you confirm homebound status by mailing back an attached FORM with MEDICAL proof (pp.  6-8  of this PDF). 

2. Letter sent about 45 days after you requested the fair hearing, explaining that OTDA directed the local Medicaid agency or managed care plan to implement the “Varshavsky increase,” also called “Varshavsky Aid Continuing” until the hearing is held and decided.  Explained more above.    (p. 9 at this link)

3. Letter from NYS OTDA  sent after the initial phone hearing is held, saying the case is being referred for a HOME HEARING because the Judge decided they could not make a fully favorable decision after the phone hearing.  The Notice explains that the special Varshavsky Aid Continuing or “Varshavsky increase” is being ordered, which will  continue until the home hearing is held and decided.  (page 10 of this PDF) 

5.  Contacts

NYS OTDA Home Hearing Unit  homebound.hearings@otda.ny.gov

NYLAG EFLRP Intake Monday  10 AM – 2 PM  212-613-7310  eflrp@nylag.org

NYLAG Public Benefits Unit Intake  212-613-5000  M, W, Thurs 9 AM – 3 PM

Nina Keilin, Class Counsel for Varshavsky  -- Ninakeilin@aol.com

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