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Old 05-18-2011, 12:44 AM
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Exclamation Medicaid Budget Cuts Triggering Illegal Cuts in Certified Home Health Services -- Kno

Medicaid Budget Cuts Triggering Illegal Cuts in Certified Home Health Services -- Know Your Client's Rights - Federal Court Suit Filed 4/29/11

A federal lawsuit has been filed challenging arbitrary cuts in Medicaid Certified Home Health Agency (CHHA) services, precipitated by changes in reimbursement enacted in the State budget , some of which were effective immediately - on April 1, 2011. Click here for the Press Release by the New York Legal Assistance Group describing the lawsuit and giving contact information for people affected by these cuts. Click here to see the Complaint.

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.

Since April 1st, there have been numerous reports of some CHHAs sharply reducing hours of home health aide services, or of refusing 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 4/8/11, the State Commissioner of Health sent all CHHA administrators a directive reminding them of some of the requirements under state law. See DOH Letter 4/8/11.

On 4/15/11, the Commissioner issued a second Dear Administrator Letter further fleshing out the existing due process protections of CHHA applicants and recipients. See DOH Letter 4/15/11.

On 4/21/11, the NYLAG filed a lawsuit 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.

The State letter confirms that these changes in reimbursement alone do not allow CHHAs to reduce home health aide services that were previously authorized. 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.

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 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 4/11.

WARNING: Misinformation to treating physicians Some CHHAs are giving misleading information to the patient's physicians, as well as to the patients and their families, which may mislead treating physicians into signing orders for a lower amount of home care services than the physician believes are medically necessary. IT IS VITAL THAT advocates 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.

WHAT TO DO:

1. Make sure the treating physician provides the CHHA with a written statement of their professional opinion as to the medically necessary amount of home health aide services needed by their patients.
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 CONTINUING. Provide 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 http://projectfair.org/request_form.html (in-person requests in NYC can no longer be filed at 330 W. 34 St).
3. If you need legal advice or representation, call one of the following:
NYLAG 212-613-5000(advice and representation)(NYLAG is counsel in the lawsuit challenging these cuts in CHHA services)
Selfhelp Community Services 212-971-7658(advice only)
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 NYS DoH, Division of Home and Community Based Care is responsible for investigating complaints and incidents for home care agencies and hospices in NYS. 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 10-4pm Mon-Fri. Complaints & 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 Ave, Delmar, NY 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.
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