by Deepankar Mukerji
- Deepankar Mukerji
Buried in a New York state budget bill, (approved as Chapter 57 of the laws of 2015) is a brief, but significant law to speed up the Medicaid process for obtaining home care services. This law could potentially have a positive impact for the elderly and disabled who need care and who qualify financially.
Currently, individuals who qualify for Medicaid and are seeking home care services must enroll in a managed care plan for long term care (MLTC). The current approval process involves a financial eligibility determination for Medicaid, two nursing assessments, enrollment in a MLTC plan, selection of a home care agency and aides to provide services, entry and acceptance of the case into the statewide computer system and most particularly the payment subsystem, before any services can be rendered. At best, qualified individuals must wait approximately two months to get coverage; most wait longer.
Consumer advocates, including the New York Legal Assistance Group, Empire Justice Center and the Legal Aid Society, have argued this protracted approval process creates dangerous and unsafe conditions for frail seniors and people with disabilities who are seeking Medicaid home care services and violates Article XVII of the state constitution and the Americans with Disabilities Act (ADA). The issue of whether people with an immediate need for home care services could receive such care was brought before the New York courts in a case known as Konstantinov v Daines. This case is ongoing and the current orders of the court have determined New York Social Services Law concerning emergency assistance should be applied and individuals seeking home care coverage under Medicaid, and who are in immediate need, are entitled to temporary services while their applications are pending. In response to the court”™s decision, the state passed laws in 2014 restricting such care to a limited category of persons and instances.
However, the state Legislature, by passing the new law, has forced state action in the other direction. The provision, found at Section 36-b and 36-c of the budget bill, has two sections. The first section requires MLTC providers to “adopt” expedited procedures to approve home care services for people with immediate needs after Medicaid eligibility has been determined. The second section provides for the Department of Health to establish procedures for a determination of Medicaid eligibility within seven days of a complete application.
While it remains to be seen whether the regulations implementing the first section will be workable, the second section is encouraging. Typically, an application takes six weeks to be processed, so reducing that time frame to seven days will considerably improve the prospects for people in immediate need of services. Once the person has been found financially eligible, an MLTC provider would then be responsible for expediting the assessment and enrollment process to ensure that the immediate needs are addressed.
Certainly, the state Legislature has made an attempt to address structural delays in the system; however, the procedures themselves have not yet been published in the form of regulations or policy directives. There are numerous logistical issues that will make the implementation difficult. In the meantime, many who are involved with elder law and elder care remain hopeful of seeing real progress for New York”™s elderly and disabled.
Deepankar Mukerji is counsel to Keane & Beane P.C. in White Plains, focusing on elder law. Prior to joining the firm in 2007, he had a 20-year career with Westchester County, most recently as director of resources for the Department of Social Services. Contact Mukerji at dmukerji@kblaw.com or 914-946-4777.
