Understanding Your Rights in CDPA & the Medicaid Long Term Care System

Medicaid provides health insurance for people who are low income and people who have been certified blind or disabled by the state. Medicaid is also available for children, pregnant women, single adults and families. Being Medicaid eligible does not mean you automatically qualify for CDPA, but you cannot receive CDPA services from the state without Medicaid. 

Our friends at New York Health Access have produced an EXCELLENT resource about using Medicaid to get health care. We strongly recommend reading it.

Ways to apply for Medicaid:

New York State of Health

The most straightforward is probably contacting the NY State of Health: The Official Health Plan Marketplace. The Marketplace will provide you with a free enrollment aide to help you apply. If you find it difficult to navigate their website you may also call the Marketplace Customer Service Center at (855) 355-5777 (TTY: 1-800-662-1220). Be prepared to answer detailed questions about income and disability status. 

Your Managed Care Organization

If you are already part of a Managed Care Organization, they may be able to assist you in applying for Medicaid. Managed care organizations also help people enroll in Medicaid directly sometimes, even if they are not currently a member.

Your Local Department of Social Services

If you do not qualify for Managed Care, you may apply through your local department of social services (the county). They can also assist you with certifying (for state purposes) that you are disabled.

In New York City, the local department of social services is named the Human Resources Administration (HRA). You can reach them through NYC’s 3-1-1 system.

The Medicaid Helpline

There is also a Medicaid Helpline to answer questions at (800) 541-2831.

Qualifying for Medicaid despite exceeding Medicaid income limits

Even if you do not meet New York’s income limit for Medicaid, you may still be able to access CDPA and other Medicaid long term services. There are many ways to qualify for Medicaid for people who have more income or assets than the Medicaid income limit, here are some:

• A Supplemental Needs Pooled Trust allows you to qualify by paying excess income into a pooled trust. Medicaid will then cover your health care while the trust will pay for most other expenses (provided there are sufficient funds). Pooled trusts can often help people avoid having to choose between qualifying for health care and covering their other bills. New York Health Access offers an excellent resource  on how to enroll in a trust.
• Using the amount of excess income to pay for medical expenses. For instance, if you have $300 in extra income per month, you would spend $300 on medical expenses and then Medicaid coverage would begin.
• Paying down excess income to your LDSS. For instance, if you have $300 in extra income per month, you would give you LDSS (county) the $300 to qualify for Medicaid continuously.
• The Medicaid Buy-In for Working People with Disabilities (MBI) allows people with disabilities to earn more income than allowable through work, paying Medicaid a co-premium each month to maintain coverage. This program was recently expanded and will soon allow higher income levels for coverage.
• ABLE accounts are a resource for those who were disabled prior to age 26 and:
  • classified as blind,
  • entitled to social security disability insurance or social security insurance because of their disability,
  • have a written diagnosis, OR
  • have a disability identified on the social security administration’s list.

For more information about Medicaid applications and Eligibility, the NY State Department of Health has resources on their website. 

Waivers:

Some people may qualify for Medicaid through what are called waivers. These programs expand traditional eligibility rules; but, impose other rules that could limit access to waiver services in ways that traditional Medicaid services would not be able to do, such as by imposing wait lists. Some of the more common waivers people use in combination with CDPA are:

• Nursing Home Transition & Diversion (NHTD) Waiver 
• Traumatic Brain Injury (TBI) Waiver
• Home and Community Based Services Waiver (through the Office for People with Developmental Disabilities)

Medicaid fraud is a serious federal crime and it is everyone’s responsibility to prevent and report fraud when it occurs. Consumers and PAs who are caught lying about the hours a PA has worked can and likely will be charged with Medicaid fraud.

The most common types of Medicaid fraud consumers should be aware of are:

Billing for Services Not Provided: Intentionally billing for services that have not been provided.

Examples:

• Having a PA clocked in and recording time during a period where the PA is not actually working for the consumer.
• A PA works an 8 hour shift, but they record in the EVV system that they worked 10 hours.

Billing for services outside the United States: Medicaid is a United States-only program, and no payments can be made if the consumer is not in the United States or its territories (including Puerto Rico, Guam, and the U.S. Virgin Islands).

Example:

• A consumer and PA travel together to Canada. The PA records hours worked while they are both in Canada. 

Collusion: Knowingly collaborating with beneficiaries to make false claims for reimbursement.

Examples: 

• A consumer and a PA agree to submit for unworked hours to ensure that PA is paid more.
• A consumer and PA agree to share the reimbursement for hours that were not worked. 

Card Sharing: It is illegal to share your Medicaid Card with anyone else. Similarly it is illegal to share your Medicaid Services such as your PA with another person. 

Example:

• A consumer sends their PA to support a friend’s care when they are being paid to support the consumer. 

Of course, sometimes we all make mistakes. In these instances, you should contact your FI and self-report the situation to their Medicaid Compliance Officer. The same is true if you find out about fraud that is occurring that you are not a participant in. The FI will work with you to help make the situation right as part of their Medicaid Compliance program.

If you know of someone who is committing Medicaid fraud, you can report it by calling OMIG’s Fraud Hotline at 1-877-87 FRAUD (1-877-873-7283) More information about reporting Medicaid fraud can be found here.

While most Medicaid recipients are required to enroll in a managed care insurance plan, some still receive services through their local department of social services (LDSS), or “the county”. 

If you are not required to enroll in a managed care plan, you will receive an authorization for CDPA through contacting your LDSS to find out more. 

Each county in New York State has its own LDSS. The county LDSS serves as a hub for individuals and families to access a variety of services, including Medicaid. In New York City, the LDSS is named the Human Resources Administration (HRA).

Social services departments employ counselors and caseworkers who can help you apply for Medicaid and other benefits. 

Some other services and programs provided by LDSS include:

• Adult Services
• Child Support Services
• Disability Services
• Electronic Benefit Transfer (EBT) – Benefit cards to pay for food, cash assistance
• Employment Resources
• HIV/AIDS Resources
• Home Energy Assistance Program (HEAP) – 
• Housing Assistance
• Rental Assistance
• Supplemental Nutrition Assistance Program (SNAP) – also known as “food stamps”
• Temporary Assistance for Needy Families (TANF)
  • Family Assistance
  • Safety Net Assistance

If you need to locate your LDSS, there is a current directory of local department of social services including addresses and phone numbers. The Human Resources Administration in New York City can be contacted through 3-1-1.

Almost everyone in Medicaid will need to pick a managed care plan. New York has a number of different kinds of managed care plans though. Understanding if you must join, which one you must join, and which is best if you have a choice of plans, can be hard. Here is some basic information about Medicaid managed care in New York.

Types of Medicaid Managed Care Plans

There are a number of different kinds of Medicaid managed care plans. Understanding the different kinds of plans, and the terms used to describe them, is an important first step.

Plans for people who have Medicaid only:

• Mainstream Managed Care
• Health and Recovery Plans (HARPs)
• HIV Special Needs Plans (SNP)

Plans for people who have Medicare and Medicaid, often called dually eligible individuals or “duals”, are called:

• Managed Long Term Care (MLTC)
  • Partially capitated MLTC
  • Medicaid Advantage Plus (MAP)
• Program for All-Inclusive Care for the Elderly (PACE)
• FIDA-IDD

For the rest of this section, we will predominantly talk about Mainstream Managed Care and MLTC. With small differences, the rules for MLTC will also apply to PACE.

Who must sign up for Medicaid Managed Care

Almost everyone who uses Medicaid, whether getting long-term care services or not, will need to sign up for a managed care plan. Those who do not have to sign up fall into two categories:

• exempt – these people can sign up for a managed care plan, but do not have to do so.
• excluded – these people cannot sign up for a managed care plan.

Some of the most common populations that use CDPA or long-term care that are exempt from Mainstream Managed Care include:

• Residents of an Intermediate Care Facility (ICF) operated through the Office for People with Developmental Disabilities (OPWDD).
• Home and Community Based Services (HCBS) participants through OPWDD.
• Indigenous populations
• Nursing Home Transition and Diversion (NHTD) Waiver participants
• Traumatic Brain Injury (TBI) waiver participants
• children in foster care

Some of the most common populations that use CDPA or long-term care that are excluded from Mainstream Managed Care include:

• blind or disabled children separated from their parents for over 30 days
• individuals receiving hospice services at the time of Medicaid enrollment
• those receiving Medicaid and Medicare benefits
• those participating through the Medicaid spend-down
• residents of a nursing home (either temporary or long-term) or Assisted Living Program (ALP)

Some of the most common populations that use CDPA or long-term care that are exempt from MLTC include:

• individuals who are 18-21 years old
• non-dual eligibles over the age of 18
• non-citizens enrolled in Medicaid through a court order

Some of the most common populations that use CDPA or long-term care that are excluded from MLTC include:

• individuals receiving hospice care at the time they are enrolled in Medicaid
• individuals in any kind of institution, including long-term placement in a nursing home
• individuals receiving emergency Medicaid
• individuals receiving services through the Home and Community Based Services waiver operated by OPWDD
• children in foster care
• individuals with private long-term care insurance.

Most people in New York who use CDPA are required to enroll in Managed Long Term Care (MLTC).

If determined eligible for CDPA or other long-term care services by the New York Independent Assessor, your managed care plan will decide how many hours of services that person needs and what tasks your PA or other home care worker can perform. 

Navigating managed care can be difficult. Below, we have gathered information aimed at making it easier – while also making your CDPA program work for you.

Shop around for an MLTC

• You get to choose your MLTC.
• Once you have your NYIA determination, shop around. Schedule evaluations for hours by multiple MLTCs to see which will give you the services you feel are most appropriate to your needs. 

Determination of hours

• One of the primary roles managed care plays in CDPA is determining the number of service hours consumers are authorized to use each week.
• When you have been deemed eligible for CDPA services by NYIA the MLTC may send a nurse to evaluate and determine the number of service hours you are authorized for. 
  • Pro-tip: Often times we want to put our best forward when these assessments happen. This will result in you getting fewer hours than you likely need. Instead, show the worker what you are like on your WORST day to make sure you receive the hours you need.
• The same system is used whenever a consumer requests a change in their service hours. 

Determination of the Plan of Care

• The MLTC will often use the evaluation from NYIA to determine a consumer’s Plan of Care and hours.
• The plan of care tells you what services your worker can perform. 

Continue reading to learn about your right to Appeal and file a Complaint.

People who receive CDPA services through Mainstream Managed Care or Managed Long Term Care (MLTC) have the same appeal rights as anyone in Medicaid, but there are some extra steps in some instances. We have outlined the process:

Appeals and Fair Hearings

• If you disagree with the plan of care or authorized hours approved by your managed care plan, you can appeal their decisions.
• You must begin with the plan’s internal appeals process. This process should be clearly laid out on the authorization itself (The assigned care manager can usually provide you with documentation about the process).
• You must go through all of the plan’s internal appeals process before you can apply for a fair hearing. 
• You can file a fair hearing request without an internal appeal IF the MLTC failed to decide the appeal within the time limits established for the process.
• If the plan’s internal appeals process does not result in a decision you agree with, you can ask for a fair hearing. The fair hearing is a court hearing run by the state with judges who are specifically trained to make these decisions based on your situation and the law.
  • A fair hearing request MUST be requested within ten days of receiving the plan’s final denial (often referred to in documentation as the “Final Adverse determination”) for a consumer to receive a continuation of services while waiting for the fair hearing (often referred to in documentation as a “Continuation of Aid” or “Aid Continuing”).
• However you have a total of 120 days to request a fair hearing without aid continuing.
• You are allowed to represent yourself or have some represent you in a fair hearing. Legal representation while allowed is not paid for by the state. There are however a number of legal aid groups operating in the state that can represent you free of charge or on a sliding scale. A fair hearing is an official legal proceeding. CDPAANYS strongly recommends legal representation in these matters.

The Independent Consumer Advocacy Network (ICAN) offers a statewide network of counselors and lawyers who can work with you individually to file for appeals and fair hearings with your plan. 

To reach ICAN, call: 1-844-614-8800.

Appealing a NYIA Evaluation

• If NYIA determines that you are not eligible to receive CDPA you may request a fair hearing to appeal the decision.
  
  
• A Fair Hearing is a legal hearing before a special type of judge called an Administrative Law Judge (ALJ) to review the decision on your case. During the Fair Hearing you will have the opportunity to tell a judge why you disagree with the decision. You have 60 days from the date on the letter to fill out and mail the Fair Hearing Notice that comes with your letter. You can also call the number on the Fair Hearing Notice to schedule a Fair Hearing. 
  
  
• If you have questions about asking for a Fair Hearing, call the New York Independent Assessor Program at 1-855-222-8350 (TTY: 1-888-329-1541). A New York Independent Assessor Program counselor will explain how to request a Fair Hearing.
  
  
• Fair Hearing request forms in multiple languages are available at: https://otda.ny.gov/hearings/request/#online 
  
  
• You are allowed to represent yourself or have someone else represent you in a fair hearing. Legal representation, while allowed, is not paid for by the state. There are however a number of legal aid groups operating in the state that can represent you either free of charge or on a sliding scale. This is an official legal hearing, and as such, CDPAANYS strongly recommends you seek legal representation.

If you are unhappy with your Managed Long Term Care (MLTC) plan and wish to change to a new plan, you may do so once in a one-year period. However, this is considered a “voluntary” change and you do not have any right to continue receiving the same number of hours you had been receiving with the previous plan.

In some instances, you are entitled to continue to receive the hours and services you had been authorized for by your old plan. In these instances, your new MLTC plan must honor the same hours for 90 days. After that, however, they can reduce or change your plan of care and authorized hours.

You may receive continuity of care hours when:

• your previous MLTC is closing or stopping operating in your county and you have received official notice of this, with your rights, from DOH and the plan.
• you have been switched from a mainstream managed care plan to a MLTC due to Medicare eligibility.
• you received CDPA under Immediate Need Medicaid through your Local Department of Social Services (county) and now are being forced to choose a plan.
• you are being involuntarily disenrolled from your current MLTC for another reason and forced to join another plan.

For a thorough look at your transition rights, please view the New York Health Access website on this subject.

Download the New York Health Access fact sheet on transition rights in managed care.

Your transition rights if your FI is closing

The state has mandated that consumers in CDPA have the following transition rights when their Fiscal Intermediary is closing. Please view our section on choosing & changing fiscal intermediaries to help you with this choice.

• The FI must notify the consumer (or the consumer´s designated representative) that the consumer has a right to select a new FI of their choosing, and that their Managed Care Plan or LDSS (as appropriate) will be contacting them to provide options for choosing a new FI as well as supervise and assist them with transitioning to a new FI. In addition, the notice must also indicate that the current FI has also notified their Managed Care Plan or LDSS, their PA(s), and DOH.
• Notify the consumer´s PA(s) indicating the current FI has informed their CDPA consumer that they will be ending FI operations and the need for the consumer to select a new FI. In addition, the notice must also indicate that the current FI has also notified DOH, and the consumer´s Managed Care Plan or LDSS, and that the Managed Care Plan or LDSS will supervise and assist with the transition process.
• Within five (5) business days of receiving a records request, with written consent from the CDPA consumer, FIs must transfer all records relating to the CDPA consumer´s care authorizations to the consumer´s new FI.
• Within five (5) business days of receiving a records request, with written consent from the CDPA PA, a current FI must transfer records related to the PA´s health status, including immunization records to the consumer´s new FI.
• Upon sending records to the new FI, the current FI must acknowledge it assumes all liability for omissions or errors in such records.
• Notice to any LDSS or Managed Care Plan with which the current FI contracts indicating the current FI has notified their consumer, the consumer´s PA(s), and the DOH of their change in FI operations. The notice must identify each CDPA consumer that has received the notification.
• Copies of all notifications must be sent to DOH via a HIPAA compliant email to ConsumerDirected@health.ny.gov with the subject line: “FI Withdrawal Notices”

Some FIs will be staying open until the state issues the new FI contracts. If yours is one of them:

• They can continue to serve you for no longer than 90 calendar days after the Contract Notification Date. and must comply with all the transition rights listed above in enabling your move to a new FI. 

Electronic Visit Verification (EVV) is a sign-in/sign-out system that requires personal assistants and other home care workers in Medicaid to use either a call in/call out system, other electronic system, or other verifiable method for the purpose of clocking hours and calculating paychecks. 

Since January 1, 2020, EVV has been required by federal law. This means that EVV is mandatory in CDPA and it is part of your responsibility as the consumer to make sure your PAs use it. You can be disenrolled from CDPA if you or your PA routinely ignore these requirements.

EVV systems are required to keep track of:

1. The type of service performed (CDPA is exempt from this)
2. The individual receiving the service.
3. The date of the service.
4. The location of the service.
5. The individual providing the service.
6. The time the service begins and ends.

Different EVV providers use different types of technology to meet this requirement. Some systems allow personal assistants (PAs) to “clock in” and “clock out” using a mobile app. Telephony-based EVV requires using the consumer’s cell phone or home phone to verify the start and end of a shift. Other EVV systems use biometric technology such as fingerprints or facial recognition. 

Different people will have different preferences when it comes to EVV, and some EVV systems work better with CDPA than others. 

For example, if an EVV system requires you to call from a home phone or use a GPS device at your home address, you might want to see if there is a way for your PA to start or end a shift anywhere other than your house, so that you can do everyday tasks like traveling, taking a vacation, or eating out.

Other common items you may wish to ask about are:

• Do I have to pre-load a schedule for the week, and if so, how easy is it to change?
• What happens if I do not have cell service or an Internet connection (more relevant in some parts of the state than others)?
• Can I, as the consumer, have access to the system to make sure PA hours are correct?
• (If in an app or other online device) What privacy protections are in place and how is my data safeguarded?
• Do you require performed tasks as part of reporting? (Again, CDPA is exempt from this requirement)

CDPAANYS recommends asking potential fiscal intermediaries (FIs) about what type of EVV they use as part of your “interview” process when selecting an agency. Since you and all your PAs will be using it regularly, it is important to make sure the EVV you use works for everyone.