631.405.4857 
Spring 2010 - Vol. 20 - No. 2
by Jennifer B. Cona, Esq.
It is well recognized that the various county Departments of Social Services throughout New York State seek to limit the number of home health care hours authorized on behalf of an individual receiving Medicaid home care services. As practitioners, we are often called upon to advocate for additional hours of home care services on behalf of our clients. This is especially so when a client is in need of the ever-elusive twenty-four hour split-shift care.
Split-shift care is defined as “the provision of uninterrupted care, by more than one person, for a patient who, because of his/her medical condition and disabilities, requires total assistance with toileting and/or walking and/or transferring and/or feeding at unscheduled times during the day and night.”1 In sum, split-shift care means the provision of two home health attendants who each work twelve hours per day, seven days per week. Split-shift care comes into play when a single, twenty-four hour home health aide, who must be permitted to sleep during nighttime hours, cannot provide sufficient care to an individual who has nighttime needs. The standard has been interpreted to mean that split-shift care should be awarded to the following types of patients: (1) patients who require assistance three or more times with any activity of daily living during the nighttime hours; (2) patients who require assistance with any activity of daily living at unscheduled times; or (3) patients who require assistance with any activity of daily living during the nighttime hours and cannot request assistance.2
Often, a request for twenty-four hour split-shift care at the initial eligibility determination stage will result in the authorization of twenty-four hour live-in home care services only. If this occurs, a Fair Hearing is commonly required to secure this increased level of care on behalf of the client. With proper preparation and good advocacy skills, twenty-four hour split-shift care can be attained when the circumstances warrant.
The fair hearing will hinge on the production of credible evidence that a twenty-four hour sleep-in aide is not adequate to meet the needs of the applicant. Typically, the home care client will need, inter alia, assistance with transferring, ambulating and toileting. The issue in the split-shift context is, however, whether the home care client needs assistance with those activities at night and whether those nighttime needs are frequent and/or unscheduled. It is incumbent upon the practitioner to develop the record and provide credible proof that the home care client requires: 1) total assistance with an activity of daily living during the nighttime hours; 2) that those nighttime needs are frequent; and 3) that the nighttime needs are unscheduled.
Pursuant to state regulation, the parties to the Fair Hearing have the right to examine the contents of the case record maintained by the Department of Social Services along with all documents and records to be used by the agency at the Fair Hearing.3 Further, the appellant has a right to be provided with copies of documents the agency will present at the hearing.4 The request for the documents should be included in the request for the Fair Hearing. If the request for copies is made less than five days before the hearing, said copies may be provided to the appellant at the time of the hearing.
In preparation for a split-shift case and before even getting to the Fair Hearing stage, practitioners should assist the client’s physician with the request for home care/personal care aide services.5 It is imperative that the physician complete a separate affidavit or additional comments to the county-prescribed form in order to identify, particularize and further develop the client’s nighttime needs. The physician should speak to how many times the client is awake or awakened at night, what assistance is needed during those times, such as transferring, ambulating, toileting, cleaning/hygiene assistance, and any specific reasons therefore. By way of example, there may be medications which cause frequent urination, such as diuretics taken for hypertension.6 Development of such a fact can form a credible basis for the need for split-shift care. While the physician will know the medications prescribed and the side-effects thereof, it is incumbent upon the advocate to “connect the dots” and illustrate what such side effects mean in the context of a home care situation.
Practitioners are generally hard-pressed to get a physician to attend a Fair Hearing. However, the record can be developed through not only the physician’s comments to the home health care form, which will already be part of the case file, but also by affidavit or affirmation for presentation at the Fair Hearing in lieu of appearance. A physician’s detailed affidavit can be a powerful evidentiary tool which must be considered at the Fair Hearing despite not being submitted to the Department of Social Services previously.7 The production of such “new evidence”, which may simply provide additional information or more specific issue development, can be grounds for a determination that, while the previous authorization for home health care was “correct when made”, the new evidence provided at Fair Hearing requires a different result.8
An example of this kind of decision occurs in In the Matter of the Appeal of L.E.9 In that matter, the case record indicated that, based on information provided by the appellant’s daughter, the appellant was waking to use the bathroom “a couple of times” per night.10 However, at the Fair Hearing, the testimony of a nighttime aide evidenced that the appellant awakened four or five times each night on average for toileting.11 Based upon this “new” information, the Department of Health determined that the denial of split-shift care was “correct when made” but directed the agency to conduct a new evaluation of the appellant’s needs and split-shift care was ultimately authorized.
Use of a physician’s affidavit at Fair Hearing turned the case in In re Appeal of GK.12 In that case, the appellant’s physician submitted a statement indicating that because the appellant did not have the assistance she required with toileting during nighttime hours, she had fallen and suffered a fracture.13 Based on this evidence, the Department of Health found that the appellant required total assistance with toileting at unscheduled times of the day and night and therefore reversed the agency’s denial of split-shift care.
The record should be further developed at Fair Hearing via witness testimony. Through the testimony of family member caregivers/care supervisors as well as current home health aides, the day-to-day, hands on care required can be best presented and understood. However, witness preparation can be difficult. Language barriers with the home health aides can present a problem as well as comprehension as to the reason for and goal of the Fair Hearing. It is advisable to prepare written questions for the proposed witnesses and to spend time rehearsing the questions and answers together. It may often be the case that such language and comprehension barriers are insurmountable. If this is the case, a sworn affidavit from such witness may be far preferable and less risky than oral testimony.
The submission of log books maintained by the home health aides can be used to document the need for split-shift care. In one such case, In re Appeal of BR,14 the appellant submitted nighttime logs kept by the two home health attendants evidencing that the appellant required assistance with transferring and ambulation for up to three times during the night.15 Based upon the log books, the credible testimony of the appellant’s son and the medical documentation submitted, the Department of Health determined that split-shift care was warranted and reversed the agency’s determination.
At the hearing, the practitioner should be careful to adequately develop a snapshot of the daily needs and living environment of the appellant. This is generally best achieved through witness testimony. Inquiry should be made into each activity of daily living, the kind of assistance required for each activity, the frequency of each need and the amount of time spent on each such activity. A description of the physical surroundings should also be elicited. For example, the practitioner may inquire as to the number of feet from the bedroom to the bathroom, whether there are stairs that must be navigated, how far away the kitchen is and what assistance the appellant needs in ambulating to each location in order to attend to daily needs, such as eating and toileting. In advocating for split-shift care, the point must be driven home that all such assistance is required not only daily, but also each night, at unpredictable, unscheduled times of night.
The agency’s nurse evaluator will often be present at the hearing, allowing the opportunity for testimony and cross-examination. Inquiry should be made into the written plan of care and any assessments or departmental memos rendered. The nurse evaluator should be called upon to substantiate findings therein and explain any changes or discrepancies if there is more than one home visit, such as for reauthorization.
A narrative as to the nurse evaluator’s home visit should be given by a family member caregiver or home health aide who was present during the home visit. It is typically the case that the evaluator has visited the appellant only once, that the visit is brief and occurs during the day. Inquiry into whether any agency representative paid a visit at night or otherwise has first hand knowledge of the appellant’s nighttime needs can be very effective. Further, it is often the case that the nurse evaluator does not even inquire at the time of the home evaluation as to nighttime needs. Again, bringing this to the forum’s attention can be quite effective.
Twenty-four hour split-shift home care services are infrequently authorized. However, the intransigence of the local Departments of Social Services may be overcome by a practitioner with strong advocacy skills who invests the proper time and effort in constructing a detailed file, coordinating with the physicians and preparing the witnesses to present a credible and well-documented case.
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Endnotes
1. § 505.14 (a) (3), Title 18 of the Official Compilation of Rules and Regulations of the State of New York (hereinafter 18 N.Y.C.R.R.).
2. See, e.g., New York State Office of Temporary and Disability Assistance Fair Hearing #4681832Z and FH #5077019J. The full text of the Fair Hearing is available at wnylc.net (registration required).
3. 18 N.Y.C.R.R. § 358-3.7.
4. 18 N.Y.C.R.R. §358-3.7(b).
5. In New York City and its boroughs, this is Form M-11q, Medical Request for Home Care; in Nassau County, Form 517, Physician’s Request for Personal Care Aide and Order to the Service Agency; in Suffolk County, Form MA 241-A, Physician Recommendation – Personal Care Services.
6. See e.g., FH #5210053J.
7. 18 N.Y.C.R.R. § 358-5.9(b).
8. See e.g., FH #5210053J.
9. FH # 5210053J.
10. Id. at p. 7.
11. Id.
12. FH #4681832Z.
13. Id. at p. 7.
14. FH #5077019J.
15. Id. at p. 5.
Jennifer B. Cona, Esq. is a partner with Cona Elder Law, LLP, located in Melville, Long Island. As director of the firm’s Elder Law department, Ms. Cona practices exclusively in the field of Elder Law and Trusts and Estates. Ms. Cona was recently named one of the “Top 50 Most Influential Women in Business” by Long Island Business News and was the recipient of LIBN’s “40 under 40 Rising Stars on Long Island” award. Ms. Cona is a member of the National Academy of Elder Law Attorneys (“NAELA”), the Estate Planning Council of Nassau County and The Financial Women’s Group. She serves on the Legal Advisory Board of the Long Island Alzheimer’s Foundation (“LIAF”) and is the founder and chair of the Advanced Elder Law Focus Group. For more information, visit www.conaelderlaw.com.
