Cona Elder Law


Death Before Determination: Securing Retroactive Medicaid Home Care Benefits

Winter 2011

by Jennifer B. Cona

The application process for Medicaid home care benefits is often a trying one, not because of documentation requirements but because of long delays in the various county Departments of Social Services.   This is especially problematic in personal care services cases because the applicant is faced with either going without necessary care for several months or possibly being personally liable for home care costs which the applicant cannot afford while the Medicaid application is pending. 

The problem was recently compounded when the Department of Social Services (DSS) took a “death before determination” stance and denied benefits to an applicant who passed away before the agency approved the case for financial eligibility and therefore could no longer evaluate the applicant in his home to determine the number of hours of services to authorize.

In the Matter of the Appeal of M.W1., the 94 year old applicant was legally blind, deaf, suffered from diabetes and other conditions and needed assistance with each activity of daily living.  He began receiving 24/7 home health aide services at his home in the community for which he paid privately.  Several months later, the home health agency transferred the case to Medicaid-pending status.  Pursuant to state regulation, retroactive authorization for Medicaid benefits can be issued for medical expenses incurred during the three (3) months prior to the month of application.2 As such, within said timeframe, an application for Medicaid benefits was filed with DSS. 

When an application for Medicaid home care benefits is made, the case must first be approved for financial eligibility.  Once financial eligibility has been established, an assessment is then made to determine and authorize the number of hours of care.  DSS considers information provided by the applicant’s physician and also sends out a nurse evaluator to visit the applicant in his/her home.  The evaluator makes a nursing assessment and a social assessment to determine the number of hours of care to be authorized.  As a practical matter, the nurse evaluators do not go out to assess unless and until the case has been approved for financial eligibility.

Eligibility for Medicaid benefits must be determined within 45 days of the date of application.3  As Elder Law practitioners know, this is rarely, if ever, the case.  In the Matter of the Appeal of M.W.4, the required face-to-face interview was held one month after the application was submitted, at which time additional information and documentation was requested.  Said information and documentation was thereafter submitted timely.  No additional requests for information or documentation were made by DSS.

In the interim, the applicant’s health was failing.  Numerous telephone calls were made to DSS to request that the case be approved for financial eligibility so that the nursing and social assessment could be performed.  However, before said evaluations were undertaken, the applicant passed away.  Two months after his death, a Notice of Decision was issued wherein financial eligibility finally was approved.  However, as the applicant was now deceased, the nursing and social assessments could not be performed and DSS would not authorize Medicaid reimbursement to the home health agency.

State regulations define personal care services under the Medicaid program and outline the criteria for initial authorization of services.5  While, as a practical matter, the nursing and social assessment is not performed until financial eligibility has been established,6 when DSS receives a request for services, the Department “shall determine the applicant’s eligibility for medical assistance.”7  As such, DSS could, at any time after receiving an application for personal care services, evaluate the case for nursing and social assessment purposes.  In the Matter of the Appeal of M.W., DSS argued that the applicant must be found financially eligible for Medicaid before personal care services can be authorized and an evaluation performed by the DSS nurse evaluator.8  However, inapposite to same, DSS failed to determine timely financial eligibility pursuant to regulations9 by taking some 118 days to issue a decision as to financial eligibility.

In a similar instance, in Matter of the Appeal of NT,10 DSS failed to make a Medicaid eligibility determination within 45 days.  As a result, medical benefits were not available to the applicant due to DSS’s inaction and/or failure to timely process the case. After the Fair Hearing, DSS was directed to restore all lost benefits resulting from its failure to process the appellant’s application in a timely manner.  In addition, DSS was directed to review all similar cases via certification interviews in order to comply with the statutory time limit.11

Similarly, in Matter of Aronowitz v. Bernstein,12 the denial of Medicaid benefits was reversed and reimbursement for Medicaid home care services authorized after the Fair Hearing in a case where it took DSS four months to process an application for personal care services.

Finally, in MaryAnn C. v. DeMarzo,13 a class action was brought to address the chronic failure of the Suffolk County DSS to timely process Medicaid Home Care and Food Stamp applications.  Pursuant to the stipulation of settlement in that case, DSS was directed to ensure that needy families and individuals have their applications for Food Stamps and Medicaid processed within the time frames required by state and federal law.

At the Fair Hearing in the Matter of the Appeal of M.W., records evidencing the care provided by the home care agency to the applicant were provided, including care plan records and daily logs of all activities performed by the home health aides.  Further, the supervising nurse of the home care agency was called to testify as to the evaluation process and the specific personal care services provided to the applicant. Physician’s orders were in place and a de facto nursing assessment and social assessment were performed by the home care agency sufficient to comply with regulations.14  It was argued that sufficient information and documentation was provided to review the home health care needs of the applicant for the time period in question and enough information existed for purposes of establishing the number of hours of care that should have been authorized by Suffolk DSS.

The Department of Health Commissioner’s Designee found that DSS’s delay in determining financial eligibility and failure to assess the applicant resulted in unpaid home health care bills, for which delay the applicant was not responsible.  As such, DSS’s decision was reversed and DSS was directed to authorize payment to the home health agency.15

DSS took the “death before determination” position in several subsequent Medicaid Home Care applications and applied it to cases not only where the applicant passed away before an eligibility determination was made but also to cases where the applicant went into a hospice program or a nursing home before the application for personal care services was processed, leaving those families with unpaid home health care bills they could not afford.  Fortunately, based on Matter of the Appeal of M.W., those and other subsequent applications with similar fact patterns are now being approved and reimbursement authorized to the home care agency.  As is often necessary, it took a test case to put the issue to rest.




1. New York State Office of Temporary and Disability Assistance Fair Hearing #5381620J.

2. N.Y. Comp. Codes R. & Regs. tit. 18, § 360-2.4(c) (hereinafter 18 N.Y.C.R.R)

3. Id. at § 360-2.4(a)(1).

4. FH #5381620J.

5. 18 N.Y. C. R .R. § 505.14.

6. 18 N.Y.C.R.R. §505.14(b).

7. Id. at  § 505.14(b)(1).

8. See e.g., FH #3891331L, relied upon by DSS.

9. 18 N.Y. C. R .R. § 360-2.4(a)(1).

10. FH # 4757245Q. The full text of the Fair Hearing is available at (registration required).

11. 18 N.Y. C. R .R. § 360-2.4(a)(1).

12. 430 N.Y.S.2d 323 (App. Div. 1980). 

13. Case No. 08-CV-3461 JFB/ETB (E.D.N.Y. 2008).  The full text is available at

14. 18 N.Y.C.R.R. § 505.14.

15. FH #5381620J.

About the Author Cona Elder Law

Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.

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