Holding DSS Responsible For COVID-Era Regulations: Overturning Denials of Medicaid Benefits

Throughout the COVID-19 pandemic, the strict regulations governing applications for Institutional Medicaid benefits were relaxed, permitting residents of Skilled Nursing Facilities (SNFs) to obtain and maintain Medicaid coverage. With the end of the public health emergency, those relaxed regulations have gradually been phased out. However, for any applications submitted during that period, the Departments of Social Services continue to be responsible to demonstrate that they complied with the COVID-era regulations.  

For example, GIS 20 MA/04, enacted on April 2, 2020 and extended through June 30, 2023, allowed individuals applying for Medicaid coverage to attest to most eligibility criteria, including their income, resources, and any transfer of assets. It further provided that the local district must attempt to contact the applicant or their representative by email or telephone to obtain any missing information. If after three (3) attempts, the local district was unable to contact the applicant or their representative, the district was required to send a further written request for the missing information with a response due date of no less than 10 days, stating that the response could be provided by telephone and/or email.

Not all local districts complied with these new procedures, resulting in an improper denial of benefits for some SNF residents. Where a district failed to comply with GIS 20 MA/04 by properly contacting the applicant or their representative and giving them the opportunity to attest to any missing information, the Department of Health has consistently held that a denial of benefits cannot be sustained. In such cases, the applicant or their representative has been permitted to provide the outstanding information and, if found to be otherwise eligible, the district must reconsider the original Medicaid application. 

Typically, an applicant or their representative must request a fair hearing to appeal a denial of benefits within 60 days of the decision. As such, the time to appeal based on a violation of GIS 20 MA/04 may have expired for some residents. In some circumstances, however, it may still be possible to request a fair hearing. For instance, if the applicant passed away before the time in which to request a hearing expires, a hearing may be requested within one year from the date of death. Our office has successfully disputed the local district’s failure to comply with the COVID regulations, resulting in their withdrawal of the denial and posthumous approval of benefits for the resident.     

Cona Elder Law’s experienced attorneys continue to monitor the most recent developments regarding this issue as well as other important legal matters concerning the skilled nursing facility, assisted living, and CCRC industry.  Contact us at 631.390.5000 to learn more about how our firm can help your facility preserve your bottom line and ensure your ability to continue to provide quality services to your nursing home residents. 

This article was originally published in LANY Solutions January Newsletter.