Cona Elder Law


Putting an End to the Statistical Games in Medicaid Home Care Cases

September 2010

by Jennifer B. Cona, Esq.

The county Departments of Social Services (“DSS”) have a long history of taking months to open Medicaid Personal Care Services/Home Care cases.  However, their tactics hit a new low when DSS began denying benefits for Home Care applicants because, by the time DSS finally approved the application, the applicant was deceased.  A recent Fair Hearing Decision, however, appears to have put an end to the issue, at least for now.

After handling a number of cases in which the Medicaid Home Care applicant either passed away, was placed in a nursing home or went to a hospice program before a determination had been made as to their Medicaid eligibility, it was clear that a test case was necessary to put the issue to rest.

In the Matter of the Appeal of M.W. (Fair Hearing #5381620J), 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.  On or about February 2008, the home health agency transferred the case to Medicaid-pending status.  Pursuant to 18 NYCRR § 360-2.4(c), retroactive authorization for Medicaid benefits can be issued for medical expenses incurred during the three (3) months prior to the month of application.  As such, on March 14, 2008, an application for Medicaid benefits was filed with Suffolk County 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.

Pursuant to 18 NYCRR §360-2.4, eligibility for Medicaid benefits must be determined within forty-five (45) days of the date of application.  As Elder Law practitioners know, this is rarely, if ever, the case.  In the M.W. case, the required face-to-face interview was held one (1) 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.  On June 9, 2008, the applicant passed away.  Two (2) months later, a Notice of Decision was issued wherein financial eligibility 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 at 18 NYCRR §505.14 define personal care services under the Medicaid program and outline the criteria for initial authorization of services.  While, as a practical matter, the nursing and social assessment is not performed until financial eligibility has been established, pursuant to 18 NYCRR § 505.14(b), when DSS receives a request for services, the Department “shall determine the applicant’s eligibility for medical assistance.”  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, pursuant to Fair Hearing #3891331L, 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.  However, inapposite to same, DSS failed to determine timely financial eligibility pursuant to 18 NYCRR §360-2.4 by taking some one hundred and eighteen (118) days to issue a decision as to financial eligibility.

In a similar instance, in Matter of the Appeal of NT, Fair Hearing # 4757245Q, Suffolk DSS failed to make a Medicaid eligibility determination within forty-five (45) days.  As a result, medical benefits were not available to the applicant due to the agency’s inaction and/or failure to timely process the case. After Fair Hearing, Suffolk DSS was directed to restore all lost benefits resulting from the Agency’s failure to process the Appellant’s application in a timely manner.  In addition, Suffolk DSS was directed to review all similar cases via certification interviews in order to comply with the statutory time limit proscribed by 18 NYCRR §360-2.4.

Similarly, in Matter of Aronowitz v. Bernstein, 430 NYS 2d 323 (App Div NY 1980),  a DSS denial of Medicaid benefits was reversed and reimbursement for Medicaid home care services authorized after Fair Hearing in a case where it took DSS four (4) months to process an application for personal care services.

Finally, in MaryAnn C. v. DeMarzo, Case No 08-CV-3461 (E.D.N.Y. 2008) a class action was brought to address the chronic failure of Suffolk DSS to process timely Medicaid Home Care and Food Stamp applications.  Pursuant to the stipulation of settlement in that case, DSS was 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 18 NYCRR §505.14.  It was argued that sufficient information and documentation was provided to review the home health care needs of M.W. 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.

In an otherwise pithy decision, 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 directed to authorize payment to the home health agency.

Upon being confronted with this very issue in a handful of cases, it appeared that this may be a cost-saving strategy on the part of DSS.  Statistically, if DSS takes long enough to approve a given number of Medicaid home care cases, some percentage of those cases will never have to be reimbursed as those applicants will have either been admitted to nursing homes or die while their applications are still pending.  As a result of the decision in the Matter of the Appeal of M.W., DSS has been called to task on this issue and Elder Law attorneys can ensure it does not happen in future Medicaid home care cases.


Jennifer B. Cona, Esq. represented the family in the Matter of the Appeal of M.W. Ms. Cona is the managing partner of the Elder Law firm Cona Elder Law, LLP, located in Melville.  Ms. Cona practices exclusively in the field of Elder Law, including asset protection planning, Medicaid planning, representation in Fair Hearings and Article 78 proceedings, estate planning, trust and estate administration, guardianships and estate litigation.

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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