Medicaid consumers had the right to a fair hearing when their services were reduced or terminated. While waiting for the fair hearing, they could receive “aid continuing" or maintenance of current services. This allowed them to continue to receive services at previous levels until the fair hearing was decided by an administrative judge assigned to the case.
For many consumers in community-based long-term care, particularly those with complex needs, "aid continuing"is the only thing standing between the consumer and becoming institutionalized in a a nursing home.
Now, when consumers are shifted to managed long term care, their fair hearing rights, fundamental due process rights guaranteed under the Constitution, are being threatened as a consequence of privatization.
Consumers will have to go through the MLTC plan’s internal and external appeals process before they have the right to a fair hearing.
If the Governor gets his way, the fair hearing could be held by a private company.
The right to an impartial fair hearing without delay is critical to a consumer’s ability to live in his or her community. The internal and external appeals process adds unnecessary bureaucratic steps that
tend to delay much needed services.
Some consumers have completely lost their right to appeal because no education was done on the
change from the traditional administrative process to the MLTC model. People have filed a fair
hearing request, as they have done for the past 30 years only to have the Administrative Law Judge rule that they need to go through the managed long term care plan. Unfortunately, by the time they go to the plan, the appeals window has passed and they have lost their right to appeal.
MLTCs can change or end anyone’s services without prior notice or fair hearing rights if the change is made at the end of an authorization period.
Reauthorizations are not based on the period of time people will need services, they are required by
law every six months to make sure enough services are being provided and maintained at prescribed
levels. Before, services could not be reduced without proving that the consumer’s situation had indeed improved. Without aid continuing and with exhaustion of due process authorization will serve as a window to reduce services without protections.
In CDPA, consumers who face the loss of services due to the inability to receive aid continuing will have to dismiss their workers. Even if they do restart services, they will face further service delays as they identify new workers, since theirs will have likely secured new employment.
At this time when the state is seeking to implement an Olmstead Plan as required by law, this policy poses the strong distinct possibility of reversing that trend, moving people with disabilities from the community back to institutions a highly retrograde step.
Assembly Member Richard Gottfried has introduced A.4996, which extends fair hearing rights and
aid continuing rights to consumers in MLTCs. That bill needs to be passed in order to protect the most fundamental rights.