The State budget enacted in late March 2011 included extensive changes in how certified home health agencies (CHHAs) are paid by Medicaid for home health services.   Some of these changes are effective immediately - on April 1, 2011 - and will likely result in reduced reimbursement for CHHA services.   See changes described here Fundamental Changes to NYS Medicaid in 2011 State Budget  -- and information about CHHA services generally posted at Medicaid Certified Home Health Agency (CHHA) Services.   None of these changes requires or allows immediate reduction or termination of CHHA services.

In the last week, there have been numerous reports of some CHHAs sharply reducing hours of home health aide services, or of refusing to reinstate home health aide services after their patients were hospitalized or in short-term rehabilitation.  CHHAs have misinformed patients and their families that Medicaid law no longer allows 24-hour care.  These actions violate existing state law and regulations.  

On April 8, 2011,  the State Commissioner of Health sent all CHHA administrators a directive reminding them of some of the requirements under state law.  See DOH Letter April 8, 2011. 

This State letter confirms that these changes in reimbursement alone do not allow CHHAs to reduce home health aide services that were previously authorized.  Similarly, if a CHHA client is hospitalized, or in  temporary short-term  rehabilitation, these changes do not allow the CHHA to abandon them -- the CHHA must reinstate the same home health services after the hospital or rehab stay is over, if the client continues to need the services as prescribed by his/her treating physician.   

There are grounds that may allow a CHHA to reduce or terminate services -- but the grounds are limited, and procedures must be followed.  The CHHA must arrange for the local Medicaid office to give the client written notice of the proposed reduction, with an opportunity to request a Fair Hearing with "Aid Continuing."  The grounds for reductions and the written procedures are described in this  fact  sheet.   Note that a hospitalized individual who had received CHHA services before the hospital stay is considered a "recipient" for purposes of being entitled to Notice, Hearing and Aid Continuing rights -- in other words, the CHHA must reinstate his/her services when ready for discharge.   

State regulations provide, "Services shall not be diminished or discontinued solely because of the change in the patient's source of payment or the patient's inability to pay for care."  10 NYCRR 763.5(f).  This provision prohibits a CHHA from reducing services solely because of changes in Medicaid reimbursement enacted by the state effective April 2011.

Misinformation to treating physicians --  Some CHHAs are giving misleading information to the patient's physicians, as well as to the patients and their families, which may mislead treating physicians into signing orders for a lower amount of home care services than the physician believes are medically necessary.   IT IS VITAL THAT advocates inform physicians that they should continue to prescribe the hours of home health service that their patients need in order to remain safely in the community.  Their written orders are a key part of Medicaid home care authorization, and without orders that represent their professional judgment of medical necessity, their patients will not receive the services they need.

WHAT TO DO:  

1.  Make sure the treating physician provides the CHHA with a written statement of their professional  opinion as to the medically necessary amount of home health aide services needed by their patients.

2.  Request a Fair Hearing if hours are reduced or if services are not reinstated in the amount provided before a temporary hospital or rehab stay.    Make sure to request AID CONTINUING.  Provide the name and contact number of the CHHA and a copy of the treating physician's written statement if you have it.   To request a hearing,  go to this site http://projectfair.org/request_form.html (except note that in-person requests in NYC can no longer be filed at 330 W. 34th Street).

3.  If you need legal advice or representation, call one of the following:

• New York Legal Assistance Group -- (212)-613-5000 (advice and representation)
• Selfhelp Community Services  - (212) 971-7658 (advice only)
• Legal Aid Society Health Law Unit (212) 577-3575 (advice only)
• Empire Justice Center (800) 635-0355 (technical assistance to professionals - outside of NYC)

The New York State Department of Health, Division of Home and Community Based Care is responsible for investigating complaints and incidents for home care agencies and hospices in New York State. The federally mandated Home Health Hotline (1-800-628-5972) can be called 24 hours per day, seven days per week. The hotline is manned by Division of Home and Community Based Care staff from 10 a.m. to 4 p.m. Monday through Friday. Complaints and incidents may also be submitted by fax (518-408-1636) or by mail to:

Alternatively, you may send an e-mail to hmhscsurv@health.state.ny.us with the nature of the complaint, and they request  your e-mail address, contact number, and name.

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