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 The Road Map to Maximizing Long Term Medicaid Coverage During the COVID-19 Emergency

 

 

The COVID-19 pandemic has turned communities, countries, and world on their heads without regard for age, gender, and ethnicity. However, the COVID-19 pandemic has been most unforgiving to the elderly and frail. As such, skilled nursing facilities and other long term care facilities (referred to cumulatively here as “providers”) have been searching for clues to navigate through these difficult times.

To deal with the COVID-19 Emergency, all levels of government (specifically the federal Centers for Medicare & Medicaid Services, state departments of health, and local departments of social services) have announced changes to their standard rules and policies. While this article will focus on changes made to the New York state Medicaid program that impact long term care providers, adaptations are being made across the country to ensure that facilities providing essential health care services are appropriately reimbursed despite their noncompliance with waivable preexisting requirements. 

The article will be divided into three sections: Qualifying for Medicaid, Preserving Medicaid Coverage, and Appealing Medicaid Determinations. Unless noted to be federal, the changes discussed will be specific to New York and the local Medicaid offices within the state. 

The Eligibility Process


Of primary importance during the COVID-19 Emergency has been streamlining the process of qualifying for medical assistance. Demonstrating financial need, a process that previously took months if not years to accomplish, can now be done in a matter of hours. 

For now, applicants and their representative need only attest to the fact that the financial eligibility criteria of New York’s Medicaid program are met to qualify for medical assistance. While immigration status and identity must still be documented, if such documentation is unavailable due to COVID-19, the local Medicaid agency will attempt to verify the applicant’s status using other data sources before affording the applicant a subsequent opportunity to document.

The need to apply for other benefits (such as Social Security or private disability insurance) has also been eliminated as a condition of eligibility. Additionally, the scope of who can sign a Medicaid application has been expanded. Facility representatives can now sign applications on behalf of their residents and simply note that they are signing “due to the COVID-19 Emergency.” Finally, in many instances the need for preauthorizations and proving medical necessity have been suspended; the prior hospitalization requirement that applies to Medicare-covered admissions into skilled nursing facilities has even been 
waived. 

What if the resident is incapacitated and unable to attest to his or her finances? In the past, Medicaid was often conferred on an expedited basis to incapacitated nursing facility residents who were the subject of a guardianship proceeding. Now, many states have closed their guardianship courts during the pandemic, and providers are unable to file their guardianship petitions.

While it remains to be seen how different local Medicaid offices will process unfiled guardianships, providers are encouraged to submit a copy of the drafted pleadings along with an attorney attestation explaining why the action has not been filed and asking Medicaid to disregard the finances of the incapacitated applicant. If approved, the resident’s Social Security will likely be budgeted to the facility as an income contribution given the availability of the representative payee system. Any denials should be appealed. 

Important caveat: Coverage conferred during the COVID-19 Emergency without full documentation will only be conditional. In other words, providers can expect their residents who do not document their eligibility for continued coverage on recertification will likely lose their benefits. However, procedural protections founded in constitutional law afford providers invaluable opportunities to preserve coverage once it has been conferred to a needy resident, even without full documentation. 

Preserving Medicaid Coverage


While securing Medicaid coverage for new admissions is critically important, providers must also worry about keeping their existing residents on the Medicaid roster. The rules for post-eligibility budgeting, denials, discontinuances, and recertifications have also changed during the COVID-19 Emergency.

Providers had been left to wonder how Medicaid would treat the COVID-19 stimulus checks until the federal government issued clarification. Stimulus checks are being issued in amounts up to $1,200 for single adult tax filers, $2,400 for married couples filing jointly, and an additional $500 per child under age 17. 

These stimulus payments are not countable as income for Medicaid eligibility purposes. The funds are also excluded as a countable resource for 12 months following receipt and will not impact the calculation of Net Available Monthly Income, or NAMI, for post-eligibility budgeting purposes.

A challenge, however, is that Representative Payees for Social Security Benefits may not move the stimulus check dollars. The resident or a legal guardian (family or other) are the only parties allowed to spend the funds as part of meeting the Medicaid asset standard in most states—$2,000 for an individual. If a resident is not legally competent and there is no legal guardian, one must be appointed to move the funds. 

 Any loss of Medicaid eligibility during the COVID-19 Emergency should be challenged, and a request made for coverage to be retroactively restored. While still taking the standard precautions of submitting a new application and requesting an appeal, informal requests for reinstatement should be sent to the local Medicaid agency explaining the need for continued coverage during the pandemic.

In many instances, rules will be in place deferring recertifications (for example, for 12 additional months in New York) and disregarding excess resource (for example, for six additional months in New York). 

Changes to Medicaid Appeals


Medicaid disputes are resolved at state-run administrative proceedings called Fair Hearings. Not surprisingly, the rules governing Fair Hearings have also changed during these tumultuous times. 

First and foremost, the strictly enforced time limit for requesting a Fair Hearing has been extended from 60 days to 90 from the date of the notice. Secondly, where Medicaid is administered through managed care plans, the need to await the outcome of a plan appeal may be eliminated. In New York, a Fair Hearing can be requested a mere day after filing the plan appeal. If the deadline for requesting a Fair Hearing falls between March 1, 2020, and the end of the public health emergency, managed care plan members are allowed up to 120 additional days to request their hearing. 

Accommodations have been made to conduct a Fair Hearing, normally in-person proceedings, remotely. While Fair Hearings are being conducted by telephone and video to reduce the density at the hearing locations, in-person hearings are still available to appellants who elect that option. Adjournments are also being liberally granted. Additionally, the CARES Act provided additional funding to the Long-Term Care Ombudsman program for a variety of elder protections, including Medicaid eligibility. 

This article has touched on many of the ways the Medicaid program has adopted to the reality of life during a global health pandemic. As governmental agencies respond to the stresses being placed on long term care facilities, providers must be diligent about keeping themselves well-informed about these critically important changes. 


Nancy Levitin EDITED.jpg
​Nancy Levitin is a Partner and the Director of the Health Care Reimbursement and Recovery Practice at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP. Ms. Levitin has been designated as a New York Super Lawyer annually since 2010, a distinction earned by only five percent of the lawyers in the New York metro area. She received her undergraduate degree from Tufts University and her J.D. from the New York University School of Law where she was a member of the Review of Law and Social Change journal. She can be reached at: nlevitin@abramslaw.com.

Gregory Choi EDITED.jpg

Gregory S. Choi is an Associate at the firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP. Mr. Choi focuses his practice on the area of Medicaid. Mr. Choi is admitted to practice in the state of New York and is a member of the New York State Bar Association. He can be reached at: gchoi@abramslaw.com.




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