When an individual needs help with the activities of daily living, to avoid a nursing home and remain in their residence (whether in Hauppauge, Commack, Kings Park, Smithtown, St. James, or any other Long Island town), a benefit worth obtaining is Community-based Medicaid. Community Medicaid will pay an agency that will provide home health aides to assist with Personal Care Services in the home. However, agencies providing Personal Care Services, in a cost-cutting attempt, often attempt to reduce client’s benefits provided by reducing the hours of care provided.
A recipient of Public Assistance, Medical Assistance or Services has a right to a timely and adequate notice when an agency proposes to discontinue, suspend, reduce or change the manner of payment of such benefits.
A timely notice is mailed at least 10 days before the date the proposed action is to become effective.
An adequate notice is a notice of action or an adverse action which sets forth the action the agency proposes to take or is taking. The notice must contain:
o for reductions, the previous and new amounts of assistance or benefits provided;
o the effective date of the action;
o the specific reasons for the action;
o the specific laws and/or regulations upon which the action is based;
o the recipient’s right to request an agency conference and fair hearing;
o the procedure for requesting an agency conference or fair hearing, including an address and telephone number where a request for a fair hearing may be made and the time limits within which the request for a fair hearing must be made;
o an explanation that a request for a conference is not a request for a fair hearing and that a separate request for a fair hearing must be made;
o a statement that a request for a conference does not entitle one to aid continuing and that a right to aid continuing only arises pursuant to a request for a fair hearing;
o the circumstances under which assistance, benefits, or services will be continued or reinstated until the fair hearing decision is issued;
o a statement that a fair hearing must be requested separately from a conference;
o a statement that when only an agency conference is requested and there is no specific request for a fair hearing, there is no right to continued assistance, benefits, or services;
o a statement that participation in an agency conference does not affect the right to request a fair hearing;
o the right of the recipient to review the case record and to obtain copies of documents which the agency will present into evidence at the hearing and other documents necessary for the recipient to prepare for the fair hearing at no cost;
o an address and telephone number where the recipient can obtain additional information about the recipient’s case, how to request a fair hearing, access to the case file, and/or obtaining copies of documents;
o the right to representation by legal counsel, a relative, friend or other person or to represent oneself, and the right to bring witnesses to the fair hearing and to question witnesses at the hearing;
o the right to present written and oral evidence at the hearing;
o the liability, if any, to repay continued or reinstated assistance and benefits, if the recipient loses the fair hearing;
o information concerning the availability of community legal services to assist a recipient at the conference and fair hearing; and
o a copy of the budget or the basis for the computation, in instances where the social services agency’s determination is based upon a budget computation.
Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and Valley Stream, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.
See 18 NYCRR 358