How Filing a Notice of Action Can Protect Your Benefits Under Medicaid Managed Long-Term Care Services and Supports
This page was written for advocates and individuals who provide assistance to seniors and persons with disabilities in need of Medicaid long-term services and supports through managed care.
Hanlon Niemann & Wright advocates for the rights of seniors and persons with disabilities to access healthcare. We also represent individuals in their claims for benefits and can provide legal assistance and advice to advocates to those receiving Medicaid long term care benefits. To speak to Fredrick P. Niemann, Esq., please call toll-free (855) 376-5291 or email him at fniemann@hnlawfirm.com.
Understanding How Filing a Notice of Action Can Protect Your Eligibility
A notice of action informs a managed care agency of a disagreement regarding an important Medicaid service.
What is a Notice of Action?
A notice of action is a written notification given to Medicaid applicants or recipients whenever a decision is made about them (called an action), affecting their Medicaid benefits. In addition to the right to written notice, a Medicaid beneficiary also has rights to a hearing before an impartial decision-maker, the continuation of services pending a final decision (in most circumstances); a review of his or her case file prior to and during a hearing; and the ability to present evidence in support of their case and to cross-examine witnesses. These rights are supplemented by additional agreements and protections included within the contract entered between New Jersey and its approved managed care companies.
New Jersey has committed to operate its programs in a manner consistent with Federal and state statutory requirements.
For example, according to the New Jersey Managed Care Contract (MCO contract), when a consumer files a timely internal MCO appeal of previously authorized services, the benefits will be extended during the appeal process; you do not need to separately request continuation of services. http://www.state.nj.us/humanservices/dmahs/info/resources/care/hmo-contract.pdf [hereinafter NJ Contract].
Appealing Managed Long Term Care Decisions Under MLTSS
What Decisions by a Managed Care Organization Are Subject to Appeal?
There is often confusion arising over what kinds of MCO decisions constitute “actions” that trigger due process rights.
One important rule to keep in mind is that an MCO is deemed to have taken an action when its decision negatively impacts a consumer’s 1) eligibility for benefits, 2) scope of services, or 3) access to services. Even reduction(s) and fewer hours of services than what the consumer believes is required by his or her care needs may constitute MCO action. This action triggers a right to receive a written, timely, and detailed notice of action as well as access to the full appeals process, including an internal MCO appeal and/or a state fair hearing appeal.
Here are some examples of MCO activities that, under NJ regulations, are considered actions and allow for an appeal:
- You are applying for Medicaid home and community-based services (HCBS) under managed care. You need assistance with dressing in the morning, help with household chores, shopping and cooking throughout the day, and assistance getting ready for and into bed at night. You or your representative estimates you need 40 hours of personal care assistance each week to live safely at home. After meeting with an MCO nurse who performs an assessment, you receive a letter in the mail informing him that his MCO will only authorize 10 hours of personal care assistance. This limited approval of services is considered an action; or
- You have been receiving Home and Community Based Services (HCBS) because you are a person with physical disabilities. You have complex medical needs, including tracheotomy care. Historically, you have received eight hours a day of private duty nursing, a necessity during the nighttime to keep airways free while sleeping. Recently, you receive an examination from a new MCO nurse. The nurse explains that you no longer meet (or never qualified under) national standards for private duty nursing and thereafter, a letter comes in that your private duty nursing hours are being terminated. The MCO does not offer any other services or supports to replace those lost. This termination of a previously authorized service is considered an action.
- You have advanced ALS and live in a nursing home. You’re screened for HCBS services through a New Jersey managed care demonstration waiver and you’re told you will soon be returned home with appropriate services. Then, weeks and weeks go by with no answer, or denies. The failure to provide services in a timely manner is considered an action eligible for appeal.
In all these examples, the MCO has taken an action that requires the MCO to provide you with a timely written notice of action. This notice is the way you become informed of the MCO’s decision, the reason for that decision, and information needed to appeal that decision.
Your right to file an appeal and/or state fair hearing appeal does not only depend on receiving a written notice of action from the MCO. Another grounds for appeal or filing a Notice of Action is the failure by the MCO to provide services in a timely manner, as defined by the state.
Continuation of Services Pending Your Appeal
Federal and state due process protections require that an MCO provide written notice and appeal/ fair hearing rights whenever an MCO denies, reduces, terminates, suspends, or limits authorization of requested services, including the type or level of service. Pending the outcome of the appeal, you are entitled to the full score of services you were receiving before the MCO terminated, changed or reduced your services/benefits.
What Information Must Be Included in a Notice of Action?
Federal regulations mandate what information must be provided in a written notice of action. Medicaid managed care notices must contain:
- An explanation of the action the MCO has taken or intends to take
- The reasons for the action
- The specific regulations that support the action
- Information about the right to an internal MCO appeal
- Information about the right to request a state fair hearing, subject to possible exhaustion of MCO internal appeal rights
- The procedures for exercising these rights, including timeframes during which the consumer must take action
- The circumstances under which an expedited appeal is available
- Information about the right to continuation of benefits, instructions on how to request continued benefits, and any potential obligation to re-pay.
“You or your representative can first ask your managed care organization to review its decision by asking for an appeal. . .This is called an “MCO appeal”. . . You may also ask for a State Fair Hearing instead of an [MCO name] appeal or file an appeal at the same time.”
A notice of action must provide you with a detailed individualized explanation of the reason(s) for the action being taken, in terms that are reasonably comprehensible to you. Where the action involves the calculation of income or resources, the notice must include or attach the specific calculations used to reach the decision.
When you are already receiving services and the MCO seeks to reduce or terminate previously authorized services, the notice of action must include an explanation of the change in the MLTSS consumer’s physical or functional capabilities since the last eligibility or service plan determination. Courts have concluded that, if an individual has once been determined to be eligible for social service benefits, due process prevents a termination (or reduction) of those benefits absent a demonstration of change in circumstances, or other good cause. MCOs are bound by previous pre-managed care assessments, except where they have proof of changed circumstances and that change is adequately detailed in the notice.
New Jersey defines ADLs and IADLs generally as personal activities like bathing, getting dressed, eating, toileting, and mobility. IADLs generally refer to activities that help a person live independently, like managing medications, the ability to use transportation, housework, laundry, shopping, and preparing meals.
What are Grievances and Complaints vs. Notices of Action?
Under the federal regulations for Medicaid managed care, an expression of dissatisfaction about any matter other than an action is called a grievance. Subjects appropriate for a grievance include, but are not limited to, 1) the quality of care a consumer has received, or 2) aspects of interpersonal relationships, such as rudeness. Medicaid consumers who are dissatisfied with their MCOs in these kinds of ways have a right to file a grievance with their MCO.
New Jersey provides for a complaint process. New Jersey’s managed care contract provides that a consumer may file a complaint as to the conduct of the MCO or failure of MCO to act for any matter in which the consumer feels aggrieved. The matter must be resolved within 5 days or shall be treated as a grievance.
Understanding the Difference Between MCO Appeals and Fair Hearing Appeals
Challenging MCO actions can be more confusing because there are two tracks the appeal can follow — one internal to MCOs and the other through regular state Medicaid fair hearings or both, simultaneous and sequentially. You can go directly to the FHA without appealing through the MCO appeal process.
The MCO appeal procedures must:
- Treat oral inquires seeking to appeal actions as appeals to establish the earliest possible filing date for the appeal
- Give you or your representative an opportunity before and during the appeal to review her case file, including all medical records and other documents considered (in reduction or termination of services cases, advocates may also want to look at pre-managed care assessments and records)
- Give you an opportunity to present evidence and make legal arguments, in person as well as in writing
Given that New Jersey has adopted managed care as its primary service vehicle to persons receiving Medicaid long term care benefits through MLTSS, it is important that all beneficiaries know and understand their rights of appeal. I know I have covered a lot of information with you that may be complex and confusing. If Hanlon Niemann & Wright can be of assistance to you in appealing managed care decisions, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Our offices are conveniently located on Route 9 North in Freehold, NJ.
Fredrick P. Niemann Esq.
Medicaid Appeals Attorney serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Mercer County, Middlesex County,
Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County