Consumer, Providers Can Appeal Reductions in Services

The PCO Program

Personal Care Option (attendant care) services are covered by the Medicaid program for persons with disabilities (including the elderly) who are Medicaid eligible, who are unable to perform two or more activities of daily living without assistance, and who meet medical criteria for admission to a nursing home but are not currently residing in a nursing home. Personal care services are provided under an annual plan of care and are typically provided at home and in community settings.

HSD Limitations on Hours of Service

Earlier this year, the Human Services Department issued new standards for the PCO program that imposed arbitrary "caps" on the number of hours of personal care services that recipients could receive each month. For the majority of PCO clients, the cap is 100 hours per month; for those with the highest level of need, the cap is 250 hours per month. The new standards did not go through the public hearing and comment process because the Department did not consider them to be "regulations".

The caps are being imposed when a client’s annual plan of care comes up for review, and are typically resulting in a substantial reduction in the level of services provided, compared to current plans. The plans of care require prior approval and go through a Utilization Review (UR) done by Blue Cross under contract to HSD. Plans submitted with more hours than the cap allows are typically rejected or amended until they no longer exceed the cap.

What Can Recipients Do to Appeal Inappropriate Limitations of Service?

When HSD or its contractor decides to reduce the level of benefits that a Medicaid recipient has been receiving, they are required by state regulation to provide notice of such a decision to the recipient. Unfortunately, consumers often do not receive the notice, and only the provider is notified of the decision. Nonetheless, a recipient who disagrees with HSD’s decision and believes that they are eligible to continue receiving a higher level of service is entitled to request a Medicaid Fair Hearing to appeal such a decision. A Fair Hearing can be requested by contacting HSD at 827-8164 (toll-free at 1-800-432-6217, menu option #6), but a written request, sent by certified mail, should always be made as well.

The recipient has 90 days from the date of the notice to file an appeal with HSD. If the appeal is made within 13 days of the notice, the recipient is entitled to a continuation of the disputed benefit level until the Fair Hearing has been held and a decision rendered. For this reason, a consumer who wishes to appeal a decision should be encouraged to appeal quickly so that they have the option of requesting continuation of services. However, if HSD’s decision to reduce services is upheld at the Fair Hearing, the recipient who has been receiving continuation of benefits pending the hearing is liable for paying back the value of the disputed services.

It should be noted that HSD believes that it has the authority to impose these caps and individual appeals of the caps may not be successful. However, some hearings have already been held on appeals of the caps, and at least a few consumers have prevailed in these hearings.

Appeals by PCO Providers

Providers of PCO services (typically a home health agency or independent living center) also have a separate appeal process available to them. This may be a useful option when a consumer is unwilling or unable to appeal themselves. If a Utilization Review (UR) results in a denial of the requested level of service, a provider agency can request a "re-review" of the decision. Such a request must be made in writing within 10 days of the UR decision. If the UR decision is not changed in the re-review, the provider can request a "reconsideration" within 30 days of the date of the re-review. Additional evidence in support of the need for a higher level of services can be submitted at this time. Unlike a consumer appeal, though, there is no provision for continuation of benefits to the recipient pending the provider’s appeal for a re-review or reconsideration.

Consumer Assistance

The following organizations, among others, can provide information and advice to consumers on their rights when a decision is made to reduce the number of hours of PCO services that they are receiving. In some cases, individual advocacy or legal assistance in pursuing an appeal may be available.

· Governor’s Committee on Concerns of the Handicapped: 827-6465 (Santa Fe); 1-877-696-1470 (statewide toll-free)